R v Reed & Carberry [2003] ACTSC 6

3. The driver of the police vehicle was Constable Smith and her passenger was Constable Warden. As the vehicle slowed going into Dorsch Street, Constable Warden observed the person sitting in the right rear passenger seat look over his shoulder towards the police vehicle. She described that person as being dressed in a "bright yellow, hooded jumper". She observed the passengers get out of the vehicle and she jumped out of the police vehicle and chased them down an embankment towards a bike path. She lost sight of them and returned to the vehicle. At the vehicle, she observed the property on the ground and various items of property in the vehicle. She also observed the arrest of the driver, the accused Reed.

4. About five minutes after her return to the vehicle, two other police officers who had been alerted to the fact of the passengers decamping from the vehicle, returned with the accused Carberry. It is the evidence of Constable Warden, who purports to identify Mr Carberry as the passenger who occupied the right rear passenger's side of the vehicle, that is the subject of challenge.

5. It is common ground that s 114(2) of the Evidence Act 1995 (Cth) would exclude visual identification evidence if the conditions provided in that section are not met. Section 114(2) provides:-

"Visual identification evidence adduced by the prosecutor is not admissible unless:

(a) an identification parade that included the defendant was held before the identification was made; or

(b) it would not have been reasonable to have held such a parade; or

(c) the defendant refused to take part in such a parade;

and the identification was made without the person who made it having been intentionally influenced to identify the defendant."

6. Mr Gill, who appeared for Mr Carberry, expressly disclaimed any reliance upon the identification being made under any intentional influence to identify the defendant. The argument was confined to the condition that it would not have been reasonable to have held an identification parade. Section 114(3) provides a non-exclusive list of matters to be taken into account in the determination of whether it was reasonable to hold an identification parade. That sub-section provides:-

"Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:

(a) the kind of offence, and the gravity of the offence, concerned; and

(b) the importance of the evidence; and

(c) the practicality of holding an identification parade having regard, among other things:

(i) if the defendant failed to cooperate in the conduct of the parade - to the manner and extent of, and the reason (if any) for, the failure; and

(ii) in any case - to whether the identification was made at or about the time of the commission of the offence; and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification."

7. On the question of practicality, Mr Gill proposed that the police officers who had arrested the person whom they had found and who they suspected was one of the persons who had left the vehicle, acted incautiously in returning with him to the vehicle that had been stopped. He said that those officers could have expected that someone might be there who could seek to identify the apprehended person. Accordingly, the person who had been apprehended should have been returned to the police station directly from where he had been apprehended. An identification parade could then be held at an appropriate time. All that may be a counsel of perfection but, in my view, ignores the practicalities inherent in the circumstances of this case. There was nothing in the evidence to indicate the presence of an identifying witness. Nor, in the circumstances where two of the passengers were still a large, were there justifiable reasons for both the apprehending officers to do other than return to the "scene" with the person that they had apprehended. I also take it that, generally and in any event, by Mr Gill disclaiming any intentional influence to identify the accused, the police officers returning with the apprehended man could not be said to expect that circumstance.

8. The case of R v Thomason [1999] ACTSC 112; (1999) 139 ACTR 21, a decision of Miles CJ, involved the identification of a person involved in an assault in a hotel bar by a civilian witness a few minutes after the attack and before the police arrived, was a situation where it would not have been reasonable to have held an identification parade. That case was sought to be distinguished from the present case on the basis that the police had not been involved before the identification took place. I do not regard that distinction as satisfactory. Here, the police were involved in the very incident giving rise to the charges and the apprehension and return of a suspect to that scene a very short time after that incident does not appear to me to give rise to a situation where it could be said that an identification parade should be held before identification evidence could be given. The circumstances of the identification can be regarded as part of the continuum surrounding the offence to be taken into account having regard to s 114(3)(c)(ii) of the Evidence Act. I do not consider that the arresting officers can be said to have acted unreasonably in returning the person whom they had just apprehended to the stopped vehicle or that there was any circumstance calling for them to act in any different way. Once the accused was seen and purportedly recognised by Constable Warden, the prospect was that any subsequent identification parade involving Constable Warden would be affected by the identification already made and be a pointless exercise (R v Leroy and Graham [2000] NSWCCA 302 (unreported 17 August 2000) [18], DPP v Donald [1999] NSWSC 949).

9. I am satisfied that in the circumstances it would not have been reasonable to have held an identification parade and that the evidence of identification which the prosecution seek to lead is admissible.

10. In the event of holding, as I do, that the identification evidence given by Constable Warden is admissible, it was put that I should refuse to admit that evidence as its probative value is outweighed by the danger of unfair prejudice to the accused (s 137 Evidence Act).

11. In the present case, Constable Warden did not previously know the accused and saw him as a passenger in the vehicle being pursued for a brief period of time as he looked back towards the police vehicle just before the pursued vehicle stopped. The extent of that "looking back" was described as "it was a glance". The clothing she saw she described as "a bright yellow hooded jumper" (that description is not in her written statement). A predominately yellow t-shirt with black and white edging and a photo of the accused taken later on the day of his arrest apparently wearing that clothing was tendered before me. The return to the scene of the accused in company of the police officers and the suggestion that implied, is also a matter which might go to reducing the probative value of the identification evidence.

12. Constable Warden was not cross-examined at the committal as to her description of the clothing. The shortness of the time between the initial observation and the later identification and the confident expression of the identification by Constable Warden (and I do not disregard the possibility of honest mistake (MacKenzie v The Queen (1996) 190 CLR 348 at 373)) are all matters to be considered. There is also the fact that Constable Warden's evidence at this stage has not been subjected to any real cross-examination so that no definite assessment of its quality can be made.

13. As far as unfair prejudice is concerned, the danger that the evidence might be used improperly may be expected to be mitigated to a certain extent by appropriate cross-examination and the appropriate judicial warnings and directions that can be given in respect of the evidence.

14. In all the circumstances, on the material at present before me I am not satisfied that the danger of unfair prejudice to the accused is outweighed by the probative value of the evidence in question so as to justify a refusal to admit it.

15. I rule that the evidence of Constable Warden identifying Mr Carberry is admissible.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the prosecution: Director of Prosecutions (ACT)