R v Cobbo[2020] QDCPR 32

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defendant for the exclusion of purported identification evidence of him by the complainant. He further applies that he be tried separately from Mr Hopkins and further that he be tried by a judge sitting without a jury. If a separate trial is not granted and a no jury order is not made then he applies for bail.

Charges

2. [2]
   The defendant is charged with one count of burglary and stealing which is alleged to have occurred on 6 April 2019, and one count of assault occasioning bodily harm whilst armed in company which occurred on the same date.

Background

3. [3]
   The crown relies on the evidence of the complainant, Troy James Fraser. He has provided a statement dated 6 April 2019,^[1] together with an addendum statement.^[2]

4. [4]
   Mr Fraser was dating a female named Bethelia Stewart who was called Rosie. They ended their relationship in January 2018. On Friday 5 April 2019, between about 10pm and 11pm, Mr Fraser contacted Rosie on her phone number and spoke about their relationship and said that they needed to be civil towards each other.

5. [5]
   Mr Fraser told her he was going to bed and hung up the phone.

6. [6]
   Within an hour of going to bed, he heard male and female voices which sounded like yelling coming from down the street. He went to the front of his house and observed two males and a female walk past his house. Someone said “I hope you like aids she’s rooting cunts with aids.” He didn’t know the two males who walked past but knew that Rosie was the female. The males were short but he could not describe them any further.^[3] He could hear Rosie going off while she was walking down the road.

7. [7]
   About 40 minutes later, he heard steps coming up the front steps. He went out and saw it was Rosie. She was drunk, carrying a can of Woodstock in her hand. She asked him for a cigarette. She came inside the house and they were in the kitchen area. He told her to calm down so they could talk. She spoke about his present partner. He went and got Rosie a smoke and then there was a knock at the door. He went to the door and a “black fella” was there who said “is Rosie there?” He looked at Rosie and said “sort it out to fuck off?”

8. [8]
   The complainant walked down the hallway and as he walked back towards the kitchen he saw three males wearing hoodies and gloves and one had a full mask.^[4] The biggest male was wearing a grey hoodie, was tall, fat with fair skin and wearing black gloves. His face was not covered but he could recall the exact details of the face. He recognised one of the males as Isaac Hopkins who was wearing a black hoodie, black gloves, had dreadlocks, a broad nose, and was Aboriginal. He was tall and quite well built. He had known Hopkins for many years.^[5] The third male had a brown/grey hoodie on, black gloves, was shorter than him, had an average build, and dark skin.

9. [9]
   As he approached them, the biggest male hit him by punching him straight to the face. The complainant hit him back and he went to the ground. All of the males started hitting him during this time. The big male grabbed him in a bear hug and recalls him yelling “knock him out, knock him out”. For a couple of minutes, both Hopkins and the shorter male continually hit him. All of a sudden he recalled the biggest guy had a katana sword. The complainant managed to push it to the ground and pushed the sword under his knees and held the sword flat with hands. He received a few cuts on his hands and his knees from holding the sword. One of the males then grabbed an elephant ornament from the lounge room and hit him to the temple on the right side of the head. After this, his everything went a bit blurry and he remembers saying “you better kill me”. The biggest male held onto him and all of them asked him for the keys to his car. He said he would give them the keys. He was released and walked towards the girls room and had the chance to hit the big male with his elbow and pushed him out of the room to the hallway and closed the door.

10. [10]
    The male starting hitting the door and smashing it hard. They were was yelling “we’re going to burn the house and take the car”. There were words yelled back and forth between them. At that stage the complainant called 000 and his aunty from Canberra for assistance.

11. [11]
    Eventually it was quiet, he came out of the room and saw the drawers had been rummaged through. Some property was taken.

12. [12]
    The police turned up and he informed them of what occurred. The ambulance came as well. They wanted to take him to the hospital but he refused. The police eventually left the address.

13. [13]
    Some time after the incident, the complainant reviewed Hopkins’ Facebook page and observed his Facebook profile with a male who he recognised as the other male involved the incident. He identified the other male as a male named Gary.

14. [14]
    In a second statement dated 21 June 2019, the complainant stated that when he looked at the Facebook pages of Hopkins he recognised one of the other males as one of the persons involved in the incident. The photo had Hopkins with two other males and he looked at the Facebook page with the name “Gary Cobbo” and recognised it as being one of the persons involved in the incident.

15. [15]
    On 8 April 2019, he attended the Inala Police Station and was shown a photo board with 12 photos on it and picked out the two people it most looked like and he signed the back of the photo board.

16. [16]
    Officer Smith in her statement describes attending the resident at about 1:45am and was told by the complainant that he had been attacked by two men when he was at home.^[6] The complainant was reluctant to make a statement at the time and declined to wait for scenes of crime to attend.

17. [17]
    Krystal Smith, who was an occupant of the complainant’s house, provided a statement dated 9 April 2019. She says in that statement^[7] that the complainant told her that three males had been there. One of them was Paddo Bond, another was Hopkins and he did not know who the third male was.

18. [18]
    The photo board viewing was recorded on 8 April 2019.^[8] Mr Cobbo’s photo was placed in position number 3. The photo board was shown to the complainant and he was unable to pick anyone from the photo board initially. At 3:38 minutes into the recording, he was asked if any of the persons depicted were familiar to him and he answered in the negative. He was then asked questions which were designed to attempt to assist him to recall the second male as Gary Cobbo from Facebook. Again, the complainant said the man was not on the photo board. The officer said “what about the third guy”. The complainant said “I can’t see him”. It was at this stage the complainant said that the position in number 3 “this one here looks like the one that knocked” but he then said “I can’t be sure” and ultimately says “it is out of them two” and refers to numbers 3 and 10.

19. [19]
    My clear impression of the recording is the complainant could not identify anyone positively or indeed at all during the photo board process.

The defence submissions^[9] as to the identification

20. [20]
    The defence firstly submits that the Facebook identification evidence should be excluded. It is submitted that in light of the fact this was a quick incident, the fact that the defendant was a stranger to the complainant and in light of the potential unreliability of the identification the evidence should be excluded.

21. [21]
    It is further submitted the probative value of the evidence is outweighed by its prejudicial effect because the full circumstances of the process are not recorded and the complainant was drawn to the Facebook site through the name of the co-accused so in reliance on R v Blick^[10] there is a “rogues’ gallery” effect here.

22. [22]
    The defence distinguishes the authorities relied on by the crown.

23. [23]
    The defence also submits that there was no positive identification made by the complainant in the photo board process. It is further submitted that the police did not comply with the Police Powers and Responsibilities Code in that they directed the attention of the witness to a particular photograph. It is submitted, therefore, unfair to allow the evidence of the purported identification made in the photo board process.

24. [24]
    The defence though says that if the Facebook identification evidence is admitted then it does not challenge the photo board evidence.

Crown submissions^[11] as to the identification

25. [25]
    The crown submits that the authorities across a number of jurisdictions support the admissibility of the Facebook identification.

26. [26]
    The crown submits that the identification is of significant probative value not outweighed by prejudice. Any prejudice can be cured by direction.

27. [27]
    It is also relevant the Facebook identification was made soon after the events in question.

28. [28]
    It is submitted that the photo board identification process is a circumstantial piece of evidence. Appropriate directions may be given as to this evidence.

Discussion- identification evidence

29. [29]
    The question to be considered is whether it is unfair to admit the photo board evidence in the exercise of the unfairness discretion,^[12] or in the exercise of the general discretion.^[13]

30. [30]
    Identification evidence, particularly in relation to strangers, has been described as “notoriously uncertain”.^[14]  It has also been described as unreliable.^[15] 

31. [31]
    In Festa v R^[16] 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.”

32. [32]
    In R v Currie^[17] 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^[18] 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.”

33. [33]
    Referring to R v Turnbull^[19] 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.”

34. [34]
    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.”

35. [35]
    Dowsett J held that a significant factor was the limited opportunity of observation and of 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.

36. [36]
    The courts have considered the admissibility of Facebook identifications on previous occasions.

37. [37]
    In State of Western Australia v Roe,^[20] 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.    

38. [38]
    In Peterson v R,^[21] 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.

39. [39]
    The New South Wales Court of Criminal Appeal took a similar approach in Dia v R.^[22] 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.  

40. [40]
    Also in R v Lockwood,^[23] 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. 

41. [41]
    I accept that in some cases a court might exclude Facebook identification evidence if it is of slight probative value far outweighed by its prejudicial effect. However, in the present case, I consider the Facebook identification evidence at this stage to be admissible.

42. [42]
    The fact is as the evidence stands now the identification was made in similar circumstances to the decided cases. It was made without prompting by the police or anyone else. It was made shortly after the alleged offences were committed. Also the incident was an extended one. There was no “fleeting glimpse” like in Currie.

43. [43]
    As to the “rogue’s gallery” submission I note that there were three people present on the Hopkins Facebook page. The third person was not identified as an offender by the complainant.

44. [44]
    The dangers of the evidence can be addressed in warnings given to a jury or by the trial judge to himself or herself if it is a judge only trial.

45. [45]
    Also I consider it may be open to the defence to re-agitate the issue by way of further application or in its address to the Trial Judge if it is a judge only trial. It may be that concessions are made by the complainant in cross-examination highly relevant to any exclusion application of which I am unaware now.

46. [46]
    I would have thought there is certainly fertile ground for cross-examination contained in the photo board identification interview.

Separate trial application

Defence submissions

47. [47]
    It is submitted by the defence that the trial issues for Hopkins and Mr Cobbo are very different. Mr Hopkins is said to have known the complainant for many years and is named as a person involved when 000 was called. The Hopkins trial might involve quite different considerations to that involving Mr Cobbo’s.

Crown submissions

48. [48]
    The crown submits that the starting position is that the accused should be tried jointly. It submits that directions can be given in this case curing any prejudice.

Disposition

49. [49]
    Section 568 (11) and (12) of the Criminal Code provides:

“(11) Any number of persons charged with committing or with procuring the commission of the same offence, although at different times, or of being accessories after the fact to the same offence, although at different times, and any number of persons charged with receiving, although at different times, any property which has been obtained by means of a crime or misdemeanour, or by means of an act which if it had been done in Queensland would be a crime or misdemeanour and which is an offence under the laws in force in the place where it was done, or any part of any property so obtained, may be charged with substantive offences in the same indictment, and may be tried together notwithstanding that the principal offender or the person who so obtained the property is not included in the same indictment, or is not amenable to justice.

3. (12)
   Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together.”

50. [50]
    In my view, the accused may be joined on the same indictment.

51. [51]
    Section 597B of the Criminal Code provides a discretion in the court to order separate trials where there is more than one accused. Usually defendants charged with the commission of a joint offence are tried together because there is good reason in point of principle and policy why this should happen. This is because there are administrative factors pointing in that direction, but more importantly it is desirable to avoid inconsistent verdicts particularly when each accused tries to cast blame on the others.^[24]

52. [52]
    Separate trials may be justified where:

1. (a)
   The evidence in one case is significantly weaker than and different to that of the other;

2. (b)
   Where there is a real risk that the weaker prosecution case will be made measurably stronger by reason of prejudicial material in the case of the other accused; and/or

3. (c)
   Where the degree of prejudice from evidence admissible only in the case of one accused the case of the other accused is so great as to make it unfair to try the accused together.^[25]

53. [53]
    It was noted by Philippides J in R v Bargenquast and Holmes^[26] that:

1. (a)
   Ordinarily careful directions to the jury will be an adequate means of ensuring a fair trial;

2. (b)
   But there may be some cases where it is impossible or difficult to disentangle the evidence such that a separate trial should be ordered; and

3. (c)
   The categories of case where it is appropriate to order separate trials are not closed. 

54. [54]
    In R v Swan,^[27] Jackson J noted that juries were obliged to follow a trial judge’s directions but, at paragraph 58, with reference to Pham:

“...it would have been virtually impossible, as a matter of common sense, for the jury to disregard [the other defendant]’s interview in dealing with the case against the appellant, despite the emphatic directions that [the other defendant]’s alleged confession formed no part of the case against the appellant and should be disregarded so far as he was concerned.”

55. [55]
    Hunt J in R v Middis stated:^[28]

“Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant.  The applicant must show that positive injustice would be caused to him in a joint trial.”

56. [56]
    In this matter, having considered the relevant principles, I am of the view that this is a case where a separate trial should be ordered. It seems to me the case against Mr Cobbo is significantly weaker than the case against Mr Hopkins. The case involving Mr Cobbo will be a very narrow one on the issue of identification.

57. [57]
    The case against Mr Hopkins may involve quite different considerations e.g. self- defence, defence of another etc.

58. [58]
    In all of the circumstances I am satisfied that a separate trial should be ordered.

Judge only application

Defence submissions

59. [59]
    The defence submits it is in the interests of justice here for a no jury order to be made. The submission is that there is a limited trial issue and that the defendant is unlikely to receive a jury trial anytime soon due to the COVID-19 pandemic. Further, Mr Cobbo is in custody and it is extremely likely that if a jury trial is elected he would spend more time in jail than he would receive if sentenced for the present offence.

Crown submissions

60. [60]
    The Crown submits it is not in the interests of justice for there to be a no jury order. The matter should be tried by a jury.

Discussion

61. [61]
    Sections 614, 615 and 615A of the Criminal Code provide:

“614 Application for order

3. (1)
   If an accused person is committed for trial on a charge of an offence or charged on indictment of an offence, the prosecutor or the accused person may apply to the court for an order (no jury order) that the accused person be tried by a judge sitting without a jury.

3. (2)
   The application must be made under section 590AA before the trial begins.

3. (3)
   If the identity of the trial judge is known to the parties when the application is decided, a no jury order may be made only if the court is satisfied there are special reasons for making it.

3. (4)
   Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.

3. (5)
   The court may inform itself in any way it considers appropriate in relation to the application.

3. (6)
   For subsection (2), the trial begins when the jury panel attends before the court.

615 Making a no jury order

3. (1)
   The court may make a no jury order if it considers it is in the interests of justice to do so.

3. (2)
   However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.

3. (3)
   If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application.

3. (4)
   Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply—

1. (a)
   the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;

2. (b)
   there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;

3. (c)
   there has been significant pre-trial publicity that may affect jury deliberations.

3. (5)
   Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

615A More than 1 charge or accused person

3. (1)
   If an accused person is charged with 2 or more charges that are to be tried together, the court must not make a no jury order in relation to 1 of the charges unless the court also makes a no jury order in relation to each other charge.

3. (2)
   If 2 or more accused persons are to be tried together, the court must not make a no jury order in relation to 1 of the accused persons unless the court also makes a no jury order in relation to each other accused person.

3. (3)
   To remove any doubt, it is declared that—

1. (a)
   each of the accused persons must consent to the making of the no jury order; and

2. (b)
   the making of an order for a separate trial under section 597A or the giving of a direction about the separate trial of an accused person under section 597B does not prevent the making of a no jury order.”

62. [62]
    Having granted a separate trial to the defendant, s 615A notes that a no jury order may be made.

63. [63]
    In R v Clough,^[29] McKenzie J observed at paragraph 6:

“[6] The safeguard in s 614(3) against such an application being made in those circumstances is a requirement that a no jury order may be made only if the court is satisfied that there are special reasons for making it. The essential concept is that, in applications where special reasons must be established, once that threshold is reached, and in cases where the identity of the trial judge is not known and it is not applicable, the court may make a “no jury order” if it considers it is “in the interests of justice to do so”. That is, in my view, an unfettered discretion to make such an order if, having regard to the issues in a particular case and any other matters bearing on what might be properly encompassed in the notion of the interests of justice in that case, the Judge considering the application is of the view that it is, in fact, in the interests of justice to make such an order. Section 615(4) gives non-exclusive examples of particular circumstances that may be taken into account by the court in deciding whether or not to make a no jury order.”

64. [64]
    In R v Fardon,^[30] Chesterman J observed at paragraph 81:

“[81] The Criminal Code provides that ordinarily indictable offences are to be tried by a jury. … Sections 614 and 615 are in Chapter division 9A, “Trial by judge alone”. It follows that trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.”

65. [65]
    The question then is whether is it in the “interests of justice” to make the order.

66. [66]
    As to the phrase “interests of justice” Martin J in R v Prisk and Harris,^[31] said:

“The phrase “interests of justice” is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial. I agree with the description of Malcolm CJ in Mickelberg that the interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.”

67. [67]
    In my view, in light of the limited issues in the trial and in light of the potential delay in this matter bearing in mind the COVID-19 pandemic, it is in the interests of justice here to make a no jury order. This is particularly considering the fact that Mr Cobbo is on remand for the present charges. It is also relevant that there is a community interest in charges being dealt with by the courts expeditiously where possible.

68. [68]
    A very relevant factor is that any prejudice associated with the admission of the Facebook identification evidence will be very slight indeed if a Judge only hears this matter. Indeed it may be after cross examination a successful application will be made for exclusion or at the least a reasonable doubt will exist.

Conclusion  

69. [69]
    For the reasons I have given, I make the following orders:

1. The application to exclude the Facebook identification evidence is refused.

2. I order that Mr Cobbo be tried separately from Mr Hopkins.

3. I make a no jury order for Mr Cobbo.