Citation: R v Carroll [2013] NSWSC 1031
Court: Supreme Court of New South Wales
Date: 26 July 2013
Judge: Hall J
Background
The accused faced trial on charges including murder, assault with intent to rob, aggravated breaking and entering, and causing grievous bodily harm, all arising from events at Werrington on 22 August 2010. Two co-accused had already pleaded guilty to related offences. The accused was the only remaining defendant proceeding to jury trial.
A central evidentiary dispute arose concerning a formal photographic identification procedure conducted by police on 1 October 2010. The witness who made the identification was a co-offender (referred to here as the identifying witness) who had participated in the same offences and who had given police a description of the accused before the formal procedure took place.
The complication was this: between giving that initial description and the formal identification, the identifying witness encountered the accused again while both were held in custody. The accused's legal representatives argued this second encounter tainted the identification and that the evidence should be excluded.
Legal Issues
- Whether the identifying witness's encounter with the accused in custody between his initial description and the formal identification procedure created a "displacement effect" that undermined the reliability of the photographic identification
- Whether the array of photographs used in the formal identification procedure was compiled on a sound basis, given that the accused's photograph featured tattoos and the witness had described the accused as having tattoos (including on the neck)
- Whether the probative value of the identification evidence was outweighed by the danger of unfair prejudice to the accused, such that exclusion was required under sections 135 or 137 of the Evidence Act 1995
Decision
Issue 1: The "displacement effect" of the in-custody encounter
The court rejected the argument that the in-custody meeting created a displacement effect that corrupted the original memory. Hall J characterised the second encounter more accurately as a recognition event: the identifying witness was recognising a person he had already been involved with and interacted with at length before and after the offences, not encountering a stranger whose image might overwrite an uncertain recollection. That second interaction was capable of reinforcing rather than displacing the original mental image.
The identifying witness had observed and spoken with the accused both during the events on 22 August 2010 and on a subsequent occasion. His evidence was, in effect, that the person he spoke to in custody was the same person who had committed the offences with him, and that the photograph he selected in the formal procedure was that same person. The court found this chain of recognition sufficient to support admissibility.
Issue 2: The composition of the photograph array
The array was compiled using software that randomly selected photographs from a police database matching "parameters of likeness" to a photograph of the accused taken shortly after the offences. The detective in charge was aware that the accused had tattoos, including on his neck, and this was reflected in the composition of the array, which included photographs of persons with visible tattoos.
Although the detective acknowledged he did not formally cross-reference the witness's physical description when compiling the array, he was aware of the tattoo features, and the photograph of the accused itself guided the software's selection. Hall J concluded that a sound basis existed for the array's compilation and that it constituted a proper basis for the formal identification process.
Issue 3: Probative value versus unfair prejudice
Hall J found that the probative value of the identification evidence outweighed any danger of unfair prejudice by a considerable margin. The court noted that the jury would be informed of the circumstances in which police obtained a photograph of the accused (he had presented himself to police on 25 August 2010 and was later arrested and charged on 8 September 2010), which would dispel any inference that the accused was in a police database for unrelated criminal history. The court also flagged its ongoing obligation as trial judge to revisit the admissibility question if the factual assumptions underpinning this ruling were shown to be incorrect at trial, citing R v Marshall.
Orders Made
- Application for exclusion of identification evidence under sections 135 and 137 of the Evidence Act 1995 refused
Key Takeaways
- A subsequent encounter between a witness and a suspect in custody does not automatically produce a "displacement effect" that taints a prior description; where the witness had extended prior involvement with the accused, the encounter may more properly be characterised as reinforcing an existing mental image.
- Under sections 135 and 137 of the Evidence Act 1995, identification evidence is not excluded merely because the photograph of the accused features distinctive physical characteristics (such as tattoos) if the photograph array was compiled on a sound basis that accounts for those features across the photos selected.
- Software-generated photograph arrays that randomly select images matching "parameters of likeness" to a recent photograph of the accused can satisfy the requirement of a proper identification procedure, provided the officer in charge brings relevant knowledge (such as a witness's description) to bear when reviewing the array.
- A ruling admitting identification evidence on the voir dire does not foreclose the trial judge from revisiting admissibility during trial if the factual basis for that ruling is undermined by evidence at trial, consistent with the approach described in R v Marshall.
- Where the jury will receive a full and accurate account of how the accused's photograph came to be in police possession, the risk that the jury will draw prejudicial inferences from the photograph's inclusion in an array is significantly reduced.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Alexander v R (1981) 145 CLR 395
- Carusi (1997) 92 A Crim R 52
- Festa v R (2001) 208 CLR 593
- Knight v Brown [2004] 183 FLR 135
- R v Blick [2000] NSWCCA 61; [2000] 111 A Crim R 326
- R v Fisher [2001] NSWCCA 380
- R v Marshall (2000) 113 A Crim R 190
- R v Nguyen [2003] NSWSC 1068
- THD v R [2010] 200 A Crim R 106