R v Carlson; R v Carlson

The police investigation

1. In her notebook Constable Napier records under Mr O'Connell's personal details a brief summary of what occurred and the names; "Phoenix Holloway" and "Craig Carlson." Under Mr Hahn's name and details are the names; "Phoenix Holloway" and "Craig."
2. That evening Mr O'Connell, Mr Hahn and Mr Wallace made police statements. The only name of robber mentioned in those statements is "Phoenix Holloway." Only Mr O'Connell provided a description of the second and third males. Mr Ahern did not make a statement until 18 October 2021.
3. Detective Zammit attended Mr Hahn's father's home and took over the investigation. He later told me that the only name he received that day was "Phoenix Holloway." Constable Napier could not say who had given the names to her and believes she would have given Detective Zammit the two names. She took Mr Wallace's police statement. It contains no names of possible robbers.
4. That night Detective Zammit entered Phoenix Holloway's name into the police systems (COPS and SITREP) as a suspect. He expected that Holloway would be arrested if caught or found by police. Holloway was not able to be found.
5. On 27 September 2020, Mr Hahn, using a 'find my phone" application was able to locate the address his iPhone was at. The "find my phone app" only works when the phone is turned on. He went to the police station and showed the record of the location to Detectives Zammit and Peros. They checked the address shown on the police systems. Its residents included Craig and Joel Carlson, their mother and another man. That evening they went to the address, in a suburb a short distance from the Mt Brown reserve.
6. There they spoke to Mrs Carlson. She would not let them into the house. She did however go inside and returned with the gold iPhone, which she handed to them. Detective Zammit asked her to enquire of the other occupants where the 'Tommy Hilfiger' bag was. She returned and said "sorry mate they threw it in the bushes up there." The Detectives went to the scene and looked for but did not find the bag. Mr Hahn's iPhone was returned to him.
7. On his return to the police station Detective Zammit updated the COPS event about the Mr Brown reserve incident by adding to it; "As a result of the mobile phone being located…police have reasonable grounds to suspect that the unknown POIS [persons of interest] involved in the offences may be Joel Carlson …Craig Carlson...investigations continuing."
8. Investigations did not continue. Although Detective Zammit was rostered for work for a few days he also took leave and travelled away from the area to help with COVID state border operations. Other than making the entry on the COPS system he did not task or delegate the 'further investigations' to anyone.
9. On 14 October 2020 Phoenix Holloway was killed after the motor cycle he was riding hit a parked car. That day tributes appeared on Facebook and the local Channel 9 TV news showed an interview with his friends who paid tribute to their deceased mate.
10. On 26 October 2020 Detective Zammit spoke with a possible witness who did not wish to provide a comment. On 3 November 2020 he telephoned Mr O'Connell who only then told him he had identified the other offenders as Joel Carlson and Craig Carlson. The following day he took a statement from Mr O'Connell regarding this identification. Mr O'Connell told him he had received a Facebook news feed with a photo of Phoenix Holloway and a number of other men. He said he recognised two of the men on the Facebook pages as the second and third males he had described in his first statement.
11. He saw that one man had been 'tagged' with the name "Joel Carlson." He said he then went to Joel Carlson's Facebook page. From there he was able to identify the other man as Craig Carlson. He also said that on the night Phoenix Holloway passed away he saw story on Channel 9 news and both Joel and Craig Carlson appeared on it with their names on the bottom of the screen.

Arrest and Committal for trial

1. On 5 November 2020 Detective Zammit returned to the address where he had recovered the phone and arrested Joel Carlson and Craig Carlson. Both sought legal advice and declined to be interviewed or answer any questions.
2. Joel Carlson and Craig Carlson were committed for trial to the District Court at Wollongong. On arraignment both said they were not guilty of a charge that they being on company robbed Mr O'Connell of his shoulder bag and $25: s97(1) Crimes Act 1900.. Their trials are listed for on November 2021. At a pre-trial readiness hearing both Joel Carlson and Craig Carlson indicated they would object to the tender of any identification evidence from Mr O'Connell.

The Pre-trial hearing

1. Motions seeking orders for the exclusion of the tender of any identification evidence from Mr O'Connell were filed by the defence. I heard their objections on 10 November 2021. I received in evidence statement from O'Connell, Mr Hahn and others at Mt Brown. I received statements from Detectives Zammit and Peros and Constable Napier. The Channel 9 news story about Mr Holloway's death and his friend's tribute to him was tendered, as was the initial 000 call about the Mt Brown reserve incident. Mr O'Connell, Mr Hahn, Detective Zammit and Constable Napier gave evidence and were cross-examined by Mr McKenzie, for Joel Carlson, and Mr Kwan, for Craig Carlson.
2. Both Mr McKenzie and Mr Kwan provided comprehensive written submissions. Both argued that the evidence should be excluded from the forthcoming trial because: 1. Section 114 Evidence Act 1995 requires a suspect be offered an identification parade before visual identification evidence can be admitted. And here there was no reasonable excuse for not complying with that mandatory requirement; And, 2. The proposed identification from the Facebook photographs and the Channel 9 News story was unfairly prejudicial and had little, if any, probative value: s137 Evidence Act.
3. There were a few matters in evidence where versions of events differed both between witnesses and so far as Mr O'Connell is concerned, between his versions of events. In short summary: 1. Mr Hahn says that when he and the others returned to his father's house after the robbery they did look up Holloway on Instagram or some other app. Mr O'Connell has no memory of this. 2. Mr Hahn also volunteered that when he went to the police station to show them the location of his phone on the "find my phone app" he swung past the Carlson's address and saw parked out front the red Holden commodore that the robbers had driven. Detective Zammit had no knowledge of him having driven past the house let alone his seeing a red Holden Commodore. There was no statement setting out that evidence. 3. Constable Napier must have been given the name 'Craig Carlson' but she cannot say from whom. Mr O'Connell and Mr Hahn both say they were not the source. 4. Constable Napier says she would have given the Carlson name to Detective Zammit. He has no memory of hearing that name until he looked up the address given to him the following day by Mr Hahn. 5. Mr O'Connell in his statement of 4 November 2020 says he received the photograph of Holloway and his friends '"a few days after making his first statement [26 September 2020]." In evidence however he was, with respect, all over the place about when this occurred and when he did the Facebook searches for Holloway and then the Carlson's. He accepted the Facebook feed may have come to him after Holloway's death but at the same time he said his memory would have been better at the time he made his statement in November 2020. One of the photos from Joel Carlson is date stamped "14 October". Another is headed "RIP Phoenix."

The evidence of identification

1. Mr Ahern, in a statement that was not taken until 18 October 2021, said that sometime after the robbery "I think within a month, I was with [O'Connell] and he showed me a few pictures on Facebook of the profiles of Phoenix Holloway and Craig Carlson. I already knew Phoenix by face but not his name. I immediately recognised them as the persons who had robbed [O'Connell and Hahn]".
2. The group photograph tendered that Mr O'Connell said "popped up" on his Face book shows seven young men; all have dark skin and may be indigenous Australians/First Nations people. It is not in dispute that in the group is Holloway and both Joel and Craig Carlson. It is not in dispute that in the group is both Joel and Craig Carlson indigenous Australians.
3. It is also not in dispute that names can be tagged by the Facebook program. Although one of the young men is substantially bigger in girth than the others the remaining 6 could have been chosen for a line-up or photo array.
4. Mr O'Connell told me how he first picked out Phoenix from the group photograph and then the men he had initially described as 'males 2 and 3'. He said having viewed that photograph, photographs on both their Facebook pages and the Channel 9 News Story he was "100% sure" both Joel and Craig Carlson were the other two men who had robbed him of his 'Hilfiger bag'.
5. There is no other identification evidence. The other evidence in the trial would be: 1. The general descriptions of the robbers. 2. That Phoenix Holloway, who was known to Mr O'Connell, was recognised as one of the robbers. 3. That each accused is a friend of Phoenix Holloway. 4. That the name Craig Carlson was recorded by Constable Napier on the night of the robbery. 5. The recovery of the IPhone from an address associated with the Carlsons. 6. That a red Commodore, matching that used by the robbers was seen at their address by Mr Hahn the day after the robbery.
6. It was not in dispute that the issue of identification is critical to a trial for a serious indictable offence carrying a maximum penalty of 20 years. And, that the evidence was relevant to the identity of two of the three men said to have committed the robbery.

Submissions

1. For the prosecution, Mr Coulton submitted that I would find either that it was reasonable not to have held an identification parade or that to have held a parade would have been unfair. Further, that while there was obviously some unfairness inherent in any identification from Facebook or otherwise, that unfairness could be moderated by appropriate judicial direction identification by a witness.
2. Both Mr Kwan and Mr McKenzie stressed the danger involved in a witness making identification, unmonitored by police, from first, a photograph containing a known offender, only 5 similar people which had been 'tagged' with names, and then cross-referencing to other Facebook pages. This prejudice they submitted was both unfair and unable to be ameliorated by judicial direction. In their submissions the purported identification fell into a category that had no real probative value: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.
3. Counsel's comprehensive submissions and the case referred to have informed and been incorporated into this judgment. As the hearing progressed late into the afternoon I reserved until today. That brief delay did not enable a transcript to be prepared.
4. These are my reasons for upholding the objection and making orders that the proposed identification evidence is inadmissible at the trials of both accused.

The Evidence Act 1995 NSW

1. The requirements in Part 3.9 Evidence Act, headed "Identification Evidence" were introduced as protections for accused persons against the inherent dangers in identification evidence. The courts and the common law have long recognised that there is a danger of an honest, but mistaken, identification being made by a witness who might give a jury the impression their evidence was of a character and reliability that it did not truly bear. The Dictionary to the Evidence Act provides that: "identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion.

s114 Exclusion of visual identification evidence "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. Visual identification evidence" adduced by the prosecutor is not admissible unless - (a) an identification parade that included the defendant was held before the identification was made, or (b) it would not have been reasonable to have held such a parade, or (c) the defendant 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 defendant. (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 defendant 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 defendant 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 defendant for such a parade to have been held. (5) If - (a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, 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 legal counsel 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.

Section 137 Exclusion of prejudicial evidence in criminal proceedings "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. "

Consideration

1. The evidence of identification of Craig and Joel Carlson has it genesis in the Facebook image of seven young men, including Holloway and the two accused that came up on Mr O'Donnell's Facebook page after the incident. There is a conflict as to when that occurred. While it is possible it occurred before Holloway's death it is equally likely, that it was posted in response to his death and only then did Mr O'Donnell do his searches, as although Facebook Friends, they were not in were not in regular communication.
2. Mr O'Connell's evidence about when he first saw this image was compromised by his admitted incapacity to remember dates and time sequences and his failure to inform police of the identification after it was made, up and until he was contacted by Detective Zammit. As the tribunal of fact for the s114 determination, issues of reliability and credibility are relevant. They are not relevant to my determination of the s 137 issues.
3. There is evidence from Mr Hahn that someone made a search for Facebook and or Instagram posts relating to Holloway that may have revealed the name "Craig Carlson" and possibly the group photograph of the seven men. Certainly someone gave that name to Constable Napier. While that possibility remains as one explanation for why the name "Craig Carlson" appears in Constable Napier's notebook it is not the only possibility. Of more importance is that Mr O'Connell denied searching for Holloway and finding the name Carlson at that time.
4. No general record (other than Constable Napier's notebook entry) of the name "Craig Carlson" was made until the day after the robbery but at that stage Detective Zammit had three suspects. Efforts were made to locate Holloway. The location of Craig and Joel Carlson was known. I accept that without some formal identification there may not have been enough evidence to arrest them but no effort was made to speak to them or to ask them if they wished to participate in a line-up, either as a free citizen helping police with enquiries or a "protected suspect": s110 Law (Enforcement Powers and Responsibilities) Act 2002. Detective Zammit told me that in his decade of experience as a Detective no one had ever agreed to a line-up but a refusal would have allowed a photo array to be prepared and used. The simple fact is the question was never asked of either Joel or Craig Carlson.
5. Detective Zammit said, as at that stage, the only property recovered was Mr Hahn's iPhone and he was not the victim of a robbery charge, rather a lesser steal from person offence. The Detective's response was at best disingenuous as there is no doubt that whoever took the iPhone was also a party to the robbery.
6. At no stage did Detective Zammit ever take any steps to afford two suspects their right to a line-up. There is no evidence he ever turned his mind to the topic. By the time he had arrested the Carlsons it may not have been reasonable to do so as Mr O'Connell's searches would have meant that a line-up or photo array would had no efficacy or value as evidence, due to the "displacement effect": Alexander v R (1981)145 CLR 395; [1981] HCA 17 [400]. To have conducted an identification parade or line-up could have created a real risk that Mr O'Connell would entirely unconsciously, substituted that images from eh Facebook accounts for the image in his mind of the face of the person whom he saw in the identification parade or photo array: Alexander at 409.
7. Because the association caused by the displacement effect is unintentional, it cannot be expected he would necessarily understand what has occurred. And, any cross-examination by counsel for the accused is more likely than not to result in an affirmation of the evidence of identification, rather than anything else.
8. Mr Coulton argued that given there was a real possibility that someone had searched Holloway's Facebook or Instagram and come across the name 'Craig Carlson' it would have been "unfair" to conduct a line-up: s114 (4) Evidence Act. Similarly, he argued that given it is possible Mr O'Connell had the photo of the seven men very soon after the robbery the displacement effect would have also been unfair or rendered a line-up unreasonable. For example as Gibbs CJ said in Alexander v R at [400], in relation to a single photograph identification process: '... it would be unfair and improper to show to a witness, ... a single photograph of a person who is said to be the suspect, and it would be unsafe to act on evidence of identification given in those circumstances.'
9. Another example comes from DPP v Donald and McEntee [1999] NSWSC 949, where after a spontaneous identification by a complainant Bell J (as she then was) ruled that the subsequent risk any identification procedure would have been contaminated required its exclusion.
10. As Detective Zammit never turned his mind to the question, and Mr O'Connell's evidence is "all over the place" it is impossible to know what, if anything, might have rendered a line-up unfair. There is insufficient evidence to allow any presumption that it would have been unfair to the defendant for an identification parade to have been held: see for example R v Taylor [2008] ACTSC 52 at [28] to [29].
11. When I consider whether the prosecution have established that it would not have been reasonable to have held an identification parade I note that: 1. the offence of robbery is a grave one that carries a maximum penalty of 20 years imprisonment. And while the property taken was of relatively low value and the assault relatively mild, a custodial penalty was likely if there was conviction. I note the seriousness of robbery offences and the a perception District Court judges were treating offenders too leniently, was one reasons given for the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. 2. the evidence identifying male 2 and male 3 is of critical importance to proof of the prosecution case. 3. neither defendant failed to cooperate with police, as they were never asked for that cooperation. 4. until Mr O'Connell did his own investigation there was nothing inappropriate with holding an identification parade. 5. Police had both accused's names and access to any other information about them on police COPS. 6. Police knew where both accused lived. 7. Police attended the premises the night after robbery but neither, then nor subsequently, did they attempt to speak to them and ask if they would participate in a line-up. 8. While I am sure Detective Zammit was busy, and entitled to his leave and to work on COVID related State border duties, at no stage did he task or request another police officer to contact the Carlson's and make the request of them. To the contrary he had a number of days on duty shortly after the robbery where this important task could have been done or delegated. 9. It is notorious that in any investigation the sooner a witness is able to identify a suspect the greater the probative value of that identification evidence, if a witness is able to exclude a suspect the sooner that happens the better police resources can be deployed to find the real offenders.

Determination - s 114 issue

1. Doing nothing was not an option. But here nothing was done to comply with a critical pre-condition to the admission of visual identification evidence. The prosecution bears the burden of establishing that it was reasonable not to hold the identification parades. They have not done so. Accordingly, the proposed visual identification evidence cannot be admitted at trial.

Would the admission of the proposed evidence be unfair?

1. I must refuse to admit the proposed visual identification evidence from Mr O'Connell if its probative value is outweighed by the danger of unfair prejudice to an accused. I must perform the weighing exercise mandated by s 137. The probative value of the identification evidence must be considered according to the particular circumstances of each case. A trial judge is required to assess its probative value at its highest: "…it is not for a trial judge to say what probative value a jury should give to evidence but only what probative value the jury acting rationally and properly directed could give to the evidence. Hence, unless evidence is so lacking in credibility or reliability that it would not be open to a jury acting rationally and properly directed to accept it, the probative value of the evidence must be assessed, for the purposes of s 137, at its highest." R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [95]
2. Both accused submit the lack of supervision and uncertainty in Mr O'Connell's identification from Facebook posts and a news broadcast renders that identification unfair and significantly reduces any probative value it could have to the point it is so weak as to be unconvincing: IMM at [50].
3. Facebook, and other social media and networking sites are now a ubiquitous aspect of daily life. Potential witnesses are free to peruse photographs on Facebook (and similar sites) without police oversight or other supervision. Accordingly, court must be alert to the risk of the displacement effect will, depending upon the circumstances, occur. Where social media sites are used none of the safeguards which ordinarily attend photographic identification performed under the supervision of police will be present.
4. The robbery itself involved considerable interaction between Mr O'Connell and the three men over a number of minutes. Notwithstanding the stressful circumstances in which that observation was made there was nothing about the scene or the lighting that impeded his vison. He had the opportunity to observe all three robbers over a period of time.
5. Further, the identification corroborates other evidence to be led in the prosecution case, the finding of the IPhone and the presence of the red Holden Commodore at the Carlson's address.
6. Here that evidence is not so tenuous or weak as to render it in effectively useless as proof of an important fact in issue. While there are always problems with photographic evidence those inherent problems do not of themselves not require exclusion of such evidence: The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 14.
7. Here the first photograph contains a number of young men of similar appearance. Some are single photographs tagged with their name. While others have an accused with others of a similar age and background.
8. There is also evidence that some of the Facebook posts were 'tagged' with the name of an accused and names were published as text in the Channel 9 news report. That gives rise to the possibility that if the appearance of the tagged man is not obviously inconsistent with the actual memory of the robber a link might be made that is both wrong but almost impossible to test or undermine by cross-examination at trial: for example Strauss v Police [2013] 115 SASR 90 at [35]- [37].
9. Despite these obvious concerns the identification evidence is not of low probative value. Given the circumstances in which it was made, the proposed visual identification evidence it is both relevant evidence and likely to be of significant probative value at trial.
10. I must be alert to the possibility or prejudice to an accused. Prejudice includes the risk that the evidence will be given too much weight by the jury (reasoning prejudice) or that it impact may destroy their objectivity (emotional prejudice). "If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial." McHugh J in Pfennig v the Queen [1995] HCA 7; (1995) 182 CLR 461 at [40] 528-9.
11. Such prejudice could arise here if the jury may: 1. Incorrectly assess the probative value of the evidence. 2. Otherwise use the material in a way unconnected with the issues. 3. Use the material contrary to the judicial direction. 4. Look unfavourably on the accused because of their known association with Holloway.

Determination s 137 issue

1. The evidence does not demonstrate such a risk of unfair prejudice that it must be excluded. The evidence is relevant and probative. The jury will be given a direction under s116. That direction would include cautions about the dangers of cross-racial identification or the 'own race effect" raised by Mr McKenzie: Meisner and others l, Thirty Years of investigating the own-race bias in memory for faces" (2001) Vol 7 No1 Psychology Public Policy and Law 3-35; and Megreya and others, (2011) 64(8) The Quarterly Journal of Experimental Psychology 1478-1483. That direction can ameliorate the impact of any unfair prejudice: see for example Peterson v The Queen [2014] VSCA 111. Were the evidence not inadmissible because of the operation of s114 Evidence Act I would not have excluded it pursuant to s137.

Amendments 23 November 2021 - No longer restricted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2021