New South Wales Supreme Court CITATION : R v Peter Buchanan, Justin Robert Smith and Trevor Thomas [2004] NSWSC 815 HEARING DATE(S) : 03/08/2004 JUDGMENT DATE : 4 August 2004 JUDGMENT OF : Buddin J DECISION : Application to exclude identification evidence refused. LEGISLATION CITED : Evidence Act Domican v The Queen (1992) 173 CLR 555 Festa v The Queen (2001) 208 CLR 593 Pitkin v The Queen (1995) 69 ALJR 612 CASES CITED : R v Blick (2000) 111 A Crim R 326 R v Carusi (1997) 92 A Crim R 52 R v McDonald [2001] NSWCCA 363 R v Razzak [2004] NSWCCA 62 R v Tugaga (1994) 74 A Crim R 190 Regina PARTIES : Peter Buchanan Justin Robert James Smith Trevor Anthony Thomas FILE NUMBER(S) : SC 70054/03; 70235/03; 70236/03 B Smith (Crown) COUNSEL : M Ramage QC (Buchanan) J Chicken (Smith) G Turnbull (Thomas) SE O'Connor SOLICITORS : John Krajcik (Buchanan) Andrew Harris & Associates (Smith) Adamson Solicitors (Thomas) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J WEDNESDAY 4 AUGUST 2004 70054/03 – REGINA v PETER BUCHANAN 70235/03 – REGINA v JUSTIN ROBERT JAMES SMITH 70236/03 – REGINA v TREVOR ANTHONY THOMAS JUDGMENT – Application by accused Justin Robert James Smith to exclude identification evidence 1 HIS HONOUR: Peter Buchanan, Trevor Thomas and Justin Smith are accused of the murder of Raymond Carrion on 5 July 1998. The alleged offence occurred in the shower block of Wing 12 of Long Bay Gaol. All three men were then inmates who were being housed in that part of the Gaol. The Crown case depends in large measure upon the evidence of another inmate who was in Wing 12 at the time. For the purposes of these proceedings, that inmate has been given the pseudonym, Ronald Stuart. 2 Objection is taken on behalf of the accused, Justin Smith, to evidence which the Crown seeks to lead from Ronald Stuart in which he purports to identify the accused as a participant in the murder of Mr Carrion. I have been requested to determine that question before the jury is empanelled and before the Crown opens its case, although it may be noted that each of the accused has been arraigned before me. The application is brought pursuant to s 137 of the Evidence Act. 3 Although the present application is made on behalf of Justin Smith alone, Mr Turnbull on behalf of the accused Thomas has foreshadowed an objection to the identification evidence which is to be led against his client. That objection gives rise to different issues from those which are currently being agitated. Nevertheless Mr Chicken has indicated that he may seek in due course to embrace them should the occasion arise. Mr Turnbull informed me that his objection does not have to be determined before the jury is empanelled. In any event Mr Turnbull is not presently in a position to make submissions in support of his objection. 4 It is necessary to briefly outline the case which the Crown seeks to lead against the accused. I have been provided with a copy of a document entitled "Crown Case Statement". It is common ground that it sufficiently sets out, for present purposes at least, the evidence upon which the Crown relies. On the afternoon of 5 July 1998 the deceased was showering alone in the shower block of 12 wing at the MMTC. Another inmate known to the deceased, Ronald Stuart (pseudonym), entered the showers and began to shower in the cubicle next to the deceased. About 5 minutes later the three accused entered the shower block. The shower block door was closed behind them. Stuart moved from the cubicles to the bath and began to dress. He heard a thud and saw the deceased fall front down to the floor. Buchanan dragged the deceased up against a wall and Thomas produced a "shiv" – a gaol term for a gaol-fashioned knife. It was a long sharp implement that looked like a screwdriver. He began to stab the deceased a number of times to the chest and to the head. Smith was standing near the door and appeared to be keeping a look out. Buchanan spoke to Stuart and said words to the effect of, "You didn't see anything". Stuart then left the shower block. A number of other prisoners entered the showers at this time. Stuart returned to the shower block a few minutes later to collect a pair of slippers he had left behind. He saw the deceased lying on his back in the bathtub section. He was convulsing and blood was coming from his mouth. Stuart again left the shower block and moved to the yard. He saw Buchanan in the yard. Buchanan apologised for having told Stuart earlier not to say anything. A short time later, prison guards were alerted to the deceased's body lying on the floor of the shower block. Following the murder, the inmates of 12-wing were locked in their cells for the following day and a half. Upon release from their cells, Stuart sought protection and was transferred to another gaol. In transit he provided a statement to police about the events he had witnessed in the shower block. Stuart was later shown a video containing the 194 prisoners present in 12-wing on the day of the murder. He selected the three accused as the three involved in the murder. Stuart's evidence is corroborated to an extent by forensic evidence of a large concentration of blood spots at the wall area where Stuart said the deceased was stabbed by Thomas. The Crown case against the three accused is one of joint criminal enterprise. It relies on the evidence of the informer witness, Stuart. Stuart provides direct evidence that it was Buchanan who dragged the deceased to the shower block wall and stood aside while Thomas stabbed him to the head and chest. Smith kept a lookout for anyone approaching. The Crown case is that the three accused embarked on a joint criminal enterprise to kill the deceased and that they are together criminally responsible for the act causing the death of Raymond Carrion with either an intention to kill or do grievous bodily harm or with a reckless indifference to human life. 5 This summary of the Crown case emerges from the statement of Ronald Stuart which was made on 8 July 1998, that is three days after Mr Carrion's death. In his statement Stuart said that he had known Buchanan since Goulburn in 1996 and that he had known a man named "Uncle", whom he subsequently ascertained was the accused Thomas, for "about two weeks, just around the gaol". He then proceeded to give descriptions of each of those men. He then described the "third guy", that is the accused Smith, as being "an aboriginal, five ten (5"10") tall, medium build, curly black hair that was short". He said that all three men were wearing prison greens and that he would recognise them if he saw them again. All three, he said, were aboriginal. 6 He had earlier said of the "third guy", that he didn't know his name "but I do know his face. I had been marking him earlier at football." This was a reference to a game which had taken place only a relatively short period of time before the incident about which he gave evidence, had occurred. 7 On 24 July 1998, Stuart was shown a video containing photographs of all 194 inmates who were housed in Wing 12 on the relevant day. Having viewed the video, Stuart recorded his observations on a piece of paper. He told the police officer who conducted the video identification process, what he had recorded on the paper. His explanation was in these terms: "Number two is Peter Buchanan. Number eight, his name I don't know. I have written beside number eight "Cocky" and not one hundred per cent sure because I think he looks a little bit different in the photo. I would know him face to face. Number sixteen is a guy by the name of "Uncle". I think his correct name is Trevor Thomas". He was asked why he had nominated those three men to which he replied "I believe they are the three in the shower at the time the incident occurred". It is common ground that the photos which he selected were of Buchanan, Smith and Thomas respectively. Having seen the photographs depicting the accused, and before he had seen all 194 photographs, Stuart said "That's all I want to see". Nevertheless he was told by the police officer that he was obliged to view all 194 photographs. He then proceeded to do so. Although the video machine malfunctioned during the course of the identification procedure, no point is taken, at least for present purposes, in respect of that matter. 8 Buchanan and Thomas were subsequently spoken to by police. Each declined to be interviewed. The police sought to interview the accused, Smith. He also declined to be formally interviewed. However he did provide a signed statement which he had dictated to his solicitor, who then read it out aloud. The statement is in the following terms: Yesterday on 5 July 1998 I was playing football on the oval from about 1.15 to 2.30 – 3.00 pm. I then went back to the yard and to my wing. I waited outside the wing. I checked the showers but the showers were full. I then went to the laundry to get changed. I removed my clothes and shoes, wrapped a towel around me, put my clothes in my carry bag and walked to the shower block. There's a dry corner to the left as you enter the shower block. I put my shoes down on the ground next to the wall and hung my carry bag off the gate lock. I then walked down past the shower cubicles to see if any were free. As I got to the end cubicle a bloke left the last cubicle so I went in that one. I had a shower for a while – maybe 5 to 10 minutes. I finished my shower. I walked down to where my clothes and shoes were. I saw blood on the floor in the dry area. Then I saw his feet and the rest of his body. I just grabbed my shoes which were only 2 –3 feet away from his feet. I saw blood all around my shoes. I also grabbed my bag which was hanging on the wall. I walked straight out into the laundry. I dried myself in the laundry. I put my clothes on. As I was putting my clothes in I heard an officer say "Clear the wing, everybody". I left and went to the yard. When I saw the bloke on the floor I didn't see him moving. I just wanted to get out. I didn't want to get involved. I was scared once I'd seen him lying there. 9 The Crown also relies upon one additional piece of evidence. Two prison officers who were on duty recall having a conversation with the accused, Smith in the period between about 2 pm and 2.15 pm on the day in question. (The deceased's body was located at about 2.10 pm). The accused requested a new pair of joggers. When asked why he needed them he said that "I washed them and they are wet". One of the officers observed that the accused was barefooted at the time and "it appeared that he had just washed his legs as his feet were very clean". 10 The Crown relies upon this evidence as supporting an inference that the accused had just washed blood off himself, after having discarded the shoes he was wearing at the time. Those circumstances are said to support the Crown case that he was involved in the killing of the deceased. 11 Mr Chicken, who appears on behalf of the accused, informed me that his objection could properly be determined upon the written material with which I have been provided. No oral evidence has been adduced. That written material consists of the statements of Stuart, the procedure whereby he made his purported identification of the accused, the hand written statement of the accused and statements of the prison officers who had the conversation with the accused to which I have just referred, together with various photographs. I have also viewed the video of the identification process. 12 The material has been supplemented with the transcript of the committal proceedings in which Stuart was cross-examined in some detail by each of the representatives who appeared on behalf of the three accused. Indeed the accused Smith relies upon answers given by the witness at the committal hearing in support of the present application. Needless to say, I have read the transcript of those proceedings and have paid due regard to it. It is conceded that whatever imperfections it may reveal about Stuart's evidence, at no stage does he resile from his identification of the accused. 13 At the committal hearing Stuart was asked about the remarks which he had made, having viewed the video, concerning his identification of the accused, Smith. He was asked why he had told police that he was not one hundred per cent sure about it. He replied "his hair was different in the photo. The bloke that I say matches to the bloke that was in the shower, his hair was different to the photo, so." He said that other than that he thought he was satisfied that he "had picked the right photo". 14 Part of the ERISP which was conducted with the accused on the day following the incident was played in order that his appearance at the time could be observed. I accept that his hair as depicted in the photograph could be described as an "afro-style haircut". I also accept that his hair, as displayed in the ERISP gives the appearance of being shorter and less bushy. In my view, it is at least open to a jury to accept that the accused's hair "was different in the photo". Similarly it is open to a jury to accept Stuart's explanation as to why he was unable, in those circumstances, to provide an identification to the point of complete certainty. 15 As I have said, the objection to the evidence which is taken is founded upon the operation of s 137 of the Evidence Act. It is conceded that the evidence is both relevant and probative and thus admissible. Nevertheless, it is submitted that its probative value is outweighed by the danger of unfair prejudice to the accused. That being so, it must be excluded. See R v Blick (2000) 111 A Crim R 326. In considering this application, I must have regard to the plain words of the section and of course to the authorities which guide its interpretation. I must, for example, perform the weighing exercise which is mandated by s 137. See Blick (supra). 16 In Festa v The Queen (2001) 208 CLR 593, Gleeson CJ said: Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is "weak", and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence. (at para 14) 17 In the same case McHugh J said: But the weakness of relevant evidence is not a ground for its exclusion . It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task. (at para 51) 18 The dangers associated with identification evidence are very well recognised. See Domican v The Queen (1992) 173 CLR 555. The accused points to the following features of the case as demonstrating, so it is submitted, that the purported identification evidence upon which the Crown relies is of such low probative value that it must be excluded. The starting point was said to be the fact that the identification at no stage reached the point of complete unqualified certainty. It was emphasised that that is a very significant consideration in a case which, but for the identification evidence, is bound to fail. 19 The accused also relied upon the following matters: (a) this was an identification of a stranger (it was accepted however that although the witness did not know the accused's name he did, according to the evidence, have some familiarity with him); (b) it was made by a prison informer; (c) it was made from photographs; (d) the description of the man which was given by the witness, whilst consistent with the appearance of the accused, was in very general terms only; (e) the witness was in a state of apprehension at the time for his own safety; (f) the witness had had only limited opportunity to make observations of the man whom he identified as the accused; (g) the identification was made 19 days after the incident; and (h) the photograph of the accused together with those of his co-accused were compressed into the first 16 photographs which were shown to the witness. 20 Mr Chicken relied upon those same matters as giving rise to what, he submitted, was the danger of unfair prejudice to the accused should the evidence be admitted. 21 Those factors when considered in combination were said to require the exclusion of the evidence. 22 I am prepared to accept that these matters, or at least a number of them, may well give rise to entirely valid criticisms of the cogency and reliability of the impugned evidence. The question however is whether the asserted frailties can be overcome by appropriate directions of the kind contemplated in Domican and by s 116 of the Evidence Act. In R v Tugaga (1994) 74 A Crim R 190, Hunt CJ at CL (with whom Gleeson CJ and Abadee J agreed) said: …in determining whether identification evidence should be left to the jury, the test is whether the quality of the evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate caution to the jury. ……. I would not put it forward as the only test ….. When considering this question it must be kept in mind that the evidence should not be considered in isolation; what may appear to be poor in quality when taken by itself may gain strength when considered in the context of the evidence as a whole: cf Chamberlain (No 2) (1984) 153 CLR 521 at 535. (at 196) 23 In Festa (supra) McHugh J said: In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence… (at para 65) 24 Mr Chicken realistically conceded that an identification which is expressed in qualified terms is not of itself a sufficient reason to require the exclusion of such evidence pursuant to s 137 of the Act. Indeed the definition of the expression "identification" in the Dictionary to the Evidence Act lends some support for that view. It is in the following terms: Identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed: or….. (emphasis added ) 25 Clearly however the probative value of identification evidence which is qualified may be less than that contained in an unqualified identification. See R v McDonald [2001] NSWCCA 363 (at para 24). 26 The accused placed reliance upon the decision of the High Court in Pitkin v The Queen (1995) 69 ALJR 612. Mr Chicken conceded however that the circumstances of the present case are significantly removed from those which prevailed in Pitkin. In that case the appellant had been convicted of one count of stealing and another count of allowing himself to be carried in a motor vehicle without the consent of the owner. The victim of the offence had her handbag stolen by a man who ran to, and was driven away, in a stolen vehicle. The Crown case was that the appellant was the thief. Both the victim and an eyewitness gave descriptions of the offender. There was no forensic evidence linking the appellant to the offence. The High Court observed that "the prosecution case against the appellant ultimately rested upon the fact that [the eyewitness] …identified three photographs of the appellant with the comment "This looks like the person" (at 614). 27 That being so, the Court concluded that: "[o]bviously, the fact that an accused person "looks like" a person who in fact committed a crime is, of itself , insufficient to sustain a conviction of that accused of that crime – Yet prima facie, the evidence led against the appellant went no further than that (at 614) (emphasis added). 28 The Court continued: " In the present case, the words spoken by [the eyewitness] in selecting the photographs did not, as a matter of literal meaning, amount to positive identification. They were plainly consistent with an intention by [her] to indicate nothing more than that the person depicted in the three photographs looked like the offender whom she had seen…… In the absence of any evidence by way of explanation or elucidation of [her] words and of any other evidence implicating the appellant , the convictions were necessarily unsafe and unsatisfactory" (at 615-616) (emphasis added) 29 Pitkin, it may be observed at once, was not as such concerned with the admissibility of evidence. The issue was whether or not at the appellate level, the identification evidence was sufficient to sustain the conviction. As Gleeson CJ said in the passage in Festa to which reference was made earlier, "[t]he totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility" (at para 14). 30 In the present case, the witness sought to explain or elucidate upon the reasons why the identification was somewhat qualified. In any event the identification made here was not inherently ambiguous in the way in which it had been in Pitkin. 31 Moreover, unlike in Pitkin, there was other evidence, upon which the Crown can rely in addition to the identification evidence. Upon his own admission, the accused was present at the very place where the victim met his death at a point in time which must have been extremely close to when death occurred. That is a important piece of circumstantial evidence and is capable of bolstering the Crown case. See R v Razzak [2004] NSWCCA 62. Similarly the evidence concerning the conversation in which the accused sought a fresh pair of shoes is also capable of bolstering the evidence in the Crown case, particularly as it is common ground that it took place after the discovery of the deceased's body. 32 Having carefully considered the competing submissions, and having examined the nature and quality of the purported identification evidence as best I can upon the material before me, together with the other evidence upon which the Crown relies, I can see no basis, pursuant to s 137 of the Act, upon which I should exclude it. Furthermore, in my view, appropriately crafted directions should ensure not only that the jury does not use the material in an impermissible fashion, but also that it is properly alerted to the inherent dangers that can arise from identification evidence. 33 In so concluding, I have not overlooked the significance which the evidence assumes in the Crown case. Nor have I overlooked the concerns which have been long expressed about the use of photo or picture identification. One, but only one, of the reasons which has given rise to those concerns is the fact that the accused has not been present at the time when the identification has been made and has thus not had the opportunity to test it. See for example R v Carusi (1997) 92 A Crim R 52. To that extent at least, such concerns may be allayed in cases, including the present, in which the identification process has been videotaped. 34 For completeness, I note that a similar application was made before Kirby J. In that trial the jury was discharged without verdict, but not before his Honour declined to exclude the evidence which is the subject of the present application. 35 Given the stage of the proceedings at which this decision has been made, I make a non-publication order in respect of it, my reasons for so concluding and the discussion which preceded it. ********** Last Modified: 09/06/2004 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.