Knight v Brown [2004] ACTSC 35

3. Constable Brown gave evidence that Ms Connor had said that she had written down the number of the vehicle that the offender had got into (AB 36). The learned Magistrate said in her reasons that (AB 4) -

I'm satisfied from the evidence of Constable Brown, the informant, and that of Joanna O'Connor [sic], a waitress at Timmy's Kitchen at the time of the robbery, that the offender was seen to escape the scene of the incident in a white car and that the registration number of that car was YCG 27A.

4. This suggests that the Magistrate was of the view that Ms Connor had herself given evidence of seeing the offender escape into the identified vehicle. The respondent concedes that the learned Magistrate was in error here, as there was in fact no direct evidence of this, the evidence of Ms Connor being only that she wrote down what an unidentified, and unidentifiable person had said he had observed. Such evidence is clearly an unsafe basis for any conviction.

5. The real question then is whether the identification evidence was sufficient to support the conviction. In her reasons the learned Magistrate reminded herself of the dangers of identification evidence, and counsel for the appellant does not cavil with the form of the warning that she gave herself. She referred to the decision of Gray J in Johnson v Giumelli [2003] ACTSC 58 where his Honour reinforced the need for magistrates to provide such a warning, and cited the remarks of Shepherd J in Grbic v Pitkethly [1992] FCA 451; (1992) 110 ALR 577 where his Honour said at 588 -

In a case tried without a jury, the tribunal will not usually reject the evidence, but it will be faced with the question whether, in the light of the totality of the evidence, it can safely conclude that it has been established beyond reasonable doubt that the crime was committed by the accused. In reaching its conclusion, the tribunal must give itself the appropriate warnings of the dangers inherent in identification evidence in cases where the accused was not previously known to the witnesses. It then needs to consider those warnings and be sure that it has heeded them.

The common experience of criminal courts over the years has demonstrated that identification evidence, however honestly given, may turn out to be unreliable. There's been some notorious cases over the years in which completely honest evidence of identification has been demonstrated to be wrong.

Further, the reliability of an identification of a person depends upon the circumstance in which the person observed the person whom he has identified as the defendant. And any one of those circumstances I warn myself may possibly lead to error.

7. Mr Wodrow, for the appellant, contends that her Worship properly warned herself of the dangers of identification evidence, but did not properly apply that warning in respect of two factors that, he says, make this identification evidence very dangerous. The first is that it was the evidence of the victim that he was told by police that they had arrested a suspect, and that the suspect's photograph would be amongst those to be shown to him. The second, and more significant, is that although the victim made it clear that his most significant memory was of the offender's red hair, the photograph of the appellant was the only photograph in the photo identification process that could be said to be of a person with distinctive red hair.

8. The dangers of identification evidence are well known, and that is why rules have developed over the years to seek to ensure that the risks of inappropriate identification evidence leading to wrong convictions are minimised. As the learned authors of Cross on Evidence (D Byrne & JD Heydon, Cross on Evidence, Australian Edition) observe at [1345], it was firm identification evidence leading to a conviction that was later shown to have been clearly erroneous that lead to the establishment of the English Court of Criminal Appeal in 1907.

9. The victim of the offence said in his evidence that (AB 113) -

... Constable Brown, when he had a suspect, he said he'd gone to speak to him and pick him up. He then told me that the guy agreed to a photograph and the photograph was taken and then it was put on the video board.

10. To make this clear, he was asked in cross-examination -

So you knew that there was a suspect there on that board?

11. Constable Brown agreed that there was some conversation as he took the victim to look at the photo board, but said that he could not recall whether he had told the victim that the offender's photograph might be on the board (AB 79). I am satisfied from the victim's evidence that he had been told before he looked at the photo board that the police had picked up a suspect, and that the suspect's photograph was on the board.

12. This is clearly inappropriate, and indeed the video photo board process used by the Australian Federal Police makes it clear in a statement that is shown on the video before the first image appears that -

You should not conclude or guess that the video tape recording will contain an image of the person who has committed the crime.

The fact that the video tape recording is shown to you should not influence your judgement.

14. In Pitkin v R [1995] HCA 30; (1995) 130 ALR 35, the High Court (Deane, Toohey and McHugh JJ) said at 38 -

The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal identification. None the less, it is attended by some danger of consequential and unfair prejudice to an accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used ... Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders.

15. The danger of a crime victim perhaps assuming that a suspect may have been arrested and may be amongst the photographs that he or she is to be shown, is present in every case, and their Honours observed in Pitkin (at 38) -

wisdom and common sense should not be abandoned in dealing with photographic evidence.

16. Police procedures clearly require the victim to be advised that they should not assume that the photographs will contain that of a suspect, and that is clearly undermined when, as in this case, the victim is told by the investigating police officer that they have a suspect, that they have "picked him up", and that his photograph is going to be amongst those to be shown to the victim. There was clearly a heightened danger in this case that, because the victim had been told that there was a photograph of a suspect in custody on the board, he may have been influenced in his identification of the appellant.

17. Section 115 (2) of the Evidence Act 1995 (Cth) provides that -

Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest they are pictures of persons in police custody.

18. While this goes to the admissibility of the photographs, and is clearly designed to restrict the use by police of what are on their face "mug shots" (S Odgers, Uniform Evidence Law, 5th ed 2002 [1.3.9780]), the statutory exclusion is consistent with a common law rule that it is unsafe to rely on photographic identification evidence when the investigating police have advised the witness that a suspect has been "picked up" and that that person's photograph is included in the photo board.

19. There is, however, a much stronger criticism of the process of identification in this case. Mr Wodrow made the submission that the selection of images shown to the victim was such that only one photograph, that of the appellant, could be said to be of a person with distinctive red hair. It is clear that, in asking a crime victim to identify a person from either a line up or a photo board, it would be inappropriate and dangerous to have a selection of images, only one of which, being the suspect, bore any resemblance to the victim's description of the offender. In the course of this appeal Mr Lawton, for the respondent, agreed that, in the circumstances of the film and television series "The Fugitive" where the central character (later wrongly convicted) said that he saw a "one armed man" flee the scene of his wife's murder, it would be wrong for him to be shown by police a line up or photo board of several two armed persons, and only one man who had one arm. The unsubtle influence towards picking the only person who matched the description is obvious.

20. It was unclear from the transcript whether the video photo board image was ever shown in the proceedings below. It is apparent that there was some initial difficulty in obtaining it, but it was tendered. It was not among the exhibits contained in the appeal book but, following my request, it was tendered as exhibit 1, and counsel agreed that I should view it in chambers. I have done so and, it seems to me, that, of the nine images shown, only one man has strikingly bright red hair, being the image of the appellant. There is another man who could be said to have red or ginger hair, but the remaining men seem to have blond hair. In the circumstances of this case, where the victim's statement to the investigating police was that the attacker was a man with red hair, this seems to me to be so unfair as to put a grave cloud over the identification evidence. While there may be difficulties in arranging a line up of persons with the same hair colour and general age and type of the description of the offender, photo board identification gives police much greater scope to obtain images that are broadly of a type, and where red hair is the principal distinguishing characteristic, it seems to me that the victim should have been shown a photo board containing a series of images of red haired males, even if the hair colour was obtained by computer enhancement of original photographs.

21. A similar issue arose in Jesse David Blick [2000] NSWCCA 61, (2000) 111 A Crim R 326 where the victim of an armed robbery described the offender to police as having a goatee beard, and was then shown a photo board of 12 photographs, only one of which was a photograph of a man with a goatee beard, being the appellant. The Court of Appeal held at [28] (per Sheller JA, with whom James and Dowd JJ agreed) that this significantly prejudiced the appellant, saying -

... to show [the victim] a group of photographs in which only one was of a man with a goatee beard, when that was an identifying factor in [the victim's] mind, is, in my opinion, little better than showing him only one photograph, the photograph of the appellant. The prejudice to the appellant was both unfair and very considerable ...

22. It seems to me that the fact that the photo board identification process (exhibit 1) contained photographs of only two persons with what could be said to be red hair, and only one person, the appellant, with strikingly red hair, when red hair was the principal characteristic mentioned by the victim to the police, makes it unsafe and unsatisfactory to have relied on this evidence to reach a conclusion, beyond reasonable doubt, that the appellant was the offender.

23. I note that the distinctive nature of the appellant's hair was raised by counsel for the respondent in the court below, where she put to him that "you have some distinctive features, for instance your red hair" (AB 140).

24. It is common ground that the victim made notes as he was being shown the images, and that the note he made concerning the image of the appellant was "could be". When all the images were shown, he firmed up his view that the image was that of the attacker, and said that he was "sure" that it was the man, and that the other photographs "were not even close". However, given that many of the images were of men with quite different hair colour, it could be that he was unduly influenced in the direction of the photograph of the appellant.

25. A court should be particularly careful when a witness makes an initial cautious identification but later firms up that recollection. As Mason J observed in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 426 -

Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.

26. This is not to suggest anything other than total honesty on the part of the victim both in relation to his initial cautious identification and his later increasing certainty. The tendency to lock in the photographic image described by Mason J in the passage cited above from Alexander's case was well described in a passage cited by the authors of Cross on Evidence at [1355] from the work Proof of Guilt by GL Williams (3rd ed 1963) where he says -

When the witness is shown the photographs, he is likely to pick on the face that best accords with his recollection of the culprit. Thereafter, his recollection of the culprit and recollection of the photograph are likely to be so merged that he can no longer separate them, even though in fact his identification was mistaken. Psychological tests show that if he thereafter sees the real criminal, he may no longer be able to recognise him as the person he saw previously, the sight of the photograph and efforts at recall having distorted his memory.

27. It is common ground that the photograph of the appellant shown to the victim is of a man with shortish red hair and clean-shaven, as indeed were all the other photographs. It will be recalled that his original description was of a man with shoulder length hair and a beard. True it is, as the learned Magistrate observed, that a person can cut his or her hair and shave his beard, but the fact that the victim identified the appellant absent the distinguishing features that he had first noted, save for the red hair, is further cause for caution in addressing the reliability of the identification evidence.

28. The appellant gave evidence that he had never had shoulder length hair, and that he had cut his hair by way of a trim only after he had been arrested for this offence (AB 130). He said that he had a goatee beard by way of some hair under his lip "last Christmas". In his evidence below, the victim described the offender as having "a beard right under the chin" (AB 109). There was no additional crown evidence showing that the appellant had cut his hair or beard between the date of the offence and the date of the photograph, when his hair was quite short and he was clean-shaven, or that he had ever had a beard as described by the victim.

29. It seems to me that in this case the evidence of identification was tainted by two fundamental errors, being that the victim was told by police that he was to see photographs that would include a photograph of the police suspect who had been "picked up", and that the selection of photographs shown to him contained only two of persons who could be said to be red headed, that being his primary description of the offender, with only one photograph being of a person with striking red hair. It is not clear that the full video of the photo board was shown before the Magistrate, but it was an exhibit before me and, having viewed it, I have considerable disquiet as to the safety of the conviction. It seems to me that these two errors have so contaminated the visual identification that it would be unsafe and unsatisfactory to allow the conviction to stand. Although the learned Magistrate took some comfort from what she believed to be identification of the offender escaping the scene in an identified vehicle, it was conceded that the evidence was not as strong as that, and indeed depended on a description obtained by Ms Connor of what another person said was a car registration number.

30. It seems to me that, given the appellant's criminal history and the nature of the offence, the sentence imposed by the Magistrate was appropriately within range. If I had been satisfied that the conviction was sound, I would not have interfered with the sentence in accordance with the principles of House v The King [1936] HCA 40; (1936) 55 CLR 499.

31. I order that the appeal be upheld and the Magistrate's order convicting the appellant be set aside.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the respondent: ACT Director of Public Prosecutions