R v Johnson [2003] ACTSC 78 (30 September 2003)

Last Updated: 14 October 2003

THE QUEEN v SHANE EDMUND JOHNSON

[2003] ACTSC 78

CATCHWORDS

EVIDENCE - picture identification evidence - whether probative value outweighed by unfair prejudice to accused

Crimes Act 1900 (ACT) s 235

Evidence Act 1995 (Cth) ss 115, 135, 137

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 cited

R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 cited

No SCC 13 of 2003

Judge: GYLES J

Supreme Court of the ACT

Date: 30 September 2003

IN THE SUPREME COURT OF THE )

AUSTRALIAN CAPITAL TERRITORY ) No: SCC 13 of 2003

BETWEEN:

THE QUEEN

Plaintiff

AND:

SHANE EDMUND JOHNSON

Defendant

REASONS FOR RULING ON VOIR DIRE

1. Prior to the opening by counsel for the Director of Public Prosecutions, I was invited by both counsel to consider the admissibility of picture identification of the accused by Roberto Lopilato and Emilio Lopilato. In each case, identification was by inspection of what is called a video pictureboard, in which images of the head of nine persons are sequentially shown on the screen. The process of attempted identification in each case was itself videoed.

2. I heard evidence from the police officers concerned in the identification, viewed the video pictureboard and the video of the process of each identification, and considered the statements to police by Roberto Lopilato and Emilio Lopilato. I also viewed an attempted picture identification by one Graeme Gregory and his statement to police. I ruled that I would admit evidence of the identification by Roberto Lopilato, but would reject the evidence of the identification by Emilio Lopilato, indicating that I would give reasons later. These are those reasons. I will deal only with those issues which remained live after counsel addressed.

3. Counsel for the accused submitted that the tender of picture identification evidence is governed by provisions of each of the Evidence Act 1995 (Cth) and Crimes Act 1900 (ACT) and that the prosecution had to comply with each. Counsel for the Director was content to accept that this was so. Neither counsel referred me to any authority on the point. I determined the matter on that basis without independently deciding the question.

4. It was submitted that the pictures examined by each of Roberto Lopilato and Emilio Lopilato suggest that they are pictures of persons in police custody, contrary to the Evidence Act 1995 (Cth) subs 115(2). I do not agree. In my opinion, there is no relevant insignia or indication.

5. It was submitted that the pictures of the persons other than the accused shown to Roberto Lopilato and Emilio Lopilato did not resemble the accused in general appearance (in that they all had a moustache) contrary to the Crimes Act 1900 (ACT) subs 235(2)(b). In my opinion, the other persons did resemble the accused in general appearance. In my opinion, the difference which is relied upon is a particular feature.

6. It was then submitted that in each case the evidence should be excluded pursuant to s 137 of the Evidence Act because the probative value of it is outweighed by the danger of unfair prejudice to the accused.

7. The initial particulars of the objection in relation to the evidence of identification by Roberto Lopilato were:

`(i) his picture identification of the accused occurred on 3 January 2003, two months after the alleged offence occurred on 8 November 2002;

(ii) he did not provide a description of the alleged offender until 12 November 2002 (4 days after the alleged offence on 8 November 2002);

(iii) his request to view the video of the pictures that included a picture of the accused a total of three times, suggests uncertainty in the identification he made of the picture of the accused.'

Further, counsel for the accused submitted in relation to the evidence of both Roberto Lopilato and Emilio Lopilato that the probative value of the picture identification was diminished:

`(c) generally because another witness, Graeme Gregory, did not nominate the picture of the accused from the pictures shown to him by police on 6 February 2003.'

8. Counsel for the accused also relied upon the accused being the only person on the pictureboard without a complete moustache, and also upon the fact that he was the only person with what was described as a stripe behind his head on the picture. Counsel expanded upon aspects of the video of the identification process to support the submission that uncertainty was exhibited. He also suggested some possible leading of the witness by the police officer present.

9. Counsel for the accused correctly submitted that s 137 of the Evidence Act 1995 (Cth) provides a lower threshold that s 135 of that Act. The phrase in s 135 is `substantially outweighed' compared with `outweighed'. Further, s 135 provides for a discretion to refuse to admit evidence, whereas s 137 obliges the court to refuse to admit evidence where it applies. Nonetheless, a balancing exercise is called for (R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at [19]- [20]).

10. The potential probative value of this evidence is significant. It represents a relatively unambiguous identification of the accused by an eyewitness who had a good opportunity of observing the person sought to be identified. The criticisms which are made on behalf of the accused affect the probative value of the evidence as they challenge the reliability of it. The delay, the inherent problems of two dimensional photographic identification using heads only, and the fact that the photograph chosen was the only face without a full moustache all tend to reduce reliability.

11. I do not regard the failure of Graeme Gregory to identify the accused from the same video pictureboard as of any significance in assessing the evidence of positive identification by others. That reflects his perception only.

12. What is the danger of unfair prejudice to the defendant which must be weighed up? It is not sufficient that reception of the evidence makes it more likely that the accused will be convicted. The unfairness and prejudice must lie in the danger that a jury may misuse the evidence. It is not easy to articulate that danger here. It would be, I think, in the risk that the jury might give the picture identification weight disproportionate to its value, perhaps to the exclusion of other evidence, because of the simplicity and finality of it (see generally Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 particularly per Gleeson CJ at [22] and McHugh J at [51]).

13. In the case of Roberto Lopilato, I do not perceive any such danger. The criticisms of the identification evidence are capable of being put in cross-examination and in counsel's final address to the jury. The jury should be well capable of assessing them, assisted by the directions that I will be bound to give. This process should ensure that this evidence is seen as part only of a matrix of facts and not given undue prominence.

14. In dealing with picture identification, it needs to be borne in mind that the legislature has made express provision for the conditions of admissibility which must be met before any question of the application of s 137 of the Evidence Act arises. The application of that section does not give rise to an occasion for an individual judge to second-guess the Parliament by laying down an ex post facto set of rules breach of which equates with unfair prejudice. The approach taken to the common law discretion when there were no legislative requirements is not a safe guide to the application of s 137 to this situation.

15. In the case of Emilio Lopilato, there is a critical difference because of several factors. Firstly, the identification took place some weeks after that by Roberto Lopilato, and approximately three months after the incident itself. There is no acceptable explanation for the delay and, in particular, for the additional delay. Secondly, the video pictureboard shown to Emilio Lopilato was precisely the same as that shown to Roberto Lopilato, including the order in which the pictures were shown and the numbers that they bore. This is poor practice, as it opens the way for conscious or unconscious passing of information between identifiers which, in the present case, are uncle and nephew. I gather from the evidence that it is contrary to normal practice. Thirdly, my observation of the video of the identification by Emilio Lopilato left me with some unease.

16. In combination, these factors (taken together with the criticisms which were common to both) decrease the probative value of the evidence and increase the risk of misuse of it such as to lead to the conclusion that the probative value of the identification evidence is outweighed by the danger of unfair prejudice to the accused. Therefore it must be rejected.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Ruling on Voir Dire of his Honour Justice Gyles.

Associate:

Date: 30 September 2003

Counsel for the Prosecution: Mr C Todd

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr C Everson

Solicitor for the Defence: South Eastern Aboriginal Legal Service

Date of Ruling: 22 September 2003

Date of Reasons: 30 September 2003