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- Unreported Judgment
The Queen v David Christopher Smith QDCPR 14
DISTRICT COURT OF QUEENSLAND
R v Smith  QDCPR 14
DAVID CHRISTOPHER SMITH
Application pursuant to section 590AA of the Criminal Code
District Court, Townsville
28 March 2019
11 and 21 March 2019
I exclude the photo board identification evidence.
CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – whether identification evidence should be excluded
Criminal Code 1899 (Q) s 590AA
Evidence Act 1977 (Q) s 130
Police Powers and Responsibilities Act 2000 (Q) s 617
Police Powers and Responsibilities Regulation 2012 (Q) rr 42, 43
Alexander v R (1981) 145 CLR 395
Bayley v R (2016) 260 A Crim R 1
Domican v R (1992) 173 CLR 555
Festa v R (2001) 208 CLR 593
R v Brookes  QCA 103
R v Christie  AC 545
R v Currie  QSCCCA 301
R v Gould (2014) 243 A Crim R 205;  QCA 164.
R v Turnbull  1 QB 224.
Winmar v State of Western Australia (2007) 35 WAR 159
COUNSEL: Ms J Crane for the Crown
Mr J Greggery QC for the defence
SOLICITORS: Office of the Director of Public Prosecutions for the Crown
Purcell Taylor Lawyers for the defence
 This is an application pursuant to s 590AA of the Criminal Code 1899 (Q) for the exclusion of the evidence of a photo board identification procedure conducted with the complainant on 6 February 2018.
 The defendant is charged with one count of burglary in the night in company and one count of assault occasioning bodily harm in company. The offences are alleged to have occurred on 3 June 2017 at Ayr.
- The complainant, Joshua Thomas Richards has given a statement dated 12 June 2017. In that statement he says he does not know the defendant.
- On 3 June 2017 at about 11.30 pm he was upstairs in his bedroom of his two-storey unit talking to a friend (Mr McVeigh) when he heard a car pull up and stop in the driveway. He heard the car doors open and heard a group of men yelling threats and swearing trying to find a way into his unit. Mr McVeigh looked out of the window. The complainant then heard someone banging on the front door of the unit and someone banging on the backdoor. He looked out of the window himself and saw a light blue or silver Toyota Land Cruiser in the driveway and two groups of men standing at the front entrance and the back entrance. He went to his bedroom and locked it. He heard a couple of the men come through the window. He later saw Mr McVeigh on the grass underneath the window. Someone pushed on his bedroom door, it was opened and he saw Jye Smith come through the door. He said to Jye “What the fuck are you doing in my house?” Jye asked whether Sam was there. Mr Richards replied “No she’s not she’s at her Uncle Stephen’s house.” Whilst he was talking to Jye another man pushed past Jye and yelled at Mr Richards accusing him of feeding young girls with drugs. This man pushed Mr Richards onto the floor and started hitting him with a closed right fist about the face and ribs. He curled into a ball on the floor and tried to protect himself. Jye yelled at the man “That’s enough, that’s enough let’s go.” He pulled the male off of the complainant and they walked back down the steps. Jye stayed in the bedroom near the complainant’s bed. The complainant got off the floor and saw Donovan Devow and Joseph Hookey standing on the top step of the staircase. There was then an argument between Mr Richards and Jye. Jye, Donovan and Joseph then left, got into the Toyota Land Cruiser and drove down Parker Street. Later the matter was reported to the police.
- The complainant was shown a photo board which contained a photograph of the defendant on 6 February 2018. The complainant identified photograph number nine as being the fourth man involved in the incident, namely the defendant.
- The complainant gave evidence on voir dire before me.
- He said he was not able to observe the people outside when he was looking at them from inside the unit. His only observation of the offender was in the room. He agreed he was confronted by multiple people, one of whom he had never seen before. He was concerned about what was happening and he accepted that his capacity to observe was limited and it was all “a bit of a blur”. He agreed that he locked the door to the bedroom and turned the light off but later turned the light on. He agreed that he was pushed back quickly and it was a very confusing situation. He was pushed to the floor and then attempted to protect himself from the assault. He curled up in a ball on the floor with his eyes closed and his hands over his face. He agreed it all happened over a short period and he was dazed and confused. The offenders left quickly. The man he did not know was the first one to leave. He agreed he was only able to observe the person for seconds. He agreed that the next afternoon he was confronted by Jye Smith and was told that the offender he did not know was Jye’s uncle. He then looked at Jye’s uncle’s Facebook page and a series of photographs of the defendant. He said that eight days later he spoke to the detective and provided his statement stating that he did not know David Smith. He then agreed that it was nine months later that he went to the police station and was shown the photo board. He conceded that he quickly excluded a large number of persons on the photo board. He recognised David Smith as the man who came to his house. He did agree that he only observed David Smith for seconds and he was confused and dazed by the assault. He agreed that his seeing the images on Facebook contributed significantly to the photo board identification. In re-examination, he accepted he used an elimination procedure. He said the men were in his room for a couple of minutes and he saw the man for thirty seconds clearly and vividly.
- Officer Hosie gave evidence that the day after the events the complainant attended the police station. He also agreed that he took the complainant’s statement on 12 June 2017. He first spoke to him outside the Commercial Tavern on 3 June 2017. At that stage the complainant said he had been attacked and wanted to make a formal complaint. The officer advised him to go to the hospital. The officer was aware of an obligation to obtain a description of offenders at the earliest opportunity. He agreed that in this statement dated 12 June 2017 the complainant said he did not know David Smith. This was put into the statement because of the interaction between Jye and the complainant after the incident. He agreed that there was no attempt made for the complainant to describe the unknown assailant because he was unable to provide a description. He also agreed that if he had been aware that the complainant had seen Facebook photos of the defendant he would not have done the photo board procedure as it would have been tainted.
- The defence submits that the evidence of the photo board identification should be excluded in the exercise of the discretion to exclude unlawfully obtained evidence or unfair evidence.
- It is submitted:
- (a)the composition of the photo board is unfair;
- (b)the complainant had little opportunity to make observations of the person identified as the defendant;
- (c)there was no description of the offender provided by the complainant;
- (d)the photo board procedure was conducted nine months after the assault. The complainant told the police that his recollection of the assault was vague;
- (e)the photo board procedure was tainted.
- The Crown submits:
- (a)the photo board was appropriately constructed;
- (b)there is no basis to exclude the photo board in the exercise of the discretion;
- (c)the complainant was unequivocal in his identification of the defendant;
- (d)the evidence will be the subject of a Domican warning;
- (e)there are insufficient features to lead to the exclusion of the evidence.
Unlawfully obtained evidence
- Section 617 of the Police Powers and Responsibilities Act 2000 (Q) provides:
“Identification of suspects
- (1)It is lawful for a police officer to use 1 or more of the following procedures to help gather evidence of the identity of a person suspected of having committed an offence—
- (a)an identification parade;
- (b)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;
- (d)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.”
- Further, the Police Powers and Responsibilities Regulation 2012 is relevant.
- Regulation 42 provides:
“42 General requirements for identification using photographs
To avoid directing the attention of the witness to a particular photograph, the police officer must ensure nothing is marked on—
- (a)any photograph; or
- (b)the photo board.”
 Regulation 43 provides:
“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—
- (a)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
- (b)write the photograph number and the date the photo board was shown to the witness—
- (i)on the front of an unmarked photocopy of the photo board; or
- (ii)on the back of the photo board or the selected photograph; and
- (c)sign the photo board, photocopy or photograph where the person has written on it.”
- I have carefully considered the construction of the photo board here. Contrary to the defence submissions, I do not consider there is a breach of the Police Powers and Responsibilities Act or the Code. In the present case the photo board contains photos of light skinned males (with perhaps the exception of person 7 who has a more olive complexion) of a similar age with either a shaved or bald head. The twelve men have varying degrees of facial hair which can be described as “stubble”. This includes the defendant. None of the men have any particular identifying features such as a visible tattoo which would make them stand out.
- Whether photographs in a photo board are sufficiently similar to the photograph of the suspect is a matter of judgment and degree. As was said in R v Brookes:
“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.”
- In my view none of the photographs can be said to be inappropriately included in this photo board. It is my opinion the photographs of the 12 men are sufficiently similar to justify their inclusion. There is nothing about the photograph of the applicant at position nine which draws unfair attention to him and which therefore renders the photo board procedure unlawful.
Unfairness/exercise of the general discretion
- In Festa v R Gleeson CJ at  held:
“In exercising the discretion to exclude positive-identification evidence, the court 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 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.”
- In R v Currie the Queensland Court of Criminal Appeal allowed the offender’s appeal and quashed his conviction. In that case the witness observed the offender for a very short time and some six weeks after the event viewed a photo board. She identified the appellant. Dowsett J (referring to Alexander v R) noted that although identification evidence based on galleries of photographs is strictly admissible subject to a discretionary power of exclusion, the High Court has clearly indicated a preference for identification parades. At page 8 it was said:
“In any event, the identification evidence was of no real value because of the absence of any significant opportunity on the part of the complainant to observe the man in question. She, herself said that the only opportunity was for a period of about two seconds during which he was in the process of obscuring his face.”
- Referring to R v Turnbull it was noted:
“When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.”
- At page 9 Dowsett J continued:
“Identification evidence which is of doubtful value may in some circumstances be supported by other evidence implicating the accused and the alleged crime. In other cases, doubtful identification evidence may stand by itself, as is the present case. Where there is other evidence implicating the accused, a trial judge should be reluctant to exercise his discretion to exclude identification evidence simply upon the basis of its quality, although appropriate warnings must be given. It may be that in some circumstances, the evidence is itself so lacking in substance that it cannot be fairly seen as likely to assist the jury in its task, even in the light of other evidence. In that situation it should be excluded.”
- Dowsett J held that a significant factor was the limited opportunity of observation and the fact that the witness was not asked to attempt the identification until six weeks after the event. He held that had the trial judge been asked to exclude the evidence he should have done so.
- In this case there are a number of matters of concern.
- Firstly, the witness had limited opportunity under confronting circumstances involving multiple offenders to make observations of the unknown assailant and retain that information.
- Secondly, the offender was a complete stranger to the complainant.
- Thirdly, the investigating police did not obtain a detailed description of the offender from the complainant at the earliest opportunity. It is now not possible to know whether the complainant had the capacity to observe the unknown assailant in any meaningful way or whether he was able to provide any description for his attacker which would provide some basis for later identification. It is not possible to know what features the complainant identified in the photo board as being that of the unknown assailant. The defendant is deprived of the forensic opportunity to impugn the later identification by reason of any inconsistency.
- Fourthly, in my view the “Facebook” evidence is of concern. The complainant conceded he relied on the photographs he saw on Facebook at least in part when he made the photo board identification. As the police officer conceded, this in my view has tainted the identification procedure. There is a clear risk of a displacement effect.
- As to the displacement effect in Bayley v R, the Victorian Court of Appeal held that the photo board evidence should have been excluded by the trial judge where the witness had seen the accused’s images on Facebook and in the media prior to the identification process. It was noted that the risk of the displacement effect will, depending on the circumstances, be exacerbated by Facebook and other social media.
- Finally, there is a delay of nine months between the assault and the photo board identification procedure. In my opinion this substantially impairs the reliability of the identification of a person unknown to the complainant. In Winmar v State of Western Australia the Court of Criminal Appeal in Western Australia took this matter into account noting that:
“In our view since delay does have an effect upon the accuracy of the identification, even if it is not possible to say anything about the likely effect of any particular period of delay, trial judges should warn juries that delay between observation and identification is a factor which they should consider in assessing the accuracy of an identification.”
- I note in R v Gould the Court of Appeal concluded that the conviction should be quashed and verdicts of acquittal entered. It was noted at :
“An even more fundamental problem for the respondent, however, is that the prosecution case was inherently weak. It rested, for the most part, on the complainant’s identification of the appellant. She had seen her assailant only very briefly at night aided by the illumination provided by her vehicle’s parking lights and by a light from a torch she held directed at the ground. Her eyesight had the defects mentioned earlier. She had not seen her assailant before the incident and was not called on to identify the appellant until more than nine months after the attack.”
- There is no other evidence in this case which supports the identification.
- In all of those circumstances, bearing in mind the dangers of identification evidence, I am satisfied on the balance of probabilities that the defence has proved it would be unfair to admit the identification procedure. Alternatively I am satisfied in the exercise of the general discretion to exclude the evidence as having slight probative value which is far outweighed by its prejudicial effect.
- In all of the circumstances I exercise my discretion to exclude the photo board identification procedure in this case.
 Pre-Trial Hearing Transcript p 4.10-4.11.
 Pre-Trial Hearing Transcript p 4.14.
 Pre-Trial Hearing Transcript p 4.19-4.21.
 Pre-Trial Hearing Transcript p 4.32.
 Pre-Trial Hearing Transcript p 4.34-4.41.
 Pre-Trial Hearing Transcript p 4.43-4.45.
 Pre-Trial Hearing Transcript p 5.1-5.5.
 Pre-Trial Hearing Transcript p 5.7-5.10.
 Pre-Trial Hearing Transcript p 5.12-5.14.
 Pre-Trial Hearing Transcript p 5.18
 Pre-Trial Hearing Transcript p 5.20-5.21.
 Pre-Trial Hearing Transcript p 5.41-5.42.
 Pre-Trial Hearing Transcript p 6.8-6.23
 Pre-Trial Hearing Transcript p 6.38-6.41.
 Pre-Trial Hearing Transcript p 7.4-7.8.
 Pre-Trial Hearing Transcript p 7.25-7.27.
 Pre-Trial Hearing Transcript p 7.35-7.40.
 Pre-Trial Hearing Transcript p 8.16-8.19.
 Pre-Trial Hearing Transcript p 8.42-8.46.
 Pre-Trial Hearing Transcript p 9.5-9.18.
 Pre-Trial Hearing Transcript p 11.43-11.45.
 Pre-Trial Hearing Transcript p 12.1-12.2.
 Pre-Trial Hearing Transcript p 12.21-12.23.
 Pre-Trial Hearing Transcript p 12.25-12.32.
 Pre-Trial Hearing Transcript p 12.34-12.35.
 Pre-Trial Hearing Transcript p 12.37-12.39.
 Pre-Trial Hearing Transcript p 13.14-13.41.
 Pre-Trial Hearing Transcript p 13.43-13.46.
 Pre-Trial Hearing Transcript p 14.1-14.46.
 Pre-Trial Hearing Transcript p 15.9-15.14.
 Domican v R (1992) 173 CLR 555 at p 562.
  QCA 103 at .
 Section 130 of the Evidence Act 1977 (Q).
 R v Christie  AC 545.
 Alexander v R (1981) 145 CLR 395 at p 426.
 Festa v R (2001) 208 CLR 593 at p 610.
 Festa v R (2001) 208 CLR 593 at p 610.
  QSCCCA 301.
 (1981) 145 CLR 395.
  1 QB 224.
 (2016) 260 A Crim R 1 at .
 (2007) 35 WAR 159
 (2014) 243 A Crim R 205 at ;  QCA 164.
- Published Case Name:
The Queen v David Christopher Smith
- Shortened Case Name:
The Queen v David Christopher Smith
 QDCPR 14
28 Mar 2019