R v Dean William Coleman [1987] ACTSC 28 (14 April 1987)

SUPREME COURT OF THE ACT

THE QUEEN v. DEAN WILLIAM COLEMAN
S.C. No. 69 of 1986
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - evidence - identification - out of court identification of accused by witnesses from photograph provided by police - admissibility - photograph of accused one of twelve presented to each witness on photo board manufactured by police - photograph of accused taken after accused arrested and whilst in custody - photo boards shown to witnesses after accused charged and whilst in custody - photograph of accused distinctive in comparison with others on each photo board - later identification of accused by same witnesses in precincts of court building and in court - admissibility - whether breach by police of general instructions of Commissioner for Police in area of photo boards - admissibility of photo boards - discretion of trial judge - Alexander v. R

Alexander v. R [1981] HCA 17; (1981) 145 CLR 395

R v. Bagley (1926) 3 DLR 717

Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54

R v. Wilson and Dingwall (unreported, Supreme Court of the ACT, 3 November 1986)

Sernack v. McTavish (1970) 15 FLR 381

R v. Carr (1972) 1 NSWLR 609

HEARING

CANBERRA
14:4:1987

DECISION

I will give a ruling on the question of evidence that arose yesterday. After the jury was empanelled but before any other step in the trial took place, Mr. Purnell, counsel for the accused, asked for a ruling that certain evidence proposed to be called on behalf of the prosecution should not be admitted. As counsel for the prosecution proposed to mention that evidence in his opening address to the jury, I considered it appropriate to take the course of conducting a hearing on the voir dire. That hearing on the voir dire followed and during it I heard the challenged evidence together with other evidence which went to the question whether the challenged evidence ought to be admitted.

2. The accused was charged with an alleged offence of armed robbery occurring in a dwelling house on 3 April 1986 at about 10.30 at night. Three eyewitnesses claimed to have seen a person wearing a motor bike helmet and goggles and brandishing a gun in the premises. Those eyewitnesses were interviewed by police on 7 April 1986 and gave a description of the person concerned. They said that the person observed was some five feet five inches to five feet seven inches in height, heavily built with long brown hair to about shoulder length protruding under the helmet, bearded and with a short neck.

3. On 12 April 1986 a police officer, Detective Sergeant Wilson, caused polaroid photographs to be taken of the face of the accused and of a leg on which a tattoo appeared, prior to the accused being charged. There was no objection by the accused, who was in custody at that stage, to those photographs being taken.

4. After the accused was charged later on that morning further photographs were taken by members of the scientific squad who had been summoned to the Belconnen Police Station for that purpose.

5. During the course of the morning, Detective Sergeant Wilson caused to be made up what were described as photo boards. There were three of these. Each of them consisted of a single manila folder upon which 12 photographs had been fixed. Each photograph is of a frontal vision of a man's face. In each case the face appears to be that of a man in his 20s or 30s, bearded and in most instances with long hair. One of the photographs on each of the photo boards is a print of a photograph of the accused taken by a member of the scientific squad. That photograph is fairly distinctive. The person shown, the accused, is rounder in the face than most of the others and has a distinctly short neck. In only one other photograph is there a likeness of a person which has a substantial similarity to that of the accused.

6. Later on the same day the three photo boards were taken by police officers and shown to the eyewitnesses. Each eyewitness saw a single and different photo board. None of the eyewitnesses had any difficulty in identifying the photograph of the accused on the photo board as being a likeness of the man who was at the house on the night in question although, as I have already indicated, he was at that time wearing a motor cycle helmet and goggles.

7. Detective Sergeant Wilson was the police officer in charge of the investigation. He has had many years experience in the police force, including three years in the criminal investigation branch. What exactly his duties were in that branch I am not sure. He had at the time of the events in question only seven months or so experience as a detective. It was submitted on behalf of the accused that in failing to hold an identification parade and in making up the photo boards and showing them to the eyewitnesses, the police, and in particular Detective Sergeant Wilson, were acting in breach of General Instruction 31 issued by the Commissioner for Police on 19 December 1979.

8. The instruction is a lengthy one. I do not propose to set it out in detail, however, it is desirable to refer to the provisions of paragraphs 1 and 2 which appear under the heading "Identification of Suspected or Arrested Persons":

"1. Members concerned in the investigation of

offences shall have particular regard for the
necessity to identify fairly any person suspected
of a crime. Members have a clear duty in the
course of their investigations to remove from
suspicion any person upon whom suspicion has
unjustifiably fallen.

2. Where it is necessary to ascertain whether a
person can be recognised by witnesses, every
precaution should be taken to ensure that the
identification is carried out fairly. The
decision to conduct an identification parade shall
be made by the member in charge of the
investigation."

9. There are other provisions relating to identification parades and I think it is adequate if I say simply that whilst those instructions are very detailed as to the procedures to be carried out when an identification parade is held, they are in effect silent as to the circumstances in which a decision should be made to carry out an identification parade, as opposed to those situations in which an appropriate decision would be to not carry out such an identification parade.

10. Paragraphs 17 and 18 of General Instruction 31 appear under the heading "Use of Photographs for the Purpose of Identification" and are as follows:

"17. Photographs of persons suspected of crime
may be utilised for two purposes:-

a. to establish their identity; and

b. to trace them as perpetrators of a
crime.

18. The use of photographs of convicted or
suspected persons by members and others engaged in
tracing the perpetrators of a crime is permissible
and may often be resorted to with success."

11. There are other following paragraphs relating to the use of photographs for the purpose of identification and, again, it is unnecessary to refer to them in detail. It is adequate to say that they set out what is envisaged by the heading to this section of the instruction, namely the use of photographs for a particular purpose, that purpose being the purpose of identification. There is no provision in any of these paragraphs for the use of photographs for the purpose of strengthening the evidence of a case to be brought against a person who has not only fallen under suspicion of having committed a crime, but who has actually been charged with the commission of the crime.

12. Detective Sergeant Wilson and the other members of the force who were called to give evidence were frank in conceding that they were unaware of the provisions of General Instruction 31 at the time the photo boards were shown to the witnesses, and it appears clear from their evidence that the holding of identification parades in the Australian Capital Territory is rare. It has occurred only once in the combined experience of the three officers.

13. The evidence established that as part of general recruit training members of the Australian Federal Police are given a copy of the general instructions as they stand at the time but when amendments or additions are made to the instructions through notifications in the Federal Police Gazette, the members of the force are expected to bring their copies of the instructions up to date by adding to them extracts from the Gazette.

14. The gazette is published fortnightly. It is up to thirty pages in length. On the evidence, however, it would appear that General Instruction 31 was probably not in existence when Detective Sergeant Wilson joined the force but it was at the time each of the other officers joined. I am unable to conclude on the material before me whether all the general instructions are given to all recruits into the force or whether they are directed only at those who are receiving training as detectives. I am unable to conclude that it was likely that any of the three police witnesses had been given a copy of General Instruction 31 before 12 April 1986.

15. There was some evidence on the part of one of the officers conflicting with that of one of the eyewitnesses as to information which had been furnished by another person or other persons which had led the police to suspect that the accused was the person who had committed the armed robbery in question, but I do not think that that evidence affects the decision I have to make.

16. That is then the general factual background to the matter that I have to determine.

17. The law on this particular subject, namely as to whether evidence of out-of-court identification by means of a photograph and evidence of that photograph is admissible, and if admissible, whether it should be excluded in the exercise of discretion, was the subject of detailed scrutiny by the the High Court in Alexander v. R. [1981] HCA 17; (1981) 145 CLR 395. For the purposes of deciding the issues raised in the present matter, the headnote is of very limited assistance, and it is necessary to examine the individual judgments.

18. It would appear to me that all the Justices decided that out-of-court identification by reference to a photograph is admissible, although the headnote states that Stephen J. dissented on that question. At any rate, I accept for the purpose of the present case that there is no question that such evidence is admissible, and the real issue to be decided is whether such admissible evidence ought to be excluded in the exercise of discretion. On that subject Gibbs C.J. said at p 403:

"In a case such as the present, it seems to me
proper for a trial judge in deciding how he should
exercise his discretion to take into consideration
that it is the duty of police officers
investigating crime to take every precaution
reasonably available to guard against the
miscarriages of justice that can occur, and have
in fact occurred, because of honest but mistaken
evidence of identification, and that for this
reason only in exceptional cases should
photographs be used at a stage when some
particular person is directly suspected by the
police and they are able to arrange an
identification parade or some other satisfactory
alternative means whereby the witness can be asked
directly to identify the suspected person; R v.
Russell (1977) 2 NZLR 28."

19. Stephen J. said on page 417:

"(A) survey of the cases discloses that when photo
identification is used after the detection
process is over, that will in itself be a strong
ground for excluding from the trial all evidence
of identification by a witness who has been
involved in that photo-identification."

20. On page 422 Stephen J. added that with only one exception had a conviction in a case which turned upon photo-identification been allowed to stand where photo-identification had occurred after the detection process had ended. That exception was a Canadian case, R v. Bagley (1926) 3 CLR 717. Mason J., as he then was, with whom Aickin J. agreed, at p 431 approved the decision in R v. Bagley and doubted whether any distinction should be drawn between the detection and accusatory process. Mason J. also said that the discretion to exclude photo-identification type evidence was not to be exercised on the considerations of public policy, referred to in Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54, but simply on the question whether the probative value is outweighed by prejudice to the accused.

21. Mason J. added, however, at p.433 that the conduct of the police in failing to arrange an identification parade deserved censure.

22. Murphy J., on p.436, said:

"The general dangers in identification of a
stranger are compounded when the first
identification after the crime is from a
photograph. The well known displacement effect
tends to reduce the reliability of late
identification. (See Australian Law Reform
Commission Report No. 2, "Criminal Investigation"
1975, p.56.) In addition, the rogues gallery effect
can be highly prejudicial; also
photo-identification invariably occurs without the
accused or his counsel being present to see whether
the procedures used are fair.

The practical necessity for use of photographs in
the detection process therefore often produces
dangers of unreliable evidence and prejudice in
the trial process. The reconciliation and its
authorital interest in effective investigation
with the societal and the defendants interests in
fair trials may be generally achieved by the
admission of evidence and photo-identification
occurring during the detection process and the
exclusion of such evidence where the identification
occurs after the detection process has been
completed."

23. From all this I venture to say that all the members of the High Court in Alexander's case were agreed that a trial judge should be careful in permitting evidence to be given of identification by photograph when circumstances permit of an identification parade. The Chief Justice took the view that the discretion to exclude the evidence was to be exercised by general considerations of unfairness, that is to say, where the question was whether the probative value was outweighed by the prejudice to the accused, as well as by public policy considerations, sometimes called the Bunning v. Cross discretion. Stephen J. and Murphy J. appeared to share that view. Mason J. and Aickin J., as I have said, considered that the Bunning v. Cross discretion did not apply. In the circumstances of Alexander's case the Chief Justice, Mason J. and Aickin J. considered that, whatever the nature of the discretion, the trial judge had not fallen into error in the exercise of that discretion and they dismissed the appeal. Accordingly, those members of the Court constituted the effective majority.

24. On matters of principle, however, so it seems to me with great respect, that the majority view is to be spelt out from the judgments of the Chief Justice, Stephen J. and Murphy J., and that Mason J. and Aickin J. were in a minority on the nature of the discretion to be applied. For my own part I think it is relevant to consider what Stephen J. and Murphy J. had to say about photo-identification in the post-detection stage, bearing in mind that what Gibbs C.J. had to say is consistent with that approach. In my view, Alexander's case leads to the following formulation of the test to be applied. The test is this: unless there are exceptional circumstances, evidence of identification from photographs made after the detection process has come to an end should be excluded in the exercise of discretion either on the ground that its probative value is outweighed by its prejudice to the accused or on public policy grounds or on both. Whether on one or other or both depends on the circumstances.

25. Counsel for the prosecution has referred me to two recent decisions in this Court. One was a decision of Kelly J. in R v. Wilson and Dingwall, and the other was a decision of Gallop J. in R v. Tallant. In each of those cases the learned trial Judge declined to exercise his discretion to disallow evidence of identification by reference to photographs.

26. The circumstances in R v. Wilson and Dingwall were quite complex and it seems to have been considered of importance by Kelly J. that the breach by the police of the relevant general instructions of the Commissioner was unintentional. In Tallant's case Gallop J. took into account the unusual circumstances that at the time the photographs were shown to the witnesses the accused had been on bail for some weeks, and his Honour took the view, as I understand, that it was quite impractical for the police to consider conducting an identification parade at that stage.

27. Turning then to the circumstances of the present case, it is relevant to make some observations before coming to a final conclusion. There has been no attempt to justify the failure to hold an identification parade, except on the ground that none of the police officers was aware that it ought be done, and none of them had experience in conducting such a parade. There is no evidence to suggest that the accused would have been unwilling to participate in an identification parade at the appropriate time, which I take to be in the late morning to early evening of 12 April 1986.

28. It is my view that Detective Sergeant Wilson made some particular endeavour to be fair in the way in which he prepared the photo board, in that all the photographs used on that board are of men about the same age as the accused, with long hair, beards and the like. Nevertheless, as I have already indicated, the photograph of the accused is a distinctive one.

29. It is also to be borne in mind that s.353A of the Crimes Act authorises the taking by the police of photographs for the purpose of identification after a person is charged. The identification with which s.353A is concerned is the identification of the person charged with the person who subsequently appears in court. It is not concerned with providing a means whereby a witness may be given the opportunity to identify the person charged with the person who committed the crime: Sernack v. McTavish (1970) 15 FLR 381, R v. Carr (1972) 1 NSWLR 609. The taking of the photographs by the scientific squad was lawful and did not involve unfairness to the accused.

30. Next, I should say that it is not clear to me that the requirments of the police instructions to which I have referred were breached by any of the police officers conerned. As I have already said, the instructions are silent on the crucial question, namely, the circumstances in which it is desirable to conduct an identification parade rather than to proceed by some other means to identify the person under suspicion. Nevertheless, having said that, I must say that the spirit of the instructions is against any authorisation of the gathering of evidence of the identification of an accused person by means of photographs.

31. In my view, looking at the case as a whole, the general considerations of unfairness, to which the various members of the High Court referred in Alexander's case, and which are almost inevitably involved in the use of photographs to identify a person under suspicion, or a person who is accused of committing a crime, are not avoided in the present case. There is no justification for the failure to hold an identification parade when the accused was in custody. In all those circumstances, I am compelled by the decision in Alexander's case to rule that the evidence that each of the eyewitnesses identified the accused by means of a photograph should be excluded from consideration in the trial, further that the photographs themselves should be excluded, and further that evidence by those witnesses that on a later date they identified the person concerned in and around the court should be excluded. I make those rulings. (Further argument followed)

32. It is a matter for discretion as to whether in-court identification is allowed. It is clearly admissible. There are many cases which say the court must be very careful in allowing that sort of evidence to be given. It would not make sense in the present case for such evidence to be given unless the jury were also told that the witnesses had previously identified the accused by means which I have ruled should be excluded from evidence. So I think I must rule that in-court identification by each of the eyewitnesses should not be permitted.