SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant was convicted on 14 December 2005 of one count of armed robbery.  He appeals against his conviction contending that the identification evidence of the witness Michael Strong by means of a photo board was wrongly admitted and that the jury verdict cannot be supported by the evidence and is unreasonable and unsafe and unsatisfactory.

The evidence

[2] The consideration of these grounds of appeal requires a review of the evidence.  It is not contentious that on 3 June 2004 Mr Strong was working at a "Grape" liquor store as a store attendant.  Mr Anifandis, a wine company representative, was speaking to him.  A man wearing a baseball cap and sunglasses and armed with a knife entered the store and ordered Mr Strong to open the till.  He complied.  The man reached across, took $350 from the till, put the knife down the front of his pants into something that looked like a sheath and left.  The issue at trial was whether the appellant was that offender.

[3] The robbery was recorded on a closed circuit television system.  The recording was transferred to a computer disk and given to police who made a video and still photos which were tendered and shown to the jury.  I have also viewed them more than once.  The offender could not be clearly identified from the video recording but it showed that he was a medium to solidly built male, about 30 years old, wearing dark pants, a baseball cap and sunglasses.  His green shirt was unusual.  It had distinctive three-quarter length sleeves, a "polo shirt" style collar and a thick dark stripe across each shoulder, resembling backpack straps.

[4] Mr Anifandis gave evidence that he was about half a metre from the offender when the offender approached Mr Strong.  Mr Anifandis stepped back when he saw the offender was armed and realized it was not a joke.  He described the offender as wearing dark pants, a baseball cap and sunglasses.  Mr Anifandis said he was concentrating on the knife rather than observing the offender.  He thought the incident seemed to take an eternity but it probably took no more than 20 seconds.  He said he described the offender to the police shortly after the robbery as being about 180 cm tall with medium build.  He agreed that both he and Mr Strong were upset by the incident, especially Mr Strong.

[5] Police officers recorded his description of the offender as "early to mid 30s, about 180 centimetres tall with medium build, ... dark brown hair, ... full cheeks, he was wearing dark pants, I think he had a white T-shirt on, he had dark sunglasses and a baseball cap".

[6] On 16 June 2004 he attended the police station, looked at some photographs on a photo board (tendered at trial) but was unable to identify the offender.  His viewing of the photo board was recorded on video (also tendered at trial).  I have watched the video both at the hearing of the appeal and afterwards.  Mr Anifandis then told police that, even though the incident only took one to two minutes and the offender was wearing sunglasses and a cap, he was pretty sure that if he saw the offender again he would recognize him.  He said that he was more concerned about what the offender was doing with the knife than anything else.  After looking carefully at the photo board for some time, he finally observed that the offender's cheeks were a lot fuller than any of the photographs depicted on the board;  he was unable to make any identification.

[7] Mr Strong gave evidence that when the offender demanded that he open the till, Mr Anifandis backed away.  The offender came around the counter holding the knife.  He was wearing dark sunglasses, a baseball cap, black tracksuit pants with a white stripe and a green or olivey green top.  He thought the offender was about 35 and around six foot tall.  The offender backed away with the money from the till.  When he reached the door, he turned back and looked at Mr Strong, putting the knife down the front of his pants before running off.  Mr Strong agreed the incident happened quickly (no more than about 20 seconds) and he was shocked by it.  The sunglasses and cap obscured most of the offender's face.

[8] Shortly after the offence police officers recorded him as giving the following description of the offender:  "... about 30 years old, he was about five eight or five nine with an average build.  He had a fair complexion with a two-day stubble beard.  He had dark hair but his hat covered most of his hair.  He had black tracksuit pants with one [white] stripe down the side.  He had an olive green shirt.  He had very dark glasses and a two-tone hat.  The hat was dark at the back and a light brim".

[9] About three and a half weeks later on 30 June 2004 police showed Mr Strong the same selection of photographs on a photo board as they had earlier shown to Mr Anifandis.  Mr Strong's viewing of the photo board was videotaped (tendered at trial).  I have viewed that videotape in Court and afterwards.  Mr Strong looked at the photo board of 12 photos and immediately identified photograph number two as the offender in these terms:

"Number 2, I would say.  ... Judging by the mouth.  I mean I couldn't see the eyes but the mouth, yeah, I remember it very distinctly.  I would say number 2."

After he endorsed the photograph "the picture of number 2 has the same mouth and chin as the person I recognized" he again looked at the photo board and said "Yeah - recognize that mouth and chin - without fail."

[10]  On 21 June 2004 the police took possession from the appellant of a pair of black track pants with two stripes down the side, perhaps consistent with those worn by the offender.  A few months later, on 23 August 2004 police took possession of a green shirt with three-quarter length sleeves, a "polo shirt" style collar and dark grey and black stripes across each shoulder resembling backpack straps.  The shirt was found in a cupboard in a back bedroom in the house of the appellant's parents where the appellant was then living.  There was no evidence that any other male matching the general description of the offender lived in or frequented the house.  Police also located a pair of shoes and two baseball caps not inconsistent with those worn by the offender.  Neither baseball cap was similar to the cap worn by the offender.  The shoes appeared similar to those worn by the offender.  The prosecution invited the jury to infer that the shirt, pants and shoes were worn by the offender and linked the appellant to the offence.

[11]  I have examined the shirt tendered at trial.  It bears a remarkable resemblance to the unusual shirt worn by the offender and depicted in the video of the offence and the still photos taken from the video.

[12]  The appellant did not give or call evidence.

Was the photo board wrongly admitted in evidence?

[13]  The appellant contends that Mr Strong did no more than identify the mouth and chin of the appellant as being the same as the offender and that it was wrong for him to assume from that limited identification that the appellant was in fact the offender;  his identification of the photograph should not have been left to the jury as positive identification of the offender;  it was no more than evidence that the appellant's photograph depicted the same mouth and chin as the offender.  The appellant contends this error was compounded because the photo board itself was unfair in that the photograph of the appellant is the only photograph of a person with thin lips.

[14]  Identification by the means of photos shown to a witness by police is generally admissible, although a trial judge has a discretion to exclude it if the strict rules of admissibility would operate unfairly against the accused person:  Alexander v The Queen;[1]Festa v The Queen.[2]  The dangers associated with such identification is that first, there is an inherent risk of error associated with suggestibility and second, the jury may surmise from the fact that police have photographs of a suspect that the suspect is a person with a criminal history or that police have other information not part of the evidence at trial about the suspect which implicates him in the offence.  The latter danger means that evidence of identification by photos provided by police can be unfairly prejudicial so that judges will often exclude such evidence where its probative value is slight.[3]

[15]  The photo board depicts photos of 12 Caucasian males of about 30 years of age with short, dark hair.  It provides a representation of photographs of males generally similar to the description of the offender given by Mr Anifandis and Mr Strong as supported by the video recording of the robbery.  There is nothing in the photo board to draw attention to photograph number two, the photo of the appellant.  It is true that the appellant's photo depicts him with thin lips but photograph number one also depicts a male with thin lips.  The 12 photos seem to contain an acceptably diverse sample of lips, mouths and chins.  Significantly, no objection on the basis of unfairness of the selected photos was taken to the photo board at trial.  It should not have been excluded on the basis that it was inherently unfair in the selection of photos it contained:  see R v Brookes.[4]  This contention is without substance.

[16]  The appellant's principal contention is that the judge should have excluded Mr Strong's evidence of identification because it was not in truth a positive identification but merely an identification of a similar mouth and chin.  He emphasizes Pitkin v R.[5]  In Pitkin a witness saw three police photographs of Mr Pitkin and said "this looks like" the offender.  There was no identification of Mr Pitkin in a line up, or by a photo board, or in court.  The witness' identification was the sole evidence implicating Mr Pitkin in the offence.  Deane, Toohey and McHugh JJ referred to the disadvantages of using photographs of suspects produced by law enforcement agencies to identify an offender,[6] adding:

"In the context of the above danger of prejudice to an accused in prosecution evidence of identification by a witness' earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification.  If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification.  All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt."[7]

[17]  The present case, unlike Pitkin, was not necessarily one of verbal ambiguity.  Mr Strong's evidence was capable of being accepted by the jury as showing that, although he did not see the eyes of the offender, he recognized in photo number two on the photo board the mouth and chin as that of the offender and in this way he was able to identify this photo as a photo of the offender.  His final statement after endorsing the appellant's photo appeared to me to make clear that he was identifying the photo of the appellant as the offender because he recognized the offender's mouth and chin in the photo.  The identification was admissible in evidence.  There were certainly weaknesses with Mr Strong's identification, especially because it was only made by reference to the mouth and chin.  Of further concern was that it was not supported by Mr Anifandis who viewed the same photo board and did not identify the appellant as the offender.  Had Mr Strong's evidence, as in Pitkin, been the only evidence, the trial judge should have excluded it because its probative value would not have been sufficient to outweigh the prejudicial aspects of police photo board evidence.  It was not the only evidence implicating the appellant.  Mr Strong's identification did receive very strong support from the evidence of the location of the unusual shirt, the same unusual style of shirt worn by the offender, a few months after the robbery in a bedroom in the home in which the appellant was then living.  The primary judge rightly allowed Mr Strong's identification evidence to be admitted.  It did, however, require careful directions to the jury as to its use.

[18]  The learned primary judge gave the jury the following apposite directions.  There was a danger that identification through photographs was likely to be less reliable than direct personal identification because of differences in appearance between an offender and a suspect being less noticeable when a photograph is used;  photographs are two dimensional.  There is subconscious pressure upon a witness to assist police and to pick out a photograph of a suspect who looks like the offender even though the witness cannot positively identify the subject of the photograph as the offender.  In considering Mr Strong's videotaped identification of the appellant's photograph as the offender, remember that he purported to identify the appellant only from his mouth and chin so that he was not identifying the whole face.  Take particular care before relying on the identification because of the short time frame over which Mr Strong had the offender under observation;  the fact that they were strangers;  the fact that Mr Strong was in a stressful situation;  and the fact that the offender's face was partly obscured by a baseball cap and sunglasses.  The following matters were specific weaknesses in the evidence.  Mr Strong said the offender was wearing black tracksuit pants with one white stripe whereas the pants located in the appellant's possession had two white stripes.  There was a delay between when the incident occurred on 3 June 2004 and Mr Strong's photo board identification on 30June 2004.  In the photo board identification Mr Strong purported to identify the appellant from his mouth and chin only, not from his whole facial features.  He used the words "I'd say it was him" which may suggest some uncertainty.  Mr Anifandis saw the same photo board and was not able to identify the offender, commenting that none of the persons on the photo board had the full cheeks of the offender.

[19]  The experienced barrister who appeared for the appellant at trial did not ask for any redirections on identification and nor is it now contended that the judicial directions as to identification were in any way flawed.

[20]  Mr Strong's identification of the appellant as the offender from the photo board was admissible in evidence.  This ground of appeal fails.

Was the jury verdict unreasonable or not supported by the evidence?

[21]  The respondent concedes that the verdict of guilty would have to be set aside if the only evidence were Mr Strong's identification.  As I have stated, it is not the only evidence.

[22]  Despite the fact that Mr Anifandis looked at the same photo board as Mr Strong and was unable to identify the offender, there are two pieces of evidence which in combination satisfy me that the jury were entitled to be satisfied of the appellant's guilt.  The first is Mr Strong's identification of the appellant as the offender because they had the same mouth and chin.  This identification is not inconsistent with the still photographs of the offender taken from the video recording of the offence.  The second damning piece of evidence is that police took possession of an unusual shirt from a bedroom in the house in which the appellant was living a few months after the offence.  This shirt is the same style as the unusual shirt worn by the offender in the robbery.  There was no evidence that any other male of the general description of the offender lived in or frequented the house in which the shirt was found.  The combined features of the colour green, the stripes across the shoulder giving the effect of backpack straps, the "polo shirt" style of the collar and the three-quarter length sleeves make the shirt very distinctive and uncommon.  This evidence in combination makes a convincing case against the appellant.

[23]  The jury were entitled to conclude that Mr Anifandis was a truthful witness who was simply not as observant as Mr Strong:  he probably did not get as good an opportunity to observe the offender as Mr Strong, for example, Mr Anifandis told police that the offender was wearing a white T-shirt when this seems to be clearly inconsistent with the video recording of the offender.

[24]  Having carefully reviewed the whole of the evidence I am confident the jury were entitled to be satisfied beyond reasonable doubt that the accused was guilty:  M v The Queen;[8]MFA v The Queen.[9]

[25]  I would dismiss the appeal.

[26]  JERRARD JA:  In this appeal I have read the President's reasons for judgment and proposed order, and respectfully agree with those.

[27]  MULLINS J:  I agree with McMurdo P.