Regina v McKellar

1 FITZGERALD JA: I agree with Howie J. 2 WHEALY J: I agree with Howie J. 3 HOWIE J: This is an appeal against conviction after a trial by jury in the District Court. The jury found the appellant guilty of a charge of armed robbery contrary to s 97 of the Crimes Act 1900 4 Upon his conviction the appellant was sentenced by His Honour Judge Twigg QC to imprisonment for 6 years to date from 31 December 2000 and to expire on 30 May 2006. A non parole period was fixed of 3 years to date from 31 May 2000 and to expire on 30 May 2003. There is no appeal against sentence. 5 The issue ventilated in the trial and raised on this appeal is the admissibility of identification evidence led by the Crown in its case against the appellant and the sufficiency of that evidence to prove beyond reasonable doubt that the appellant was one of the persons who committed the robbery which was the subject of the charge. 6 The facts are in a short compass and can be briefly stated. On the evening of 10 May 1999 three persons were present in the Carrier's Arms Hotel in Bourke. One was Mr Doyle, the licensee of the hotel, the second was Mrs Doyle, his wife, and the third was a customer, Mr O'Shanessy. 7 At about 6.50 pm, as Mrs Doyle was turning off gaming machines in preparation for closing for the evening, a male person entered the hotel and asked her if it was too late to purchase a carton of beer. Mrs Doyle replied that it was not and the male person indicated that he would return with his mates. He then left the hotel. Mrs Doyle said that she was about a metre away from this man when she spoke to him. 8 About half an hour later, three men burst into the hotel. The first to enter was yelling abuse and brandishing a stick. He ran towards Mr Doyle and Mr O'Shanessy who were sitting watching television. That man attacked first Mr Doyle and then Mr O'Shanessy. 9 The second man to enter was, according to Mrs Doyle, the same person who had entered the hotel earlier and spoken to her about purchasing beer. The Crown alleged that this man was the appellant. He jumped over the bar where Mrs Doyle was standing, grabbed her, and held a knife to her throat. He told her that, if she moved, he would kill her. 10 The third man to enter was wearing a balaclava and stood at the other side of the bar. 11 The man, who was holding Mrs Doyle, grabbed the cash register and wrenched it from its wall-socket. He then threw it to the third man but it fell to the floor spilling coins. The second man then jumped the bar and ran to the door of the hotel. He held the door open while the third man, carrying the cash register, ran outside with it. The other two robbers then followed him out of the premises. 12 Later that evening police attended the hotel with a set of photographs which they laid out on a pool table. Included in the 16 photographs was a photograph of the appellant which had been taken on 17 October 1994. There was also a photograph of the appellant's elder brother. 13 The police first asked Mr Doyle to inspect the photographs in the absence of his wife. Mr Doyle pointed to the photograph of the appellant's brother and said, "That is very similar to him, it is not him but it is very close to him. If this is not him it would be his brother". Mr Doyle later signed that photograph. 14 Mrs Doyle then looked at the photographs but did not make an identification of any person that she had seen earlier that night. Evidence was given at the trial by a police officer that Mrs Doyle had said, apparently of the photograph of the appellant's brother, words to the effect that it was close but it wasn't actually him. She was asked to sign the photograph to which she was referring but she declined to do so. 15 On 21 May 1999 investigating police officers spoke to the appellant about the robbery after his arrest on other matters. Although he declined to answer any questions, the appellant agreed to participate in a line up. A photograph of the appellant was taken by police while he was at the police station following his arrest. 16 Between 21 May and 3 June the investigating police officer attempted to find people in Bourke who were sufficiently similar to the appellant and willing to participate in an identification parade. The officer was assisted in this endeavour at different times by the appellant's father and an Aboriginal Community Liaison Officer. He had also arranged for local radio stations to broadcast a message requesting volunteers to participate in an identification parade. However, despite his efforts the police officer was only able to find four candidates. As he believed he required at least twelve persons for an identification parade he did not proceed further. 17 As a result of his inability to hold an identification parade, the police officer determined to conduct a photographic identification. On 3 June the officer prepared images of persons he considered to be of similar appearance to the appellant. He made colour photocopies of photographs in the possession of police showing only the head and the top of the shoulders. One of the images was prepared from the photograph taken of the appellant on 21 May 1999. The next day the officer showed 15 of these images to Mr and Mrs Doyle. The images did not include one of the appellant's brother or the 1994 photograph of the appellant which had been included in the earlier array seen by the Doyles on 10 May. 18 On 4 June 1999 Mrs Doyle identified the image of the appellant as the second robber, the one who had held the knife to her throat. Mr Doyle was unable to identify any person as being one of the robbers. Mr O'Shanessy and other persons who might have been able to identify any of the persons involved in the robbery were unable to make an identification from these images. 19 At the trial evidence was led by the Crown, over objection from the defence, of the identification by Mrs Doyle of the appellant on 4 June. A video of that identification was shown to the jury. There was no other evidence to support the Crown's case that the appellant was the robber. 20 In her statement dated 10 May 1999 Mrs Doyle gave a description of the second robber. She said he was five foot seven to five foot eight, thin build, short dark hair in a crew cut style, dark coloured pants, early 20's in age, part-Aboriginal with an unshaven appearance. 21 When asked in evidence in chief to describe the man she saw in the hotel at about 6.50pm, Mrs Doyle said that he was "about five foot, bit over five foot". Ms Doyle said her own height was about 5 foot five or six. When cross-examined about the discrepancy in her evidence as to the height of the robber and the height of the man she had seen earlier whom she asserted to be the robber, she said her statement to police was inaccurate and the robber was roughly her own height. 22 In cross examination Mrs Doyle said that she had seen the person, whom she identified as the second robber, in the hotel with his girlfriend on two or three other occasions in 1999 the year of the robbery. She was unchallenged on this evidence. 23 The appellant gave no evidence at the trial and called no witnesses. 24 The first ground is that the trial judge was in error when he declined to withdrawal the evidence of Mrs Doyle's identification of the appellant from the jury. The second ground asserts that his Honour was in error by allowing the video tape of the identification by Ms Doyle to be played and tendered before the jury. These two grounds were argued together on the basis that the trial judge erred in admitting the evidence of Mrs Doyle's identification of the appellant as the robber either because the evidence was not admissible or because his Honour ought to have excluded it under ss 137 or 138 of the Evidence Act. 25 After the jury was empanelled but before the Crown opened its case, a voir dire hearing was conducted on the application of the defence. The evidence on the voir dire included the photographs shown by police to the witnesses on both 10 May and 4 June 1999, statements of witnesses including that of Ms Doyle, a video of the identification by Mrs Doyle on 4 June, evidence of Mrs Doyle given at committal proceedings and oral evidence before his Honour from the officer in charge of the investigation concerning the attempts made by him to conduct a line up. 26 From the evidence of the police officer on the voir dire it is apparent that the appellant was arrested by police on 21 May 1999 for other matters unconnected with the robbery. Although the police suspected his involvement in that offence, he was not arrested for the robbery as the police had no evidence of his involvement because of the failure of the Doyles to identify him on 10 May. It is also clear that, after the appellant was photographed on 21 May, he was released to bail once the police we unable to find sufficient persons to hold a line up on that day. Before being released, the appellant told police that he would make himself available for an identification parade at some later time. 27 At the conclusion of the voir dire and addresses by counsel, his Honour gave an ex tempore judgment admitting the evidence of the identification by Mrs Doyle. It has been submitted that his Honour made a number of errors in the course of that judgment and that, as a consequence, erred in admitting the identification evidence. By reason of my view as to the merits of the fourth ground of appeal, which would result in the conviction being quashed and a verdict of acquittal being entered, it is unnecessary for me to consider the particular arguments relating to the admissibility of the evidence and his Honour's reasons for admitting it. 28 However, I should refer to one matter which was raised in oral argument on the hearing of the appeal although it was not raised before the trial judge or in written submissions in support of the appeal. This concerned the admissibility of the evidence under s 115 of the Evidence Act and the meaning of the words "in the custody of a police officer" appearing in two of the subsections of that section. 29 Section 115 provides: Exclusion of evidence of identification by pictures 115.(1) In this section: "picture identification evidence" means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.

(2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.

(3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if: (a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, and (b) the picture of the defendant that was examined was made before the defendant was taken into that police custody.

(4) Subsection (3) does not apply if: (a) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody, or (b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody.

(5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless: (a) the defendant refused to take part in an identification parade, or (b) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody, or (c) it would not have been reasonable to have held an identification parade that included the defendant.

(6) Sections 114 (3), (4), (5) and (6) apply in determining, for the purposes of subsection (5) (c) of this section, whether it would have been reasonable to have held an identification parade.

(7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant: (a) if the picture of the defendant was made after the defendant was taken into that custody---inform the jury that the picture was made after the defendant was taken into that custody, or (b) otherwise---warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence. 30 At the trial one of the grounds upon which objection was taken to the admission of the evidence of the identification of the appellant was that the evidence was rendered inadmissible by reason of subsection 115(2). That contention was not pursued at the hearing of the appeal. 31 It was further submitted to the trial judge that the evidence should have been excluded under subsection 115(5). It was argued that, because it had not been shown that it would not have been reasonable to have held an identification parade, the evidence was inadmissible. In my opinion it is unnecessary to consider the particular challenges made to his Honour's ruling in respect of that matter or the validity of his determination that the police officer did all that he could do to conduct an identification parade because the subsection was not applicable. 32 It will be recalled that the appellant had been arrested on 21 May for other offences and then released to bail. He was not charged with the offence of armed robbery at that time. When Mrs Doyle was shown the array of images on 4 June, the appellant was on bail for unrelated matters and had not been arrested or charged with the armed robbery of the hotel. 33 It was submitted by counsel appearing on behalf of the appellant, Mr Odgers SC, that, notwithstanding that the appellant was not actually in the physical custody of police at the time of the identification by Mrs Doyle, the words "in the custody of a police officer" in subsection 115(5) should be construed to cover the factual situation in the present case. It was submitted that a meaning akin to that which is found in the area of family law should be adopted so that the term would encompassed a situation where the police had (in counsel's words) "some kind of legal power or influence over the person". Mr Odger's submissions seemed to accept that this was the widest possible interpretation which might be given to the words. 34 I doubt that, even if it were possible to construe the words in the way Mr Odgers suggests, that it would cover the factual situation in the present case. I do not see on what basis it could be asserted that, once the appellant had been released on bail from the police station, the police had any additional "legal power or influence" over the appellant than they had over any other member of the community. It was not a condition of the appellant's bail that he attend for an identification parade nor could such a condition legitimately have been imposed. The bail determination and the conditions, if any, imposed upon the appellant related to other offences unconnected with the robbery. 35 The police might have been in the position to regain "some kind of legal power or influence" over the appellant, if he were to breach one of the conditions of his bail. The police might then have been empowered to arrest him to bring him before a court for the offences for which he had been bailed. But there is no suggestion that at the time of the identification by Mrs Doyle the police could have lawfully arrested the appellant for the robbery, or for any other reason, even if they had wished to do so. The police officer accepted that he had insufficient evidence prior to the identification of Mrs Doyle to charge the appellant with the robbery. 36 Particular emphasis was placed by Mr Odgers upon the fact that the appellant had volunteered to participate in an identification parade at some time after his arrest on 21 May. But at the present time I fail to see how such an unenforceable agreement could create any relationship between the police and the appellant of the kind which it was suggested should be encompassed by the term "in the custody of a police officer" as used in s 115. 37 But in any event, I see no justification for extending the meaning of theses words as used in subsection 115(5) in accordance with the submissions made on the appellant's behalf. Whether the words "in the custody of a police officer" should be given any other than the normal meaning which would be attributed to them, does not need to be determined on this appeal because of the particular factual situation in the present case. However, I would note in passing that the term "police custody" appears in subsection 115(2) in a context where the word "custody" must mean "under physical restraint". Further, it cannot be irrelevant that throughout the Evidence Act and in the Dictionary to the Act, words and terms used in the provisions of the Act are defined where any but the normal meaning of a word or term was intended by the drafter or there may be a doubt arising about the meaning of a word or term used in the Act. 38 The basis upon which it is submitted that some special or extended meaning should be given to the term " in the custody of a police officer" in subsection 115(5) is that otherwise the section does not accord with the proposals made by the Australian Law Reform Commission in respect of the rules to apply to the admissibility of picture identification. However, as Mr Odgers conceded, not all proposals put forward by the Commission in relation to the rules of evidence were adopted by the legislature in the provisions of the Evidence Act. However, it is said that if the normal meaning is attributed to the term, the application of the subsection would lead to absurd and illogical results which could never have been intended by the person who drafted the provision or by the legislature which enacted it. 39 Although I doubt that it was strictly necessary or legitimate to do so, the court was referred to the Australian Law Reform Commission's Interim Report No 26 Volume 1. At paragraph 835 and following, the Commission considers proposals relating to identification by police photographs. After acknowledging the dangers inherent in photographic identification, the Commission discussed its proposals relating to this area of identification evidence. 40 At paragraph 838 the Commission considers the admissibility of evidence of photo-identification where the investigators already have a suspect in mind for the offence being investigated. (That was the situation in the present case.) After quoting from the judgment of Stephen J in Alexander v The Queen (1981) 145 CLR at 417, the following is stated (the underlining is mine): It is proposed that evidence of photo-identification by police photographs carried out when a suspect is being held under restraint by the police should not be admissible if an identification parade was not held beforehand unless it would not have been reasonable to hold such parade.32 For similar reasons, admission of evidence by `Identikit' and like pictures should be controlled in the same way.33 Finally, the admissibility of such evidence will be subject to the proposed exclusionary discretions which relate to prejudicial evidence and illegally or improperly obtained evidence. 41 The footnote numbered 32 in this passage is: For the interpretation and application of these terms see above para 833. Stephen J focussed on the state of knowledge of the police, not on whether the suspect was in custody. The latter was chosen for the proposal as being more practical. 42 Paragraph 833 is concerned with when it was reasonable for the police not to hold an identification parade and contains nothing germane to the interpretation of the meaning of "in the custody of a police officer". 43 In my view there is nothing in that part of the Commission's report to which the court was directed which assists the argument advanced by Mr Odgers. To the contrary, it seems plain that the normal meaning to be applied to the words "in the custody of a police officer", that is "under physical restraint by a police officer", is precisely what the Commission had in mind and that s 115 was drafted in accordance with the Commission's proposals. Footnote 32 shows that the Commission made a policy decision not to follow the view of Stephen J that something less than custody should trigger the necessity for the police to conduct an identification parade during the evidentiary phase of an investigation. 44 Whether, as Mr Odgers asserted, an interpretation of the words in the subsection consistent with the normal meaning of the words and the Commission's apparent intention would lead to absurd and illogical results in practice, is not a matter for this court to address but for the legislature. 45 The fourth ground of appeal is that the verdict is unreasonable in that it cannot be supported having regard to the evidence. This ground requires the court to consider the evidence at the trial and determine whether it was open for the jury to convict the appellant on the evidence before them. Another way of considering the ground is for the court to ask itself whether there is a significant possibility that an innocent person has been found guilty by the jury. Of course in an identification case, the court must address the issue having regard to the special caution that attends upon visual identification in a criminal trial. 46 I have sufficiently indicated the evidence before the jury except to refer to one piece of the cross-examination of Mrs Doyle. After Mrs Doyle was shown the array of photographs of 10 May by defence counsel the following questions and answers took place:

Q. If you have a look is there a photograph that you see has got a signature on it? A. Yes but my husband signed it.

Q. Is that the same photograph that you told the officer looks like the person? A. Said that is the person.

Q. Sorry? A. I said it looks like the person.

HIS HONOUR: Q. He's asking you is that the same photograph you made a comment about? A. That's the same photograph I made a comment about.

WILSON: Q. But you wouldn't sign it, is that right? A. No, I wasn't - no.

Q. And when you saw the list of photographs you didn't see any photograph that was signed, did you? A. No.

Q. They were unsigned, is that right, when you looked at them? A. That's right, yeah.

Q. And you made a comment to the police officer that that particular one that your husband signed looks like the person, is that right? A. That is the person.

Q. Do you say that that photograph there is the person? A. Yes. Looks like him.

Q. You're not sure, are you? A. No, looks like him.

Q. But you just said is the person, didn't you? A. Yes, spitting image of him.

Q. So that the photograph there was so close that you're now thinking that it even could be that person, is that right? A. Yeah definitely that person.

Q. Are you sure about that? A. Yeah.

Q. So that you're now pointing to the photograph signed by your husband that was shown to you on 10 May 1999, is that right? A. Yes.

Q. When you were shown that group of pictures by my friend earlier today he asked you did that appear to be the selection of photographs you first looked at the pool table at the hotel on 10 May 1999 and you said yes it seems to be - A. Yes.

Q. - the same group of photos? That was the selection of photographs for which you didn't make - you didn't sign any photograph? A. No.

Q. And therefore you didn't make any selection that evening, is that right? A. No.

HIS HONOUR: Q. Are you agreeing with that? A. Yes I'm agreeing with that.

WILSON: Q. You're now saying, is it, that the person who committed the offence, the man with the knife, number two, is the same person as the photograph that your husband signed, is that what you've just said? A. I don't know. I know my husband said there was one there that looked very similar to him, that's all I know.

Q. No I'm not asking what your husband said, I'm asking - A. No I know that.

Q. - what you say now? A. I couldn't recognise seeing them at the hotel.

Q. No but now you've said that that person that committed the offence is the one in that folder, haven't you? A. No, looks very much like him.

Q. Didn't you earlier say it was him - A. To me.

Q. Sorry? A. Looks very much like him.

Q. Earlier you said it was him, didn't you? A. Very much like him.

Q. Did you say it is him? A. Yes I think it is. 47 Great weight was place upon this piece of evidence by Mr Odgers in arguing this fourth ground. He submitted that this piece of evidence would itself be sufficient to give rise to a reasonable doubt in the mind of the members of this court about the reliability of Mrs Doyle's identification of the appellant on 4 June. It was asserted that this porion of the evidence showed that Mrs Doyle had identified the appellant's brother as the robber and, therefore, she had identified two different people. 48 I do not find this part of the evidence standing alone to have the significance attributed to it by Mr Odgers. The jury were concerned with the reliability of the identification made by Mrs Doyle on 4 June 1999 and not whether she may have been reliable in any identification she made in court on 30 May 2000. The jury were entitled to come to the view that her identification of the appellant's brother in that part of the cross-examination extracted above had more to do with the cross-examiner's skill and confusion on her part than raising any question about the reliability of her identification of the appellant almost twelve months earlier. 49 But that evidence does not stand alone and must be considered in light of the pictures that Mrs Doyle saw both on 10 May and 4 June. The arrays of both dates were placed before this court. I have inspected them closely. I have also seen the applicant sitting in court during the hearing of the appeal. The photograph of the appellant's brother included in the array of 10 May but not 4 June looks remarkably like the appellant. Having seen the photograph and the appellant in person it is easy to understand the remark made by Mr Doyle and why he signed the photograph of the appellant's brother after seeing the photographs on 10 May. 50 Further having seen the photograph of the appellant which was included in the array of 10 May it is perfectly understandable why neither Mr or Mrs Doyle chose that photograph as being the second robber if the robber was indeed the appellant. There is little similarity between the appearance of the appellant in the earlier photograph and either the appearance of the appellant's brother in the photograph shown to the Doyles or the appearance of the appellant in the image taken from the photograph of 21 May. 51 The appearance of the appellant's brother in the photograph from the array of 10 May is so similar to the appearance of the appellant in the image taken from the photograph of 21 May, that I have little confidence in the ability of Mrs Doyle to discriminate between them. This is perhaps where the cross-examination of Mrs Doyle set out above has more relevance than might otherwise be the case. Having myself seen the pictures of the appellant and his brother, I can understand why Mrs Doyle was confused about whether the photograph of the appellant's brother was the robber or not. Of course shortly before the cross-examination she had been reminded of the appearance of the appellant in the image she identified on 4 June when she was shown that picture during her evidence in chief. 52 There are a number of matters which I find unsatisfactory about the identification, now that I have had the benefit of seeing the two arrays shown to the Doyles. Firstly, there is a distinct possibility that some type of displacement occurred as a result of Mrs Doyle having seen the photograph of the appellant's brother on 10 May. Mrs Doyle thought that the photograph was like the robber although it was not him. She also knew at some stage that her husband had signed one of the photographs on 10 May. It is not clear from the evidence when she gained that knowledge. There is a possibility that when on 4 June she saw the photograph of the appellant, she was influenced to identify him as the robber because of what she recalled from the photograph of the appellant's brother she had seen earlier. 53 Secondly the array shown to Mrs Doyle on 4 June did not include the photograph of the appellant's brother. I can understand why the police might have taken that course in light of the fact that Mrs Doyle had not identified the photograph of the brother and what she said about it. But having regard to the striking similarity between the appellant and his brother as they appear in the two pictures, I am far from confident that, if the photograph of the appellant's brother had been included in the later array, Mrs Doyle could have discriminated between the two. The portion of the cross-examination of Mr Doyle set out above tends to confirm this view. 54 Thirdly, Mrs Doyle was never asked to attempt to indicate what it was about the image of the appellant that led her to believe that the person shown there was the robber in light of the fact that she did not believe that the person shown in the photograph of the appellant's brother was the robber. As I have already indicated, I have difficulty seeing any significant difference between the features of the appellant and his brother as displayed in the image and the photograph, apart from some minor difference in their hairstyles. 55 I appreciate that it is often very difficult for a person to describe the features of another person even if the two persons are friends or members of the same family. Further, many people would be unable to articulate what it is about the features of a particular person which permits them to discriminate between different people in the process of an identification. But these difficulties cannot be allowed to mask an unreliable identification. An inability to give an accurate description or to articulate how a particular identification is made deprives the jury of some relevant material upon which to test the accuracy or reliability of the identification upon which they are asked to convict the accused. 56 Fourthly, the identification of the appellant comes one month after the robbery. Clearly Mr Doyle had no longer retained a sufficient mental image of the robber to have chosen the picture of the appellant notwithstanding what he had said about the photograph of the appellant's brother on 10 May. In light of the similarity between the features of the persons displayed in the two photographs, his failure to nominate the appellant appears to me to be somewhat surprising. 57 On the other hand Mrs Doyle positively identified the appellant on 4 June although she believed on 10 May that the appellant's brother was not the robber. Even taking into account arguments as to why Mrs Doyle was more likely to have retained the mental image of the robber than her husband, I find it difficult to be confident that she had retained such an accurate image that she could one month after the robbery determine that the robber was the appellant and not his brother based upon the pictures she saw on 10 May and 4 June. 58 Fifthly, there is the conflicting evidence from Mrs Doyle as to the height of the robber. By itself, as Mr Odgers conceded, this would not have been sufficient to raise a doubt about the correctness of the jury's verdict. But it is a matter which has to be considered together with the unsatisfactory features of the identification evidence. There was no evidence as to the height of the appellant's brother. 59 Finally, there was no evidence that the second robber could not have been the appellant's brother. 60 After examining the pictures of the appellant and his brother and having considered the evidence surrounding the identification of the appellant by Mrs Doyle, I cannot exclude the reasonable possibility that the robber was in fact the appellant's brother. This was a case concerning the reliability of Mrs Doyle's identification on 4 June and I do not believe that the jury were in any better position to make an assessment of that matter than is this court. It is well known that even the most honest and convincing witness can be mistaken. 61 Therefore, I am of the opinion that the fourth ground has been made out. 62 I propose that the appeal be allowed. The conviction should be quashed and a verdict of acquittal entered.

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