R v Rockwell[2015] QDCPR 12

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged with the following offences:

Count 1 – that on a date between 25 February 2013 and 4 July 2013 at Townsville he robbed the complainant, whilst armed with a knife, and in company with another, and that immediately after the robbery he used personal violence;

Count 2 – that on 4 July 2013 he robbed the complainant whilst armed with a knife.

2. [2]
   The defendant was found guilty of the offences on 20 May 2014. He appealed against the convictions, and on 5 December 2014 the Court of Appeal allowed the appeal, set aside the convictions, and ordered that there be a new trial.^[1]

3. [3]
   The complainant identified the defendant as the offender during a videotaped identification procedure that was conducted on 1 August 2013. The complainant was shown three photoboards which each contained photographs of 12 different adult males. The complainant selected photograph 10 on the third photoboard as being the offender. That was a photograph of the defendant.

4. [4]
   At the trial the complainant was asked in cross-examination about the fact that she did not provide a description to the police of the colour of the eyes of the offender. She answered, “His – his – his, like, normal brown eye.”^[2]

5. [5]
   The Court of Appeal admitted new evidence which established that the defendant has blue eyes, and that the photograph of him which was supplied digitally for inclusion in the photoboard depicted him as having dark coloured eyes. Gotterson JA said:

“Of particular significance is that the new evidence, if received, would prove that at all relevant times, the appellant had blue eyes. It would also prove, by inference, that photograph 10 incorrectly depicted the colour of the appellant’s eyes. The respondent does not seek to challenge either of those facts by evidence to the contrary. The new evidence would also establish that defence counsel had conferred with the appellant face to face on three occasions prior to the commencement of the trial. That evidence would lend to an inference that at the time of the trial he knew that the appellant had blue eyes.”^[3]

6. [6]
   The defendant applies pursuant to s 590AA Criminal Code for a ruling that the evidence of identification is inadmissible.  It is submitted that “The identification evidence is prejudicial because it would involve a jury considering the positive identification of an offender whose salient features are different to those of the (defendant).”^[4]

Circumstances of the offences

7. [7]
   The complainant was a self-employed sex worker. She had worked in Townsville for 12 months.^[5]

8. [8]
   She rented a motel room and advertised her services in the local newspaper.^[6]

9. [9]
   On the night of 15 April 2013 the complainant received a telephone call on her mobile phone from a blocked number. The male caller asked to visit her and she provided her address. About 10 minutes later, two men arrived at the address at the Hi Roller Hotel in Townsville. She told them that only one could come into the motel room. One of the men entered the room and checked to see if anyone was in the bathroom. He then produced a knife and demanded money. He pointed the knife towards the complainant’s rib area. The complainant gave the offender $120. The second male person then entered the motel room and began punching her after she refused to give him money.^[7]

10. [10]
    On the night of 4 July 2013 the complainant said that she was in the same motel room when she heard a knock at the door. When she opened the door she saw the same man who had the knife during the robbery on 15 April. She tried to close the door, but the male person pushed the door back and entered the room. He pulled her onto the bed and produced a knife which he pointed towards her heart area. He demanded money, and she gave him $430.^[8]

Submissions for the defendant

11. [11]
    It was submitted by Mr Walters for the defendant that the photoboard identification evidence should be excluded on the ground that the probative value of the evidence is outweighed by its prejudicial effect.^[9]

12. [12]
    It was accepted that the complainant did not make reference to the offender’s eye colour during the photoboard identification interview.^[10]

13. [13]
    It was submitted that the following factors justified the exclusion of the evidence:

Submissions for the Crown

14. [14]
    Mr Lowrie for the Crown drew attention to the following passages in the judgment of Gotterson JA:

“Here, both incidents were brief in time. The complainant was very scared during both of them. She spoke only of a limited number of identifying features of the offender. Notwithstanding, there was a consistency in her evidence-in-chief and in cross-examination with respect to the course of events that comprised each incident. The evidence on that was generally consistent with her account given to the police as put to her and admitted in cross-examination.

As to details of description of the offender’s appearance, there was a general consistency between the testimony she gave in her evidence-in-chief and in cross-examination with respect to the features she did mention: skin colour, hair colour and length, build and height. Her reference to the offender’s chin in cross-examination was generally consistent with the reliance she had placed on the jaw area for identification from the photoboard. There was, however, a difference of 10cms between her testimony and the description she gave to the police with respect to the offender’s height.”^[12]

15. [15]
    Mr Lowrie submitted that as the offender’s eye colour was not a relevant factor during the photoboard identification, the evidence was not undermined by the inaccuracy of the defendant’s eye colour in the photograph.^[13]  It was further submitted that the jury will be in a position to compare the photograph of the defendant and the actual colour of his eyes, and determine for themselves the significance of any inaccuracy in the photograph.^[14]

Consideration

16. [16]
    The evidence may be excluded if it has little or no weight but may be seriously prejudicial: Driscoll v The Queen.^[15]

17. [17]
    In Festa v The Queen^[16] Gleeson CJ said:

“But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.”^[17]

18. [18]
    McHugh J said:

“It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”^[18]

19. [19]
    There is no evidence explaining what seems to have been accepted to be an inaccurate depiction of the colour of the defendant’s eyes in the photograph contained in the photoboard. However there is no suggestion that the photograph of the defendant was deliberately altered so that it matched a description previously given by the complainant. Sometimes the colour of a person’s eyes in a photograph will be affected by the lighting and other factors.

20. [20]
    In R v Reiken^[19] McMurdo P said:

“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^[20]; Festa v The Queen^[21]. 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.”^[22]

21. [21]
    Identification evidence that lacks substance may be excluded: R v Corke.^[23]

22. [22]
    The evidence of identification by the use of a photoboard gallery may be unfair if the photographs in the photoboard are not of persons broadly similar in appearance to the suspect. For example, in R v Currie^[24] an eyewitness described the offender as “dark Aboriginal colour, tanned”, yet the photoboard gallery contained only two photographs of persons of Aboriginal extraction.  The Court of Criminal Appeal accepted that evidence of identification that lacked quality and substance ought to be excluded.

23. [23]
    In R v Lambert; ex parte Attorney-General^[25] a witness had described the offender as a man with a fair complexion and mousy-coloured hair.  The appellant and others on the photoboard apparently had reasonably dark hair and complexions that were somewhat darker than fair.  The Court of Appeal said:

“However the collection is of a reasonably homogenous group of young men. There is nothing in the collection which would unfairly draw attention to the appellant or make it more likely that he would be picked out than any other person. In making his identification the witness said that he recognised the facial features.”^[26]

24. [24]
    The Court noted that:

“Verbal descriptions are often poor, and may be inconsistent with various features of a person who is properly identified in due course. Although a disconformity between the verbal description and the actual appearance of an offender subsequently selected from a line-up or photoboard is a matter for comment to the jury, it is not necessarily fatal to a valid identification.”^[27]

25. [25]
    The complainant did not describe the colour of the offender’s eyes to the police. It is not uncommon for eye witnesses to provide descriptions that do not exactly match the person subsequently identified. As I have already mentioned, there is no suggestion that the defendant’s photograph in the photoboard was deliberately altered to match a description previously given by the complainant to the police.^[28] There is no unfairness in the selection of the photographs in the photoboard. The jury can compare the defendant’s photograph in the photoboard to his appearance in court.  There is no basis upon which the evidence should be excluded.

Ruling

26. [26]
    The application to exclude the evidence of identification made by the complainant on 1 August 2013 is dismissed.