R v Gatty [2001] TASSC 9

Criminal Law - Evidence - Identification evidence - Modes of proof - Identification from photographs - Adoption of alternative approach to identification - Whether acceptable - Risk of influence by the "displacement factor" - Discretion to exclude.

R v Murphy (1995) 85 A Crim R 286; Alexander v R (1980 - [1981] HCA 17; 1981) 145 CLR 395, referred to.

Judgment Number: [2001] TASSC 9

1 I have been asked to exercise my discretion to exclude evidence of identification of the accused who is charged with one count of armed robbery on 23 November 1999, committed at the Westerway Roadhouse. The sole occupant of the premises at the time was Tracey Baker who, while checking a refrigerator, was approached from behind by the offender who thrust a knife against her back and propelled her to the cash register, demanding money. At the till, he seized its contents with his left hand and Mrs Baker observed the word, "L O V E" tattooed on his fingers above the knuckles. The tattoo appeared to be a home-made one, rather than professionally done. Just before he reached for the money, Mrs Baker got a quick side-on glimpse of the offender. Upon obtaining the money, he ran out of the shop. As he ran, she again caught a view of the right side of his face. She had this view, she said, for eight to ten seconds. When he got outside he joined another man and they ran off down the road towards Maydena.

2 The best description that she could give was that he was wearing black jeans, black windcheater and a black beanie which concealed his hair and ears. He appeared not to have shaved for a day or two, was between 20 and 25 years old and was about the same height as, or a little taller than, the police officer who interviewed her and who gave his height as 178cms. She at no stage had a frontal view of him. He spoke with an Australian accent and did not appear to be well educated.

3 The next day she attended the Hobart police station and with the assistance of Sergeant McMillan, a computerised identikit was prepared for circulation in the media. Mrs Baker said in evidence that she was not happy that it resembled the offender. It bears little resemblance to the accused. Sergeant McMillan could not recall her expressed degree of satisfaction with the image, but said that had she expressed significant reservations about the degree of likeness, the photograph would not have gone for publication in the local newspaper. On the same day, at the suggestion of someone at the office where she had met Sergeant McMillan, she went to the Glenorchy police station where she was shown a number of photographs, but she was unable to identify anyone. The officer in charge of the investigation made inquiries later as to the identity of any officers involved in this procedure, but no one admitted to any knowledge of it.

4 A day later, Detective Ward, who was in charge of the investigation and stationed at Bellerive, prepared a photo board which included a photograph of the accused, as he was known to Detective Ward to have "L O V E" tattooed on the fingers of his left hand. It was a full face photograph. The 11 other persons shown on the board bore a reasonable degree of similarity in appearance to him. There is no reason to suppose that Mrs Baker had any knowledge that the accused, or indeed anyone whose photograph appeared on the board, had any tattoos. She looked at the photographs for about 10 minutes and picked a photograph of the accused as very similar to the offender. However, she said she could not be sure and asked if the police had any side-on photographs as she had not seen the offender face on. Later that day, Detective Ward showed her another photo board with the profiles of 12 men on it. 10 of those men were the same as appeared on the first photo board, but two new faces were substituted and the side-on photograph of the accused was moved to a different position on the board. Again, the witness picked the accused. The photograph, she said, "just looked exactly the same as the gentleman that held the shop up". On her own initiative, Mrs Baker indicated to Detective Ward that she was willing to involve herself in an identification parade.

5 On 3 December 1999, the police went to the accused's home at Austins Ferry at 8.30am. They searched the house but found nothing incriminating. They took him to the Bellerive police station and commenced an interview at 9.29am. In the course of it, he denied any involvement in the crime and indicated an alibi. Just before 10am, he was told of the photo board identifications by Mrs Baker and told of her willingness to be involved in an identification parade. He was asked, "are you prepared to submit yourself to be involved in a police line-up for the purposes of identification" and replied in the affirmative. A little later he was reminded that he was not under arrest and was asked if he was prepared to remain at the station for a period of time while the officer checked his alibi and organised an identification parade. Again he agreed. The interview was then suspended at 10am. At about 11.50am, the accused was escorted by a casually attired police officer, Constable Lawler, from the station to Eastlands Shopping Centre, where a position was selected on the upper level near the escalator. There were a number of back to back chairs and the accused sat on one with food and cigarettes. Three elderly men initially sat near him, but they moved and two other members of the public, about his age, one of them of bigger build, sat behind him. There were other people about as it was midday on a Friday, but the evidence is not precise as to the number of people and whether or not the position in which the accused was seated made him in any way conspicuous.

6 As the accused was being escorted to Eastlands, Mrs Baker, who was a passenger in a car driven by a female friend from her home in New Norfolk, was approaching the police station car park and observed them. She said the accused looked exactly like the man who held up the shop and when she entered the police station, told Detective Ward, who made a non-committal reply. She then assumed the man she had seen was not the suspect or he would not have been walking outside at liberty. She had been telephoned at home by Detective Ward and asked to come to the police station to attempt an identification. A few minutes after seeing the accused outside the police station, she, her friend and a policewoman in plain clothes, went to the Eastlands Shopping Centre where she looked around the lower floor and then went up the escalator and walked around the upper floor. There she saw the accused sitting near the escalator and she recognised him as the offender. She also recognised him as the man she had seen from the car earlier that morning. At the request of the policewoman, she had identified him to her by touching him on the shoulder. In cross-examination she acknowledged that prior to seeing him in the shopping centre, she had not been 100 per cent sure that she had identified him in the photograph or from the car.

7 Detective Ward had adopted this alternative form of identification procedure because, he said, he did not have the time or resources available to conduct a proper identification parade. This would have required that there be a sergeant from another branch available, 11 other males of similar height, build, stature and appearance to be involved in the line-up and that he organise for a forensic services operator to come and film the whole identification parade. He said, "the accused had been with us by that time four hours of his own free will and I knew it would take up to eight hours to have a formal identification line-up parade organised". Instead, after the interview was suspended at 10am, he had outlined to the accused, outside the police station, the alternative procedure in fact adopted and procured the accused's consent to that course. When the interview resumed at 12.29pm after the identification in the shopping centre, the latter conversation was acknowledged, prefaced by this exchange:

"Q Do you agree that prior to the interview being suspended that I did in fact say to you that I want check out some alibis you provided ...

Q ... attempt to speak to some witnesses and you also agreed to take part in an ID parade ...

8 The suggestion that prior to the interview being suspended at 10am, any form of identification parade other than a formal line-up was ever mentioned is quite untrue. It is also inaccurate to suggest that when a formal line-up was contemplated but discarded as impractical, the accused had been in the company of the police for four hours. It is not clear exactly when that decision was made, but the interview was suspended at 10am for the purposes of organising such a line-up and by that stage he had only been in their company since 8.30am. The police still had to get Mrs Baker to come from New Norfolk and she did not arrive for another two hours. There is nothing to suggest that the accused was anxious to leave and would not have waited for a longer time. It was a Friday, with a busy shopping centre nearby and I am quite unpersuaded that there would have been any difficulty in obtaining suitable men to have participated in the parade and an independent sergeant and video operator by the time Mrs Baker arrived, or at least within a short time thereafter.

9 The sole proof of the accused's involvement in this crime is the identification evidence of Mrs Baker. She had a limited opportunity to observe the offender as she did not see him enter the store, but was surprised by his approach from behind her. She did not see him full-face, but only glimpsed him from the side. She did not observe anything distinctive about him, although he has quite a prominent nose. The tattoo she recognised is a common one and easily faked to put investigators off the scent. It is unknown how many of the persons on the first photo board also had a similar tattoo. Evidence of that board would be highly prejudicial to the accused because the probability is overwhelming that a jury would conclude that all persons on it were adversely known to the police. The case differs from that of R v Murphy (1995) 85 A Crim R 286 where the Court of Appeal, Queensland, dismissed an appeal where the photograph of the accused identified from a photo board, to the knowledge of the jury, had been specially taken of him for this purpose and did not come from police records. Any lingering doubt about the provenance of the photograph of the accused in this case is likely to be dispelled by the investigating officer's ability to produce within a short time profile photographs of all the persons on the photo board, including the accused. The case further differs from Murphy (supra) in that the photo board identifications there were videotaped by the police thereby better enabling the jury to assess the witness' degree of certainty of identification.

10 The dangers of what is known as the displacement effect are adverted to in Alexander v R (1980 - [1981] HCA 17; 1981) 145 CLR 395, especially in the judgment of Stephen J. They were recognised also by the majority, including Mason J who, at 426 referred to "the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed". At 430, Mason J summed up his view of the law as follows:

"In my opinion the Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence."

11 In the present case, the police cannot be blamed for showing Mrs Baker a photo board containing the accused's face, he being suspected by reason only of bearing a tattoo of the kind she had mentioned and being known to have been in southern Tasmania at the time. Being 29 years of age, he even fell outside her estimate of the offender's age. Such a course could have assisted in obtaining information as to the identity of the offender and in excluding the accused and others as suspects. As Gibbs CJ said in Alexander at 400:

"... it may be necessary for a police officer to show a number of photographs to a witness in an attempt to obtain information as to the identity of an offender; if such witness did identify the offender from a photograph, it would not necessarily be unfair for that witness later to be asked to select the offender from a group at an identification parade, but the fact that the witness had seen the photograph might affect the value of the later identification at the parade."

12 All the evidence sought to be led is admissible but it is undoubtedly prejudicial to the accused. It is hard to see how the prejudice arising out of the identification from obvious police photographs or "mug shots" could be neutralised. The risk that Mrs Baker's identification of the accused in person near the police station on his way to Eastlands was influenced by the displacement factor of the photographic images she had seen and that this carried over into her identification at Eastlands, cannot be ignored. Furthermore, the witnesses in their evidence on the voir dire, conveyed a very inadequate picture of the precise circumstances of the latter identification. A jury could much better assess the circumstances of identification at a properly conducted line-up which was video taped than they could using their individual perceptions of what the scene may have been like at Eastlands on a Friday at lunch time. Whether the accused stood out like a "sore thumb" or merged into the surrounding crowd (if there was a crowd is unclear) is highly speculative. In all the circumstances, I am of the view that the use of any of this material would be so prejudicial as to constitute unfairness which no amount of detailed directions could be sure to counteract. In the exercise of my discretion, I will exclude the evidence.