R v Luce CA434/05

The appeal was heard by O’Regan, Goddard and Chisholm JJ. The appellant, Allen John Luce, was appealing a pre-trial ruling that a witness’s identification of him by reference to a montage of photographs was admissible. The appellant was facing trial on an indictment containing two counts, one of which alleged sexual violation against a young girl. The other count, which alleged an indecent assault on another young girl, was not directly relevant to the appeal. The court had to decide whether the evidence of the witness's identification by reference to a photograph montage was admissible. The appellant argued that the process leading up to the identification and the identification itself were unfair and that the prejudicial effect of the identification evidence outweighed its probative value. In response, the Crown submitted that the police had behaved properly and reasonably and 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.

The court considered the suggestion that 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. The court concluded that the use of a single photograph or other slanted procedures for identification is generally unacceptable. In this case, photograph 3 was the only photograph that the witness could choose as it was the only photograph of a man with long grey hair wearing a yellow or partly yellow T shirt. The court decided that the evidence should not be admitted as it has very limited probative value and any probative value that it might have is far outweighed by the likely prejudicial effect. There is a real risk of unfairness and the other factors taken into account by the District Court Judge are not sufficient to restore the balance in favour of admitting the evidence. 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.