R v STORY No. SCCRM-03-236 [2004] SASC 32

R v STORY No. SCCRM-03-236 [2004] SASC 32 - SASC 2004 case summary — Zoe

[88]

The accuracy of any identification of a stranger, seen once only, is likely to be affected by the fallibility of human perception and memory. When identification is attempted with the aid of photographs, there are introduced peculiar difficulties, due to the various ways in which photographic representations differ from nature: their two dimensional and static quality, the fact that they are often in black and white and the clear and well lit picture of the subject which they usually provide. The use of photo-identification in the evidentiary process involves three further factors of a quite different kind which apply only to its use in that process.

Unlike the case of an identification parade, an accused whose identity as the offender is sought to be proved at his trial by evidence of previous photo-identification is likely to know nothing at first hand of the way in which the identifying witness earlier identified his photograph as that of the offender. He must rely upon cross-examination of prosecution witnesses for knowledge of the conditions of identification and of what safeguards were taken against error on the part of the identifying witness. Again, by what may be called the "rogues' gallery" effect, evidence that the police had in their possession and showed to the identifying witness photographs of the accused may often strongly suggest to a jury that the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged. Their production in evidence, or even reference to their existence, may then be highly prejudicial to an accused. Lastly, there is the "displacement" effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.

[92]

There are two principal dangers associated with identification by means of selection from a group of photographs. These were discussed in Alexander. There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues' gallery effect...The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term 'prejudice'. Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.

[115]

The warning must "isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence". "The jury must have the benefit of a direction which has the authority of the judge's office behind it." The purpose of the warning is self-evident. It is to draw to the attention of the jury the difficulties in evidence which, because it is so seductive, has so often led to proven miscarriages of justice.[34]

The adequacy of a warning to the jury concerning the dangers of identification evidence is not measured, as such, by its length. It depends on its content, balance and weight. What is required is not a particular set of words or a rigid formula, with a failure in compliance resulting in the verdict being quashed. The law requires that the judge bring his or her authority to bear so that the jury understand that mistakes can occur from genuine but wrongful identification. The warning given must not be "the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence".

It is in this last respect that the trial judge's summing up was less helpful than it should have been. In this Court, the prosecution accepted that "fuller directions could have been given". The defects relate not just to the two items singled out by the Court of Appeal but also to the more general problem described by Lord Ackner in the Privy Council in Reid (Junior) v The Queen namely the "ghastly risk run in cases of fleeting encounters". In Australia that risk is addressed by requiring that, in a jury trial, the judge explain to the jury how that risk was relevant to the particular case and how the jury were obliged to exercise care because of the law's experience that genuine but erroneous identifications can sometimes be made by honest witnesses.

...Once the identification evidence was admitted, it was imperative, given its obvious and acknowledged weaknesses, that the particular nature of at least the chief of those weaknesses should have been identified and called to the notice of the jury so that the warnings could be related to the weaknesses. Instead, with respect, the warnings were left hanging in the air as general remarks about the imperfections of identification evidence as a category of testimony.

The requirement of particularity is the standard established by this Court in Domican.[35]

[123]

The identification of a person is a matter which requires a special need for caution.

You must bear in mind the possibility that honest witnesses can be mistaken. In the context of identifying a person, there are many factors which can cause a person to be mistaken. In the context of this particular case, you need to have regard to the particular circumstances in which the identification was made. The identification in question is the identification of the person who attacked [the complainant]. It is not the identification of somebody who may have been seen up in the courtyard, or somebody who was walking along the bus lane. It is the identification of the person who attacked [the complainant].

So, in considering that issue, you need to consider the view that the witness had of the attacker, the distance separating the attacker from the witness, the lighting and visibility. In some cases, it is relevant to know whether the witness knew or had seen the person previously. In this case the evidence is that none of the witnesses had seen the accused previously. So when the witnesses saw him on that night that was their first sighting of the accused. That is a matter which is relevant to the reliability of their evidence. The period of time between the incident and the identification is an important matter. In this case the period can be identified down to seconds almost by the aid of the stills. But if the period between an incident such as the assault and the identification is days or weeks or months, then the reliability of the identification becomes less as time increases. But that period of time is a matter which you need to take into account.

A further matter which is relevant is the time during which the accused was under observation. We have been sitting in this court room now looking at each other for several days, and so if asked to describe another person in the courtroom we would have a reasonable prospect of doing that. But you heard that the accused was only in the sight of the witnesses for a relatively short period of time, so that is another matter that you need to take into account.

As I mentioned before, it is of vital importance that the identification of the accused is certain and reliable. You therefore need to consider any discrepancies in the descriptions which may have been given by witnesses to the police officers. If there is any error in the description by a particular person, that is a matter which may cause you to place less significance on the evidence of the person who is in error. [Counsel for the defence], who has referred you to a number of weaknesses in the identification evidence. If you have any doubt as to whether the person who attacked [the complainant] downstairs was not the accused you must acquit.

[128]

... [T]here are two elements: first, that the accused committed an assault on [the complainant], and secondly, that in assaulting [the complainant], the accused had the intention of committing a rape upon her.

'Assault' is defined by the law as the intentional and unlawful application of force or violence to another person. In the present case there is an allegation that the accused applied actual force or violence to [the complainant]. It must be shown that the accused actually used force or violence towards [the complainant]. It is not necessary that the actual force employed be great; even a slight push is enough, but you have heard evidence of conduct which goes far beyond that.

...

In the present case, if you are satisfied that the conduct, of which you have heard, by the attacker provided an indication that the attacker had a specific intention, then you might regard that as an indication that that conduct was carried out with the specific intention of raping the victim.

...

Rape is committed when a person has sexual intercourse with another person without the consent of that other person, knowing that that other person does not consent, or being recklessly indifferent as to whether the other person consents. This is so whether or not that other person offers physical resistance. In this case, there was obvious physical resistance. You will remember that evidence clearly.

...

What is charged here is an assault with the intention to rape, and so, what you must decide is whether the attacker had the intention of carrying out an act which would have amounted to a rape in accordance with the definition which I have just given to you.

Accordingly, in order to establish the charge, the prosecution must prove beyond reasonable doubt that the accused intended to penetrate the alleged victim, at least as far as penetration the labia majora, and secondly, that the alleged victim did not consent to sexual intercourse. Lack of consent in this case should not provide any problem for you, members of the jury.

The prosecution must also prove beyond reasonable doubt the accused knew that the alleged victim was not consenting or was recklessly indifferently as to whether she was consenting. Again, there could be no question of consent in this case.

I repeat again, it is necessary in this case that the accused's intention be proved as to rape. An intention to perform some other sexual act upon the alleged victim, [the complainant], however discreditable, is not the intention necessary to constitute the crime charged. If the alleged intention is not proved, but you are satisfied beyond reasonable doubt that the accused assaulted [the complainant], you should return a verdict of not guilty as charged, but guilty of common assault. If that assault was accompanied by circumstances of indecency, you may return a verdict of indecent assault. Indecency includes anything which an ordinary, decent person would find shocking, disgusting or revolting, or anything which is unbecoming and offensive to common proprietary. There is no magic about what constitute indecent assault.

At a glance

Court

Decision date

Before

Source

Judgment (236 paragraphs)

R v STORY No. SCCRM-03-236 [2004] SASC 32 (13 February 2004)

Parties

Legislation Cited (2)

Cases Cited (16)