Ground one - admissibility of the evidence of identity
38 Ground one of the notice of appeal complains that the learned trial judge erred in admitting into evidence the in-court, or dock, identifications made by Mrs Meacham and Mr Losanno. It was submitted that his Honour ought to have excluded this evidence, pursuant to s 137 of the Evidence Act, because its probative value was outweighed by the danger of unfair prejudice to the appellant.
39 The appellant submitted that Mrs Meacham's state of mind was so uncertain when she picked him out from among the photographic images shown to her at the Weston Police Complex that it could scarcely be said that she had identified him at all. Her first real act of identification did not take place until she saw the appellant at the committal hearing. Any identification made in such circumstances was virtually worthless. It was submitted that had the evidence of what occurred at the Weston Police Complex been excluded, there would have been no basis upon which Mrs Meacham could properly have made a dock identification. Although the evidence of her out-of-court identification was now acknowledged to have been admissible, it was of so little probative value that the trial judge should have disregarded it when considering whether to permit her to make a dock identification.
40 As far as Mr Losanno was concerned, it was conceded that he had been far more confident than Mrs Meacham when he identified the appellant during the video photoboard procedure at the Weston Police Complex. It was submitted, nonetheless, that Mr Losanno too had entertained significant doubts about the accuracy of his identification at that stage. It was submitted that Mr Losanno's evidence in that regard was of so little probative value that it too ought to have been disregarded by the learned trial judge when considering whether to permit him to make a dock identification. It was further submitted that the dock identification was extraordinarily prejudicial to the appellant because Mr Losanno had "firmed up" his belief that the appellant was the male robber to the point that he now expressed that belief as being "100 per cent certain".
41 It is important to note that the appellant did not contend before this Court that the out-of-court identifications made by Mrs Meacham and Mr Losanno were inadmissible. There was no challenge to the learned trial judge's ruling that neither s 114 nor s 115 of the Evidence Act required that their evidence of what occurred at the Weston Police Complex be excluded. Nor did the appellant contend before us that the probative value of these out-of-court identifications was outweighed by the danger of unfair prejudice to the appellant. The only submission made was that notwithstanding that these out-of-court identifications were admissible, and were properly received in evidence, the dock identifications should not have been permitted.
42 The principles which govern the admissibility of evidence of identity are well established. At common law the position is reflected in the following passage from the judgment of the High Court in Davies & Cody v R (1937) 57 CLR 170 at 182:
"We think the view accepted in England, and, as far as we know, elsewhere in the Dominions where the provisions of the Criminal Appeal Act have been adopted, should be applied in Victoria. That view, as we understand it, is that, if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial."
43 The dangers of a dock identification have been emphasised on many occasions. It is wrong to isolate the accused or suspect by indicating to the witness that the accused is suspected or charged - Alexander v R (1981) 145 CLR 395 at 399-400 per Gibbs CJ; and R v Burchielli [1981] VR 611 at 621.
44 There can be no doubt that it is unsatisfactory for the accused to be first identified in the dock - Alexander at 399 per Gibbs CJ. If the identifying witness has no prior knowledge of the accused, a dock identification has little probative value because at the trial "circumstances conspire to compel the witness to identify the accused in the dock" - Alexander at 427 per Mason J. Evidence of identification which is limited to "in-court" identification is particularly unreliable, and is usually not sufficient to sustain a conviction - Gbric v Pitkethly (1992) 38 FCR 95.
45 Normally witnesses are asked to identify an accused at the earliest possible opportunity after the events. Evidence is then tendered of that act of identification, generally by the person making it, and by persons who saw it being made. Once evidence has been led of the out-of-court identification, a dock identification is then usually permitted although it is understood that the primary evidence of identification which is relied upon is the out-of-court identification, not that which occurs in court.
46 In R v Britten (1988) 51 SASR 567 King CJ said at 572:
"It is not to be thought that because courts have stated that dock identification is of little value where the accused is not previously known to the witness, the witness should therefore not be asked whether he can see the person concerned in court. This should be done in every case depending upon identification notwithstanding that the evidence principally relied upon by the prosecution is the out of court identification."
47 To the same effect are the observations of the South Australian Court of Criminal Appeal in R v Gorham (1997) 68 SASR 505 at 508.
48 Britten was a case where there had been an earlier out-of-court identification. However, there have been cases in recent times where a dock identification has been permitted notwithstanding that no prior out-of-court identification took place. Where such evidence has been led, without objection, it has been held that this does not necessarily amount to a miscarriage of justice. Nor does it necessarily in itself render a conviction unsafe or unsatisfactory - R v Saxon [1998] 1 VR 503 at 513.
49 In R v Demeter [1995] 2 Qd R 626 at 629 Pincus JA (with whom on this point McKenzie J agreed) held that an offender may be identified in such a way as to raise a strong prima facie case for the Crown without an out-of-court identification. It may be open to a trial judge to permit a dock identification to be made in such circumstances. Where an identification of that type is permitted, however, there must of course be appropriate warnings given to the jury.
50 In R v Clark (1996) 91 A Crim R 46 at 52 Cox J (with whom Perry and Lander JJ agreed) observed that there is no rule preventing identification of the accused in the dock, although, in many cases, the probative value of such an identification may be low.
51 It is not necessary, in the present case, for us to express a concluded view as to whether it is ever appropriate for a trial judge to permit a dock identification to be made where that dock identification is not preceded by an out-of-court identification. Whatever uncertainty there may have been in the minds of Mrs Meacham and Mr Losanno in their out-of-court identifications, the fact remains that each of these witnesses picked the appellant out as the male robber from a collection of photographs of individuals who were, broadly speaking, similar in appearance. That alone serves to make their dock identifications supplementary to their out-of-court identifications, and at least in the present case, not unfair.
52 Sometimes photographs or films of the offenders taken during the commission of an offence may be shown to a witness, and form the basis of an out-of-court identification. Where it is not possible to arrange for an identification parade, a series of photographs may be used in order to see whether an identification is possible. When this last method is employed, it is desirable that every precaution should be taken against informing the jury that the witness' identification of the accused before trial has been made possible by means of a photograph in the possession of the police. This would indicate to the jury that the accused has a criminal record. The dangers associated with that course are sometimes described in colloquial terms as the "rogues gallery" effect - Alexander at 409 per Stephen J.
53 There is no suggestion that the photographs shown to Mrs Meacham and Mr Losanno were what are known colloquially as "mug shots". Of course the mere fact that the police had a photo of the appellant in their possession when the video photoboard process was conducted carried with it some risk that the jury might speculate as to how that had occurred. It does not follow from this that the out-of-court evidence of identification ought to have been excluded.
54 There is also a risk that a witness may unconsciously substitute the clear impression gained by looking at a photograph for the perhaps hazy recollection of the face he or she is trying to recall, and a subsequent identification of the accused may be really the result of a mental comparison with the photograph instead of with the living person. This is known as the "displacement effect" - see Alexander at 410 per Stephen J; R v Clune [1982] VR 1 at 7-8; and R v Carusi (1997) 92 A Crim R 52 at 55. Any dock identification which is preceded by an identification parade or a photographic identification is prone to this danger.
55 In Alexander at 400 Gibbs CJ stressed that only in exceptional cases should photographs be used at a stage when some particular person is suspected by the police and they are able to arrange an identification parade or some satisfactory alternative means whereby the witness can be asked directly to identify the suspected person. That common law principle is also reflected, to a considerable degree, in s 115 of the Evidence Act.
56 Where evidence as to identification represents any significant part of the proof of guilt of an offence the trial judge must warn the jury as to the dangers of convicting on such evidence if its reliability is disputed - Domican v R (1992) 173 CLR 555 at 561-2.
57 The appellant did not contend before us that there was anything unfair about the process of identification adopted by the police at the Weston Police Complex. It was accepted that there was no impropriety on the part of the police in the manner in which the video photoboard procedure was conducted. No complaint was made that the particular photographs which were shown to Mrs Meacham and Mr Losanno were in any way inappropriate to be used for the purpose of making an identification. It was accepted that the learned trial judge warned the jury, in accordance with the law as stated in Domican, regarding the dangers of dock identification evidence.
58 The appellant's complaint was rather that the out-of-court identification evidence of Mrs Meacham and Mr Losanno was of such little probative value that it provided no proper basis for the making of a dock identification. The prejudice to the appellant was said to be compounded by the fact that both of these witnesses "firmed up" their earlier identifications when they identified the appellant in court. It was submitted that the jury could not realistically be expected to appreciate just how unreliable evidence in this form really was.
59 We are unable to accept the appellant's submission that in permitting Mrs Meacham and Mr Losanno each to make a dock identification the learned trial judge's discretion somehow miscarried. His Honour gave careful consideration to all of the matters which, pursuant to s 137 of the Evidence Act, he was required to take into account. He concluded that the probative value of this evidence, when taken together with the other evidence which pointed to the appellant as the male robber, was sufficient to outweigh any unfair prejudice. All that was required was that an appropriately worded warning be given to the jury as to the dangers of a dock identification. That warning was duly delivered. In our opinion it was open to his Honour to have admitted the evidence. We are not persuaded that he erred in doing so.