Citation: R v Chandler [2014] NSWDC 206
Court: District Court of New South Wales
Date: 25 August 2014
Judge(s): S Norrish QC DCJ
Background
The accused faced trial for a robbery committed in April 2009. More than four years after the offence, police conducted a photographic identification exercise using the PhotoTrac computer system, during which the complainant was shown a digital array of photographs and invited to comment on them.
The complainant did not make a positive identification. He noted that photographs 3 and 5 bore the most resemblance to his attacker, and indicated he would lean toward photograph 5 being the suspect. His written statement recorded that he had not selected any male as the person of interest.
The Crown applied to adduce this evidence at trial, not as direct identification evidence, but as circumstantial evidence. The defence objected, and the court ruled on admissibility.
Legal Issues
- Whether the photographic identification evidence was admissible, given the absence of a positive identification
- Whether the probative value of the evidence was outweighed by the risk of unfair prejudice to the accused
- Whether the PhotoTrac Standard Operating Procedures had been materially complied with
- Whether the failings in the identification process could be remedied by judicial warnings to the jury
Decision
Issue 1: The nature and probative value of the evidence
The court observed that this was not evidence of identification in the traditional sense. The complainant had not positively identified the accused. The evidence was therefore purely circumstantial, and the court found it had "almost no probative value whatsoever." This assessment was reinforced by the complainant's own statements that more than three years had passed (in fact over four) and that his memory was not at its best, as well as his acknowledgment of having sustained multiple blows to the head during the attack.
Issue 2: Failures to follow the Standard Operating Procedures
Several significant departures from the PhotoTrac Standard Operating Procedures were identified. The procedures recommended a minimum of 20 photographs wherever possible, allowing for line-ups as small as 12 only where similar photographs could not be sourced. Here, only 12 photographs were used and no explanation was given for that number. More critically, the accused was the only person in the array wearing a forensic suit, while the other 11 persons wore civilian clothing, a distinction the court found self-evident.
The procedures also required the administering officer to take the witness through a specific series of preliminary questions before the process began, designed to ensure the witness understood the task without prompting or suggestion. The officer did not do this. The court found the process "fatally flawed from the moment" the officer failed to comply with these pre-process requirements. The court also noted that the complainant reviewed the photo array on at least 19 occasions, whereas the procedures stated that the best evidence results from the first run-through.
Issue 3: Whether warnings could cure the prejudice
The court rejected the proposition that judicial warnings to the jury could remedy the damage caused by the procedural failures. The evidence was so tainted that any warnings necessary to properly alert the jury to its dangers would render the evidence useless to the Crown in any event. The risk of unfair prejudice to the accused outweighed the negligible probative value, and the evidence was excluded.
Orders Made
- The evidence of the identification witness, the recording of the photographic identification process on the computer, and the conclusions expressed by the witness in his statement are not permitted into evidence.
Key Takeaways
- The District Court excluded photographic identification evidence where the administering officer failed to take the witness through mandatory preliminary instructions before the process began, as required by the PhotoTrac Standard Operating Procedures.
- A photographic line-up comprising only 12 photographs, with no explanation for departing from the recommended minimum of 20, was identified as a significant procedural deficiency.
- Where an accused is the only person in a photo array wearing a forensic suit while all other subjects wear civilian clothing, that distinction can constitute a material irregularity affecting admissibility.
- Evidence falling short of a positive identification is not automatically admissible as circumstantial evidence: its probative value must still be weighed against the risk of unfair prejudice, and procedural failures in the identification process inform that assessment.
- Judicial warnings to a jury will not always cure prejudice arising from a flawed identification process. Where the failings are sufficiently serious, the warnings required to adequately protect the accused may effectively deprive the evidence of any utility for the Crown.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Crimes (Forensic Procedures) Act 2000
Cases
- Not stated