R v Kaine Dargan [2015] NSWDC 121

District Court New South Wales

Medium Neutral Citation: R v Kaine Dargan [2015] NSWDC 121 Hearing dates: 16 June 2015 and 17 June 2015 Date of orders: 17 June 2015 Decision date: 17 June 2015 Jurisdiction: Criminal Before: Acting Judge Phegan Decision: Inadmissible evidence before jury. Jury discharged. Catchwords: Identification evidence - picture of accused. Legislation Cited: Evidence Act 1995, s115 (4)(b) Cases Cited: R v Nelson [1999] NSWCCA 221 Texts Cited: Australian Law Reform Commission Report of Uniform Evidence Law (ALRC 102). Category: Procedural and other rulings Parties: Regina (Crown) Kaine Dargan (Accused) Representation: Crown Advocate: Mr R. Kotsis Accused: Mr D. Stewart of Counsel File Number(s): 2013/00390176

Judgment 1. This is a revised judgment. During two days of argument, rulings were made and a decision delivered. This judgment consolidates those rulings and the decision based on the transcript. 2. The accused pleaded not guilty to five counts on the indictment including : entering a dwelling house with intent to commit a serious indictable offence, namely, larceny; robbery in company; reckless damage to property; and two counts of assault occasioning actual bodily harm. 3. The trial of the accused before a jury commenced on Monday 15 June 2015, following a voir dire and lengthy pre-trial argument between 2 and 12 June 2015. During that time, a co-accused in the original indictment (Mahmoud Ellawn) entered a guilty plea on a number of counts and was withdrawn from the proceedings. A fresh indictment was issued in which the accused only was named. 4. On the first day of the trial, evidence was given in the Crown case by Susan Bozicevic, the occupier of the premises on which the offences allegedly occurred and a complainant in four of the five counts on the indictment. During her evidence, a DVD recording of a photo array in which she participated at Liverpool Police Station two days after the alleged offences was played in Court. 5. In the course of an interview by the Officer in Charge, Detective Senior Constable Samara Attard, Ms Bozicevic was shown an array of photographs of twelve different men, identified only by number. She identified the photograph of the accused as that of the person who had committed the alleged offences. 6. At the commencement of proceedings on the second day of trial, 16 June 2015, in the absence of the jury, the Crown Advocate announced that he had inadvertently misled the jury in his opening address on the previous day. In referring to the evidence that it was anticipated would be given by Ms Bozicevic in connection with the photo array, he referred to the photograph of the accused used in the array and identified by the witness as having been taken following the arrest of the accused on the day after the alleged offence. In fact the photograph was one taken of the accused when in custody on another matter some eleven months earlier. 7. Counsel for the accused objected to the admission of the evidence. Had the photograph been identified as one taken eleven months before the arrest of the accused, the jury would have had to have been appropriately directed under s115 (7) of the Evidence Act with regard to the prejudice arising from the possible inference from the age of the photograph that the accused had a prior criminal record or was adversely known to the police (R v Nelson [1999] NSWCCA 221). It was also submitted that the photographs taken of the accused at Liverpool Police Station following his arrest, but after the photo array, did not match the description given by witnesses of the intruder alleged to have been the accused. If those photographs had been used in the photo array, the witness may not have identified the accused. More than one witness described the intruder as having long or shoulder length hair. The photographs of the accused taken on 31 December 2013, two days after the alleged offences (Exhibit E on the voir dire), showed hair of average length at the front and sides. Although quite long at the back, down to collar height, it could not be described as "long or shoulder length." 8. I do not attach any great weight to that latter submission. Between 24 and 48 hours had passed from the time of the alleged offences, on the evening of 29 December 2013, to the time the photographs were taken two days later. For a substantial part of that time he was not under arrest and could easily have cut his hair or had someone cut it for him. It is also possible that the description of "long hair" given by the witnesses was exaggerated. It is expected that a reasonably observant and reliable witness would attach more importance to facial features than hair length in making an identification. 9. Most of the argument on the voir dire was quite properly directed to the application of relevant parts of s115 of the Evidence Act, discussed in the Australian Law Reform Commission Report on Uniform Evidence Law (ALRC 102). The Crown drew particular attention to the burden placed on the Crown under s115 (4)(b) in circumstances such as those which arose in this case. S115 (3) states: (3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if: (a) when the pictures were examined, the [defendant/accused] was in the custody of the police officer of the police force investigating the commission of the offence with which the [defendant/accused] has been charged; and (b) the picture of the [defendant/accused] that was examined was made before the [defendant/accused] was taken into that police custody. 1. Under s115 (4), subsection (3) does not apply if: (b) it was not reasonably practicable to make a picture of the [defendant/accused] after the [defendant/accused] was taken into that custody. 1. In this case s115 (3) clearly applies. The issue then becomes one under s115 (4)(b). Under that subsection, if the identification evidence is to be admitted, the onus is on the Crown to show that it was not reasonably practicable to take an appropriate photograph after the accused was taken into custody. 2. It was common ground that, in order to ensure the validity of identification process, all photographs used in a photo array should be of the same general resolution/quality and appear to have been taken in the same situation (i.e. the same, or very similar, camera angle and the same, or very similar, background colour and texture), in order to avoid irrelevant or misleading inconsistencies drawing undue attention to one photograph, especially if it were that of the accused. 3. In support of the Crown's case under s115 (4)(b), evidence was called on the voir dire from two police witnesses: the Officer in Charge, Detective Attard and Detective Senior Constable Brett Hill. Both were present at Liverpool Police Station following the arrest of the accused on suspicion and were involved in preparing for the photo array. It was Detective Hill who actually selected the eleven month old photograph of the accused in preference to another photograph taken of the accused in June 2013 (Exhibit C on the voir dire). In his judgment the earlier photograph bore a closer resemblance to the accused as he appeared at the time of his arrest. 4. It was Detective Attard's decision not to photograph the accused at the time of his arrest for use in the photo array, because the photo array was to take place and the identification process completed before the accused has been charged. The facilities for such photographs were in the charge room at Liverpool Police Station, in which a fixed camera was installed, suspended from the ceiling, and spotlights positioned to illuminate the face of the subject when the photograph was taken. According to Detective Attard these facilities could only be used after a person under arrest had been charged. Any other use of the equipment was prohibited and was subject to disciplinary action including termination of employment. 5. It was Detective Attard's opinion that a photograph taken by a hand held camera in another location, for example, in the forensic procedure room, would not have sufficiently matched the other eleven photographs to be used in the array to eliminate the risk of the witness's being drawn to the photograph of the accused for reasons other than his resemblance to the person who had committed the alleged offences. It was Detective Attard's concern that it would be impossible to duplicate with sufficient accuracy the conditions which would have applied to a photograph taken in the charge room, using the charge room equipment. In particular, a hand held camera would not have been at the same height as the camera installed in the charge room, thus the angle of the exposure to the face of the subject could have been noticeably different; the background and lighting conditions, without spotlights, could have had a different appearance; and the clarity and quality of the photograph taken by a hand held camera would not have been as good as that produced by the charge room equipment. 6. Following the evidence of the Police Officers, the proceedings on the voir dire were adjourned to the following day, 17 June 2015. On the resumption of the voir dire, Detective Attard was recalled and gave evidence of steps she had taken on the previous night to obtain photographs to enable the evidence she had given to be tested. 7. Photographs were taken by Detective Attard, using a hand held camera, of a uniformed Police Officer, Senior Constable R. Stanford, in both the forensic procedure room and charge room at the Liverpool Police Station. The photograph taken in the forensic procedure room (Exhibit G on the voir dire) showed Senior Constable Stanford in front of a wall, the surface of which, up to just below the top of the subject's head, was mid-grey overall with a pattern of green, light grey and black ( or dark grey ) specks. 8. All of the photographs in the photo array were taken against a wall of uniform colour, without any pattern imposed on it. This difference in background, which had remained unchanged since December 2013, would have rendered the forensic procedure room unsuitable for taking a photograph of the accused to be used in the photo array. 9. In giving evidence of the restriction on the use of the charge room where a suspect in custody had not been charged, Detective Attard was referring only to the photographic equipment installed in the room, not to the room itself. There was no prohibition against the use of a hand held camera in the charge room in such circumstances. 10. Accordingly, a second photograph of Senior Constable Stanford was taken with the hand held camera in the charge room and tendered as Exhibit H on the voir dire. Both photographs of Senior Constable Stanford depicted his head, shoulders and arms down to his chest (Exhibit G) or just above his waist line (Exhibit H). In all of the array photographs only the head, neck and collar area of the subject were shown. For the purpose of comparison, only that part of each of Exhibits G and H , cropped to exclude shoulders, arms and torso below the neck , was relevant. 11. Detective Attard also prepared a three dimensional diagram of part of the charge room, showing the location of the camera, spotlights and the position of the subject for the purpose of a photograph (Exhibit J on the voir dire). The camera was suspended 2.32 metres above the floor, that is, approximately half a metre above head height and about 3 metres in front of the subject. The spotlights (2) were located between the camera and the subject and above the height if the camera. 12. With regard to the photograph in Exhibit H, it was submitted that the background was much darker than the background in any of the array photographs. I accept that the background in the array photographs was a light grey, but of different hues, from blue (in the photograph of the accused) to steely grey (for example in the photo number 7). The background in Exhibit H is darker but is definitely grey. The comparison of colour cannot be restricted to the background. The colours including skin colour, in Exhibit H, were generally much richer than those in the array photographs which by comparison, had a "washed out" appearance, more likely than not an effect of the spotlights used as part of the charge room equipment. However, the skin colour did vary in the array photographs from very light (the accused), to a "natural" skin colour (for example, photo number 3), to an unnaturally sallow colour (photo number 7). When the colour variations amongst the array photographs are taken into account, the colour differences in Exhibit H would not be sufficient to capture the attention of a witness to the unfair prejudice of an accused person. 13. In final submissions limited attention was given to camera height for good reason. A number of the photographs in the array appear to have been taken at a height very similar to that at which the camera was held for the purpose of Exhibit H, for example, photos numbered 1, 4 (the accused), 5, 6, 7, 9, 10 and 12, that is, most of them. 14. With regard to photo quality, the photographs in the array were mostly very clear. However, once again there were exceptions. Photo number 7 was blurred, certainly not as clear as Exhibit H, which, in clarity, more closely resembled photo number 12. 15. Section 115 (4)(b) of the Evidence Act imposes an objective test. What the Crown must prove is that "it was not reasonably practicable" to produce a photograph "after the accused was taken into custody." Because the accused had not been charged at the time a photograph was needed for presentation of the array to Ms Bozicevic, the equipment in the charge room in Liverpool Police Station could not be used. In fact such a procedure was prohibited. When s115 (4)(b) refers to making a "picture", that is, producing a photograph, it must be understood to refer to a photograph which, when put into a photo array, would not, because of one or more inappropriately distracting features, invalidate the identification process because of some unfair prejudice to the accused. 16. The evidence in the Crown case is that, because of the unavailability of the charge room equipment, it was decided by the police officers involved, in particular Detective Attard, that it was not practicable to take a photograph of the accused, following his arrest but before he was charged, which would eliminate any features that might unfairly prejudice the accused, if such photograph was used in the photo array as a basis of identification evidence. 17. There is no doubt in my mind that the decision was made in good faith, with due concern for the rights of the accused. Even if, in my judgment, the decision was overcautious, with the benefit of hindsight, that is in no way a reflection on the integrity of Detective Attard or that of her fellow officers. 18. I should add that the Crown deserves commendation for the way in which this matter has been conducted by the Crown. It was the Crown Advocate, not counsel for the accused, who identified and revealed the error in his opening address to the jury. It was at the Crown's initiative that the photographs were taken and a plan prepared which became Exhibits G, H and J. That evidence took much of the speculation away from the issues which had to be resolved, ultimately to the benefit of the accused. 19. On the basis of the comparisons made in comparing Exhibit H with the photographs used in the array, I am satisfied that it was "reasonably practicable", following the arrest of the accused on 31 December 2013, to produce a photograph of the accused, using a handheld camera in the charge room at Liverpool Police Station, which could have been used in a photo array without any unfair prejudice to the accused. 20. I therefore rule the evidence of Ms Bozicevic identifying the accused by means of the photo array inadmissible. Since that evidence is already before the jury and that is a matter which cannot be cured by any direction from me, I have no alternative but to discharge the jury and I do that on the understanding that both parties consider that to be the proper course. 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: 24 July 2015