R v Panschow[2017] QDCPR 31

DISTRICT COURT OF QUEENSLAND

Introduction

1. This is an application by the defence to exclude the purported identification evidence by the complainant. The basis of the application is that it would be unfair to admit the evidence[1] or alternatively in the exercise of the court’s general discretion the evidence should be excluded[2].
2. The defendant is charged with one count of robbery with personal violence.

The facts

3. The depositions were tendered as exhibit 3.
4. On 14 October 2016, the complainant Leonard Warren attended a funeral at the Proserpine Cultural Centre.[3] The complainant said that after this he was drinking beer at various establishments. He stayed at the wake until 4:00 pm. He had 10 to 12 stubbies of XXXX Gold.[4] He then went to the Prince of Wales hotel at about 5:00 pm.[5] They stayed there until about 7:00 pm, but he does not say how much he drank there.[6]
5. Whilst at the Prince of Wales he said “g’day” to a large dark male with a goatee beard with white beads platted into it. The beard was about 6” long.[7]
6. After leaving the Prince of Wales he went to the Grand Central Hotel where they stayed until 11:45 pm. He had about 10 pots of XXXX Gold there.[8]
7. He then returned to the Prince of Wales and had 3 more beers there until it closed at 1:00 am.[9] He then left to go back to his motel.
8. As he was walking back to his motel, he noticed a male person following him but he could not make out who it was and he did not know the person.[10]
9. The male caught up with the complainant after they had walked about 500m and started to ask the complainant about how much money he had on him and if he had money to buy drugs.[11] The complainant says that he realised that the male was a person he had said “g’day” to at the Prince of Wales Hotel earlier.[12] He knew who this was because of the goatee with white beads.[13]
10. The complainant began to walk away but was struck to his face from behind and then punched repeatedly and robbed of his phone. The male took off when car lights came towards them.[14] The driver of the car picked up the complainant - they could not find the male. The driver took the complainant back to the motel.[15] Later the complainant reported the matter to the police.[16]
11. Senior Constable Timothy Farran in his statement[17] says that he saw the complainant in Main Street at about 2:50 am.[18] He said that the description of the offender given by the complainant was of a dark Aboriginal or Pacific Islander male with a black goatee beard with plaits and afro hair. He considered the complainant “moderately intoxicated.” On 16 October 2016 the complainant told him that he had seen the offender at the Prince of Wales earlier that evening. As a result he spoke with the publican Steven Longmuir who was to try and download CCTV footage.
12. Constable Andrew Goodall in his statement[19] said that at about 2:50 am they went to Main Street and were flagged down by the victim. He says that on 8 November 2016 he went to the hotel to pick up the footage but it was not available.[20]
13. On 23 December 2016 Mr Longmuir provided a statement.[21] He said that he knows the defendant.[22] He said that he saw the defendant at the Hotel on 14 October 2016 on numerous occasions. Last drinks were called at 1:30 am. The Hotel closed at 2:00 am. Mr Longmuir identified the defendant from a photo board.
14. Constable Long met with the complainant on 18 January 2017 and showed him a photo board with the defendant at position 8.
15. The following transpired in the recording:[23]

1. The Officer made it clear that the offender was not necessarily on the photo board. He told the complainant to tell him if there was no-one on the board he recognised.
2. The complainant looked at the board and said “11”. He said “just, the face reminds me of the face… yeah he did have beads in his goatee at the time but definitely recognise the features of his face compared to anyone else that I can remember … that”
3. The complainant then said “I think he’s the one that - actually be 11 or 8 looking at both of them.”
4. “I’d say 8 now that I look at it… it’s very hard to tell. It was a long time ago but they’re very recognisable from the man that assaulted me and stole my phone. Number 8 I would say.”
5. “Number 8 now out of those 2 number 8 is the strongest.”
6. “Yeah definitely looking at it now.”
7. He said that number 8 was 10 out 10 and number 11-5 out of 10.

16. I have looked at the photo board. It is comprised of 12 males with dark skin of Aboriginal or Pacific Island heritage. All have facial hair. Five have beards one could describe as goatees (1, 5, 8, 9, 11 and 12). The others have more full beards. Number 8 is the only one with full afro hair. Number 11 and 8 have similar facial features.
17. The parties agreed that whilst the area where the offence occurred was not lit like a city there were street lights evenly spaced and the roundabout where the complainant indicated the offence occurred was better lit.

The defendant’s submissions[24]

18. The defendant submits that admission of the photo board in evidence would be unfair because it is not properly representative of persons of similar appearance to the him. It is submitted the photo board is such that it does not include photographs of persons sufficiently similar to the suspect and in particular, draws attention to the defendant. It is submitted that photo 8 has a very obvious afro hair style (absent in the other photos) with an obvious long goatee when the other photos show men with much shorter facial hair, some more closely representing beards. It is further submitted that relevant to the discretion is that the evidence is unreliable or of slight probative value as the complainant initially identified another person on the photo board; he was uncertain in the process leading to the identification; there is unfair disconformity between the appearance of the defendant and other faces on the photo board; the intoxication of the complainant at the time and that the offence occurred at night on a Proserpine street. It is also submitted that the attempted identification was some three months after the assault. It is further submitted that the evidence of the manager’s identification should be excluded as it only establishes that the applicant was at the Prince of Wales Hotel on the night of 14-15 October 2016.

Crown submissions[25]

19. The Crown submits that hair length and style of facial hair is a poor basis on which to argue that a set of photos is not similar. Hair length can change from time to time as can beard styles and lengths. The respondent submits the photo board array was sufficiently fair and any perceived weaknesses in the photo board selection can be the subject of directions to the jury if necessary. Perceived weaknesses in the evidence go to weight rather than admissibility. Further, it is submitted that the photo board identification is only part of the Crown case. The hotel manager identified the defendant as being present on the night of the robbery which adds to the identification.

Relevant law

20. Section 617 of the Police Powers and Responsibilities Act 2000 (Q) provides:

“(1) It is lawful for a police officer to use 1 or more of thefollowing procedures to help gather evidence of the identityof a person suspected of having committed an offence—

1. an identification parade;
2. a photo board containing at least 12 photos of people of similar appearance, 1 of whom is the person suspected of having committed the offence;
3. videotape;
4. computer generated images

2. The police officer must comply with the procedures in the responsibilities code for identification procedures.
3. The police officer may ask a person to take part in an identification parade.
4. The person may refuse to take part in the parade
5. This section does not limit the procedures a police officer may use to help gather evidence of the identity of a person suspected of having committed an offence.”

21. Sections 42 and 43 of the Police Powers and Responsibilities Code 2012 (Q) provide:

“42 General requirements for identification using photographs

To avoid directing the attention of the witness to aparticular photograph, the police officer must ensure nothing is marked on—

1. any photograph; or
2. the photo board.

43 Conducting a photo board identification

1. A police officer showing witnesses a photo board must show the photo board to each witness separately.
2. Also, the police officer must ask each witness to carefully view the photo board and state whether the witness recognises anyone whose photo is on the photo board.
3. The police officer must ask the question in a way that does not suggest the identity of a person whose photograph is on the photo board.
4. If a witness indicates that the witness recognises a person in a photo on the photo board, the police officer must ask the witness to—

1. clearly state the number of the photograph the witness has identified as being that of the person alleged to be responsible for committing the relevant offence; and
2. write the photograph number and the date the photo board was shown to the witness—

1. on the front of an unmarked photocopy of the photo board; or
2. on the back of the photo board or the selected photograph; and

3. sign the photo board, photocopy or photograph where the person has written on it.”

22. In Alexander v R[26] the High Court held that there is a discretion to exclude evidence of identification. It was held, for example, it would be unfair and improper to show to a witness before identification parade was held, a single photograph of a person who was said to be the suspect. It was held that:

“The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.”

23. In R v Brookes[27] it was held:

“What matters is whether the collection of photographs is fair. It must include photographs of persons sufficiently similar to the suspect and there must be nothing which draws attention to him or her.”[28]

24. In Festa v R[29] Gleeson CJ at [65] held:

“In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican[30] directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence.”

25. Further, in R v Reiken[31] it was noted that identification by 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.
26. In R v Namie[32] the appeal against conviction was dismissed. In that case the complainant had described the offender as an Aboriginal man in his late 40s with a “slight gut”, a bit of beard to his chest. When shown the photo-board she said as to the appellant “I’m not positive I think that’s him.” And “The face is similar and he looked kind of similar with the same weary lines”. Similar evidence was given by a male witness. The court in dismissing the appeal said at [26] that Pitkin[33] was a different case. In the present case both witnesses had consumed alcohol with the Appellant not long before the offences and the male complainant a couple of times before that. The conviction was not unsafe.
27. Finally in terms of authority, in R v Hooker & Solomon[34] it was noted:

“[24] It can be accepted that identification evidence, even of questionable quality, may be sufficient in conjunction with other circumstantial evidence to arrive at a conclusion of guilt, and that a trial judge may properly direct to that effect. The more difficult question is whether the jury can properly be told to consider other evidence in considering whether the identification itself is correct.

…

[26] I do not think one should be unduly prescriptive about the form of identification directions; what is necessary, in my view, is to consider their adequacy as a whole to establish whether they are such as to produce a fair trial… It would generally be preferable for a trial judge to give the jury the Domican warning in full without reference to other evidence as supporting the accuracy of the identification, to avoid any risk of distracting from the warning. It is certainly permissible, once the Domican direction is given, to identify counsel’s competing contentions as to evidence supporting and detracting from the reliability of the identification. And of course other evidence may supplement, or be supplemented by, the identification evidence in arriving at a conclusion of guilt.”

Disposition

28. Applying the above principles, in my view, the evidence should be admitted.
29. Firstly, it seems to me that on the evidence the complainant had more than a fleeting glimpse of the offender in question. There was an argument between them during which he had ample opportunity to look at the person’s face and body. Also the complainant had seen the person earlier in the night and there had been some interaction. The offender was not a complete stranger.
30. Secondly, this is not a case where the complainant was confronted with one photo or completely different photographs. It is true there are some dissimilarities between the photos on the photo board, but of course all people are different. I do not consider that the construction of the photo board was so unfair as to require its exclusion. It is true that number 8 was the only one with afro hair but afro hair did not feature in the identification process as explained by the complainant- it was the facial features which lead him to number 8. Also the complainant’s statement taken shortly after the event did not mention afro hair- it was the goatee of prime relevance. As I said earlier 5 people on the board have goatees and of course as the crown points out a person’s hair style can vary over time.
31. Thirdly, it seems to me the above point is supported by the way in which the identification occurred. The complainant carefully perused the photo board and identified number 11 as “yes, the face reminds me of the face. Yeah, he did have beads in his goatee at the time. But definitely recognise the features of his face compared to anyone else that I can remember.” Shortly afterwards, the complainant said “actually, it could be 11 or 8 looking at both of them. I’d say 8 now that I look at it, it’s very hard to tell. It was a long time ago but they are very recognisable from the man that assaulted me and stole my phone. Number 8, I would say.” Then:

“Police: Number 8? Now out of those two number 8 is the strongest?

Complainant: Yeah definitely looking at it now and

definitely 8 and the look on the face and everything in 8.

Police: Out of a scale of 1 to 10?

Complainant: 10, positive.”

32. It seems to me that the complainant had a very good opportunity of considering his position and was ultimately, by reason of his memory, led to a positive conclusion about number 8. I do not believe this is a case like Pitkin v R[35] where the only evidence was the man “looked like” the offender.
33. Finally, I think it is relevant that there is circumstantial evidence in this case that the defendant was drinking at the Prince of Wales Hotel. This provides evidence that he was in the area at the time and potentially had the opportunity to commit the offence in question. It seems to me that the manager’s evidence is admissible as circumstantial evidence in this case. In my view, a sufficiently full Domican direction may be given to protect the defendant from any alleged unfairness in this trial.
34. As to impact of alcohol and the possibility of a “transfer” effect i.e. the complainant was merely identifying the man he had seen earlier rather than the offender- this is a matter for submissions and directions at trial.
35. In my view the police here complied with the PPRA and the Code.

Conclusion

36. In the exercise of my discretion, and in weighing up the various factors involved, I am determined to refuse the defence application and to admit the identification evidence.
37. The order is:

1. The application is dismissed.