New South Wales District Court CITATION: R v Matthew Thomas [2006] NSWDC 171 JUDGMENT DATE: 15 December 2006 EX TEMPORE JUDGMENT DATE : 04/15/2007 JUDGMENT OF: Nicholson SC DCJ DECISION: Evidence of identification from photographic array - admitted [19].; Evidence of claimed recognition from prior encounters rejected as prejudicial - [30]. CATCHWORDS: Criminal Law - pre-trial voir dire - interlocutory judgment - admissibility of evidence - evidence of identification - objection to photograph array conducted by police - meaning of person in police custody - mug shots - non-immediate selection of accused photograph - general use of photographic identification in business, sport, driver's licences and passports - objection to evidence of recognition from prior encounters - probative value of evidence - prejudicial effect of such evidence. LEGISLATION CITED: s. 115, s116, s137, s165 Evidence Act 1995 (NSW) PARTIES: Regina Matthew Thomas FILE NUMBER(S): 05/21/0295 COUNSEL: Defence: P.G.H Nematalla SOLICITORS: Crown: Ms Donnah JUDGMENT 1 On his way home from work on the 12th April 2005 Vasanthan Kandiah took a short cut across Parramatta Golf course. He was 50metres along a path that runs along the eastern border of the golf course when he was robbed by four youths. Matthew Thomas has been charged with robbing Mr Kandiah at that site whilst in company of three other youths. 2 His trial was set down for the 6th November 2006 at Parramatta District Court. The strength of the prosecution case against him hinges upon identification evidence of Vasanthan Kandiah. Three months after the robbery Mr Kandiah was shown an array of 20 photographs by police. The procedure was video taped. A CD was made of the computer program photo array as the displayed array was actually interacted with by a police officer at the direction of Mr Kandiah. The CD therefore contains a virtual replay of the computer screen display as responded to by Mr Kandiah. Mr Kandiah selected a photograph of the accused, Matthew Thomas, as being one of the persons who participated in the robbery. 3 Upon arraignment the accused pleaded not guilty. Mr Nematalla, his counsel, has objected to the reception into evidence of the videotape, the CD or any other evidence relating to the identification of the accused by Mr Kandiah on the 8th July 2005. A pre-trial voir dire was held to determine whether evidence of the photo array and subsequent identification of the accused should be admitted. At the conclusion of the hearing I indicated I would admit the evidence over the objection of defence counsel. These reasons seek to chronicle the objections and my reasons for admitting the evidence. 4 Mr Nematalla's first objection was that the photo array infringed s115(2) of the Evidence Act 1995 (the Act) – that is, the pictures viewed by Mr Kandiah suggested they were pictures of persons in police custody. The practice pursued by police on this occasion is a well established procedure. Mr Nematalla's argument was critical of the established procedure, arguing photographs of the kind currently used by police are expressionless, eyes looking directly into the camera. His argument is such a pose is symptomatic of mug shots. 5 His second objection was that the quality of the identification by Mr Kandiah was so weak that I should exercise a discretion given under s 137 of the Act to exclude the evidence because of the danger of unfair prejudice to the accused. The unfairness is said to centre upon a cumulative effect touching matters pre identification and the identification process itself. 6 The statement of Mr Kandiah disclosed to the defence reveals that on the date of the robbery: *Mr Kandiah's description of the robber he ultimately identified as the accuse was minimal – Caucasian, male, late teens, medium build, approximately 170cms tall; *Mr Kandiah supplemented that description with the comment that he could not remember much more; *According to Mr Kandiah's statement the offence occurred about 6:00pm on an autumn evening. He described the lighting as dark with some inadequate lighting on the footpath. 7 At the time of the array Mr Kandiah selected two photographs: - photograph 1 [an unknown male unconnected in any way with the robbery] and photograph 2, a photograph of the accused. He also spent significant time studying two other photographs. The actual selection of the accused photo came after Mr Kandiah had used a post-it sticker to cover portions of the face exposed on the computer screen. Mr Nemetella argued in these circumstances the identification fell so far short of a positive identification that it would be unfair to the accused to admit the evidence. 8 A third objection related to the unfairness of admitting evidence of two earlier alleged contacts between the accused and Mr Kandiah. The first in time was said to have been 3years prior. The second was a week before. Mr Kandiah's allegations were that he though the same males, presumably including the accused, were involved in throwing rocks at him 3years earlier. In the second incident the youths, including the accused, had allegedly followed Mr Kandiah in the same area the week before the robbery. The second incident had been reported to the police. That evidence, the defence argued appeared to contradict a recorded assertion in Mr Kandiah's statement on the night of the incident that he had not seen these males before. There had been some discussion between Mr Kandiah and a neighbour in respect of one or both of these recent incidents. The neighbour, a former high school teacher had nominated to Mr Kandiah a number of suspects including the accused. 9 In the course of the voir dire hearing the Crown tendered four statements of Mr Kandiah, a statement from his neighbour, the video recording of the identification array, a CD replay of the computer screen display, a transcript of the video recording, a statement of Dt Orth who conducted the photographic array, and a computer printout of the 20 photographs constituting the array. The defence tendered the facts sheet presented at the bail hearing. 10 I viewed the CD program in court. At the time of writing this judgment I uplifted Exh E from the trial which contains 28 printouts of each discreet display presented on the computer screen. The first 7pages contain the information: * You have been asked to look at a picture array containing images of a number of people * Each image is identified by a number * This presentation can be replayed if you wish, however it is important to look at the entire presentation * You should understand that this presentation may not contain an image of a person involved in this incident * Please indicate if you are able to identify any person whose image is in this presentation * Please do not discuss this case with any other witness or tell them, in any way, whether or not you have identified any person. * The presentation will commence after this slide. 11 Thereafter each of the following 20 pages contains a single photograph 11cms x 9cms (as reproduced on paper). Each photograph shows a young male, apparently no younger than 18years and no older than 25years. Each male appears expressionless. All photographs are sharp in focus. Each captures only a full front-on face, neck and the inner aspect of the shoulders. Only one photograph shows what I might call the "bust line" of its subject. No male is wearing a cap. Most males are wearing a T-shirt or sweat shirt with no collar. Six of the photographs, however, do show subjects wear a collar. All backgrounds are a single soft colour – although the colour varies from blue to grey, to fawn and mixtures. In some of the photographs the head occupies a greater proportion of the photograph than in others. My own view is that those preparing an array should ensure that a suspect's face should not draw attention to the eye of a viewer by virtue of the fact that the face occupies either a significantly larger or smaller area than others in the array. There is nothing in the present array suggesting any unfairness in presentation of head sizes. 12 The complaint of the defence, of course, is the photographs as presented suggest the subjects are in police custody. It is a feature of modern life that photographic identification is regarded as essential. One cannot enter a taxi without noting an identification photograph of the driver to whom it is issued. Many work places require staff to carry photographic identification. Passports, and in some instances even registration in some sports or sporting events requires photographic identification. Every driver in NSW has a photograph of himself or herself incorporated into the licence. 13 Sometimes the photograph is flattering of the subject, on other occasions not so flattering. None of the photographs taken in the situation just referred to suggest their subjects are pictures of persons in police custody. Such photographs are constructed in a format similar to each of the photographs contained in the array. True, many identification photographs available in the community contain a smiling subject. Equally many do not. The absence of a smiling countenance does not necessarily suggest a person in police custody. 14 One of the photographs (No.4) shows a subject with his eyes almost closed – perhaps so that little of the eye colour is visible. Many of the photographs in the old police identification photograph books contained subjects in a similar pose – eyes almost closed and an expressionless face. Although other minds may differ, to me this photograph is capable of suggesting that particular person could be in police custody. Equally, it is also capable of suggesting the subject had recently abused alcohol or drugs. On either basis it should not have been included in the array. 15 I have considered whether the presence of that picture taints the whole array. S.115 (2) of the Evidence Act 1995 provides: 115 Exclusion of evidence of identification by pictures (1) …. (2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody. 16 What is prohibited is any suggestion arising from the collection that the pictures are pictures of persons in custody. It should be noted the nouns "pictures" and "persons" are in the plural. No doubt the intent is to ensure that there can be no suggestion the accused, whose picture formed part of the array, was in custody at the time his picture was taken. 17 What constitutes a picture suggesting a person is in police custody (as distinct from some other custody) need not be defined. It is not a closed set. No doubt the traditional "mug" shot of full front-on face accompanied by a side on profile shot would qualify. Equally photographs of a person wearing handcuffs accompanied by two large burly uniformed police would also qualify. It is to be remembered a generation ago, witnesses were often invited to look through large collections contained in large folio books of "mug" shots to see if there was anyone they could identify. That was a practice distained by defence counsel and recognized by courts as being fraught with problems. 18 Again while minds may differ, any presentation of photographs in rows as is done in VD Exh 7 creates an aura of men in a line-up of photographs. However, in the photograph identification array, each photograph appears singly on a computer screen. It remains on the screen for as long as the witness requires. When a witness finishes studying one photograph he may summon the next. It too appears alone upon the computer screen. When each photograph in this particular array is viewed singly there is only the one (No.4) capable of suggesting the subject may have been in police custody. The presence of that one photograph in the array does not trigger any suggestion the other photographs are pictures of persons in police custody. 19 I am satisfied the array of photographs as presented to Mr Kandiah on the 8th July 2005 did not contravene s.115 (2) of the Act. I am satisfied the picture identification evidence is admissible. The Second Objection 20 The second objection was predicated upon a proposition that the quality of the identification evidence to be led was so impaired that its probative value was outweighed by the danger of unfair prejudice to the defendant. 21 The Act recognizes that identification may, in the best of circumstances be unreliable. More so, when that identification is achieved through photographs. Hence special provisions such as s.115, s.116 and s.165 seek to provide a framework where by the jury becomes aware of the potential for unreliability and the special need for caution in accepting identification evidence, and if accepting it, giving it weight in their deliberations. Matters going to the quality of identification evidence particularly the environment in which the initial observations were made and any impediments that may have impacted upon the opportunity to observe an offender are specifically required to be addressed by the judge in directions to the jury. Juries are directed, in cases such as this where honesty is not contested, that even so, the accuracy of the witness is vital. 22 Prior inconsistent statements are matters clearly going to the accuracy of the witness. The failure to give a detailed description to police at the time of the offence goes to the question of they witness's eye for detail, and likewise to the witness's accuracy. 23 Identification evidence is crucial to the Crown's case. There is circumstantial evidence capable of supporting the identification made by Mr Kandiah. On the Crown case the accused was the last person Mr Kandiah saw with his mobile phone after it was stolen. Again on the Crown case the accused was demonstrably in possession of the phone two days after the robbery. That possession continued thereafter until the accused's arrest. 24 On the Crown case the accused fits the, albeit limited, description given by Mr Kandiah of the male who took his phone. 25 The potential for danger of unfairness needs to be evaluated against the state of the evidence. The arguments for jury consideration on evidence favouring the defence on identification are capable of being catalogued easily for its consideration. To the ones above can be added the time taken by the victim to study the photographs, his selection of four photographs, his selection of a person unconnected as a potential for one of the robbers, and so on. Likewise the arguments for jury consideration on evidence favouring the Crown are capable of being easily catalogued. The Crown looks to Mr Kandiah for explanations for each of these criticisms. It argues each is answerable – the answer to be found in the evidence of Mr Kandiah. Much will depend upon the view the jury takes of Mr Kandiah's credibility. The attacks the defence raises upon the evidence really are attacks upon the acts of Mr Kandiah and his accuracy. That is a classic jury question. I do not regard there being any danger of unfair prejudice. 26 If I be wrong, I am of a view any danger there may be of unfair prejudice would not outweigh the probative value of the array of photographs before Mr Kandiah and his selection of the accused's photograph as being a person involved in the alleged robbery. 27 The defence's third complaint relates to the Crown being permitted to adduce evidence of recognition. The Crown case is that on two prior occasions the paths of Mr Kandiah and the accused had crossed. The first occasion was said to be 3years ago when some males threw rocks at Mtr Kandiah. It was said the accused was among them. The second incident had been reported to police the week before. It was an allegation the accused had followed Mr Kandiah. 28 Both episodes, as it seems to me, raise coincidence and tendency issues. No notice has been given to the defence. The accused was born in 1984. He is currently 22 years old. At the time of the offence he would have been 20 or 21years old. Three years ago he would have been 18 or 19. The maturation process may have made some changes in his appearance. The claimed recognition is tenuous. The probative value of this material to the claimed identification made at the photograph array is not all that significant. 29 The unfairness to the accused, in respect of the first incident is that he is seen to be acting violently whilst in a group against the same victim in the same area or nearby area. The event was three years previous. No complaint was made to the police. The second incident, where there was a following, raises, perhaps less obliquely the sense of violence through possible stalking in company of 3 others. The second incident the week before also raises coincidence. The Crown case in the instant case is four youths in this indicted offence stalked the victim in the same area the previous week. Further, the evidence could lead to improper speculation that the offender was casing or otherwise engaging in acts preparatory to the robbery. While the value of this second incident may well be greater than the first, there is a real danger the unfairness flowing to the defence case from the reception of the evidence will outweigh the probative value it adds to the photograph identification evidence. 30 The evidence of both incidents is rejected. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.