R v Versac[2013] QDC 17

HIS HONOUR: The accused, Alex Versac, objects to the admissibility of two photoboard identifications of him by two witnesses, Daniel Lucas Wright and Gemma Ruth Moore. Both are complainants. A home invasion involving three persons occurred on the 16th of September 2009. Wright and Moore were occupants of the premises; three persons entered. The accused is said to have been one of them. The three persons were in the house searching it for up to two hours. The complainants were detained during that time.

Moore was upstairs when a person she subsequently identified as Versac, came upstairs to get her and take her downstairs.

He was the first of the three intruders that she saw. She was placed downstairs and I think I can assume that over the next two hours or so, she did have some opportunity to observe him again.

The complainant, Wright, had an opportunity off and on, over a period of up to two hours to observe the intruders and he also subsequently identified Versac as one of them.

On the 22nd of September, 2009, Versac surrendered to police on another matter. He was placed in the watch-house. Included in his property was a set of car keys. These belonged to a car which was rented in his name. The car was located and opened and searched and a set of car keys were found in the vehicle. Those car keys belonged to a Falcon motor vehicle owned by Wright, which he said was taken after the intruders left the premises.

During the investigation into the offences, a photoboard identification of the accused by Wright occurred on the 23rd of September, 2009. During that identification, Wright was shown the photoboard, Exhibit 2, and he identified the person shown in photo number 7, which is the accused, Versac. He did so positively and immediately.

Senior Constable Chad says in paragraph 22 of his statement, "Wright immediately and positively identified the picture of Versac at position number 7 as being one of the offenders".

Wright wrote on the back of the photoboard, "I, Daniel Wright, identify man number 7 is", should be "as", "the man who tasered me during this incident. I am one hundred per cent sure of this".

After that identification, a warrant was obtained to search the defendant's premises and during that search a bag was located which was identified as having been taken during the home invasion.

On the 24th of September, Moore identified Versac from a photoboard. The photoboard is Exhibit 3 and is identical to Exhibit 2, except that photos 6 and 7 were reversed. The person she identified is the accused shown in photograph number 6. She said - and she wrote this on the back of the photoboard. "Number 6 looks the most like one of the men. He came upstairs and asked me to sit on the couch and searched the house."  "Looks most like one of the men," is similar to "mostly looks like" which were the words used by the identifying witness in the case of The Queen v. BBA [2006] QCA 234 at paragraph 10.

Mr Wilson for the accused, submits that in each case the evidence should be excluded because the photograph of the accused appears in the centre, either as photo 6 or 7, of the photoboard which unduly emphasises him and it has a background, a darker background, than the other photographs which is said to again unduly emphasise him. It is also submitted that the identification occurred after Versac was a suspect for the offences and that should detract from any reasons supporting the admissibility of the identification evidence. Finally, in the case of Miss Moore, it is submitted that the identification is not strong enough.

The position in Australia is different from the position in England. The English position, highlighted in the decision of Wainwright, is stricter than in Australia. The Australian position is emphasised in the Bench Book at paragraph 49.5 and in decisions of the Court of Appeal, two of which I'll refer to.

In the case of The Queen v. Murphy, unreported 19 December, 1995, Mr Justice Pincus referred to Currie, another Queensland case where identification from an album of photographs was used and it was said, "Where there is other evidence implicating the accused, a trial judge should be reluctant to exercise his discretion to exclude that identification evidence simply upon the basis of its quality, although appropriate warnings must be given". And his Honour continued, "I'm in respectful agreement with that statement and of course the argument that the photoboard identification should have been excluded faces the additional hurdle constituted by the decision of the High Court in Pitkin. The theory upon which the argument for the appellant relating to identification is based is that unless this Court firmly insists on identification by line up by generally excluding photoboard identification, the present police practice will tend to become entrenched. That may well be so, but it does not appear to me that this Court has a general jurisdiction to reform police methods of investigation by excluding relevant evidence on the ground although not obtained by improper conduct, it is not of the best possible quality rather than merely giving the jury directions about it".

And Mr Wilson takes the point here, that the Commissioner's directions require that a line-up is to be preferred to a photoboard identification if a line-up is practicable.

Senior Constable Davis said he did not consider it practicable in the circumstances, because he was concerned that the accused who was in custody upon the other charge, may have obtained bail and may not have been available for a line up, and also because of the difficulty obtaining other persons of a similar appearance in the period available before the possible release of the accused on bail. They were the reasons given by him. Whatever one may think of those reasons, it is still necessary to determine the admissibility or otherwise of the photoboard identification.

Mr Justice Pincus in Murphy continued, "Whether the photoboard identifications would've been enough to sustain a conviction by themselves is not a question which arises here because the prosecution put forward a body of other evidence which pointed towards the appellant as the offender", and whilst there may not be here as much other evidence as existed in Murphy, there is here the evidence of the car keys and the bag.

Mr Justice Pincus continued, "It is fallacious to consider each piece of evidence pointing towards the accused as the offender separately, and to exclude it unless considered in isolation it strongly identifies the accused. Commonly the question of whether or not an accused has been proved to be the offender to the requisite standard depends, as in this case, upon the jury's consideration of a number of pieces of evidence of varying strengths."

His Honour continued at page 4, "I should add that the practice adopted in the present case of taking a video record of the witness's responses during the process of identification seems a very useful one. A process of identification from a collection of photographs safeguarded from malpractice by being recorded on video may well be sounder than a line up without such a safeguard."  Had there been a line up here, I'm satisfied that in all probability it would've been videotaped just as the photoboard identification was,.

In the same decision, Mr Justice Thomas said at page 5 of his Honour's judgment, "Although close scrutiny is required whenever this method" - that is, photoboard identification - "is used, a careful reading of Alexander and of Pitkin fails to supports the submission that photoboard identification is unacceptable. Although methods so far devised are imperfect, those which have best survived the concerns of the Courts are identification by parade or line up and identification by showing witnesses a selection of photographs or photoboard. The latter procedure is essentially a line up by means of photographs."

At page 7, his Honour said, "The extent to which suspicion has already fastened upon the accused is only one of many factors that may influence a decision whether a particular identification has been fairly undertaken and carried out. In the present case the procedure was instigated at a fairly early state of an ongoing investigation and it does not appear to have been an unreasonable course to pursue."

In my view the identification in each case here has been fairly undertaken and carried out. In the case of Reiken v. R  [2006] QCA 178, President McMurdo said at paragraph 14, "Identification by means of photographs 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 ... Judges will often exclude such evidence where its probative value is slight."

Now, I don't consider the probative value of the photoboard identification here to be slight, having regard to all of the circumstances to which I have referred.

Mr Wilson submitted that because the accused was a suspect at the time of the photoboard identification, that identification should only be admitted with caution, and because the accused is highlighted in the way he submitted it would be unfair to admit the identification, and it should for that reason be excluded. I accept that caution is required in the admissibility of such evidence. I am not, however, satisfied that the accused is so highlighted in each case that it would be unfair to admit the identification in evidence.

Each of the backgrounds of the photos is different. Each of the persons in the photos is generally of similar appearance, although it is not difficult in hindsight to pick differences. The photograph of the accused has a dark background. On the other hand, the other photographs all have - or mostly have different backgrounds also, ranging from grey to blue and green, and they are highlighted in various ways apparent from their different colours.

Even though it can be said that the photograph of the accused is highlighted by its dark background, the other photos are also highlighted in their own particular way. As I said, all have different coloured backgrounds. I don't think that photo number 6 in the case of Moore, and photo number 7 in the case of Wright necessarily stand out more than the other photos. It is not unique in having a photoboard with photos with different coloured backgrounds.

In my view the collection of photographs is fair and there is nothing when all of the photos are compared, which necessarily draws one's attention to the defendant and the same applies to the position of the defendant in the centre of the photoboard.

It is not the case in Australia, as I have mentioned, that automatic exclusion of photoboard identification after a suspect has been identified is the law in Australia.

For the reasons I have given, I do not consider it would be unfair to the accused to admit the photoboard identification in each case against him, and I would not exercise my discretion to exclude it.

Yes. Thank you. That cover everything now, Mr Wilson?

MR WILSON: Yes, your Honour.