Wilson (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0076

GRANT WILSON (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH and KENNEDY JJA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2022
DATE OF JUDGMENT:	25 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 261
JUDGMENT APPEALED FROM:	DPP v Wilson (a pseudonym) (Unreported, County Court of Victoria, Judge Dempsey, 10 June 2022)

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CRIMINAL LAW – Interlocutory appeal – Applicant charged with offences including aggravated offence of intentionally exposing emergency worker to risk by driving – Evidence sought to be led of police officer’s identification of applicant – Whether evidence is picture identification evidence – Picture identification includes picture or pictures of single person – Whether evidence excluded by s 115(2) Evidence Act 2008 – Picture not suggestive of police custody – Whether evidence excluded by s 137 Evidence Act 2008 – Evidence highly prejudicial – Evidence placed accused in forensic bind – Challenging identification evidence required introducing criminal association evidence – Prejudice incurable by directions – Leave to appeal granted – Appeal allowed – Evidence of police officer’s identification excluded from appellant’s trial.

Evidence Act 2008 ss 115, 137; Interpretation of Legislation Act 1984 s 37.

House v The King (1936) 55 CLR 499 applied; R v Dickman (2017) 261 CLR 601, R v Cook [2004] NSWCCA 52, discussed.

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Counsel
Applicant:		Mr T Sullivan
Respondent:		Mr N Batten
Solicitors
Applicant:	Geelong Lawyers Barristers & Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
KENNEDY JA
KIDD AJA:

Introduction

The applicant is facing a joint trial with his co-accused, Darren Perry (‘Perry’),[1] on a number of charges arising from incidents that are alleged to have occurred in the early hours of the morning on 27 March 2020.[2]
[1]A pseudonym.
[2]The applicant is charged on indictment with the aggravated offence of intentionally exposing an emergency worker to risk by driving (Charge 8), the aggravated offence of recklessly exposing an emergency worker to risk by driving (Charge 9), damaging an emergency service vehicle (Charge 10), recklessly exposing an emergency worker to risk by driving (Charge 12), possession of a drug of dependence (Charge 13) and three counts of handling stolen goods (Charges 14 to 16). Additionally, on the same indictment, the applicant is charged jointly with Perry with six counts of theft (Charges 1, 4, 5, 6, 7 and 11) and two counts of arson (Charges 2 and 3).
A significant issue in the applicant’s trial will be whether he is in fact the offender. In order to prove the applicant’s identity as the offender at trial, the respondent seeks to lead evidence of a police officer’s identification of the applicant. Prior to the empanelment of a jury, the applicant objected to the admission of this evidence.
On 10 June 2022, the learned trial judge ruled that the police officer’s identification evidence was admissible.[3] The judge certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.[4]
[3]DPP v Wilson (a pseudonym) (County Court of Victoria, Judge Dempsey, 10 June 2022) (‘the Identification Evidence Ruling’).
[4]DPP v Wilson (a pseudonym) (County Court of Victoria, Judge Dempsey, 16 June 2022) (‘the Certification Ruling’).
The applicant then instituted this interlocutory appeal. The proposed grounds of appeal are as follows:
Ground 1: The learned trial judge erred by admitting picture identification evidence against the applicant contrary to s 115(2) of the Evidence Act 2008.
Ground 2: The decision of the learned trial judge to admit picture identification evidence was not reasonably open contrary to s 137 of the Evidence Act 2008.
For the reasons that follow, we would grant leave to appeal and uphold ground 2.

Circumstances of the alleged offending

It is necessary to give a brief description of the alleged offending.
Overnight between 25 and 26 March 2020, a Volkswagen Tiguan (‘the Tiguan’) was stolen in Newcomb.
A number of thefts and two arsons were committed in the early hours of 27 March 2020 in the Geelong area. It is alleged that the applicant and Perry were the offenders, travelling in the Tiguan. Specifically, it is alleged that the applicant and Perry committed the two arsons at about 1:20 am in North Geelong.
Police attended the scene of the two fires. One of the police officers who attended was Sergeant Groves. Police examined CCTV footage obtained from a residential address in the area. The footage depicted a person exiting a vehicle and pouring the contents of a container along the footpath before igniting it and getting back into the passenger seat of the vehicle, which was then driven away. The vehicle had a distinctive sunshade or window ‘sock’ covering the rear passenger window. It is the Crown case that the vehicle depicted in the footage is the Tiguan.
At about 3:10 am, Sergeant Groves was driving a marked police vehicle when he observed the Tiguan travelling at speed in Geelong. Sergeant Groves recognised the distinctive rear passenger window ‘sock’.
It is the Crown case that the Tiguan was being driven by the applicant and that Perry was in the passenger seat.
Sergeant Groves followed the Tiguan at a distance. In Fyansford, another police unit assisted Sergeant Groves in intercepting the Tiguan. The Tiguan came to a stop and the passenger exited.
Sergeant Groves positioned his vehicle in an attempt to block the Tiguan. It is alleged that the applicant then rammed the Tiguan into Sergeant Groves’ police vehicle, pushing it approximately 15 metres down the road. The vehicles ended up ‘hooked’ together and collided into a pillar on the front veranda of a house.
It is alleged that the applicant then fled on foot and was unable to be located by police. The passenger who had exited the vehicle was apprehended by police. The passenger was identified as the co-accused, Perry.
The vehicle was identified as the stolen Tiguan, and numerous items that were the subject of the theft charges were located in the Tiguan.
The applicant is alleged to have committed further offending, however it is not necessary to recount the details of that offending here. He was ultimately arrested on 1 May 2020.

Sergeant Groves’ proposed evidence

Sergeant Groves states that he saw the driver of the Tiguan clearly at two points in time: first, when he positioned his police vehicle to block the Tiguan; and second, when both cars stopped after becoming ‘hooked’. His evidence is that he had a ‘very good view’ of the driver at the first point in time and ‘an extremely good view’ of the driver at the second. His evidence is that the driver was unknown to him.
Sergeant Groves remained at the scene for about an hour-and-a-half to two hours. Other police members obtained CCTV footage from the area whilst Sergeant Groves was involved in actively looking for the driver. Unable to locate the driver, Sergeant Groves returned to the scene. He says that he then viewed ‘snapshots’ or ‘stills’ from the CCTV that had been collected, but is unsure whether he viewed the footage.
At about 6:00 am, Sergeant Groves returned to the police station and checked the police system for records of known associates of Perry. At that time, he had with him a still image from the CCTV of the driver of the Tiguan.
The police system displayed a list of names. One of the first names that Sergeant Groves came across was that of the applicant. There were other names displayed, but Sergeant Groves did not look further into them because they were either females or individuals already known to him.
It is Sergeant Groves’ memory that the applicant and Perry had multiple associations indicated in the police system, including that they were co-accused in another criminal proceeding.
The first photograph that Sergeant Groves viewed of any of Perry’s associates was a photograph of the applicant (‘photograph 1’). Upon viewing photograph 1, Sergeant Groves’ evidence is that he identified the applicant as the driver of the Tiguan.
Photograph 1 depicts the applicant positioned in the centre of the frame wearing a white t-shirt against a dark backdrop. He is looking at the camera and displaying what could be described as a plain facial expression. Only his shoulders and head are caught in the frame. It is what could be described as a ‘passport-style’ photograph. The following text appears immediately below the photograph:
Image Id:                  6768456

Date:   26/03/2019

Creator Id:                C1030732

Description:             DHURRINGILE
Sergeant Groves’ evidence is that, prior to making the identification, he did not discuss the possible identity of the driver depicted in the CCTV with any of the other police members, and that he did not hear the applicant’s name referred to in any police communications.
It is also Sergeant Groves’ evidence that although he identified the applicant after examining a single photograph — namely photograph 1 — he continued to look at a further 13 photographs of the applicant. He says he did this in order to see if the applicant was wearing the same clothes in any of the photos as the clothes he was wearing at the time of the alleged offending. It therefore follows that Sergeant Groves viewed a total of 14 photographs.
It is common ground on this appeal that:
(a)‘DHURRINGILE’ is a reference to a correctional custodial facility, and that this would have been apparent to Sergeant Groves;
(b)each of the 14 photographs depict the applicant on different occasions; and
(c)at least one of the other 13 photographs did clearly suggest that the applicant was in police custody at the time the photograph was taken.

Statutory framework

Before turning to the trial judge’s ruling, it is convenient to set out the relevant exclusionary provisions contained in the Evidence Act 2008 (‘Evidence Act’).
‘Identification evidence’ is defined in the Dictionary to the Evidence Act. It is common ground on this application that Sergeant Groves’ identification of the applicant constitutes ‘identification evidence’.
Section 114 of the Evidence Act provides for the exclusion of ‘visual identification evidence’ in certain circumstances. Relevantly, s 114(1) provides:
In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
The relevant parts of s 115 of the Evidence Act provide:
(1)In this section, picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
(2)Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.
(3)Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if –
(a)when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged; and
(b)the picture of the accused that was examined was made before the accused was taken into that police custody.
(4) …
(5)Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged, unless –
(a)the accused refused to take part in an identification parade; or
(b)the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or
(c)it would not have been reasonable to have held an identification parade that included the accused.
Finally, s 137 of the Evidence Act provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

Trial judge’s ruling

The learned trial judge undertook a thorough analysis of the circumstances of the alleged offending and of Sergeant Groves’ evidence. Sergeant Groves gave evidence at the committal hearing and in a pre-trial hearing before the trial judge.

Section 115

His Honour found that Sergeant Groves’ identification of the applicant falls within the meaning of ‘picture identification evidence’ in s 115(1).
He concluded that Sergeant Groves’ identification was based upon the first photograph that he opened, namely photograph 1.
The judge proceeded upon the basis that the exclusionary rule contained in s 115(2) only applies where the pictures suggest they are of persons in police custody. The judge stressed that s 115(2) does not operate to exclude pictures that are suggestive of other forms of custody.
While concluding that photograph 1 itself does not ‘disclose’ that the applicant was in ‘custody’, the trial judge said that the surrounding text (the notation ‘DHURRINGILE’) ‘certainly does’. His Honour appears to have concluded that the surrounding text was indicative of correctional custody, not police custody. Accordingly, his Honour concluded that s 115(2) was not engaged so as to exclude the identification evidence.
The trial judge emphasised that the text (including the notation ‘DHURRINGILE’) would not be led before a jury.
Given his Honour’s conclusion that the evidence was picture identification evidence, he did not consider it necessary to deal with s 114.

Section 137

The judge explained that he was required to assess the probative value of the identification evidence in the context of the other evidence in the case, and that he was required to take the evidence at its highest, consistent with IMM v The Queen.[5]
[5](2016) 257 CLR 300 (‘IMM’).
The trial judge concluded that the evidence had ‘intrinsic probative value’. His Honour made reference to the fact that the witness had a clear view of the perpetrator and that he made the identification within hours of the sighting. Having recognised there were some objective limitations pertaining to the observational opportunity of Sergeant Groves (eg it was not under optimal conditions) and to the identification process (eg that he viewed a single photograph), his Honour concluded that such deficiencies ‘do not render the probative value of the evidence so low’ as ‘to warrant its exclusion’.
His Honour noted that he was mindful of the ‘foggy evening’ hypothetical discussed in IMM, where the ‘circumstances surrounding the evidence’ render the evidence ‘simply unconvincing’.[6] The judge concluded that this was not such a case.
[6]Ibid 315 [50] (French CJ, Kiefel, Bell and Keane JJ).
While his Honour did not explicitly say so, the tenor of his ruling would suggest that he had concluded the probative value of the evidence to be real.
Turning to the danger of unfair prejudice, the judge noted that he was conscious of the ‘well-known seductive quality’ of identification evidence. His Honour also noted that unfair prejudice could arise from the unpalatable evidence that an accused may need to adduce in rebuttal.
His Honour said that the observational opportunity enjoyed by Sergeant Groves and the ‘deficiencies of the identification’ could be exposed through cross-examination, for the consideration of the jury.
The trial judge was of the view that it would not be necessary for the defence to disclose in cross-examination the precise number of photographs examined by Sergeant Groves (which might risk unfair prejudice to the defence, by revealing that the police held many different photographs of the applicant). His Honour concluded that it would be possible to refer to ‘a number of photographs’ being examined, without specifying the exact number of 14. He said he could see ‘no need’ why a jury would need to know the precise number of photographs.
His Honour concluded that the defence could attack the identification evidence in a manner ‘that does not create unfair prejudice to the accused, if done carefully and accompanied with warnings’. His Honour concluded that the ‘raft of strong judicial warnings’ available were sufficient to ameliorate any prejudice occasioned by the admission of the evidence.
His Honour concluded that the probative value of the evidence outweighed the danger of unfair prejudice to the applicant, and refused to exclude the evidence under s 137.

This appeal — nature of appellate review

There is authority to the effect that where a question is raised on an interlocutory appeal that concerns the admissibility of evidence — and specifically the operation of s 137 of the Evidence Act — appellate intervention is governed by the principles stated in House v The King.[7] The question is therefore whether the judge’s decision was reasonably open, not whether it was correct.
[7](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ) (‘House’). See, eg, East (a pseudonym) v The King [2022] VSCA 214, [40]–[41] (Kyrou and T Forrest JJA); McCartney v The Queen (2012) 38 VR 1; KJM v The Queen [No 2] (2011) 33 VR 11; CGL v DPP [No 2] (2010) 24 VR 482; Bray (a pseudonym) v The Queen (2014) 46 VR 623; Pope (a pseudonym) v The Queen [2017] VSCA 324; Ramaros (a pseudonym) v The Queen [2018] VSCA 143.
We are content to proceed on the basis that House principles apply.

Ground 1: section 115

Applicant’s contentions

Under the first ground, the applicant contends that the learned trial judge erred by admitting picture identification evidence contrary to s 115(2) of the Evidence Act.
The applicant’s principal contention is to the effect that photograph 1 itself was captured by s 115(2), which should have led to its exclusion. The applicant accepts that photograph 1 does not suggest that the applicant is in police custody but contends that the phrase ‘police custody’ in s 115(2) should be construed to encompass prison custody. The applicant contends that photograph 1 does in fact suggest that the applicant is in prison custody, by reason of the word ‘DHURRINGILE’ appearing immediately below the photograph. Therefore, the applicant says that the evidence should have been excluded by the trial judge under s 115(2).
Alternatively, the applicant contends that the trial judge should have had regard to all 14 photographs examined by Sergeant Groves in determining the admissibility of the evidence. The picture identification evidence is not admissible, the applicant contends, because at least one of the 14 pictures of the applicant examined by Sergeant Groves indisputably suggests it is a picture of him in police custody.[8]
[8]The applicant submitted that photograph 9 could be described as a ‘mugshot’. The respondent acknowledged that photograph 9 suggests that the applicant is in police custody.
Finally the applicant contends the trial judge erred by importing a requirement into s 115(2) that the applicant must have been in police custody at the time the pictures were examined by the witness, in order for the exclusion to apply.

Respondent’s submissions

The respondent submits that the trial judge was correct to conclude that Sergeant Groves’ identification was not excluded by pt 3.9 of the Evidence Act.
The respondent’s primary position is that s 114 applies in this case, not s 115. The respondent further submits that s 114 does not operate to exclude the evidence.

The respondent submits that s 115(2) has no application to this case because that provision only applies if the pictures examined suggest that they are pictures of persons (in the plural) in police custody. It is said that the provision does not apply in this case because, on the evidence of Sergeant Groves, he made the identification based upon a single picture of a single person. Even if he made the identification based on more than one photograph, they were still pictures of a single person.
In the alternative, and assuming that s 115(2) does apply, the respondent submits that photograph 1 does not suggest the applicant is in police custody. The respondent submits that ‘police custody’ should not be interpreted to include prison custody.

Discussion

It is common ground that Sergeant Groves’ identification of the applicant is ‘identification evidence’ for the purposes of the Evidence Act.
As set out above, s 115(1) of the Evidence Act defines ‘picture identification evidence’ to mean:
identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
In this case, Sergeant Groves made the identification by examining pictures kept for the use of police officers.
In our view, it is immaterial whether Sergeant Groves made the identification from looking at one photograph or multiple photographs, or from looking at photographs of one person or many. Unless a contrary intention appears, ‘pictures’ in the definition of picture identification evidence, and in s 115(2), includes a single picture, and ‘persons’ in s 115(2) includes a single person.[9] There is no contrary intention apparent, and it would be perverse if the exclusionary rule in s 115(2) could be circumvented by examining only a single picture of a person in police custody, or multiple pictures of one such person. The respondent’s contention that the identification does not constitute ‘picture identification evidence’, because Sergeant Groves examined a single picture, or multiple pictures of a single person, cannot be accepted.
[9]Interpretation of Legislation Act 1984 s 37(d).
In our view, Sergeant Groves’ identification is ‘picture identification evidence’ for the purposes of s 115. That being the case, the exclusionary rules created by ss 115(2), (3) and (5) require consideration. It also means that s 114 has no application, as this provision expressly does not apply to ‘picture identification evidence’.[10]
[10]Evidence Act s 114(1).
Before considering the exclusionary provisions, it is worth noting that we agree with the trial judge’s observations that s 115 of the Evidence Act appears to be designed — at least principally — to preserve the integrity of identifications typically undertaken by civilians who are presented with an array of photographs by police.
Despite this apparent purpose, pt 3.9 of the Evidence Act draws no distinction between civilians examining pictures on the one hand, and police officers examining pictures on the other. The provisions are blind as to the identity of the witness making the identification.
Section 115(2) provides that picture identification evidence adduced by the prosecutor is not admissible if the pictures examined ‘suggest’ that they are pictures of persons in police custody. This Court said in Pace in relation to s 115(2):
to ‘suggest’ is to insinuate, create or evoke an impression, or to call up or bring something to mind. Thus, in our view, there must be something in the nature of the photographs themselves which might create the impression in the mind that they are of persons in police custody.[11]
[11]Pace (a pseudonym) v The Queen (2014) 247 A Crim R 1, 7 [23] (Priest and Beach JJA); [2014] VSCA 317 (‘Pace’).
Section 115(2) is concerned with the appearance given by the picture, not with the actual custodial status of the person depicted.
Accepting Sergeant Groves’ evidence that he made the identification based solely upon photograph 1, the question is whether photograph 1 suggests that the applicant was in police custody.
We do not consider that photograph 1 suggests that the applicant was in police custody.
The photograph itself does not suggest that the applicant is in any form of custody, let alone police custody. It could well be a passport photograph, a licence photograph, or a photograph taken as part of some sort of induction into the military, by way of examples. Indeed, it seems to be common ground on this appeal that the photograph itself does not suggest that the applicant is in custody.
Photograph 1 can be contrasted with one of the other photographs of the applicant that Sergeant Groves viewed, which can be described as a classic ‘mugshot’. In that photograph,[12] the applicant is depicted holding a piece of paper with his name and personal details written on it.
[12]Photograph 9.
Further, even when the text appearing immediately below photograph 1 is considered with the picture, in our view it still does not suggest that the applicant was in police custody.
There is authority for the proposition that the Court must examine the pictures themselves without consideration of the context in which they were examined, so that the suggestion of police custody must come from the picture itself rather than surrounding circumstances.[13] It is not, however, clear whether this proposition excludes all consideration of notations on the actual document which bears the photograph. In Pace, this Court did examine the written notations appearing on the document bearing the photograph, concluding that they ‘do nothing to add to the impression beyond what the photographs themselves suggest’.[14]
[13]R v Batty (New South Wales Court of Criminal Appeal, 6 August 1997) 11 (McInerny J, Abadee J and Bruce J each agreeing at 20); see also Pace (2014) 247 A Crim R 1, 8 [25].
[14]Pace (2014) 247 A Crim R 1, 7–8 [24].
Assuming that the notations appearing immediately below photograph 1 can be taken into account, we doubt that the word ‘DHURRINGILE’ itself is suggestive of the applicant being in custody.[15] But even if it were, at its highest, it could only give the appearance that the applicant was in correctional custody, not in police custody. As we have noted and the trial judge correctly observed, s 115(2) is directed at pictures that suggest that they are pictures of persons in police custody, not any other form of custody.
[15]Dhurringile is the name of a suburb. Dhurringile Prison is a correctional facility located within this suburb.
While the policy underpinning s 115(2) might be thought to extend to the suggestion of any form of criminal justice custody, we are constrained by the plain meaning of the phrase ‘police custody’. To interpret the provision so as to extend to other forms of custody (such as prison custody) would be to fundamentally rewrite the text of s 115(2).[16] We note, in this context, the very clear demarcation between correctional and police custody (albeit without using those exact expressions) set out in the Corrections Act 1986, ss 6A-6E.
[16]This approach to the construction of police ‘custody’ is also consistent with the authorities concerning the construction of the phrase, ‘the custody of a police officer of a police force’, as are used in ss 115(3) and (5). See, eg, R v Darwiche (2006) 166 A Crim R 28, 36 [33] (Bell J); [2006] NSWSC 924. Of course, a photograph which implies any form of a custodial setting (such as prison or remand) will often also be suggestive of police custody (irrespective of the exact custodial status). This will be a question of fact. Where it does not suggest police custody, it will not be excluded under s 115(2). This does not necessarily mean that the evidence is admissible if it is suggestive of some other form of custody. Such evidence may still be excluded under s 137.
In conclusion, we agree with the ultimate finding of the trial judge that photograph 1 does not suggest the applicant was in police custody as required by s 115(2). Section 115(2) was not, on that basis, engaged, and did not operate to exclude this evidence.
We now turn to the applicant’s submission that this Court should consider all 14 photographs, including the photograph that was plainly suggestive of the applicant being in police custody.
The difficulty confronting the applicant with this argument is that the trial judge concluded that, on the evidence before him, taken at its highest and assuming credibility and reliability, the act of identification occurred when Sergeant Groves viewed photograph 1. It is not suggested that this finding was not open to the trial judge or that it did not accord with the evidence before him.
Consistent with the trial judge’s approach to this issue, we consider that we are bound to consider the admissibility of the evidence accepting Sergeant Groves’ evidence that he identified the applicant from photograph 1 alone. It follows that the presence of the photograph amongst the other 13 photographs which clearly suggested the applicant was in police custody has no bearing upon the application of s 115(2).

The applicant also contends that his Honour erroneously introduced a temporal requirement — which applies in relation to ss 115(3) and (5) — into s 115(2). That is, the applicant contends that the judge was under the misapprehension that, in order for the exclusionary rule created by s 115(2) to apply, there is a requirement that the applicant was, in fact, in the custody of Victoria Police at the time of Sergeant Groves’ examination of photograph 1.
The impugned passage in the ruling reads:
Even if I took a view that the impugned identification evidence was broader and made as a result of Groves looking at all the photographs, including those fairly described mugshots, the photos would still not have the temporal quality that accompanies the person being ‘in custody’ of Police that the Act sets out to prohibit.[17]
[17]The Identification Evidence Ruling, [92].
Section 115(2) — unlike ss 115(3) and (5) — does not require that the accused be in police custody at the time of the examination of the photograph by the witness. It is not clear whether his Honour did in fact think there was such a requirement for s 115(2). If his Honour did approach it in this way, he was in error.
But it seems to us that any such error was immaterial, given the correctness of his Honour’s primary conclusion that s 115(2) was not engaged because the identification was based upon photograph 1 only, and that photograph was not suggestive of the applicant being in police custody. There was no need to address the admissibility of an identification based upon the 14 photographs.
For completeness, it was common ground on this appeal that ss 115(3) and (5) had no application in this case. These provisions would only apply if the applicant was in the custody of Victoria Police at the time of Sergeant Groves’ examination of photograph 1. Plainly, the applicant was not in such custody at the time of the photograph examination. Rather, he was in the community.
At the oral hearing of this application the applicant’s counsel advanced an alternative argument, assuming that he was wrong with respect to his argument relating to s 115.
In this alternative argument, he relied upon s 114(2), which renders visual identification evidence adduced by the prosecutor inadmissible unless (among other things):
the identification was made without the person who made it having been intentionally influenced to identify the accused.
The applicant’s counsel argued that Sergeant Groves intentionally influenced himself to identify the applicant by informing himself about the applicant’s criminal association with Perry and by viewing only photographs of the applicant.
Given our conclusion that s 114 does not apply in this case (because the evidence constitutes ‘picture identification evidence’), it is unnecessary to address this alternative argument. For completeness however, we would indicate that we do not find it persuasive. Even if it is meaningful to speak of a person intentionally influencing themselves, which we doubt, s 114(2) is plainly directed at the situation where a witness has been influenced in their identification by a third party, such as an investigating police officer.
Ground 1 must therefore fail.

Ground 2: section 137

Ground 2 contends that the decision of the learned trial judge to admit picture identification evidence was not reasonably open and was contrary to s 137 of the Evidence Act. The particulars of ground 2 are as follows:
(a)The danger of unfair prejudice to the accused outweighed its probative value.
(b)The danger of unfair prejudice cannot be sufficiently ameliorated by directions.

Applicant’s submissions

In contending that the trial judge’s decision was not reasonably open, the applicant submits that his Honour underestimated the danger of unfair prejudice created by the admission of the evidence.
The applicant says that the risk of the jury attaching undue weight to Sergeant Groves’ evidence cannot be cured by directions. This is, at least in part, because Sergeant Groves is a professional and experienced investigator who expressed ‘certainty’ about the correctness of his identification.
The applicant further contends that the process of identification undertaken by Sergeant Groves involved ‘effectively guilt by association’ reasoning. Combined with the clear inference that the applicant was known to police and easily found on the police database, the applicant says there is a significant risk of the jury engaging in impermissible reasoning.
The applicant points out that the very reasoning Sergeant Groves used to make the identification — ‘guilt by association’ — is a reasoning process that the jury will be told is impermissible for them to engage in.
The applicant also contends that in order to properly test Sergeant Groves’ evidence, the defence would need to cross-examine him to the effect that, upon viewing the first photograph, he was in fact not sure if the applicant was the offender, so he continued to view a further 13 photographs to determine whether he could identify the offender. The applicant contends this places him in a forensic bind. The sheer number of photographs viewed may ‘reinforce’ a further 13 times Sergeant Groves’ belief in his identification. It would also reveal that police had 14 different photographs of the applicant on the police database.
The applicant contends there are no directions which can overcome this unfair prejudice, and any directions would be so complex as to increase the risk of prejudice.

Respondent’s submissions

The respondent contends that the trial judge’s decision to admit the evidence was reasonably open.
The respondent submits that the trial judge correctly treated the finding of a phone linked to the applicant in the Tiguan as independently strengthening the probative value of the identification evidence.
The respondent says that the judge properly considered matters tending to diminish the probative value of the evidence, such as the use of a single photograph, and contends that the judge correctly put matters of credibility and reliability to one side in assessing probative value.
It is submitted that the judge was alive to the unfair prejudice alleged by the applicant, and was correct to conclude that, in light of appropriate directions that would be available, the probative value of the evidence was not outweighed by the danger of unfair prejudice.
Discussion
By way of summary, the following can be said concerning the information which Sergeant Groves acquired leading up to the identification:
(a)Prior to examining photograph 1, Sergeant Groves knew that one of the two offenders was Perry (who had been arrested).
(b)In his efforts to detect and arrest the other offender, Sergeant Groves accessed and searched the police database for associates of Perry.
(c)The database indicated the identity of a number of ‘known associates’ of Perry. Prior to examining any photographs and identifying the applicant, Sergeant Groves discovered from the police database that:
(i)the applicant was a known associate of Perry.
(ii)the applicant and Perry had multiple associations.
(iii)the applicant’s association with Perry was recent.
(iv)the applicant and Perry were co-accused in another criminal proceeding. There was thus the strong suggestion that the applicant and Perry were criminally associated.
(d)Of the listed known associates of Perry, the photograph file of the applicant was the first one which Sergeant Groves opened fully.
(e)Photograph 1 must have suggested to Sergeant Groves (as an informed reader) that the applicant had been in the custody of Corrections in March 2019 by reason of the accompanying notations (particularly the reference to Dhurringile).
Section 137 of the Evidence Act requires that evidence be excluded if its probative value is outweighed by the danger of unfair prejudice to the accused.
The applicant’s focus on this application was upon his Honour’s assessment in relation to the question of unfair prejudice, and in relation to the consequential outcome of the balancing exercise carried out under s 137.
As we have said above in summarising his Honour’s ruling, a fair reading of the ruling is that his Honour considered the probative value of the evidence (when taken at its highest) to be real, although he did not identify it as having any particular degree of force. The applicant did not attack his Honour’s approach to the assessment of the probative value of the identification evidence.

For the purposes of this application we will proceed upon the basis that the evidence has significant probative value.
Even proceeding upon this basis, we are satisfied that the danger of unfair prejudice to the applicant is so high that the only conclusion open to his Honour was to exclude the evidence under s 137.

We turn now to outline our reasons as to why we have reached this conclusion.
The High Court in R v Dickman said:
Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury’s assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence. The ‘rogues’ gallery’ effect of picture identification evidence creates a risk of the latter kind because the appearance of some photographs kept by the police may invite the jury to infer that the applicant has a criminal record.[18]
[18](2017) 261 CLR 601, 616 [48] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) (‘Dickman’).
As we have said, a significant issue in the applicant’s trial will be whether the jury accepts, beyond reasonable doubt, that the applicant was the driver of the vehicle in question.
In the Certification Ruling, the trial judge said this of the importance of the identification evidence in this case:
Turning now to that question, the proof of the accused’s identity is essentially founded on the impugned act of identification. There are CCTV still images of modest quality said to depict the accused, the observations of the police officer in question and the circumstantial piece of evidence that this accused’s phone was located in the vehicle being driven by the alleged offender, but it is the impugned photograph from the LEAP that is indispensable in the Crown case. [Counsel for the respondent] very sensibly conceded that this is so.
The exclusion of the impugned evidence would cause the Crown to seriously reconsider whether or not the case should proceed at all, given the case (insofar as identity is concerned) depends entirely on the challenged evidence.
At the very least, the identification evidence of Sergeant Groves is a vital part of the Crown case.

The applicant has, unsurprisingly, indicated that he will seek to challenge the integrity of the identification evidence. He will do so by exposing:
•The limitations Sergeant Groves faced in making the observations of the perpetrator at the scene.
•The weaknesses or deficiencies in the process or act of identification itself (ie those factors which might be said to affect its integrity).
If the applicant is to effectively test the weaknesses in the identification process at trial, it seems to us that this will inevitably involve exposing — probably through the cross-examination of Sergeant Groves — that his identification was made in circumstances where:
•Sergeant Groves knew that the applicant was a criminal associate of the co-accused, Perry.
•Sergeant Groves knew that the applicant had been in the custody of Corrections in March 2019 (from photograph 1).
The applicant will likely advance a defence that this information coloured or contaminated the identification, and eroded its integrity and reliability (and perhaps credibility). Such material may form the foundation for an argument that the identification was a biased one.
It is difficult to see how this evidence can effectively be tested without exposing to the jury the full import of the information which might be said to have influenced and weakened Sergeant Groves’ identification.
The importance of having these matters exposed before the jury is reflected in the directions which the law contemplates a trial judge giving to the jury. Directions would need to be given under s 36 of the Jury Directions Act 2015. Among other things, the judge would be required to inform the jury of ‘the significant matters the trial judge considers may make the evidence unreliable’.
The danger for the applicant stems from the highly prejudicial nature of the information. Such information would ordinarily not be placed before a jury. It would usually be inadmissible.
In particular, the criminal association information is apt to invite the jury to engage in impermissible ‘guilt by association’ reasoning, or something akin to coincidence or tendency reasoning, on the basis that:
(a)Perry’s co-offender (who was the driver in this offending) had to be a contemporary associate of Perry, and was probably a criminal associate.
(b)The applicant was a recent known criminal associate of Perry.
(c)The applicant was therefore a prime candidate for being the co-offender in this case, making it more likely he was the co-offender.
There is a very real danger that the jury would reason that it is beyond a coincidence that the person who Sergeant Groves has identified as being the driver of the vehicle just happens to be a known and recent criminal associate of Perry.
Indeed, so potentially harmful is this criminal association evidence, that counsel for the respondent acknowledged at the hearing of the application before us that the applicant could not sensibly risk having it introduced into the trial before the jury. Counsel for the respondent fairly said it was not ‘forensically plausible’ for the defence to contemplate its introduction.
We agree with that assessment. The applicant is unlikely to receive a fair trial should this evidence of criminal association be placed before the jury.
Counsel for the respondent submitted there was, however, sufficient scope for the defence to challenge the identification evidence without opening up the criminal association issue. Counsel made reference to the proposed approach referred to in the trial judge’s ruling.
In addition to expurgating the written reference concerning the applicant’s imprisonment from the first photograph,[19] the trial judge proposed that a sanitised version of Sergeant Groves’ act of identification be placed before the jury (with appropriate warnings), along these lines:
•they must not assume that the applicant had a criminal record or had previously been charged;
•the prosecution has led evidence that the applicant’s name was recorded as associated with Perry’s name solely for the purpose of explaining how Sergeant Groves came to locate the photograph of the applicant;
•the evidence must not be used for any other purpose; and
•they must not decide the case based on prejudice arising from evidence that Perry was in the car and that the applicant’s name was associated with Perry in the police database.[20]
[19]The Identification Evidence Ruling, [90], [131](e).
[20]Ibid, [132].
This proposal contemplates that the evidence led before the jury would be confined to evidence of a bare association between the applicant and Perry (ie evidence falling short of a suggestion of a criminal association). It also contemplates that no direct or explicit evidence would be led of the applicant’s criminal past. The proposal assumes that the accompanying warnings will cure any residual risks of speculation or misuse.
We agree with the applicant that this is not a viable solution.
Placing before the jury a sanitised version of the events which culminated in Sergeant Groves’ identification would unfairly constrain the defence from effectively testing the identification evidence. It would risk removing from the jury’s consideration important matters which may have informed or influenced Sergeant Groves’ act of identification.
In order to properly test the identification evidence, it will be necessary for the jury to consider the extent to which ‘guilt by association’ reasoning infected the quality of Sergeant Groves’ identification of the applicant. One obvious line of cross-examination would be that this ‘guilt by association’ reasoning is so attractive and grounded in common sense that it must have undermined the integrity of Sergeant Groves’ identification. Yet the jury will simultaneously be prohibited from engaging in this very form of reasoning when considering the applicant’s guilt. It is wholly unrealistic to expect that the jury could quarantine their use of this evidence in this manner.
There is also an unacceptably high risk that the jury will give the identification evidence more weight than it deserves. The law has always considered that the vice in identification evidence is its seductive nature. The fact that a trained and experienced police officer identified the applicant as the second offender, after a professional and investigative line of inquiry, makes this evidence even more alluring.
Much of the argument before the trial judge focused upon whether it would be necessary for the applicant to introduce all 14 photographs which Sergeant Groves viewed. The applicant’s case is that Sergeant Groves had to view 14 photographs of the applicant to confirm or firm up his identification. The evidence of Sergeant Groves that he made the identification after viewing photograph 1 will be challenged.
This evidence at least raises a related line of reasoning; these photographs would have reinforced in the mind of Sergeant Groves that the applicant had an entrenched criminal relationship with the police, which in turn casts doubt upon the integrity or reliability of his act of identification.
Evidence that there were 14 different photographs of the applicant on the police system would be highly prejudicial. While this prejudice was recognised by the trial judge, he found that the jury did not need to see all these photographs, or learn of the exact number of photographs viewed by Sergeant Groves.
It may be accepted that this specific prejudice can be mitigated, to a degree, through the management of this evidence. Nevertheless, this is no answer to the high order of prejudice associated with the information concerning the criminal association between the applicant and Perry. Against the background of the criminal association information, any managed version of the evidence concerning the 14 photographs will remain prejudicial.
The next question is whether any directions are available which would adequately ameliorate the risk of misuse of the evidence that would be elicited in the course of cross-examining Sergeant Groves.
The law proceeds upon the assumption that juries are mostly capable of following judicial instruction, but there are limits to what can be asked of them, as the purpose underpinning s 137 recognises.
The risks in this case — when combined — are so forceful that in our view there are no directions which can adequately guard against them. The jury would be asked to put out of their minds, as wholly impermissible, the very factors that defence counsel would be urging them to find had naturally and inevitably influenced Sergeant Groves in making his identification of the applicant.

The applicant would be in an invidious, almost impossible, forensic position. Either the applicant leaves, essentially unchallenged, the identification evidence which underpins the prosecution case, or the applicant effectively challenges the identification evidence, with the consequence that his criminal past and criminal association with Perry are revealed.
It is a patently unfair choice, particularly when it concerns, arguably, the central evidence upon which the prosecution case depends. It also concerns a particular species of evidence which the law has long recognised is especially seductive in the hands of the prosecution, and which raises questions of fairness and integrity. It is no small thing for an accused person to find themselves forensically constrained from testing identification evidence that is, arguably, crucial to the case against them.
The fact that the introduction of prosecution evidence (unfairly) places an accused in a ‘Catch-22’ situation is a legitimate matter to be considered under s 137.[21]
[21]Hannes v DPP (Cth) [No 2] (2006) 205 FLR 217, 293 [315] (Barr and Hall JJ); [2006] NSWCCA 373; DPP v Hague [2018] VSCA 39, [31]–[33] (Maxwell P and Beach JA); R v Cook [2004] NSWCCA 52, [37] (Simpson J, Ipp JA agreeing at [1], Adams J agreeing at [73]).
In R v Cook,[22] the New South Wales Court of Criminal Appeal held that evidence of the appellant’s flight from police was wrongly admitted into evidence in the appellant’s trial. The Court found that, on the appellant’s case, the only way for him to ‘remove the sting’ from the flight evidence was to explain his alleged reason for fleeing from the police. His explanation for flight would necessarily have disclosed to the jury his prior history of violence, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. The Court said:
The proposal by the Crown to adduce the evidence of flight presented to the appellant a dilemma. On the one hand, he could say nothing about the evidence, leaving the jury to draw the inevitable inference that he fled when the police approached because he was conscious of his guilt of the assault on the complainant; or he could explain it, which necessarily involved revealing prior criminality of a related kind.[23]
[22][2004] NSWCCA 52.
[23]Ibid, [37] (Simpson J, Ipp JA agreeing at [1], Adams J agreeing at [73]).
This type of prejudice has also been recognised by the High Court in Dickman. In that case, the victim was assaulted and the sole issue at trial was whether the respondent was one of the offenders.
At trial, evidence was led that, almost two years after the alleged offending, the victim identified the respondent in a photoboard as bearing the closest resemblance to his recollection of the appearance of the offender. The victim had on a previous occasion, not long after the alleged offending, incorrectly selected the photograph of another man from a photoboard that did not contain the respondent’s photograph. Following this, the police informed the victim that he was mistaken about this initial identification and that they had identified the persons who were in fact responsible for the assault.
On appeal, the High Court said that this background made it ‘necessary’ for defence counsel to cross-examine the witness to elicit his agreement that he understood, at the time of the identification of the respondent, that the photoboard would contain a photograph of the man whom the police suspected of being one of the offenders. The Court said that such cross-examination was ‘necessary in order to expose a weakness in the identification but it inevitably served to highlight that the police suspected the respondent of being the offender’.[24]
[24]Dickman (2017) 261 CLR 601, 616 [49] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
In Dickman, the Court said that the unfair prejudice was the risk that the jury would infer that the police suspicion was based on matters about the respondent known to police that were not in evidence. The Court concluded that this risk was not a real one in the context of the trial. This was because the reasons that the investigation came to focus on the respondent were explained in the evidence already before the jury.
The same cannot be said in this case. The evidence that will come to light in this case, particularly the fact of an alleged criminal association between the applicant and Perry, is not information that would otherwise be before the jury.
In all the circumstances, the introduction of this identification evidence involves a very high order of prejudice, to the point where it would render the trial unfair. Even if we were to assume its probative value to be high, the probative value would still be outweighed by the danger of unfair prejudice to the applicant.
The learned trial judge was bound to exclude the evidence in question under s 137. With all respect to the trial judge, the evaluative judgment demanded by s 137 miscarried in this case.
The learned trial judge did correctly identify the relevant principles to be applied under s 137, including the forensic dilemma which we have been discussing. We disagree with his Honour on the application of those principles, which on our view, admitted of only one answer.
For these reasons, ground 2 must be upheld.

Conclusion

For the above reasons, we are satisfied that the trial judge’s decision to admit the evidence of Sergeant Groves’ identification of the applicant was not reasonably open.
We would grant leave to appeal on ground 2 and allow the appeal. We would order that the evidence of Sergeant Groves’ identification be excluded at the appellant’s trial.

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[2022] VSCA 261

25 November 2022