In this matter, the Crown sought to rely upon and the accused sought to exclude evidence of identification by photographs. The Crown did not seek extensive reasons for this ruling. Section 115 of the Evidence Act relates to the admissibility of that type of evidence. The real issue arose, however, under s137 which provides:
"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".
Evidence was admitted on the voir dire as to this matter including the printout of the line-up identification comprising 20 people who appeared to be young males, all of whom appeared to be around their mid-20s with some form of tattoo on their face. The accused was in his mid-20s and had a small tattoo below his left eye. The photographic line-up, which is Exhibit VD-A, also contained the charge image in relation to the accused person which showed a rat's tail coming from the back of his hair across his left shoulder. There was no other person in the other 19 photographs who has apparent any rat's tail. In fact, the accused's rat's tail seemed placed across his shoulder so as to make it readily identifiable.
It was submitted on behalf of the Crown that others may have had rat's tails but they were not apparent. In my view, that does not ameliorate the risk of unfair prejudice to the accused.
For the purpose of ruling in relation to this matter, I also had regard to the video during which the complainant performed an examination of the twenty images. As is common practice, each of the twenty images were displayed for a short period of time before the slide moved to the next image.
Upon observing the video, it was apparent that the complainant clicked "next" in relation to virtually all of the images, save for that of accused. When he was shown the photograph of the accused again, he referred to two features which he thought were distinguishing and formed the basis of his identification. They were his face and the rat's tail. In the course of the latter part of the interview the complainant in fact gestured towards the screen identifying the rat's tail and that was also done by the police officer.
The significance of the rat's tail arises by reason of the statement provided by the complainant to the police on 23 May 2017. In paragraph 15 of that statement he provided a description of the accused in the following terms:
"I would describe this male person as being Caucasian mid-20s thin average build fair skin and blonde sort of hair with an orange tinge. His hair was cut short on the top and sides with a skinny rat's tail that started about the mid/top back of his head and went down the back to around his neck area. The rat's tail was about 1 centimetre thick and approximately 20 centimetres long. I don't recall any facial hair. I think he may have had a tattoo under his right eye. It may have been a tear drop or a cross. It was a tiny tattoo".
The statement then goes on to describe clothing and the like which are not pertinent to the determination of this application.
The first thing to observe about the description provided by the complainant to the police is that the focus were on two features, namely the rat's tail which is described as being 1 centimetre thick and about 20 centimetres long and, secondly, a tattoo under his right eye.
Whilst it was apparent from Exhibit VD-A in photograph number 18, that the accused has a rat's tail hanging onto the left side of his shoulder. It is also apparent that he has a tattoo under his left eye not his right eye as recalled in the police statement by the complainant.
Further evidence was tendered in relation to this matter including a statement by Senior Constable Wright dated 12 June 2018 in which he referred to a conversation with the complainant which took place on 23 May 2017. In answer to the question, "What did he look like?", the complainant stated, "Male, blonde hair with a rat's tail, white shirt with black print on front, blue or black track pants and a tattoo under one eye". Again, it was a dominant feature of the description that the alleged accused presented with a rat's tail.
Consideration was given by the officer-in-charge as to whether a line-up ought to have been conducted. In paragraph 10 of his statement dated 13 June 2017 he alluded to a conversation that he had with the legal representative of the accused at that time, Samantha McKenzie. In the statement the following was recorded.
"I indicated that it would be difficult to find persons of a similar appearance to that of the accused making it difficult to conduct a fair identification parade. Ms McKenzie agreed following a conversation she had with the accused. Following that conversation I engaged Senior Constable Warren Gannon from New South Wales Police Forensic Imagery Unit."
Senior Constable Gannon was called to give evidence. In the course of giving evidence, he described the process adopted at the Forensic Services headquarters in Parramatta. In particular, he referred to the fact that they have a very large database and they can select individuals as required. In cross examination it was apparent that he was not looking for a photograph that showed someone with a rat's tail (at T18.37). It was apparent that his attention was focussed in selecting the persons for the photo identification parade on age, complexion and also the tattoo, rather than the additional identifying feature of the rat's tail which had been consistently reported from the outset.
Also on the voir dire some fifteen photographs of the accused taken whilst in police custody were tendered. They included the photograph which became the charge photograph and the subject of the photographic line-up. It was apparent, however, there was at least one photograph amongst the fifteen in which the accused appeared quite clearly and in which there was no apparent rat's tail. It is perhaps regrettable that that photograph was not chosen as the one to be used for the photographic line-up in circumstances where none of the other participants had a rat's tail.
In any event, the evidence raised serious questions as to prejudice and I have formed the view that the evidence comprising the photograph identification parade is prejudicial. Of course any evidence which implicates an accused person is generally prejudicial. The Court is required to undertake an exercise under s137 of weighing the probative value of the evidence against the danger of unfair prejudice to the defendant. The assessment of probative value requires the court to have regard to the extent to which the evidence may rationally affect, directly or indirectly, the probative value of the evidence.
Whilst plainly the identification evidence has some probative value, the fact that the tattoo was under the left eye and not the right, somewhat undermines the probative value of that evidence. But more importantly, the Court must make an assessment of the prejudicial effect. I have given careful consideration to a number of authorities which were read onto the record yesterday by counsel for the accused.
In particular, I have had regard to a decision of the New South Wales Court of Criminal Appeal in the matter of R v Blick (2000) 111 A Crim R 32 in which the court comprising Sheller JA, James and Dowd JJ, stated amongst other things that the weighing exercise to be undertaken by the trial judge is a process of the sort which is analogous to the exercise of judicial discretion, however the court stated that:
"The correct approach is to perform the weighing exercise mandated by the legislation. 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 [2]).
I have also had regard to a number of other decisions which referred to the general danger associated with evidence of this type. In the matter of R v Blick (2000) 111 A Crim R 326, the accused person participated in a photographic line-up and was the only person who presented with a goatee beard. The Court of Criminal Appeal held that that evidence ought to have been rejected. Other cases such as R v Fisher [2001] NSWCCA 380 which involved a person of Aboriginal descent and with long hair being two distinguishing features not shared by other members of the identification parade. There is also another example in the Victorian Court of Appeal in the matter of THD v R (2010) 200 A Crim R 106 where the accused person was said to "stand out from the crowd" by reason of his age and his long hair.
I return to further consider and follow the decision of the New South Wales Court of Criminal Appeal in R v Blick, in which the following is stated:
"…But, unfortunately, to show Mr Smail a group of photographs in which only one was of a man with a goatee beard, when that was an identifying factor in Mr Smail's mind, is, in my opinion, little better than showing him only one photograph, the photograph of the appellant. The prejudice to the appellant was both unfair and very considerable because it placed firmly in the mind of Mr Smail the photographic image when he came to make his statement and to give evidence at the trial.
29 The probative value of an identification in those circumstances was particularly low. The unfair prejudice was substantial particularly when it is remembered that the photographic identification was an essential feature in the Crown case. In my opinion, on the application to reject the identification evidence based on the photograph, there could only be one conclusion and that was that the probative value of Mr Smail's identification evidence by reference to the photographs was outweighed by the danger of unfair prejudice to the defendant. Accordingly, the Court was bound to reject that evidence." (at [28]-[29]).
In the present matter, for the reasons which I have given, most particularly the presence of the rat's tail in only one of the twenty photographs shown to the complainant, in circumstances where the complainant has consistently referred to the rat's tail as an identifying feature, inevitably this would cause unfair prejudice to the accused. In my opinion, the unfair prejudice to the defendant substantially outweighs the probative value of the identification evidence in those circumstances.
Accordingly, the identification evidence is not admitted.
[2]
Amendments
08 November 2018 - Paragraph 9 - deletion of 'A'
17 December 2018 - Duplicate case names
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Decision last updated: 17 December 2018