Moke v R[2017] QDCPR 8

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged on indictment with one count of burglary, in company and one count of armed robbery in company with personal violence. Both charges relate to the same 17 year old complaint and to events that are alleged to have occurred on 11 June 2014.

2. [2]
   The defendant has applied, under s 590AA of the Criminal Code Act 1899, for a ruling that the evidence obtained in a photoboard interview conducted by the police with the complainant on 21 June 2014 is inadmissible.^[1]

3. [3]
   The written submissions filed on behalf of the defendant submit that it would be unfair to the defendant to admit the evidence of the “photoboard identification process” because its probative value would be outweighed by its prejudicial effect.^[2] These written submissions submit that this evidence should be excluded pursuant to: 

1. (a)
   Section 98(1) of the Evidence Act 1977 under the discretion “to reject any statement or representation because it appears to the court to be inexpedient in the interest of justice that the statement should be admitted”; and/or

2. (b)
   Section 130 of the Evidence Act 1977 under the discretion “in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.” 

The relevant circumstances

4. [4]
   At the hearing, statements from the complainant dated 11 June 2014 (“the complainant’s first statement”), 21 June 2014 (“the complainant’s second statement”) and 27 January 2015 (“the complainant’s third statement”), were tendered without objection. No oral evidence was adduced from the complainant. The complainant was not cross-examined.

5. [5]
   The alleged circumstances of the offence as elicited from the statements is that sometime around 4 June 2014, the complainant was contacted by Henry Gooding (who was an acquaintance of his from school). As a result, the defendant supplied Mr Gooding with small quantities of “weed” on 4 and 10 June 2014 in exchange for cash amounts of $260.000 and $270.00.

6. [6]
   At approximately 3.05pm, on 11 June 2014, three men unknown to the complainant entered his house and threatened him with a Taser and one of them (not the defendant) threatened him with a knife. The complainant gave one of the men (not the defendant) $350.00 in cash and 3.5 ounces of weed. The evidence is that the “two Maori guys” then asked the complainant for more cash and if he had any gold. The complainant said, “why are you guys doing this?” to which one of the two Maoris said something like, “shut the fuck or I will bash you” and then pushed the complainant in the chest  causing him to fall on to his bed. The two Maoris then walked out of the room and said, “don’t sell on our turf.”  The three males then left the complainant’s house, walking out the front door.

7. [7]
   At an unknown time on 11 June 2014, the complainant telephoned 000 after the three men left and a short time later the police arrived. At about 5.15pm that day, the complainant attended the Nerang Police Station at which time he signed his first statement.

8. [8]
   Whilst it is not clear from this evidence how long the three men remained at the complainant’s house, it is apparent that he had considerable opportunity to view them, albeit in somewhat hostile circumstances.

9. [9]
   In his first statement (given on the day of the alleged offence), the complainant gave the following description of his assailants:

“28. A white male person with a shaved head being followed by two Maori-looking men walked across my driveway and then came into my house through the front door.

29. The first person in the door was the white male who had a shaved head, light coloured skin and was wearing a black Nike hoodie, black Nike Shocks runners with red trim and black Adidas shorts.
30. The second male appeared to be a solidly built Maori wearing a yellow high-visibility t-shirt. He had a short haircut.
31. The third male appeared to be a solidly built Maori and he was wearing a blue t-shirt and a short haircut.”  [Emphasis added]

10. [10]
    By his second statement, the complainant identified the defendant through a photo he saw on Facebook (on an unknown date between 11 June 2014 and 21 June 2014), in the following circumstances:

“4. In relation to another person I have recognised to be responsible for entering my house, I initially was looking up friends of Henry GOODING and Bailey BAKER and recognised that there was a Moari male that was a friend of his. I observed this person to be the person that was wearing the blue shirt that entered my house. I noticed this person’s name on Facebook was Richard MOKE.”

11. [11]
    The names of the other two men alleged to have been with the defendant at the time of the offences were also ascertained by the complainant through other Instagram and Facebook investigations made by him, in circumstances not relevant to this application.

12. [12]
    Subsequently (on an unknown date), the complainant phoned the police to inform them of the name of the three persons involved (including the defendant). On 21 June 2014, he attended the Nerang Police Station where he voluntarily took part in a photoboard interview with a detective.

13. [13]
    The only evidence before me of this interview is contained in the complainant’s second statement, as follows:

“[7] During the photoboard interview, Detective Myers showed me three photoboards. I was aware that this process was being recorded at the time. Prior to the interview, I had not been shown any photoboard by police relating to the investigation.

[8] In the first photoboard, I recognised person placed in position 3 as one of the males that entered my house. This person I now note to be Manny Sellick. This is, without doubt, the male person that was carrying the Taser and threatened me with it before stealing my property. This person also picked up a kitchen knife whilst he was in my house.

[9] In the second photoboard, I recognised person in position 8 as one of the Maori males to enter my house. This person was wearing the blue shirt when entering my house.

[10] In the third photoboard, I recognise person in position 2 as the other Maori person that entered my house. This person was wearing the yellow, high-visibility shirt.

[11] I am 100% certain that these three male persons are the ones that entered my house and robbed me.”  [Emphasis added]

14. [14]
    It was uncontroversial at the hearing before me that the Crown case relied entirely on this photoboard identification of the defendant. The prosecutor said that the Crown would lead evidence that the complainant identified a person on Facebook but that they “were not in a position at this stage” and that he doubted very much that they would ever be able to provide the actual image that the complainant saw “even if he [the complainant] could recall himself”. 

15. [15]
    There was no evidence from any police officers about attempts to obtain the Facebook identification photo either at the time or subsequently.

16. [16]
    Curiously, no evidence from the police of the photoboard interview was before me. A black and white photocopy of the photoboard endorsed on the back with the complainants name with a note that the person at position 8 was the defendant, was handed to me during the course of the hearing.^[3] The prosecutor described this document as “not the greatest image” and of “limited use.”

17. [17]
    At a mention of the application on 27 February 2017 (after the oral hearing had been conducted on 2 February 2017), I raised the issue of whether any further evidence was to be tendered by the Crown. No further evidence was tendered.

The respective arguments

18. [18]
    It was submitted on the defendant’s behalf that it would be inexpedient in the interest of justice and/or unfair to the applicant, to admit the evidence of the photoboard identification because its probative value would be outweighed by its prejudicial effect. The discretion to exclude where prejudicial value exceeds probative value is known as the Christie discretion.^[4]

19. [19]
    The defendant highlighted the following features of the present case as justifying the exercise of my discretion in his favour:

• There was no other evidence implicating the defendant.
• There was a significant danger of the operation of the displacement effect due to the manner in which the identification came about.
• The complainant, in effect, actively participated in the compilation of the photoboard by the police.
• The probative value of the photoboard is significantly reduced because it was not necessarily an identification of the defendant at the alleged robbery, rather the “identification of an identification,” that is, the defendant identified a person he had already identified on Facebook who he expected to be depicted in the photoboard.
• The Facebook image from which the complainant reached a conclusion of the defendant’s involvement was utterly unknown to him and, for example, may have been highly prejudicial by depicting the applicant holding a knife “whilst wearing a black hooded jumper with an image of a skull on it and the words ‘thug life’”.^[5]
• The identification is uncorroborated with any other evidence and the defendant’s initial sighting of his assailant would have been made in a highly stressful situation.
• The complainant is Caucasian and the purported identification is of a person of Maori descent.
• There is nothing said by the complainant to be remarkable or distinguishing about the defendant’s appearance through which a court could be provided with some degree of comfort as to the reliability of the identification.

20. [20]
    In support of these contentions, the defendant points to the general proposition of the inherent danger in the use of photographs.^[6]

21. [21]
    The Crown, in opposing the application, refers to the general proposition that identification by photograph is admissible^[7] and, that the trial judge will be able to give the jury proper directions, to enable the jury to give proper consideration to the evidence and give it such weight as they consider is warranted in all the circumstances.^[8]

22. [22]
    Such general principles are of course a starting point. Each case turns on the facts. I consider that the particular facts of this case warrant a far more detailed consideration of the relevant authorities.

Analysis

23. [23]
    Long before the advent of Facebook, identification evidence, particularly in relation to strangers, has been described as “notoriously uncertain”,^[9] “often proved to be unreliable”^[10] and “proverbially untrustworthy”.^[11] It is also testimony that has been described as “seductive”^[12] and very persuasive and, it is a matter about which many witnesses are over-confident, even dogmatic.^[13]

24. [24]
    The problems with photo identification in the age of Facebook were discussed in some detail by Peek J in Strauss v Police^[14]  who recognised a new generation of private investigators who use Facebook to search profiles. Peek J acknowledged a conundrum, that whilst this new phenomenon may lead to the acquisition of suspects that police may not have otherwise obtained, it also created great problems in relation to the potential contamination of evidence necessary for a conviction in a court of law.^[15]

25. [25]
    The decision of Strauss was an appeal against a conviction in the Magistrates Court based on an identification of the defendant as the main assailant from photographs on Facebook after the incident, and from an identification of him in court, in circumstances where the original Facebook photographic image was not available at the trial. Relevantly, Peek J said:^[16]

I should say here that an assertion by a witness that he had identified a person by looking at an image of the person without the prosecution producing a copy of the image is at least depressingly circular.

26. [26]
    His Honour went on to say that:^[17]  

The court — both the trial court and an appellate court — must be in a position to view the image when a witness asserts that he recognised the defendant from that image and in a case where identification is the central issue, the absence of such a central piece of evidence (which could easily have been obtained by police) is unacceptable.

27. [27]
    Whilst the issue in Strauss was the exclusion of Facebook identification, it is instructive to note that Peek J criticised the police for not conducting formal identification procedures. This suggests that a formal identification may at least have a chance of being deemed admissible in spite of the unreliable Facebook identification. Ultimately in Strauss, Peek J upheld the appeal, concluding there were a number of concerns that rendered the Facebook identifications unreliable including that the identification had not happened spontaneously, and was “studied, expected and direct” and that there was no description of the offenders taken by the officers at the scene.

28. [28]
    Recently, the South Australian Court of Criminal Appeal in R v Crawford,^[18] considered that there is a real risk identified that identification evidence will be irretrievably contaminated through social media searching in a number of ways. In doing so the court referred to the descriptions of the “displacement effect” given in 1981 by Stephen J in Alexander v R^[19] and in a number of other authorities as follows:^[20]

Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.

In Pitkin v R, the court stated:^[21]

… once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness’s recollection of the actual appearance of the offender.

And in Strauss v Police, it was noted:^[22]

The displacement effect may occur in a variety of circumstances but the courts have most often addressed the displacement effect in the context of stressing that a ‘memory [of a person’s features may be] altered by later experiences such as the perusal of photographs or identikit pictures’, reading descriptions of the suspect or other persons or viewing newspaper sketches of the suspect. It is well recognised that after a photographic identification process, the witness’ recollection of the culprit and recollection of the photograph are likely to be so merged that the two can no longer be separated...

29. [29]
    The decision in Crawford,^[23] involved the defendant and two co-offenders breaking into the residence of the complainant who was a drug dealer and swinging at the complainant with a shovel and stealing his wallet. There was an issue on appeal as to whether the judge erred in admitting Facebook and photographic identification evidence. On the first day of the trial, an application was made by the defendant to exclude this evidence on the basis that the complainant had received a phone call from a police officer informing him that the police had identified some fingerprints. The police officer then gave the complainant the name of the defendant. The complainant then used the Facebook application on his mobile phone to search the defendant’s name, reviewing the top five or six which had people’s faces on them. He then found one male whom he recognised as being the defendant due to his jawline and skin colour. The complainant viewed about 3-10 photos of the defendant on his Facebook profile.^[24] It is not entirely clear from the judgment, but it appears that copies of the Facebook photos viewed by the complainant identifying the defendant were available at the hearing to exclude, but the photos that the complainant viewed of other people with the defendant’s name were not. Subsequently, a photographic identification procedure was conducted at which time the complainant was 60-70 percent sure the person he identified was the defendant.^[25]

30. [30]
    On the appeal in Crawford, it was argued for the defendant that on the basis of the decision of Strauss^[26] and the observations of Peek J in that case, as to the issues with Facebook identifications, the police should have warned the complainant against searching for the defendant on Facebook. It was argued by the defendant that the failure to do so led to a significant risk that the subsequent photograph identification was due to a displacement effect. Ultimately the appeal court held that the trial judge did not err in admitting either the Facebook or the photographic identification evidence. The court ordered that there was probative weight to the identification evidence and while its value may have been limited, it was within the judge’s discretion to leave the issue of the weight to be afforded to the evidence to the jury.^[27]

31. [31]
    Peek J gave the dissenting judgment in Crawford and considered, relevantly, that the probative value of such evidence was slight. His Honour was critical of the lack of effort by the prosecution to obtain and present the photographs of the other persons with the same name as the defendant alleged to have been viewed by the complainant. He also considered that the police took no real steps to attempt to counteract a displacement effect engendered by the Facebook search.^[28]

32. [32]
    There are a number of distinguishing features to the facts in Crawford and the facts in the present case. First, the identification evidence was just part of the case against the defendant. Second, the complainant was able to point to particular distinguishing features of the defendant as opposed to the very general description that has been given by the complainant in the present case. Third, the Facebook photos of the defendant appear to have been available and nevertheless, the process was far more detailed than in the present circumstances and entailed the complainant reviewing more than one photo of the defendant.

33. [33]
    In the Victorian decision of Peterson (a pseudonym) v R,^[29] the police did not conduct formal identification procedures after a Facebook identification because they were concerned about the displacement effect. In that case, the court ruled the Facebook identification admissible on the basis that judicial directions and closing submissions could sufficiently compensate for any unfair prejudice. In the decision of Peterson, unlike the present case, the police had the photograph from Facebook.

34. [34]
    The facts in the Queensland Court of Appeal decision of R v Janissen,^[30] are somewhat akin to the present, to the extent that they concerned three men entering the dwelling of the complainants and threatening them. Whilst the photoboard was compiled in different circumstances than in the present instance, there were “great objections” to this identification at trial with reference to the dangers of the “displacement effect’. The issue of the displacement effect was raised due to one of the complainants searching Facebook the day before the photoboard identification and viewing a photo of someone who could have possibly been the defendant, although she could not see his face properly. The Court of Appeal considered that there was very little risk that the displacement effect could have tainted the complainant’s subsequent identification of the defendant for two reasons. First because evidently the photoboard photograph was different from the photograph the complainant saw on Facebook and second because the photo she saw on Facebook was not one from which she was able to identify the defendant clearly.^[31]

35. [35]
    The defendant in Janissen unsuccessfully sought special leave to appeal to the High Court seeking guidance of the law of identification evidence in the post Facebook era of burgeoning social media, where in Queensland the police investigation relies almost solely on photoboard identification rather than identification parades. The High Court refused special leave.^[32]

36. [36]
    In the South Australian decision of R v Kearney,^[33] the court was satisfied that the defendant looked sufficiently different in the Facebook photograph so as to not render a post-Facebook identification unreliable due to the displacement effect.^[34]

37. [37]
    In the decision of R v Smith (No 3),^[35] identification evidence was rejected because of the inherent defects in the nature of the identification carried out. In that case, the witness has viewed a single photograph on the internet in a setting that was said to have strongly suggested that the person depicted was wanted by the police. Garling J made it clear that because of the association caused by the displacement effect was unintentional, cross-examination was more likely than not to result in an affirmation rather than a rejection of the identification.

38. [38]
    In the English Court of Appeal criminal division decision of R v McCullough,^[36] referred to by Peek J in Strauss v Police,^[37] the co-accused defendants were convicted on two counts of robbery and two counts of having an offensive weapon. The complainant identified the defendant on Facebook after being told by a friend of his brother that what had happened sounded like what the defendant would do. This prompted the complainant to go onto Facebook to look for the defendant. His evidence was that he looked at a photograph of the defendant and also photographs of other individuals and groups of people but he was satisfied from seeing a photograph that the defendant was present at the scene. He subsequently informed the police of this and a formal video identification procedure was arranged. In McCullough, there was no evidence to know what, on the particular Facebook page, the complainant had seen as there was no print-out even in a redacted form of the material. At the trial an application was made to exclude this evidence. The trial judge was satisfied that the evidence was admissible and that it was for the jury to decide what weight to give it. Relevantly, the trial judge commented that it might have been an issue for the prosecution to deal with if this were the only identification of the defendant, but that there was unchallenged other identification evidence.^[38] This decision was not overturned on appeal.

39. [39]
    In another English Court of Criminal Appeal decision of R v Alexander and McGill^[39], the facts of which are not too dissimilar to the present, the Facebook pages from which the defendants were initially identified were not available. Unlike the present case, there was evidence that the police officers viewed the Facebook pictures with the complainant and his sister and one of the officers requested the pictures be emailed to him, although this did not happen nor was any record made as to what had happened. On appeal it was argued that the identification that followed on from the Facebook identification was unfair. The identification was allowed and the defendants convicted. The appeal was dismissed on the basis that the trial judge had rightly concluded that it was perfectly possible for the jury, properly directed, to consider the considerable disadvantage at which the defendants had been put and the reliability of the identification in those circumstances^[40].  By way of obiter under the heading “General observations on Facebook identifications”, the court made the following comments which are most apposite:

It seems to us, for the future, that if, as is to be anticipated, identifications occur in the way in which this identification occurred, namely by looking through Facebook, it is incumbent upon the police and the prosecutor to take steps to obtain, in as much detail as possible, evidence in relation to the initial identification. For example, it would be prudent to obtain the available images that were looked at in a statement in relation to what happened.

It is not for us, we think, to set out for the future what process there should be adopted. It seems to us that this is a matter to which the Director of Public Prosecutions and ACPO could, in conjunction with the relevant ministry, give consideration so that short and simple guidance can be given in short order, so what happened in this case does not recur.^[41] 

40. [40]
    More recently in the South Australian decision of R v Benfield,^[42] the defendant was charged with recklessly causing harm by punching a man at a nightclub. The only evidence implicating the defendant was a photographic identification of him by the man’s partner who identified the defendant after being shown a Facebook photograph twice (first by her sister and second by a friend seven months later), a week before the photographic identification. Unlike the present case, the witness did not unequivocally identify the accused in the process. Barrett J in the District Court, held that the photographic identification should be excluded exercising the Christie discretion, that is, the probative value of the evidence is outweighed by the risk of prejudice to the accused.^[43]

41. [41]
    In doing so, his Honour helpfully discussed the discretionary bases upon which otherwise admissible “real” or “non-confessional” evidence may be excluded,^[44] with reference to the Christie discretion and, secondly, to the Bunning v Cross discretion.^[45] The latter discretion is where evidence has been tainted by illegality or impropriety on the part of the law enforcement authorities. This discretion was not one argued before me. The third basis for the discretionary exclusion discussed in Benfield was the general unfairness direction recognised in R v Lobban.^[46] This discretion is enlivened when the reception of the evidence would be unfair in the sense that it would make the trial of the accused unfair. This issue was raised in the written submission before me. In R v Crawford,^[47] Gray J favoured the view that the Christie discretion was an application of the general unfairness discretion.

42. [42]
    As was identified by Barrett J in Benfield, the High Court in Police v Dunstall^[48] declined to determine the scope of that residual discretion. In Dunstall, the plurality judges observed that where the discretion is enlivened and impugned evidence is critical to the prosecution case, it would be more appropriate to consider ordering a permanent stay of proceedings rather than excluding the evidence.^[49]

43. [43]
    In Benfield, Barrett J discussed the exclusionary discretion in the face of slight probative weight where there is prejudice to the accused which cannot be overcome by strong directions with reference to the following passage from Dupas v R:^[50]

However, the need was expressed and whatever the category of the evidence to which it applied, where the unfair prejudice was asserted to be the danger that the jury would attach undue weight to the impugned evidence, an evaluation of the weight of the probative evidence necessarily involved an assessment of the quality (and any inherent frailty) of that evidence. That is, the trial judge was required to form an opinion about the weight that a jury could reasonably assign to the evidence. Part of that task was to evaluate the quality, reliability and weight of the evidence. These terms have generally been treated as interchangeable in the present context.

Once an evaluation was made of the weight the jury might reasonably attach to the evidence, some assessment was then required of the nature and degree of the risk that the evidence might be misused for an improper purpose, or given undue weight. The likelihood of the risk eventuating, and its nature, would be balanced by the judge’s view of the extent to which directions would ameliorate that risk. Once those matters had been assessed by the trial judge, the balancing exercise could be undertaken to determine whether the risk of prejudice was outweighed by the probative value of the evidence. Thus, where the probative value was significant and there was a low risk of the jury giving it greater weight than was warranted, or of it being used in an illegitimate way, the trial judge would not exclude the evidence. Conversely, if because of its unreliability the evidence had low probative value, yet there was a real risk that the jury would attach more weight to it than it deserved, and that risk could not be overcome by strong directions from the trial judge, the evidence would be excluded. Once the evidence had been admitted before the jury, however, and subject to the trial judge’s power to withdraw that evidence from their consideration later in the trial, questions of credibility, reliability and weight were peculiarly the province of the jury.

44. [44]
    As Gibbs CJ stated in Alexander v R^[51] with reference to the Christie discretion: 

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.

45. [45]
    In the present case, the photoboard identification evidence is the only evidence of the defendant’s guilt. There are certainly weaknesses and aspects of unreliability to this evidence, including the risk of error associated with the displacement effect. I consider the defendant’s argument that this evidence has been contaminated, due to the earlier Facebook identification by which the complainant observed a single photo on Facebook, which is no longer available, is of some force.

46. [46]
    The defendant also contends the photoboard identification evidence is unreliable because initially the complainant who is Caucasian, described both Maori’s in identical physical terms and subsequently identified the first and only Maori he saw on Mr Gooding’s Facebook site. In R v Siaosi Fotu George Feiloakitau,^[52] the Queensland Court of Appeal acknowledged that one factor making identification less reliable, was that people find it more difficult to identify a person of another racial group, than one from their own racial group. I cannot reach a concluded view on the evidence before me about whether this is an issue in the present case. However, in circumstances where a complainant has had considerable time to view his assailant, I am inclined to the view that such an argument is potentially weakened.

47. [47]
    Despite the weaknesses in the photoboard identification evidence, it remains in my view, of some probative value. The alleged offence happened in daylight with the defendant making no attempt to disguise his identity. The evidence was that the defendant and the two men accompanying him were in no great rush and left the complainant’s residence walking. It appears that the complainant had a reasonable opportunity to view the defendant. The Facebook identification and subsequent photoboard identification occurred within a relatively short period of time, (no longer than 10 days), after the alleged offence. The complainant is “100 percent certain” of his identification of the defendant. Whilst I understand the arguments to be made about the weight, reliability and quality of such an unequivocal statement and indeed the other factors I have pointed to, such issues remain in my view, matters for the jury.

Conclusion

48. [48]
    Upon the above analysis, I am not persuaded that the probative weight of the photoboard identification interview has been diminished to such an extent that it is outweighed by the prejudicial effect it will have upon the defendant at the trial. This is undoubtedly a case where the trial judge will give careful directions to the jury about the potential for mistaken identification and generally the inherent risks in photo identification. I consider it appropriate to leave the issue of the weight to be afforded to the photoboard identification to a properly directed jury.

49. [49]
    I therefore order that the defendant’s application to exclude the photoboard identification interview conducted by the police with the complainant on 21 June 2014 be dismissed.