R v Luce CA434/05
[2006] NZCA 391
•7 March 2006
ORDER PROHOBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST
PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA434/05
THE QUEEN
v
ALLEN JOHN LUCE
Hearing: 15 February 2006
Court: O’Regan, Goddard and Chisholm JJ Counsel: C P Brosnahan for Appellant
S C Holt for Crown
Judgment: 7 March 2006
JUDGMENT OF THE COURT
A The appeal is allowed.
BEvidence about Kiernan Grant’s identification of the accused by reference to the photograph montage is ruled to be inadmissible.
COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on internet or other
R V ALLEN JOHN LUCE CA CA434/05 7 March 2006
publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.
REASONS
(Given by Chisholm J)
[1] The appellant faces trial on an indictment containing two counts, one of which alleges sexual violation against a young girl. In the context of this appeal the other count, which alleges an indecent assault on another young girl, is of no direct relevance. This is an appeal against a pre-trial ruling that a witness’s identification of the appellant by reference to a montage of photographs is admissible.
Background
[2] It is alleged that the appellant sexually violated the complainant in a toilet at a go kart track near Palmerston North during a race meeting on 9 November 2003. At that time the complainant was aged three years and four months. She immediately told her mother about the alleged violation and the matter was reported to the police that day.
[3] Kiernan Grant, then aged seven years, was also attending the same race meeting. When he became aware of the allegation he told his stepfather and later made a handwritten note recording that he had seen a man come out of the toilets after a little girl wearing a pink dress and that the man:
… was wearing a yellow t shirt and I think I saw him wearing overalls. His hair was grey and long.
Kiernan’s handwritten note recording this description is dated 9 November 2003. It was made available to the Judge by consent.
[4] When Kiernan was interviewed by the police on 20 January 2004 he confirmed that he had seen the little girl come out of the mens’ toilets and after her a
man who “had a cap on – grey hair. Had a yellow top and blue pants or overalls”. The detective interviewing Kiernan then said he wanted to show him some photographs of people who were at the go kart track and that he wanted Kiernan to look at them and tell him if the man he saw come out of the toilets was in any of the photographs.
[5] The montage contains a mixture of 12 photographs of men coincidentally taken at the go kart track at the race meeting on 9 November 2003 and at a previous meeting. Photograph 3 is a photograph of the appellant taken at the track on the day in question. Although his facial features are obscured by his forearm it can be seen that he is wearing a cap, that he has long grey hair and that he is wearing a top which is yellow from the mid chest upwards. Kiernan Grant told the detective that the man he saw was in photograph 3.
[6] While Mr Brosnahan acknowledged that photograph 3 is admissible on the basis that it was a photograph of the accused taken at the track on the day in question, he challenged the admissibility of Kiernan’s identification evidence by reference to the montage. He claimed that this identification evidence was unfair because the photograph of the accused was the only photograph in the montage of photographs that could possibly match the description that Kiernan had provided to the police. In particular he was the only person included in the montage with long grey hair who was wearing a T shirt with a distinct yellow upper part.
District Court Ruling
[7] The Judge accepted that selection of photographs for the montage (other than photograph 3) was confined to photographs taken at the go kart track during the meeting on 9 November 2003 or at that venue during similar events on other days. He was also satisfied that the police had made appropriate efforts to expand the pool of photographs for the montage.
[8] With reference to photograph 3 the Judge noted that the appellant is wearing a black cap and a short sleeved top which is black or dark green to the chest and yellow from the chest to the collar which is red. He noted this did not fully accord with the witness’s description in the handwritten note or the description in the
witness’s deposition. He also noted that the appellant is wearing what appeared to be blue jeans, which again did not accord with the witness’s belief that the man was wearing overalls, and that he is wearing a cap which had not been mentioned in Kiernan’s handwritten description. On the other hand, the Judge accepted that the long grey hair visible below the cap accords with Kiernan’s description.
[9] A detailed analysis of photograph 5 was also undertaken by the Judge. He noted that the male subject in that photograph is wearing overalls which are dark to the chest, where the colour changes to yellow, and that just above the change to yellow there are two narrow red stripes. He also noted that the fact that the person in the photograph is wearing overalls corresponds with one aspect of Kiernan Grant’s prior description, as did the yellow upper part. The Judge also observed that the man is not wearing a T shirt and that his hair is not visible because it is covered by a crash helmet which covers most of his face.
[10] Given Kiernan Grant’s handwritten description the Judge accepted that the choice available was limited to photographs 3 and 5, neither of which fully accorded with the witness’s description. On the other hand, the Judge noted that this factor needed to be set alongside the fact that Kiernan had not been led to believe that the man was necessarily in the montage. As the Judge saw it, the identification was of clothing and hair rather than facial features.
[11] The Judge also took into account that the identification was not the only evidence against the appellant: the appellant had acknowledged his presence at the event at the relevant time; there was evidence from the complainant’s sister that she was aware of a man with a beard wearing a yellow and black shirt watching the complainant before the alleged offence; there was also the evidence of the complainant’s mother seeing the appellant in the vicinity after the alleged offending and seeing him leaving before the end of the meeting; and there was also Kiernan Grant’s evidence was to the clothing and hair of the person he saw coming from the toilet shortly after the complainant had left. We note in passing that photograph 3 which shows the appellant on the day in question would also be available to the jury.
[12] Kiernan’s age, the fact that his description had altered in some respects, and the time lapse before the montage identification was made did not concern the Judge because he considered that they were matters that could be satisfactorily assessed by the jury. He also considered that:
The montage does not … present only one choice broadly corresponding with Kiernan Grant’s handwritten note. There are in fact two with the one not selected in one significant respect corresponding more closely with Kiernan Grant’s handwritten note. That is the photograph – photograph 5 – in which the person is wearing overalls which have a yellow top but in which the hair is not visible because of the crash helmet. Effectively the choice provided is a narrow range of choice. However, on the depositions evidence, Kiernan Grant was aware that the person he claimed to have seen may not be in the montage. When there is added to this the fact that the identification is of clothing and hair rather than facial features, the narrowness of the choice is not such as to lead me to the view that the evidence should not be placed before the jury …
The Judge concluded that the probative value outweighed the prejudicial effect and that while the range of choice left the montage open to criticism, those criticisms could be readily articulated for consideration by the jury.
The Competing Arguments
[13] Mr Brosnahan contended that the process leading up to the identification and the identification itself were unfair and that in all the circumstances the prejudicial effect of the identification evidence outweighs its probative value. He claimed that the Judge erred in his assessment that only photographs taken on the day or at the venue during similar events could be used. In his submission the police could have arranged for photographs of persons or clothing similar in description to that given by Kiernan Grant to be included in the montage. Mr Brosnahan argued that in all the circumstances photograph 3 offered the only possible selection option and that under those circumstances the identification evidence had little probative value.
[14] In response Mr Holt submitted that the police had behaved properly and reasonably in first inviting the accused to take part in an identification parade, which he declined to do, before they resorted to the photographic montage. He claimed that it is at least arguable that a photographic montage was preferable in this case, given that the police had a photograph of the appellant as he appeared on the day in question. Counsel also claimed that the range of photographs that could be used in
the montage was limited by the nature of the photograph of the appellant held by them. He emphasised that before being asked to look at the montage the witness had provided a full description of the appellant and that he was not told that the person he had seen was necessarily present. Mr Holt submitted that the accuracy of the witness’s identification can be tested by reference back to his description and that the probative value of the description is high. In his submission the ruling of the District Court Judge came down to the weighing of various factors and under those circumstances this Court should not intervene.
Discussion
[15] As Richmond P put it in R v Russell [1977] 2 NZLR 20 (CA), which also involved issues arising from an identification by reference to a photograph montage:
… evidence of identification by photograph is legally admissible and relevant. The real question in all cases is whether or not the trial Judge ought to have exercised in favour of the accused his discretion to exclude admissible and relevant evidence on the ground that its prejudicial effect is out of proportion to its true evidential value, or on general grounds of “unfairness”. (p27)
When considering this issue we have not only had the benefit of the Judge’s analysis and counsel’s submissions, but also access to the montage itself.
[16] Before specifically directing our attention to the montage it is appropriate that we respond to the suggestion that in the unusual circumstances of this particular case the photographs that could have been included in the montage were restricted to those taken at the go kart venue on the day in question or at that venue during similar events on other days. Nothing in the authorities indicates to us that the photographs to be included in the montage had to be so restricted. In the highly unusual and fortuitous circumstance where a photograph of the accused taken at the time was available for inclusion in the montage the possibility of any prejudicial slant could have been avoided by the inclusion of photographs of males dressed in a similar fashion and colour scheme to the appellant at the same location within the venue regardless of whether a meeting was in progress. If that approach had been adopted Kiernan Grant would have had a meaningful choice and in the event he selected
photograph 3 his identification of the accused as the man he saw coming out of the toilet would have had considerable probative value.
[17] That scenario can be contrasted with events that actually happened. Our assessment of the montage has led us to conclude that in reality photograph 3 was the only photograph that Kiernan Grant could choose. This is because it was the only photograph of a man with long grey hair wearing a yellow or partly yellow T shirt. Photograph 5 did not offer a viable alternative. In other words, this was akin to a situation where a single photograph of an accused is made available to a complainant or witness for identification purposes.
[18] In R v Ormsby [1985] 1 NZLR 311 this Court observed at 312 that while there is a possibility that in some exceptional circumstances the use of a single photograph might be justified, this is generally unacceptable. Subsequently this Court explained in R v Tamihere [1991] 1 NZLR 195 at 198 that:
The exclusion of evidence of a single photograph or other slanted procedures for identification has customarily been put on the ground that the prejudicial effect of the evidence exceeds its probative value: see for example R v Russell [1977] 2 NZLR 20 and R v Ormsby [1985] 1 NZLR 311. In New Zealand this is an application of the general jurisdiction to exclude evidence obtained unfairly …
The Court also commented at 203 that the use of irregular identification techniques by the police can jeopardise the course of justice and that evidence thereby procured will never be admitted if there is a real risk of unfairness.
[19] Given that this is effectively an identification by reference to a single photograph, we have decided that the evidence should not be admitted. In our view it has very limited probative value and any probative value that it might have is far outweighed by the likely prejudicial effect. We believe that there is a real risk of unfairness and do not consider that the other factors taken into account by the District Court Judge are sufficient to restore the balance in favour of admitting the evidence.
Outcome
[20] The appeal is allowed and the District Court ruling is set aside. Evidence of Kiernan Grant’s identification of the accused by reference to the photograph montage is inadmissible. We should add, however, that notwithstanding this ruling cross-examination of Kiernan Grant about the accuracy of his identification could open the door to this evidence being admitted. We also note that nothing in this judgment affects the admissibility of the photograph itself, as stated in [6] above.
Solicitors:
Roger Crowley, Wanganui for Appellant
Crown Law Office, Wellington
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