R v McGough[2020] QDCPR 123

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application pursuant to s 590AA of the Criminal Code 1899 (Qld) for the exclusion of Facebook identification evidence and further for the exclusion of a handwritten note containing the defendant’s name.

Charge

2. [2]
   The defendant is charged with one count of robbery in company with personal violence which offence has alleged to have occurred on 8 November 2019.
3. [3]
   The co-offender is Ms Justice Lansdown. There is also a third unidentified co-offender.

The facts

4. [4]
   The Crown submissions attach a schedule of facts. Aside from the issue of identification, the facts are accepted.
5. [5]
   The complainant, Mr Lowther, had been in a relationship with the defendant Ms Lansdown for about three weeks. He did not know the defendant Mr McGough or the unidentified co-offender.
6. [6]
   On 8 November 2019, the complainant drove Lansdown to a train station so she could travel to the Gold Coast. Later that afternoon, the complainant called Lansdown and said that he needed the house keys as he was locked out. She told him to come to Brisbane and said she was at the Madison Tower Mill Hotel. The complainant drove to the hotel on Wickham Terrace and arrived at about 6:30pm. He messaged Lansdown to say he was there. She came down and the complainant asked her to go back home with him. Lansdown said she would but she said she was in Brisbane with her friend Adam who was suicidal and asked the complainant to wait for 10 minutes. Forty minutes later, she returned and said that Adam was still suicidal and she couldn’t leave just yet.
7. [7]
   A further 45 minutes passed and Lansdown returned. She walked up to the complainant and hugged him. Shortly after, two males came outside from the hotel and Lansdown walked towards them. It is alleged that the defendant McGough approached the complainant and asked if he was Lansdown’s partner. The complainant said yes and the defendant McGough then grabbed Lansdown’s arm and he and the unidentified male walked into Wickham Park. The complainant was confused and followed them. The two males walked back to the complainant leaving Lansdown in the centre of the park. The unidentified male told the complainant that he had to transfer his money and they were going to escort him to a Westpac ATM. The complainant said he had left his wallet at home. The defendant McGough then struck the complainant to the left side of the jaw using a closed fist. The complainant felt immediate pain and fell to the ground. The defendant McGough grabbed the complainant by the collar and dragged him two metres before then punching him. He got up and walked away with Lansdown.
8. [8]
   The unidentified male then escorted him to the city looking for a Westpac ATM. At one point, the complainant began to walk to two police officers and the unidentified male threatened him.
9. [9]
   The unidentified male then made the complainant pull his pants down to prove he didn’t have his wallet. The male said they would go back to his car and go for a drive. They went back to the hotel, the complainant went into his car and got into the driver’s seat. The complainant showed the male there was no wallet there. The complainant handed the male an Armani watch, which belonged to his late brother, which was taken.
10. [10]
    Fifty minutes later, Lansdown came down and verbally abused the complainant and took his keys out of the ignition. He got out of the car and asked for his keys back but Lansdown punched him in the face.
11. [11]
    The next day, the complainant texted Lansdown advising he would leave her belongings down the road from his house. Lansdown sent him threatening text messages. She also sent a text to the complainant saying that she and Adam would be able to grab her things from his house.
12. [12]
    On 10 November 2019, the complainant recognised the defendant McGough in Lansdown’s Facebook profile picture as being the male who assaulted him in Wickham Park. He reported the matter to the police.
13. [13]
    He says in his statement dated 10 November 2019 that he is “100 percent certain” that this male was the male who assaulted him. He also says that Lansdown left a notebook at his house and noticed on the last page she had written “Adam McGough”. He took that notebook to the police station.
14. [14]
    Officer Platz, in his statement, confirms that the complainant provided him the Facebook photo of Lansdown with the defendant. The police officer compared the male in the Facebook photograph to photos of the defendant held by the Queensland Police Service. He considered that the person in the Facebook was the defendant McGough.
15. [15]
    Later, he prepared a photo board which included the defendant’s photograph which he showed to the complainant on 12 March 2020. The complainant was unable to identify the defendant McGough on the photo board.
16. [16]
    The complainant also gave evidence. He said that he was able to observe the offender in the light in the reception of the hotel where the offender was dancing around. The offender then approached him. He saw his face for two to three seconds. They then went to the park and he was able to see the offender’s face for a short time there as well.
17. [17]
    He was certain that the man he saw on the Facebook page was the offender. He was not mistaken. He said the offender was not in the photo board he was shown in March.

The defendant’s submissions

18. [18]
    The defendant submits that it would be unfair to admit the Facebook identification evidence. It is submitted the complainant had limited opportunity to observe the offender and it was at night.
19. [19]
    It is submitted that the complainant was wrong about the offender not being in the photo board.
20. [20]
    It is also submitted that the piece of paper with the name has no probative value and is not relevant.

Crown submissions

21. [21]
    The Crown, on the other hand, submits that the identification evidence in this case is a matter for the jury to determine and a number of authorities support the admission of the Facebook identification.
22. [22]
    It is submitted that the complainant had the opportunity of observing the offender in the light at the reception of the hotel. The complainant was certain he picked the right person. The issue concerning the photo board is a jury question and would be the subject of directions.
23. [23]
    It is submitted that the handwritten note evidence is part of the narrative and the application should be dismissed.

Discussion

24. [24]
    In Festa v R,^[1] McHugh J at [65] 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.”

25. [25]
    The courts have considered the admissibility of Facebook identification evidence on previous occasions.
26. [26]
    In State of Western Australia v Roe,^[2] the accused sought the exclusion of a purported Facebook identification. The evidence was admitted. Banks-Smith J examined a number of relevant decisions and noted at [48]-[49] there are potential dangers of Facebook identification but that there is a “uniform theme” that the risks can generally be ameliorated by proper directions to the jury.
27. [27]
    In Peterson v R,^[3] the Victorian Court of Appeal considered a situation where the appellant had appealed the ruling admitting Facebook identification evidence. The Court dismissed his application holding that the identification evidence was probative and that a jury could have regard to the evidence with appropriate directions being given. The reliability of the identification was a jury question.
28. [28]
    The New South Wales Court of Criminal Appeal took a similar approach in Dia v R.^[4] In that case, the witness looked at the Facebook site to see if she could identify the offender. It was said that while there are dangers with such a method of identification, it was an acceptable method analogous to looking through an array of photographs at a police station.
29. [29]
    Also in R v Lockwood,^[5] the Facebook identification evidence was admitted by Mossop J on the basis of its probative value. I do note there was other evidence against the accused in that case.
30. [30]
    Finally in R v Kearney,^[6] the court refused to exclude Facebook identification evidence noting that evidence of identification from a single photograph is admissible but there remains a discretion to exclude such evidence. It was noted that generally a distinction is drawn between pre-detection and post-detection phases.
31. [31]
    There is no doubt that Facebook identification evidence, if it is of slight probative value, far outweighed by its prejudicial effect may be excluded. Also, if it is unfair to admit the evidence it may also be excluded in the exercise of the “fairness” discretion.
32. [32]
    However, in my opinion, the evidence here is of reasonable probative value and is not far outweighed by any prejudice. I also do not consider it unfair to admit the evidence.
33. [33]
    Firstly, the identification of the Facebook photograph was immediate once the complainant saw the image. The identification was shortly after the alleged offences.
34. [34]
    Secondly, the witness is 100 percent certain this was the defendant. In evidence he said he was sure.
35. [35]
    Thirdly, this is not a “fleeting glimpse” case. The complainant was able to observe the offender first in the light at the reception at the hotel and then again prior to being assaulted in the park. This provides sufficient time for a person to be able to recognise another.
36. [36]
    Finally Lansdown referred to “Adam” during the course of the day which happens to be the defendant’s first name.
37. [37]
    As to the point the complainant was unable to identify the defendant on the photo board, this is a jury question. I do observe the photograph of the defendant on the photo board does appear different to the other photographs which have been tendered. But as I say, the matter may be the subject of cross-examination. The dangers of any identification evidence can be addressed and warnings given to a jury.
38. [38]
    The reality is in the present day Facebook identification evidence is reasonably common. Many people subscribe to social media applications. It is understandable that a victim of a crime might look on social media for the offender if the offender has not yet been caught by the police.
39. [39]
    Absent any particular unfairness or other defect, in my view, identification evidence from a person who is able to identify an offender from a social media platform such as Facebook can be admitted into evidence. The evidence is similar to identifying an offender in the street after the offence in question^[7] or identifying a person from an array of photographs.^[8] Of course this is subject to the discretion to exclude such evidence^[9] and it all depends on the circumstances of the case.
40. [40]
    In those circumstances, I am not satisfied that the defence has established it would be unfair to admit the evidence and in the circumstances I dismiss the defence application.
41. [41]
    The note is in a different category. The note is mere hearsay.^[10] It is not probative of anything. It is not linked to the crime in any way. There is no satisfactory evidence as to who wrote the note and in what circumstances the name came to exist on the note.
42. [42]
    In all of the circumstances, I am satisfied the name on the piece of paper is of slight probative value far outweighed by its prejudicial effect and I exclude reference to the note at the defendant’s trial.

Conclusion

1. I dismiss the defence application to exclude the Facebook identification evidence.
2. I exclude reference to the notebook with the defendant’s name on it during the trial.