Supreme Court New South Wales Medium Neutral Citation: R v Afu, R v Caleo (No 11) [2018] NSWSC 190 Hearing dates: 13 February 2018 Decision date: 15 February 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidence excluded Catchwords: EVIDENCE – s 138 Evidence Act – whether photographic identification evidence improperly obtained – whether police did not comply with procedural requirements of commissioner of police – where identification of accused made after conclusion of video recording of photo line-up – whether irregularity was inconsistent with minimum standards expected of law enforcement – no impropriety found EVIDENCE – s 137 Evidence Act – whether probative value of photographic identification made over twenty years after event outweighed by risk of unfair prejudice – where cross-racial identification – where witness made photographic identification confidently – where witness also made inconsistent statements as to appearance of accused – low probative value – outweighed by risk of unfair prejudice – evidence excluded Legislation Cited: Evidence Act 1995 (NSW) ss 137, 138 Cases Cited: IMM v R (2016) 257 CLR 300 Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 Category: Procedural and other rulings Parties: Regina Alani Afu Representation: Counsel: Ms M Cunneen SC (Crown) Mr R Wilson (Accused) Solicitors: Solicitor for Public Prosecutions Katsoolis & Co File Number(s): 2014/321700 Judgment 1. HIS HONOUR: Counsel for the accused Alani Afu seeks exclusion of evidence of photographic identification of Mr Afu by the witness Anthony Stambolis. The exclusion is sought on two bases: the first under s 138 of the Evidence Act 1995 (NSW) and the second under s 137 of that Act. First ground of exclusion: s 138 1. Section 138, relevantly, is concerned with evidence which has been obtained improperly. The case sought to be made for exclusion on that basis was largely upon asserted failures to follow what was characterised by counsel for Mr Afu as "procedural requirements of the Commissioner of Police" in relation to photographic identification. These "procedural requirements" were said to be set out in a document entitled "Procedures for the Evidence Act" published on 12 April 2013 by the Performance Improvement and Planning Command of the NSW Police Force and authorised by the Deputy Commissioner, Corporate Services. What is there set out in relation to procedures for identification by way of photographs is consistent with an earlier version of the document published in 1998. 2. The Crown has tendered the complete document because only extracts relating specifically to identification evidence were tendered on behalf of Mr Afu. 3. On pages 7 and 8 of the document the following appears: "Message The Procedures for the Evidence Act is produced as a guide for police in implementing the requirements of the Evidence Act 1995. It should be read in conjunction with the Act itself and practitioners should be vigilant to keep up to date with changes as they occur. Whilst the Performance Improvement & Planning Command are responsible for maintaining the publication, they do so with the assistance of the Police Prosecutions Command who conduct regular reviews of the content to ensure it is correct. Despite this attention, all practitioners are encouraged to report errors, omissions or any comment regarding the content of this document to ensure its currency, accuracy and completeness. Reports and suggestions can be made direct to the Performance Improvement & Planning Command or discussed with the Police Prosecutions Command. Practitioners are also reminded of the wealth of resources available to them regarding guidance about evidence, including the following sites on the Police Prosecutions Command site: http://intranet.police.nsw.gov.au/law/law_lectures/evidence http://intranet.police.nsw.gov.au/law/law_notes/law_notes_articles - index_by_subject/evidence Detective Superintendent Paul Devaney Commander, Performance Improvement & Planning Command Scope This document does not replace sourcing sound legal advice from authorised persons within the Police Prosecutions Command, The Department of Public Prosecutions or other relevant body. It also does not contain all possible variations of interpretation arising from specific case law. Nor does it comment upon every part or section within the Evidence Act. Practitioners should read this Procedures for the Evidence Act in conjunction with the Act itself." 1. The characterisation of what is set out in the document as "procedural requirements of the Commissioner of Police", in my view, and with respect, is an overstatement. I do not understand them to be instructions or mandatory procedures required of police officers. More so, it appears to be advice on how police officers might seek to comply with the provisions of the Evidence Act and it is specifically stated to be other than definitive. 2. As to evidence that is improperly obtained, I have had regard to what was said in Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 at [23], where conduct that was improper, relevantly, was described as being that which is: "...quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement." 1. Basten JA in Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 at [23], referred to what was said about conduct which is "quite inconsistent with" minimum standards and contrasted that with conduct which merely blurs or contravenes those standards in some minor respect. His Honour said that the conduct must be "quite inconsistent with", or "clearly inconsistent with", those standards. 2. I have had regard to the submissions made by Mr Wilson on behalf of the accused Afu in relation to this basis of exclusion of the evidence. I am not satisfied that there is any impropriety by police in obtaining the evidence and so that basis of the application fails. Second basis of exclusion: s 137 1. Turning to the second basis of exclusion that is sought concerning s 137 of the Evidence Act, probative value was described in IMM v R (2016) 257 CLR 300 at [49] as indicating that the question is, on the assumption that the jury will accept the evidence: what is the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue? 2. Here the fact in issue, critically, is that the accused Mr Afu was the person who did and said the things that Mr Stambolis will describe in his evidence and, in particular, that it was Mr Afu who said, in effect, that he had murdered Ms Caleo. 3. It is necessary to take the evidence at its highest but, as was pointed out in IMM at [50], that might not be very high at all. In this exercise, the jury are assumed to accept that Mr Stambolis identified Mr Afu but, in my view, the probative value is weak when regard is had to various circumstances relating to the identification. 4. Mr Stambolis said he met with the person he referred to as "the Tongan", "20, maybe 30 times", either at Kings Cross or at Mr Stambolis's home in circumstances where Mr Stambolis purchased marijuana from him. Mr Stambolis said he did not go out or socialise with this person. 5. Mr Stambolis said he called this person either "Joe" or "George" or "something"; that is, he did not refer to him by a name associated with Mr Afu. 6. In addition to this, the Crown case is that Mr Stambolis was in a car with the person he referred to as "the Tongan" on two occasions at least and once attended at that person's home at Earlwood. Mr Stambolis said he did not know the address at Earlwood, but I was informed by the Crown Prosecutor that he had shown police the street, but not the actual house. The Crown has other evidence that Mr Afu lived at a house in Bayview Avenue, Earlwood, which is the street to which Mr Stambolis took the police. 7. Next, there is the identification process on 21 May 2013. It involved Mr Stambolis looking through 20 photographs; a video recording of that exercise showed that he looked at the photographs twice and he could not identify anyone. This was recorded by means of equipment usually used to record interviews. Then, after the recording had ceased because the police thought the procedure had concluded (and whilst Mr Stambolis then went through and signed each of the 20 photographs he had been shown), he said that he recognised the person in photograph 19 as "the Tongan". That photograph is accepted to be a photograph of Mr Afu. 8. There were criticisms of the fairness of the array of photographs. In my view, I think it had sufficient photographs of dark-skinned men in their 20s, as Mr Afu was. I do not consider that Mr Afu stood out as being different in any significant way. 9. There was a 13-minute gap before the recording was resumed but, when it did resume, police did not make any real attempt to recount in detail all that was said and done during the gap when the recognition was said to have occurred. Mr Stambolis said on the voir dire that, when he went to sign photograph 19, he said, "Oh shit, that's the photo, that's him": T315.48. He also said, "It jumped out at me": T316.11. However, that appears to be a more emphatic and confident expression of recognition than what Mr Stambolis described when the recording resumed: Q985 O.K. Do you agree that I've got written down 3.51 we concluded that phone line? A That's correct yes. Q986 Do you agree that we then proceeded to go through each photograph where you signed and dated the bottom left hand corner of each page? A That's correct. Q987 Do you agree that I was co-signing the bottom right hand corner of each page? A That's correct yes. Q988 Can you inform me in your own words what happened then? A Um, I finished signing photo id number eighteen and I placed it down on the table and I went to pick nineteen, twenty and the last page up twenty nine and had a look it, went to sign and it dawned on me that I believe that this is the, this is the photo of the Tongan guy that I'm referring to. Q989 Ah hmm. A That I scored pot off, that I introduced Gerard to, that I took with his girlfriend down to Double Bay to show him where Mark lived. Q990 [16:07] Ah hmm. Ah hmm. Could you lift that photograph up so that it can be seen by the camera. A Sure. Q991 As you can see the bottom right, the left hand corner Anthony has signed it, he's written his first name and has stopped at that point. Once, you can put that down, do you agree that as soon as you've informed me of this I've told you that I'll need to conduct another electronically recorded interview where we can talk about this photograph? A Yes you did, yes. Q992 Could you tell us why in particular that photo, that you recognise that photograph after looking through all the photographs? A I can't, I can't it just, I saw it on the angle and I picked it up, I didn't think much of it, I've gone to sign it, I've looked at it the photo, I've printed my first name and then it's just dawned on me, this is, this is the Tongan guy that was referring to. It just dawned on me, I've, I've recognised the photo I, I can, I looked at three or four times previous to this and I didn't pick but I just, I don't know if it was the angle I was looking at it. I don't know whether I picked it and I was signing or what it was but I, as you explained I've signed my name, I've printed my first name, I've kept looking at the picture the whole time and it's just dawned on me that this is the, this is the guy, I reckon he's the guy. Q993 At any time while the recording was off did Detective Kilani or myself indicate that photo to you? A Absolutely not. Q994 At any time did Detective Kilani and myself discuss that photo or any of other of the photographs within this photo board? A You didn't discuss anything you just asked me to sign each of the photos--- Q995 Ah hmm. A --- and that was when I got to this number nineteen that I realised that I didn't pick it up the first time I reviewed the photos. Not at any stage did you indicate who it might be--- Q996 Ah hmm. A ---or anything, absolutely not at all. Q997 Ah hmm. Detective Kilani DETECTIVE SENIOR CONSTABLE KILANI No. I'm right. I've got nothing to ask you further. DETECTIVE SENIOR CONSTABLE OLDFIELD Q998 Ah hmm. If for the purpose of the video can you continue to put your signature on the bottom of these pages? A Sure. Sure. Q999 I don't know if it was said what photo number do you recognise as the Tongan male you described in your statement? A Photo number nineteen. Q1000 [16:10] Ah hmm. DETECTIVE SENIOR CONSTABLE KILANI Q1001 Can you just sign the last one I know it's blank--- A Sure. Q1001 ---just to show it's twenty nine of twenty nine. No I don't think it's necessary. DETECTIVE SENIOR CONSTABLE OLDFIELD Q1002 Thank you. Just to clarify now was any threat, promise or offer of advantage been held out to you during the break between the recordings to identify any particular photograph? A Absolutely not. Q1003 O.K. A Absolutely not. Q1004 O.K. The time is 4.11pm and this is a conclusion of line up id 4-5-9-5-2. 1. Also to take into account are descriptions given by Mr Stambolis of the person he referred to as "the Tongan". In October 1998 he gave the following description (T319): "Tongan guy, not real tall, about my height, stocky, seedy looking. I think he had a tattoo on his face near his eye. It was only small. He had a thick, wide face." 1. A description given by Mr Stambolis on 21 May 2013 prior to the identification procedure was (T319): "Short, stocky. From memory, I think he had fairly short hair and he had a tattoo - I am not sure if it was on his left or his right - of a teardrop, just around about here somewhere. … I don't know if he was Tongan. He might have been a Kiwi; he might have been Samoan. He might - I don't know - he was an Islander. He was definitely an Islander. … I don't even recall his name to be honest but, for some reason, I'm thinking 'George' or 'Jim' or something, but I don't know for sure. I can't recall." 1. These descriptions are fairly broad and they are not entirely consistent with the appearance of the person, that is, Mr Afu, in photograph 19. Specifically, and most obviously, the person in the photograph does not have a tattoo as described on both occasions by Mr Stambolis. 2. The fact that Mr Stambolis appears to have been of Mediterranean origin and Mr Afu of Pacific Islander origin is also a relevant matter to take into account in assessing the value of the claimed recognition. Cross-racial identification (and even recognition) involves additional difficulties. 3. Regard should also be had to the fact that prior to being shown the 20 photographs of males, Mr Stambolis was shown an array of 8 persons, both male and female, who were said to be associates of Mr Afu. He referred to the person shown in the photograph number 6 in that array and said that this person "could be this Tongan guy": A882. Photograph number 6 was in fact a photograph of Mr Afu's brother, Davy Afu, otherwise known as Tevita Koloamatangi. What Mr Stambolis said about this person in photograph number 6 was not pursued any further by police. More significantly to my mind, it raises a question about the displacement effect which is discussed in various authorities dealing with identification evidence. This might have had some influence when Mr Stambolis was later shown the array that included Mr Afu. The photograph in number 6 in the array of 8 is quite similar to the photograph of Mr Afu in photograph 19 of the array of 20. 4. So, having regard to all of those circumstances, and on the assumption that the jury accepts the evidence that there was this identification or recognition, it has to be said, in my view, that the probative value is very low. 5. Turning to the prejudicial effect, I take into account that there would be a need for a strong warning about the danger of giving the evidence more weight than is warranted. Here the weight that is warranted is, as I have indicated, very low. 6. There is a concern that remains about the jury being seduced by confidently-given evidence of recognition, despite the warning, but this is exacerbated by there being no recording of the act of recognition. The jury would be confined to the oral evidence, plus what was said when the recording was resumed after the recognition was said to be made, and in that subsequent recording there is no replication of precisely what had occurred. That has the effect that there is an inability by counsel for the accused to effectively test the oral evidence and what was said in the later recording and there is an inability of the jury to see the act of recognition and make its own assessment. Video recording is the usual means by which photographic identification procedures have been carried out for quite some time now and that is for a very good reason. The Court, generally, is denied that advantage in this particular case. 7. I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice. The evidence is excluded. ********** 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: 19 April 2018