District Court New South Wales Medium Neutral Citation: R v Mohammad Hadi Parivash [2014] NSWDC 62 Hearing dates: 19/5/2014 - 22/5/2014 Decision date: 22 May 2014 Jurisdiction: Criminal Before: Tupman DCJ Decision: Evidence Inadmissible - contrary to s 138 of the Evidence Act. Catchwords: CRIMINAL LAW - Commonwealth trial - Voir Dire on Admissibility of Identification Evidence - Illegally obtained Evidence - No Identification Parade offered - People Smuggling trial - Evidence excluded as illegally gathered contrary to s3ZO Crimes Act 1914 - AFP and Immigration institutional recklessness. Legislation Cited: Crimes Act 1914 - s 3ZO Evidence Act 1995 - s138 Migration Act 1958 - s 233A Category: Procedural and other rulings Parties: The Commonwealth Crown Mohammad Hadi Parivash Representation: Mr. Jeff Clarke (Counsel for DPP) Mr. David Evenden (Counsel for Defence) Ms. Yoshitho Alles (DPP Solicitor) Mr. Dylan Sanders (Solicitor) File Number(s): 2013/00321395 JUDGMENT 1HER HONOUR: The accused has objected to the admission of identification evidence sought to be led by the Crown at trial. There has been a voir dire conducted in relation to the admissibility of this evidence. The accused was arraigned on indictment dated 6 January 2014 on one charge, contrary to s 233A of the Migration Act, namely that between 9 April and 14 August 2012 in Java and elsewhere in Indonesia, he facilitated the bringing or coming to Australia of another person, namely Fawad Ahmed, who is a noncitizen, reckless as to whether the non-citizen had a lawful right to come to Australia. 2For the purposes of this voir dire I have not had access to any of the statements of witnesses to be called at any trial. The officer in charge, an Australian Federal Police officer, has given evidence and summarised what would be the evidence at trial, relevant to this voir dire at least. There is no dispute about this and as I understand it, the Crown's case against the accused relies almost entirely on the evidence of Mr Fawad Ahmed, who will give evidence he came on a boat from Indonesia to Australia arriving on 14 August 2012 as a person without a visa, therefore without a lawful right to come to Australia, but as I understand it, claiming asylum as a refugee and in a boat intercepted off Ashmore Reef. 3The evidence will be that from then on he was in Immigration detention, taken initially to Darwin with others from that boat. It would appear to be the case that in the course of some initial interviews, before his first official interview with Immigration, or at least at some stage not long after, he arrived on the boat, he indicated he had been assisted to undertake that journey by a people smuggler in Indonesia who he knew as Sadra. 4Before 18 April 2013 he was brought down to Sydney, still in Immigration detention. Between 18 and 19 April 2013 he engaged in an interview with Australian Federal Police officer Luke Pouldon at their headquarters in Goulburn Street Sydney. He made a formal statement to police, including confirming his previous information that he was assisted to come to Australia on a boat from Indonesia by a people smuggler who he knew as Sadra. He gave a description of that person, namely that he was a clean-shaven person with a baldhead. There may be other evidence of his description but they are the relevant details provided to me on this voir dire. I accept from the evidence of the officer in charge, that Mr Ahmed did not know this person by any other name at the time he gave his interview at least. During the interview in April he was shown a photo board of twelve people, one of whom was the accused in a photograph taken on 6 December 2012. 5The accused himself also came to Australia on a boat from Indonesia about a month later than Mr Ahmed, namely in September 2012, and was detained initially on Christmas Island as a person referred to in the Act as a noncitizen who had no lawful right to come to Australia. He had his first interview with Immigration officials on Christmas Island on 6 December 2012. During the course of this interview he was photographed, as is the normal case so far as I am aware. This photograph was the one of the accused which was one of the twelve photographs shown to Mr Ahmed on 18 April 2012 during his interview with the Australian Federal Police. The purpose of the photo board identification process was to obtain identification evidence, if possible, of the person who Mr Ahmed said was the people smuggler who assisted his coming to Australia and who he knew as Sadra. The accused's photograph was number 3 in that photo board. Mr Ahmed selected his photograph as being the people smuggler who had assisted him. There is no dispute photograph 3 is in fact a photograph of the accused taken by Immigration officials at Christmas Island on 6 December 2012. 6The Crown seeks to lead this evidence to identify the person referred to as a people smuggler by Mr Ahmed, known to him as Sadra, and to identify him as being this accused. As I understand the arguments, there is no other evidence in the Crown case, which is in any event, almost entirely dependent on the evidence of Mr Ahmed, to prove his guilt of the offence. In particular there is no evidence to establish he is in fact the person known as Sadra without the photo board identification evidence. 7The accused's solicitor argues against the admission of this evidence on two grounds, as I understand it. The first and most significant is that the identification evidence is illegally obtained and, pursuant to s 138 of the Evidence Act, ought not be admitted. The unlawfulness it is argued arises because of a failure to comply with the provisions of s 3ZO, of the Crimes Act 1914. 8The second ground argued is that the prejudicial value of the evidence outweighs the probative value. That is an argument pursuant to s 137 of the Evidence Act as I understand it, brought on the basis that the process itself was in effect contrary to other provisions of s 3ZO relevant to the timing of the photograph taken of the accused which was shown to the witness, and the composition of the other eleven photographs in the photo board. I will come to that in due course. 9Dealing with the first argument however, that is the illegality argument, s 3ZO appears in a Division of the Crimes Act 1914 entitled 'Arrest and Related Matters'. That section itself is entitled 'Identification by means of photographs'. Relevantly S3ZO (1) provides that: S3ZO (1)"If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, the constable investigating the offence must not show photographs or composite pictures or pictures of a similar kind to a witness for the purpose of establishing or obtaining evidence of the identity of the suspect unless: (a) The suspect has refused to take part in an identification parade or (aa) the suspect's appearance has changed significantly since the offence was committed or (b) The holding of an identification parade would be unfair to the suspect or unreasonable in the circumstances." 10There are other provisions of the section as I have said, also relied on by the accused, namely some portions of S3ZO (2) but primarily it is argued that conducting the picture identification procedure was contrary to S3(1) of this Act and thus the evidence was obtained in consequence of this illegality. 11As I have said the evidence was given on the voir dire by the AFP officer in charge of the case. I accept the following from his evidence: (1)At some stage before January 9, 2013 the AFP had received information from various asylum seekers in detention on Christmas Island that their passage to Australia had been facilitated by a people smuggler, who himself was in detention as an asylum seeker. It would appear that Mr Ahmed was not one of those providing that information at the time. (2)This information was taken seriously enough by the AFP that they made a request to the New South Wales police Suspect Identification Unit to prepare a photo board for the purpose of picture identification. That request was made on 21 January 2013 and the photo board was provided to the AFP on 7 February 2013. (3)The photo board thus compiled was of twelve people and one of those was the accused. The actual photo board shown to Mr Ahmed is exhibit 1 on this voir dire. (4)There were multiple photo boards provided to the AFP on 7 February 2013 with exactly the same twelve people in them, including the accused in each one. The eleven other people depicted, I accept, were compiled by New South Police Suspect Identification Unit from their own resources. More probably than not this was from arrest photos of other individuals. None of the twelve photos indicates that any of them was or had been in police custody. Almost without doubt, although the evidence is not absolute, but almost without doubt, none of the other eleven persons was a person suspected of people smuggling activities. They were all, I accept, selected by that New South Wales Police Unit in an attempt to provide photographs of eleven other people who had similar characteristics and appearances to the accused in circumstances where a photograph which ultimately was number 3 in that photo board had been provided to that unit by the AFP for that very purpose. It obviously also follows that the whole reason that the AFP obtained these photo boards was to show the potential witnesses for the purpose of establishing the identity of, or if possible, obtaining evidence of the identity of the people smuggler about whom the AFP had received information from asylum seekers before January 2013. It also follows from the fact that they sought and provided a photo of the accused to be included in these twelve photo boards that the AFP by at least January 2013 regarded it as likely that this accused was indeed at least one of the people smugglers referred to by these asylum seekers. (5)Photo number 3 in exhibit 1 was taken by and on behalf of immigration officials when the accused was formally interviewed by them on 6 December 2012, having arrived on an intercepted boat on 22 September 2012, apparently seeking asylum. On the evidence before me photo number 3 was the first photograph taken of him in Australia whilst he was on Christmas Island and taken as part of the interview undertaken by DIAC with all such people, known as the Irregular Maritime Arrival Entry interview. (6)There is no evidence about whether at the time that photograph was taken the AFP had any suspicion about his involvement in people smuggling generally or specifically in relation to this charge albeit, as I have found, at some stage not long after and certainly before 21 January 2013, they did. (7)The interview with Mr Ahmed on 18 April 2013 took place in Sydney. He was initially taken to Darwin after his arrival in August. There is no evidence about when he was brought to Sydney, other than it was sometime before 18 April 2013, but not specifically for the purposes of engaging in an interview with the AFP. He remained at all times in immigration detention, albeit it would appear, community detention from the time he arrived in Sydney. (8)The AFP officer in charge knew, as from at least 21 January 2013, that the accused was in immigration detention and by that stage at least, as I have said he was, on my finding, suspected by the AFP as being one of the people at least referred to as a people smuggler although there had been no positive identification of him as yet by any person. (9)In March 2013 the officer in charge, and more probably than not, other AFP officers, became aware that another asylum seeker had provided an indication that a people smuggler had offered to arrange a trip for him in Jakarta to get to Australia but that had not eventuated and he had been, in his terms, "ripped off". That person according to this asylum seeker was known to him as Sadra and the information given to the AFP no later than March 2013 from this person was that the person, known to him as Sadra was in fact this accused. The officer agreed therefore that by March 2013 and certainly by the time of the interview on 18 April 2013, the AFP had at least one statement from an asylum seeker that a person who had purported to arrange a boat trip for them from Indonesia to Australia was named Sadra and that Sadra was in fact this accused. He also said that by the time the interview with Mr Ahmed was conducted, on the basis of this accumulation of information and material, that he had reasonable grounds to believe that the accused was in fact the person referred to by Mr Ahmed as Sadra. (10)The AFP officer in charge did not make any attempt to locate the accused before the photo board was shown to Mr Ahmed for the purposes of identifying the accused. He agreed that he did not himself turn his mind to approaching him to offer an identification parade before showing the photo board to Mr Ahmed. He gave further evidence that he understood the importance of physical identification parades in identifying offenders. He agreed that normally if there is to be an attempt to identify a suspect then the first step should be to offer the suspect involvement in an identification parade. I accept from the combination of his evidence that in fact the officer in charge never turned his mind to doing so in this case. (11)I accept that in large part his reason for not doing so was because of what he perceived to be difficulties in conducting such an identification parade when people in Immigration detention are spread throughout the country and are regularly moved. He accepted, it seems to me, that there was some sort of policy in place as between the AFP and the Immigration Department that it would be impractical to organise identification parades in such circumstances. But there is no evidence that apart from knowing or believing that this was a policy, he ever turned his mind to whether or not it was in fact difficult or easy in this particular case, and in any event did not offer the accused the chance to participate in such an identification parade. 12From this combination of facts I accept that as at 18 April 2013 the accused was in fact a suspect in relation to people smuggling involving Mr Ahmed, the offence with which he is charged. The accused was not in police custody at the time but I accept being a person who was in fact in Immigration detention at the time, somewhere in Australia, he was available to take part in an identification parade. He was never offered a chance to do so and thus there is no evidence that he refused to take part in such an identification parade. 13His appearance had in fact, more probably than not, changed from the date of the offence to the date that any such parade would be conducted, if indeed Mr Ahmed's original description of him is accurate. That is his original description of him being a clean shaven person with a shaved or bald head, is clearly not how the accused appeared in photograph 3. But this, in my view, would not enliven s 3ZO(1)(aa) because it was the photograph of the altered appearance that was shown in the photo board. That particular subsection in my view is not relevant in relation to this voir dire. 14Whether or not it was then necessary for the officers to offer and, if accepted, conduct an identification parade before using picture identification evidence then depends on the provisions of s 3ZO(1)(b), namely that it is not necessary to do so if it would be either unfair to the suspect or unreasonable in the circumstances. There is no suggestion or evidence on this voir dire that it would have been unfair to hold an identification parade. 15The question then becomes one of reasonableness. Section 3ZO(1A) sets out some matters to be taken into account in determining the issue of reasonableness. The Crown has argued that subs (c) applies in that it was impractical to hold an identification parade in the circumstances. 16In circumstances where I have found that the accused was a suspect and that photographs were shown to a witness to establish his identity, contrary to s 3ZO(1), the onus it seems to me is on the Crown to establish, on the facts of this case, that it would have been unfair or unreasonable to do so, and the only matter argued in this case has been that it would have been impractical to do so. 17To prove this the Crown relies on the evidence of the officer in charge. He said in his opinion it was impractical to do so. I do not accept his opinion. 18The reason for that opinion it seems to me was a belief, more probably than not expressed in the witness box with the benefit of hindsight, but nonetheless a belief, that there was a policy or understanding amongst the AFP at the time that because those in Immigration detention were scattered around Australia and often moved around by the Department of Immigration, it would be impossible to organise a potential witness and a suspect in the same city so that there could be an identification parade including the suspect. The difficulty with a submission based on that evidence, it seems to me, is that the officer did not in this case in fact check the whereabouts of either Mr Ahmed or the accused at the time. His evidence was that the Department of Immigration records were often out of date and wrong and it seemed to me that he was saying that he was of the view, at least when he gave his evidence in the witness box, that a request to Immigration would not necessarily have revealed accurate information about the whereabouts of either of them. 19What must be observed first, it seems to me, is that if this is an accurate statement of fact then it is both disappointing and concerning. Each of these two people was in Australia having been taken into detention from boats which entered Australia containing people who had no lawful right to come to Australia, but seeking asylum. It is not illegal to seek asylum in a country which is a signatory to the Refugee Convention, as is Australia. Whether or not they were genuine asylum seekers or not is another matter. However that is the basis on which they were taken into the custody of the Department Immigration. 20There is evidence that the normal practice was followed in relation to each of them, namely that a nominal roll was created when they were first taken off the boats so that the names that they ascribed themselves were known. A little later, in my view too much later, but nonetheless a little later, about six to eight weeks later, each of them was interviewed formally and photographed for the first time and in each case they spent time, either one in Christmas Island, the other I think the evidence is silent about. But having had that administrative process undertaken, each of them was moved elsewhere. Each of them was then moved to Darwin and as it transpires Mr Ahmed moved to Sydney, in community detention, some time before 18 April 2013. As it transpires the accused too was in Immigration detention, moved there at some stage from Darwin to Sydney at Villawood Detention Sydney in May 2013 and possibly was in Sydney in that same detention centre at the time the interview with Mr Ahmed was conducted. The officer did not know any of these details because neither he nor anyone else in the AFP had made any enquiries to establish the whereabouts of the accused to offer him an identification parade before 18 April 2013. 21If the officer's statement of belief about potential inaccuracy of Immigration Department records is a statement of fact then, as I have said, it is both disappointing and concerning that people who are in the detention of the Department of Immigration, in the name of the Government of Australia, cannot be sufficiently organised so that their whereabouts are known if that is requested by the AFP or other agencies whose task it is to identify crime. It may be that amongst them are people smugglers. It may even be that amongst them are terrorists. It almost certainly is that the bulk of them are genuine asylum seekers based on the history of such people in this country. 22The fact that they are taken into custody, their movements are to be controlled thereafter by the Immigration Department, but that there is a belief abroad that the Department cannot provide information on any one day about their whereabouts, if it is true, is a matter of some concern. Nonetheless I accept that it was at least, at the time he gave his evidence, the view of the officer in charge of this case, even though he was aware of the importance of at least offering an identification parade to a suspect if identify was sought to be established. 23Even though in fact at least by January 2013 the AFP believed that this accused was a people smuggler being spoken of by others at Christmas Island, even though they knew that he was known to Mr Ahmed by the name of Sadra, even though they knew that by March 2013 that another asylum seeker named his potential people smuggler as Sadra and provided information that he knew that Sadra was in fact this accused, nonetheless this officer did not make any inquiries to locate the accused so that an identification parade could be held and in fact he did not consider doing so at all. 24As I said I accept, more probably than not, his reason for not doing so was because of an institutional belief that, in the vernacular, it was too hard to do so because there were so many boats arriving to the north of Australia at the time and there was an institutional belief within the AFP that the Immigration Department was over burdened with work and what is more, those in immigration detention were moved around frequently by the Department and could be in any part of Australia at any given time. 25However that was just an institutional belief and in fact he did not turn his mind at all to the possibility of organising an ID parade, even though he knew that they were important and more probably than not, on his evidence, was familiar with the provisions of s 3ZO or at least the principles contained in that section. As a result it was never considered but nonetheless some weeks were spent organising the picture identification parade and it went ahead without any attempt being made to offer the accused an opportunity to participate in that parade. 26That is the only evidence there is before me to establish whether or not it was unreasonable to hold an identification parade and in summary I accept that what the evidence actually establishes is that no one in the AFP actually thought about doing so and no one ever made an inquiry about the whereabouts of the accused before the picture ID process was conducted on 18 April 2013. 27They did not speak to the accused until May or June 2013 and even then, only because he contacted them from Villawood Detention Centre and asked to see them. AFP officers went to Villawood and in accordance with procedure gave him the opportunity to seek legal advice before talking to them. He did so and, as I understand the evidence, on legal advice declined to speak to them further. Even at that stage they did not offer him the opportunity to participate in an identification parade which could have been done, albeit that any evidence obtained as a result may have been subject to later forensic challenge because Mr Ahmed had already identified a photo of the accused in the picture identification process. 28I do not accept that it has been established that it was unreasonable to hold an identification parade on the basis of that evidence. The provisions of s 3ZO appear to be mandatory and thus AFP officers must not show photographs of a suspect to a witness for the purpose of establishing the identity of a suspect unless there has been identity parade or, in the way that this case has unfolded, it was unfair or unreasonable to hold one. That has not been established and as such the evidence of identity was obtained in contravention of an Australian law. 29Section 138 of the Evidence Act then provides that in such a circumstance, the evidence should not be admitted unless the desirability of admitting it outweighs the undesirability of doing so. Matters which may be taken into account in conducting this balancing exercise are set out in S138 (3). 30Addressing those, and other issues, I accept that the probative value of the evidence is potentially high and that it is important evidence in the trial. The probative value is potentially high but is subject to matters which I will address briefly in relation to the 137 argument raised on behalf of the accused. That is the composition of the photo board and other matters about which it is argued the prejudicial effect of the evidence outweighs its probative value. But at least on a prima facie basis it is potentially high. 31In assessing the nature of the evidence, which is another matter to be taken into account, I accept that clearly enough it is identification evidence. Identification evidence is that sort of evidence treated with some circumspection by courts and always accompanied by fairly detailed directions and warnings about the potential frailty of identification evidence. It is thus evidence recognised in law as having the potential to be frail or with difficulties. 32The subject matter of the trial is serious, in that it is an allegation that the accused, as a people smuggler for money, facilitated Mr Ahmed's entry to Australia, knowing that he had no lawful right to be here. However the subject matter of the proceedings is not of the most serious type involving such things as murder, loss of life, serious bodily harm, rape or the like. 33The contravention of law in my view is serious. There is a reason based in the experience of courts for strict compliance with laws and rules in relation to the process of identification. As juries must be directed, it is the experience of courts over the years, for a variety of reasons, people are sometimes wrongly convicted on the basis of identification which later turns out to be incorrect. 34It is also the case that two dimensional, head and shoulder photographic evidence has always been regarded as potentially less reliable than the identification of a person in the flesh, which is no doubt the reason for the provisions of s 3ZO and similar provisions in the Evidence Act in relation to the admission of picture identification evidence where a person is in custody. 35Further, this contravention was not just an oversight in relation to a minor issue. It was an institutional error in relation to evidence gathering in circumstances where the AFP officer acknowledged the importance of an identification parade, and thus where it would appear that a lesser standard was being applied, on an institutional basis, when gathering evidence in relation to offences potentially committed under the Migration Act in relation to asylum seekers, than in relation to suspects for other offences. That itself is a matter of even greater concern because all people in immigration detention, whether they are suspected people smugglers or those seeking asylum, have very limited rights compared to others in the community. They have no control over the place to which they may be moved. Their access to others is limited and controlled by the Immigration Department. They are, to that extent, in a more vulnerable position than those in the Australian community generally and with limited opportunities. As such, laws designed to protect the rights of a person who is suspected of an offence and likely to be charged with a criminal offence, ought be complied with strictly when dealing with people in that vulnerable position. 36The contravention of law here was not done deliberately by the officerincharge or any of the other AFP officers, but in my view, even though knowing the importance of identification parades, they simply did not ever seek to find out where the accused was and whether or not he was prepared to participate in a parade. In my view, in those circumstances that amounts to institutional recklessness in relation to this particular law. 37On the evidence before me I accept that it would not have been difficult to obtain the evidence of identification without contravening the law. Either, they could have conducted an identification parade, and there is nothing in the evidence to suggest that the accused and Mr Ahmed could not have been brought together in the same city without significant trouble, and in fact more probably than not they were in fact both in Sydney as at 18 April 2013. What is more, however, they could have found the accused, who was in immigration detention at the time somewhere in Australia, and offered him the opportunity of engaging in an identification parade. If he had declined, then they could gone ahead and conducted the picture identification process and obtained this evidence without any contravention of the law. 38It is a balancing exercise and minds may differ about the importance of the various elements to take into account. I have concluded on the assessment of the matters to which I have referred and generally, that it is important that laws be complied with strictly when those who to be charged are themselves under the control of the same State which seeks to prosecute them. This was a reckless but serious contravention of an important law in relation to the sort of evidence which the Courts have traditionally regarded as potentially unreliable. Even though it is of major importance in the Crown's case and even though it would appear to have reasonable probative value, nonetheless I am of the view that strict compliance with the law in this case outweighs those factors. I thus decline to admit the evidence sought to be led by the Crown. 39I will not deal with the challenge to the admissibility of the evidence on the basis that its prejudicial value would outweigh its probative value. It seems to me that that argument overlaps with an assessment of the probative value of the evidence as well. It would appear to be based on two grounds. First, that it was a photo taken of the accused before he became a suspect, which of itself is contrary to a particular provision of 3ZO(2). That provision applies, if practical. That would ultimately be a matter for consideration, but not, of itself, one that would dictate the admissibility of the evidence. 40The second major plank of the argument, as I understand it, is that the photo board is comprised of people who either do not match the description given by the witness, which applies to all of them, or do not sufficiently match the actual appearance of the accused as he apparently appeared in the photograph, which is number 3. 41Those matters, it seems to me, if the matter ever got to trial, would be matters to go before the jury to be assessed in accordance with all of the other matters in an identification case subject to directions to be given by a judge. If I were required to rule on that issue, I would not find that the prejudicial value of that evidence, as it now appears before me on voir dire, would outweigh the probative value of that evidence and would not, on that basis alone, reject the admissibility of the evidence. But it seems to me that that is not necessary for me to make a final determination of that matter given the finding that I have otherwise made in relation to the rejection of the evidence as it is contrary to s 138 of the Evidence Act. 42The formal order is I decline to admit the identification evidence, as it is contrary to s 138 of the Evidence Act. ********** 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. Decision last updated: 05 June 2014