//
[2015] VSCA 311
General information, not legal advice.
Court of Appeal (Vic)
2015-11-23
Priest JA, Whelan JA
Original judgment source is linked above.
DPP v Dickman (Unreported, County Court of Victoria, Judge Coish, 30 October 2014 (Conviction);
CRIMINAL LAW - Appeal - Conviction - Identification evidence - Intentionally causing serious injury and making a threat to kill - Identification from photoboard - Whether evidence visual identification evidence - Whether failure to comply with s 114 of the - Whether risk of displacement effect - Whether identification evidence unreliable -Whether probative value of identification evidence outweighed by risk of unfair prejudice - and considered - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Admissibility of audio and video record of search - Voice identification evidence - Whether search conducted in contravention of South Australian law - Whether audio record of search obtained unfairly or in breach of law - Whether audio record of search admissible for purposes of voice identification - Evidence Act 2008 s 118; Summary Offences Act 1953 (SA); Criminal Investigation (Extraterritorial Offences Act) 1984 (SA); Haddara v The Queen [2014] VSCA 100 considered.
CRIMINAL LAW - Appeal - Conviction - Whether verdict unsafe and unsatisfactory.
Ms V Anscombe, Acting Solicitor for Public Prosecutions
1 I have read in draft the judgment of Priest JA and Croucher AJA. I agree with them, for the reasons they have given, that grounds 1, 3, 4, 5 and 6 should be rejected. I do not agree with their conclusion that ground 2 is made out and that the appeal should be allowed.
2 Priest JA and Croucher AJA have set out the relevant facts and the trial judge's ruling and I will not repeat what they have said. I agree with their assessment that the probative value of the photoboard identification of the applicant on 23 August 2011 was low. My reasons for this conclusion are: the earlier identification of Michael Cooper; the mistaken identifications; the delay in the photoboard identification of the applicant; and the complainant's (Mr Faisal Aakbari - 'FA') own evidence about what he was trying to do, namely to find a photo which best resembled his memory of the attacker.
3 The trial judge also concluded that the probative value was low. But he concluded that the risk or danger of misuse of the evidence in some unfair way was 'minimal'.[1] Accordingly, the probative value of the evidence, whilst low, outweighed the danger of unfair prejudice, which was minimal. Priest JA and Croucher AJA have concluded he was wrong in this respect. In my view he was correct.
4 In the circumstances here, as Priest JA and Croucher AJA observe, the trial judge's task was to assess what probative value the jury could give the evidence of the photoboard identification of the applicant and to balance it against the risk the jury would give it disproportionate weight. The trial judge assumed, correctly in my view, that the jury would also hear evidence of the previous photoboard identification of Cooper and the other photoboard identifications FA had made, and of the circumstances in which those identifications had occurred.[2] Accordingly, the trial judge assumed, correctly in my view, that evidence of all of the factors which led to a reduction in the probative value of the evidence of the photoboard identification of the applicant would be led before the jury.
5 Further, the trial judge intended to give the jury directions and warnings about identification evidence, and he subsequently did so in careful and very detailed terms.
6 Thus, the jury in this case was to not only have the usual judicial directions and warnings about identification evidence, but the particular problems with this identification evidence was to be the subject of detailed evidence before them. Amongst that evidence was evidence of mistakes FA had made in his other photoboard identifications. This jury would not only be told of the risks. The risks would be graphically demonstrated before them. In McCartney v The Queen ('McCartney') this Court emphasised the importance of considering the whole of the evidence to be given.[3]
7 In this case, the determinative issue was not the assessment of the factors which reduced the probative value of the evidence. The judge accepted the existence of those factors and he knew the jury would be fully aware of them. The relevant issue here was whether, notwithstanding the jury's knowledge of those factors and the directions and warnings they would be given, there remained a risk or danger that the jury would give the evidence disproportionate weight in a way which was unfair to the applicant. The trial judge found that that risk or danger was minimal. In that connection he cited the New South Wales decision R v Darwiche[4] and this Court's decision in Wade (a Pseudonym) v The Queen ('Wade').[5] In Wade this Court referred to the relevance of a jury's ability and propensity to comprehend the risk of unreliability and to deal with it accordingly.[6]
8 When considering the trial judge's conclusion as to the risk of unfair prejudice, it is not to the point to address the circumstances which reduced the probative value of the evidence. That was not the issue. The relevant issue was whether the jury could comprehend the risk of unreliability and deal with it accordingly. Priest JA and Croucher AJA suggest that identification evidence has a 'seductive quality' which is difficult to ameliorate by judicial direction. This may be so. When all that a jury hears is the controversial identification evidence and a judicial direction, the risk of misuse or disproportionate weight may be real. That was not the case here. The concerns to be guarded against here could not only be stated, they could be demonstrated, and they were to be demonstrated in evidence before the jury.
9 It was in those circumstances that the trial judge concluded that, notwithstanding the factors which made the evidence less probative, the risk or danger of misuse was minimal. In my opinion, he was correct in that analysis.
Assessment in the context of the trial as a whole
On the appeal against conviction, the appeal court is able to review the record of the relevant evidence as actually presented to the jury and can assess, in the context of the trial as a whole, whether there was a danger of unfair prejudice to the accused and, if so, whether it outweighed the probative value of the evidence. The question is whether the decision of the trial judge not to exclude the evidence under s 137 was 'an error ... in, or in relation to the trial' and, if so, whether it was productive of a substantial miscarriage of justice. That question can only be answered by considering the trial in its entirety.[7]
11 It is necessary to review all the photoboard identification evidence and the use made of it in the trial.
The photoboard identification evidence as led at trial
12 The evidence given by FA, and others, about FA's photoboard identifications may be tabulated as follows:
(Had earlier said 1 and 8 could have been in the car)
13 As the trial judge said in his ruling, FA had made mistakes in his photoboard identifications. In summary:
Was the evidence at trial prejudicial to the applicant?
14 The last thing senior counsel for the applicant submitted to the jury in her final address was the following:
Members of the jury, at the end of the day the Crown must prove the case beyond a reasonable doubt, the Crown must exclude all rationale hypotheses consistent with innocence. If you do not know [where] the truth lies, for example, that would be a reasonable doubt. If you thought that because Mr Cooper was identified that that's what the person looked like according to [FA], a 50s plus large man with long hair. If [FA] is correct in that description and that memory of Mr Cooper is the one he has in his mind and yet he still comes along and tells you that Mr Cooper's the old man, then to this day, according to [FA], the person who assaulted him was an old man. The person who assaulted him did have white hair, the person who assaulted him did have a grey beard.
And if that is just a reasonable possibility, if you [are left] with (indistinct) think because of that evidence [of FA], that you have a doubt, you as reasonable people, members of our community are left with a doubt, then the accused is entitled to the benefit of the doubt. It might be one item of evidence, it might be a number of items of evidence, but the critical item of evidence here is [FA's] description of the man who assaulted him, the person he saw.
And in my submission to you, members of the jury, you cannot be satisfied beyond reasonable that in fact the old man is indeed a person in their 40s with red hair who is not of the same (indistinct) you might think that [FA] was describing, and therefore, members of the jury, you ought to acquit my client, and I ask you to do so. I thank you for your patience and your attention.
15 Senior counsel's final address to the jury had begun with the same two interrelated submissions; namely, that the description which FA initially gave of the offender did not match the applicant, and that it did match the description of Cooper, who FA had identified as the 'old man' on the photoboard on 5 October. The fact that FA had identified Cooper as the 'old man' on 5 October was also referred to on many other occasions during senior counsel's final address. The other mistakes which FA had made in his photoboard identifications were also relied upon.
16 As to the Crown's final position in relation to the photoboard identifications, senior counsel for the applicant in her final address described it as follows:
[T]he Crown really want to put it to one side, don't they, this photo ID business. They really want to put it to one side because it is completely contrary to my client being the old man.
17 This was a justifiable characterisation of the Crown position. Counsel for the Crown had said in her final address that there were 'real problems with that type of evidence', that FA had made numerous mistakes in the photoboard identifications, that the photoboard identification of the accused could not be relied upon 'alone', and that the identification of Cooper was 'obviously relevant'. What she put to the jury as constituting the strength of the Crown case was: the CCTV footage, and FA and Mr Gerrie's evidence in relation to it; the evidence identifying the accused as 'Boris'; and the phone records and the intercepted phone conversations.
18 This position was not something which only emerged in final addresses. It permeated the conduct of the trial by the defence.
19 The following matters were dealt with by senior counsel for the applicant during the cross-examination of FA:
20 Most of the cross-examination of the police officers (Blezard and Condon) before the jury was about matters relevant to the errors in the photoboard identifications by FA.
21 The photoboard evidence was a significant part of the defence cross-examination. The errors were explored and emphasised.
22 FA was not cross-examined on his photoboard identification of Cooper. The evidence of that identification had been led in chief without amplification or explanation. By not cross-examining him senior counsel for the applicant could submit to the jury that FA still adhered to that identification of Cooper as the 'old man', as she did.
23 As matters transpired in the trial, far from the photoboard identification being prejudicial to the applicant, it was used by his senior counsel as a principal component of the defence case. Counsel for the Crown all but disavowed reliance upon it.
24 Accordingly, when all the evidence as actually presented is assessed, there was no substantial miscarriage of justice in the admission of the photoboard identification of the applicant.
Would the evidence have been led in any event?
25 Priest JA and Croucher AJA suggest that if the evidence of the photoboard identification of the applicant had been excluded senior counsel for the applicant would not have been so undisciplined as to cross-examine FA about his earlier identification of Cooper as the 'old man'.
26 FA made a number of photoboard identifications. A number of them could be shown to have been mistaken. Some supported the Crown case. I cannot see any basis upon which the selective admission of photoboard evidence could have occurred.
27 Having read the transcript of the trial, I consider that it is unlikely that the applicant's case would have been conducted without relying on the Cooper identification or any of the mistaken photoboard identifications made by FA. Once evidence of one or some of the photoboard identifications was led, it seems to me to be inevitable all would have to be admitted. The issue in this context is not the possibility of a lack of discipline in cross-examination. The issue is whether defence
counsel would have been prepared to forgo the very substantial benefits to the defence of the Cooper identification and FA's other mistakes in order to avoid the admission of the photoboard identification of the applicant. I consider that to be unlikely.
28 I do not, however, determine ground 2 on this basis.
29 My conclusion is that the judge's assessment that the risk or danger of misuse was minimal was correct. Thus, in my view, his ruling was correct.
30 Further, I do not consider that any substantial miscarriage of justice has been demonstrated because, as matters transpired, the evidence of the photoboard identifications as a whole was advantageous to the defence.
33 On 21 November 2014, the trial judge sentenced the applicant to be imprisoned for seven years on charge 1, and for two years on charge 3. An order for cumulation resulted in a total effective sentence of eight years' imprisonment, upon
which a non-parole period of five years and six months was fixed.
34 The applicant sought leave to appeal against both conviction and sentence.
35 So far as conviction was concerned, the applicant relied on six grounds as follows:
6.1 The evidence of the second purported identification from the photographic array lacked weight and the selection of the photograph of the accused was expressed by the witness as 'the closest' in the array to the appearance of the offender.
6.2 The sound in the telephone intercept was so limited and distorted that it could not provide a reliable foundation for a voice identification that carried any weight.
6.3 The circumstantial evidence could not exclude a rational hypothesis that another person was the offender.
36 As will become clear, we are of the view that ground 2 with respect to conviction should succeed. Accordingly, we would grant leave to appeal against conviction, allow the appeal, quash the convictions and order a new trial. In those circumstances, it is unnecessary to consider the application touching sentence.
37 The principal issue in the trial was identity; in particular, whether an individual identified as the 'old man' - who, during the evening of 27 September 2009, bashed the complainant, Faisal Aakbari (for convenience, 'FA') with a baseball bat (charge 1) and threatened him and his family with a knife (charge 3) - was the applicant. In summary, the evidence bearing on that issue was as follows.
38 In September 2009, FA, aged 18 years, was on holiday from Germany. He was staying in Melbourne with his sister and her family. Early in the morning of 27 September 2009, FA went to the Melbourne CBD. He attempted to gain entry to several nightclubs. When FA approached the Dallas Showgirls Nightclub ('Dallas'), he had a conversation with a number of members of the 'Hells Angels Motorcycle Club' at the entrance. Although it was not so, FA claimed to be a member of the Hells Angels so as to gain entry. Ali Chaouk, a prospective member of the Hells Angels - a 'hang around' - was at the entrance. The applicant was a full member of the Hells Angels.
39 At the time, Chaouk's telephone was the subject of lawful interception by police involved in another investigation. Evidence gleaned from the intercepted telephone was led at trial. It included background conversations between Chaouk and others around him - including FA and the applicant - whilst the line was open. The telephone intercept material revealed that Chaouk and his associates did not believe FA's claim that he was a member of the Hells Angels.
40 FA was admitted to Dallas at 3.42am. Once inside, he was taken upstairs and introduced to a number of other men, including one he described as the 'old man'. The 'old man', so FA described him, had a long beard, long ponytail, white and tanned skin and looked like a 'biker' or a 'rocker'. He was wearing an army type jacket, which was green, grey and white, and was 170 to 180 centimetres in height. FA could not recall his name. The prosecution case was that the applicant was the man referred to as 'Boris' by Hells Angels members, and identified by FA as the 'old man'.
41 It was alleged that the applicant then told him that the group were going to 'another club' to 'have fun over there'. Although FA indicated that he did not want to go, he was given no choice. FA and Chaouk, and two other men, left Dallas at 4.30am. FA, accompanied by others he had met at Dallas, drove his vehicle to the Hells Angels clubrooms in Thomastown. The applicant - who had also left the nightclub - and his associate, Michael Gerrie, were driven to the clubrooms by Ali Chaouk.
42 Upon arrival at the clubrooms, Chaouk went behind the bar and pressed FA to drink alcohol, but he refused. FA was shown photos of Hells Angels members from overseas clubs. He was asked about his association with the Hells Angels and whether he recognised any of the people in the photographs. Not surprisingly, FA could not identify any of the German members. It was claimed that the applicant became mad, and loud and aggressive towards FA. The prosecution alleged that at one point, the applicant left briefly and returned with a baseball bat. He then struck FA extremely forcefully with the bat on the forehead near the right temple. As a result of the blow, FA fell off the barstool on which he was sitting onto the ground. When he regained his feet, the applicant repeatedly struck him around his head while abusing him. When attempting to protect his head, FA was struck multiple times on his arms and legs.
43 Some of the attack can be heard on a telephone intercept from Chaouk's telephone. FA can be heard screaming, 'Oh my God, what's happening?', and a person claimed to be the applicant is heard saying, 'Lying cunt' as the victim is screaming. The same man is also heard to say, 'I mean, are you a Hells Angel?'. FA begged the man hitting him to stop. He described the man as hitting him 'like an animal', and said that he only stopped hitting him when he was really tired and out of breath. The final blow was to FA's shin, causing him again to fall to the ground. The bat was then given to Chaouk, who then attacked FA. Chaouk, who was also carrying a short wooden pole, forced FA to his feet. Once FA got up, Chaouk shoved the end of the wooden pole into his mouth, loosening one of his teeth. He then kicked FA to the groin and then his chest, knocking him down again. FA was then given a wet towel and told to clean up his own blood.
44 It was claimed that the applicant then approached FA with a large knife. FA described it as being like a 'Ninja knife ... it looked very sharp'. He went behind FA and grabbed him by the hair. As he held the knife to FA's throat he said, 'Don't go to the police or I will kill you and your family'. FA also testified that his watch, wallet and mobile telephone were taken at some stage, but he was unsure who took them. Another man came out of the motorcycle workshop adjacent to the clubhouse and told the attackers, 'Let him go'.
45 After he was cleaned up, FA was taken by Chaouk and others in his motor vehicle to an unknown location where he was left alone with his vehicle. FA then used the GPS in his vehicle and drove to his sister's house. He was later taken to the Alfred Hospital.
46 As a result of the attack, FA suffered multiple injuries, including an extradural haematoma; a tear in the dura (the lining of the brain); bleeding on the surface of the brain; bruising of the brain; a broken fibula; lacerations to the head; abrasions to his arms and legs; a loose tooth; and a black eye. Treatment included a craniotomy with draining of the blood clot, controlling of bleeding and repairing of the dura.
47 On 28 September 2009, at 6.17pm, Detective Blezard commenced to take a statement from FA. (The process of taking the statement continued over several days, until finally it was signed on 6 October 2009.)
48 The next day, 29 September 2009, Constable Northfield showed a photoboard, Exhibit 1, to FA while he was still in hospital. FA selected photo number '2', which was a photograph of Chaouk. In the mid-afternoon, FA assisted police in compiling a 'FACEview' image of the 'old man' (Exhibit 2).
49 Several days later, on 2 October 2009, FA was shown CCTV footage from Dallas. He identified five men who were present, including Chaouk and the 'old man'. Significantly, police formed a suspicion that the 'old man' was not the applicant, but another individual by the name of Michael Cooper. One of the police investigators, Detective Blezard, apparently knew Mr Cooper, and wrongly concluded that the 'old man' shown in the CCTV footage was him. (It is convenient to note at this point that, at trial, Michael Gerrie identified the 'old man' in CCTV footage as the applicant.)
50 On 5 October 2009, a photoboard - including an image of Michael Cooper - was shown to FA. Significantly, he selected Mr Cooper's photo as depicting the culprit. (On the trial, the photoboard containing the photograph of Michael Cooper became Exhibit 4.) As a result of this misidentification, Mr Cooper was charged. After further investigation, however, the charges were abandoned. (It seems that Mr Cooper had an acceptable alibi.) The fact remains, however, that less than a week after the attack upon him, FA wrongly identified Mr Cooper as his prime assailant. And importantly, by an email to FA dated 18 February 2010, a police investigator, Detective Sergeant Ben Condon, informed FA that he had been mistaken in his identification.
51 FA returned to Germany on 23 December 2009, but came back to Australia in August 2011 to give evidence at Chaouk's trial.
52 In the intervening period, on 16 February 2010, a search warrant was executed at the applicant's home address in Gawler, South Australia. The search was video-recorded, and included conversation with, and questioning of, the applicant.
53 On 23 August 2011 - that is, almost two years after the critical events - FA was shown a number of photoboards by Detective Condon. One photoboard - which became Exhibit 5 - contained possibilities for the 'old man', and included a photograph of the applicant. FA selected photo '9', the applicant's photograph. In cross-examination at trial, it was put to FA - and accepted by him - that he had selected the photograph because he had taken the view that of all the pictures on the board, the image that he selected was the closest to his memory of what the 'old man' looked like. It is important to note that, as we have mentioned, FA's identification of photograph '9' as depicting the 'old man' occurred almost two years after the relevant events, and after he had been informed by police that he had misidentified Mr Cooper.
54 FA also identified a photograph of the baseball bat used by the 'old man' (the bat in the selected photograph, contained in Exhibit 9, having been seized from the clubrooms); and, in one of two photographs that he selected, FA identified the knife which had been held to his throat (the knife in one of the selected photographs, in Exhibit 10, having been seized from the clubrooms).
56 Apart from the issue of identity, other issues in the trial included whether the injuries suffered by FA were, for the purposes of charge 1, 'serious'; and whether the applicant had the requisite intention at the time that he caused the serious injury and made the threat to kill.
57 As we have said, the prosecution case was that the applicant was the 'old man'. Among other evidence, the prosecution relied on FA's account of the offending; FA's description of the 'old man' having a long beard and a ponytail; relevant similarities between the applicant and the FACEview image; FA's identification of the 'old man' in the CCTV footage as a man shown wearing a camouflage jacket; and FA's identification from the photoboard, Exhibit 5, on 23 August 2011.
58 The prosecution also relied on telephone records to show the applicant's movements at relevant times, and so as to establish links and connections between the applicant's phone and other relevant numbers. Telephone intercept material involving a person contemporaneously referred to as 'Boris' was also tendered, together with testimony which established that the applicant was known as 'Boris' within the Hells Angels.
59 Further, the prosecution relied on the evidence of one of the applicant's associates, Michael Gerrie, who gave evidence that he and the applicant were at Dallas at the relevant time; that the person nominated in the CCTV footage by FA as the 'old man' was the applicant; and that when he and the applicant left Dallas they returned to the Hells Angels club rooms in Thomastown.
60 Additionally, the prosecution relied on footage of a video-recorded search conducted at the applicant's South Australian home on 16 February 2010. The prosecution invited the jury to make comparisons between the depiction of the applicant in that video footage and the depiction of the identified 'old man' in the CCTV footage, and of the applicant's voice in the search footage and one of the voices heard on the telephone intercept material, so as to conclude, first, that the applicant was the person depicted in the CCTV footage, and, secondly, that it was the applicant's voice that could be heard in the telephone intercept material.
61 The defence did not dispute that the incidents took place, but it was disputed that the 'old man' identified by FA was the applicant. Counsel for the applicant at trial submitted that the jury could not accept the identification evidence for several reasons, including contamination of the 23 August 2011 photoboard identification (in which FA selected the applicant as being 'the closest' to the 'old man'), and inconsistencies between FA's description of the 'old man' and the applicant's physical appearance.
Admissibility of the identification from photoboard, Exhibit 5 - grounds 1 and 2
62 With respect to conviction, grounds 1 and 2 attacked the admissibility of the identification from the photoboard, Exhibit 5. It was contended that s 114 of the Evidence Act 2008 ('the Act') had been breached; or, alternatively, that the judge should have excluded the evidence under s 137 of the Act.
63 It was agreed at trial that, since there was no evidence that the applicant's photograph in the photoboard was a picture 'kept for the use of police officers' within the meaning of s 115 of the Act, the admissibility of the applicant's identification on 23 August 2011 was governed by s 114 of the Act.
64 Section 114 of the Act provides:
114 Exclusion of visual identification evidence
(1) In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
(2) Visual identification evidence adduced by the prosecutor is not admissible unless -
(a) an identification parade that included the accused was held before the identification was made; or
(b) it would not have been reasonable to have held such a parade; or
(c) the accused refused to take part in such a parade -
and the identification was made without the person who made it having been intentionally influenced to identify the accused.
(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account -
(a) the kind of offence, and the gravity of the offence, concerned; and
(b) the importance of the evidence; and
(c) the practicality of holding an identification parade having regard, among other things -
(i) if the accused failed to cooperate in the conduct of the parade - to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case - to whether the identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the accused and the person who made the identification.
(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the accused for such a parade to have been held.
(5) If -
(a) the accused refused to take part in an identification parade unless an Australian legal practitioner acting for the accused, or another person chosen by the accused, was present while it was being held; and
(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or person to be present -
it is presumed that it would not have been reasonable to have held an identification parade at that time.
(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.
65 As we have previously mentioned, the police did not hold an identification parade.
66 Over objection, the prosecution was permitted to adduce evidence of FA's identification of the applicant's photo from a photoboard, Exhibit 5, made on 23 August 2011. The judge ruled the identification evidence to be admissible following a voir dire in which the informant, Detective Sergeant Ben Condon, was the only witness to give evidence.
67 We have already set out many of the circumstances surrounding the identification process, but it is convenient at this juncture to refer to some other pertinent features.
68 As earlier observed, Michael Cooper was identified as FA's assailant, but later was eliminated as the culprit. Further police inquiries led to the applicant being suspected of committing the offences. FA left Australia on 23 December 2009, and did not return until August 2011. In the meantime, as we have mentioned, on 16 February 2010 South Australia police, in company with Victoria Police, executed a search warrant at the applicant's home in Gawler, South Australia. Audio-visual footage was taken (Exhibit 1). In the course of questioning during the search, Detective Condon asked the applicant, 'Are you prepared to take part in a line-up?', which prompted the applicant to say, 'I want to talk to my lawyer'.
69 A couple of days later, on 18 February 2010, Detective Condon sent an email to Detective Scott Dawe of South Australia police - he was the officer who had executed the search warrant - asking about the applicant's participation in an identification parade. The email, which was tendered on the voir dire, was as follows:
Scott. Wondering if you could do me a favour when you go to drop Dickman's copy of the interview out to him. Can you ask him if he has spoken to his solicitor about participating in a line-up. I'm hoping he will say no. If this is the case, you take a note of it and let me know. Over the next day or so I will work out who I need to get a statement from re exhibits etc, and send a formal request for them. Thanks, Condo.
70 Detective Condon's evidence on the voir dire was that he subsequently spoke to Detective Dawe, who told him that the applicant did not want to participate in a line-up. On 18 February 2010, Detective Condon sent a number of emails to various people, including one to FA which reads:
Faisal, you may be pleased to know that on 16 and 17 February 2010 I flew to Adelaide and spoke with two other people I believe were responsible for the assault on you. At their home address I seized some items that I believed will help in proving that they were in Melbourne at the time you were assaulted and that they were the ones responsible for the assault on you. They have not been charged as yet. However, I'm confident that in time I will have sufficient evidence to charge them and they will then be brought before the courts to explain their actions. Over the next couple of weeks I hope to make contact with the police in Germany with a view to having them come out and show you some photoboards. I'm not sure of the process I need to use to do this, but will keep you updated on how this is going.
71 Further, Detective Condon gave evidence that, on 24 February 2010, he had a conversation with David Stokes, the applicant's solicitor. Detective Condon's evidence was that he was told by Mr Stokes that the applicant did not want to participate in a line-up. Detective Condon produced a note of that conversation, which read:
Wednesday 24.2.10.
0730 On duty. Corro re: Defize.
Book Dickman phone in for 10 am March 3.
Job number 091/1537 96118820.
[Illegible] Flinders St Melbourne.
David Stokes [redacted] message.
0930 Sexton [redacted]. Phone off.
Property receipt. Check up for one.
Not to participate in line up (photoboard).
Phone. Wants back.
Concede was in Melbourne but not at clubhouse (possible).
Scott Dawe [redacted].
Browny [redacted] ...
72 On 25 February 2010, Detective Condon had a telephone conversation with FA, who was in Germany. Detective Condon recorded the detail of that conversation in an email that he sent on 25 February 2010 to Steven Dennis:
I advised [FA] that I would need to get him to do some photoboards. I also told him if it is not members from Vicpol I will need to make contact with German police and have them show him these photoboards (three in total) of people I believe were responsible for the assault.
As soon as I told him this, he asked me if one was a fat old bloke. I told him the photoboards [were] of people I believed may be responsible for the assault and that for legal reasons I could not say any more. [FA] then told me he has been to the police in Germany and told them what has happened to him, and as such has had contact with local police as well as members from the federal witness protection unit. He told me, if I wanted, he would find a police contact in Germany for me, but I said I would be better finding my own.
73 In August 2010, Detective Condon made a request to his superiors that he be permitted to travel to Germany. There was no response to that request. In August 2011, Detective Condon made a further request that he be permitted to travel to Germany. Once again, there was no response to that request. On 23 August 2011, there was, as we have mentioned, an identification of the applicant's photo by FA when he was shown the photoboard, Exhibit 5.
74 In ruling on the disputed evidence, the judge held that the identification from the photoboard, Exhibit 5, was not 'picture identification evidence' within the meaning of s 115 of the Act, so that s 114 governed admissibility. (As we have said, in this Court the parties had no quarrel with that approach.)
75 So far as ss 114(2)(b) and (c) were concerned, it was submitted by the prosecution that there had been no identification parade because the applicant refused to take part in an identification parade, and, in any event, it would have been impractical to hold such a parade. The prosecution relied upon the evidence of Detective Condon that he was told by the applicant's solicitor, David Stokes, on 24 February 2010 that the applicant did not want to participate in a line-up as evidence of a refusal by the accused to take part in an identification parade.
76 On the other hand, the applicant's counsel submitted that the judge should not be satisfied the applicant refused to take part in an identification parade because the evidence of Detective Condon was unreliable and ought not be accepted. Further, so it was submitted, any request for the applicant to participate in an identification parade was unlawful, since it emanated from an initial unlawful questioning of the applicant by Detective Condon on 16 February 2010 during the execution of the search warrant at the applicant's premises. Thus there was no admissible evidence of a refusal.
77 The judge accepted Detective Condon's evidence that on 24 February 2010 he had a conversation with the applicant's solicitor David Stokes about the applicant participating in a line-up, during which Mr Stokes advised him that the applicant did not want to participate in a line-up. Further, the judge did not accept the defence submission that the initial, allegedly unlawful, request made to the applicant on 16 February 2010 rendered any subsequent evidence of refusal inadmissible. Even if the request was unlawful, it had been 'overtaken by subsequent events', including the request by Detective Condon to Detective Dawe to ask the applicant if he had spoken to his solicitor about participating in a line-up; Detective Dawe's response to that request; and the conversation between the applicant's solicitor and Detective Condon on 24 February 2010. Thus, the judge found that, consistently with s 114(2)(c) of the Act, the applicant had refused to take part in an identification parade.
78 Further, the judge also found that s 114(2)(b) was satisfied, in that it would not have been reasonable to have held an identification parade. The judge reasoned that FA is a German resident who was in Australia as a tourist in 2009. Following the assault, he remained in Australia until returning to Germany on 23 December 2009. He stayed in Germany until August 2011, when he came back to Australia to give evidence in the trial of the co-accused, Ali Chaouk. After giving evidence, he went back to Germany and only returned to Australia in early October 2014 to give evidence in the applicant's trial. The applicant resided in South Australia. Investigating police were from Victoria. Having regard to the logistical difficulties involved in coordinating FA, a resident of Germany, and the applicant, a resident of South Australia, the judge was satisfied that it would not have been reasonable to have held an identification parade.
79 As required by s 114(2), the trial judge was also satisfied that 'the identification was made without the person who made it having been intentionally influenced to identify the accused'. The applicant's counsel had submitted that the prosecution could not establish that the identification was made without FA having been intentionally influenced to identify the applicant. The defence relied on a number of factors, including FA's description of his assailant in his statement; his wrong identification of Michael Cooper from a photoboard on 5 October 2009; FA having been told by Detective Condon that he had picked the wrong person; Detective Condon's communications with the complainant both by email on 18 February 2010 and by telephone on 25 February 2010; FA's approach to the photoboard on the basis that he was looking for a person 'closest' to the 'old man'; and Detective Condon's alleged conduct during the photoboard identification process, in which he allegedly pressed FA on whether he was pointing to photo number 9.
80 The trial judge was satisfied that the identification was made without FA having been intentionally influenced to identify the applicant for several reasons. In his email to FA of 18 February 2010, Detective Condon informed FA that he had spoken to two other persons he believed were responsible for the assault, and advised him that he may be asked to view further photographs. Detective Condon then had a conversation with the complainant, the details of which were noted in his email to Steven Dennis on 25 February 2010. Moreover, the judge did not accept that there was anything improper or objectionable in the words and conduct of Detective Condon when conducting the photoboard examination on 23 August 2011. In particular, the judge thought there to be no evidence that FA was intentionally influenced by Detective Condon to identify photo 9. The identification process was, the judge noted, video-recorded. It therefore followed, the judge held, 'that the statutory preconditions for admissibility pursuant to s 114 are satisfied'.
81 It was also contended by defence counsel that s 137 of the Act should lead to exclusion of the evidence. The evidence either had no probative value, or its probative value was slight. Certainly, any probative value that the evidence possessed was outweighed by the risk of unfair prejudice. Counsel for the applicant relied on the following:
• first, there had been a delay of almost two years between the assault and the identification of the applicant on 23 August 2011;
• secondly, there had been severe contamination of the applicant's memory, including the misidentification of Michael Cooper and the 'displacement' effect;
• thirdly, FA had a preconceived view that a photo of his assailant was included in the August 2011 photoboard;
• fourthly, there are significant differences between FA's description of the 'old man', the FACEview image and the applicant's photograph;
• fifthly, the array of photos on the photoboard is not a fair representation, and in particular, only the applicant had a long beard;
• sixthly, FA was shown seven different photoboards on 23 August 2011, but, after selecting the applicant's photo, he failed correctly to identify three other relevant persons and did not correctly identify one knife;
• seventhly, the photoboard had two photos of one person, so that although there were 12 photos only 11 people were depicted;
• eighthly, the quality of some of the photos in the photoboard was poor;
• ninthly, the informant, rather than an entirely independent police officer unknown to FA, conducted the photoboard identification; and
• tenthly, the informant acted inappropriately in his comments and actions when the purported identification was being made.
82 At trial, the prosecution accepted that there are difficulties associated with identification from photoboards. The prosecution submitted that, having regard to, first, the notorious problems associated with identification from photoboards, and, secondly, the delay in this case, the probative value of the evidence was in the 'moderate to low' range. Additionally, it was conceded that the probative value of the evidence was further reduced by the misidentification of Michael Cooper. Notwithstanding these matters, however, the prosecution argued that the evidence retained 'some probative value' - conceded in this Court to be 'at the lower end' - and submitted that there is no risk of unfair prejudice because the defects in the evidence were readily apparent (as demonstrated by the earlier misidentification of Mr Cooper). Any risk could be further reduced by judicial directions.
83 Despite her characterisation of it as not her 'major point', it seems to us that the pinnacle of the prosecutor's submissions on the admissibility of the identification from the photoboard, Exhibit 5, is in the following passage:[14]
Finally, and this is not my major point, Your Honour, but I seek to make it, is that if Your Honour excluded the photoboard identification of the accused [Exhibit 5, 23 August 2011], the evidence of the photoboard identification of Mr Cooper [Exhibit 4, 5 October 2009] would undoubtedly be put into evidence through crossexamination and the prosecution should be in a position to say, effectively in rebuttal to that, 'Yes, but he did actually pick out the accused when given a photo board with him in it'.
That doesn't increase the reliability of it in any sense. It is what it is, but it would be unfair to the prosecution to have the Cooper photoboard [Exhibit 4] in, but not the Dickman photoboard [Exhibit 5].
84 The judge refused to exclude the evidence under s 137. He held that 'the earlier identification of Cooper does reduce the probative value of the identification of the accused but it does not extinguish it'; and he did 'not accept that what may be a mistake in identification by a witness means that any subsequent identification evidence from that witness has no probative value and is therefore inadmissible'.
85 Having viewed the video-record of the identification process, the judge concluded that there was nothing in Detective Condon's conduct which tainted the process. His Honour thought the array of photos on the photoboard to be reasonable, and he did not accept that only the applicant had a long beard. The quality of the images was acceptable, and it was inconsequential that there were two photos of one person, since they were different photos of that person.
[FA] has embarked on a number of photoboard examinations of persons with varying results. This is relevant in assessing his reliability. He has made mistakes. This is relevant. It is also relevant that he had a belief or hope that his assailant would be on the photoboard. He was told in the preamble read to him by [Detective] Condon that he should not conclude or guess that the photoboard contained the image of the person he had been asked to identify.
There has been great delay in this identification. This is relevant as ordinarily it would be expected that memory would be adversely affected by the effluxion of time. I do not accept that it is likely there has been any displacement or contamination by virtue of [FA's] selection of the photo of Cooper. The complainant only saw the Cooper photo on one occasion on 5 October 2009.
Both counsel have referred to the significant differences in the appearances of Cooper and the [applicant]. This does go to the reliability of [FA's] evidence on identification, but it also suggests no displacement or contamination by [FA's] identification of Cooper.
Whilst the defence highlight the significant differences in [FA's] descriptions of his assailant, the [FACEview] image and the [applicant], the prosecution have pointed to similarities ... The risks associated with identification evidence, particularly from photoboards, and the particular dangers in this case will be the subject of detailed directions to the jury.
In accordance with [Dupas v The Queen[16]] I have, in undertaking the balancing exercise required by s 137, made some assessment of the way [scil, weight?] the jury could, acting reasonably, give to the identification evidence the prosecution seek to adduce. I have assessed the risk of the jury attaching more weight to the identification evidence than it deserves.
I have assessed the probative value the jury could assign to this evidence. I am satisfied that, despite the earlier identification of Cooper and delay, this identification evidence could have some, albeit relatively low, probative value. I have carefully considered the danger of unfair prejudice to the accused. The concept of unfair prejudice has been discussed in many authorities. I note that in R v Darwiche [(2006) [2006] NSWSC 924; 166 A Crim R 28], Bell J stated:
'The danger of unfair prejudice to which s.137 is directed is the danger that the jury may misuse the evidence in some unfair way. ...'
In the particular circumstances of this case, I assess that risk or danger is minimal. I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice. Accordingly the identification evidence is admissible.
87 Ground 1 - which relies on asserted breaches of s 114 of the Act - may be disposed of relatively quickly. As we have mentioned, in this case, the police did not conduct an identification parade in which the applicant participated. Thus, by virtue of s 114, the visual identification evidence from the photoboard, Exhibit 5, was not admissible unless the applicant refused to take part in an identification parade (s 114(2)(c) of the Act) or it would not have been reasonable to have held such a parade (s 114(2)(b) of the Act).
88 As we have said, the trial judge accepted Detective Condon's evidence that on 24 February 2010 he had a conversation with the applicant's solicitor David Stokes about the applicant participating in a line-up, during which Mr Stokes advised him that the applicant did not want to participate in a line-up. In our view, it was well open to the judge to make that finding. On 18 February 2010, Detective Condon sent an email to Detective Scott Dawe in South Australia asking him to inquire about the applicant's participation in an identification parade. The email contained the following:
Can you ask him if he has spoken to his solicitor about participating in a line-up. I'm hoping he will say no. If this is the case, you take a note of it and let me know.
It seems to us to be unlikely that Detective Condon would have sent an email in these terms unless he genuinely wanted Detective Dawe to make the relevant inquiry. Detective Condon's evidence on the voir dire was that he subsequently spoke to Detective Dawe, who told him that the applicant did not want to participate in a line-up. Given the contents of the email of 18 February 2010, we think this evidence likely to be accurate. Certainly, it was open to the trial judge to accept it.
89 Moreover, we think the judge was correct to find that Detective Condon had spoken to the applicant's solicitor, David Stokes, on 24 February 2010, and that Mr Stokes had conveyed the applicant's refusal to participate in an identification parade. Although the note made by Detective Condon on 24 February 2010 is somewhat sparse in detail, it does contain the following: 'Not to participate in line up (photoboard). Phone. Wants back. Concede was in Melbourne but not at clubhouse (possible)'. In our view, the proper interpretation of the note is that it purports to record that the applicant, first, does not want to participate in an identification parade; secondly, wants his telephone - which was seized during the execution of the search warrant - returned; and, thirdly, concedes that he was in Melbourne when FA was attacked, but was not at the Hells Angels clubhouse.
90 For these reasons, it was open to the judge to conclude that the applicant had - through his solicitor - conveyed his refusal to participate in an identification parade. Thus, in our view, the judge was correct to hold that s 114(2)(c) was satisfied.
91 Before turning to the issue of whether it was reasonable not to hold an identification parade, for reasons that will become clear when we come to consider grounds 3, 4 and 5, we do not think that there was any request made for the applicant to take part in an identification parade during the search of 16 February 2010 which was tainted by illegality. As we have observed earlier, the judge did not accept the defence submission that the allegedly unlawful request made to the applicant on 16 February 2010 rendered any subsequent evidence of refusal inadmissible (and that - so the judge expressed it - even if the request was unlawful, it had been 'overtaken by subsequent events'). Given that we are of the view that the execution of the search warrant was not tainted by any illegality, it was open to the judge to conclude that any request made after the 16 February 2010 was not tainted.
92 In our opinion, it was also open to the trial judge to conclude that it would not have been reasonable to hold an identification parade. There is no dispute that FA returned to Germany on 23 December 2009. By that time, he had made the earlier wrong identification of Michael Cooper (in October). So far as we can discern, the applicant was not a suspect until some time after FA's return to Germany (and it will be remembered that the search warrant was not executed on the applicant's property until 16 February 2010). FA remained out of Australia until August 2011, when he came back to testify in Ali Chaouk's trial. After giving evidence in Chaouk's trial, FA again returned to Germany. He came back to Australia to give evidence in the applicant's trial in October 2014. Throughout the relevant period, the applicant was a resident of South Australia, whilst the investigating police were resident in Victoria. Given the self-evident logistical difficulties involved in coordinating FA (a resident of Germany), the applicant (a resident of South Australia) and investigating police (residents of Victoria), the judge obviously was correct in finding that in the prevailing circumstances it would not have been reasonable to have held an identification parade.
93 Finally, s 114(2) provides that visual identification evidence is not admissible unless it 'was made without the person who made it having been intentionally influenced to identify the accused'. The process of identification from the photoboard, Exhibit 5, was video-recorded. Having viewed the video-record of the identification process, the trial judge concluded that there was nothing in Detective Condon's conduct which intentionally influenced FA to identify the applicant. We have no reason to doubt the judge's conclusion on this aspect.
95 We are of the opinion, however, that ground 2 must succeed.
96 There can be little doubt that FA had shown himself to be an unreliable witness so far as identification was concerned. At the risk of repetition, very close to the time of the assault on him - 5 October 2009 - he had wrongly identified Michael Cooper as his assailant. Quite obviously, had other evidence not demonstrated that Mr Cooper did not commit the crime, FA's identification of him as the 'old man' might well have placed his - an innocent man's - reputation and liberty in jeopardy. It was only much later, on 23 August 2011 - and after police had told him that he had earlier made a wrong identification - that FA selected the applicant's photo in Exhibit 5 as being 'the closest' to the 'old man'.
97 At this point, it is worth noting some of the other evidence bearing on FA's reliability. Thus, on 30 September 2009, FA was shown a photoboard, Exhibit 1. He selected photo '2' (which was of Ali Chaouk) as 'looking like Ali'. But he also suggested that photographs '1' and '8' were of people who could have been in the car on the way to the Hells Angels clubhouse. He was, however, wrong about that. Later, on 23 August 2011, from the photoboard Exhibit 6, FA identified photo '10' as depicting an 'Italian guy' who had been present at relevant times. He was also wrong about that (the correct photo apparently being number '2'). Also on 23 August 2011, from the photoboard Exhibit 7, FA purported to identify another man present at relevant times, 'Bullring', as depicted in photo '9'. Again, he was wrong about that (the correct photo apparently being '11'). The same day, he picked photo '3' in photoboard Exhibit 8 as a man, 'Deli' (perhaps, 'Gerry'). It seems he was also wrong about that, since Michael Gerrie - whom he did not identify - was depicted in photo '5'.
98 Section 137 of the Act provides that the court 'must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice'. As Dupas and other cases[17] make clear, if a trial judge concludes that the probative value of a piece of evidence is outweighed by the risk of unfair prejudice, no element of discretion is involved - the evidence must be excluded. In assessing probative value, a trial judge must evaluate the weight that the jury could rationally attach to the evidence. When undertaking the required balancing exercise, the judge is not required to assume that the reliability of the impugned evidence will be accepted. In determining the capacity of the evidence rationally to affect the determination of a fact in issue - in this case identity - the judge must make some assessment of the weight that the jury could, acting reasonably, give to the evidence. If it is contended that the quality of the evidence (or, perhaps, its weaknesses) might result in the jury giving it more weight than it deserved, the judge must assess the extent of the risk. The judge is not required to gauge the weight that the jury will give the evidence, however, but instead must assess what probative value the jury could give the evidence, and balance against it the risk that the jury will give it disproportionate weight.[18]
The authorities support the conclusion that I have reached, which is 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 the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.
100 Since a determination under s 137 involves no exercise of discretion, however, this Court's examination of the judge's ruling is not circumscribed by House[23] principles.[24] The essential facts surrounding the identification evidence not being in dispute, this Court should decide for itself whether the trial judge was correct to conclude that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the applicant.[25] Ultimately, the question for the Court is, of course, whether there has been a substantial miscarriage of justice. In our opinion, there has been.
101 In ruling the evidence to be admissible, the judge said that, for the purposes of s 137, he had 'assessed the risk of the jury attaching more weight to the identification evidence than it deserves', and had 'assessed the probative value the jury could assign to this evidence'. Despite the misidentification of Michael Cooper and the delay in FA selecting the applicant's photo, the judge said he was satisfied that the impugned evidence 'could have some, albeit relatively low, probative value'. His Honour said further that he assessed the risk of unfair prejudice as 'minimal', and that he was 'not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice'.
102 With respect, although we agree with his Honour's conclusion that any probative value that the visual identification evidence possessed was low, we are unable to agree with the conclusion that the risk of unfair prejudice was minimal. Plainly, in our opinion, any probative value that the evidence had was so low as to be outweighed by the risk of unfair prejudice.
103 There are, in our view, five principal reasons for concluding that the probative value of the impugned evidence was outweighed by the risk of unfair prejudice, and hence for concluding that the judge was wrong to admit the evidence.
104 First, FA was demonstrated to been an unreliable witness so far as identification was concerned. Less than a week after the assault on him he wrongly identified Michael Cooper as his attacker. Thereafter, on 23 August 2011, he both purported to identify persons whom he thought might have been present at relevant times - but who were not - and failed to identify an individual, Mr Gerrie, who undoubtedly was present. Thus, FA's reliability was, in our view, significantly compromised.
105 Secondly, there had been a delay of almost two years between the assault and FA's purported identification of the applicant as the 'old man' on 23 August 2011. That delay serves to exacerbate the doubts we already harbour about FA's reliability.
106 Thirdly, there is, in our view, a considerable risk that FA's memory may well have been contaminated, both by the earlier misidentification of Michael Cooper, and as a result of the possible 'displacement' effect[26] flowing from his viewing of the Dallas CCTV footage.
107 Fourthly, by the time FA selected the applicant's photo as being that of the 'old man', he had been told that earlier he had made a mistaken identification. Thus, when he came to view the photoboard on 23 August 2011, by his own admission, FA had a preconceived view that a photo of his assailant was included in it.
108 Fifthly, and allied to the fourth point, FA would have been striving to find a photo that best resembled his memory of the attacker. Indeed, FA admitted that he selected the photograph that was closest to his memory of what the 'old man' looked like.
109 As we have observed, the prosecution sought to introduce the evidence pre-emptively to address the anticipated cross-examination of FA by defence counsel directed to his misidentification of Michael Cooper. If that tactic was adopted by the defence, the prosecutor wanted to be able to say, 'Yes, but [FA] did actually pick out the accused when given a photoboard with him in it'. Importantly, however, the prosecutor conceded that, 'That doesn't increase the reliability of it in any sense. It is what it is ...'. Moreover, although she continued to press for the evidence to be admitted, the prosecutor recognised that, at best, the probative value of the evidence was low to moderate.
110 In our opinion, a distinction must be drawn between the prosecutor's reasons for seeking to introduce the evidence and any probative value that the evidence might possess. As the prosecutor acknowledged, the prosecution's reason for seeking admission of the evidence did not increase the reliability of the evidence. For the reasons that we have discussed, the evidence was so lacking in reliability, and was so attended by other frailties, that its probative value was slight.
111 On the other hand, there is a seductive quality to identification evidence that is difficult to ameliorate by judicial direction.[27] The prosecution argued that the frailties of the evidence were exposed for the jury's consideration, and that the judge's directions would mitigate any prejudicial effect that admitting the evidence might have. Those matters, however, provide no answer to the intrinsic lack of probative value in the evidence.
112 Further, as we have said, the prosecution's reason for introducing the evidence did not increase its probative value in any meaningful sense. Had the evidence been excluded - as the defence had sought - in our view it is highly unlikely that defence counsel would then have run the risk of having it admitted by undisciplined cross-examination of FA directed to his misidentification of Mr Cooper. Very experienced senior counsel would well have appreciated that - in circumstances where the evidence had been excluded - it would be inevitable that the evidence would be made admissible by any cross-examination on the misidentification of Mr Cooper (if only to rehabilitate FA's credit). It is unthinkable that astute defence counsel would be so unwise.
113 The evidence of FA's visual identification from the photoboard, Exhibit 5, on 23 August 2011 should have been excluded. Any probative value that the evidence may have had was outweighed by the risk of unfair prejudice. Ground 2 is thus made out.
114 There has been a substantial miscarriage of justice. The convictions must be quashed and a new trial had.
Admissibility of the record of interview - grounds 3, 4 and 5
115 Grounds 3, 4 and 5 were concerned with the video-recorded search of the applicant's property on 16 February 2010 (the footage, Exhibit 18, being described as a 'record of interview' in the grounds). It was claimed:
• first, that the 'record of interview' should not have been admitted, since it was conducted in contravention of South Australian law;
• secondly, that the judge should have excluded the 'record of interview' on the basis that it was unfair to permit it to be used for the purposes of voice identification; and
• thirdly, that the judge erred in directing the jury that it was open to them to rely on the 'record of interview' and the telephone intercepts for the purposes of voice identification.
116 As we have mentioned, a search warrant was executed at the applicant's home in South Australia on 16 February 2010. The warrant was issued under the Criminal Investigation (Extraterritorial Offences) Act 1984 (SA), and executed by Detective Dawe of South Australia Police in the presence of investigating police from Victoria, including Detective Condon. The search process was recorded using a video camera. In attempting to have part of the evidence excluded, the applicant's counsel at trial placed significant reliance on the fact that Detective Condon continued to ask questions of the applicant after he had requested a solicitor. It is important to note, however, that the applicant took no issue with the validity or legality of the warrant or the search, or of the video portion of the video footage of the search. The applicant's opposition to the admissibility of the video-recording of the search was limited to the audio portion of what was recorded; and in particular, the recording of the applicant's voice.
117 At trial, the prosecution limited those parts of the video footage sought to be relied upon to the introductions; the giving of the caution and rights; footage from inside the applicant's house; footage of the applicant attending to his dogs; and footage relating to the seizure of the applicant's mobile telephone.
118 It is apparent from the footage that, at the commencement of the search, Detective Condon gave the standard caution and explanation of rights required by Victorian law (albeit they were given in South Australia).[28] The applicant then said that he wanted to speak to a solicitor. Thereafter, Detective Dawe explained the warrant and asked the applicant a question as to whether the applicant had anything that he should not have. From that point on, there was limited discussion between the applicant and Victorian police - including about the applicant's dogs - and some limited questioning of the applicant by Detective Condon, no solicitor having been obtained.
119 Ultimately, the prosecution sought to rely only on a portion of the recorded conversations as evidence of the applicant's appearance and voice, at a time relatively proximate to the offending. Importantly, the prosecution did not seek to rely on any part of the video footage as containing any admissions by the applicant, so that s 90 of the Act was not engaged.[29] The sole purpose of the admission of the evidence was so that the jury might compare the appearance and movement of the applicant to the Dallas CCTV footage, and his voice to that recorded on the telephone intercepts.
120 Upon an application to exclude the evidence at trial, the thrust of the applicant's submissions was that the audio portion of the footage had been obtained unlawfully or improperly. In essence, the applicant contended that Detective Condon had no power or right to question the applicant in South Australia; and, further, that the applicant should have been given the caution and rights required by South Australian legislation. The applicable South Australian legislation was breached, so the applicant submitted, by police continuing to question the applicant after he requested a solicitor.
121 Section 79A(1)(b) of the Summary Offences Act 1953 (SA) provides that where a person is 'apprehended' by a 'police officer' on 'suspicion of having committed an offence', the person is (among other things) 'entitled to have a solicitor ... present during any interrogation or investigation to which the person is subjected while in custody'. In the circumstances, we doubt that the applicant could properly be said to have been apprehended on suspicion of having committed an offence. Moreover, 'police officer' is defined in s 4 of the Acts Interpretation Act 1915 (SA) to mean 'any member of South Australia Police under the Police Act 1998'. Nothing in the Police Act 1998 (SA) requires that a member of Victoria Police is to be regarded as a member of South Australia Police. Thus, in our view, any questioning by Victorian police officers did not breach South Australian law.
122 Even were we wrong about that, however, and South Australian legislation did apply to the questioning, that does not much avail the applicant. In our view, if there were any impropriety or breach of Australian law, it was unintentional. So much might be divined from the fact that Detective Condon was careful to give the caution and explanation of rights that would have been required in Victoria.
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained -
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law -
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
124 In Haddara, Priest JA discussed the contours of s 138:[30]
Several observations might be made about s 138. First, although s 138(2) is directed specifically to admissions, the general exclusionary rule provided for in s 138(1) is not. Secondly, evidence obtained improperly or in consequence of an impropriety is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained. Thirdly, s 138(3) spells out a variety of factors that a court may take into account in determining whether 'the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained', including the probative value of the evidence; its importance to the proceeding; the nature of the offence; and the gravity of the impropriety, and whether it was deliberate or reckless. Fourthly, in determining whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence, s 138(1) does not refer expressly to any 'unfairness' to the accused.
Notwithstanding that unfairness to the accused is not referred to specifically in s 138(3), in my opinion it remains a factor which may be taken into account when deciding whether to admit evidence obtained improperly or in consequence of some impropriety.
125 As we have said, s 138(2) had no application, since the relevant evidence was not an admission (or admissions). (And we note that the applicant did not seek to rely on any general unfairness discretion, or on s 135 or s 137 of the Act.) Thus, if there was any evidence obtained improperly or in breach of the law, subs (1) and (3) governed its admission.
126 In our view, even were the evidence to be regarded as having been unlawfully or improperly obtained, the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. The main use to which it was sought to put the footage was as a comparator of the applicant's voice with that on relevant telephone intercepts. There was, so far as we are able to see, no illegitimate prejudice in this to the applicant. As appears from the video, the applicant was shown behaving with restraint in the face of a police search, and dealing in a kindly manner with his dogs. He was not shown in a bad light.
127 Further, the probative value of the evidence was high, since the applicant's voice appears to be natural and unforced. Certainly the police did not inveigle him into using language similar to that captured on the telephone intercepts. Voice identification was a significant plank in the prosecution case. If the jury were satisfied that it was the applicant's voice in the telephone intercept which recorded part of the attack on FA, that would have constituted powerful evidence inculpating him in the assault.
128 Finally, we note that any risks of misuse of this particular identification evidence by the jury - visual or aural - were ameliorated by careful directions in the judge's charge.
Claim that the verdicts are unsafe and unsatisfactory - ground 6
130 Ground 6 of the application for leave to appeal against conviction asserted that the verdicts are unsafe and unsatisfactory.
131 When it is claimed that a verdict is unsafe and unsatisfactory, the appellate court must ask itself whether it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt.[31] In determining whether it was open to the jury to be satisfied of guilt, the appellate court must make its own independent assessment of the evidence. The crucial inquiry is whether the jury must, as distinct from might, have entertained a doubt about the accused's guilt.[32] It is insufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about guilt.[33]
132 In our opinion, even without the evidence of visual identification, there is sufficient evidence upon which a properly instructed jury might be satisfied on the remaining evidence of the applicant's guilt beyond reasonable doubt. Among the main features of the evidence is FA's account that he was assaulted at the Hells Angels clubrooms by the 'old man'. There is evidence that the 'old man' is shown in the Dallas CCTV footage wearing a camouflage jacket. Michael Gerrie, a companion of the applicant's, identified the man in the camouflage jacket depicted in the CCTV footage as the applicant. Moreover, the evidence of Mr Gerrie places the applicant at the clubrooms at the time when FA was assaulted. Further, there is evidence that the applicant was known as 'Boris', and arguably that the voice of 'Boris' is recorded in various telephone intercepts (including the one which records part of the attack on FA). Additionally, it might be observed that the FACEview image prepared by FA bears some resemblance to the applicant. These aspects, and a variety of other pieces of circumstantial evidence which it is unnecessary to rehearse, would justify a jury in returning guilty verdicts on the two charges upon which the applicant was convicted.
134 For foregoing reasons, we would uphold ground 2. Leave to appeal against conviction must be granted, the appeal allowed and the convictions quashed. We would order a new trial.
[1] DPP v Dickman (Unreported, County Court of Victoria, Judge Coish, 16 October 2014) 535.
[3] (2012) 38 VR 1, 10 [44] citing Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, 184 [23].
[6] Ibid 442 [34] (Nettle JA, Redlich and Coghlan JJA agreeing).
[7] (2014) 41 VR 434, 11-12 [50].
Dickman
The Queen [2015] VSCA 311
(2012) 38 VR 1
(2012) 247 CLR 170
(2014) 41 VR 434