R v Kenneth Mark Atkinson [1997] ACTSC 14 (24 March 1997)

SUPREME COURT OF THE ACT

THE QUEEN v. KENNETH MARK ATKINSON
No. SCC 4 of 1997
Number of
pages - 4
Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Evidence - admissibility of witnesses testimony as to the identification of the accused from a photoboard - picture identification evidence - practicality of identification parade whilst accused in custody - the dangers of admitting picture identification evidence - certainty of identity as opposed to mere resemblance - probative value not sufficiently great.

Evidence Act 1995 (ACT), s115

Kirk Pitkin (1995) 80 A Crim R 302

HEARING

CANBERRA, 24 March 1997 (hearing and decision)

24:3:1997

Counsel for the Crown: Mr T J Golding

Instructing solicitors: ACT Director of Public Prosecutions

Counsel for the Defendant: Mr C M Everson

Instructing solicitors: Aboriginal Legal Service

ORDER

THE COURT ORDERS THAT:

Evidence of photographic identification be excluded.

DECISION

HIGGINS J

In this matter there are three witnesses the Crown proposes to call to give evidence of photoboard identification of the accused. Those photoboards each contained, inter alia, a photograph of the accused, taken at the time when he was charged some nine days after the alleged offences. At that time the accused was in the custody of the Magistrates Court, being held on remand at the Belconnen Remand Centre. I should add that some of the other photographs are of persons who appear or appeared, at the time when they were shown to the relevant witness, to be persons who, it would be inferred, were in police custody at the time the photograph was taken (unless they were in the habit of wearing chains around their neck). So much was conceded.

None of the three witnesses was asked to identify an offender until more than five weeks after the events in question. Section 115 of the Evidence Act 1995 (ACT) governs the admissibility of such evidence. Subsection 2 states:

Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.

Some of the pictures, as I have said, do suggest that and lead to an inference, or may do, as do some or all of the others. That is quite a separate exclusionary ground from the appearance of the photographs when tendered, particularly that of the accused. Whilst it is not possible to conclude that the breach of s115(2), accepting in this case that it occurred, affected any purported identification, the consequence is to render such evidence of identification inadmissible. There is no discretion, though I think there ought to be, to admit them even if the offending characteristics,

(i) could not reasonably have affected the identification; and

(ii) are removed on tender so as to ensure that the jury draw no such inference.

When the pictures were examined the accused was not in police custody. Section 115(3), therefore, does not apply to require exclusion of the evidence. And for the same reason, s115(5) is not applicable. I would, however, if I admitted the evidence, be obliged to give the warnings referred to in s115(7). Picture identification evidence is not included, indeed, is excluded, from the definition of visual identification evidence in s114. Those sections, 115 and 114, are cumulative in effect. The reasonableness or not of holding an identification parade is not a condition of admissibility in these circumstances.

There seems to be an implicit assumption, however, in s115(5) that picture identification of a person in relevant police custody, that is, of investigating police, will be attempted only after refusal of or ascertainment of the impracticability of an identification parade. The picture identification is assumed then to follow quickly. The anomaly here is that had investigating police carried out the photo identifications on 11 November 1996, whilst the accused was in their custody, the result of that attempt would have failed to produce admissible evidence unless s115(5) had been satisfied.

However, if as here, the investigating police wait until the accused is out of their custody, whether held on remand or free on bail, they appear to escape from those mandatory requirements. There is no evidence from which it could be concluded that it was not, on 11 November 1996, reasonable to hold an identification parade. The considerations in ss114(3), (4) and (5) are made relevant to such a conclusion by s115(6). That is an anomaly that should be addressed. Identification by photographs or a parade held five weeks after an event is necessarily less probative than one held one week later. Identification parade evidence is inherently more probative for reasons well rehearsed in the authorities compared with photographic identification.

I now turn to the three identification witnesses. As to each, it is objected first, that the identification was and is, in truth, equivocal. Second, in all the circumstances that the probative value thereof is so reduced as to make it unfairly prejudicial to admit it. Section 137 then would require the exclusion of that evidence.

The proper test to be applied is addressed in the case of Kirk Pitkin (1995) 80 A Crim R 302. In that case there had been photographic identification. It was not considered in that case whether it had been reasonable or not to hold an identification parade. However, it is apparent that an identification parade could not have been held until at least ten months after the alleged offence. Photographic identification was performed some three and a half months after the alleged offence, before the accused had been taken into custody.

Dean, Toohey and McHugh JJ held that if the effect of the identification evidence went to resemblance rather than identity, it was not proper to admit it. Where the words used to express identification are equivocal on that point, that is, where it is not otherwise possible to exclude, as a matter of reasonable construction, that a positive identification is not being made, the evidence should not be admitted. The court also pointed to the danger in any event of admitting such evidence.

Those dangers were identified as follows,

(i) photographs are a less reliable medium than direct identification;

(ii) photographs render subsequent visual identification less reliable;

(iii) whatever is said, the witness will be likely to assume that a photograph of the offender is present and will wish to assist police by finding it;

(iv) the accused is absent from the process and cannot comment on the fairness thereof;

(v) there may, of course, be a suggestion of past criminal history conveyed by the photographic process.

That latter suggestion is conveyed in this case in relation to some of the persons whose photographs were shown to witnesses, although not in relation to the accused himself.

The first identification witness was Mr McGrath. He drove a person to the crime scene. There were many persons there, most being of Aboriginal appearance as was the person he drove to the scene. So also is the accused. He agrees he cannot be sure of his photograph identification of the accused. He was, however, sure that the man he did purport to identify was not the man who and shortly after the advent event admitted having struck a person (Mr Curwen) on the nose. The Crown case is that a person wielding a baseball bat, probably struck Mr Curwen on the nose, and that person was the accused. Mr McGrath's description of the accused was of a person wearing a green tank top and shorts on the way to the alleged crime scene, wearing no top on leaving and displaying then two rings on his chest, one through each nipple. However, it is clear that the visual identification made by Mr McGrath of the accused from the photoboard ought to be regarded as unequivocal. He said at the time he was not "100% sure" of it. He repeated that uncertainty in his oral evidence on the voir dire. His evidence ought not to be admitted on the basis of that uncertainty alone.

The second identification is from a Mr Hebditch, a victim of the alleged assault, who now purports to be unequivocal as to his identification of the accused. He also picked the accused's photo from those shown on the photoboard some five weeks after the event. However, at the time of the offence, he concedes he only had about 30 seconds within which to view his assailant. He was being assaulted by that person, and perhaps another, at the time. He was, understandably, in a state of turmoil and fear, as a result. He was, to an extent, intoxicated. He suffered head injury and loss of consciousness.

Further, he had given clear evidence at the committal proceedings that he could not positively identify the accused as his assailant. He now says that he did that because he feared for the safety of his sister. It is obvious that if Mr Hebditch was, as he indirectly suggests, deliberately lying to the committing Magistrate, his credibility is gravely suspect. I could not accept his present version as probably true. It is true that he picked a photograph of the accused from the photoboard but that, in all the circumstances, is not sufficient. It would not be reasonable to conclude that the probative value of his evidence is sufficient to warrant its admission.

Mr Curwen, the other victim, agrees that he could not be 100% certain of his identification of the accused. His description of the offender in question does not entirely agree with that of Mr McGrath, though they are referring to an apparently identical man. Mr Curwen had a slightly longer opportunity to see the offender, compared with Mr Hebditch, but otherwise shared each of his difficulties, save that Mr Curwen has consistently agreed that he could not be 100% sure of his identification.

Generally, it seems to me, each witness falls foul of the requirement of personal certainty demanded by the High Court in Pitkin's case (supra). Further, it is for the prosecution to prove compliance with s115, although the defence must persuade me that s115 has application. That has been done. The prosecution have, as I have indicated, failed to show that s115(2) is satisfied, and for that reason the evidence must be excluded.

Insofar as s137 might, however, be applicable, if I was incorrect about the application of s115, an important question raises itself concerning the exercise of discretion under that section. That is, whether the prosecution has attempted to gain better evidence and been frustrated by circumstances beyond its control. One such situation would be where there was a refusal by an accused to participate in a relevant identification parade. At interview, the accused, while first agreeing, did refuse, apparently on signal from his friend to take part in such a parade. However, he did not do so absolutely or finally. He wanted to take professional advice first.

He was, at the interview, advised by an Aboriginal friend, not by a lawyer. He did indicate that he might agree, after legal advice, to take part in an identification parade. However, the issue was not later addressed or revisited, though there was no lack of opportunity for the investigating police so to do.

Then there is the delay, to which I have referred to, in relation to the photograph identification. Section 114(5) seems to proceed on the assumption that identification will be done before the accused leaves the custody of investigating police. It is a factor to consider, in relation to s137, whether the increased danger of erroneous identification could have been avoided by more prompt action on the part of investigating police.

In this case, the accused could, and I think should, have been requested through his lawyer to engage in an identification parade a few days, at most, after his arrest. The delay in photograph identification compounds the other defects which are inherent in that process, and which are evident in the evidence of each of the identification witnesses. It seems to me, therefore, that even if s112(5)(2) had been satisfied, the evidence should be excluded under s137 and I rule accordingly.