DISTRICT COURT OF QUEENSLAND

1. [1]
   Richard Thomas Ackerman and Andrew Hazel are charged with a series of offences arising out of the abduction and assault of a Shannon Gregory.^[1]  Gregory had sold a motor vehicle to Hazel for $2,000 in early October 2005, without telling Hazel the vehicle was subject to finance.  On the prosecution case it was this deception that caused the acts of reprisal now charged in the District Court.

2. [2]
   In these proceedings Ackerman applies for a ruling that a photoboard identification by Gregory conducted at Logan Centre police station on 17 December 2005 be excluded in the exercise of the trial judge’s discretionary powers.  Section 590AA Criminal Code authorises the determination before trial of a range of legal issues which may arise at trial.  The application to exclude the photoboard identification is brought under this section.

3. [3]
   For the purposes of the application the following facts are accepted by the parties, or asserted as capable of proof by the prosecution.

4. [4]
   At the time of the abduction Gregory was living at 17 Myles Court, Boronia Heights.  Myles Court is a cul-de-sac.  The abduction was carried out by two men, one of whom Gregory knew (Hazel), the other he did not.  The prosecution say the other man involved in the offences is Ackerman.

5. [5]
   Gregory had returned to the Myles Court residence at about 4.30 pm on 2 December 2005.  He was in a car driven by his half‑brother Barrie Wood.  What happened is that as the two men drove into Myles Court they were flagged down by a man carrying a clipboard.  The man approached Wood and told him he was conducting a survey in the local area.  At that point Hazel appeared from behind the vehicle and physically removed Gregory from it.  Gregory was assaulted, bound, and placed face down in the rear compartment of a red Corolla sedan.

6. [6]
   Over a course of time Gregory was threatened with violence (including threats to cut his throat and ears and break his kneecaps, etc), and death, and he was repeatedly assaulted. One of the men held a knife to his throat and demanded the pin number of his ATM card. A sum of $850 was subsequently withdrawn from Gregory’s account using his pin number. Gregory was left on a deserted road about 100 km from Brisbane. He was told his family would be hurt if he called the police.^[2]

7. [7]
   The evidence the prosecution intends to lead against Ackerman at trial to identify him as the other man is a combination of circumstantial evidence and the photoboard identification conducted on 17 December 2005. The main features of the circumstantial evidence can be summarised briefly.

8. [8]
   The red Corolla used to commit the offence had been rented by Hazel. The police were able to locate the vehicle and carry out a search of it before it was cleaned. An attendance receipt issued by the Greenbank RSL on 2 December 2005 in Ackerman’s name was found in the Corolla.  Additionally, Ackerman’s fingerprint was located on the rear surface of the  receipt.

9. [9]
   Video surveillance film taken at the Greenbank RSL shows two men, one of whom is said to be Hazel, and the other Ackerman, at the RSL on 2 December 2005.  A red Corolla, like the one used in the offence, was filmed leaving the Greenbank RSL at 1.41 pm.

10. [10]
    The proofs in the hands of the prosecution are therefore capable of supporting inferences that Ackerman was in the red Corolla when it left the Greenbank RSL at 1.41 pm, and that the same vehicle was in Myles Court at 4.30 pm when the incident occurred.

11. [11]
    A telephone call, purporting to be from the Greenbank RSL, received by Wood earlier on on 2 December provides another link to the RSL.  The caller informed Wood he had won a prize and asked for confirmation he would be home at 6 pm that day.

12. [12]
    The circumstantial case identifying Ackerman as the second man involved in the abduction is insufficient to support a conviction if the jury consider it reasonably possible that he was in effect “replaced” in the car by someone else between 1.41 pm (the time the car left the Greenbank RSL) and 4.30 pm (the time the incident commenced).  The identification evidence is important for the prosecution as it is capable of removing any reasonable doubt that might be thought to be open on the circumstantial evidence. In order to convict the jury would, I think, need to be satisfied beyond reasonable doubt of the correctness of the identification.

13. [13]
    A photoboard identification is not the most satisfactory method of obtaining a reliable identification.^[3]  Indeed, modern research suggests that the photographs used in a photoboard can be selected in such a way as to heighten the likelihood a suspect’s photograph will be selected by the identifying witness.^[4]

14. [14]
    In this case the witness (Gregory) had an extended opportunity to observe the other man, and the identification procedure took place soon after the incident.^[5]  In the normal course of events evidence of this type is admitted unless the probative value of the identification is compromised in some way,^[6] in which case it may be unfair to admit the evidence.

15. [15]
    Mr Sloane, who appeared in support of the application, advanced three arguments against the evidence.  Firstly, it is said the collection of photographs is unfair because Ackerman’s eyes in his photograph are averted from the camera.  This feature, it is said, would attract the attention of the identifying witness to his photograph.  Secondly, it is said that Ackerman’s photograph is an old one and did not represent an accurate likeness of his appearance on 2 December 2005.  Thirdly, it is said that Gregory did not provide any identifying facial features in his verbal descriptions of the offender.  In addition, Mr Sloane pointed to the fact that Wood, when shown the same photoboard, felt unable to select anyone as the offender.

16. [16]
    The fact that Ackerman’s eyes were averted from the camera is not an identifying particular. Moreover, in another of the photographs the person’s eyes are averted (although looking downwards rather than to the side). Unless the fact that Ackerman is depicted with eyes averted is a material identifying feature, it is a feature that is irrelevant to the identification. The next point taken is that the photograph used was not a contemporaneous photograph of the applicant. On the evidence before me it was taken in November 2004, so it was about 13 months old.  Any changes in Ackerman’s appearance over that time could tend to diminish or even destroy the value of the identification.  However, no evidence was placed before me of any changes in his appearance.  All that was relied upon was the fact the photograph had been taken about a year earlier.  The point is one that can be drawn to the jury’s attention if necessary, but a mere possibility of a change in his appearance is not sufficient to reject the evidence.

17. [17]
    The third point taken is that Gregory did not provided any facial identifying features in describing the offender. This point is based upon some evidence given by Gregory at the committal. During the course of his evidence he was asked:

“Question:  Can you describe this other male as you recollect from that day?

Answer:  He’s sitting over there.

Question:  But as he looked to you that day?

Answer:  He had a yellow top, it was a yellow fluoro top with a blue bit at the bottom here. … a black pair of thongs, I think.  He had all big chunky gold and silver rings on … wearing a hat … it was like a baseball cap – um, from what I thought at the time – greyish longish hair down to about here …

Question:  What sort of age group would you have put him in?

Answer:  Oh, late, you know, late thirties, early fifties.”

(Lines 10-40 p 15 depositions)

Again, this is a point that can be the subject of comment and direction if thought necessary.  The passage simply raises possible criticisms of the evidence.  These are the sorts of matters a jury is capable of resolving.

18. [18]
    Finally, the fact one of two witnesses present at the scene of an offence is unable to identify any person on a photoboard as an offender is not an uncommon occurrence. In this case Gregory, but not Wood, had an extended opportunity to observe and note the other offender’s face. The fact Wood did not select any of the photographs from the photoboard collection is relevant, and may affect the weight of Gregory’s positive identification, but it does not lead to a conclusion the positive identification should be withdrawn from the jury’s consideration.

19. [19]
    Whether the points raised in the application are considered separately or in combination, I am satisfied the identification evidence in this case is admissible, and that no sufficient reason has been shown to exclude it.