New South Wales Supreme Court CITATION : Regina v Daley [2001] NSWSC 1211 FILE NUMBER(S) : SC 70001/01 24/04/01 22/05/01 HEARING DATE(S) : 24/05/01 23/07/01 31/07/01 14/08/01 JUDGMENT DATE : 14 September 2001 PARTIES : Crown Anthony James Daley JUDGMENT OF : Simpson J COUNSEL : John Kiely SC (Crown) Eugene Wasilenia (Defendant) SOLICITORS : Martin Churchill (Defendant) CATCHWORDS : criminal law - detaining for advantage - sexual assault - attempted sexual assault - armed robbery - indecent assault - admissibility of evidence - tendency and coincidence evidence - DNA evidence - separate trials - illegally or improperly obtained evidence - impropriety - picture, object, voice identification Evidence Act 1995 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Road Transport (Vehicle Registration) Act 1997 R v OGD [No.2][2000] NSW CCA 404; (2000) 50NSWLR 433 Sutton v R (1984) 152 CLR 528 Pfennig v R (1995) 182 CLR 461 Hoch v R (1988) 165 CLR 292 CASES CITED : Rv Lockyer (1986) 89 A Crim R 457 R v Lock (unreported, 25 March 1997) R v Lewis (unreported, 20 June 1996) R v Perry (1982) 150 CLR 580 R v Swaffield; R v Pavic [1998] HCA 1; (1998) 192 CLR 159 R v McPhail and Tivey (1988) 36 A Crim R 390 DECISION : Ref para 179 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 14 September 2001 70001/01 REGINA v Anthony James DALEY Judgment HER HONOUR : 1 The accused was arraigned on an indictment containing 21 charges. Four counts are of detaining for advantage; five of aggravated sexual assault; three of attempted sexual assault; eight of armed robbery; and one of indecent assault. He indicated that he intended to plead not guilty to each charge. The Crown served on the accused's legal representatives a brief of the evidence it proposed to adduce, together with a notice of intention to adduce both tendency and coincidence evidence (Evidence Act 1995, ss 97,98). The trial was fixed for hearing, with an estimate of six weeks, to commence on 7 May 2001. The charges involve allegations made by eight different complainants, all of them female. 2 By notice of motion filed on 30 April 2001, the accused sought a number of orders concerning the future progress of the trial. The first order he sought was for a separate trial of the charges relevant to each individual complainant - that is, that there be eight separate trials. As an alternative in the event of failure in relation to this application, he sought separate trials of groups of the charges, arranged by reference to common features, such as the dates or the locations of the alleged offences, or other common evidentiary features. 3 Further, he sought pre-trial rulings on whether certain identified aspects of the evidence would be admitted, either on a joint trial or on separate trials. This included, but was far from limited to, the proposed tendency and coincidence evidence. Indeed, it appeared to me that the challenged evidence covers a very large proportion of the Crown case. It was apparent that the rulings on the admission of evidence, especially the tendency and coincidence evidence, would have a significant bearing on the outcome of the separate trials application. If the challenge to the evidence were unsuccessful, there would be less basis for ordering separate trials. If, on the other hand, the tendency and/or coincidence evidence were excluded in relation to the allegations made by one or more of the complainants, then the case for separating the trials would have been stronger. Indeed, I was of the view that a separation of the charges relating to the individual applicants would inevitably follow a decision to exclude the tendency and/or coincidence evidence. The reason for that will become apparent when the Crown allegations are briefly stated. 4 In view of this conclusion, it is appropriate to consider the evidentiary matters first. 5 A voir dire commenced on 8 May and proceeded over almost two weeks. Virtually the whole of the Crown case was put before me, and I heard extensive argument on the admissibility of various components of the evidence in the Crown case. On 22 May I announced rulings on all evidentiary matters, reserving reasons, which were not then in final or deliverable form. These are those reasons. For completeness I should add that, on 24 May, when indicted, the accused pleaded guilty to six charges. These were two counts each of sexual intercourse without consent, armed robbery and detaining for advantage. Two victims were the subject of these counts. The accused indicated, pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999, that he wanted the court to take into account an additional thirteen offences, being offences of which the accused admitted his guilt. These thirteen offences included all except two of the offences with which he had previously been charged. The matter was then stood over to 23 July to allow any evidence relevant to sentence, and submissions, to be put before the court. On that day the accused appeared unrepresented, having terminated his instructions to his legal representatives. He informed me that he wished to seek leave to withdraw his pleas of guilty, and his admission of guilt of the s 32 offences, and he wished to seek alternative legal representation. On 31 July he again appeared, this time with counsel, who confirmed the intention to seek leave to reverse the plea of guilty. That application has been fixed for hearing on 6 December 2001. 6 The reasons for my evidentiary rulings that follow were largely prepared before the accused sought to change his pleas. I have made no changes in substance following that indication; any editing has been as to form, or style. 7 I was provided with and read copies of statements of the witnesses the Crown intended to call. Whether this was the totality, or only part, of the Crown material, I do not know. It has enabled me to obtain an appreciation of, at least, the skeleton of the Crown case. 8 The Crown alleges that, on separate occasions over a period beginning on 5 September 1998 and ending on 7 July 2000, eight women were attacked. Five were sexually assaulted, one was indecently assaulted, and attempts were made sexually to assault three. (The indecent assault is alleged to have been committed on one of the victims who was also the subject of the attempted sexual assault; another victim was the subject of both a completed sexual assault and an attempted sexual assault. One woman was robbed but not sexually assaulted and no threat of, or attempt at, sexual assault was made.) Each complainant was allegedly robbed, and threatened with either a knife or a screwdriver. Four complainants were detained against their will, for the purpose either of sexual gratification or robbery or both. 9 It is the Crown case that a number of common threads permeate the description of the assaults upon the individual complainants. For example, it is alleged that in each case of sexual assault or attempted sexual assault, the assailant's chosen form of intercourse was fellatio, although one complainant was also vaginally raped and another threatened with the same. There are a number of other asserted similarities in the behaviour alleged, to which I will return. From these similarities, the Crown contends that an inference may be drawn that the offences were all committed by the same man. From other evidence the Crown seeks to prove that that man was the accused. 10 It is convenient now to set out, in summary form, the nub of the allegations made by each complainant. They are set out below in chronological order. Complainant 1 (CLI) 11 At about 8.55 pm on 5 September 1998 Complainant 1, then aged twenty-six years, drove to the Parramatta Golf Club to meet friends. She parked her car in the parking area, near some bushes. She was accosted by a man who was holding a knife in his right hand. He told her not to scream, told her that he had the knife, and demanded money. With his right arm around her he forced her to walk towards the bushes and onto the golf course. He asked her name and age and if she had any family. He told her to stay calm, not to scream, threatened that if she screamed he would cut her throat, and said that he had done this before and would not hesitate. He ordered Complainant 1 to get down on her knees, which she did; he walked in front of her, belatedly disguising his face with a black balaclava. He unzipped his pants, and exposed his penis which was erect; he asked Complainant 1 if she had ever given oral sex before. She said she had not and he asked if she had a boyfriend. He told her to put his penis in her mouth and then said "Put my dick in and out of your mouth". Complainant 1 became very upset. He told her to get on her back and take her pants off and threatened that if she did not obey he would hurt her. He told her not to panic. He then raped her vaginally. He kissed her first on the cheek, then on the mouth, forcing his tongue into her mouth. She resisted, he told her that if she did not kiss him properly he would cut her, and held the knife up behind her head. With his penis inside Complainant 1's vagina, he ejaculated. He did up his own trousers and told Complainant 1 to get dressed. 12 He told her to empty her wallet and asked if she had a key card, how much money was in her account, demanded to be told her PIN, and asked if she had anything gold. He took a signet ring she was wearing. 13 He told her to lie on the ground, face down, and not to move or make a sound, threatening that if she did he would come back and hurt her. He ran off some distance. After about 20 seconds, Complainant 1 began to get up and he told her to stay where she was. Complainant 2: (CMM) 14 At about 9.15 pm on Thursday 29 October, 1998, Complainant 2 parked her car in Rofe Street, Leichhardt, near her home. As she unloaded her vehicle she was approached by a man who asked her the time. When she answered she saw that he was holding a knife. He told her not to scream and that he wanted her bag. He took her backpack and left, saying "I'm desperate". Complainant 2 was thirty-seven years of age at the time. Complainant 3: (COM) 15 Complainant 3 was attacked at about 12.35 am on Saturday 31 October 1998 in Leichhardt. She was walking from a bus stop in Parramatta Road and was in Thornley Street. A man approached from in front of her, holding a screwdriver in his left hand at head height. He told her not to scream and that he needed money. He repeated "I'm desperate. I'm desperate." He took Complainant 3's handbag but then handed it back to her; with his hand on top of her head he pushed her to her knees, pulled his shorts down, exposing his penis, and told Complainant 3 to suck on his penis. He put his penis in her mouth. He then asked Complainant 3 if she had a boyfriend and when she said she did not he said that that was a shame because she was very good at what he was forcing her to do. She protested that she was going to be sick and mentioned neighbours who would be awake. He ordered her to finish what he had made her begin. She began to cry and he told her not to scream and mentioned the screwdriver. She gave him the bag and ran home. Complainant 3 was twenty-two years of age. Complainant 4: (SAM) 16 Complainant 4, a forty year old woman, was also attacked in Leichhardt. At about 10.45 pm on Thursday 5 November 1998 she was walking from a bus stop in Norton Street. She was approached by a man who asked her the time, and then told her not to scream. He indicated a knife in his right hand and said that if she screamed he would jam the knife in her throat. He ordered Complainant 4 to give him her bag and asked how much money was in it, adding that he was desperate. He touched her on one of her shoulders and told her to get down on her knees. She asked why and he replied "I want a head job". He insisted, but Complainant 4 firmly refused and began to walk up the steps of her house. He again demanded "a head job", saying, again, "I'm desperate". Complainant 4 again refused and opened her front door revealing her dog in the doorway. The man told her that he would leave the wallet the following day, and ran off. Complainant 5 (EK) 17 At 10.50 pm on Thursday 20 April 2000 Complainant 5, aged thirty-four, drove into the garage of her home in Parramatta. A man was standing near the front of her car and asked her the time. She told him the time, and told him to go away. He walked towards her and she told him not to come any closer. He told her to listen, to shut up, or he would stab her. He was holding an object which she described as "long and silver" in his right hand. He told her to do as he told her or he would stab her to death, would kill her. He demanded her bag. She said there was $500 in it, and to take it. He told her to shut up and give it to him. He then told her to get down on her knees. He said "I want you to suck my cock". She refused. He reminded her of his threat to stab her, unzipped his jeans and exposed his penis and told her "Just do it". He put his penis in her mouth. He asked where her husband was and if she did this with her husband. He asked if she had done it before, if he were the first she had done it to, and if she liked it. She realised that the weapon she had previously thought was a knife was in fact a screw driver and pushed him away. He began running away and she chased him. He jumped over a fence, turned and said "Thanks for the head job". Complainant 6: (LR) 18 At 11.30 pm on 12 May 2000 Complainant 6 drove into the garage of her home unit block in Westmead. As she left the car a man approached her and asked her how much money she had. He was holding a knife in his right hand. He told her to do as he said or he would cut her throat. She agreed to do whatever he wanted and asked him not to hurt her and he led her from the garage, telling her to go with him. He again told her to do what he ordered, saying that unless she did would hurt her. He said: "I want a head job". He led her to the side of a neighbouring house, pushed her against the fence and told her to get down. He lowered his shorts and exposed his penis and told her to put it in her mouth and start sucking. He was holding the knife in his right hand. He ordered her to put his penis in her mouth, and when she did, told her to put it further in. At the same time he pushed his penis further inside her mouth. Complainant 6 gagged and dry retched and the man told her to put it in or he would hurt her. He held the knife closer to her. 19 She apologised, saying she had never done this before, and this appeared to please him. He asked if he were her first, if she had a husband and if she lived alone. He told her she was beautiful, and said: "Deeper, deeper, come on or I'll hurt you". He was wearing a glove on his right hand. 20 The man then ordered Complainant 6 to lie on the ground "so I can stick in you". She refused. He hesitated, put his penis back in her mouth, and said "I just want to come. Keep sucking. I want to come in your mouth. Come on or I'll hurt you". He began to ejaculate, and ordered Complainant 6 to swallow the semen or he would hurt her. She gagged and dry retched. The man withdrew his penis and masturbated to complete the ejaculation. 21 He then asked Complainant 6 how much money she had and she handed him her brief case. He told her to leave and began to walk away, turning and telling her not to turn around, not to follow him. Complainant 6 was thirty-five years of age. Complainant 7: (JM) 22 At about 6.30 pm on Friday 23 June 2000 Complainant 7 left her employment at Westmead and began to drive off in her car. A man opened her car door. He was holding a knife in his left hand and told Complainant 7 to get into the back of the car and said that what he was doing was not a joke. She did as she was told. He then drove the car off, telling her to keep down and shut up. He told her to stop crying, and said if she was a good girl everything would be OK. He asked if she had any money, and asked her name. He said: "OK, Jen, if you're a good girl everything's going to be OK". He continued to say this, but told her not to do anything stupid because he would not hesitate in hurting her. 23 He drove for a little while, and returned to Complainant 7's place of employment. He told her to get out of the car, not to do anything stupid because he would not hesitate in hurting her, and referred to the knife. Complainant 7 alighted from the car, the man behind her, holding her left shoulder with his left hand, and holding the knife into her back with his right hand. He told her to get on her knees, and pushed her down. He told her that she knew what he wanted and exposed his penis which he put in her mouth. He said: "Give it to me good. Slow down. Give me a love bite on my knob". He told her to lie down and when she did so she lifted her skirt and removed her underwear. He began to insert his penis into her vagina but she told him that she was wearing a tampon. He then said: "Have you ever been fucked up the arse?" She said she had not and asked him not to do that and he pulled her onto her knees, told her to "Finish it", and re-inserted his penis in her mouth. He then asked if she had a boyfriend, if Complainant 7 did this to him and if the boyfriend ejaculated in her mouth. When she said he did not, he said "So I am going to be the first". 24 The man began masturbating and told Complainant 7 to finish what she was doing, that he was going to ejaculate and that if she spilled any of the semen he would hurt her. He ejaculated in her mouth. She began to gag and he ordered her to swallow the semen. 25 The man then picked up Complainant 7 and guided her to a corner of the building, told her to lie face down between the building and the fence, and asked if she had any money in the bag. He told her to get up and not do anything stupid or he would hurt her. He said he would not hesitate in hurting her and told her that she was not the first girl that he had done this to. 26 The man was wearing black gloves. They returned to the car and he demanded all of her money, saying that he would leave her licence with her. He told Complainant 7 to lie down on the back seat of the car. He asked Complainant 7 what her boyfriend's name was. He said: "If you want to blame anyone blame him. This is what he gets for messing with me or my boys. I'm going to kill your fucking boyfriend, he's a fucking cunt. I've been paid to kill you, I've been watching you for weeks." 27 The man wiped down the areas of the car that he had touched, told Complainant 7 to stay where she was and to give him a couple of seconds to get away, and ran off. Complainant 7 was twenty-five years of age. Complainant 8: (LPS) 28 At about 6.25 pm on Friday 7 July 2000, Complainant 8, who was twenty-one years of age, walked from the Westmead Railway Station to nearby Moree Avenue where her car was parked. She found that the back passenger's quarter window was smashed and began to examine the damage. She was approached by a man who asked if she owned the car, and said that he had seen two men run away, about five or ten minutes earlier. He then grabbed Complainant 8 by the right shoulder, told her to listen, to do what he said and that he had a knife. He was holding a knife in his right hand, the blade about 5 cm from her neck. 29 He forced her away from the car, told her to do as he told her, and that he was not scared to kill her. He directed her to the garden in front of the house, still holding the knife in his right hand, and Complainant 8's right shoulder with his left hand. He told her to get down on her knees. She asked why, and he said: "I want you to suck me". She refused. He said: "Do you think I'm scared, I'm not scared to kill you". She refused again. He then said: "Do you want me to fuck you?" She said she did not, and he then said: "Well come on and do it, just a blow job. I'm not scared to kill you." 30 The man asked if she had any money and how much. He demanded that she kiss him. He said he would leave her alone if she kissed him properly. He kissed Complainant 8 on the mouth, still holding the knife, and moving it towards her. She screamed for help and the man moved away and jumped over the fence, walking towards Complainant 8's car. He walked from the car taking with him her handbag. • • • 31 It is the Crown case that the evidence gives rise to a powerful inference that the same man was responsible for all of the attacks, and that man was the accused. It seeks to adduce evidence of the following kinds:- (i) DNA evidence linking the accused with the assaults on Complainants 1 and 6; (ii) evidence that Complainants 4, 5 and 7 identified the accused from an array of photographs shown to them by police; (iii) evidence that, from a series of tape recordings played to them by police, each of Complainants 1, 3, 4, 6 and 7 identified the accused's voice as the voice of her attacker, (iv) evidence that each complainant participated in an examination of clothing belonging to the accused and identified certain items as the clothing, or similar to the clothing, worn by her attacker; (v) evidence that each complainant was shown an array of knives and screw drivers and identified an implement as similar to the weapon used by her attacker. 1. Tendency & Coincidence Evidence 32 The evidence identified by the Crown as both tendency and coincidence evidence was encapsulated in a schedule attached to the notice of intention to rely on evidence of that kind. For convenience, a copy of the schedule, with the complainants rendered anonymous, is attached to this judgment. Put shortly, the Crown seeks to rely, as both tendency and coincidence evidence, on features of the accounts of the attacks upon them given by the complainants. The schedule reveals, as does the short summary of each of the attacks upon the complainants above, a number of recurring features. This is not to say that all complainants gave identical accounts of the attacks upon them; there were, of course, some differences. However, the Crown asserts, and seeks by the evidence to prove, that a pattern can be discerned, and that the common features were such as to justify a conclusion that the same man was responsible for all offences. The similarities, or common features, on which the Crown seeks to rely include the locations in which the offences were committed (five in a small area of the Parramatta - Westmead District, three in Leichhardt); the time of day (after dark); the approach made to the victim by the offender; where the victim was sexually assaulted, or where an attempt at sexual assault, or a demand for sexual gratification was made, the chosen mode of sexual assault (forced fellatio); that the offender was armed with a knife or similar weapon; that the victim was robbed as well as assaulted; the language used by the offender; and the offender's manner of departure from the scene. 33 The accused resists the admission of the evidence, either as tendency or as coincidence evidence. As a preliminary point, he challenges its characterisation as tendency evidence. He makes no such challenge to the characterisation of the evidence as coincidence evidence. 34 "Tendency evidence" is defined in the Dictionary to the Evidence Act as evidence of a kind referred to in s97(1) that a party seeks to have adduced for the purpose referred to in that subsection. 35 S 97 is relevantly in the following terms: "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence have significant probative value." 36 "Tendency evidence" is, therefore, evidence adduced for the purpose of proving that a person had a tendency to act in a particular way, or to have a particular state of mind. No doubt the most common application of tendency evidence, where admitted, is to lay the foundation for an inference that the person in question, by reason of his or her tendency to act in a particular way, or to have a particular state of mind, did, on a relevant occasion, act in that way, or acted with that state of mind or with a particular motivation. Such evidence is apt to fix the person whose tendency has been proved with responsibility for an act which otherwise might not be able to be attributed to him or her; or to negative a suggestion that an event occurred accidentally. 37 The end point of the admission of evidence as tendency evidence, it seems to me, is most likely to be the conclusion that the person concerned was the person who did an act in question; or that a person, whose tendency has been proved, did an act in question with a relevant state of mind. 38 It is to be observed, in passing, that s 97 is directed to the admissibility of tendency evidence in both civil and criminal proceedings. There are particular restrictions, to which it will be necessary to refer in due course, on the admission of tendency evidence (and coincidence evidence) in criminal proceedings. 39 In differentiating between tendency evidence and coincidence evidence counsel for the accused made a valid point. While the two concepts have elements in common, have a common origin, and are often referred to as though interchangeable, and while the criteria for admission are in both cases identical, the drafters of the Evidence Act quite clearly and deliberately drew a distinction between the two kinds of evidence. 40 That the tests of admissibility are identical, and that there is no challenge to the characterisation of the evidence as coincidence evidence, does not obviate the need to determine the issue raised as to the characterisation of the evidence as tendency evidence. That is because, should the evidence be admitted, appropriate directions to the jury will be necessary. 41 For completeness, I note that the Evidence Act Dictionary definition of coincidence evidence is in terms that parallel the definition of tendency evidence. "Coincidence evidence" is defined as evidence of a kind referred to in s 98(1) that a party seeks to have adduced for the purpose referred to that subsection. 42 The coincidence rule is contained in s 98, relevantly in the following terms: "(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of sub section (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar." 43 Broadly speaking, ss 97 and 98 are, effectively, statutory formulations (or reformulations) of the common law concepts of, respectively, "propensity" and "similar fact" evidence. There has not always been as clear a distinction drawn between evidence of the two kinds as is now drawn in the Evidence Act, and too categorically to relate tendency evidence to propensity evidence and coincidence evidence to similar fact evidence would be potentially erroneous. The analogy is of the broadest kind. The admissibility of tendency and coincidence evidence is now governed primarily by the provisions of the Evidence Act. To the extent (if any) that the principles developed by the common law are inconsistent with provisions of the Evidence Act, the latter must prevail: R v OGD[No.2] [2000] NSW CCA 404; 50 NSWLR 433. Is the evidence "tendency evidence? 44 Before turning to the criteria for admissibility of evidence of either kind, it is convenient to dispose of the challenge to the characterisation of the evidence as tendency evidence. The evidence outlined in the schedule can be dealt with as a whole, since there was no contention that certain parts of it raised issues different from any other parts of it. The approach taken by counsel was based on the assumption that, if any part of the evidence in question was tendency evidence, then it all came within that category; and, similarly, if any part of it was not within that category, then none of it was. 45 Notwithstanding the validity of the distinction to which counsel drew attention, the challenge to the characterisation of the evidence as tendency evidence fails. It is, in my opinion, based upon a misconception about what the drafters of s 97 intended to be encompassed by that section. 46 The argument advanced on behalf of the accused was, in essence, that because the accused has neither admitted, nor been convicted of, any of the conduct evidence of which is tendered as tendency evidence, that conduct (or alleged conduct) cannot be used to prove that he had a tendency to act in that way, or to have a particular state of mind. In other words, so the argument went, the tender of the evidence on that basis assumed the truth of the allegations made against the accused. 47 The argument had some initial appeal, but it does not withstand analysis. It may be that the proposition contained in the argument was founded upon a single sentence in the judgment of Deane J in Sutton v R (1984) 152 CLR 528, as follows: "On the other hand, if the similarities between the offences which the accused undoubtedly committed and the offence with which he is charged are such as to warrant, in the context of all the evidence, the conclusion that, in the absence of extraordinary coincidence, the same person committed all the offences or if the similarity between the evidence of different witnesses as to different offences which the accused is said by them to have committed is so striking "that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence…" Emphasis is to be placed on the word "undoubtedly" appearing in the second line. 48 In Pfennig v R (1995) 182 CLR 461, the tendency of the accused that the Crown sought to prove was a tendency sexually to molest young boys. The High Court held that the evidence was admissible for that purpose. However, there, as counsel correctly pointed out, the conduct in question was the subject of an admission by the accused. 49 Pfennig was, therefore, an instance of a case in which a high degree of certainty attended the proof of the conduct relied upon to establish tendency; the passage extracted from Sutton above, supports the argument that a high level of cogency is required before evidence of tendency may properly be admitted (or at least, was required in the evidentiary regime that pre-dated the enactment of the Evidence Act). But questions of admissibility are not to be confused with the question of the proper characterisation of the evidence and that is the present issue. 50 By reason of the definition contained in the Dictionary, and s 97, tendency evidence is "evidence of the character, reputation, or conduct of a person …". For present purposes, character and reputation may be put to one side; neither raises its head in the current issue. There is nothing in s 97 that requires that, before evidence of conduct tendered as tendency may properly be so described, the conduct must be admitted or proved to any particular level of probability or certainty. 51 Applying the plain words of the section to the challenged evidence, it would be open to the Crown (questions of admissibility aside) to seek to prove the accused's tendency to act in a particular way by seeking to prove that he had acted in that, or in a relevant, way, on another occasion or other occasions. Thus, in seeking to prove the accused was guilty of the offences committed against Complainant 1, it would be open to the Crown (again, I emphasise, other questions of admissibility aside) to seek to prove that he had committed relevantly similar offences against Complainants 2 - 8. Such an approach is consistent with the pre-Evidence Act regime. In Hoch v R (1988) 165 CLR 292, Mason CJ, Wilson and Gaudron JJ wrote: "Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happening evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. Similar fact evidence is then admissible as evidence relevant to that issue." 52 In Pfennig v R ((1995) 182 CLR 461, at 530), McHugh J, referring to "similar fact cases", wrote: "In these cases, the propensity of the accused will usually only be established by the verdict." 53 This passage, though directed to "similar fact" evidence, has equal application to propensity, or tendency, evidence. There is nothing in the passage, and nothing in the section, to suggest that the evidence tendered to prove tendency must be of conduct which is established otherwise than through the evidence in the relevant proceedings. It would, of course, be open to the party against whom the evidence was tendered to deny, through evidence, that the person had engaged in the conduct in question; and it may be, in some cases, that discrete issues of fact will arise; and it is not difficult to envisage that proceedings may become rather cumbersome. But that is nothing to do with whether the evidence falls into the category of tendency evidence. I am satisfied that the circumstance that the conduct upon which the Crown seeks to rely has not been admitted, and has not previously been proved, does not operate to prevent it falling into the category of tendency evidence. I am, indeed, satisfied that the evidence upon which the Crown seeks to rely sits comfortably within the definition of tendency evidence as well as the definition of coincidence evidence. • • • 54 That being so, it is necessary to consider the consequential questions of admissibility. In this respect, the admissibility tests being identical, the evidence, considered under the twin rubrics of tendency and coincidence evidence, may be considered together. No issues arise requiring separate consideration. 55 Two admissibility tests specific to tendency and coincidence evidence are imposed by the Evidence Act . Both s 97 and s 98 contain a threshold test, applicable in both civil and criminal cases. Evidence, whether tendency or coincidence, is not to be admitted unless, either alone or in conjunction with other evidence already adduced or to be adduced, it would, in the opinion of the court, have significant probative value. 56 "Probative value" is defined in the Dictionary as meaning: "The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 57 In R v Lockyer (1996) 89 A Crim R 457 and subsequently in R v Lock (unreported, 25 March 1997) Hunt CJ at CL expressed the view that the word "significant" should be interpreted as meaning "important", or "of consequence", and appeared to agree with the proposition earlier expressed by Dowd J (R v Lewis, unreported, 20 June 1996) that it means something less than "substantial". His Honour also took the view that the significance of the evidence in question must be assessed by reference to the nature of "the fact in issue" to which it is relevant and the significance or importance which it may have in establishing "the fact in issue". 58 In order to consider whether a particular piece of evidence has or has not significant probative value, it is necessary to focus, with some precision, upon the "fact [or facts] in issue" to which the evidence is directed. 59 The principal fact in issue, for present purposes, is the identity of the accused as the attacker of any - or all - of the complainants. It may be more accurate to say that, in the case of each complainant, the principal fact in issue is the identity of the accused as the attacker of that complainant. However, it seems to me that another fact, almost certainly in issue (although the accused has not, and has not been required to, disclose his defence or his defence tactics) is whether or not the evidence establishes that it was the same man who attacked all (or some) of the complainants. 60 It is to be borne in mind that, in determining whether the evidence has significant probative value, other evidence with which it may interact is relevant. 61 Firstly, via s 97, the Crown may seek to prove that the accused had a tendency to act in a particular way: for example, by accosting lone women after dark, in one of two limited geographical areas, to threaten them with a knife or similar instrument; to demand and take money; to demand sexual engagement of a very particular kind; to engage in conversation with very particular characteristics; and to leave the victim at the scene after the sexual assault. 62 In relation to each victim, there is some evidence linking the accused with the assault. In many cases there is identification evidence, although the identifications were made with varying degrees of confidence. In the cases of some victims, leaving aside evidence of attacks on other victims, the evidence is weaker than others. However, in relation to two victims, the evidence linking the accused with the crimes appears to be extremely strong. In these cases there is DNA evidence which may be interpreted as establishing that there exists only a one in ten billion chance that the accused was not the assailant. With those cases as a starting point, and taking the description of the attacks given by those victims, the probative value of the evidence is obvious, and somewhat more than significant. The evidence of the circumstances of the attacks on victims other than those two forms part of a chain which a jury might find inculpated the accused in all or some of the attacks. 63 The other approach, via s 98, is for the Crown to seek to prove, because of the improbability that the various attacks occurred coincidentally (that is, were committed by a variety of different individuals) that all (or some) were committed by the same person. Again, if the Crown can show that the accused was the perpetrator of one (or more) of the attacks, then the probative value of the evidence is more than merely significant. In Pfennig it was pointed out that similar fact evidence is a variety of circumstantial evidence (p482) and is, therefore capable of gaining strength from other aspects of the evidence. 64 I am satisfied that nothing in ss97 or 98 precludes the admission of the evidence. 65 The next hurdle imposed by the Evidence Act arises by reason of s 101(2), which applies only in criminal proceedings, and which is in the following terms: "(2) Tendency evidence about a defendant, or coincidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant". 66 S 101(2) requires an assessment of the probative value of the evidence relative to its prejudicial effect on the accused. The evidence is not admissible unless the former substantially outweighs the latter. Except for the introduction of the adverb "substantially" the section enacts a test not essentially different from that developed by the common law. That this is so is well illustrated by reference to the High Court decision in Pfennig, to which I have already referred. In that case the accused was charged with the murder of a young boy whose body had not been found. The Crown case was that the accused had abducted the boy for sexual purposes and subsequently killed him. The Crown adduced evidence that, on a date after the disappearance of the boy, the accused had abducted and raped another boy a few years older. He had pleaded guilty to the charges in relation to the older boy. The events that gave rise to those charges, and to the plea of guilty, bore similarities, in significant respects, to the events the Crown sought to prove in the murder trial. In their consideration of relevant Australian authorities, the majority in the High Court (Mason CJ, Deane and Dawson JJ) wrote: "It was also accepted that, in order to be admissible, propensity evidence must possess 'a strong degree of probative force' or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity." ( p 481, internal references omitted) 67 The phrase "the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity" was drawn from an earlier High Court decision, R v Perry (1982) 150 CLR 580. 68 The majority in Pfennig went on to propose a test of admissibility in the same terms as the test a jury is directed to apply in dealing with circumstantial evidence (that is, whether there is a rational view of the evidence consistent with the innocence of the accused) and wrote: "Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect." (pp482-3) 69 Again, their Honours wrote: "Because propensity evidence may well have a prejudicial effect which is disproportionate to the probative force of that evidence, it is necessary to maintain an insistence on that evidence having a high level or degree of cogency in the circumstances of the particular case." (p 487) 70 Toohey J took a slightly different approach. He quoted from the judgment of Mason CJ, Wilson and Gaudron JJ in Hoch (supra) in which their Honours wrote: "The criterion of its admissibility is the strength of its probative force." (p 507) 71 However, his Honour went on to identify the task of the trial judge confronted with a question of the tender of such evidence as being: "to consider the prejudicial effect of the evidence and whether, in the circumstances, it is just to admit it." (p507) 72 His Honour observed that this was not precisely the same as saying that the evidence is admissible if its probative force exceeds it prejudicial effect. 73 McHugh J wrote that, because the use of propensity reasoning created too great a risk of an unfair trial, the Court had: "… insisted that as a matter of law and not discretion the probative value of the evidence must outweigh or transcend its prejudicial effect." (p528) He added: "The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial." (p 529) 74 I have set out these passages at some length, because, it seems to me, the criteria for admission of similar fact or propensity evidence at common law that emerges is the test that has been adopted, slightly adapted, and re-stated in s101(2). The addition of the adverb "substantially" is not, however, to be overlooked. The point of this exercise is to demonstrate that, as the common law and statutory tests are essentially of the same kind, decisions as to admissibility made under the common law are not rendered redundant in relation to decisions as to admissibility under the Evidence Act, and that guidance may be obtained from the reasoning in previously decided cases. 75 That leads me back to a number of additional passages to be found in the judgments in Pfennig. The majority wrote: "Very often, propensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses. In particular, it was recognised that the existence of such striking similarity is necessary in cases such as Sutton where the prosecution seeks to lead the evidence on the basis that the similarity between different offences founds a conclusion that they must have been committed by the one person with the consequence that evidence which would be admissible to show that an accused committed one of the offences is admissible to prove that he or she committed another or the others of them." (481) "… evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds it prejudicial effect." (p 483) "Often that high level or degree of cogency is found in the striking similarity, underlying unity or 'signature' pattern common to the incidents disclosed by the totality of the evidence." (p488) 76 One passage from Sutton (supra) may also be quoted. Brennan J (as he then was) wrote: "Striking similarity between the alleged similar fact and the fact to be proved inferentially is a frequent, but not the only, indication of that cogency or that probative force which is required if the evidence is to be taken out of the primary exclusionary rule." (p549) 77 With these principles in mind, I turn to apply the test as stated by the majority in Pfennig. Perhaps rather incongruously, it became necessary to make an evaluation of the evidence which was similar to, or the same as, that which a jury would, if the evidence were admitted, be required to make. But the approach is quite different. That is because, ordinarily, (as in the present exercise) the judge ruling on whether the evidence is to be admitted or not will perform the evaluation on the basis of witness statements or written outlines of the anticipated evidence. The assessment of the probative value of the evidence is less an assessment of the credibility or reliability of the witness (although I do not discount the possibility that that may at times be required), but an assessment of the probative value of the evidence in the context of the evidence of the case as a whole, and on the assumption that the witness is accepted by the jury as credible. 78 Performing that function, I found myself quite satisfied that the evidence meets the stringent test required. I started with the proposition put by counsel for the accused, which is plainly correct, that the evidence will have an enormously prejudicial effect on the accused. To put before a jury evidence designed to establish that an accused person has committed not one, but seven sexual assaults, all having similar characteristics, would be to put a very strong case indeed. The evidence of the offences relating to each individual victim would gather strength from the evidence relating to each of the others. I was under no illusion about the potential prejudicial effect of the evidence of tendency and coincidence. The evidence in relation to each attack would magnify the evidence in relation to each other attack. 79 However, the phrase "prejudicial effect" is apt to create a false impression. All evidence tendered against an accused is intended to have a prejudicial effect, in the sense that it is intended to be part of the evidence which establishes guilt. So it is in the present case. The evidence in question potentially has a powerful prejudicial effect because it tends to establish that the accused was guilty of these very serious offences. 80 It is against that powerful prejudicial effect that the probative value of the evidence must be weighed, keeping firmly in mind that, before it could be admitted, the probative value must not only outweigh its prejudicial effect, but do so substantially. 81 As I have observed above, performing the exercise required involves making an assessment of the probative value of the evidence in the absence of an assessment either of the credibility or the reliability, of the various witnesses, and in the absence of hearing any cross-examination of the Crown witnesses, including those who are expected to give expert evidence. I have no idea what contrary evidence might be produced on behalf of the accused. There are, apart from the tendency and coincidence evidence now under consideration, some important aspects of the evidence to which brief reference should be made (more detailed reference to these matters is to be found elsewhere in this judgment). The Crown has tendered DNA evidence which, on its face, must be taken, virtually unanswerably, certainly overwhelmingly, to implicate the accused in the offences against Complainants 1 and 6. If the tendency and coincidence evidence were considered by the jury sufficient to demonstrate that the same person was responsible for any other attack, then the DNA evidence establishing (if the jury so finds) the accused's guilt of those offences will also operate to strengthen the Crown evidence against the accused in relation to that other attack. To the DNA evidence may be added evidence of the nature of the offences against Complainants 1 and 6, the circumstances in which the offences were committed, the details of conversation, robbery and so forth. Those details are available to link the accused with offences against other victims, to establish that it was the same person who attacked those other victims. The result is that, in the context of the evidence overall, the probative value of the tendency and coincidence evidence (assuming it to be accepted by the jury) is greater even than its admittedly mighty prejudicial effect. 82 For those reasons, s 101 does not operate to preclude the admission of the tendency and coincidence evidence. 83 In relation to this evidence, counsel finally invoked ss 135 and 137, contained in Part 3.11 of the Evidence Act, which is headed "Discretion to Exclude Evidence". 84 S 135 confers a true discretion to exclude evidence in either civil or criminal cases, in the circumstances herein outlined. The section provides: "The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 85 I did not understand any argument to have been advanced that either paragraph (b) or (c) has application. The argument centred upon the contention that the evidence would be unfairly prejudicial, and that its probative value would be substantially outweighed by the unfair prejudice created. This raises a slightly different issue from that raised by s 101, where the prejudice, to warrant exclusion of the evidence in question, is not required to be "unfair". Nothing that would render the evidence "unfairly prejudicial" as distinct from "prejudicial" was identified. The mere fact that the evidence strengthens the Crown case does not make it unfairly prejudicial. "The concept" of "unfair prejudice" is concerned with, for example, evidence that an accused person might not be able to meet, or that is likely to have an uwarranted impact on a jury, or lead to improper modes of reasoning. I am unable to perceive any unfair prejudice that might accrue to the accused from the admission of the evidence in question, such as to outweigh its probative value. The precondition to the exercise of the discretion conferred (that the balancing process results in a conclusion that the danger of unfair prejudice substantially outweighs the probative value of the evidence) has not been established, and, accordingly no occasion arises for the exercise of the discretion envisaged by s 135. 86 S 137 applies only in criminal proceedings. It does not, strictly, confer a discretion, but requires yet again an evaluative process which is akin to the exercise of a discretion. Where the evaluative process results in a conclusion that the probative value of the evidence in question is outweighed by the danger of unfair prejudice to the accused the court is obliged to reject the evidence. 87 For the reasons given above, I can see no danger of unfair prejudice to the accused by the admission of the evidence in question. I can, on the other hand, as indicated above, see great probative value in the evidence. S 137 does not avail the accused. 88 That concludes the matters raised in opposition to the admission of the evidence the Crown proposes to call as tendency and coincidence evidence. I ruled that the evidence, being relevant, probative, and not excluded by any provision of the Evidence Act, it would be admitted in full. 2 DNA evidence 89 In relation to two of the complainants, DNA evidence was obtained. (i) Following the sexual assault upon her (which included penile penetration of her vagina) Complainant 1 was taken to Westmead Hospital, where she was examined in accordance with the protocols devised for the investigation of allegations of sexual assault. Forensic swabs were taken from her vulva, vagina and mouth. Those from the vulva and vagina proved positive for seminal fluid which was retained for DNA analysis. An obvious inference is that the semen was the semen of the attacker. A DNA profile was prepared. (ii) Clothing worn by Complainant 6 was tested for semen and returned a positive result and a DNA profile was taken. It proved to be identical to the profile of the DNA obtained from Complainant 1. The test results in each case were retained by the investigating police for future use in the event that a suspect was apprehended. 90 On 4 July 2000 Detective Senior Constable Neil Tuckerman assumed command of the investigation into the offences (codenamed "Strike Force Sapelo"). By this time investigators had come to the view, as a result of the DNA evidence obtained in relation to the assaults on Complainants 1 and 6, that those two offences had been committed by the same person. An evaluation of the circumstances and characteristics of the descriptions given by other complainants led investigators to believe that there was a link between the offences committed against at least five of the complainants. (The evidence does not disclose which three of the eight complainants besides Complainants 1 and 6, these were. It does not, for present purposes, matter.) 91 On 7 July Detective Tuckerman issued Operation Orders which named only the accused as a suspect and nominated as the main objective of the operation the subject of those orders "to obtain a DNA sample from [the accused] through covert surveillance". 92 Officers participating in Strike Force Sapelo maintained surveillance on the accused. On 14 July he was seen to be behaving in a rather unusual fashion. At 7.51 pm he walked into a laneway at Westmead, lay on his stomach for about fifteen seconds, then rose and walked to his car which was parked nearby. He sat in the driver's seat for about nine minutes. This was not the first incident of unusual behaviour that had been observed. In the morning of 29 June a man (believed to be the accused) had been observed by a resident standing on the ledge of a wall looking into the backyard of a townhouse at Oatlands. The following morning at about the same time the same resident saw the same man emerge from bushes around the adjoining townhouse. On each occasion the man drove off in the same vehicle, the registration number of which was the registration number of the vehicle regularly driven by the accused. 93 As a result of these incidents Detective Tuckerman formed the view that, if the accused were indeed the person responsible for the assaults (or any or some of them), there was a real risk that a ninth attack was imminent. 94 Detective Tuckerman knew that the vehicle the accused drove was unregistered and uninsured. Having taken advice from within the Police Service, he arranged for Constable Scott Glynn, of the Highway Patrol, to stop the vehicle, purportedly in the exercise of routine Highway Patrol duties. At about 8:40 pm on 14 July Constable Glynn did pull up the accused whilst he was driving the vehicle on the M4 Motorway. Constable Glynn told the accused that he had been stopped for the purposes of a "random breath test". (Whatever else this test was, it was anything but "random".) He then conducted a breath analysis examination. This required the accused to exhale into a breath test tube. Constable Glynn inspected the accused's vehicle, observed that the registration label did not carry the appropriate receipt evidencing registration, and arrested the accused and drove him to the Parramatta Police Station. There he issued a Traffic Infringement Notice in relation to three offences under the relevant Road Transport legislation. He sealed the container on which the breath test had been conducted and handed that to another officer. A sample of the accused's DNA was obtained from the container and a profile prepared. Later comparison with the DNA samples from Complainants 1 and 6 established that the attacker in each case had the same DNA as the accused. The probabilities against the attacker in each case being the accused was put at one in ten billion. 95 At the conclusion of the formalities relating to the Road Transport charges the accused was taken to an interview room where Detectives Tuckerman and Cox were waiting. Between 11.57pm and 12.37am the following morning (that is 15 July) he was interviewed and the interview was electronically recorded. The various allegations of sexual assault were put to him and the accused either declined to answer questions or denied the allegations. 96 At about 4.00 am the accused was released from custody. Detective Tuckerman told him that he had a search warrant for his home address. The accused accompanied police officers to his home where a search began at 4.40 am. It concluded at 6.20 am. 97 The search warrant authorised search and seizure of eighteen described items. Most of these were items of clothing described in the warrant; the others were a 15 cm knife, a pocket knife, an orange handled screwdriver and a mobile phone. The items of clothing conformed with the descriptions, given by the various complainants, of the clothing worn by the attacker. 98 During the course of the search the accused was asked to remove the clothing he was then wearing. This included a pair of shorts, a jacket and a T-shirt. These items, together with others taken during the course of the search, were transferred to the Police Station and treated as exhibits in the investigation. 99 The T-shirt that the accused had been wearing was subjected to a test for DNA. It also yielded a result that established a significant, if not overwhelming, probability that the DNA was that of the assailant of Complainants 1 and 6. 100 On 31 July Detective Tuckerman received information from Ms Michelle Franco, a forensic biologist who conducted the DNA tests on the various items that had been submitted to her. At 6.15 pm that evening he received a preliminary report from her. That report was sufficient to justify the arrest of the accused. It contained the DNA matching mentioned above. The accused was, accordingly, arrested at about 6.40 pm that day. He was taken to Parramatta Police Station where he was again interviewed. A summary of the allegations of each of the complainants was put to him. He maintained his intention to exercise his right to silence. Detective Tuckerman asked him if he was willing to provide a blood sample for DNA comparison tests and the accused declined, citing advice from his solicitor as the reason. He declined to take part in an identification parade. The accused was charged at the conclusion of the interview. 101 After the accused had been charged Detective Tuckerman told him that he was obliged to provide blood or a saliva sample for DNA testing purposes. The accused refused to provide blood. There followed a discussion between Detective Tuckerman and the accused, who continued to refuse to provide a sample. 102 At 12.30 the following morning, 1 August, Detective Campbell pursued the issue of obtaining a blood sample or saliva sample. He gave the accused a copy of s 353A(2) of the Crimes Act 1900 and explained that the section authorised a doctor at the direction of a sergeant or superior officer to obtain a sample. The accused continued to refuse. Dr Stewart was present throughout this conversation. 103 At about 3.00pm the same day detectives returned to the issue. On this occasion Dr Moynham, a police medical officer, Detective Inspector McKay, and other police officers attended the clinic at the Corrective Services Cells at Parramatta where they saw the accused. The entitlement to take a blood sample was again explained to the accused, and he again refused. Detective Inspector McKay told him that police were permitted to use force to obtain the sample by injection but that they preferred to take a saliva swab from his mouth. By this time the accused had spoken to solicitors and had received advice. Eventually he agreed to provide a saliva sample (buccal swabs). Testing of these swabs had the same result as the earlier obtained DNA samples. It established a high, indeed overwhelming, probability that the accused was the man who had assaulted Complainants 1 and 6. • • • 104 The accused seeks the exclusion of the evidence of the DNA obtained as a result of breath analysis test, the sweat ingrained T-shirt, and the buccal swab. Although, in each case, objection is based on discretionary matters, the factual and other issues that arise are not identical. The breath test container 105 The argument advanced on behalf of the accused in relation to the DNA evidence obtained as a result of the breath test was that the sample was obtained by trickery, by subterfuge, and that it resulted from the improper exercise of the power to arrest. The accused does not dispute that he was in fact guilty of the motor vehicle offences with which he was charged. Counsel provided a copy of s 18 of the Road Transport (Vehicle Registration) Act 1997 which creates the offence of using an unregistered registrable vehicle on a road, and which provides for a maximum penalty of twenty penalty units. One aspect of the argument advanced on behalf of the accused was that, by reference to the penalty, that offence should be seen as one low on the calendar of criminal offences, and one which should be prosecuted, not by arrest and charge, but by summons. 106 I accept that the penalty provided for by the legislature does not suggest that the offence of driving an unregistered vehicle is at the high end of the scale of criminal offences. I further accept that prosecutions for less serious offences may properly be initiated in the usual course by summons rather than by arrest and charge. However, on this occasion the accused was apprehended in the act of committing the offences. In such circumstances an arrest, at least to prevent the continuation of the commission of the offences, or commission of further offences, seems to me to be not inappropriate. S 352 of the Crimes Act 1900 provides the statutory authorities for arrest in those circumstances. 107 I am quite satisfied that the arrest of the accused in relation to the road traffic charges was no more than a pretext. Although the accused was issued with a Traffic Infringement Notice, the dominant and real purpose of the arrest was to obtain, by covert means, a sample of the accused's DNA, so that it could be compared with the DNA of the man who had assaulted Complainants 1 and 6. Neither Detective Tuckerman nor Constable Glynn pretended otherwise. The true purpose for which the power to arrest was exercised was not the enforcement of the road traffic laws; it was to enable police to obtain a sample of the accused's bodily fluids to enable DNA matching to take place. 108 Counsel argued that, in those circumstances, the evidence comes within s 138 of the Evidence Act 1995 and ought, on the application of that section, be excluded. S 138 relevantly provides: 138. Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 109 There are, in fact, two questions that arise when s 138 is invoked. The first is whether the evidence is evidence obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law. If that question is not answered affirmatively, then the s 138 balancing process does not arise. It is only if the evidence is properly characterised as evidence of that kind that the second question, whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way the particular evidence under consideration was obtained, arises. Impropriety 110 I have attempted to make it perfectly plain that I am satisfied that the powers conferred on police officers under road traffic legislation were used for a purpose essentially extraneous to the purpose for which they were conferred. The purpose for which the power to arrest is conferred to enforce the law. In this case, the power to arrest was purportedly to enforce the road transport law. That was not at the forefront of Detective Tuckerman's mind, and was not the true reason Constable Glynn arrested and charged the accused. 111 It was not, however, in issue that the accused was in fact driving a vehicle in breach of the road transport legislation. The police officers were entitled to arrest him, and charge him under that legislation. Nor was it in issue that, he having been apprehended in the course of committing offences under that legislation, they were entitled to require him to submit to a breath analysis. There was, accordingly, no contravention of any Australian law. The question remains whether the exercise of the very serious power of arrest, and the consequent breath analysis amounts, in the circumstances, to an impropriety. 112 Having regard to all of the circumstances, I am not satisfied that there was an impropriety. It would be different if police had manufactured a false charge, or had arrested the accused purportedly for an offence which they knew he had not committed. That was not the case here. Police had good reason to believe that the accused had committed the offences charged, (ie the road transport offences) and, indeed, was in the process of continuing to commit the offences. 113 Further, in assessing whether there was any impropriety, it is relevant to consider the urgency of the task that police were performing. It is of some significance that surveillance police had observed the accused to be acting in a fashion that gave them reason to fear (if not believe) that, if he were the offender, there was a risk of a further, and imminent, attack or attacks. The protection of another victim, or other victims, is of no small moment in the assessment of the propriety of the conduct of the police officers. 114 Ordinarily such a use of the power of arrest would properly be regarded as an abuse of power and amount to a significant impropriety. Two things counterbalance what would otherwise be an inevitable conclusion. Firstly, by engaging in the conduct (driving an unregistered and uninsured vehicle) the accused exposed himself to proper arrest and detention. It is not as though police fabricated an allegation for the purpose of the arrest. Secondly, police had good reason to believe, not only that the accused was the perpetrator of seven sexual assaults, and their associated armed robberies, but also that his behaviour was such that there was a real danger that he would attack again. A further female victim was (or further female victims were) at significant risk if the perpetrator was not stopped. This is a factor of considerable importance in the evaluation of the police conduct and in the measure of censure that ought to be attached to it. 115 Moreover, it is relevant to consider the reliability of the evidence so obtained. The reliability of DNA evidence is, as I understand it, generally regarded as high. There was no real danger, by reason of the way in which the evidence was obtained, that its reliability would be affected. DNA is used, not only to obtain incriminatory evidence; it is capable, also, of exculpating the innocent, and it not infrequently does so. Obtaining samples of the accused's bodily fluids for the purpose of comparison with those samples the offender had left with two of his victims was likely to do one of two things: to eliminate the accused as a suspect, or to confirm, or at least heighten, the suspicion that he was the person responsible for at least two of the attacks. 116 Another consideration is the degree of intrusion involved in the way the sample of bodily fluid was taken. This was, in the case of the breath analysis, minimal. 117 Notwithstanding my misgivings about the police use of the powers of arrest in this case, having regard to all the circumstances I am not satisfied that the evidence it yielded was improperly obtained, or obtained in consequence of an impropriety. 118 Even if it were otherwise, I would be satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence so obtained. My reasons for this conclusion are essentially the same as the reasons for doubting that it is evidence improperly obtained. I shall re-state them. They are: (i) that the accused was in fact guilty of the offences under colour of which he was arrested and detained; (ii) that police had reason to believe that, if their suspicions that the accused was the perpetrator of the assaults (or some of them) were correct, there was a danger that he would attack again; (iii) that there was nothing in the manner in which the evidence was obtained that was likely adversely to affect its reliability; (iv) that there was only minimal personal intrusion involved in obtaining the sample; (v) that the evidence to be obtained was such that it was likely to confirm police suspicions and justify an arrest on the major charges, or to eliminate the accused from the enquiry. 119 These reasons translate readily into the matters specified as matters that must be taken into account pursuant to s 138 (3). For completeness I will express my reason in terms of that sub section, referring to those sub paragraphs that are material: (a) the probative value of the evidence is extremely high; (b) the evidence is extremely important in the proceedings; it is of critical importance in the charges involving Complainants 1 and 6. Having concluded that coincidence evidence was admissible, and that, if the jury accepted that some or all of the offences were committed by the same person, the DNA evidence incriminates the accused not only in relation to those offences, but also in relation to the offences committed upon such other of the complainants as the jury were satisfied were committed by the man who attacked one or other of those two complainants; (c) the offences are very serious; the offences of aggravated sexual assault carry a maximum penalty of imprisonment for twenty years; (d) to the extent that there was an impropriety (contrary to my assessment), it was, having regard to all the circumstances, not grave; (e) while the police officers did what they did with full knowledge of their motives, they obtained advice as to the legality of their actions; (h) given the pressure upon them, and the time constraints, it would have been difficult for police to obtain samples of the accused's bodily fluids for DNA purposes without resort to the kind of action they took. 120 Counsel for the accused also argued that the obtaining of the evidence in the way police did was contrary to or inconsistent with a right recognised by the International Covenant on Civil and Political Rights, a circumstance relevant to s 138(3)(f). He referred to Article 9 of the Covenant, which precludes arbitrary arrest or detention and requires a person arrested to be informed, at the time of the arrest, of the reasons for the arrest, and to be properly informed of any charges preferred. 121 I do not think that the accused's arrest on 14 July could be described as "arbitrary". He was arrested because he was in the process of committing offences. He was informed of the reason for that arrest. The fact that the arrest had a wider purpose does not affect the fact that it was a lawful, and not an arbitrary, arrest. I am satisfied that, balancing all of the relevant factors, the desirability of admitting the evidence substantially outweighs the undesirability of admitting evidence obtained by the exercise of a power of arrest for an ulterior purpose. 122 In my opinion, the fears police held of another attack, and the reasons for those fears, constituted an important extenuating circumstance affecting whether the behaviour should be classed as an impropriety, and if it should, the level of the impropriety, and the consequences that should attach to any such impropriety. I would be much less inclined to take a benign view of what police did and to admit the evidence, if they were not under pressure, not only to identify and apprehend a man guilty of these serious offences, but to ensure that the pattern of offences did not continue and involve additional victims. 123 By repeating this, I intend to dispel any notion that the view I have taken in this case amounts to an endorsement of the use of the power of arrest for an ulterior purpose or to a finding that the end justifies the means. It would be only in a most exceptional case that I would consider that the use of the power of arrest and detention for an ulterior purpose could be condoned. This is such a case. The T-shirt 124 The point that was made in relation to the DNA sample obtained from the T-shirt the accused was wearing at the time of his arrest, and during the course of the execution of the search warrant at his home, was that the T-shirt was obtained, purportedly pursuant to a search warrant, but that it was not one of the eighteen items enumerated on the search warrant. It was therefore obtained either in breach of the law governing the execution of search warrants, or improperly as a result of excessive zeal in the execution of the warrant. 125 The evidence in this respect is not very clear. The T-shirt that the accused was wearing is described in Detective Tuckerman's statement as "one mustard coloured JAG jeans brand 'T-shirt'". The search warrant nominates, inter alia, the following: "1. one light coloured short sleeved polo shirt with horizontal stripes. 5. one grey coloured T-shirt with NIKE motif in blue on front. 6. one light coloured sweat style shirt. 7. one grey T-shirt with red coloured printing." 126 On the voir dire Detective Tuckerman was cross-examined about this. He identified the "light coloured sweat style shirt', item 6 in the search warrant, as conforming with the shirt the accused had been wearing. 127 I was in no position, on these limited descriptions, to assess whether the shirt taken from the accused, did, or might have, come within the description of item 6 sufficiently to justify its being taken pursuant to the search warrant. I was far from satisfied that it did not. 128 In cross-examination on the voir dire Detective Tuckerman acknowledged that consideration had been given to obtaining clothing worn by the accused for the purpose of DNA testing, and that he expected that, after the accused had been in custody at the police station for some time, interviewed, and taken to his home which was searched in his presence, it was likely that the T-shirt he had been wearing throughout these events would be impregnated with perspiration and that that would be likely to yield substances suitable for DNA testing. Detective Tuckerman maintained that the T-shirt was conceivably identifiable as one of the items listed in the search warrant and that this was at least an equal reason for its confiscation. 129 However, I am satisfied that the dominant reason for taking the clothing was to obtain a sample of the accused's bodily fluids to permit DNA testing. 130 The basis on which counsel for the accused sought to have the evidence excluded was, again, s 138 of the Evidence Act. Again, I am not satisfied that there was an impropriety or a contravention of an Australian law, or that any evidence has been obtained in consequence of such an impropriety or contravention. The execution of the search warrant was a legitimate tool in the investigation of the sexual assaults. It was not executed for the purpose of obtaining a DNA sample from the accused, although its finding might have been manipulated to enable that to happen, and it is very unlikely that the warrant was executed in such a way as to cause some agitation to the accused, thereby making it more likely that he would perspire freely. Accordingly, the s 138 evaluation does not arise. Even it were established that the warrant did not authorise the taking of the T-shirt and that its confiscation amounted to a contravention of law, I would, again, be satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in such a fashion. 131 In relation to both the DNA taken from the breath test container, and the T-shirt, it is to be observed that DNA evidence was also taken from the buccal swab and that, if this is to be admitted, the relative importance of the DNA evidence from the other two items is somewhat diminished. However, in my opinion, the evidence remains, as I have observed above, important. The discretionary considerations in relation to this DNA evidence are similar to those that relate to the breath test DNA evidence. The buccal swab. 132 S 353A (2) of the Crimes Act provides as follows: "When a person is in lawful custody upon a charge of committing any crime or offence which is of such a nature and is alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his or her person will afford evidence as to the commission of the crime or offence, any legally qualified medical practitioner acting at the request of any officer of police of or above the rank of sergeant, and any person acting in good faith in his or her aid and under his or her direction, may make such an examination of the person so in custody as is reasonable in order to ascertain the facts which may afford such evidence." 133 The advice, or the interpretation of s 353A(2) given to the accused by police officers on 31 July and 1 August, was a correct interpretation of this sub section. The section is designed to permit the taking of body samples such as saliva or blood for the purpose, inter alia, of DNA testing. At the time the buccal swab was taken the accused was in custody; and he was in custody upon a charge of committing a crime of such a nature and alleged to have been committed under such circumstances that reasonable grounds existed for believing that examination of his person would afford evidence as to the commission of the crime. 134 Prima facie, therefore, the sub section authorised the taking of the sample. 135 However, the argument that was put on behalf of the accused was that he came to be in custody solely as a result of the taking of the previous samples of bodily fluid which was, on the argument put on behalf of the accused, improper or unlawful. Counsel for the accused asserted, in effect, a different but related claim of impropriety. 136 It is obvious that the accused's argument in relation to the buccal swabs depends upon a finding that both of the previous samples were improperly or illegally taken. Given the conclusions I have reached and expressed in relation to those matters, there is little left of this argument. 137 However, I would add that, even if I were wrong on all counts in relation to those matters, it would not affect my view that the buccal swab was taken lawfully in the exercise of the power conferred by s 353A(2). The accused was in lawful custody on a relevant charge at that time. Even if the arrest had been effected in reliance upon improperly or illegally obtained evidence, or evidence which would later prove to be inadmissible or rejected in the exercise of discretion, that did not affect the legality of his arrest. Accordingly, there is no place for the exercise of the s 138 evaluation. There is no impropriety or illegality in the taking of the buccal swab. 138 As I have earlier mentioned, the consequence of this conclusion is that the importance of the earlier DNA evidence is somewhat diminished, but not to the point at which a reconsideration of the views earlier expressed results in any alteration on modification of those views. 139 In considering the matters raised in relation to all matters, but, particularly, the DNA evidence, I have not overlooked the decisions of the High Court in R v Swaffield; R v Pavic [1998] HCA 1; 192 CLR 159. In those cases the High Court considered at length the exercise of "the fairness discretion" in the admission of evidence of confessional material (which is strictly admissible but subject to discretionary exclusion) in criminal trials. Although those decisions were concerned with confessional evidence, the principles stated are not, in my view limited to evidence of that kind, but have potential application to any evidence obtained in such circumstances that its fairness is questionable. Both appeals, however, emanated from jurisdictions other than NSW, and were not therefore governed by the precise provisions now contained in the Evidence Act. The decisions must be read in the light of the Evidence Act, but are of obvious materiality in providing guidance in the exercise of the various discretions based upon fairness (however expressed) contained in that Act. Indeed, in the majority judgment, Toohey, Gaudron and Gummow JJ referred to the NSW Evidence Act ([68]). Parallel with, and perhaps overlapping with, the fairness discretion is what Brennan CJ called "the public policy discretion". I have considered whether there is anything in the reasoning in Swaffield and Pavic that should alter the view I have taken. I am satisfied that, even applying the broader approach set out in those cases, there was nothing in the manner in which the evidence was obtained that would require its exclusion either in terms of fairness, or for public policy reasons. 140 I ruled that all evidence relating to DNA testing would be admitted. 3 Picture identification 141 The accused sought the exclusion of identification of the accused made by complainants 4, 5 and 7 from photographs. It will be necessary to set out the circumstances in which the identifications were made. 142 As has been set out above the accused was arrested by Constable Glynn at about 8.40 pm on 14 July 2000. So far as I can ascertain from the statements, he remained in custody in relation to those charges until about 9.15 pm. He was then taken to an interview room where he was introduced to Detectives Tuckerman and Cox. Detective Tuckerman told the accused that they were making enquiries into a number of sexual assaults and robberies. In my view, at this time the accused was under arrest in relation to the sexual assaults and robberies. The purpose of the arrest and consequent detention was to enable the officers of Strike Force Sapelo to investigate his involvement in the commission of those offences. The statutory authority for such detention is to be found in Part 10A of the Crimes Act. 143 The accused remained in that custody until 4.00 am the following morning, 15 July. 144 At about 1.00 am on 15 July, at the request of police, Complainant 7 attended at the Parramatta Police Station where she participated in what has been called photograph identification. Complainant 7 was shown fourteen photographs, which included a photograph of the accused, and was invited to identify any of the photographs she recognised as a photograph of the person who had committed the assault upon her. She selected the photograph of the accused. The entire process was recorded on video tape. 145 At about 2.30 am Detective Krawczyk and Constable Shepherd went to the home of Complainant 5. They were in possession of the same fourteen photographs and went through the same process with Complainant 5. She also selected the photograph of the accused. This process also was recorded on video tape. 146 In each case the photograph of the accused used was one taken from police records, have come into existence as the result of an earlier arrest of the accused. It was the most recent photograph in the possession of police. 147 On 27 July 2000 Complainant 4 went to the Parramatta Police Station. After dealing with some other matters, to which reference will be made below, she also was shown the fourteen photographs and also selected the photograph of the accused. This process also was recorded on video tape. 148 Having regard to the challenge to this evidence, it will be necessary shortly to refer in some more detail to what appears on the video tape. 149 The first challenge, however, to the evidence concerned s 115 of the Evidence Act which is concerned with what is called "picture identification evidence". The evidence under consideration is evidence of that kind, within the definition contained in sub s (1). Sub ss(3), (4) and (5) are material. They provide as follows: (3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if: (a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, and (b) the picture of the defendant that was examined was made before the defendant was taken into that police custody. (4) Subsection (3) does not apply if: (a) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody, or (b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody. (5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless: (a) the defendant refused to take part in an identification parade, or (b) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody, or (c) it would not have been reasonable to have held an identification parade that included the defendant. Sub s (3) prima facie precludes the admission of picture identification evidence adduced by the Crown if, at the time the identification process took place, the person accused was in the custody of an officer of the police force investigating the commission of the offence charged and the photograph of the accused contained in the array of photographs shown to the witness or witnesses was made before the accused was taken into that custody. Those circumstances apply here. The photograph of the accused that was used was a photograph in the possession of police and taken before his arrest on 14 July. As he was in custody at the time Complainants 5 and 7 examined the photographs, prima facie sub s (3) renders evidence of that identification inadmissible. 150 However, sub s (4) provides two exceptions, one only of which is presently relevant. That is the exception provided in sub para (b). Detective Tuckerman gave an explanation for using that photograph of the accused. He said that he chose it out of fairness to the accused, it being the most recent photograph of him in the possession of police. 151 In my opinion it is clear that Detective Tuckerman was, in part, acting under a misapprehension as to his powers. In evidence he said that he did not believe that he had the power or authority to take a photograph of the accused without the accused's consent. In my opinion that is an incorrect understanding of the relevant provisions of the Crimes Act. S353A(3) provides as follows: "(3) When a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge of police at the station where the person is so in custody may take or cause to be taken all such particulars as may be deemed necessary for the identification of such person, including, where the person is of or above the age of fourteen years, the person's photograph and fingerprints and palm prints." 152 In my opinion it is quite plain that the accused was, from about 9.15 pm, on 14 July, "in lawful custody for [offences] punishable on indictment" those offences being the various offences of sexual assault and robbery and kidnapping. The subsection therefore authorised the taking of a photograph. That photograph could be used for the purposes of identification in the way the photographs were in fact used: R v McPhail and Tivey (1988) 36 A Crim R 390. The plain words of sub s (3) require this interpretation. In case there is any doubt (as was expressed by the Crown during the course of argument) the opening words of sub s (3) are to be contrasted with the opening words of the preceding sub sections. Sub ss (1) and (2) both open with the words: "Where a person is in lawful custody upon a charge committing any crime or offence …" (emphasis added) 153 Sub s (3) envisages custody without charge as contemplated by Part 10A. I am therefore satisfied that the view of the law taken by Detective Tuckerman was erroneous and that he had the power to take a photograph of the accused with or without his consent. 154 However, that does not dispose of s 115(3). The exception provided in sub s (4) (b) focuses upon the reasonable practicability of photo-graphing the accused after he has been taken into custody. In evidence Detective Tuckerman referred to a number of matters that made it plain that it was not reasonably practicable to do so within the time available. Firstly, Detective Tuckerman was engaged at a police station which was not his normal place of work. He was, of course, aware that police stations are equipped with facilities for the taking of photographs. However, he was of the opinion that, the photographic examinations having commenced at about 1.30 am, it would not have been reasonably practicable to have a photograph taken of the accused and processed in order to enable the identifications to proceed. In the witness box he gave consideration to the possibility that an instant print Polaroid type camera might have been available in the police station, but pointed out that such cameras produce a photograph with a different appearance from those ordinarily held by police. If a Polaroid photograph of the accused were to have been taken, and photographs already in possession of police used to complete the array, the prejudice to the accused by reason of the inevitable attention given to the one photograph that was different is manifest. That would have made it necessary, as Detective Tuckerman pointed out, to make up an array of photographs of other men of similar age, colouring, and facial characteristics all taken on the Polaroid camera; and this during the early hours of the morning. In any event, there is no reason to believe that a Polaroid camera was available. 155 I accepted that, in the circumstances, it was not reasonably practicable to "make a picture" of the accused after he was taken into custody. 156 Two matters that were put on behalf of the accused should be mentioned. Firstly, counsel suggested that the impracticability of photographing the accused was not in Detective Tuckerman's mind and was not, in truth, the reason or even a reason for the course that he adopted. This may well be true, and indeed I thought that it probably was. His misunderstanding of his right to take a photograph established, to my satisfaction that he did not turn his mind to the reasonable practicability of taking a photograph of the accused. But sub s (4)(b) is not directed to the motivation or state of mind of the police officer; it is directed to the objective reasonable practicability or otherwise of taking a photograph. Whether Detective Tuckerman thought about it at the time or not, it was not reasonably practicable to take a photograph of the accused - at least one that could be used for photographic identification purposes at that time. 157 Secondly, it was argued that there was no real necessity for the urgency which Detective Tuckerman perceived, and that the photographic identification could have been delayed until it was possible to take a photograph that conformed with the prima facie requirement of s 115. The simple answer to this proposition is that s 115 does not require or contemplate deferring the examination until a photograph can be made available. 158 Further, I was satisfied, (contrary to the submissions) that there was a degree of urgency associated with the photographic identification of the accused. He was, at that time, in custody pursuant to Part 10A, and this afforded police limited time for their investigations. In order to have sufficient evidence to justify charging the accused (or to eliminate him from the enquiry) it was necessary for police to conduct the identification investigations with expedition. 159 Sub s(5) does not operate to exclude the evidence because the accused refused, when asked, to take part in an identification parade. 160 I was therefore satisfied that there is no reason associated with the provisions of s 115 not to admit the evidence of photographic identification. 161 I pause here to note that these considerations do not apply in the case of Complainant 4, who examined the photographs on 27 July, a time when the accused was not in police custody. 162 The next argument advanced on behalf of the accused in relation to the photographic identification evidence was made in reliance on the discretions conferred by ss 135 and 137 of the Evidence Act. In each case the argument focused upon the probative value of the evidence. Put shortly, it was suggested that close examination of the video of the photographic examination would disclose unfairness in the conduct of the police officers who provided the photographs to the complainants. The suggestion was that by subtle hints or gestures the police officers influenced the selection of the photographs of the accused. 163 I have viewed each video tape. Indeed, during the course of the voir dire, counsel for the accused, with the use of the remote control device of the video machine, played and re-played those portions of the videos on which he relied to suggest influence of the kind he claimed had taken place. I was quite unable to detect any such influence. In my opinion each identification was conducted with scrupulous fairness on the part of the police officers concerned. I do not propose to deal in detail with the contents of each video tape. I do note that the voices on the video tape are at times extremely indistinct. However, counsel having viewed the videos on even more occasions than I have, pointed specifically to those parts of the video which were said to be evidence of unfairness of the kind asserted. In no case did I accept that there was such unfairness. 164 I proposed to admit the evidence of photographic identification. 4 Voice identification evidence 165 As part of the identification police officers undertook a rather unusual (at least in my experience) voice identification exercise. The accused's voice had been recorded when he was interviewed on 14 July. Police extracted a portion of that interview and deleted some parts of the extract in order to produce a reasonably free flowing recording of the accused's voice. They were careful to select a portion that did not give rise to any assumptions about the accused. 166 They then prepared a script in identical terms and sought the assistance of eleven men they spoke to in the Parramatta Mall. Each of the eleven men returned to the Parramatta Police Station and read the script. Each reading was recorded on the same equipment as had been used earlier to record the accused's voice. The result was that police had in their possession twelve tape recordings, each of a male voice, each using identical words, and each recorded on identical equipment. The aim of this exercise was to create a voice identification process parallel, so far as possible, with an identification parade, or photograph identification. 167 Each recording was then played to each complainant, and each was asked, in a manner analogous to the photograph identification, to say whether she recognised the voice of the man who had attacked her. In each case the process was recorded on video tape. The accused's voice was the voice recorded on the tape numbered 12, although the tapes were not necessarily played to the complainants in numerical sequence. Complainant 1 selected two voices, one of which was the voice of the accused. Complainant 3 similarly selected two voices, one of which was that of the accused. Complainant 4 selected only the voice of the accused and expressed herself as "very positive" that this voice was similar to that of her attacker and that it had been familiar to her when she first heard the tape recording. She added that when the tape was first played to her she "became uneasy and [her] heart started racing", and that none of the other tapes had had that effect upon her. Complainant 6 selected three tape recordings, one of which contained the voice of the accused. She was unable to say with any certainty that any of these voices was the voice of her attacker but said that each was similar. Complainant 7 identified only the voice of the accused and expressed herself as "positive that this male's voice was very similar to the male" who had assaulted her. She also said that after hearing the voice she became very upset. 168 Criticisms of a similar kind to those made in relation to the photographic identification were made of the voice identifications were made of the voice identification process. The criticisms were directed to challenging the probative value of the evidence so obtained. There were, potentially, some defects in the process. The most glaring of these was that the recording of the accused was a recording of him using words of his own selection, in a natural fashion, and therefore having the rhythm and cadence of ordinary speech. The recordings of some, at least, of the other men lack that natural rhythm and are discernibly recordings of men reading the script rather than speaking naturally. Further, despite the precautions taken by police in using the same equipment, the quality of the recording of the accused's voice is different from the quality of the other recordings. In other words, the recording of the accused's voice has some features which distinguish it from the recordings of the others. 169 I regarded these deficiencies as minor, When I use the word "deficiencies" I do not intend to express any criticism of the police officers. Such deficiencies as there were were brought about by the exigencies of the circumstances and could not, in my view, have been avoided. Moreover, they are, as I have said, minor. The tape recording of the accused's voice does have a different quality and sound to the tape recording of the other voices; and the men who read from the script provided to them, in some cases at least, did not do so very convincingly. However, the whole process was video taped, and one thing that emerges from the video tapes is the close and careful attention each complainant paid to each of the tape recordings. Most listened to at least some of the recordings a number times and went through a process of elimination. Only two of the complainants whose voice identification evidence is in issue chose the accused's voice alone; each of the others also selected at least one other voice. This did not suggest to me that the complainants were directed intentionally or unintentionally to the accused's voice. 170 As with the photographic identification, the video recording in each case provides cause for confidence that the process was undertaken with scrupulous fairness. Specific points were made about the identification by different complainants and it was suggested that, in different cases, the police officer conducting the exercise gave subtle hints which influences the selection. Such is not the impression I received. 171 The challenge to this evidence was made in reliance upon the discretionary provisions of ss 135 and 137. Again, what was challenged was the "probative value" of the evidence. In my opinion the argument proceeded on a misapprehension of the concept of "probative value" as used in those sections. 172 In my opinion those sections were not intended to substitute the opinion of a judge for the evaluation of the jury as to the credibility or the weight of the evidence. Rather, the words "probative value" in those sections is generally, intended to refer to the extent to which the challenged evidence, if accepted as credible, would affect the strength (or otherwise) of the Crown case. In other words, "probative value" in those sections is a reference to the importance of the evidence relative to other pieces of evidence in the Crown case. 173 In my opinion the evidence of the five complainants is of significant probative value (assuming the jury accept it as credible); of course, the probative value is greater according to the degree of certainty expressed by any particular complainant, and greater again where only one voice has been nominated. 174 I ruled that the voice identification evidence would be admitted. 5 Object identification 175 This concerns the process undertaken by which each of the complainants was invited to view an array of clothing, and an array of knives and screw drivers, and to nominate any of those items she recognised as having been worn or used by her attacker. It is unnecessary to detail the specific results of this process. It was, like the other investigative procedures, fully recorded on video tape. In some cases complainants, with varying degrees of certainty or hesitation, selected items of clothing as similar to items of clothing worn by their assailants; and in some cases individual complainants selected knives or a screw driver as being similar to those used by their assailants. 176 In relation to the knives on display, and, indeed, the screw drivers, it may be observed that they are patently very ordinary household items, which would be likely to be found in virtually any household in the country. 177 Similarly, the clothing array, though extensive, is relatively unremarkable. It consists of a number of jackets, shirts and T-shirts and pairs of shorts. 178 There is one feature which limits the value of the evidence obtained in this way. All of the clothing was clothing taken from the accused's home following the execution of the search warrant. All of the knives and screw drivers were taken from the accused's home at the same time. In other words, whatever items were identified by the complainants, they were items which belonged to the accused. The evidence, therefore, does not have decisive value as fixing the accused with responsibility for any attack, as it would have done, if, for example, amongst an array of clothing and implements taken from a combination of sources other than the accused, a complainant had positively identified his clothing or implements. 179 But, in my opinion, the evidence potentially has some (although limited) probative value. The weight to be assigned to it is, of course, a matter for the jury. 180 I proposed to admit the evidence of object identification. ********* Last Modified: 04/26/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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