Amicus Curiae : Unrepresented Criminal Appellants Scheme

1 MALCOLM CJ: The appellant was presented for trial in this Court on 16 June 1998 before Miller J and a jury on an indictment containing two counts. Count (1) alleged that on 15 May 1998 at Nedlands he stole a motor vehicle registration number 6CE 632 the property of Belcunda Pty Ltd trading as Brooking Mazda contrary to s 371A and s 378 of the Criminal Code. Count (2) alleged that on the same day he committed armed robbery whilst armed with a dangerous weapon, namely a shotgun, contrary to s 391 and s 393 of the Criminal Code.

2 The appellant pleaded not guilty to each charge. After a trial lasting three days, he was convicted on 18 June 1999 on both counts and sentenced to imprisonment for five years for the armed robbery and one year for stealing the motor vehicle, which was directed to be served concurrently with the sentence for armed robbery.

3 The appellant appealed against both convictions. The appellant was unrepresented. His original ground of appeal was, in effect, that the evidence for the Crown was incapable of supporting the verdict, which was in any event unsafe and unsatisfactory.

4 At the commencement of the hearing of the appeal, the appellant was granted leave to amend his grounds of appeal as follows:

"1. The Learned Trial Judge erred in law in admitting evidence of identification of the accused. This evidence was inadmissible.

(i) The identification was by way of a photoboard, which should only be led where it is unavoidable and where another more preferable form of identification is not practicable.

(ii) The Appellant was a suspect at the time of the photoboard identification. Only in exceptional circumstances should photographs be used at a stage where a person is directly suspected.

2. Even if the evidence was admissible prima facie, the Learned Trial Judge erred in failing to exercise his discretion to exclude the evidence, on the grounds that:

(i) The prejudicial effect of this evidence outweighed its probative value.

3. In any event, the Learned Trial Judge erred in law in failing to adequately direct the jury of the specific dangers of photographic identification evidence in light of the particular circumstances of this case."

5 The appellant had been assisted in the preparation of these grounds by Ms Karen Farley, the Solicitor for the Unrepresented Criminal Appellants Scheme. While the appellant addressed the Court in support of his appeal, the Court also permitted Ms Farley to address the Court as amicus curiae.

6 The Crown case was that on 15 May 1998 at around 1.15pm to 1.30pm, the appellant held up the Broadway Nedlands branch of the National Bank brandishing a sawn-off shotgun and stole approximately $1,800 in cash. At the time of the robbery there were only four people in the bank, those being two bank tellers, Ms Jan Westerberg and Ms Lyndia Chew and two customers, Dr Patrick Sheerin and Ms Beth Aylmore.

7 The Crown case was that when the appellant walked into the bank he pushed Ms Aylmore to one side as she was being served at the counter. The appellant then told the teller Ms Westerberg to hand over the money and also threatened to jump the counter if she didn't hurry up. At an early stage in the robbery Ms Westerberg managed to activate the alarm. The effect of activating the alarm button was that the security camera in the bank started taking photographs.

8 The appellant made off with the cash. At the time of the robbery the appellant was wearing a white wig, gloves, a baggy rain jacket and a bandanna tied across his face.

9 On leaving the bank the appellant got into a stolen silver Eunos hatchback. Ms Liz Keddie, a person outside the bank at the time of the robbery, noticed the appellant leaving the bank. As the appellant got into the car, Ms Keddie wrote down the registration number of the Eunos, namely 6CE 632.

10 The Crown alleged that the appellant drove the Eunos to a University of Western Australia carpark where it was abandoned. The appellant then drove off from the University carpark in a stolen white Mitsubishi Verada registration number 1ABI 980. The police took note of this same Mitsubishi Verada in a carpark at Vincent Street on 19 May 1998.

11 On 22 May 1998, the appellant and another man drove into an underground carpark at 10 Kings Park Road, West Perth in a blue Celica. The police were waiting in the carpark at the time the Celica drove in. When the police apprehended the appellant the same white Mitsubishi Verada as found at the Vincent Street carpark was also located.

12 Ms Westerberg's evidence was that sometime shortly after the robbery, namely on 22 May 1998, Dectective Sergeant Da Re, who was attached to the armed robbery squad, showed her a set of photographs mounted on a board and numbered 1 to 12. She said the detective asked her to see if anybody on the board was familiar to her. In identifying photograph number 11 she said, "that's the man that was in the bank today". Ms Westerberg wrote on the photoboard the following words:

"---Jan Westerberg. I can identify photograph number 11 as being the person who held up the National Australia Bank, Broadway, on 15 May 98."

13 Mr Paul Morawski, who was brick working at the University on the day of the robbery on 15 May 1998, saw a male person wearing a white wig walking alongside a building getting into a car. Mr Morawski was also shown a photoboard by police in which he wrote on the back of the photoboard the following words:

"Of the 12 photos I have been shown I believe the photo number 11 is the closet (my italics; sic closest) to the person I observed in the grounds of UWA university on Friday afternoon, 15 May 1998."

14 In cross-examination Mr Morawski agreed that his identification of the appellant "...was the one that resembled the person" he saw on the day of the robbery. It was accepted that in these circumstances the selection of the photograph could not, of itself, sustain a finding by a reasonable jury that the appellant was in fact the offender as was the case in Pitkin [1995] HCA 30; (1995) 80 A Crim R 302; and see Clune v R [1996] VicRp 1; [1996] VR 1. The trial judge pointed this out to the jury saying that:

"... he identified a photo as the person who was the closest looking to the person he saw on the ground of UWA, is not relied on as evidence of identification."

15 The trial Judge also directed the jury that, "...you couldn't convict the accused on the evidence of Mr Morawski alone, so I stress that."

16 Detective Sergeant De Re showed the same photoboard to Ms Chew and Ms Keddie, however they were both unable to identify anyone. The photoboard was marked for identification. It was agreed by both counsel that it should not be an exhibit and would not go to the jury. It is apparent that this was agreed because the evidence was too prejudicial: cf Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 per Gibbs CJ at 403.

Ground 1 - Admissibility of photoboard identification

17 The law and procedure relating to identification in Australia was set out in detail by Gibbs CJ in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 339 - 403. In Dawson v The Queen [1990] 2 WAR 458 reference was made to the law as so stated by Gibbs CJ and was summarised in my judgment at 460 - 461 as follows:

"...the established practice is to ask the witness to identify the accused at the earliest opportunity, and for evidence to be given of that identification by the witness and persons who were present when it was made."

18 The authority for that proposition is based on the judgment of Gibbs CJ in Alexander, supra, at 399. The Chief Justice also said at 401 that it was:

"... most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender."

19 Gibbs CJ at 402 - 403 reviewed a number of authorities from England and Australia supporting the proposition that:

"... as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. 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 [1972] 2 NZLR 20 at 28. If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case."

20 In Roser v The Queen [2001] WASCA 190, it was held that evidence of identification made out of court by the use of photographs produced by the police was admissible. Anderson J said at [77] that:

"There is no support in the cases for the idea that it is wrong practice, in the sense of unfair, to use photographs in the investigation stages of police work."

21 In Roser, supra, at [8], I agreed entirely with what Anderson J had said about identification evidence based upon photographs. However, I went on to say at [8], in relation to the holding of an identification parade or line-up, that:

"... as a general rule, if a suspect has been the subject of identification from a photoboard, he should be given the choice of participating in a line-up or other form of identification parade."

22 As to this point, Anderson J said in Roser at [83] that:

"...it is up to the suspect whether to consent and take the risk of giving the prosecution case a boost by being identified again. A line-up does provide the suspect with an opportunity to test the reliability of the witness' earlier informal (photo) identification. Although the witness may be confident that he has picked the right photograph, he may have doubts when he sees the suspect in a parade of people of similar appearance: Brown v The Queen [1991] Crim L Rev 368. That would certainly weaken a prosecution case and, in so doing, might prevent a miscarriage of justice: Graham v The Queen [1994] Crim L Rev 212 at 213. It has been said that, tainted though the evidence may be by a prior identification, it should not be left to a police officer to decide not to have an identification parade. He is likely to make a decision which he considers best for the prosecution, and that in itself would be unfair: see the commentary after the report in Brown v The Queen (supra) at 369-370. And so it has been said that 'good practice may require that the suspect be put on an identification parade to establish whether the witness can conform his believed identification ... There ought to be an identification parade where it would serve a useful purpose': R v Popat (1998) 2 Cr App Rep 208 at 215."

"Whichever of these two opposing views may be the better view the cases clearly establish that there is no common law rule that an identification parade must be held or offered as a condition of the admissibility of photo identification evidence."

"I agree with Anderson J that, in the present case, it was reasonable not to hold an identification parade after the appellant was apprehended. Certainly, the preferred method of identification is by means of an identification parade. It is one thing to say, as was said in Draper v The Queen [2000] WASCA 160 by Kennedy J at par [2] and Murray J at par [29] that identification by means of photographs should only be undertaken where it is unavoidable and another more preferable form of identification is nor practicable. It is another to exclude evidence of identification by means of a photoboard or to warn a jury that a photoboard identification necessarily has shortcomings and that a jury should be told that an identification parade is the preferred and most reliable method of identification, particularly in a case, such as the present, where it was reasonable not to hold an identification parade. Experience has shown that a potential witness who has seen a person who may be a suspect should give as detailed a description of that person as possible and a careful record made of that description. This ought to be done before a witness takes part in any identification procedure. I am aware that police procedures in England require the record to be kept in a written form which can be provided to the suspect or his or her solicitor."

25 It is the case however that courts do recognise that photographs of suspected persons are an effective and legitimate procedure for investigative purposes and one not to be discouraged. In Roser, supra, at [73] Anderson J said:

"At the early stage of investigation the police may not know who should be put in the line-up. An identification parade at that time is plainly impossible. Even when the accused has become a definite suspect there may be many reasons why it is impracticable or unnecessary to have a parade. The police, for good reason, might not want to alert the suspect to the fact that he is under suspicion. A long time may have elapsed since the first sighting. The suspect may be of unusual appearance and it may not be reasonably practicable to find in that locality a sufficient number of people of like appearance. The suspect may already be well-known to the witness. The suspect might have been under the witness's observation from the commission of the offence right down to his arrest, as, for example, in R v Anastasiou [1998] Crim L Rev 67. The suspect's physical appearance may have changed since the first sighting. The witness may be in fear of reprisal. The suspect may not consent to stand in a line-up. And so on. I doubt that any of these factors would make the case 'exceptional'.

...

There is also a policy reason against excluding photo identification evidence too readily. If courts refuse to receive the evidence, it would discourage the use of photographs in the investigation of crime and that would not be in the public interest."

26 In the present case, when the appellant was apprehended and questioned by police on 22 May 1998, it was in relation to a robbery that had occurred on that day and not the robbery on 15 May 1998. It was not until June that police interviewed the appellant in relation to the first robbery. Although Ms Westerberg's identification of the appellant from a photoboard in relation to the armed robbery on 15 May 1998 was made the same day the appellant was arrested, the police were clearly in an investigatory stage of proceedings in relation to the bank robbery in Nedlands. In these circumstances, I consider that the evidence of identification by Ms Westerberg by means of the photoboard was admissible: cf Alexander at 402 per Gibbs CJ. It follows, in my opinion, that the learned trial Judge did not err in law in admitting evidence of identification of the appellant.

Ground 2 - Prejudicial effect weighed against probative value

27 When photo identification is used as prima facie evidence at a trial, the trial judge has to decide whether the probative value of the evidence will be outweighed by its prejudicial effect. As Anderson J said in Roser, supra, at [32]:

"Although photo identification evidence is probative and admissible, the trial Judge has an overriding discretion to exclude it on an evaluation of its true evidential value as against its prejudicial effect."

28 This statement of the law is supported by what Gibbs CJ said in Alexander v The Queen, supra, at 402 - 403 in regard to photo identification evidence, namely:

"... a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused."

29 Anderson J went on further to say in Roser, supra, at [87] that:

"If the trial Judge is satisfied that there has been, or may have been, some serious weakness or some bad faith or impropriety in the photo identification process or if it is attended by sufficiently serious elements of unfairness, the evidence will be excluded. Nesbitt v Sutton [2001] WASCA 114 per Murray J at par 17-18."

30 When the trial judge does not exclude the photoboard identification evidence from being admitted, the judge needs to give substantial warnings as to reliability of the photoboard evidence to the jury. In Roser, supra, Anderson J said at [88] that:

"Apart from the warnings that must be given in all cases where the prosecution relies mainly on eyewitness identification (the Domican warnings), the warnings should usually extend to warnings as to the inherent weakness of photo identification and the disadvantage arising from the fact that the accused was not present when the photo identification was made. There may have to be a warning that no adverse inference against the accused should be drawn merely because police have his photograph."

31 After some discussion at a directions hearing regarding the use of photoboard identification, the learned trial Judge said [at AB 20] that:

"... if I let it in you can rest assured there will be a strong warning given in that respect and this warning that I have prepared is now being circulated for the bench book amongst all judges, so the crown can be on notice that photoboard identification alone will carry with it, in future in this court, a strong warning that in the absence of identification parade it does pose dangers. My present feeling is, having heard your submissions that subject to hearing what Ms Sweeney has got to say about Morawski, the evidence of Ms Westerberg would appear to be admissible and Sir Harry Gibbs makes that clear. It can be admissible, although I do have a discretion to exclude it in the case in which I think it's particularly unfair, but I would be tending to the view that that's admissible but it has to carry with it a warning to the jury of the dangers of photoboard identification."

32 In admitting the evidence, the learned trial Judge acknowledged that he had the discretion to exclude it if it was unfair, but he expressly decided that the evidence was not unfair and was admissible providing a strong direction was given to the jury in regards to it. The evidence was clearly probative and there was no suggestion that its probative value was outweighed by its prejudicial effect. In my opinion, his Honour did not err by failing to exercise his discretion to exclude the photoboard identification evidence.

33 In support of ground 3, the appellant contended that the trial Judge erred in law in failing to adequately direct the jury of the specific dangers of photographic identification evidence in light of the particular circumstances of his case.

34 It was submitted by the appellant that in Domican v The Queen [1992] HCA 13; (1992) 66 ALJR 285, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ held that the adequacy of a warning to the jury in an identification case is to be evaluated by reference to the identification evidence, and not to any other evidence in the case. The warning to the jury must be cogent, effective and appropriate to the circumstances of the case. It was also held that the trial judge needs to bring the jury's attention to any significant matter that can reasonably be regarded as undermining the reliability of the identification evidence. In Hayles v The Queen (1990) 54 SASR 549, Prior J held that it was not enough for a trial judge to just list relevant matters in relation to the issue of the identification evidence. The jury's attention must be drawn to any weakness associated with the identification evidence, in the particular circumstances of the case.

35 The appellant submitted that there were several issues relating to identification evidence, which should have been brought to the attention of the jury. These were:

"(a) An identification parade was not used despite several cases and scientific research stating that it is a more reliable and appropriate means of identification than by way of a photoboard;

(b) The witness only viewed the offender for a brief time, during a period of emotional distress;

(c) There was a 7 day gap between the offence and the photoboard identification;

(d) The gardener's evidence was not identification evidence."

36 In Collard v The Queen [2000] WASCA 417 at [77] - [78] Miller J formulated the following statement of the rules applicable to jury directions in photo identification cases:

"I have pointed out that the learned trial judge gave no direction to the jury on the inherent shortcomings of photoboard identification when compared to identification parades. It was, in my view essential that the trial Judge inform the jury that the safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group of persons the person whom he claims to have seen on the occasion of the crime. Gibbs CJ made it abundantly clear in Alexander v The Queen (supra) (at 399-400) that this is so, and although his Honour did not state that a trial Judge was under a duty to direct to a jury to this effect, it seems to me implicit in his Honour's judgment that the jury should be told that an identification parade is the preferred method for identification and the most reliable method. The fact that it is held in the presence of the accused who is unable [sic able] to observe and later bring to light and unfairness in the way in which the parade was conducted or any weakness in the way in which the witness made the identification is an essential aspect of the identification parade process: See Alexander v The Queen (supra) per Gibbs CJ at 400.

It would have been an easy thing for his Honour to have informed the jury that they were seriously hampered on the question of identification by the fact that the only method of identification used was the photoboard. Comparison between that process and the preferred process of the identification parade should have been made and the shortcoming brought home to the jury. In my view such a direction is required in all cases in which photoboard identification is used, unless for some exceptional reason an identification parade cannot be organised. I find it difficult to envisage that in a large town like Broome or in a city like Perth such an identification parade could not be organised. They were organised in years past, but for no explicable reason the practice has fallen into disuse."

37 In Roser, supra, Anderson J at [64], with whom Malcolm CJ and Murray J agreed, held that:

"I cannot agree that it is the law in Western Australia that the trial Judge must tell the jury that an identification parade should have been held and that they are seriously hampered on the question of identification because the only method of identification was by photoboard evidence. Nor, with respect, can I agree that the trial Judge must instruct the jury on the comparison between the two processes. I do not consider that the decided cases lay down a rule of law to that effect."

38 In the present case, the learned trial Judge, although not obliged to, told the jury that generally a photoboard identification should be followed by an identification parade. He explained that without a subsequent identification parade, a number of dangers exist in relation to photoboard evidence. His Honour explained the danger of unfairness in the process used by the police in showing the photoboard and discussed this danger in terms of the facts of the present case. His Honour also explained that the appellant was disadvantaged by not being present at the photoboard identification, which prevented him from observing the way in which the witness came to select his photograph. His Honour finally invited the jury to consider the evidence of the instructions given to Ms Westerberg in relation to the photoboard; her reaction to viewing the photoboard; and the time she took to select the photograph of the appellant. In my opinion, the trial Judge did not just give a warning in mere general terms, but drew the jury's attention to particular weaknesses in the identification evidence of the witness, Ms Westerberg.

39 In my view it cannot be said in this case that the learned trial Judge failed to adequately direct the jury with respect to the dangers of identification by means of a photoboard. For these reasons, while I would grant leave to appeal, I would dismiss the appeal.

40 ANDERSON J: I have had the advantage of reading in draft the judgment of the Chief Justice. I entirely agree with it and with the proposed orders and there is nothing I can usefully add.

41 WHEELER J: I am in agreement with the judgment of the Chief Justice, which I have had the advantage of reading in draft, and with the orders which his Honour proposes.