R v Lam (No 5) [2005] VSC 279 (2 February 2005)

Last Updated: 3 April 2006

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN
V
CUONG QUOC LAM & ORS	t

---

JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2005 to 19 September 2005
DATE OF RULING:	2 February 2005
CASE MAY BE CITED AS:	R v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 279

RULING NO. 5

---

Evidence – Identification of accused by photograph – Application to exclude - Accused admits presence at scene - Whether issue is one of identification – Discretion to exclude where prejudice outweighs probative value – Relevance of failure to conduct identification parade – Accused in custody – No wilful disregard of police procedures – Risk of unfair prejudice considered.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Dean S.C. with Mr P. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For Cuong Quoc Lam	Mr S. Grant	Michael Gleeson & Associates
For Hung Tu Van	Mr A. Jackson	Haines & Polities
For Linh Van Nguyen	Mr D. Brustman	Valos Black & Associates
For Thanh Nha Nguyen	Mr F. Gucciardo	Theo Magazis & Associates
For Long Thanh Tran	Mr G. Mullaly	Victoria Legal Aid
For Hong Bui	Mr J. Saunders	Valos Black & Associates
For Hoang Tran	Mr M. Rochford	Brendan Wilkinson

HIS HONOUR:

1 Application is made on behalf of Hung Tu Van to exclude evidence of a number of witnesses who identify the accused by selection of his photograph.

2 On 15 July 2002 three witnesses, Tuan Tran, Thi Xuan Tran and Linh Tran had made statements to investigators. On 24 July 2002 statements were taken from six witnesses, Bam Van Nguyen, Thien Hoang, Minh Duy Pham, Duong Dui Pham, Michael Pham and Thuc Kim Hoang. On 25 July 2002 a statement was taken from Cuoc Thai Dinh.

3 On 18 November 2002, those ten witnesses were separately shown a manila folder containing 12 black and white photographs including a photograph of Hung Tu Van. Nine of those witnesses identified Hung Tu Van’s photograph.

4 Photograph number five in the manila folder is a photograph of the accused. It appears that the accused signed a consent form which enabled the investigators to obtain the photograph from VicRoads. Evidence will be given as to how the photograph was obtained. One of the ten witnesses did not identify the accused’s photograph whilst the other nine identified him as a person whom they had observed involved in a fight inside the Salt Nightclub or whom they had observed in Daly Street in the vicinity of the Salt Nightclub. The majority of those witnesses who observed him in Daly Street described the accused as holding a Samurai sword which he concealed behind him. The accused is described by some of these witnesses as covered in blood or having a blood stained shirt.

5 On 18 July 2002 the accused was interviewed and charged with these offences. During the course of the interview he indicated his willingness to participate in an identification parade. It was conceded by Mr Jackson who appears on Mr Hung Tu Van’s behalf that as at 18 July 2002 the accused had visible facial injuries which he had sustained in the early hours of the morning of 8 July 2002 and that it would not have been appropriate for investigators to hold identification parades whilst those injuries were visible. Mr Jackson submitted that investigators should not have conducted photographic identifications on 18 November 2002 but, should then have held identification parades with each of the witnesses. In Mr Jackson's written submission he contended that the failure to conduct identification parades resulted in "an operative unfairness to the accused in that having consented to participate in an identification parade, being the fairest form of identification, he was by the actions of the police in not conducting such an exercise unfairly prejudiced."

6 It is not disputed that the accused had been assaulted inside the Salt Nightclub and had sustained facial injuries which had caused him to bleed profusely; nor is it disputed that he was present in the company of others in Daly Street outside the Salt Nightclub at about the time when some of those witnesses made certain observations. The accused had admitted in his record of interview that he was present in the vicinity of the Salt Nightclub in Daly Street wearing a blue blood stained shirt. What is in issue are the observations of those witnesses who claimed that the accused had possession of a Samurai sword which he had concealed behind his back.

7 In Alexander v R^[1] the majority stated that only in exceptional cases should photographs be used when some particular person is directly suspected by the police and they are able to arrange an identification parade. Nevertheless Gibbs CJ, Mason, Murphy and Aickin JJ concluded that evidence of out of court identification by photograph was admissible but it should be excluded in the exercise of the trial judge’s discretion if the rules of admissibility operated unfairly against the accused. This would be so where the judge was of the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.^[2] The majority found that the learned trial judge had not erred in the exercise of his discretion in refusing to exclude the evidence of identification by photograph.

8 While it is well settled that the evidence of identification from photographs is relevant and prima facie admissible it is also recognised that the use of such evidence presents real dangers at a trial as an accused is substantially limited in litigating any weakness in the manner in which the photographic identification has been made. As the accused is not present at the time when the photograph identification takes place he does not have the opportunity to fully test the circumstances in which it occurred.^[3]

9 Danger arises from the "rogue’s gallery" effect where the use of the photograph suggests the accused has previously been in trouble. In the present case there is no risk of unfair prejudice to the accused as the jury will be told the photograph comes from VicRoads. Another danger is the "displacement effect" in which the identifying witness allows the photographs to displace their memory of the offender. This is the inherent risk associated with suggestibility and concerns the probative value of the evidence. These dangers and the limitations of the photograph itself may lead to the conclusion in a particular case that the jury would give evidence of identification from photographs greater weight than it deserves. In R v Blick^[4] it was recognised that such deficiencies and prejudice to an accused may be lessened, but rarely removed by appropriate directions to the jury. Where the quality of the evidence is such that its frailties cannot be cured by an appropriate direction the evidence should be excluded on the ground that the prejudicial effect outweighs its probative value. The fact that a photo board is used after the accused is arrested and charged is not decisive but it is a relevant factor to take into account in exercising this exclusionary discretion.^[5]

10 In Festa v R^[6] a witness had been shown a board containing a number of photographs. The board had been prepared and the photographs shown to the witness after the accused had been charged. The witness selected three photographs of persons who were similar or consistent with the appearance of the appellant. Gleeson CJ and Hayne and McHugh JJ were of the view that the evidence of the witnesses’ selection of these photographs was admissible and that the trial judge had not erred in his discretion to admit the evidence. Such evidence was similar to that held to be admissible by the Supreme Court of South Australia in Murphy v R^[7] where a number of witnesses selected the same photograph indicating that there was a similarity between the photograph and the offender. Gleeson CJ with whom Hayne J agreed also referred to the decision of R v Bouquet^[8] which had been cited with approval in Alexander v R^[9]. In Bouquet the police had failed to conduct an identification parade or to explain why one was not conducted, but had shown the victim photographs from which the victim selected a photograph of the appellant. The procedure adopted was different from an identification parade prescribed by the relevant Police Regulations. Nevertheless the evidence was held to be admissible, the use of the photographs going to the weight and sufficiency of the evidence rather than to its admissibility.^[10]

11 Before me on the voir dire, Detective Senior Constable Smith gave evidence that he and other investigators had concluded that an identification parade could not appropriately be held prior to the accused being charged as he was suffering from obvious facial injuries. Mr Smith further testified that by mid-August 2002 the investigators made a decision not to conduct identification parades but determined to use a photo-board to ascertain whether or not these witnesses could identify Hung Tu Van. Detective Smith acknowledged that the Victorian Police Manual stipulated that identification parades were the recommended procedure. He knew that where other procedures were followed, they may not be admitted into evidence at the trial. Detective Smith further testified that as the accused was in custody it was impractical to hold an identification parade as facilities were not available at police headquarters which would enable an identification procedure to be conducted with appropriate security. He explained that there would have been difficulties in providing adequate security if identification parades had been conducted with the ten witnesses. The learned prosecutor submitted that it was not unusual for police to use photographic identification in such circumstances.

12 As in Bouquet and Festa’s cases it was not argued before me that the failure by investigators to conduct an identification parade constituted illegality which would warrant exclusion of the evidence in accordance with the principles in Ridgeway v R.^[11] Gleeson CJ said:

"It is one thing to criticise the police for failing to adopt a better and fairer method of investigation. It is another thing to conclude that the existence of grounds for such criticism should result in the exclusion of evidence having probative value. There is no warrant for concluding that the trial judge failed to exercise his discretion in accordance with the correct principles."^[12]

13 Whilst I accept that there may have been difficulties associated with the conduct of an identification parade when the accused was in custody, none of the difficulties to which Mr Smith adverted were insurmountable. Identification parades ought to be conducted notwithstanding difficulties in meeting security requirements because the accused is in custody. These practical difficulties cannot in my view justify departure from the general principle, that after the investigative process has ceased, identification parades should wherever possible be conducted in preference to any other form of identification.

14 There may be circumstances where a wilful refusal by investigators to afford an accused an opportunity to participate in an identification parade may warrant the exclusion of the evidence.^[13] Detective Smith had testified that in his experience identification parades had never been conducted after an accused was charged and in custody and where security was in issue. I accept that the decision not to hold a parade was made for reasons of security. I am not persuaded that there was any wilful disregard or flouting of the procedures prescribed in the police manual, and I would not on this ground exclude the evidence of photo identification.

15 Evidence of identification may be excluded by the trial judge on the basis that by reason of its poor quality its probative value is outweighed by its prejudicial effect, or because its reliability has been affected by the impropriety of the means used to procure it. In R v Tugaga^[14] Hunt CJ with whom Gleeson CJ and Abadee J agreed, referred with approval to a passage from the decision of R v R^[15] where Gleeson CJ had quoted extensively from the judgment of Wilson J in Mezzo v R^[16] and which was again referred to with approval by Gleeson CJ in Festa. The Canadian Supreme Court had stated that in determining whether identification evidence should be left to the jury, the test was whether the quality of the evidence fell short of the point where its frailty could not be cured by an appropriate caution to the jury. Such a test was recognised as one of a number that might be appropriate.

16 The sole basis upon which Mr Jackson had submitted that I should exclude all evidence of identification by photograph was that the investigators did not conduct an identification parade at a time when the accused was in custody and that he had expressed his willingness to participate in an identification parade. It was submitted on behalf of the prosecution that Mr Jackson did not argue that there were any particular circumstances which would create an unacceptable risk that the jury would give the evidence of those witnesses who selected the accused’s photograph more weight than such evidence deserved; nor had Mr Jackson contended that there was a risk of unfair prejudice arising from the circumstances in which the photographic identification was conducted.

17 The primary submission advanced on behalf of the prosecution was that the witness’ testimony should not be characterised as identification evidence at all as the accused concedes that he was present at both locations in which the witnesses identify him as being present. It was submitted that the dispute at trial will not be as to the presence of the accused at the relevant scene but whether the witness’ testimony as to their observations of the accused’s conduct should be accepted.

18 As the accused admits in his Record of Interview that he was present in Daly Street wearing a blue shirt and was covered in blood following the fight at the Salt Nightclub, the selection of his photograph by a number of witnesses as a person then present is not controversial. What is in dispute is the claim by some witnesses that the person they so identified was armed with a Samurai sword. It is the accuracy of this observation and whether such witnesses have correctly attributed possession of the sword to the accused which will be in issue.

19 Minds may differ as to whether such an issue should properly be characterised as one of identification. Some authorities suggest that a "Domican"^[17] warning is still called for in cases where the presence of the accused at the time of the commission of an offence is not in dispute but where his conduct is in issue.^[18] There is another line of authority which suggests that if a warning is called for at all it should be formulated to address the special circumstances of the case.^[19]

20 A similar question was considered recently by the High Court in R v Dhanhoa^[20]. In that case the appellant had admitted his presence at the scene of the crime shortly before its commission. The critical question was whether the appellant was still present when the offence occurred. It was the reliability of the victim's account of the conduct of the person identified that was in dispute, the question being whether the appellant was still present at the time of the attack. Gleeson CJ, McHugh, Gummow and Hayne JJ considered that a "Domican" warning was only required where there was a relevant dispute about identification and where the reliability of the identification was in issue. The majority held that the mandatory requirement of s.116 Evidence Act 1995 (NSW) did not require the learned trial judge to instruct the jury of the special need for caution before accepting identification evidence where the reliability of the identification itself was not in issue. Callinan J in a dissenting judgment expressed the view that as there remained a dispute about whether the appellant was one of the assailants who assaulted the victim (as distinct from whether he was present), a direction warning the jury of the need for caution in approaching identification was called for.

21 In the present case there is no issue that the accused was present at about the time that each witness made their observations. As in Dhanhoa the testimony of the witnesses does not involve a question about the reliability of their claim that the accused was present and in this sense the reliability of their identification of the accused is not in dispute. Even if, contrary to my view, the introduction into evidence of the photographic identification carried with it the same dangers that arise where the presence of the accused at the relevant scene is in dispute, no sufficient basis for the exclusion of the evidence has been made out.

22 At the commencement of the trial I gave the jury a general warning about identification evidence. They will therefore have a heightened appreciation about the purpose of cross-examination directed to the circumstances in which a witness identifies an accused. No submission was advanced by Mr Jackson that any "Domican" directions that might be given would not adequately address any danger arising from the admission of such evidence from these witnesses.

23 At the conclusion of the evidence I will hear argument as to whether any particular warning should be given to the jury concerning the testimony of the witnesses who have identified the accused by the selection of his photograph.

^[1] [1981] HCA 17; (1981) 145 CLR 395.

^[2] Ibid per Gibbs CJ at 402-403.

^[3] R v Carusi (1997) 92 A Crim R 52.

^[4] (2000) 111 A Crim R 326; [2000] NSWCCA 61.

^[5] Ibid Carusi [2000] NSWCCA 61 at [64]- [65]; R v Arico (No. 1) [2002] VSCA 229; Roser v R [2001] WASCA 190; (2001) 24 WAR 254; Cafaro v R (2002) 132 A Crim R 142.

^[6] [2001] HCA 72; (2001) 208 CLR 593 at 609 [48]- [51].

^[7] [1994] SASC 4674; (1994) 62 SASR 121.

^[8] [1962] 62 SR (NSW) 563.

^[9] Alexander Footnote 1.

^[10] Bouquet Footnote 8 per Sugarman J at 568.

^[11] [1994] HCA 33; (1995) 184 CLR 19.

^[12] Ibid at 604 [24].

^[13] See Footnote 5.

^[14] (1994) 74 a Crim R 190 per Hunt CJ, Gleeson CJ and Abadee J.

^[15] [1990] HCA 51; (1989) 18 NSWLR 74 at 79-80.

^[16] [1987] 1 SCR 802 at 818-820.

^[17] [1992] HCA 13; (1992) 173 CLR 555.

^[18] R v Thornton (1995) 1 Cr App R 578; R v Slater (1995) 1 Cr App R 584.

^[19] R v Oakwell [1978] 1 All ER 1223; R v Curry (1983) CLR 737.

^[20] [2003] HCA 40; (2003) 217 CLR 1; (2003) 199 ALR 547.