R v Stott, Van Embden & Voss [2000] QSC 273

Ipswich Aboriginal and Torres Strait Islanders Corporation for Legal Services for the first applicant

[1] On Wednesday, 3 February 1999, the body of Jason Bettridge was found in the Brisbane River near the Fernvale Bridge. A forensic pathologist considers that Bettridge was alive when put into the river, that the cause of his death was not drowning but "intravenous narcotism consequent upon morphine poisoning", and that death occurred on the Tuesday night, probably within an hour after Bettridge was injected with a morphine-based substance.

[2] On the Tuesday night, Angela Rawlins was working at a service station near Fernvale, about two kilometres from where Bettridge was put into the river. The service station is close to a road that provides access to Fernvale Bridge from Meredith Lane, Ipswich. Two of the accused, Van Embden and Voss, lived at No 7 Meredith Lane; and Bettridge had arrived there shortly before 9 pm on the Monday night.

[3] All three accused were interviewed by the police the day after the body was found. Van Embden said that Bettridge had come to Meredith Lane attempting to purchase drugs and stayed for about an hour and a half. Voss said much the same. Stott said that he had been a guest on the Monday night, went to bed early, and denied knowledge of Bettridge. Different accounts have since emerged.

[4] Van Embden later claimed that Bettridge had overdosed on heroin on the Monday night. He says that he, Voss and Stott took Bettridge to Fernvale and threw his dead body into the river. Voss told Richard Johnson, who is not a police officer, that Bettridge died of an overdose and was thrown into the river. Stott has told the police that Bettridge was discovered, dead, at the Meredith Lane residence on the Tuesday morning. He claims to have urged Voss and Van Embden to bury the deceased and says it was Voss's idea to put Bettridge into the water. According to Stott, on the Tuesday evening, the three accused put the body into the car and drove to the river, where the body was thrown in. And Stott says that on the way they stopped at a service station to get petrol.

[5] The forensic pathologist considers that Bettridge was alive when thrown into the Brisbane River. The prosecution wishes to adduce evidence from Ms Rawlins to support that idea. She believes that she saw Bettridge at the service station, alive, on the Tuesday night.

[6] In this application pursuant to s 592A of the Criminal Code, the accused ask that the proposed evidence of Ms Rawlins be excluded from their trial on a charge of having murdered Bettridge. First, her identification of Bettridge is said to be so unreliable that its rejection is needed to secure a fair trial. Secondly, it is suggested that the way in which Ms Rawlins came to provide a statement to the police identifying Bettridge as someone present at the service station as late as Tuesday night involved a contravention of the Police Powers and Responsibilities Act 1997; and this is said to enliven a discretion to reject her evidence on such high public policy grounds as those considered in Bunning v Cross[1].

[7] The evidence on the hearing of the application was not restricted to the depositions. Ms Rawlins testified. So did the two police officers, Detective Sergeants Fynes-Clinton and Hall, who took the statements from Ms Rawlins. Another employee of the service station, Mrs Maslen, was also a witness.[2] The evidence therefore establishes the pertinent facts as well as affording insight into the impression Ms Rawlins might make at a trial.

[8] On the Friday following the discovery of Bettridge's body, Fynes-Clinton and Hall attended a briefing about investigations into the death. They learned that Bettridge had visited Van Embden and Voss, and that those accused had claimed that Bettridge had left their premises to go to a hotel. Mention was also made of the absence of signs of injury or violence to the body. The two officers were given posters containing a photograph of Bettridge to be shown about in an attempt to locate witnesses who might be able to indicate Bettridge's last movements. Later that day, Fynes-Clinton and Hall visited shops, garages and hotels around the Fernvale area, distributing copies. One poster was left on display at the console operator's counter at the service station where Ms Rawlins and Mrs Maslen worked.

[9] Mrs Maslen, who was first asked to recall events of February 1999 more than a year later, remembers Ms Rawlins coming to work that Friday afternoon and seeing the poster. Ms Rawlins said that the man in the photograph was "here the other day". In the poster photograph, there was a line on the right cheek that could have been created by folding the original before photocopying. Ms Rawlins, Mrs Maslen testified, pointed the line out to her, asking whether it might be a scar. Mrs Maslen thought it was, and, as best she remembers things, Ms Rawlins said, "I remember him having a scar". Mrs Maslen then suggested that Ms Rawlins contact the police, which she did. On her way home, Mrs Maslen saw police officers at the roadside and suggested that Ms Rawlins may have some information for them.

[10] Ms Rawlins, who is in her mid-twenties, testified that after 7 pm on either the Monday or Tuesday before Bettridge's body was found, a car pulled up outside the service station and two men entered. A third man stood outside leaning against the side of the car. The car was a station wagon, "baby poo brown" in colour, and "rounder" in appearance than a Sigma.

[11] The taller of the men who came to the takeaway section impressed her as "cute", "nicely dressed" in a blue, button-up chambray shirt over a white T-shirt, and jeans. He was about 28, taller than her 178 cm, with dark brown hair (perhaps with a curl at the back), and a "three day growth on his face". He had a scar near the chin, though on which side of the face Ms Rawlins cannot recall. The shorter man wore jeans that seemed too big for him. One of the men had "dirty teeth". The shorter man ordered chicken. Ms Rawlins recalls a conversation about the men "going partying or fishing or camping or something like that". The taller paid for the food taking a wallet from his back pocket which, she noticed, "had a little bit of money in it". They left after about five minutes, the car heading towards Wivenhoe Dam.

[12] Ms Rawlins testified concerning the impact of the poster. At first, she was "a little unsure" that the photograph was of the "good looking" man she had seen only once three or four days earlier. She was puzzled by what appeared to be a linear scar on the right cheek. She recalled that the taller man did have scar, but not on a cheek. As she continued to look at the poster, however, she "recognized him" as the taller man in the takeaway section a few nights earlier.

[13] Fynes-Clinton and Hall had taken a statement from Ms Rawlins on the Friday afternoon, intermittently in breaks from customer service. It does not mention a scar; nor did a type-written statement signed next morning. Bettridge had an old scar near the left side of his chin. But there was no right cheek scarring, though the poster made it look as though there may have been. Ms Rawlins's puzzlement about the appearance of that scarring is understandable. More difficult to comprehend is the absence of any reference to scarring in her statements. In view of the doubt generated by the poster photo, omitting, twice, to tell the police about the scar near the chin seems remarkable. Yet Mrs Maslen is sure that Ms Rawlins's identification was accompanied by a statement concerning scarring.

[14] Bettridge was slightly taller than Ms Rawlins. He was 27½ years old, with dark hair. He was found in a chambray shirt, an undershirt, and jeans, and with money. But aspects of Ms Rawlins's account suggest that the taller man was not Bettridge.

[15] Bettridge was not "skinny", which is how Ms Rawlins described the man's build in her statements. The undershirt was dark, not white. And Bettridge was found clean-shaven, not with a three-day growth. At the committal, Ms Rawlins was shown photos of the deceased's face, the garment worn beneath the shirt, and Van Embden's station wagon. She then testified that the face was not that of the taller man, that the undergarment was not the T-shirt she saw, and that both the shape and colour of Van Embden's station wagon were different from those of the vehicle in the service station driveway.

[16] Often frail are the powers of observation, and of recollection of observations, especially of strangers.[3] Recognition of this reality and an apprehension that jurors may not always appreciate that an honest, confident witness might well be wrong about identification[4] have prompted a variety of judicial responses directed to eliminating the prospect of a miscarriage of justice through mis-identification. The summing-up plays an important part. Judicial warnings, appropriately alerting the jury to the pertinent risks, are fashioned.[5] And there are other interventions. In England[6] and Canada,[7] poor quality identification evidence may lead to a directed verdict of acquittal. In the United States, a constitutional guarantee of due process makes the admissibility of an identification depend upon a judicial assessment that the testimony is sufficiently reliable to be evaluated by a properly instructed jury.[8] In Australia, where the trial judge's capacity to withdraw cases from juries is more constrained[9] than in England, judicial concern to guard against the danger posed by erroneous identification testimony and its insufficiently critical appraisal by jurors has also focused on the point of reception.

[17] In R v Carusi,[10] the New South Wales Court of Criminal Appeal[11] said:

"... identification evidence (as with any other evidence) is subject to the common law Christie discretion (Christie [1914] AC 545), whereby the trial judge may exclude any evidence where its prejudice to the accused outweighs its probative value. That discretion plays a large part in all identification cases, and one test as to whether evidence of identification generally should be excluded is whether the quality of that evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate direction or caution to the jury."

[18] Ordinarily, the discretionary exclusion of evidence as being of slight probative value but of large prejudicial effect is considered in a context where evidence is proffered to establish "collateral matters" and there is a risk "that a jury may attach undue weight to such evidence and regard it as probative of the crime with which the accused is charged"[12].That is not the sense in which the concept is deployed where the cogency of an impugned identification is the critical issue. But this exclusionary ground is available where there is a danger that the jury will "use the evidence or be affected by it in a way that the law does not permit".[13] So it is immaterial that it may be preferable to regard challenges to admissibility founded upon an inadequate tendency to prove a central issue as invoking the more general discretion to exclude evidence when to admit it will be unfair to the accused,[14] of which a common instance is "when the evidence in question is of relatively slight probative value but is highly prejudicial to the accused".[15] However that may be, markedly insubstantial identification evidence may be excluded as being so unreliable that no account should be taken of it.[16]

[19] How, then, should the evidence of Ms Rawlins be assessed?

[20] In R v Lobban,[17] Martin J cited with evident approval these remarks of the Appeal Division of the Victorian Supreme Court[18] in Rozenes v Beljajev:[19]

"The approach of the courts has been and should be one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge's directions concerning the considerations, both general and particular, affecting its reliability... Trial judges must be at pains to ensure that the discretion to exclude admissible evidence on the ground of unfairness is not used (contrary to Doney) to withdraw a case from the jury on the footing that any conviction would be unsafe or unsatisfactory...

... it could only be in a most exceptional case that one could say ... that the considerations affecting reliability were not `comprehensible to a jury and capable of assessment by them as the proper tribunal of fact'. ...",

"The warning in Rozenes v Beljajev concerning the need to avoid usurping the function of the jury should be heeded. ... If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated."[21]

[22] Ms Rawlins presents as an honest witness sure about her identification. The jury might therefore be swayed unduly by her confidence - a prospect with some capacity to prejudice a fair trial, especially as demeanour is so uncertain a guide to reliability in identification.[22] Still, her powers of observation and recall will be tested by cross-examination.[23] The jury will hear closing addresses: no doubt those of the defence advocates will expose the difficulties, which in their particulars are not hard to grasp. And the judge, in summing-up, can be expected to convey to the jury such warnings as are needed to avoid any remaining perceptible risk of a miscarriage of justice associated with the testimony.[24] Exclusion of Ms Rawlins's evidence about the taller man is not, despite its weaknesses, needed to ensure a fair trial.

[23] Section 59 of the Police Powers and Responsibilities Act 1997 provides:

59.(1) It is lawful for a police officer to use 1 or more of the following procedures to help gather evidence of the identity of a person suspected of having committed an offence -

(b) a photo board containing at least 12 photos of people of similar appearance, 1 of whom is the suspect;

(2) The police officer must comply with the procedures in the responsibilities code for identifying suspects...

(5) This section does not limit the procedures a police officer may use to help gather evidence of the identity of a person suspected of having committed an offence."

[24] Section 59(1) is said to be inconsistent with the use of the single photo of Bettridge in a poster used to gather evidence of the identity of a "person suspected of having committed an offence", viz whoever may have been criminally responsible for Bettridge's death. Sub-section (5) reveals, however, that s 59(1) is permissive. It would therefore be odd to interpret it as implicitly prohibiting the kind of "wanted" poster used in this investigation. Section 59(1) is no obstacle to the reception of Ms Rawlins's evidence.

[25] Part 6 of Schedule 2 of the Police Powers and Responsibilities Regulation 1998 "deals with the responsibilities of the police officer relating to identifying suspected offenders": Reg 88(1). Regulation 89(3) provides that "If reasonably practicable, the way a witness identifies a person during an identification procedure must be electronically recorded". Regulation 89(3), and therefore s 59(2), are said to have been contravened on the footing that no electronic recording was made when the statements were taken from Ms Rawlins about the identification of Bettridge as the taller man.

[26] In providing information to the police about the taller man, Ms Rawlins's statements had an incidental potential to identify suspects. But she was not engaged in a procedure relating to identifying suspected offenders in describing the taller man or in identifying him as Bettridge. If a crime caused his death, Bettridge was a victim, not a suspect.[25]

[27] Discussion during argument resulted in a consensus concerning the evidence to be adduced in chief from Ms Rawlins about the taller man's two companions if Ms Rawlins were to testify at all. In these circumstances, having concluded that the prosecution may call Ms Rawlins, the appropriate order is that the application be dismissed.

[1] [1978] HCA 22; (1978) 141 CLR 54; cf Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 194-196, 209-210, 216-218.

[2] It was not suggested that Mrs Maslen's evidence ought not to be admitted at the trial if Ms Rawlins's testimony is to go before the jury.

[3] See, in England, R v Turnbull [1977] QB 224; in Canada, R v Reitsma [1998] 1 SCR 769 rev'g (1997) 97 BCAC 303, 125 CCC (3d)1; in the United States, Manson v Brathwaite [1977] USSC 113; 432 US 98, 112, 119-120, 125-126, 133 (1976), Watkins v Sowders [1981] USSC 8; 449 US 341, 350-353 (1981); and in Australia, Cross on Evidence, Aust ed, par 1355. The literature is voluminous: eg D Deutscher & H Leonoff, Identification Evidence, (1991) Chap 1; B L Cutler & S D Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (1995), Chap 1, Part III; P B Ainsworth, Psychology, Law and Eyewitness Testimony, (1998) Chaps 1-6.

[4] cf Amore v The Queen [1994] 1 WLR 547, 553; Manson v Brathwaite at 120, 125-126; United States v Smithers 2000 FED App 0160P (6th Cir), 8 May 2000, especially fn 1.

[5] Domican v The Queen (1992) 173 CLR 555. In New Zealand, the identification warning is statutorily prescribed: R v Scott Watson [2000] NZCA 46 at [21].

[6] Daley v The Queen [1994] 1 AC 117, 128-129.

[7] Mezzo v The Queen [1986] 1 SCR 802.

[8] United States v Stevens [1991] USCA3 634; 935 F2d 1380, 1388-1392 (3rd Cir 1991); United States v Kwong 69 F 3d 663, 666 (2nd Cir 1995); Wray v Johnson [2000] USCA2 32; 202 F 3d 515, 524 (2nd Cir 2000); People v Gray 577 NW 2d 92, 94 (Mich 1998).

[9] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207; R v Morris, ex parte Attorney-General [1996] 2 Qd R 68, 75.

[10] (1997) 92 A Crim R 52 at 55-56. See also R v Bigeni (1990) 47 A Crim R 363, 372; R v Meier, NSWCCA, No 60592 of 1995, 21 May 1996, at 6; R v Marshall [2000] NSWCCA 210 at [23].

[11] Hunt CJ at CL, Newman and Ireland JJ.

[12] Scott v The Queen [1989] AC 1242, 1256; cf R v Schuurs and Anor [1999] QSC 176 at [39], [40].

[13] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 528 per McHugh J.

[14] R v McLean & Funk [1991] 1 Qd R 231, 236-7, 251; R v Swaffield (1998) 192 CLR 159, 192.

[15] R v Hasler, ex parte Attorney-General [1987] 1 Qd R 239, 243-244, 258, citing Bunning v Cross, per Stephen and Aickin JJ, at 73-4; and R v Lobban [2000] SASC 48 at [61]- [63], [69]-[73], [76]-[77].

[16] See R v Currie, CA No 313 of 1990, 21 December 1990, where at 9-10, Williams and Ryan JJ concurring, Dowsett J said "... the quality of identification evidence may be so poor that it is virtually useless, and ... it is appropriate for a trial judge to exclude such evidence". cf R v Macaulay CA No 540 of 1994, 11 April 1995 at 4-5; R v Murphy [1996] 2 Qd R 523, 524, 531; and R v Coupe, CA 277 of 1997, 9 December 1997.

[17] At [81], Doyle CJ and Bleby J concurring.

[19] [1995] VicRp 34; [1995] 1 VR 533, 554, 559.

[21] See also Carusi at 66; R v Singh-Bal (1997) 92 A Crim R 397, 403-404; cf R v Sopher (1992) 74 A Crim R 21, 25-26.

[23] Perhaps more than one, as the accused are not all represented by the same advocate.

[24] cf Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; The Queen v Swaffield at 192; R v Rankin [2000] QCA 54 at [17]- [18]. It may be taken, as typically it must be assumed, that the jury will act on the instruction: cf R v Brown [2000] VSCA 102 at [14]; Watkins v Sowders at 347.

[25] Which makes it unnecessary to evaluate the factors to be balanced in the exercise of a discretion to exclude illegally obtained evidence.