R v CARROLL, Guy Michael

Charge (4) For that he on 22 August 2010 at Werrington in the State of New South Wales, did cause grievous bodily harm to Robert Leuthwaite Junior with intent to cause grievous bodily harm to Robert Leuthwaite Junior. 2On 23 July 2013 the accused entered not guilty pleas to each charge. 3The hearing of the proceedings had been listed to commence as a jury trial on Wednesday, 24 July 2013. 4The accused's coaccused, Gary Anthony Markham, was originally charged on 28 August 2010 with the murder of Devril Leuthwaite and with other offences. 5On 12 December 2011, on arraignment, Markham pleaded guilty to the manslaughter of the deceased, Devril Leuthwaite, and to one count of recklessly causing grievous bodily harm in company to Robert Leuthwaite Jnr and one count of being armed in company with the intention to rob. He was sentenced by this Court (Adams J) on 17 October 2012. 6On Tuesday, 23 July 2013, Gavin Anthony Bell was re-arraigned and entered guilty pleas to the following charges:

Charge (1) For that on 22 August 2010 at Werrington in the State of New South Wales did murder Devril Leuthwaite.

Charge (2) For that on 22 August 2010 at Werrington in the State of New South Wales whilst in the company of Guy Carroll and Gary Markham and being armed with a dangerous weapon, namely, a shortened rifle and pistol, did assault Robert Leuthwaite Senior with intent to rob.

Charge (3) For that on 22 August 2010 at Werrington in the State of New South Wales did cause grievous bodily harm to Robert Leuthwaite Junior with intent to cause grievous bodily harm to Robert Leuthwaite Junior. 7A mention date for the sentence hearing in respect of Bell has been fixed for 30 August 2013.

The Identification Issue 8On Tuesday, 23 July 2013 the Crown Prosecutor outlined three pretrial issues in relation to the forthcoming trial concerning the accused, Mr Carroll each requiring determination. They were: (1) The relevance and the admissibility of a DVD recording made by a freelance cameraman. It related to the aftermath of the events taken outside the premises at Werrington on 22 August 2010. That issue is dealt with by way of a separate oral judgment given on Friday, 26 July 2013. (2) The admissibility of formal identification evidence which the Crown proposes to call in the trial of the accused, being the evidence of Mr Markham in relation to a formal identification procedure conducted with him by police on 1 October 2010. This judgment is concerned with the identification issue. (3) The admissibility of evidence arising out of or obtained by police at premises in Penrith where, on the Crown case, it is alleged that the accused, together with Bell and Markham, attended after the events at Werrington on 22 August 2010. The Crown and the legal representatives for the accused on 25 July 2013 announced that they had resolved the issue concerning this pretrial issue.

(i) The Voir Dire Hearing 9The initial voir dire hearing, and a subsequent "Basha" inquiry, took place over two days in relation to issues (1) and (2) above. Mr Strickland SC appeared on behalf of the accused. 10On 23 July 2013 the Crown tendered, in relation to the identification issue, the following: Exhibit "C": Statement of Gary Markham of 1 October 2010. Exhibit "D": DVD in relation to the identification procedure of 1 October 2010. Exhibit "E": Transcript of the recording of the identification procedure. Exhibit "G": ERISP transcript in respect of Gary Markham, 31 August 2010.

(ii) The Basha Inquiry 11On 23 July 2013, at transcript p30-32, the question of the need or desirability of conducting a "Basha" inquiry was discussed with counsel. I then determined that Markham should be brought to Court on Thursday, 25 July 2013 for the purpose of ensuring that the issue of the admissibility of the formal identification made by him could be fully and properly determined. That issue, as Mr Strickland observed, (T 30) is a critical issue in the proceedings. Mr Strickland stated that, for whatever reason, the issue had not been the subject of questions at the committal hearing. 12In these circumstances, the partheard submission phase of the hearing conducted on 23 July 2013 was effectively adjourned and stood over so that evidence could be adduced from two witnesses, namely, (i) the offender Markham, (ii) Detective Sergeant Michael Flanagan, the officer-in-charge of the police investigation and who conducted the formal identification procedure on 1 October 2010.

Chronology of Events on the Identification Issue 13The chronology concerning relevant events on the identification issue are as follows: 22 August 2010 - date of offences 25 August 2010 - Carroll presented himself to police and was released 28 August 2010 - Markham arrested and interviewed by police. Admitted knowing Bell and seeing him on the date of the offences; did not know a person with the surname Carroll and denied being present at the scene or knowing about the offences 30 August 2010 - Markham's solicitor contacted police and arranged for a further interview 31 August 2010 - interview between police and Markham where Markham gives a description of the man who he says was the third man 8 September 2010 - Carroll arrested and charged with the subject offences (was on that basis that the police had a photograph of him which they could include in the array of photographs which were shown to Markham) Mid September 2010 - Markham has conversation whilst in custody at the Metropolitan Reception and Remand Centre (MRCC) with the man whom he's described in the interview on 31 August 2010 with police 1 October 2010 - formal photograph identification by Markham

Crown Submissions 14The Crown submitted that the formal identification evidence is relevant and probative in relation to the Crown case concerning the accused and that admission of the formal identification evidence would not give rise to the danger of unfair prejudice to him. 15In its submissions the Crown noted that on 31 August 2010, some nine days after the relevant events, the offender, Markham, gave to police a description of the man who he said was the "third man" involved in the events at Werrington on 22 August 2010. He said that that person had not previously been known to him before that date. The description given, the Crown submitted, was capable of applying to the accused. The accused, Mr Carroll, at that time was not in custody. He was subsequently arrested on 8 September 2010. 16Approximately two weeks after Markham gave a description to police of the third man, he, on his evidence, had a conversation in prison with the accused. Accordingly, on Markham's version, the conversation with the accused whilst they were both at the MRRC occurred approximately two weeks before the formal identification procedure was conducted on 1 October 2010. 17The Crown noted that the identification procedure was video recorded for all to see what had occurred and the way in which that identification arose. The array of photographs chosen for the identification process, the Crown submitted, was a fair array. The Crown argued that it was clear that Markham's evidence was to the effect "that the man I spoke to was the man who committed the offence with me and the man I'm identifying from this bundle of photographs is the man I spoke to, is the man with whom I committed the offence" (T 22:5-10). 18The learned Crown Prosecutor submitted that this was not one of those situations where picture identification evidence can raise in a jury's minds the spectre that because the police have photographed the accused, he is or is suspected to be a criminal or well-known to be, because the evidence at trial will be clear. In that respect, the evidence will be that the accused presented himself to police on 25 August 2010 and was released and that he was subsequently arrested on 8 September 2010 and charged with the offences in question. It was in that context that police had a photograph taken of him which they subsequently used for the array of photographs shown to Markham. 19The Crown submitted that the procedure was "transparent in terms of recording". The weight of the identification, the Crown submitted, was only marginally diminished, if diminished at all, by the fact that Markham said that there had been a conversation with the accused in prison before his identification was made on 1 October 2010. The Crown referred to the well-known authorities in Alexander v R (1981) 145 CLR 395; Festa v R (2001) 208 CLR 593 and R v Marshall (2000) 113 A Crim R 190 emphasising that the question was one of weight for the jury and not one of admissibility. 20Accordingly, the Crown pressed the picture identification evidence having regard to the circumstances to which I have referred (T 22). 21The Crown observed that Markham's identification was made from a series of pictures, the picture of the man he identified as being the man he says was the person (the "third man") who participated in the relevant events, who drove the car, who had a small gun, who though not firing the fatal shot, did fire a weapon. In the circumstances, it was submitted that the formal identification evidence does not suffer from the type of danger of unfair prejudice that has arisen in many picture identification cases.

Submissions for the Accused 22Mr Strickland stated that he had two submissions as to why, in the exercise of the Court's discretion, the evidence should be excluded. The first related to the circumstances in which the identification was held in the first place, that is to say that there was a real risk that the "interaction" between Mr Markham and Mr Carroll in prison a couple of weeks before the act of identification, infected or contaminated the later identification by Markham (T24:45-50).

(1) The Displacement Effect Issue 23In particular it was submitted that there was a real risk that Mr Markham had identified the accused, not on a basis of his original recollection of the "third man". In effect, it was submitted that he did not identify the accused as the third man but rather was identifying the person that he had spoken to in prison (T 25:1-5). 24As to the events that allegedly led to the conversation between Markham and the accused in prison, Mr Strickland noted that it was Markham who actually went up to the accused or approached him, at the fence. It was submitted that in the circumstances the danger of a "displacement effect" was very real and was heightened by an exposure not simply, to an image of the accused, but to the actual person himself: "... in other words, the displacement effect is often referred to where the eyewitness sees an image, but here he has seen the person": (T p25:13-20). "... here, he has confronted the actual person in isolation, one on one, so the risk of the displacement effect is greater": (T 25:19-22) 25Mr Strickland referred to the abovementioned authorities and emphasised that the unfair prejudice which he contended for was the likely misuse of the evidence or at least the potential for misuse by the jury. The jury would think that it was a cogent piece of evidence, but it would not be experienced in understanding that it was not as cogent as they might otherwise think: "... they don't appreciate that there is a real risk that is not identifying the person he sees as his co-offender on 22 August, but instead he is identifying the person he spoke to in prison only two weeks before, the actual person. That is the misuse of the evidence." (T 25:35-40) 26In the course of submissions and, accepting for the purposes of the application, that the person Markham spoke to at the MRRC was the accused, Mr Strickland acknowledged that what was a second meeting between the two men could be capable of strengthening the identification by the fact that Markham had an opportunity to see the accused again. However, as against that proposition reliance was placed upon the circumstances in which Markham and the accused came to meet each other in prison. 27Markham's evidence on the voir dire was that an inmate said that his "co-ey" wanted to speak to him. Reference was also made in this regard by Mr Strickland to Markham's further evidence that, on the day of their meeting Markham spoke to another inmate on the other side of the fence and said, "I want to speak to Guy Carroll" or "I want to speak to Carroll", following which the accused then came to the fence. Accordingly, it was said that Markham was then expecting to speak to Guy Carroll, his "co-offender". Mr Strickland continued: "... so, the issue of the displacement effect then becomes even more complicated, in a sense or cutting both ways, because the person he is expecting to see is the person nominated or described to him by someone else as 'a co-offender'. He then speaks to the person. Your Honour can, for the purposes of this application, can be satisfied is Guy Carroll. For the purposes of this application we accept that he did speak to Guy Carroll at the MRRC, given the nature of the conversation, it couldn't be anyone else. But, in my submission, that can heighten, in one sense it increases the opportunity to observe. He is now seeing him in a different capacity, but on the other side, having been told this is the cooffender by someone else, having asked another inmate to get the person Guy Carroll, there is a real risk that the person he is identifying on 1 October is the person he's been told was Guy Carroll and sees at MRRC in mid-September rather than the person he sees on 22 August 2010. That is as far as I can take the submissions, your Honour." (T 89-90) 28I will return to this submission in the discussion below.

(2) The Array of Photographs 29The second submission related to the photographs themselves. Whilst Mr Strickland emphasised he was not making any suggestion of impropriety by police, the description given by Markham to police of the "third man" involved what Mr Strickland termed "... the unique identifier point": (T 26:5) 30In this respect, Mr Strickland emphasised the descriptions given by Markham of the "third man" in particular "he's got a lot of tattoos", "tattoos cover him from head to toe in tattoos and I'm pretty sure he has tattoos on his neck". Mr Strickland noted other descriptive features included reference to what Mr Markham thought was a missing tooth. However, none of the photographs showed missing teeth or black teeth and the other descriptive features given by Markham were said to be general and subjective. 31Further, it was submitted that of the 20 photographs used in the formal identification procedure, the only photographs which depict tattoos, apart from the accused, were photographs 2, 5, 15 and 16, but of those, he submitted, the only really relevant one was photograph number 5 because the other photographs, 2, 15 and 16 clearly did not have tattoos all over their neck. The only one that might fit that description, he submitted, was photograph 5 (T 26:15-20). 32Accordingly, it was submitted that, in effect, there were only two photographs, 5 and 12, (12 being the photograph of the accused) which fit the "key descriptor given by Markham" (T 26:20-23). 33The submission was that if there was a highly descriptive feature, and it was contended tattoos were one, then it was not adequately represented in the photo array, and unfair prejudice would arise if there were only in reality two photographs to pick from: (T 26:25-30). 34It was further submitted that whilst the Crown may argue that up to four photographs exhibited tattoos, the other 16 did not exhibit tattoos and they therefore automatically excluded themselves. 35Mr Strickland referred to relevant authorities; in particular: THD v R [2010] 200 A Crim R 106 at [8] and R v Nguyen [2003] NSWSC 1068 at [14]. 36Finally, it was submitted that the probative value was "severely diminished" if one in fact was picking not one photograph out of 20 but one out of two or alternatively one out of four because the other 16 could automatically be excluded. 37Mr Strickland submitted that each of submissions (1) and (2) referred to above were "powerful in themselves but the combination was particularly powerful and that they had built on one another".

Evidence Relating to Identification of the Accused 38In the ERISP relating to the interview of Markham conducted by police on 31 August 2010 (Exhibit "G") Markham was asked at question 78 to describe "the third bloke" and he answered it as follows: "Q78 Can you tell me about this, the, the person you call the third bloke or the other bloke? A. I don't really know his, he's short, he's got a lot of tattoos, I think he's got a missing tooth or a black tooth, I've, I've really, I've never met him before never really apart from then but I've heard of him. Apparently his, his dad's an old time crim and you know like he's been brought up right through the stuff and, and as far as I'm aware of that's where Gavin got his gun from also, like 'cause Gavin kept saying I can get you one. I'm not too keen on guns so I just didn't you know like I, sometimes bridge up about them and you know like talk like I'm someone I'm not and but I've never really had anything to do with guns and yeah." 39Later in the interview, Markham provided a further descriptive account as follows: "Q106 All right. You keep referring to him as a young bloke and you've just described him as tattoos --- A Yeah. He's, he's young, yeah, yeah, he's --- Q107 Just, just give us a full description of him. A OK. Q108 Just think about him and talk about him --- A. Yeah. Q109 --- from head to toe --- A. All right. Well he's about 18, 19 he's a lot shorter than me and he's covered from head to toe in tattoos from what I seen. Like I, I, I'm pretty sure, I don't want to make a mistake but I'm pretty sure he has tattoos on his neck and, and like he's, I know he's definitely got 'em all over his arms and his fingers and ... Q110 And what about a hairdo? A He was wearing' a hat. I think he had a rat's tail actually, I think he did, yeah, but and he had, he had, wears a bum bag and - Q111 And what would you describe as his physical build, is he --- A Just small, just small, he's, he's not big at all. I'd be bigger than both of them I think Gavin and --- Q112 How tall are you, you about 6'2? A 6 foot 3. Q113 6'3. A 187." 40In his evidence in the Basha inquiry, Markham gave evidence, inter alia, upon the following: (i) The circumstances leading to him having the conversation with Carroll whilst they were both in custody and the content of the conversation. (ii) The times and circumstances in which he was in the company of the "third man" on the evening of 22 August 2010, before, during and subsequent to the events at Werrington. (iii) The formal identification procedure held on 1 October 2010. 41In relation to the events concerning the conversation that Markham said he had with the accused whilst they were in prison, he said that an inmate told him "your co-ey is up in the 13/14 and wants to talk to you" which Markham said he responded "who's me co-ey?" (T 44). 42He said it was on the next day that he learnt from the same inmate the name of his "co-ey" (T 45:1-10). 43He agreed that he subsequently asked to speak to the accused (T 45) and said "'cause I wanted to see him" and later "because he'd requested to see me days earlier" (T 46:1-5). 44He agreed that he asked a number of questions of the accused. Markham also said that "it was general conversation" (T48:15-20). It was then put to him that the conversation proceeded as follows: "Q And on the evidence you've heard there, or on what you said you asked the person, Guy Carroll, a number of questions; is that right? A. That's right. Q. Even though it was he that wanted to speak to you? A. Oh, it was general conversation, but yeah, that's right. Q. You asked him what was going on regarding the case; is that right, correct? A. Yep. Q You asked him, "What have they got"? A. Yep. Q. What did you mean by that question, "What have they got?" A. Well, what did they have on you? What did they have? Q Who's the "they"? A. The police. Q. Why did you ask that question? A. Cause I wanted to know. Q Why do you want to know? A. Because I do. Q Why? A. Just curious. Q You asked just out of curiosity; is that right? A. That's right. Q Is that right? A. That's right. Q. No other reason? A. No. Q. You asked him what was going on regarding the case, you mean regarding his case; is that right? A. Yep. Q. Why did you ask that? A. Well, obviously I want to find out if he knows whether I've said anything or not. Q. I beg your pardon? A. Obviously I want to know if he knows that I've said something. Q. Why did you want to know that? A. Well, I'm in gaol. Q. Go on. A. Yeah, well, obviously, if people know that I've said something, it's not a good place to be, is it? Q. So, even though you only called him because you understood he wanted to speak to you A. That's right. Q. it's you that is asking these questions of him; is that correct? A. I think the questions were pretty general, back and forth. Q. But on what you've said A. Yeah. Q. as played on that tape, the only questions that are being asked are the questions that are being asked by you, correct? A. Yep. Q. And that is the truth, isn't it, what you said there? A. Yeah, that's the only thing that was relevant at the time. I didn't say anything else. Q. I beg your pardon? A. I was asking the questions and I was telling the officer because that was the only he didn't ask what guy had asked me. Q. He didn't ask what guy A. Well, I was only telling him what I had asked Guy, not what he asked me. Q. So there was other conversation that you didn't say to the officer; is that right? A. Yep. 45Markham agreed that the first time he had told anyone about the conversation with the accused in custody was on 1 October 2010 during the formal identification procedure conducted by Detective Flanagan (T 50:15-20). 46In later evidence he said that he asked the accused questions: "...'cause I wanted to know whether he knew that I'd made a statement", and a little later said, "well, he didn't let on. I didn't think that he did": (T 51:5-12). 47Markham stated that the conversation at the fence with the accused lasted "maybe five-ten minutes", although he could not remember exactly (T 51:45-47). 48In relation to the events at Werrington on 22 August 2010, commencing at T 53, Markham's evidence was to the following effect; (i) That he first met the "third man" at the third man's home (T 53). He remained in his house for "approximately 10-15 minutes" on the evening of 22 August 2010. In that period he said that there was just general talk, and he could not remember whether they discussed what was going to happen. He was asked: "Q. Were you actually looking at the third man during those 10 or 15 minutes? A. I would have been, yeah. Q. I'm not asking what would have happened. I'm asking what did happen? A. When you talk to somebody, you look at them, don't you? Q. So, you did talk to the third man? A. Yeah. Q. But you don't remember what you talked about? A. Yep. Q. Whereabouts in the house were you? A. Back room. Q. When you were talking in the presence of the third man who else was there? A. His girlfriend at times, another person and Gavin. Q. Girlfriend, another person and Gavin? A. Yep. Q Who was the other person, was it a man or a woman? A. Man. Q. Was that the man you described as the "darkskinned man"? A. That's right. Q. Did the girlfriend get a name? A. No. Q Did anyone call her by her name? A. Not that I recall. Q. So, at that point in time, when you saw the third man, did you see him with tattoos all over his body? A. I can't I can't remember." 49Markham's evidence was that, having left the house, they proceeded in a car driven by the "third man". The journey took between five and ten minutes and he, Markham, was in the front passenger seat. He said he spoke to the "third man" and asked him whose car it was that they were travelling in. He said that the third man said it was his car (T 56:5-10). He said there was also conversation involving the others present in the car (T 56:15-20). He said that he did not notice during the journey whether the "third man" had tattoos all over his body (T 56:20-25). 50When the car stopped, Markham said that he and the others walked to the premises to be robbed in Werrington and that this took between two to five minutes. At some point the "third man" put a balaclava on and kept it on during the events that thereafter took place (T58:45-50). 51According to Markham's evidence, after the break-in and shooting, the three men got back into the car and returned to what he assumed to be the "third man's" house (T 60:5-10). He again was in the front passenger seat. 52He said that he remained in the house for five or ten minutes. He said he was trying to help Bell whom had been wounded in the mouth by a bullet. He said that whilst at the house each of them took off their clothes and burnt them (T 60:45-50). He said at that time, whilst they were getting their clothes off, it was "a bit frantic" (T 61:25-30) and it all happened quite quickly. He said that he saw the "third man" take off his clothes although he wasn't focussing particularly on him at that time. 53As to whether the "third man" had a "rat's tail" he said that he said, "I think he had a rat's tail, I'm not too sure" (T 62:15-20). 54In relation to an earlier account in which he suggested that the "third man" had a missing tooth or a black tooth, he responded, "I can't remember saying that" (T 62:3545). 55In relation to the period after the formal identification procedure, Markham stated that he had not seen the "third man" again after the time in which he had seen him in the MRRC (T 64:35-40). 56He said that insofar as he could recall he had never met the "third man" before the evening of the shooting (T 64:45-T 65:10). 57He was asked about the description he had given of the "third man" having tattoos, including tattoos around his neck (T 65:25T 66:5): "Q When you went through those photos on 1 October, did you, in your own mind, exclude those photographs where the men did not have any tattoos? A. I don't know what my thought process was. Q. But you were definitely looking for someone with tattoos; is that correct? A. I can't remember what I was I was looking for the person that I believed was the third person. Q. I know, but you have said that the third person had tattoos including on his neck, didn't you? A. Yeah. Q. Correct? A. Yep. Q. So, is it the case that, if people didn't have tattoos, including tattoos on their neck, they couldn't be the third person, the third man; isn't that right? A. Yep. Q. So, doesn't it then follow you would have excluded those photographs of people that didn't have tattoos? A. Probably. Q. And, indeed, you would have excluded people that didn't have tattoos on their neck, wouldn't you, from the same logic? A. Yep." 58He was asked about the answer to question 79 of the ERISP (Exhibit "G") in which he said that they called the "third man" "Collins" or "Col". He said that Bell, who knew the "third man" had asked him to participate and said that he was a friend of the family and also that Bell told him that he was his (Bell's) cousin (T 67:5-20). This conversation took place on the night of the shooting. 59He was then again asked further questions as to the photographs used in the formal identification process as follows (T 67:35T 68:5): "Q. When you looked at those photographs, is it the case that the photograph numbered 12 what you could recognise about the person in photo number 12 is the person you saw at MRRC rather than the person you saw on the night of the shooting; is that correct? A. Sorry, you want me to say that the photo that I'd seen on the paper, did I recognise him only from that when I seen him in gaol or from the night; is that what you're asking? Q. Yes. A. Both. I remembered what he looked like. Q. When you say you remember what the third man looked like A. Yep. Q do you think there is a risk do you think there is a real possibility that what you were doing was remembering the person you saw in gaol rather than the person you saw on the night? A. I knew what he looked like. I couldn't remember his name, but I knew what he looked like." 60Markham was asked further questions as to Bell referring to the "third man" by name (at T 70-71). He said that Bell told him that the person's first name was "Guy" (T 71:30-35). 61Detective Michael Flanagan gave evidence of the interview which he conducted with Markham on 31 August 2010 and the formal identification procedure on 1 October 2010. His statement dated 3 October 2010 was tendered and admitted as Exhibit "L" (T 74). 62In the course of his evidence, Detective Flanagan stated that the 20 photographs used in the identification procedure constituting the array of photographs had been compiled by Detective Suesscow. The selection of the 20 photographs was based upon the application of software that generated like images through a program when parameters of likeness for photographs were entered. The photographs were then randomly selected from the database (T 75:45-50). 63He was unable to say precisely what parameters had been entered. He was inclined to the view that Detective Suesscow had chosen them from the photograph of the accused that had been taken by police when Mr Carroll was taken into custody on 8 September 2010 (T 76:1-15). 64A copy of the photograph of the accused said to have been taken on 24 September 2010 (but accepted as a copy of the photograph of the accused taken on 8 September 2010) was admitted and became Exhibit "M" on the voir dire. 65As the officer in charge, Detective Flanagan was asked whether he turned his mind to the description given by Mr Markham to him on 31 August 2010 of the "third man". He responded that his thoughts when reviewing the photographs for a proper array would have been on photographs that were similar in description or appearance to the photograph that had been taken of the accused (T 79:20-25). He was pressed as to whether he had turned his mind in determining what a proper array of photographs was to the physical description that had been given by Markham on 31 August 2010. He responded in the negative (T 79:25-30). 66Detective Flanagan stated that the fact that the photograph of the accused showed tattoos on his neck would have been something that he considered when reviewing the photographs (T 79:40-45). 67He accepted that of the 20 photographs, photos 2 and 5 depicted tattoos on the neck. He said, however, that it did not concern him that the other photographs did not show tattoos on the neck (T 80:15-20). 68In re-examination the Crown Prosector asked Detective Flanagan: "Q. If you're able to answer this, please do so. In selecting the array of photographs, who was more important, the photograph of Mr Carroll or the description provided by the witness? A. The photograph that was going to be included in the array of photos on the day. Q. That is, it was important to attempt to select an appropriate array of photographs by reference to that photograph? A. Yes. That's what you're going to view." (T 84:30-40)

Additional Submissions 69Following the evidence on the voir dire, the submissions that had been made by both the Crown and by Mr Strickland, were briefly supplemented by additional submissions. On the formal identification procedure, Mr Strickland submitted that Detective Flanagan had had the responsibility of ensuring that the selection of photographs was appropriate. On his evidence he did not specifically turn his mind to the identifying features provided by Mr Markham, including in particular the presence of tattoos (T 87:35-45). 70On this point, however, I observe that in response to question put in cross examination Detective Flanagan emphasised that the most important part of the process was the selection of an array of photographs that were similar by reference to the actual photograph of the accused, (photograph number 12). Mr Strickland continued: "Yes. There is nothing particularly wrong with that as a general proposition. The question objectively is: Is your Honour satisfied, not whether the officer is, that the array of photographs has sufficient probative value and, conversely, whether that array of photographs is such that it didn't, in effect, eliminate the great majority of those photographs from a proper selection. Ultimately, it is a factual matter for your Honour to decide. When one looks at the actual identification by Mr Markham, in his record of interview, the only feature for which he is definite about and which is highly distinguishing is one of the tattoos, in particular, the tattoos on the neck. Now, in that regard there is only three photographs of the 20 that match that description. I accept, from the accused's point of view, it is a weaker case than the other authorities that I have referred to. They are usefully collected in that decision of THD [2010] 200 A Crim R 206. I think I handed it up yesterday. HIS HONOUR: Yes, I have that. STRICKLAND: In my submission, the principle is put very clearly at paragraph 8: "The complaint was upheld that the accused was the only one of those included in the relevance photo board whose appearance had a highly distinctive feature, that feature having been an identifying feature in the witness's mind." I accept immediately that the accused in this case was not the only one included, but he was only one of three that was included in the relevant photographs. So, that is a distinguishing feature that militates against us, but the principle is the same and there are various examples put. (T 87:49 to T 88:30) 71In his reply submissions the learned Crown Prosecutor observed: (i) The evidence of Markham was recognition evidence. This was an important fact in considering the authorities concerned with the displacement effect operating on strangers. In such cases, the real danger of a displacement effect is something that the courts must guard against. (ii) This, however, was not a case involving a stranger "who may be strong but wrong" but a person, on Markham's evidence, who was criminally involved with the person that he later identified,. In this case, on the evidence, Markham was in the company of the third man for a number of minutes, then later in close proximity at the house, and prior to that whilst in the car driving for five to ten minutes towards the scene of the crime. Markham then went back to the car in the company of the third man and later entered the "third person's" home where they undressed and disposed of clothes over a period of some minutes. (iii) It would be accepted that events at the Werrington house would have given rise to circumstances of great distress. However, it was submitted this would operate to more keenly impress on the witness' mind his observations of his co-offender. Whether it would cloud them was a matter open to interpretation. Markham's evidence, however, was to the effect that he had a good opportunity to observe the third man during the above periods, suggested to be about forty minutes in total. (iv) Markham gave a description to police nine days later. (v) In relation to "the unique identifier point" raised by Mr Strickland, being tattoos and tattoos on the neck, it was said to be important to look at exactly what was said by way of description, in particular, in the answer to question 109 in the ERISP as follows: "Q. Give me a full description of him, that is, the third man. A. Alright. Well, he's about 18, 19, he's a lot shorter than me and he's covered from head to toe in tattoos from what I seen. Like I, I, I'm pretty sure, I don't want to make a mistake, but I'm pretty sure he has tattoos on his neck and like he's, I know he's definitely got 'em all over his arms and his fingers and "Q. And what about a hairdo? A. I think he had a rat's tail actually, I think he did, yeah." (vi) The Crown submitted that it is important in terms of the photo array chosen to bear in mind that description, as tattoos on the neck were not necessarily the unique identifier; Markham had indicated by his description that he was not necessarily sure about the presence of neck tattoos on the third man (T 91:25-30). (vii) The choice of parameters for the purposes of the photo array was what the accused looked like - not what Markham had described (T 91:30-35). (viii) The police had arrested the accused for the alleged offences and it was entirely appropriate to disregard what Markham said the "third man" looked like and to provide an array of photographs that, as closely as possible, resembled Mr Carroll because that would lend probative value to any identification that might be made. (ix) Apart from neck tattoos there were a number of other matters that needed to be matched up including hair colour, size, and general description. Reference was made to the observation of Buddin J in Nguyen, supra, [14(xxi)] wherein his Honour emphasised the need to ensure that the array of photographs compiled was as authentic as possible. (x) There was nothing in the present case which would suggest that that was not the case here. (xi) The claimed displacement effect did not operate in this case because it was a recognition case and Mr Markham's evidence was clear "that the man I saw in the yard is the man I recognised as being the man I was with and the man whose photograph I picked out is the man I was with, is the man I saw in the yard". It was submitted that giving a name did not matter: (T 92:1-8). 72Finally, the Crown submitted that in respect of the matters raised by Mr Strickland, to the extent that they were well founded, they could be covered by appropriate directions to the jury, tailored to the circumstances of the recognition that had been made by Mr Markham (T 92:15-20). It was submitted that any prejudice by displacement and/or by what was suggested to be an unfair array of photographs did not arise. 73Finally, the identification procedure had been video recorded and the process was therefore transparent. It was submitted that it has probative value and that on the balancing act required by s 137 of the Evidence Act 1995, the Court would not be satisfied that the danger of unfair prejudice so outweighed the probative value of the evidence of Mr Markham having identified the accused as the person he said he saw on the night of the events and the same person he saw and spoke to in prison.

Consideration 74The submissions for the accused in support of the application to exclude the identification evidence were based on ss 135 and 137 of the Evidence Act, particularly the latter provision. In determining the application I have given consideration to the terms and application of both sections. 75Section 135 is in the following terms: General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 76Section 137 is in the following terms: 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. 77It is well established that when an application is made by a defendant pursuant to s 137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant: R v Blick [2000] NSWCCA 61; [2000] 111 A Crim R 326 at 333 per Sheller JA. 78It was there observed that it is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, that is analogous to the exercise of a judicial discretion. A trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case, and the judge's own trial experience: Blick at [19]. 79It was further noted in that case that there is a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the accused: "... the correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected." (at [20]). 80Before undertaking the balancing task which I am required to apply in accordance with accepted principles, there are two fundamental points that may be noted. The first is that evidence of identification from photographs is relevant and therefore prima facie admissible: Alexander v R, supra, at 402 per Gibbs CJ. The second, is that the use of photographs to establish identification however may, and has in some cases, presented real dangers at trial, in particular, in terms of unfairness that may result to an accused: Carusi (1997) 92 A Crim R 52 at 55 per Hunt CJ at CL. A court in considering an application to exclude evidence under s 137 therefore is required, inter alia, to be astute to the danger of unfairness and in particular to the risk that evidence of an identification from photographs may be given greater weight than it deserves: Carusi at [55]. 81The discretion to exclude is an important one in identification cases. One test in determining whether evidence as to identification generally should be excluded is whether the quality of that evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate direction or caution to the jury: Carusi at [55]-[56]. 82I turn to consideration of the circumstances concerning the identification in the present case having regard to the matters argued on behalf of the accused.

(i) The Displacement Effect Argument 83The circumstances of the present case differ from many of the reported cases that have been concerned with identification evidence. Accepting for the purposes of the present application Mr Markham's evidence that he met and was in the company of the third man on 22 August 2010, it is to be noted that this is not a case of identification evidence by a complete stranger. The issue of a bystander-witness identifying a stranger in a brief moment in time is to be contrasted with the circumstances which the Crown anticipates will be the subject of Mr Markham's evidence. These include observations on the occasion at the "third person's" home, alleged to be the accused, at which Mr Markham says he met with him and had the occasion to speak to him, the fact that he travelled with the "third person" whilst travelling in the car to Werrington, he being in the passenger seat and engaging in conversation together with the subsequent occasion when the three men are alleged to have returned to the "third person's" home where Markham says he saw the other two remove their clothes before they were burnt. 84In summary, the effect of this evidence, if accepted, would establish that Markham met the person alleged to have been the accused on 22 August 2010 at home, conversed with him and Bell, made observations of him whilst in his home during the 10 to 15 minute period whilst assembled there, that later he also observed and conversed with him for a period of 5 to 10 minutes whilst travelling in the car to Werrington and whilst participating in conversation with the third man when they returned to his home over a period of 5 to 10 minutes. 85It would be open to a jury, if they accept Markham's evidence, that he, Markham, had an adequate opportunity to have made observations on the appearance of the third man. That said, some account would be taken of the nature of the occasion or occasions in question and that tension and stress can play their part. 86In relation to the occasion on which Markham said he had met and had a conversation through a prison fence whilst both he and the accused were inmates in mid-September 2010, the evidence proposed to be led at trial by the Crown from Markham is that he both saw and conversed with the accused on that occasion. The subject matter of the conversation itself provides relevant context in which to consider Markham's evidence in that it, at least, as a matter of inference, can be said to have related to the events at Werrington on 22 August 2010. 87The question of the claimed displacement effect must, of course, be considered, firstly, in light of the evidence by Markham that he met and was in the company of, and conversed with and made observations of the third man on the evening of 22 August 2010 as discussed above. Secondly, the fact that the meeting and conversation said to have taken place whilst Markham and the accused were in prison (mid-September 2010) occurred a comparatively short time after 22 August 2010 (approximately three weeks). 88If the jury were to accept Markham's evidence as to his observations of the third man on 22 August 2010 and his evidence as to the mid-September 2010 meeting/conversation with the accused in prison the evidence is capable of reinforcing rather than displacing Markham's mental image of the physical features, the facial and other characteristics exhibited by the third man. 89On this basis there is evident difficulty in accepting that the encounter between Markham and the accused in mid-September 2010 had the effect of displacing his original mental image of the third man he said he met and in whose company he was on 22 August 2010. 90In Alexander v R, supra, it was observed by Stephen J at p 409 that the accuracy of any identification of a stranger, seen once only, is likely to be affected by the fallibility of human perception and memory. His Honour addressed the question of identification being attempted with the aid of photographs in such cases and observed: "... Lastly, there is the 'displacement' effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent facetoface identification, in court or in an identification parade may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting." (at p 409) 91The circumstance in which Markham says he saw and spoke to the accused whilst in prison in mid-September 2010 clearly represents a very different set of circumstances to those that have arisen in many of the photograph identification cases. On Markham's evidence, should it be accepted, his direct visual and verbal encounter with the accused in midSeptember 2010, being a direct observation is a very different circumstance than that of a person who initially saw and identified a stranger and then is asked to look at an indirect or substitute image of a person such as (a photograph). 92In relation to the submissions made on behalf of the accused as set out in paras [ REF _Ref362962357 \r \h 26] to [ REF _Ref362962368 \r \h 28] I proceed upon the basis that Markham was told by an inmate that his co-accused wanted to see him and that the further exchange occurred on the next day with that inmate as earlier noted. In relation to the submission that in these circumstances Markham then had an expectation that he would speak to the accused, his "co-offender" I do not, with respect, consider that these circumstances equate to what is understood in the authorities as being a "displacement" effect, as discussed in Alexander, such an effect is concerned with the circumstance where the "memory" or mental image of a person based upon an original sighting of an offender may be displaced by a memory based on a photograph and the latter is more clearly retained than the former. On his evidence, Markham having made his original observations in face-to-face circumstances, his later meeting, on his account, with the accused at the MRRC some three weeks or so later assumes importance, notwithstanding the submission made as to the earlier exchange with the inmate prior to that meeting. 93I have concluded that there is no sound basis for accepting the argument as to a displacement effect. On the evidence on the voir dire there were several occasions on 22 August 2010 when Markham made observations of the third man. Markham's evidence that he saw and spoke to the person identified by him as the third man approximately three weeks later at the MRRC is more accurately characterised as having been a recognition of a person with whom he had a prior and recent involvement. It is in accordance with ordinary human experience that the mental image of a person with whom there had been a direct, recent meeting is likely to be refreshed, or reinforced by a further meeting that takes place soon after. A subsequent direct facetoface meeting may reinforce recognition, a circumstance that is markedly different from a later viewing of a photograph of the person. On the subject of photo identification it has been observed: "... 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 ..." Pitkin v The Queen (1995) 69 ALJR 612 at 6145.

(ii) The Array of Photographs 94In submissions, reference was made to relevant authority, in particular, THD v R, supra, at [8] and R v Nguyen, supra, at [14]. 95Mr Strickland properly acknowledged that the present case from the accused's point of view is a weaker case than the authorities to which he referred: (T 88). The principle relied upon involves the proposition that if there is only one photograph of an accused person in an array of photographs that displays a highly distinctive identifying feature and there are no other photographs displaying the same, the photo array is open to attack: THD v R, supra, at [8]. See also R v Fisher [2001] NSWCCA 380; Knight v Brown [2004] 183 FLR 135 and R v Blick (2000) 111 A Crim R 326. Mr Strickland accepted that the accused was not the only one included with tattoos but he was one of only three persons depicted with tattoos on the neck. Whilst that was a factor that operated against the accused, Mr Strickland nonetheless relied upon the general proposition or principle discussed in the abovementioned cases: (T 88). 96As also noted above, this is not a case of identification of a stranger made briefly immediately following the commission of a crime. I have earlier referred to the particular occasions on which Markham met with the accused or was otherwise in the same room with him, although as Mr Strickland observed, there was no meeting between them over a period of hours or over one continuous period. Additionally, it was noted that for a good deal of the time the men were together the circumstances may be taken as stressful. 97On Detective Flanagan's evidence, it is most likely that Detective Suesscow chose the "parameters of likeness" for the photographs in the array utilising the then-recent photograph taken of the accused on 8 September 2010, the software then randomly selecting photographs having regard to such parameters. 98Whilst, on Detective Flanagan's evidence, in determining what a proper array of photographs was, he did not turn his mind to the physical description that had been given by Markham on 31 August 2010, he was aware of the fact that Markham had identified the third man as having a lot of tattoos on his neck (T 79). Whilst he did not turn his mind to the description given by Markham as to the tattoos, including tattoos on his neck, he did not accept that he had not turned his mind to the fact that the third man was said to have had tattoos, including on his neck. This, he stated, was because the photograph of the accused had tattoos on the neck (T 79). That would have been something, he said, that he considered when reviewing the photographs. 99In the circumstances disclosed by the evidence, I consider that a sound basis was utilised by police in deriving the array of photographs. This included both the photograph of the accused to which Detective Flanagan referred and his knowledge that he had tattoos, including tattoos on the neck. The array of photographs did include photographs, as earlier discussed, of persons selected on the basis of parameters of likeness and included photographs of persons featuring tattoos, including the photograph earlier referred to with tattoo features on the neck. 100In these circumstances, I have concluded that the array of photographs formed a proper basis for the formal identification process utilised with Markham on 1 October 2010. 101In terms of s 137 of the Evidence Act, I have concluded that the probative value of the evidence outweighs, by a considerable margin, any asserted possible danger of unfair prejudice to the accused. 102In so stating, I am mindful of the fact that the conclusion which I have now reached does not mean that I, as the trial judge, am not obliged to revisit the issue should the factual assumptions upon which the decision I have made on the voir dire is based, prove incorrect. I refer in that regard to the observations of Spigelman CJ in R v Marshall [2000] 113 A Crim R 190. 103Accordingly, the application for exclusion of the identification evidence under ss 135 and 137 of the Evidence Act is refused.

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