New South Wales Supreme Court CITATION : R v Sotheren [2001] NSWSC 204 FILE NUMBER(S) : SC 70044/00 27/2/2001 1/3/2001 HEARING DATE(S) : 2/3/2001 5/3/2001 6/3/2001 JUDGMENT DATE : 26 March 2001 PARTIES : Regina Darren James Sotheren JUDGMENT OF : Dowd J at 1 COUNSEL : Ms M Cunneen- Crown Mr G Ikners- Accused SOLICITORS : Ms K Thompson- Crown Mr A Williams- Accused CATCHWORDS : Discretion to exclude evidence - Evidence improperly obtained - Admission unfair to accused LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 Bunning v Cross (1978) 141 CLR 54. R v Barbaro (2000) 112 A Crim R 551. R v Ireland (1970) 126 CLR 321. R v Lee (1950) 82 CLR 133. CASES CITED : R v McDermott (1948) 76 CLR 501. R Salem (1997) 96 A Crim R 421. R v Taousanis [2001] NSWSC 74. Ridgeway v The Queen (1995) 184 CLR 19. Swaffield v Pavic (1998) 151 ALR 151. DECISION : 1. Application refused. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION DOWD J 26 March 2001 70044/00 R v Darren James SOTHEREN REASONS FOR JUDGMENT - On Application to Exclude Identification Evidence (Transcript page 183, 6 March 2001) 1 The applicant sought, by way of Notice of Motion, to exclude evidence of identification of the applicant based on witnesses viewing a video prepared by the police for such identification purposes. The application was made on the grounds that the film shown to the witnesses clearly conveyed the impression that the witnesses were in police custody at the time the video was taken, and that the use of the evidence is covered by ss114, 115, 135 and 137 of the Evidence Act 1995 ('the Act'), and that the evidence ought to be excluded under the provisions of those sections of the Act. 2 During the course of the hearing, the applicant also sought and was allowed to amend the Motion to seek to exclude the identification evidence pursuant to ss138 and 139 of the Act. 3 The applicant accused is charged in an indictment with four counts of Aggravated Robbery and one charge of Murder, all such offences having been committed on either 9 and 10 May 1999. 4 In a previous Application by the applicant to separate the counts in the indictment, I held that the evidence in support of each count was admissible in respect of each of the other counts, and thus dismissed the application on the basis that all counts should be heard together as the jury would hear the evidence of each matter in a trial of each count, in any event. 5 The subject police video comprises a presentation of the applicant for about ten seconds, in black and white photography, moving his head for about one second towards the camera and then back. He is wearing prison garb. Since the video is in black and white, although dark, the nature of this clothing is not obviously apparent. There are nine other persons similarly attired who are depicted in the video, the video also being in black and white, each person making similar movements for about the same length of time. 6 The video film was used for several witnesses to see if they could identify the applicant. This was undertaken with varying degrees of success. Two of those witnesses are to be called to give identification evidence in the trial of the applicant. 7 On the hearing of this application, statements of several witnesses were tendered. Oral evidence was given by the two detectives responsible for the matter and the prison social worker who was a qualified psychologist. The two detectives and the psychologist were present when the video film, from which the segment portraying the applicant was taken, was made. Facts 8 On 11 June 1999, the accused had been interviewed at Parramatta Police Station. The accused had declined to take part in an interview without his solicitor being present, and said that he was not prepared to take part in an identification parade. On that occasion, the accused had acted in a violent manner in the police station. 9 On 13 July 1999, the accused was in the Kevin Waller Unit within the Long Bay Correctional Centre, he being there on other charges. This is a unit which cares for inmates that are at a high risk of self - harm. Ms Robyn Craigie, a Clinical Psychologist, employed by the Aboriginal Legal Service in Redfern, was present with the accused when an officer advised him that the police wished to speak to him. Ms Craigie did not clearly recall whether she told the accused that he would be videotaped in the interview. 10 The accused was taken to a room where a television camera had been set up. Detective Sergeant Bryson Anderson and Detective Senior Constable Geoffrey Fagan, set up the room for an electronic record of interview with a television camera pointed at a chair near a desk in the centre of the room, so that the camera could view most of the room, but excluded themselves, and Ms Craigie. Ms Craigie stood against the wall out of the camera's range. 11 During this interview, the accused, who was still standing, was asked by the detectives whether he wished to be interviewed in relation to the charge of murder and three of the armed robberies, whether he wished to participate in a line - up, or whether he agreed to a photograph. The accused declined. While this was happening, the accused was on video and only part way through was he asked as to whether he had any objection to being filmed. He then looked at the camera, which was part of the segment used in the police videotape. 12 It was originally contended by the Crown in this application, that the video had been taken pursuant to the powers conferred on the police by s353A of the Crimes Act 1900, which provides that when a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge at the police 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 above the age of fourteen years, the person's photograph, fingerprints and palm prints. 13 Section 353A also provides that the powers apply to any person in lawful custody other than a police station, where the person in charge of that place may exercise similar authority to an officer in charge of a police station, for similar purposes. 14 During the course of the hearing, evidence was given by Det. Sgt. Anderson that the intention of videotaping the interview was not for the purposes of identification. The Crown then conceded that the section did not apply. 15 It was, in any event, clear that any photographs may only be taken in such circumstances for the purposes set out in the section. The photography did not comply with s353A of the Crimes Act. Submissions 16 It was submitted on behalf of the accused that the circumstances in which the accused is depicted in the video infringed s115(2) of the Act. The section is clearly aimed at police "mug shots" identification, but in the words of the section, there is a specific prohibition relating to police custody only. The clothing worn in the black and white police video does not imply or show that the accused is in custody at all, let alone that there is anything relating to police custody or police in the video clip. 17 It is not clear from the video, because it is in black and white, that the clothing that the accused is wearing, or that indeed any of the clothing that the persons depicted are wearing, are in fact prison clothing. There is nothing in the photograph that suggests police or any other custody, and therefore the evidence is not excluded by s115(2) of the Act. 18 It was further submitted on behalf of the accused that the evidence of the police officers concerning the record of interview, was inadmissible under s66 of the Act, relying on a decision of Hidden J in R v Taousanis [2001] NSWSC 74, which refers to a decision of R v Barbaro (2000) 112 A Crim R 551. However, an examination of Barbaro shows that Grove J at para 43 did not so hold, and in any event, Taousanis rejected evidence under s137 of the Act, and therefore that decision does not apply, and in my view there is no exclusion brought about by s66 of the Act. 19 It was then submitted by Mr Ikners, on behalf of the accused, that the evidence should be excluded under the court's general discretion to exclude evidence under s135 of the Act, as the evidence's probative value is substantially outweighed by the danger that the evidence may be unfairly prejudicial to the accused. 20 It was further submitted that the court was obliged to refuse to admit the evidence under s137 of the Act, as its probative value was outweighed by the danger of unfair prejudice to the accused. 21 It was further argued on behalf of the accused that the court should exercise its discretion to exclude the evidence as it was improperly obtained, in breach of s138 of the Act. 22 The accused also argued that the principles enunciated by the High Court in Swaffield v Pavic (1998) 151 ALR 98, should be applied, and that as a matter of public policy, the evidence should be disallowed as being unfair to the accused under common law. 23 Mr Ikners submitted that the commencement of the video without the accused's permission infringed his right not to be photographed. As a matter of public policy, the failure to inform the accused that the video tape had been taken or was to be taken prior to it being taken, should have occurred. 24 Det Sgt. Anderson contended, as I have indicated earlier, that the purpose of the interview was not identification. It is clear however that there was not the usual warning given beforehand that a video interview was to occur, nor was one given before the camera was turned on. It is clear that the police were aware that the accused had previously refused to both give a record of interview or participate in an identification parade. 25 A person, in our society, does not have a right not to be photographed. That is underlined by the fact that much of the evidence in this trial will be street surveillance photography taken from video cameras in and near railway stations and shopping centres. 26 The evidence of Det. Sgt. Anderson was that, although this was later corrected by the Crown, at the time he did not have any witness to whom to show a photograph if the accused had in fact agreed to a photograph being taken. He also conceded that he recalled at the time of the visit to the gaol where the video occurred, that the accused had previously refused to participate in an interview, but said that it was only fair that the accused knew the specific allegations in respect of which the police were investigating. 27 Both of the Detectives involved are experienced officers, who must have been acutely conscious of the need to obtain a photograph of the accused, to assist in the process of identification. It is difficult for me to find that that issue was not in the minds of the officers at the time the video was taken, and no matter what other purpose may have existed, on the evidence before me, I consider that in conducting the interview in the way that the Detectives did, their aim was to obtain a video - clip which they could ultimately use for identification. 28 In terms of s135 of the Act, there is in fact, in terms of the evidence itself, being evidence that would be used for identification, nothing of itself in the evidence which is prejudicial as such. Evidence adverse to an accused is not necessarily prejudicial evidence. To be prejudicial, the evidence must contain some element of pre - judgment or some factor which may cause a distortion of the jury's evaluation process. The evidence here is simply evidence of the appearance of the accused which can be used for identification, and therefore no question of prejudice, unfair or otherwise, arises. Additionally, it is clear that the probative value of such evidence is very high, since the identification evidence is a significant part of the Crown case. I decline to exercise the discretion to exclude the evidence. 29 In terms of s137 of the Act, as I have indicated, the probative value of this evidence is extremely high, and in terms of the balancing judgment which the section requires before evidence must be excluded, there is no element of prejudice in the evidence as such, and therefore no danger of unfair prejudice. Consequently, I do not consider that the Court is obliged to refuse to admit the evidence. 30 In terms of the discretion contained in s138 of the Act, contrary to the views expressed by me during the course of argument about the words "improper" or "impropriety", I consider that the structure of s138(1) of the Act is simply to describe in s138(1)(a) adverbially and in s138(1)(b) as nouns, the same concept. I was, because of the emphasis that we give to the word "impropriety" in common parlance, then of the view that different concepts were imparted, as it has a more pejorative connotation than "improperly". They are nonetheless words describing the same characteristic which is that of being improper. Clearly, the action of taking the photograph was not in contravention of an Australian law and therefore to apply the section, it is necessary to determine if the actions of the police were improper. 31 Subsection 138(2) deals with an admission only. Subsection 138(1) however talks about evidence that has been obtained and therefore connotes any evidence, whether by way of admission or otherwise, and can include the obtaining of a photograph, even if improper. Subsection 138(3) of the Act applies to subsection 138(1) of the Act and therefore applies to both admissions or evidence otherwise obtained. Subsection 138(3) of the Act is in the following terms: "(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." 32 It can be seen therefore that in s138(3), a wide range of issues need to be considered. 33 It is not necessary for the Court to mechanically go through each of the parts of the subsection in determining admissibility: R v Salem (1997) 96 A Crim R 421, but the court must have regard to the matters set out. 34 There is no definition of 'impropriety' or 'improper' in the Act, and it therefore must be given its ordinary meaning. To assist in the determination of what is improper, there are clear examples, such as in Ridgeway v The Queen (1995) 184 CLR 19, where evidence was obtained by police engaging in unlawful conduct, and there is clearly impropriety where there is a lying on the part of the police officer in obtaining evidence. 35 In law enforcement, there is however a degree of deception and trickery in obtaining evidence, such as in the use of undercover police, listening devices, informers, decoys, and phone tapping (see Australian Law Reform Commission., Evidence: Report No. 26, vol 1, at para 965. However much one may recoil from the fact of a person who is in custody being taken into a room and photographed by a trick or deception, there was no action on the part of the police that was not of a similar character to the wearing of a covert listening device, or the use of an informer to lull a suspect into a sense of complacency, and to encourage him or her engaging in conversation to make admissions that may be admissible. 36 However immoral or undesirable it may be to obtain the evidence in the way that it was obtained here, it was not, in my view, improper for that to occur. There are very frequently occasions where people are photographed either leaving courts or by surveillance cameras (both inadvertently or deliberately used). Photographs may be obtained serendipidously. Impropriety connotes, in my view, something more than the actions of the police in these proceedings, such as the false procurement of evidence and the obtaining of an admission or concession by lying or deception, such as an allegation that a co - offender has already confessed. In any event, looking at each of the matters that need to be considered under s138(3), even if such action were improper, the clear probative value of the evidence in this case, the importance of the evidence, and the nature of the offence must be taken into account in assessing the gravity of the impropriety. 37 It should be noted that the gravity of the impropriety or contravention mentioned in s138(3)(d) of the Act, link 'contravention' and 'impropriety' in the same part of the section and therefore require both an impropriety in a contravention of an Australian law to be looked at in terms of its gravity in relation to the International Covenant on Civil and Political Rights 1966 ('the ICCPR'). It seems to me that the only relevant parts of the ICCPR that could apply in this case are the right to privacy in terms of Article 17, or the requirement that a person should have a fair and public hearing, as stated in Article 14. 38 The right to privacy referred to in the ICCPR obviously connotes meanings for privacy beyond the Australian context, and it may well be that the right not to be photographed is thereby encompassed, but in this particular case and generally, the community are subject to being photographed at any time. If any of the photography taken by the street surveillance cameras had been suitable for use in a line - up, then the accused would have lost that right by such an event. 39 In any event, that is only one matter that the court must take into account, and it does not constitute an absolute bar of itself. 40 The right to a fair trial is, in my view, not sufficient to incorporate the concept of fairness dealt with by cases as enumerated in Swaffield & Pavic, but this is also only one matter to take into account. 41 In examining the matters set out in s138(3) of the Act, the probative value in terms of the Crown's case is high, and that evidence is highly significant in these proceedings. The nature of the events is, in respect of murder, at the top of the realm of seriousness, and indeed, the other offences are also serious. I do not consider the gravity of the impropriety to be grave, however unethical it may be, and although I do consider the impropriety deliberate, I do, as I have indicated, consider that the tender of the evidence is not inconsistent with the ICCPR, in that the right which is a right to a fair trial, encompasses issues wider than the exercise of a discretion to exclude evidence. Clearly, there is not going to be any action taken in relation to the impropriety, and it would be difficult to obtain the evidence without such means. 42 In all the circumstances, although the evidence is covered by s138, I do not consider that in applying s138, the evidence should be excluded. 43 Counsel for the accused also sought to have the evidence excluded by applying Swaffield & Pavic (supra), on the basis that the evidence would be unfairly admitted. Swaffield & Pavic is not an easy decision, in that it refers to the fact that that decision is a matter of common law, and the majority decided only to "bear in mind" the provisions of the Commonwealth and State Evidence Act 1995. The majority adverts to the fact that there may well be two streams of law developing, but does not deal with the somewhat more difficult question of the application of s9 of the Act, which continues the operation of the rules of law and equity after the commencement of the Act. At para 967 of the Australian Law Reform Commission Report, supra, the expressed intention of the Act as drafted by the Law Reform Commissioners was that the concept of unfairness should be abolished as vague and meaningless, and to abolish the Lee discretion which is enunciated in R v Lee (1950) 82 CLR 133, at 144, which has been applied and developed in cases such as R v McDermott (1948) 76 CLR 501, at 512-513. 44 In all of the judgments, Swaffield & Pavic clearly reaffirms the power of the court to deal with the obtaining of evidence, applying R v Ireland (1970) 126 CLR 321, whether by way of admission or otherwise. Nonetheless, Swaffield & Pavic it is a decision relating to admissions only. 45 It is therefore the discretion set out in Ireland, on which the accused here seeks to rely. Ireland was approved in Bunning v Cross (1978) 141 CLR 54, at 64, which held that the discretion to exclude evidence is a matter of competing interests of public policy and the question of fairness to the accused. 46 Without the need to decide on the issue of whether the decision in Swaffield & Pavic applies to New South Wales, or whether the line of authority examined in Swaffield & Pavic survived the enactment of the Act, I am of the view that in the circumstances, the admission of the evidence obtained by the police in the current proceedings was not such as to oblige the court to exclude that evidence, even if the R v Lee discretion existed. 47 If anything, Swaffield & Pavic underlines the fact that the right to silence and the means whereby it may be overridden by a trick or some deception, is a right which is of greater significance than rights relating to other evidence that may be obtained by such means, the latter not having the significance of admission evidence. 48 In my view, therefore, the accused is not entitled to have the evidence of identification excluded. oOo Last Modified: 04/03/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.