R v Akgul [2002] VSCA 222

59. The present case calls for no extensive analysis of the authorities concerning the obligations of a trial judge when dealing with identification evidence. Obviously the identification of the applicant by Mr West was relevant and prima facie admissible in the trial. It is sufficient to state that in common with any other form of evidence that the prosecution propose to adduce in a criminal trial, it can be excluded in the exercise of discretion when its prejudicial value can be seen to outweigh its probative value.[1] When it is admitted:

"the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue. Whatever the defence and however the case is conducted, where evidence is to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."[2] (Footnotes omitted.)

Accordingly, it is necessary to refer to the circumstances under which that identification was made by Mr West and the instructions given by the trial judge to the jury with respect to it.

64. With regard to the former aspect, the applicant attended at the County Court on 16 October 2001, his trial being listed for hearing on that day. According to the transcript which recorded a subsequent application made for a discharge of the jury, he was seated in the corridor outside the courtroom with his counsel when he was observed by the witness Mr West. The witness then indicated to the prosecutor that he recognized the applicant as the driver of the car. He said that, in consequence, the prosecutor approached the member of counsel then appearing for the applicant and uttered words to the effect that "This gentlemen has just identified your client." Immediately upon the matter being called on for hearing, the applicant's counsel raised this matter with the judge, who responded that in that situation a Basha[3] inquiry would be necessary. The applicant's counsel requested that a statement be taken from the witness as soon as possible. That was done and it then emerged that the witness claimed also to have identified the applicant at the committal hearing, but to have said nothing about it at the time.

67. Evidence was then given by the witness on the voir dire. The prosecutor simply requested him to identify and adopt the statement. In cross-examination Mr West stated that he had seen the applicant seated behind his legal representative at the committal hearing and afterwards leaving the building in the lift with a person that he presumed was his barrister. He saw the applicant again outside the court in the circumstances earlier mentioned and, as I interpret his evidence, on each occasion he recognized him as the driver of the car on the night in question.

70. Counsel for the applicant then submitted that the evidence of the identification of his client by the witness should be excluded from the trial on the basis that its prejudicial value outweighed its probative value and that its admission would be unfair in the circumstances. He was centrally concerned about the fact that, when responding to the prosecutor's opening before the jury only a short time before, he had pointed out to them that there was no identification of his client as the driver of the vehicle. He submitted that there would be potential unfairness to his client should the matter proceed before the same jury in that situation, stating that an "embarrassing" position had resulted. The trial judge considered that there was force in this argument, remarking in the course of discussion that the witness was "obviously a strong witness", and that "he is quite adamant".

73. There can be little doubt that, from the perspective of all of those present in the court at that stage, the evidence of Mr West was perceived as being extremely significant. In his ruling on the application made by counsel for the applicant that the jury be discharged, the trial judge stated:

"It is this court's clear view that in the interests of justice the evidence of Mr West as to the identification of the accused as being the person who was driving the car on the highway should be admitted into evidence."

In consequence and by reason of his acceptance of the argument of counsel with respect to the possible unfairness which could result should the trial continue, the judge discharged the jury and a new jury was empanelled.

78. Surprisingly, no attention whatever appears to have been given by the judge or either of the counsel to the potential dangers involved in the reception of evidence of identification[4] made or recognition effected in the precincts of the court. On the occasion at which the first identification was made, the applicant's position as the accused person was apparent to the witness, who had previously seen him in a video line up. Further observation of the same individual in the foyer of the County Court could well have confirmed in the witness's mind his identity as the person observed in St Kilda Road. However, as I have mentioned, none of this was the subject of any discussion at the stage to which I am referring. The failure of the judge to consider any of these features was unfortunate. Whilst I am unpersuaded that the proper exercise of discretion necessarily required the exclusion of the evidence, there were clearly serious questions to be determined at this level to which no attention was given.

81. When the trial recommenced, the witness was called and gave evidence of his identification of the applicant. Although the prosecutor had earlier indicated that he would address the circumstances surrounding that identification, he asked only the following questions:

"Could you see his face?---Yes, I could. Do you recognize that man?---Sorry? Do you recognize that man?---Yes I do. Where is he?---Seated at the rear of the court. Identifies the accused Your Honour."

To approach the matter in that fashion and without eliciting any of the relevant detail so that the reliability of the evidence might be assessed by the jury was, in my view, quite unsatisfactory. It was, as McHugh, J. pointed out in Festa v. The Queen [5] incumbent upon the prosecutor to go much further.

86. At the completion of the evidence-in-chief of the witness, counsel complained that the approach of the prosecutor was not fair. Being asked by the judge whether he had an objection that should be discussed in the absence of the jury, counsel responded "No, I'd rather do it myself now given my learned friend doesn't want to." He proceeded to cross-examine the witness concerning the circumstances of his identification.

89. It seems likely that counsel adopted the view that there was greater forensic advantage to be obtained if he elicited the evidence of the circumstances under which the evidence emerged himself rather than having that task performed by the prosecutor. I do not consider that there is any need to address the wisdom of this course from the perspective of counsel, about which different views could be held. However, I am strongly of the opinion that the trial judge should never have permitted the matter to proceed on that basis.

92. The courts have long since recognized that there are serious risks of injustice invoked in the admission of identification evidence. For that reason the view has been taken that it is the responsibility of a trial judge to isolate and identify in the charge the possible weaknesses in such evidence, drawing them to the attention of the jury with the full weight of the judicial office. This, however, does not mean that the judge has no responsibility with respect to such evidence prior to that stage of the proceeding. Sometimes it may not become clear what difficulties may exist until a late stage of the trial. In the present case, however, the judge had been informed at a very early point of the presence of factors which were capable of impacting heavily upon the reliability of the evidence. The prosecutor had indicated that he would address the circumstances under which the identification was made, and the judge should have required him to do so. It is difficult to avoid the impression that his Honour had simply not directed his mind to the special problems posed by courthouse identification evidence and missed the significance of what was occurring.

95. Be that as it may, the witness agreed in cross-examination that he had not identified the applicant in a video line up conducted some six to eight weeks after the incident. Although only the heads and shoulders of the 12 persons shown in the video recording were visible, he accepted that he had had a "very good look" at that portion of the body of the individual driving the car. He said that he understood, when he went to the committal hearing, that someone had been charged. He assumed that this was the applicant, who he saw seated behind his lawyer. He accepted that the defence lawyer, at the committal hearing, cross-examined him about his observations and that he had confirmed that he had not been able to identify anyone shown in the video recording. Mr West said that he had recognized the applicant as he sat in the court, but did not mention this at the time as he was not asked to do so. He did not speak of this purported identification to anyone until the morning of the trial and in the circumstances earlier indicated.

98. The evidence of the identification of the applicant given by this witness presented more than one problem. There was, for example, the possibility of a displacement effect connected with the conduct of a video identification process prior to his observation of the applicant at the committal hearing to be considered. And, of course, the problems related to what could be generally described as two courthouse identifications also needed to be addressed.

101. It is not clear from the transcript to what counsel for the applicant was referring when he invited the trial judge to incorporate in his charge "something" in relation to the displacement effect. The judge did, however, advert to this aspect when providing instructions to the jury which, although brief, were generally in accordance with well-recognized principles. He approached the matter as follows:

"The Crown here seeks that you find that Mr Akgul was driving his car in St Kilda Road at the relevant time with Mrs Thalumphuk in the boot of the car and that from this fact, you should infer that the accused man Ali Akgul was the person who committed the offences against Mrs Thalumphuk earlier that evening at Moorabbin. So you can see that in this situation, where the Crown's case to some extent depends on the correctness of one or more identifications that are made in St Kilda Road, which identification the accused man says, 'Look, that's mistaken, it wasn't me'. Because of this issue of identification, I am required to warn you of the special need for caution before convicting the accused on reliance solely on the evidence of identification. I give you this warning because it is possible for an honest witness to make a mistake in identification. If that were to happen, an innocent person could wrongly be convicted. So you as the jury should carefully examine the circumstances in which identification was made by each witness. When you do this task, you should perhaps consider a variety of factors such as: what were the circumstances that the identification was made? Remember it was not in a measured situation, I imagine everybody was pretty stunned when they saw somebody coming out of the boot of a car on that day. You might say, 'Well what their attention is focused on and how good are we when we make observations in such a situation like that?' You should take into consideration how long did the person have the driver under observation for at the scene? What distance were he or she away? What were the lighting conditions like at the time? Had that person seen the other person elsewhere either before or afterwards in circumstances now as to cause confusion as to identification? I must remind you for example, when you look at Mr West's evidence of certain - what you may think, it is entirely a matter for you but what you may think are weakness in his evidence. You may take the view that there are strengths in his evidence but I am required to point out what you may think are weaknesses. Firstly, it is entirely a matter for you but he does not seem to have given any description of the accused or the driver of the vehicle in his police statement. Secondly, he was unable to identify the accused or the driver of the vehicle from the police identification video. Remember that he had been to the committal hearing and had seen the accused seated behind his lawyer on that occasion and remember that he had told nobody about it on that occasion. He gives an explanation, he said 'Nobody asked me and I thought there was no problem with identification'. But you have to take that into consideration. You have to ask yourselves by reason of that fact, the fact that he had been to the committal hearing and that he had been to this court and seen the accused at this court, has there been this subconscious displacement in his mind, as to the identity of the driver?

...

If, after having carefully scrutinised the identification evidence in the manner that I have directed you concerning the identity of the driver who ran away from that Holden vehicle in St Kilda Road, if after doing that, you are satisfied beyond reasonable doubt that the driver of the Holden vehicle in St Kilda Road that night was Ali Akgul, then it would be open to you the jury to consider whether you the jury could infer from that fact that Ali Akgul was also the man who committed the offences on that vacant block of land in Moorabbin."

The instructions, however, did not make clear what was meant by his Honour's reference to "subconscious displacement", a concept with which members of the jury may have been quite unfamiliar. However, they might have been regarded as barely adequate were it not for the absence of any adequate link being made with the video identification parade. The possibility of displacement was related only to the earlier observation of the applicant at the committal hearing.

106. Unfortunately, these instructions were also deficient in another very significant respect, namely, there was no reference whatever to the specific issues raised by dock or courthouse identifications.

109. When this was pointed out to the judge, his Honour, with the agreement of counsel, decided to provide further instruction, when dealing in his charge with the evidence of Mr West. Accordingly, in the course of summarizing the evidence of the witness, he said:

"Now I pause at that point, to remind you again of the caution that you must exercise when considering the identification evidence of Mr West. Mr West identified the accused for the first time, as it were, in this court, when the accused was sitting in the dock there, the place that is usually reserved for people who are charged with offences. Such an identification is of little probative value for you and you must consider Mr West's evidence as to identification of the accused with extreme care. Remember that both in this court and the Magistrates' Court at the committal hearing, he, the accused, Mr Akgul was in such a position that most persons including Mr West, would be aware that he was the man who was accused of these crimes. The person accused by the Crown of committing these crimes. You will recall Mr West's evidence to the effect that he saw the accused both at the Magistrates' Court and this court, accompanied by his solicitor. There is a risk that even the most honest witness in such a situation as this, could be confused or mistaken as to the identity. As I say on this topic of Mr West's evidence, approach your task with extreme caution, bearing in mind that Mr West may well be confused by the fact that he saw the accused at the Magistrates' Court as the man charged and in the dock of this court as the man charged and that this may have confused him in that regard, the identification. Of course in regards to identification you should also remember that you have the positive evidence of Mr Thalumphuk who knew the accused as Mr Akgul and her evidence that she saw him that night at St Kilda Road. So bear my caution in mind that I give you in relation to Mr West's evidence."

113. As to the previous occasion on which his Honour dealt with the question of identification, he linked the evidence of Mr West with that of the complainant in a fashion which suggested that her evidence could support that given by this witness. However, the ability of the complainant to identify the applicant could never have been in doubt and was not the subject of any dispute in the trial. What was challenged was whether the complainant was telling the truth about what had happened to her, and, in particular, as to who had perpetrated the offences against her. To approach the matter on the basis that the evidence of Mr West could derive strength from her physical identification was clearly inappropriate in the circumstances. It not only weakened the warning that the judge gave to the jury concerning courthouse identification and invited them to pursue a flawed line of reasoning, but did so in circumstances where the warning provided was itself inadequate. I have already adverted in this context to the fact that no reference was made to the fact that prior to the purported identification at the committal hearing, the witness had already seen the applicant in a video identification parade.

116. That his Honour recognized the presence of serious problems connected with the identification evidence of Mr West would seem to be clear from his statement to the jury that:

"Such an identification is of little probative value for you and you must consider Mr West's evidence as to identification of the accused with extreme care."

This statement was clearly at odds with his earlier expressed view that the interest of justice required the admission of the evidence. Having reached that position and whether or not a further application for discharge of the jury was made, his Honour should have addressed this question and, on the basis that the matter then proceeded, should have provided the jury with much stronger instructions than he did. Unfortunately, within a minute or two at most, he then made remarks which carried the suggestion that the evidence could be seen to possess greater value as it was supported by that of the complainant.

121. The jury also were aware that the witness had not purported to identify the applicant "for the first time, as it were, in this court". There was no clear instruction as to how they were to deal with the evidence of the earlier sightings which the judge seemed to consider were simply part of the background against which the final evidence of identification had to be assessed.

124. It is, I consider, apparent that by reason of these various deficiencies, the verdict entered against the applicant should not be permitted to stand. I propose that it be set aside and that a new trial be ordered.

[1] Alexander v. The Queen [1981] HCA 17; (1981) 145 C.L.R. 395 at 404-403. Approved in Festa v. The Queen [2001] HCA 72; (2002) 185 A.L.R. 394 per Gleeson, C.J. at para. 19.

[2] Domican v. The Queen [1992] HCA 13; (1992) 173 C.L.R. 555 per Mason, C.J. Deane, Dawson, Toohey, Gaudron and McHugh, JJ. at 561-2.

[3] R. v. Basha (1989) 39 A.Crim.R. 337.

[4] Festa v. The Queen [2001] HCA 72; (2002) 185 A.L.R. 394 at paras. 77-82.

[5] [2001] HCA 72; (2002) 185 A.L.R. 394 at paras 77-82. In his judgment in the same case, Gleeson, C.J. at para. 18 stated:

"Even here, however, there is no absolute rule requiring rejection of such evidence; and there may be circumstances in which it is appropriate to allow it. In Alexander, Mason J discussed in court identification, which he said was 'of little probative value', in terms that accepted its admissibility. He went on to say: 'It has been the practice to reinforce this "in court" identification by proving that the witness had earlier identified the accused out of court in a line-up or by selecting his photograph from a collection of photographs.'" (Footnote omitted.)