1 Application is made on behalf of Hung Tu Van to exclude evidence of a number of witnesses who identify the accused by selection of his photograph.
2 On 15 July 2002 three witnesses, Tuan Tran, Thi Xuan Tran and Linh Tran had made statements to investigators. On 24 July 2002 statements were taken from six witnesses, Bam Van Nguyen, Thien Hoang, Minh Duy Pham, Duong Dui Pham, Michael Pham and Thuc Kim Hoang. On 25 July 2002 a statement was taken from Cuoc Thai Dinh.
3 On 18 November 2002, those ten witnesses were separately shown a manila folder containing 12 black and white photographs including a photograph of Hung Tu Van. Nine of those witnesses identified Hung Tu Van's photograph.
4 Photograph number five in the manila folder is a photograph of the accused. It appears that the accused signed a consent form which enabled the investigators to obtain the photograph from VicRoads. Evidence will be given as to how the photograph was obtained. One of the ten witnesses did not identify the accused's photograph whilst the other nine identified him as a person whom they had observed involved in a fight inside the Salt Nightclub or whom they had observed in Daly Street in the vicinity of the Salt Nightclub. The majority of those witnesses who observed him in Daly Street described the accused as holding a Samurai sword which he concealed behind him. The accused is described by some of these witnesses as covered in blood or having a blood stained shirt.
5 On 18 July 2002 the accused was interviewed and charged with these offences. During the course of the interview he indicated his willingness to participate in an identification parade. It was conceded by Mr Jackson who appears on Mr Hung Tu Van's behalf that as at 18 July 2002 the accused had visible facial injuries which he had sustained in the early hours of the morning of 8 July 2002 and that it would not have been appropriate for investigators to hold identification parades whilst those injuries were visible. Mr Jackson submitted that investigators should not have conducted photographic identifications on 18 November 2002 but, should then have held identification parades with each of the witnesses. In Mr Jackson's written submission he contended that the failure to conduct identification parades resulted in "an operative unfairness to the accused in that having consented to participate in an identification parade, being the fairest form of identification, he was by the actions of the police in not conducting such an exercise unfairly prejudiced."
6 It is not disputed that the accused had been assaulted inside the Salt Nightclub and had sustained facial injuries which had caused him to bleed profusely; nor is it disputed that he was present in the company of others in Daly Street outside the Salt Nightclub at about the time when some of those witnesses made certain observations. The accused had admitted in his record of interview that he was present in the vicinity of the Salt Nightclub in Daly Street wearing a blue blood stained shirt. What is in issue are the observations of those witnesses who claimed that the accused had possession of a Samurai sword which he had concealed behind his back.
7 In Alexander v R[1] the majority stated that only in exceptional cases should photographs be used when some particular person is directly suspected by the police and they are able to arrange an identification parade. Nevertheless Gibbs CJ, Mason, Murphy and Aickin JJ concluded that evidence of out of court identification by photograph was admissible but it should be excluded in the exercise of the trial judge's discretion if the rules of admissibility operated unfairly against the accused. This would be so where the judge was of the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.[2] The majority found that the learned trial judge had not erred in the exercise of his discretion in refusing to exclude the evidence of identification by photograph.
8 While it is well settled that the evidence of identification from photographs is relevant and prima facie admissible it is also recognised that the use of such evidence presents real dangers at a trial as an accused is substantially limited in litigating any weakness in the manner in which the photographic identification has been made. As the accused is not present at the time when the photograph identification takes place he does not have the opportunity to fully test the circumstances in which it occurred.[3]
9 Danger arises from the "rogue's gallery" effect where the use of the photograph suggests the accused has previously been in trouble. In the present case there is no risk of unfair prejudice to the accused as the jury will be told the photograph comes from VicRoads. Another danger is the "displacement effect" in which the identifying witness allows the photographs to displace their memory of the offender. This is the inherent risk associated with suggestibility and concerns the probative value of the evidence. These dangers and the limitations of the photograph itself may lead to the conclusion in a particular case that the jury would give evidence of identification from photographs greater weight than it deserves. In R v Blick[4] it was recognised that such deficiencies and prejudice to an accused may be lessened, but rarely removed by appropriate directions to the jury. Where the quality of the evidence is such that its frailties cannot be cured by an appropriate direction the evidence should be excluded on the ground that the prejudicial effect outweighs its probative value. The fact that a photo board is used after the accused is arrested and charged is not decisive but it is a relevant factor to take into account in exercising this exclusionary discretion.[5]
10 In Festa v R[6] a witness had been shown a board containing a number of photographs. The board had been prepared and the photographs shown to the witness after the accused had been charged. The witness selected three photographs of persons who were similar or consistent with the appearance of the appellant. Gleeson CJ and Hayne and McHugh JJ were of the view that the evidence of the witnesses' selection of these photographs was admissible and that the trial judge had not erred in his discretion to admit the evidence. Such evidence was similar to that held to be admissible by the Supreme Court of South Australia in Murphy v R[7] where a number of witnesses selected the same photograph indicating that there was a similarity between the photograph and the offender. Gleeson CJ with whom Hayne J agreed also referred to the decision of R v Bouquet[8] which had been cited with approval in Alexander v R[9]. In Bouquet the police had failed to conduct an identification parade or to explain why one was not conducted, but had shown the victim photographs from which the victim selected a photograph of the appellant. The procedure adopted was different from an identification parade prescribed by the relevant Police Regulations. Nevertheless the evidence was held to be admissible, the use of the photographs going to the weight and sufficiency of the evidence rather than to its admissibility.[10]
11 Before me on the voir dire, Detective Senior Constable Smith gave evidence that he and other investigators had concluded that an identification parade could not appropriately be held prior to the accused being charged as he was suffering from obvious facial injuries. Mr Smith further testified that by mid-August 2002 the investigators made a decision not to conduct identification parades but determined to use a photo-board to ascertain whether or not these witnesses could identify Hung Tu Van. Detective Smith acknowledged that the Victorian Police Manual stipulated that identification parades were the recommended procedure. He knew that where other procedures were followed, they may not be admitted into evidence at the trial. Detective Smith further testified that as the accused was in custody it was impractical to hold an identification parade as facilities were not available at police headquarters which would enable an identification procedure to be conducted with appropriate security. He explained that there would have been difficulties in providing adequate security if identification parades had been conducted with the ten witnesses. The learned prosecutor submitted that it was not unusual for police to use photographic identification in such circumstances.
12 As in Bouquet and Festa's cases it was not argued before me that the failure by investigators to conduct an identification parade constituted illegality which would warrant exclusion of the evidence in accordance with the principles in Ridgeway v R.[11] Gleeson CJ said: