District Court New South Wales Medium Neutral Citation: R v Chandler [2014] NSWDC 206 Hearing dates: 25/08/2014 Decision date: 25 August 2014 Jurisdiction: Criminal Before: S Norrish QC Decision: The evidence of the identification witness, the recording of the identification parade by photographs on a computer and the conclusion reached by the witness such as expressed in his statement are not permitted into evidence. Catchwords: CRIMINAL - interlocutory application, identification - computer photograph, circumstantial evidence, identification - Photo-Trac operating procedures. Legislation Cited: Evidence Act 1995 Crimes (Forensic Procedures) Act 2000 Category: Interlocutory applications Parties: Director of Public Prosecutions Benjamin Chandler - Accused Representation: Ms S Herbert - Director of Public Prosecutions Dr J Berwick - Accused Director of Public Prosecutions John R De Mattia & Co - Accused File Number(s): 2012/00289299 Judgment Application by Crown to adduce oral testimony of Complainant as to the showing of photographs of suspects to a witness and recording thereof. 1HIS HONOUR: Objection was taken to the admissibility of evidence of the showing to the victim of the robbery committed upon him in April 2009 a photograph 'identification' process via a computer upon which the witness was invited to comment. My understanding is that the way the Crown would seek to adduce this evidence is by recalling the complainant; presumably asking him questions about the fact that he was involved in such a process and that he made comments about the process and the particular photographs that were shown to him as recorded in the video recording of the exercise. This recording I have seen. 2I do not propose to revisit the detail of what he said in the video which ran for just over 20 minutes, but the witness's statement that was provided as part of the material upon which the Crown relied, given on 15 July 2013 (the day of the attempted photographic identification), at para 7 states: "During the viewing of the photo array I did not select any males as the person of interest. I did take an extra long look toward the photographs 3 and 5 as they bared (sic) the most resemblance. I would lean more toward photograph 5 being the suspect." 3The alleged offence being committed on 5 April 2009 and the process of photographic identification occurring on 15 July 2013, is a period, on my calculation, four years three months and ten days after the event. 4There are a number of factual issues that arise from the material tendered to the Court that need at this stage to be noted: The video of the attempted identification by the witness has been tendered in court, but to assist, in fact at my request, a transcript has been taken out, the reliability of which I entrust to the parties to have checked. Also, the computer program's manipulation or use was produced as a DVD/CD to check the number of times the complainant reviewed the photo array. 5Although some of the things said by the victim in the course of the 'identification' process are not clearly heard when viewing the video, it is clearly heard at an early stage the following conversation of the process, after some introductory remarks are being made by the Constable who gave evidence today, "CONSTABLE WOOD: Thank you very much, and Guyan's here for the purpose of looking at a line-up. So we will commence that now; so just press start for me? GUYAN: So I can go back? CONSTABLE WOOD: You go through it all at - to start with ... and then at the end of it if you wish to go back and have a look again you can go back again; over them again. But if you see the guy who you think is that guy, you will press 'select' otherwise just press 'next'. GUYAN: Sure. ... So that first one I'm not sure. CONSTABLE WOOD Q. That's fine, so if you're not sure just press 'next'. A. Yes, can I go back? Q. One sec, just for a ... A. If - if they're available and you select them can you narrow it down the, the search? Q. It's been narrowed down to these pictures. A. Yeah - for me; for me, because some of them definitely are not. Q. That's fine. So you have seen ones that - do you - have you seen one that you know (?) -- A. Three years, my memory's not the best ... but there is about three that may be ... Would you please confirm you wish to view the photos again, yes. So there you go, YOU CAN DO IT AGAIN (emphasis added)" 6I point to that early part of what is recorded in the transcript to note what can be clearly heard is the witness saying that its over three years - in fact over four years- since the relevant events, his memory is not "the best". Further he says at a later stage, "Even on the night...if you'd show me this because I got bashed". 7Thus, we have a considerable delay between the relevant events and the attempt at a photographic identification where the identifying witness is complaining about a lack of memory by reason of the effluxion of time, which is a fair enough comment. He suggests, although either interrupted or not finishing his sentence, that even on the night he may have had some difficulty in the context of what he described as the relevant events. 8The evidence of the witness in the trial before the jury is that he saw the person who attacked him at the boot of his car on one occasion and then subsequently got a "glimpse" of his attacker as he was being assaulted in the middle of the road. 9The witness gave a description in general terms of the person who he said had assaulted him. The description he gave in the trial was the subject of cross-examination in this trial, drawing to his attention some inconsistency between the account he gave in this Court and the account he gave when he first had an opportunity, on 13 April 2009, to describe the person who he said assaulted him. 10His evidence to describe the attacker was: "Shorter than me, probably a few inches shorter ... I am six foot ... a few inches shorter, say 4 - 5 inches shorter, strongly built, wide shoulders, extremely strong, Caucasian or fair skinned, probably around 40 years or older, ... very short hair or his head was shaven ... some stubble." (p50) 11He also said by way of introduction to the description: "My recollection is very sketchy, because its been a long time and it was a very fast moving event and I was receiving numerous blows to my head. Now I did get a close look at him when he was at the boot of my car ... (p49) ... He was concealing his head because he was wearing a hood ... enough to conceal his head. The hood came off during the struggle on the ground later on" (p50). 12He said he got a "second glimpse" of the person when on the ground (p48). In his statement to police on 13 April 2009 he described his attacker as "male, probably about 45 - 50 years old" ... "may be older" (p62). 13I accept for the purposes of considering the admissibility of this evidence, that the police officer who conducted the process was "independent from the investigation". I am prepared to accept that he did not know who the particular person thought to be the suspect by the police was amongst the photographs that were shown to the witness. 14However, in relation to the array shown to the witness there are several features of the matter that further need to be referred to from the evidence available to the Court. I have available to me a document dated September 2008 called the "Operational Information Agency" in relation to "PhotoTrac Suspect Identification System Standard Operating Procedures". This is an extensive document dealing with a range of situations relating to the use of photographs and other means of identification. In relation to some of the aspects of the 'Operating Procedures' pertinent to the matter with which I am concerned, the Standard Operating Procedures state, at p 19: "When creating a photo line-up you must ensure that you adhere to the Crimes (Forensic Procedures) Act 2000 and Evidence Act 1995 (115)". The 115 is a reference I take it to s 115 of the Act. In the course of submissions nobody has particularly drawn my attention to that provision in the context of the witness not having made an "identification". 15The Procedures also state in the next paragraph: "It is recommended that a photo line-up contain a minimum of 20 photographs of persons wherever possible. The system will allow you to select smaller line-ups of 18, 16, 14 and 12 photographs in the event that you cannot source enough similar photographs to the witness description of the suspect. But you must be aware that the use of smaller line-ups may be questioned in Court." (emphasis added). 16The requirement of a minimum of 20 photographs is referred to in other documents tendered as procedural guidelines or 'best practice' for photographic identification. 17In this particular matter the photographic line-up comprised 12 photographs. There is no evidence produced to explain why that number was settled upon as an appropriate number of photographs. I also point out, as was clarified by the Crown when I questioned her upon the matter, the accused is the only one of the 12 people wearing a "forensic suit", which is self-evident to anyone with any sort of understanding of that type of garment. It is certainly self-evident in my view on a view of the photographs of the other persons. The other 11 persons are clearly wearing civilian clothing. 18A further matter to be pointed out from the evidence that was presented is the fact that although the video recording shows the witness going through the photographs and, to be fairly said, concentrating largely on photographs 3 and 5 at various times, he goes through the array on at least 19 occasions. 19The Procedures to which I earlier referred under the heading of "Witness Presentation Review" at p 28 state: "It should be borne in mind that the best evidence results from identification obtained in the first run through. To avoid decreasing the value of the identification process in Court a witness should only view a photo line-up or photo book once. The more times the photo line-up or photo book is reviewed the less reliable the evidence will appear in Court". 20The paragraph goes on to state: "If the (witness) does request that the presentation be replayed a second time after a selection has been made, then the ... officer should confirm that the witness wishes to take this action and initiate a second viewing by using the hidden keyboard control (ALT-R). Any previously selected images will be highlighted during the second viewing. After the replay the witness will again be prompted by the system to confirm any selection made." 21This brings me to further aspects of the evidence of this matter. 22Constable Wood has provided a statement for this Court which is dated 25 August 2014, today's date. In that statement he states that he had no previous dealings with the identifying witness. He escorted the victim to the office, sat him down at an office computer to commence a photo line-up identification viewing. He says in his statement: "I explained to Guyan that the photo line-up viewing would consist of 12 images of people who or may not be connected to the investigation and he could view them accordingly. I instructed him on how to use the mouse and keyboard to operate and participate in the photo line-up viewing. I also informed him that this entire photo line-up was going to be recorded." 23He then commenced the process. In relation to the transcript of that process there is recorded in the transcript, taken from the video of course, what is said by the officer and what is said by the witness in response. There is nothing in the video recording indicating that the witness had previously told the identifying witness that the photo line-up viewing would consist of 12 images of persons who may or may not be connected to the investigation and that he could view them accordingly. Although there are other things said in the course of the video recording which are recorded in the transcript. It emerged in the evidence of Constable Wood in the course of the voir dire examination that the statement of the complainant, of 13 July 2013, was in fact taken from some form of pro forma document which is available on a computer system that provides a package of documents, or a folder of documents, pertinent to the photograph identification process. 24One of the documents in that folder or package which clearly was available to the witness on his own version of events was the Form that has the heading "Computer Photograph Identification Form Witness View". This is a form commonly used in the course of identification of witnesses by the use of for example photographs on a computer. The relevant 'Witness View Form' is attached to this judgment and is part of exhibit 10 in these proceedings which comprises most of the relevant documents tendered by the prosecution. 25The document has a series of questions, which appear in the first three pages, in which the officer conducting the interview goes through a series of matters, addressing them to the identifying witness before the process has even begun. Including statements such as: "I want you to clearly understand that the persons depicted in the photographs have not necessarily been convicted of a criminal offence. I want you to clearly understand that the persons depicted in the photographs are not necessarily persons in custody. I want you to clearly understand that the person or persons who allegedly committed the offence may or may not be depicted in the photographs. I want you to clearly understand you're in no way obliged to select anyone. I want you to look at all the photographs before you make any comment." 26There are various instructions as to what is to be done in the case of considering or pondering the importance of a particular photograph. Amongst the instructions before the actual process commences is the instruction, "If you recognise anyone you believe to be involved in this matter please click on the image displayed on the screen or the 'select' button for the person". 27It is quite clear when one reads the Form, and then has regard to the evidence of the Constable, that he understood that he was not to interrupt the identifying witness in the course of the consideration of the photographic array, nor suggest the way he should treat any particular photographs. 28The Form itself shows after the instructions have been given about the computer presentation, particular questions are to be asked of the witness after the witness has had the opportunity of viewing the photographs uninterrupted. It may be said in part but only in part, some of the instructions that the police officer was required to give the identifying witness were in fact recorded on the video. Although certainly nowhere near the complete series of instructions that are recommended in the Form to which the police officer had access. However, such instruction as was given and that is recorded in the video recording of the process occurs in the course of the witness viewing the particular photographs that can be seen. 29With regard to comments made in relation to what is shown during this process and the reaction of the witness to what is being shown in the photographs, some of the comments made by the police officer include him saying at Q.26 (of the transcript of the video photo identification), after the witness has said that one of the person's features "match up" or that another person "could have been him too": "Q. In the statement you can narrow it down to say you thought it could have been three or five? A. Yeah, that's what I... Q. Picture three or five? A. That's - that's what I had... Q. Depicting a person that looked very similar but I cannot be sure ... so that's what you can say?". 30Obviously, those comments by the police witness were comments made in the course of the process which had not yet completed. There are other comments made by the police officer, in response admittedly to what the victim said. For example, at one point the victim said: "A. Three and five are the ones that narrow it down, I'm more inclined to .... Go with five I think, I think it's five. Q. Right, if you think it's five you can press 'select' if you think it's three you can press 'select' so it's up to you. A. If I narrowed it down to two is that still of any use or has it got to be one? Q. I can't make a determination on that for a court level but if you were to pick, say, two and say "These two are the most similar or the person" then it would still say to me, or a jury member that you're not quite sure which one's which, so it's up to you(?) A. I think it's this guy [which the Court takes to be a reference to number 5]. Q. Are you sure though? A. No, it's three years. Q. Is that the guy who looks most like the guy who attacked you? A. [No audible response.] Q. See, I can't tell you what to choose" etc (emphasis added) 31The comments of the police officer involve impermissible qualitative analysis of what he is being told by the identifying witness. 32In other words what we have here, in the course of the process leading ultimately to the conclusion summarised in para 7 of the victim's statement, is the police officer actively involving himself in the process, giving instruction to the witness, not in accord in anyway with any instruction that appears to be contained within the Witness View Form and doing so in the middle of the process while the witness is trying to make up his mind. In the course of this, as I said earlier, the witness had multiple opportunities to see the photographs. At one stage, perhaps after the eighth viewing, perhaps after the tenth viewing, nobody at the bar table seems to have paid particular attention to the sequence of events, the victim cut out a hole in a piece of paper and holding it up against the face shown on the screen to better concentrate on the face of the person shown on the screen. 33Although the police officer's evidence was a brief in this Court it is clear that several things emerged. He was aware of the Witness View Form but he did not use it. He did not attempt to reflect upon what is required within that Form at a range of levels. He understood from the Form itself that he was not to involve himself in the course of the process of the witness viewing the photographs, but obviously he did so in a range of ways, albeit interspersed with a warning such as, "you have to be sure of the person you identify", and the like. 34It is not without significance in the course of assessing this matter that the evidence the subject of objection is not identification evidence. The evidence of the witness Mr Thambugala is evidence of a circumstantial character relied up by the Crown as evidence from the witness of choosing a photograph of the accused, in company with another person, as reflecting someone "similar" to the appearance of the person who assaulted him in the manner that he described. The extent of that similarly has not been defined save for the comments of the police officer. 35The process that the police officer and the witness undertook on that day was to my mind fatally flawed from the outset in a number of respects. Firstly, asking a witness, who was endeavouring to identify a stranger, from photographs over four years after the event, was a process tinged with the prospect of qualitative failure. Secondly, the witness himself protested that his memory was "bad" even before he had had a chance to fully digest all the photographs. Further, the answers of the witness to some of the observations made by the police officer reflect at least a partial misunderstanding of what was required of him, which could have been addressed by the police officer taking the trouble to take him through the Form which has been specifically designed by the Commissioner of Police, or his delegates, to overcome the difficulties that may arise from photographic identification. 36The process was further flawed by the fact that the accused is the only person wearing a forensic jumpsuit, or clothing. This is self-evidently shown in the photograph, although we do not have any evidence one way or the other as to whether the identifying witness understood this. It certainly is clear from the photograph that he is the only person not wearing street clothes. We have the further problem of only 12 photographs as opposed to 20 with no explanation from anybody as to why such a limited array was available at the time. We have the quantitative comments being made by the police officer in the course of the process unfolding of words such as "very similar" and the like, not repeating words that were said by the identification witness, but making evaluative interpretations of what he believed had been said to him by the victim. 37The question is not whether the evidence sought to be relied upon by the prosecution is relevant, nor is it a question of whether the evidence is inadmissible by reason of the operation of s 115 of the Evidence Act, because it is not evidence of identification. What the Court is concerned with, for the purposes of determining the admissibility of the evidence, is the operation of s 137 of the Act which provides in relation to the admissibility of evidence in criminal proceedings that "a court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused." 38In my view of the matter, in the context of the assessment of probative value, the evidence could not rationally affect the assessment of the probability of the existence of a fact in issue taking into account the following features: the lack of prior familiarity with a subject, the particular characteristics of the photograph of the accused that is shown in the photo array showing nothing in the character of his face of any particular significance (his haircut and the like may have been relevant matters but there is no identifying scar or anything like that), the lapse of time between the events giving rise to the charge on the indictment and the identification process, the description that the witness gave to police on 13 April 2009 and then the somewhat changed description that the witness volunteered in the course of his evidence in this trial, the self identified limiting circumstances of opportunity to make observations and the procedures adopted in respect of the photographic identification. 39This last matter includes the failure to comply with what I would suggest are minimum standards to ensure the integrity of the process, the failure to properly identify for the witness before the photographic identification what the process was about and tell him what he could or could not do. 40Further, in this regard the effect upon the integrity of this process by the failure of the police officer to comply with a requirement that he understood that he was not to make any comment during the course of the process, the number of times that the witness went through the array of photographs with a consequent diminution upon the reliability of what was being observed in the context of what the Procedures themselves set out and the failure to record in conversations that are said to have taken place before the photographic identification occurred. I note in that regard, the police officer, as I pointed out earlier, said that he explained to Mr Guyan Thambugala that "the photo line-up would consist of 12 images of person who may or may not be connected to the investigation and you can view them accordingly". That expression does not find its way into the video recording as having been said to the witness. There is nothing in the video recording where the police officer put on the record anything that had been said before the video equipment had been turned on. 41I also take into account the state of mind of the witness expressed by him as being a concern about his memory having regard to the passing of time. It is to my mind a situation where, frankly, the evidence that the Crown seeks to rely upon, being as it is not evidence of identification but evidence of a circumstantial character, has almost no probative value whatsoever. 42The risk of unfair prejudice to the accused outweighs the probative value because, amongst other things, if the evidence was to be given by the victim and the officer in the context of what we know as to the failings of the police, and the conduct of the photograph line-up, the problems with the manner of the identification process and the difficulties with the failure to properly instruct the identifying witness before the process, could not in my view be cured by appropriate warning. In the way in which the dangers of relying upon identification evidence in other circumstances might more readily identified. Such as, for example, the warnings that the 'Bench Book' might require a Judge to give, if in fact there was "evidence of identification" relied upon by the Crown. The warnings required to be given would render the evidence useless to the Crown because it is so tainted. 43With respect to the police officer this process was fatally flawed from the moment that he failed to do what is quite evident he is required to do. That is to take the witness, before any photographic identification occurred, through a range of questions obviously designed to ensure that before the process the witness understood what is required of him or her, thus necessitating no interference; no comment; no qualification; no observation; no hint of suggestion or encouragement from the police officer. Unless, ultimately, the witness has recorded something upon the computer program which then permits the series of questions to be asked that appear at p 4 and 5 of the Witness View Form. 44In these circumstances, I will not permit the evidence the subject of objection. ********** 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: 08 December 2014