The identification of Brigitte
155 There was abundant evidence that the appellant had associated with Brigitte. There was unchallengeable evidence that a man calling himself Salahudin had undergone terrorist training in Pakistan. The link between those bodies of evidence was Kwon's identification of Brigitte's photograph as of Salahudin. Kwon purported to identify such a photograph on two occasions and the Crown tendered evidence of them both. It was submitted at trial that the probative value of the evidence was outweighed by the danger of unfair prejudice: Evidence Act s137. It was also submitted, relying on s138 of the Act, that the evidence had been obtained improperly or in contravention of an Australian law or in consequence thereof, and the desirability of admitting it did not outweigh the undesirability of admitting evidence obtained in the way it had been obtained. His Honour held that the evidence had not been obtained improperly or in contravention of any Australian law and that its probative value was not outweighed by the danger of unfair prejudice to the appellant.
156 Kwon was a citizen of the United States of America who, in 2001 at the suggestion of his teachers, travelled to Pakistan in the hope of gaining entry to a Lashkar-e-Taiba training camp. Eventually he arrived at a camp called Camp Masada and entered training there. There were to be three phases of training. The first and the first part of the second would be held at that camp. The second part of the second phase would be held at a different camp at higher altitude. Kwon completed the first phase and entered the second. A few days into that phase, a man called Salahudin arrived and joined the group as a trainee. There were at that stage about seven trainees. They did all their training together. They were accommodated in the same place. They slept in the same dormitory, ate together and prayed together. They had discussions together. Kwon, Salahudin and the others completed the first part of the second phase and moved to the higher camp. The course there lasted for between twenty and twenty-five days. As before, everything was done together and all the participants lived closely together. Kwon had a lot of individual conversations with Salahudin, who told him something of his background in France and his history as a teacher. Neither went on to the third phase of the program but both travelled in company to a town called Muridke, where they waited some weeks for further instructions. From there they went in different directions and Kwon has not seen Salahudin since those days.
157 Kwon spent some time in South Korea, where FBI agents got in touch with him. Eventually he was returned to the Unites States of America and faced, first, passport violation charges and then much more serious charges, alleging that he had conspired to provide support to al-Qaeda and the Taliban for the purpose of fighting against United States troops in Afghanistan and an intention to take up arms against his own country's troops. At least one of the charges attracted a maximum sentence of imprisonment for life. He was also charged with a number of firearms offences. He entered a plea bargain with United States prosecutors with a number of results and consequences. The resulting sentence was imprisonment for eleven and one-half years, but with the prospect of bringing what was called a Rule 35 motion to reduce his sentence. The bones of the arrangement appear to be these. In acknowledgment of the sentence I have mentioned Kwon was to give assistance to the United States investigating authorities, and that required him to do a number of things, including giving evidence in prosecutions in the United States and elsewhere. If he did give truthful evidence as promised, and if he otherwise fulfilled the terms of the arrangement, he would have the opportunity to come back before the sentencing judge under the arrangement I have mentioned and ask for a reduction in sentence. The plan was put into action. Kwon gave evidence in a number of matters, two prosecutions in the United States and one in the United Kingdom. He was taken back before the sentencing judge under Rule 35 and his sentence was reduced. By the time he came to give evidence in the appellant's case he had already reached the end of the custodial portion of his reduced sentence and was serving a period of three years on probation.
158 On 26 November 2003, while he was still serving the custodial part of his sentence, Kwon found himself in a gaol in Alexandria, Virginia. On 26 November 2003 he was taken to the nearby police station and placed in an interview room. There he received a visit from two FBI agents, Mr Mamula and Mr Ammerman. His Honour heard evidence from Kwon, Mamula, Ammerman and an ASIO officer who was referred to as AO1. His Honour's findings may be summarised thus.
159 On 5 November 2003 the ASIO officer gave an officer of the FBI a photograph of Brigitte, as part of a briefing to try to find out what the FBI knew about Lashkar-e-Taiba or Brigitte. At that time ASIO suspected that Brigitte had been involved with Lashkar-e-Taiba. On 20 November 2003 an ASIO agent gave an FBI agent a photograph of Brigitte, a photograph of the accused and one photograph of another person. The photographs were handed over with the intention of gaining access to Kwon and another man in order to interview them. The ASIO officer told his correspondent that he would if possible ask Kwon and the other man if he could identify anybody in the photographs. He took the photographs to the meeting in the interests of accurate intelligence and not to preserve any subsequent police activity. He did not tell the FBI agent not to show the photographs to anybody before ASIO came to the interview. On 26 November 2003 Ammerman was in the interview room with Kwon and his solicitor before anyone from ASIO spoke to him. He showed Kwon four photographs, one of Brigitte, two of the appellant and one of the appellant's brother. Kwon recognised the person in the first photograph as the man Salahudin, someone he knew from his attendance at the training camp. Agent Ammerman left the interview room and met the ASIO officer. He brought him back to the interview room and an interview took place. The ASIO officer showed Kwon a folder containing twelve photographs, some described as passport-type and others of people taken in public places. Some were in colour and some in black and white. Each photograph showed one man. One of the colour photographs was of Brigitte. There were two photographs of the appellant. He showed Kwon the photographs one at a time and invited him to say whether he could recognise any of the people shown in them. The only person Kwon recognised was the person he named as Salahudin. As he did so, Kwon told the ASIO officer that that was the French person he had told him about.
160 There existed at the time a document called Legal Handbook for Special Agents, issued to FBI agents, which contained guidelines about the procedures that should be adopted when showing photographs of suspects to witnesses. His Honour accepted the evidence of agents Mamula and Ammerman to the effect that when they showed the photographs to Kwon they were not investigating the possible involvement of a person in a crime. That, his Honour was satisfied, was a precondition to the application of the guidelines. His Honour was satisfied, on the evidence of Agent Ammerman, that what they were doing was more in the context of assistance to a friendly foreign nation. His Honour was satisfied that the American agency was making Kwon available to ASIO so that it could ask him whether he could identify any person he had trained with in 2001 in Pakistan. Although the approach was unusual, showing photographs to Kwon before the arrival of the ASIO officer, his Honour accepted that what Ammerman was doing was essentially assisting the Australian government in an intelligence gathering operation. Although the information obtained might have been of some interest to the FBI itself, that was not the purpose of the operation. As the agents were not investigating the possible involvement of any persons in the photograph in a crime, the guidelines did not apply. The opinion of either of the agents whether they did apply (one thought they did, the other not) was irrelevant.
161 Mr Boulten submitted to his Honour that if the evidence was not obtained in contravention of FBI guidelines or of any Australian law, it was improperly obtained, so s138 applied. No authority could be cited supporting that application. His Honour held that there was no impropriety. His Honour referred to the judgments of Adams J in Director of Public Prosecutions v Coe [2003] NSWSC 363 and of Howie J in Regina v Richard Bruce Cornwell, 20 February 2003, unreported.
162 Having found that there was no impropriety and no illegality, his Honour, for more abundant caution, went on to make the kinds of findings s138 would have required. He considered the probative value of the evidence reasonably high and the evidence important to the Crown case, being the only evidence that directly placed Brigitte in a Lashkar-e-Taiba training camp. The offences charged were very serious and carried significant penalties. If the procedures adopted breached FBI guidelines or were otherwise improper, the breaches or improprieties were not deliberate or reckless, but done as part of the process of sharing intelligence with a friendly foreign country. Nothing happened in either the first interview with the FBI agents or with the subsequent interview with the ASIO officer that suggested to Kwon that he should or was bound to identify any particular person to be shown to him. The actions of Agent Ammerman were not designed to be unfair. On the contrary, his Honour considered his procedure appropriate.
163 His Honour went on to consider whether the evidence should be excluded under s137. The Evidence Act 1995 has nothing to say about evidence of identification of any person other than a defendant. Mr Boulten relied on the Common Law position as set forth in a passage of the judgment of Gibbs CJ in Alexander v The Queen (1979-1980) 145 CLR 395 at 400, dealing with unfairness in the process of identification of an accused person by photograph shown by the police. His Honour observed, however, that there were important distinctions to be made. First, Gibbs CJ was, strictly speaking, dealing with identification, not recognition, evidence, that is evidence about a person not previously known to the witness. Secondly, his Honour was dealing with the identification of a person accused of a crime, rather than, as in the present case, with the recognition of a third party. Thirdly, his Honour did not deny the need to weigh and compare probative value and the risk of unfair prejudice.
164 Whealy J proceeded to make that comparison. His Honour rehearsed the long period of time, somewhere between three and four weeks, during which Kwon and Salahudin had been in each other's presence, training together, sleeping in the same dormitory, participating in daily religious sessions, and the like. After their training was over, they travelled together to Lahore and then to the place where they waited. They travelled in the same vehicle and stayed in the same premises. They stayed there for about three weeks. They spoke to one another during travel and during their stay as they waited. His Honour observed that this was no idle acquaintanceship but one in which a reasonably strong bond would have been forged. There was the nature of the training itself, including its ideological and religious basis, which would have cemented the relationship. His Honour considered it significant that Kwon had immediately identified, that is, recognised, the photograph of the man he knew as Salahudin.
165 His Honour acknowledged the attack Mr Boulten had made upon Kwon's credibility. He had demonstrated that in cross-examination Kwon had not always told the whole truth when giving evidence. His Honour considered that such matters could not lead to the exclusion of the evidence but were for the jury to consider. His Honour noted that there was no indication to Kwon that he had to identify the photograph of Brigitte. His Honour rejected a submission that there was any significance in the fact that the FBI agents had not made notes of the conference proceedings. His Honour rejected the submission that the proceedings in which the ASIO officer showed Kwon twelve photographs was "a complete sham".
166 His Honour concluded that evidence of both identifications was relevant and of "quite high probative value". His Honour did not consider that the unusual features he had identified affected the value of the evidence of recognition by Kwon of Salahudin so as to reduce its probative value significantly. His Honour considered that there was no likelihood that the jury might misuse the evidence, given suitable directions. His Honour expressed himself satisfied that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant.
167 In this Court Mr Boulten pointed to some of the requirements of ss3ZO and 3ZP Crimes Act 1914 (Commonwealth), which prescribe procedures that police constables must follow. If constables show photographs to a witness to obtain evidence of identification of a suspect they must show photographs of at least nine different persons. Each photograph not of the suspect must be of a person who resembles the suspect in age and general appearance and lacks features markedly different from those described by the witness before looking at the photographs. The photographs must not appear to be of persons in police custody. Police constables should not suggest to a witness that a particular photograph is of the suspect. The witness must be told that there may be no photograph of the suspect among those being shown. Constables must keep records identifying each photograph shown to the witness.
168 Mr Boulten pointed also to the FBI guidelines, which provide that except where it is impracticable a suspect's photograph shown should be in a group of at least five other photographs. There should be a reasonable attempt in using photographs of persons other than the suspect to see that they resemble the suspect. The prints of the several photographs should not be dissimilar. Photographs should not indicate that persons shown in them are guilty of criminal misconduct. If "mug shots" are the only photographs available, number boards should be masked.
169 Of course, none of these requirements applied to the procedure in which Kwon identified a photograph of the man Salahudin in the presence of the ASIO agent. He was not a constable. The person he was trying to identify was not a suspect. The FBI guidelines did not apply either because, as his Honour concluded, the agents were not trying to identify a suspect. They were not conducting a criminal investigation at all, but assisting a friendly foreign nation. Even so, Mr Boulten called these provisions in aid as indicating the sorts of measures that should be employed to ensure that any important identification by photograph is carried out in a way that avoids the difficulties inherent in such a process, so as to tend to produce a reliable result. Ultimately the submission was that the probative value of the evidence of identification of the photograph of Brigitte was unreliable because of the circumstances in which it had been made, first in the presence of the two FBI agents and then in the presence of them and the ASIO agent.
170 Mr Boulten cited a number of United States cases on the guidelines and drew attention to the small number of photographs shown by the FBI agents - four photographs of three people. Mr Boulten referred to R v Dwyer [1925] 2 KB 799 and to the need for caution where the evidence is that only one photograph was shown. It was submitted that his Honour failed to consider the difficulties inherent in the procedures employed by the FBI agents, which were apt to produce unreliable results because Kwon, who was prepared to tell lies when it suited him, was placed in a position in which he was likely to tell a lie. He was obliged to give assistance to the FBI. The consequences of not doing so would be grave. Kwon was likely to believe that at least one of the three men shown in the photographs was a suspect and that the agents wanted the assistance of evidence against that man. He was therefore likely to say what he thought the agents might like to hear.
171 In deciding whether to include the evidence, his Honour said this -
Mr Boulten SC relied in particular on a passage in the judgment of Gibbs CJ in Alexander's case (1981) 145 CLR 395 at 400. I have set this out in my earlier judgment and there is no need to repeat it here. But, in my view, there are a number of important distinctions to be made. First, Gibbs CJ was, strictly speaking, dealing with identification rather than recognition of a person known to the witness. Secondly, he was dealing with the identification of a person accused of committing a crime rather than, as here, with the recognition of a third party. Thirdly, Gibbs CJ did not deny the existence of and the need to exercise a weighing exercise of probative value on the one hand, and the risk of unfair prejudice on the other. This exercise requires an evaluation of the circumstances.
In those circumstances, I turn to consider issues related to the probative value of both "identifications" and considerations as to the risk of unfair prejudice to the accused in the trial. Although the question of the probative value of evidence is generally a matter for the jury, the present exercise requires the Court to determine whether the probative value of the evidence is or is not outweighed by the danger of unfair prejudice to the defendant.
At the outset, it is important, indeed critical, to note that there was a relatively extensive relationship between the man Kwon and Salahudin. Kwon said he first met Salahudin when the latter joined the early stages of phase 2 training at the LeT camp (T 965 line 35 and following). Salahudin remained in the group for the balance of the training period. This would indicate that the two men trained together for a period of somewhere between three and four weeks. During that period, Kwon trained with Salahudin every day (T 965 lines 50-55); he spoke to him on a daily basis (T 966 line 8) and slept in the same dormitory each night (T 965 line 57). In addition, Mr Kwon said he observed Salahudin participating in daily religious sessions (T 966 line 20 and following).
When their training was completed, the group (including Kwon and Salahudin) left the training camp. They travelled back to the LeT office in Lahore and then went on to Muridke. During the course of these travels, Kwon travelled in the same vehicle as Salahudin and stayed in the same premises in Muridke (T 967 line 45). They stayed at these premises for a period of approximately three weeks. They conserved in the course of travelling and during their stay at Muridke.
It seems to me that it is inescapable to conclude other than that Kwon and Salahudin were in close to proximity to one another for a reasonable extensive period of time and in circumstances where Kwon was likely to have become quite familiar with Salahudibn both as to his appearance and general characteristics. This was no idle acquaintanceship but one in which a reasonably strong bond would have been forged between the two men. The very nature of the training itself, including its ideological and religious basis, would have cemented the relationship.
The second matter that I consider of significance is that Kwon identified Salahudin immediately he was shown the four photographs by the FBI Agents. Similarly, when he was shown 12 photographs by the ASIO officer, he had not the slightest difficulty in making the recognition of the man he had met at the training camp. He recognised him "immediately" (T971 line 25). By contract, he did not recognise any of the others.
I am conscious of the fact that Mr Boulten SC has made a significant attack upon the credibility and reliability of the witness Kwon. He described these features as "worrying". The particular matters stressed were -
(a) The witness was not always truthful.
(b) The witness was often quite deceptive and admittedly so.
(c) Overtime, he had provided "incremental admissions" to the FBI. He "bluffed it out" for a period of time by denying things and inventing situations, which were to his knowledge untrue. He would only admit a fact if he thought that FBI knew about it. This manner of providing information continued will into his relationship with the FBI.
(d) The witness was shown photos by the FBI from time to time. He was prepared to do what the FBI told him to do, including telling lies in the phone in an endeavour to "trap" his co-defendants.
(e) The witness had at all times up to and including late 2003 a powerful motive to tell the FBI what they wanted to hear - this connotes "an extraordinary degree of suggestibility" to tell the FBI what they want to hear.
Mr Boulten SC connects these assertions, a number of which are undoubtedly correct, to make a forceful submission that the identification of Salahudin in the photos shown by the FBI agents was of no value whatsoever. Showing one photo to Kwon was very suggestive of the result the agents wanted to receive especially where the relationship between the witness and the FBI was of "a special kind". In other words, Mr Boulten submitted that the witness was "unduly responsive to signals".
My view is that, while these matters are obviously of great significance in relation to the issue of credibility and reliability of the witness, they ought not and cannot lead to the exclusion of the evidence. I have examined this aspect of the matter in my previous decision and I remain of the view that merely because a witness appears to be lacking in credibility or unreliable, even to a large extent, is no basis for the trial judge to exclude the evidence. Issues such as the credibility and reliability of a witness are, subject to appropriate directions being given, matters entirely for the jury. For this reason essentially, I am unable to accept Mr Boulten's submissions on this point.
172 On appeal, Mr Boulten attacked his Honour's conclusion that the question whether Kwon was to be believed was one exclusively for the jury and incapable to leading to the rejection of the evidence.
173 In my opinion the attack fails. The submissions at trial and in this Court attempted to run together, as though they could potentiate one another in the mind of the trial judge, two disparate criticisms of the evidence. The first related to the risk that an honest witness who identifies someone may be mistaken. It is in recognition of that risk that the courts urge caution in assessing identification evidence. That has nothing to do with the second criticism, namely the risk that a witness may deliberately lie because of some perceived obligation to assist the authorities.
174 The manner in which photographs are put before an honest witness is important because of the need to prevent honest mistakes. So guidelines and, sometimes, statutes deal with the quality and quantity of photographs to be shown and the circumstances in which they are shown. So there is a general requirement that witnesses be told not to make assumptions about the photographs. So a process may properly be criticised, as it was here, by reference to the small number of photographs shown and to the fact that Kwon was not told that they might not include anyone he might recognise. The process was capable of criticism, too, because no attempt appears to be made to have Kwon record a description of Salahudin before he was shown any photograph. But it was not open to extend that legitimate criticism by eliding questions about Kwon's credibility. The attempt to do so was made in the face of the Court's judgment in R v Shamouil [2006] NSWCCA 112, a fact Mr Boulten acknowledged. In that case Spigelman CJ reviewed the pre-Evidence Act and post-Evidence Act cases on the question whether assessment of the probative value of evidence required consideration of its reliability. His Honour concluded that the test for rationality was concerned with what it was open for the Tribunal of fact to conclude, not with what it was likely to conclude: judgment at [48] - [68]. The other members of the Court agreed.
175 Mr Boulten made two submissions about R v Shamouil. First, it was submitted that this was one of the exceptional cases spoken of in which it was simply not open to the jury to give weight to the evidence: see the judgment of Spigelman CJ at [56], referring to the judgment of Simpson J in R v Cook [2004] NSWCCA 52 at [43].
176 In my opinion this is not a case in which his Honour was bound to weigh the credit of Kwon, much less to conclude that it was incapable of belief. The questions of the credit of Kwon and the dangers associated with identification by photograph were not "inextricably entwined", to use Simpson J's words. His Honour would have usurped the jury's function if he had assessed the credibility of Kwon.
177 Mr Boulten's alternative submission was that this Court should not follow R v Shamouil because it was wrong. No authority was put before the Court that was not considered in Shamouil itself. In my respectful opinion the judgment was right. This Court should follow it.
178 In assessing the probative value of the evidence his Honour said this -
The evidence of Mr Kwon in relation to his recognition of the man Salahudin both to the FBI agents and to the ASIO officer appear to me to possess a high degree of probative value. This is because of the relationship between the two men and the fact that the witness purported to recognise a person he had trained with over a reasonably substantial period of time. I do not accept that the matters that transpired between Agent Ammerman and Kwon in the pre-interview indicate that any suggestion was made to Kwon that he had to identify the photo of Willie Brigitte. While it is true that no record was kept of what was said at this meeting either by Ammerman or by Kwon, I consider that I am entitled to infer that he was simply asked whether he recognised any of the people in the four photos he was shown. While it is true also that Kwon himself has no recollection of having seen these photographs, he readily accepted that he may well have seen them. Moreover, his recall of recognising Salahudin's photograph when it was shown to him by the ASIO officer is at least consistent with the earlier recognition, even though he does not recall it.
In this context, I do not accept Mr Boulten's further submission that what happened in the interview room when the ASIO officer produced the 12 photographs was "a complete sham". Since the earlier process during the pre-interview required the witness to recognise a person he knew reasonably well, the subsequent recognition falls into the same category. I accept that it was hardly a surprising result and this may be pointed out to the jury in relation to any directions that need to be given. It is of course possible that Kwon was mistaken when he recognised the person in the photo as Salahudin. It is possible there was some degree of displacement although I do not consider the evidence placed this possibility particularly high. If one acts on the assumption that Kwon was acting truthfully and in accordance with his own memory then the sting in the submission is much less. On the other hand, if the jury were to take the view that the witness is not truthful and that he was acting at the suggestion of the FBI agents, they would give little weight to his purported of recognition. Appropriate directions, in my view, will enable the jury to neither over estimate the identification nor under estimate the matters, which Mr Boulten says, weaken the probative of the evidence.
It must be stressed that recognition of a person known to a witness does not fall into an absolute category. The extent of the relationship and the depth of the knowledge of a person will vary from one relationship to another. In that context, I accept that the directions may be given to a jury, which, in an appropriate case, will highlight to the jury that there are dangers even where the situation is one of recognition rather than identification of a stranger. (See R v Bentley (1991) Crim LR 620 per Lord Lane CJ at 621). But the distinction between recognition and identification is one that has a particular relevance in the factual situation arising in the present matter.
I consider that the evidence of both identifications plainly is relevant and of quite high probative value. Notwithstanding the unusual features that have been revealed by the evidence, I do not think that these affect the value of the evidence of recognition by Kwon of Salahudin so as to reduce significantly that probative value. Whether the jury accept the evidence and regard it as either credible or reliable is another matter and not one upon which I can or should base an order for exclusion. The evidence is plainly closely connected with one of the principal issues in the proceedings although it is not the only evidence upon which the Crown relies. It can properly be taken into account in the context of the evidence as a whole ( R v Tugaga (1994) 74 A Crim R 190 at 196). Moreover, I do not think that there is any likelihood of the jury misusing the evidence and, subject to suitable directions, any risk that the jury might over value the identification or under estimate the capacity for mistake can be effectively dealt with. I am satisfied that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the defendant.