R v Nguyen, Ho & Nguyen

Supreme Court of Victoria|2007-08-13|Before: WILLIAMS J

EVIDENCE - Identification of accused by photograph - Application to exclude photoboard identification - Whether practicable to organise identification parade - Challenge to array

1 The defendants, Mr Dang Khoa Nguyen ("Mr Khoa Nguyen"), Mr Bill Ho and Mr Khoa Nguyen's younger brother, Mr Dang Quang Nguyen ("Mr Quang Nguyen"), are charged with the murder of Mr Hieu Lu, the attempted murder of Mr Chau Nguyen and the intentional injuring of Mr Viet Tran and Mr Hung Nguyen.

2 The prosecution wishes to lead evidence of the identification of each of the accused by witnesses who had been shown photoboards prepared by police. Each of the defendants submits that the identification evidence against him should be excluded in the exercise of the Court's discretion.

3 The relevant legal principles are not in dispute. Identification evidence, generally, and photographic identification, in particular, is recognised to be inherently fragile.[1] Nevertheless, evidence of identification by selection from images on a photoboard is admissible evidence. The evidence may be excluded in the exercise of the court's discretion because its admission would be unfair to the accused if, for example its prejudicial effect would outweigh its probative value[2] or because it was obtained by improper means. [3]

4 Further, it should only be in exceptional cases that evidence of identification from a photoboard should be admitted when a person is suspected by police and they can arrange for direct identification by a witness using an identification parade or other means.[4] Whilst there is, nevertheless, no general rule that identification from photographs should be excluded if the accused is in custody and it is reasonable and practicable to hold an identification parade, those factors should be taken into account in the exercise of the discretion to exclude.[5] As Hunt CJ explained in R v Carusi:

There are well recognised considerations which would incline a trial judge to permit evidence to be given of identification from photographs notwithstanding that the police already knew at that time that he was the person to arrest and charge - such as where it would be inappropriate in relation to the police investigation to reveal to the accused that he was under suspicion; where the accused has refused to participate in an identification parade or has failed to co-operate when the parade is conducted; where, by reason of the unusual physical appearance of the accused it is not reasonably practicable in the circumstances to produce a sufficient number of other persons of a roughly similar physical appearance to stand with the accused in such a parade; where the physical appearance of the accused is materially different to what it was at the time when he is alleged to have committed the offence; where the accused cannot within a reasonable time be located; where there are other exigencies of time which would make it impracticable to conduct an identification parade; where the witness is unwilling to participate in viewing the parade; and where the witness is unable reasonably so to participate. That list is not intended to be exhaustive.

5 The following chronology of events does not appear to be contentious (save where indicated) and describes the circumstances in which the identifications were made:

(1) The alleged offences occurred at flat 128 at 480 Lygon Street Carlton in the early hours of 8 November 2004 after three men entered the flat.

(2) Mr Quang Nguyen was identified by police as an offender and arrested at 7.40pm on 8 November 2004.

(3) Mr Quang Nguyen was photographed by police before or after his arrest on 8 November 2004. That photo was ultimately used on a photoboard shown to witnesses on 6 and 10 January 2005, respectively.

(4) Police conducted a videotaped record of interview with Mr Quang Nguyen on the night of 8 November 2004 and early in the morning of the following day.

(5) During the interview, Mr Quang Nguyen stated that he would agree to participate in an identification parade. He was told that it would be organised at a later date.

(6) By 9 November 2004, police had obtained statements from all eyewitnesses to the alleged offences apart from the victim, Mr Chau Nguyen, who had been shot in the head.

(7) On 11 November 2004, the informant, Detective Senior Constable Kilpatrick, telephoned Victorian Legal Aid and was informed that the solicitor representing Mr Quang Nguyen was Ms Laura McDonough.

(8) On 18 November 2004, three numbered photoboards were prepared at Mr Kilpatrick's request, using photographs of people who had come to police attention, as well as pictures of applicants for positions such as those of security guard. The photoboards were assembled by Transit Police because the Criminal Identification Squad was unable to perform the task without a delay.

(9) On 18 November 2004, Mr Kilpatrick sent an email to Ms Laura McDonough as the solicitor for Mr Quang Nguyen, requesting that she ask her client whether he would participate in an identification parade. The email noted that the process had been explained to Mr Nguyen during his police interview and that he had agreed to participate. Mr Kilpatrick stated that he would arrange for a parade to take place at Mr Nguyen's place of detention, if he was still agreeable.

(10) Mr Kilpatrick did not receive a written response to the 18 November 2004 email to Ms McDonough. Ms McDonough did telephone Mr Kilpatrick and undertook to ascertain whether her client was still prepared to participate in an identification parade.

(11) On 22 November 2004, Mr Kilpatrick sought the advice of Mr Rapke, a senior Crown prosecutor at the Office of Public Prosecutions. Police were still pursuing the suspects, Mr Ho and Mr Khoa Nguyen. They had been told that Mr Khoa Nguyen might have left the country. Police wanted to show the photoboards relating to those two men to witnesses at the earliest opportunity, whilst their memories of the night's events were still fresh. Mr Rapke advised that the photoboard identifications in relation to Mr Ho and Mr Khoa Nguyen should proceed.

(12) On 22 November 2004, the photoboards numbered 1 and 2, relating to Mr Khoa Nguyen and Mr Ho, respectively, were shown to the witnesses Mr Viet Tran, Mr Tien Pham, Mr Hung Nguyen and Ms Kathleen Quach by Detective Senior Constable McCann of the Victoria Police Homicide Squad.

(13) On 25 November 2004, photoboards 1 and 2 were shown to Mr Chau Nguyen.

(14) On 26 November 2004, there was a media release made in relation to both Mr Khoa Nguyen and Mr Ho.

(15) On 29 November 2004, Mr Kilpatrick went on leave.

(16) On 10 December 2004, Michael J. Gleeson and Associates, Mr Quang Nguyen's present solicitors, purported to serve, by facsimile transmission, a notice of appearance for their client under rule 2.01 of the Magistrates' Court (Committals) Rules 1999. The notice of appearance did not come to Mr Kilpatrick's attention, despite being faxed to his correct facsimile number.

(17) On 3 January 2005, Mr Kilpatrick returned to work for three days to complete the brief of evidence in relation to Mr Quang Nguyen. He checked his emails and messages for a response from Ms McDonough, or from anyone acting on behalf of Mr Quang Nguyen. He had received no relevant messages.

(18) Mr Kilpatrick gave evidence, the truth of which is contested, to the effect that, because he was not entitled to approach Mr Quang Nguyen directly, Mr Kilpatrick telephoned the prison where he was held in custody. Mr Kilpatrick said that he spoke to a prison guard and requested that Mr Quang Nguyen speak to him about participating in a photo-board identification process.

According to Mr Kilpatrick, the prison guard subsequently rang back and told him that Mr Quang Nguyen declined to speak to him. Mr Kilpatrick made no note in relation to his conversations with the prison officer and does not recall his name. Mr Quang Nguyen gave evidence in the voir dire denying that he had any such conversation with a prison officer.

Counsel for Mr Quang Nguyen urges me to reject Mr Kilpatrick's evidence and accept that of his client. However, in my view, there is no necessary conflict in the evidence because both versions of events could be accurate. I note, nevertheless, that I do accept Mr Kilpatrick's evidence as to what he was told, notwithstanding the absence of evidence from the prison officer in question or evidence identifying him.

(18) On 6 January 2005, the photoboard numbered 3, relating to Mr Quang Nguyen, was shown to the witnesses, Mr Hung Nguyen, Mr Tien Pham, Mr Viet Tran and Ms Kathleen Quach.

(19) On 10 January 2005, photoboard 3 was shown to Mr Chau Nguyen.

6 Ms Kathleen Quach made two statements to police on 8 November 2004. In her first statement, made at 4.20am, she gave little detail in relation to the three men who had entered the Carlton flat she was visiting with her friend Viet Tran. She referred to her sleepiness and the fact that the lights were off.

7 Later on the same day, at 1.15pm, Ms Quach stated that she had been very scared at the time of her first statement, with the result that she had not told police everything she knew. She went on to provide a detailed account of the appearance of the three men. She stated that the man police allege was Mr Ho was the tallest of the three. She distinguished the men by reference to their hair colour and length and their age. (I note in this regard that, when she subsequently gave evidence on the voir dire, Ms Quach said that she was an apprentice hairdresser.)

8 Ms Quach also observed that the men whom the prosecution will allege were the brothers, Mr Khoa Nguyen and Mr Quang Nguyen, appeared to be drunk and were not as controlled as Mr Ho. She described Mr Ho as "the dyed hair guy". She went on to give an account of the men's movements in the room and of what they said.

Challenged identification evidence of Kathleen Quach

9 In the statement made to police on 22 November 2004, Ms Quach says:

I have looked at the folder labelled Photoboard 1 containing photographs and I can recognise photo number 8. I am pretty sure he was one of the three, involved in the shooting. He didn't have the gun, Bill had the gun.

10 In her 22 November 2004 statement Ms Quach also says:

I have looked at the folder labelled Photoboard 2 containing photographs and I can say that photo number 5 is Bill. I am sure of this, he had the gun.

11 In her statement made on 6 January 2005, Ms Quach says:

I have looked at the folder containing photographs and I can say that the person depicted in photo number 3 is the person who was holding the machete on the night of the shooting and was chopping us with it. I think he had longer hair on the night than what he had in the photo.

12 Ms Quach gave evidence in the voir dire on 14 November 2006. She affirmed as true the contents of her second police statement. She told the Court that she had been scared to tell police everything at the start and that the contents of her first statement were not correct.

13 Under cross-examination by counsel who previously appeared for Mr Khoa Nguyen, Ms Quach gave answers now relied upon by counsel presently representing him. The answers are recorded as follows:

Mr Saunders : ... When you looked at the photoboard you didn't recognise anyone, did you? No-one sprang out at you?

---Well, the two guys with dark hair, I didn't remember a hundred, like fully - - -

Yes, sorry, you didn't remember them fully. But now listen to my question please. On 22 November 2004, when you looked at that photoboard you didn't recognise anybody from that flat that night, did you?

No. The best you could say is, it might have been No. 8 or it might have been No. 10 because they looked familiar, but you couldn't be sure. That's right, isn't it?

And you weren't sure then and you're not sure now, are you?

14 Ms Quach gave evidence in the voir dire as to the conditions in which she made the observations of the men in the flat on the night of the events which were the subject of the charges. She stated that she was lying down in the lounge room of the flat in which the incidents the subject of the charges took place. There was no light on in the room at the time. A television programme was running. She said that three men who were strangers to her had come into the flat and started arguing. They argued for about three minutes before they raised their voices and she sat up and started to pay attention to them. She was looking up towards them from her sitting position in the corner of the room.

15 Ms Quach described one of the men in her police statement as the "orange blondey haired man, the dyed hair man". She guessed that he was "pretty tall, around 170 or 180". She gave evidence about him staying in a position near the kitchen. She stated that the other men were walking around the room and threatening people. These men she referred to in the voir dire evidence as "the long black hair and the blonde one". A silver bladed knife was produced by "the long haired guy". She estimated its length as being about 30 to 40 centimetres.

16 After the men had been in the flat for roughly 10 minutes, Ms Quach heard one gunshot followed by a second. She had seen the man holding a gun and spinning it before he stood up and held it still. She saw blood on the TV screen after the shooting.

17 She stated that the men stayed in the flat for 10 to 15 minutes afterwards. They were still arguing and coming back to check if the guy who had been shot had died. She thought that one of the men was drunk.

18 Mr Tien Manh Pham made statements to police at 3.39am and 11.50am, respectively, on 8 November 2004.

19 In his first statement, Mr Pham told police that he lived at the Carlton flat where the alleged incidents occurred. He said that he had gone to bed on the evening of 7 November 2004. He was drowsy from taking prescribed medication. He had been asleep for two to three hours when he was woken by knocking on the front security door. He opened the front door, but did not see who was knocking. He went back to bed.

20 Mr Pham later heard a loud bang followed by another and ran towards the lounge room. He saw a large knife with a curved blade, which looked like a Samurai sword but was only about 50 centimetres in length. The blade was shiny and coming towards him from the darkness. He dodged to the left and was cut lightly across the throat. He said there were two "Buddha lights" in the hallway near the front door giving off a bit of light, but he could not see who was holding the blade which was coming at him. He heard footsteps and the front security door open and shut.

21 In his second statement Mr Pham said that when he went into the lounge room he heard three males yelling "Where's Mao?" He went on to state that he had known "the first male" as "Bill" for some two years, having served time with him in Fulham Prison. He said that Bill's name was something like "Pit Sayho" and that he was about 26 to 28 years old and well-built. He described Bill's clothing as "dark" and his hair as short, flat topped and blonde. He said that Bill had something dark in his left hand. Mr Pham stated that when he asked Bill what was going on, Bill replied that his boss wanted to know where "Mao" was.

22 Mr Pham described "the second guy" as someone he knew as "Wang". He said that Wang had been in Richmond for about 6 to 7 years. Mr Pham had known him since childhood. He described him as being aged about "30 something", as having a "skinny build" and a "light Asian goatee". He stated that Wang was wearing a white tee-shirt or jumper with some characters on it. He was also holding a samurai sword about 60-70 centimeters long which he was pointing at Mr Pham's neck.

23 Mr Pham also described the third person as a male aged in his late 30s to early 40s. He was also skinny and had short black hair.

24 In a statement made to police on 22 November 2004, Mr Pham said:

I have looked at the folder labelled Photoboard 1 containing photographs and I can say that photo number 8 looks like a person I know as Khoa, who was involved in the shooting. I am not sure, but I think it is him.

I have looked at the folder labelled Photoboard 2 containing photographs and I can say that photo number 5 is Bill, who was also involved in the shooting.

26 In a statement made on 6 January 2005, Mr Pham said:

I have looked at the folder containing photographs and I can say that photo number 3 is similar to the person who had the sword on the night of the shooting and who swung the sword at me.

27 Mr Hung Nguyen made an initial statement to police on 8 November 2004 at 4.58am. He said that he had then been living at the Carlton flat for some two weeks.

28 In his first police statement, Mr Hung Nguyen referred to three Asian males whom he had never seen before entering the flat after he opened the door to their knock. He records them asking where "Mao" was and his reply that he did not know. He stated that he lay down again before he heard two loud bangs. Mr Hung Nguyen referred to the males as having shot Hieu Luu and Chau Nguyen.

29 In a second statement, made at 1.36pm on 8 November 2004, Mr Hung Nguyen is recorded as saying that he had once previously met one of the men who came to the door. He said that he could not remember his name, but that he had visited the flat since Mr Hung Nguyen had moved in (according to his first statement, some two weeks earlier). That man was asking as to the whereabouts of Mao. Mr Hung Nguyen described the other men as a younger man, with a gun in his hand, and a shorter man, who appeared drunk and was waving a sword. He described the third man as "the older man".

30 Mr Hung Nguyen said that he hid behind his hands when the man with the sword waved it him. He took his hands down after hearing the first shot. He saw that the man he described as the younger had a gun in his hand.

31 Mr Hung Nguyen told police that the older man told the people in the flat not to say anything or tell anybody, as he was leaving the flat.

32 In a statement made on 22 November 2004 at 2.18pm Mr Hung Nguyen said:

I have looked at the folder labelled Photoboard 1 containing photographs and I can say that photo number 8 is one of then men who was involved in the shooting.

I have looked at the folder labelled Photoboard 2 containing photographs and I can say that photo number 5 is Bill, who was also involved in the shooting.

34 In his statement made on 6 January 2005, Mr Hung Nguyen said:

I have looked at the folder containing photographs and I can say that photo number 3 is definitely the person who was holding the sword on the night of the shooting.

35 At the committal hearing on 26 July 2005, Mr Hung Nguyen gave evidence-in-chief to the effect that he had been too frightened to tell the police everything he had seen and heard when he made his first statement on the morning of 8 November 2004, because of threats made by the men who had instructed those present to say that they had not seen anything if police attended.

36 Mr Hung Nguyen affirmed the truth of the contents of his police statements and his 22 November 2004 and 6 January 2005 statements in relation to the photoboards.

37 He said that he remembered that the television was on in the room, but he could not recall whether the lights were on or off. He stated that there were lights on in the hallway outside; there was a light where you entered the room from the door inside the door. It was too dark for him to able to see clearly what the men were wearing. He estimated that four or five minutes elapsed between the time of the men's arrival and their departure. During that time they went into another room for less than a minute with Mr Pham.

38 He stated that he had not been smoking any cannabis that night and thought that he did not smoke heroin.

39 He said that he had previously met one of the men who had visited Mr Pham approximately one or two weeks before the shooting. He said that he did not know his name at the time, but that, some time after the incident, it had appeared in newspapers. He said that there was nothing striking about the appearance of any of the men.

40 Mr Hung Nguyen described the sword as being about 60 centimetres long with a handle of about 20 to 30 centimetres long and coloured gold.

41 Mr Chau Nguyen made a statement to police on 19 November 2004.

42 He described being awoken by someone standing on him in the lounge room at the Carlton flat where he had gone at about 8.00 or 9.00pm on 7 November 2004. He looked up and saw a man with a sword sitting on the bed in the lounge room. He had never seen that man before. That man stood up and chased Mr Chau Nguyen's friends around the room, swinging the sword. He could remember that the man was Vietnamese. He was not "that tall", had black hair and a fringe to eye level on the side of his face.

43 Mr Chau Nguyen said that he could see another thin long-faced Vietnamese man sitting on a speaker beside the television in the lounge room. He had never seen the man before.

44 He also described a man kneeling on one knee on the opposite side of the room to him whom he had never seen before but who had shot him. He said that Mr Pham had called the man "Bill". Mr Chau Nguyen described him as thin and slim, having dyed yellowish and brown hair which was a bit shorter in the front than at the back. He thought that the man was of Chinese-Vietnamese origin.

Challenged identification evidence of Mr Chau Nguyen

45 Mr Chau Nguyen was shown photoboards 1 and 2 by Detective Senior Constable McCann on 25 November 2004.

46 In his statement made on 25 November 2004, Mr Chau Nguyen said:

I have looked at the folder labelled Photoboard 1 containing photographs and I can recognise photo number 8. This man is not the shooter, he is the man that gave the orders to the other person to shoot me. I clearly recognise this man from the shooting.

47 In his 25 November 2004 statement Mr Chau Nguyen also said:

I have looked at the folder labelled Photoboard 2 containing photographs and I can say that photo number 5 is the man that shot me. The other man in photo board one is the one that gave the order to shoot me. This man who shot me, his name is Bill.

Photoboard 3 - Mr Quang Nguyen - Photograph 3

48 In a statement made on 10 January 2005, Mr Chau Nguyen said:

I have looked at the folder labelled Photoboard 3 containing photographs and I can say that photo number 3 is the man who had the sword.

49 At the committal Mr Chau Nguyen said that he spent some three or four days in hospital after being shot. He gave evidence as to the conditions in the flat. He said that it was not "too dark" because there was the light from the television and also from the lamp with a shade in the corner which was on. He said the colour of the television screen was green. The ceiling light was off. There was another light in the front door and one in the dining room, but Mr Chau Nguyen did not remember whether they were on when he woke up.

50 He said that when he had previously said that he was woken up by someone standing on him, he had meant that the person just kicked him once. He was lying on the floor and stayed there. He was shot about two or three minutes after waking up.

51 Mr Chau Nguyen placed himself in the room about a metre from the bed where a man with a sword was sitting. The light in the corner was about three or four metres away from that man. He described the sword as a type of Japanese sword with a blade 35 to 40 centimetres long which made up two-thirds of its total length. He said the sword was coloured white, but that he meant that it looked like a silver colour.

52 Mr Chau Nguyen remembered that the person kneeling in the corner of the room was wearing a brown or black zippered jacket, but no hat. Mr Chau Nguyen thought that the man's hair was brown or black. When asked what he meant by saying brown, he replied, "It's not very dark, it's between blond and brown". The gun was black.

53 Mr Chau Nguyen also said that Mr Tien Pham was standing during the time that he was awake. It appeared to Mr Chau Nguyen that Mr Pham was talking to Bill. He said that he only recalled that Mr Pham said in Vietnamese : "Bill, let me find it, let me find it", but was not sure what was being sought. He said that there was not a Vietnamese word for "Bill". Under cross-examination, he said that it was not fair to say that, from his observations of the kneeling man, he would not have been able to identify him later on. He explained that it was easy to recognise his face. It did not matter whether he had a moustache or beard, he could still identify him. Mr Chau Nguyen described Mr Pham as "Manh" because his name was Manh Tien Pham.

54 Mr Viet Tran made a statement to police at 5.00am on 8 November 2004. In that first statement he said that he heard gunshots when sleeping in the Carlton flat, but did not see or hear who the people were who shot Hieu and Chau. He said that it was dark and events happened so quickly.

55 At 3.00pm on the same day, Mr Tran made a second statement to police. He reported being cut on the neck by a sword being waved around by one of three males who came into the lounge room of the flat. He stated that he was half asleep and tired because he had been smoking marijuana. The only light in the room was coming from the television.

56 Mr Tran remembered, however, seeing that the second person to enter the room had a gun. He said that he grabbed Kathleen Quach and held her against the wall away from the men. He was looking away from them.

57 Mr Viet Tran did not identify anyone when shown photoboards on 22 November 2004 and 6 January 2005.

58 At the committal hearing on 28 July 2005, Mr Tran repeated that he had been smoking marijuana on the night of the incidents. He gave evidence that Mr Hung Nguyen had also been smoking the drug, but later said that he could not recall whether this was the case. He said that Ms Quach was watching television and was not smoking cannabis.

59 Mr Tran estimated that the men were in the room for about five to ten minutes.

60 Mr Tran stated at the committal that he did not remember whether it was the television which provided only lighting in the room. He said that behind the entrance coming into the flat there was a shrine which probably had a light, although he could not remember whether this was the case.

61 I note at the outset that I do not propose to set out the prosecution submissions in the same detail as those made by counsel for the defence. I have adopted a number of the prosecution's submissions in reaching my stated conclusions about the arguments in favour of the exclusion of the identification evidence.

62 Counsel for Mr Khoa Nguyen argues that the other photographs on Photoboard 1 are not sufficiently similar to photo number 8 of his client. He argues, for example, that Mr Khoa Nguyen looks obviously older than the others pictured.

63 Suffice it to say that, I do not agree that the photos on Photoboard 1 are so dissimilar that it would be unfair to admit the evidence of identification. I accept the prosecution argument to that effect.

64 Counsel for Mr Khoa Nguyen goes on to argue that Ms Quach's evidence of photoboard identification should be excluded, in light of her evidence in the voir dire that she was not sure whether the man she saw was pictured in photograph 8 or photo 10. He supports this argument by referring to the High Court's conclusion in Pitkin v R[7] that evidence of resemblance is not of itself sufficient to sustain a conviction.

65 Ms Quach's evidence in relation to Mr Khoa Nguyen is part of a body of identification evidence in relation to him, some of which I have set out above. As counsel for the prosecution maintains, Pitkin is distinguishable in so far as it was the circumstantial evidence of resemblance which was there relied upon to support a conviction. In my opinion, this is not the case here, in the context of the other foreshadowed relevant evidence. Mr Chau Nguyen's identification of Mr Khoa Nguyen is emphatic. There is also positive identification evidence from Mr Hung Nguyen. Further, Mr Pham's 22 November 2004 statement might be interpreted by the jury as evidence of his recognition of Mr Khoa Nguyen, even though he is not sure whether the photograph shown to him is actually one of Mr Khoa Nguyen.

66 Counsel for Mr Khoa Nguyen argues that the probative value of the identification evidence is outweighed by its prejudicial effects. He submits that the reliability of the evidence of each witness is affected by the conditions in which they were required to make their observations. He refers to evidence that there was little light and that drugs had been used in the room, even though it was unclear who might have been using them beforehand. He also cites to evidence that witnesses had covered their eyes or averted their gaze at various times.

67 Counsel for Mr Khoa Nguyen reminds the Court of Mr Pham's evidence that he had been drowsy as a result of the effects of medication and that he fell after being cut. Counsel for Mr Khoa Nguyen points to evidence at the committal from Mr Viet Tran to the effect that Mr Hung Nguyen and Mr Chau Nguyen had been using drugs which might have the effect, in his submission, of reducing their respective capacities to accurately observe events and make positive or proper identifications. He also notes that Mr Chau Nguyen made his observations from a prone position.

68 Counsel further contends that Mr Pham's evidence lacks credibility because he failed to identify Mr Khoa Nguyen when he had the opportunity to do so when making statements to police at the outset.

69 Counsel notes the prejudicial effects of evidence of identification from photographs described in many of the cases and, in particular, by Stephen J in R v Alexander.[8] He mentions the possible displacement of the witness's actual memory of a person seen at the crime scene by the image represented in a photograph, as well as the so-called "rogue's gallery" effect of such an identification and the 2 dimensional nature of the image which might capture what was only a passing expression on the photographed face. He points to the prejudice which arises from the absence of the accused, who cannot ensure the propriety of the process. He contends that, in all the circumstances, it would be unfair to admit the identification evidence relating to Mr Khoa Nguyen.

71 As to the reliability of the identification evidence generally, I note that there is evidence to the effect that the alleged offenders were present in the flat for between five and 15 minutes. For most of that time, witnesses were confronted with the threat posed by the man with the sword-like weapon in a confined space. Shots were fired by a man with a gun. There were demands being made and alleged verbal threats. The witnesses distinguish the offenders by reference to hair styles and, significantly, hair colour, as well as the relative ages of the individuals and provide some descriptions of clothing and the colour of the sword and the gun. It might therefore be inferred that there was sufficient light and time for such observations to be made.

72 There is some evidence of drug use by some of the witnesses, but there is also evidence of sleeping. In my view, the conflicting accounts should be left to the jury for consideration. I am not persuaded that the evidence establishes that the identification evidence is so unreliable because of the effects of drugs upon the witnesses that it should be excluded on that basis alone or when considered together with the other evidence as to the conditions in which the events were able to be observed.

73 As far as Mr Pham's evidence is concerned, I note that his police statement indicates that he was apparently sufficiently alert to have done a number of things after the events in the flat. He told police that he had called the ambulance and described what had happened. He had used towels to attend to Mr Hieu Luu's injury and had instructed others to turn Mr Luu onto his side. He had also given directions to his friends after police had arrived.

74 Further, in my view, notwithstanding the contents of his initial police statement, Mr Pham's evidence as to Mr Khoa Nguyen's presence at the scene does not so lack credibility that it should not go before the jury. It is appropriate and fair for it to be admitted for assessment by the jury in light of all the other evidence.

75 In the circumstances, I am not persuaded that any of the identification evidence in respect of Mr Khoa Nguyen is so unreliable or lacking in credibility that it should be excluded in the exercise of the Court's discretion. I agree with the submission of counsel for the prosecution to the effect that the evidence has no frailties which could not be addressed by appropriate directions or cautions to the jury.[9]

Counsel for Mr Ho argues that police did not wait for a reasonable time before they arranged for witnesses to take part in the photoboard identification process, thereby making it impossible for his client to be the subject of a fair line-up identification process. He argues that the evidence in relation to Mr Ho does not fall within any of the categories described by Hunt CJ in Carusi[10].

76 Counsel for Mr Ho contends that his client was a firm suspect in the minds of police when the photo identification was made. The use of photoboard identification, so early in the piece, was unfair to his client who could not have the benefit of identification in a line up process thereafter. Counsel refers in this regard to the judgment of Stephen J in Alexander where his Honour considered the propriety of photoboard identification at various stages of the investigatory and evidentiary processes of the preparation of a prosecution case[11].

77 Counsel did point out, however, what Gibbs CJ said in Alexander, after his Honour had pointed to the disadvantages of photo identification:

For these reasons, it is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender. However, there is little support to be found in the authorities for the view that a conviction much necessarily be quashed if it is based on evidence that the accused was identified other than at an identification parade at a time when he had been charged or was definitely suspected, even though there was no valid reason why an identification parade could not have been arranged.[12]

78 Counsel for Mr Ho stressed the need for the courts to discourage early resort to such a method of identification by police, calling in aid Mason J's expression of the view in Alexander that:

However, the conduct of the police in failing to arrange an identification parade when it could have done so deserves strong censure.[13]

79 Mr Ho was not apprehended by police until 20 April 2005, some five months after he was identified by witnesses shown photoboard 2 on 22 and 25 November 2004, respectively. As counsel frankly concedes, his objection to the reasonableness of the early use of photographic identification would have been stronger, had his client been apprehended and available for participation in a line up closer to the date of the photo identification.

80 Counsel for Mr Ho also argues that the witnesses Chau Nguyen and Hung Nguyen had limited opportunity to observe Mr Ho. He too attacks the reliability of their identification evidence on this basis. I have already indicated my views with regard to the effect of the conditions under which the observations founding the identifications were made. I am not persuaded that I should exclude the evidence on that basis.

81 Nor am I persuaded by the other submissions made on behalf of Mr Ho. Police were pursuing Mr Ho and Mr Khoa Nguyen at the relevant times. Witnesses had told police of threats to them in the event that they spoke about the incidents. A murder had taken place and Mr Chau Nguyen had been shot and others wounded. The informant had sought the advice of the senior Crown Prosecutor in relation to the proposed use of photograph identification. Police were about to release into the public domain information which would contaminate any future identification evidence. In all the circumstances, in my view, it was reasonable for the photoboard identifications to be sought.

82 Further, I do not consider this to be a situation where evidence should be excluded to indicate the Court's disapproval and to discourage undue haste in the use of such a process.

83 Counsel for Mr Quang Nguyen submits that Mr Kilpatrick's conduct makes it evident that he never intended to organise an identification parade. As a result, whilst admissible, evidence obtained from witnesses shown photoboard 3 should be excluded.

84 He relies upon his client's evidence, denied by Mr Kilpatrick in the voir dire, to the effect that he had directed him in an "off-tape conversation" that he should refuse to take part in an identification parade. Mr Kilpatrick said that the only conversation he had with Mr Quang Nguyen relating to an identification parade was that which is recorded in the record of interview. I prefer Mr Kilpatrick's evidence to that of Mr Quang Nguyen in this regard.

85 Counsel also refers to Mr Kilpatrick's failure to follow up his request for Mr Quang Nguyen's solicitor to seek his consent to a parade. He contends that, in the time available to him before he was required to submit the hand-up brief, Mr Kilpatrick should have obtained a written indication that Mr Quang Nguyen refused his consent. He also points to the lack of evidence to explain why it was that the change of solicitor was not brought to the informant's attention, despite the evidence that a notice of appearance by Mr Quang Nguyen's present solicitors had been faxed to his correct facsimile number.

86 I am not persuaded to exclude the identification evidence because Mr Kilpatrick failed to organise an identification parade or to at least get written confirmation of Mr Quang Nguyen's refusal to participate. In my view, in all the circumstances, Mr Kilpatrick was justified in resorting to photoboard identification, bearing in mind my acceptance of his evidence that he had been told that Mr Quang Nguyen did not wish to speak to him and the exigencies of time in relation to the preparation of the hand-up brief. I do not agree that it should be inferred that he never intended to hold an identification parade.

87 Counsel for Mr Quang Nguyen also argues that the Court should not endorse such early resort to an inferior method of identification, with its attendant prejudicial effects. Whilst the Court might decide to discourage such a practice by excluding photoboard identification in an appropriate case, this is not such a one, in my opinion. I consider that Mr Kilpatrick acted reasonably, notwithstanding his awareness that such a parade would provide a preferable form of identification evidence.

88 Counsel for Mr Quang Nguyen also challenges the array of images on photoboard 3. He refers to the fact that witnesses have referred to Mr Quang Nguyen as having long hair. He points to the differences between the fringes on the style of fringes shown in the various photographs. I reject this submission. In my view, there is sufficient similarity between photograph number 3 and the other images on Photoboard 3.

89 I note that in the course of his arguments, counsel for Mr Quang Nguyen referred to the prejudice to his client from the "rogue's gallery" effect of photoboard identification. However, there is evidence, which the prosecution has indicated could be led at the option of Mr Quang Nguyen, that the photograph of Mr Quang Nguyen was taken either before or after he was interviewed by police, on 8 or 9 November 2004.

90 The authorities to which I have referred make it clear that photoboard identification evidence is admissible, but may be excluded in the exercise of the Court's discretion. I do not consider that I should exclude the evidence in this case for the reasons given in the course of my discussion of counsel's submissions.

91 The challenged photoboard evidence will be admitted.

[1] See: Alexander v R (1981) 145 CLR 385 at 426 per Mason J.

[2] Alexander v R (1981) 145 CLR 385 at 402-3 per Gibbs CJ; 430 per Mason J.

[3] See the discussion of authorities in R v Lam (Ruling No 5) [2005] VSC 279 at [14] per Redlich J.

[4] Alexander v R (1981) 145 CLR 385 at 403 per Gibbs CJ.

[5] R v Carusi (1997) 92 A Crim R 52 at 64.

[9] See Carusi (1977) 92 A Crim R 52 at 55-6 per Hunt CJ at CL.

Magistrates' Court (Committals) Rules 1999

At a glance

Court

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Before

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Judgment (146 paragraphs)

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Legislation Cited (1)

Cases Cited (2)