Citation: R v Mohammad Hadi Parivash [2014] NSWDC 62
Court: District Court of New South Wales
Date: 22 May 2014
Judge(s): Tupman DCJ
Background
The accused was charged with one count of people smuggling under s 233A of the Migration Act 1958, alleged to have facilitated the voyage of a non-citizen from Indonesia to Australia between April and August 2012. The Crown's case rested almost entirely on the evidence of that non-citizen, who had identified a person he knew as "Sadra" as the smuggler who assisted his journey.
The key identification evidence arose from a photo board procedure conducted in April 2013. The witness was shown a board of twelve photographs, one of which was a picture of the accused taken by Immigration officials at Christmas Island in December 2012, shortly after the accused had arrived in Australia as an asylum seeker. The witness selected that photograph as depicting the people smuggler.
On a voir dire (a preliminary hearing conducted in the absence of the jury to determine admissibility), the accused challenged the photo board evidence on the basis that it was obtained unlawfully and should be excluded.
Legal Issues
- Whether the photo board identification procedure was conducted in breach of s 3ZO of the Crimes Act 1914 (Cth), which restricts the use of photographs to identify a suspect who is in custody or otherwise available to participate in an identification parade
- Whether, if illegally obtained, the evidence should be excluded under s 138 of the Evidence Act 1995
- Whether the probative value of the evidence was outweighed by its prejudicial effect under s 137 of the Evidence Act 1995, given alleged deficiencies in the composition of the photo board
Decision
Section 3ZO(1) of the Crimes Act 1914 provides that an investigating officer must not show photographs to a witness for the purpose of identifying a suspect if that suspect is in custody or otherwise available to take part in an identification parade, unless specified exceptions apply. Those exceptions include the suspect refusing to participate, a significant change in the suspect's appearance, or an identification parade being unfair or unreasonable in the circumstances.
The court found that by at least January 2013, the AFP regarded the accused as likely to be the people smuggler referred to by asylum seeker witnesses. The accused was in Immigration detention in Australia and was therefore both in custody and available to participate in an identification parade. No parade was offered. None of the statutory exceptions under s 3ZO(1) had been established, and the evidence was therefore obtained illegally.
Turning to the s 138 discretion, the court weighed the desirability of admitting the evidence against the undesirability of admitting evidence obtained by unlawful conduct. The court characterised the contravention as reflecting institutional recklessness on the part of both the AFP and Immigration authorities. The breach was not merely technical; it went to a provision specifically designed to protect the integrity of identification evidence, a category the courts have long treated as potentially unreliable. Notwithstanding the significant weight the evidence carried in the Crown's case and its apparent probative value, the court held that strict compliance with the law was required, particularly where the suspect was under the direct control of the very State seeking to prosecute him.
The court declined to rule finally on the s 137 challenge, having already excluded the evidence under s 138. It noted, however, that it would not have excluded the evidence on the s 137 ground alone, as the matters raised concerning photo composition were more appropriately assessed by a jury with appropriate directions.
Orders Made
- The identification evidence was excluded and declined to be admitted, pursuant to s 138 of the Evidence Act 1995.
Key Takeaways
- Under s 3ZO(1) of the Crimes Act 1914 (Cth), investigators cannot use a photo identification procedure to identify a suspect who is in custody or available for an identification parade, unless specific statutory exceptions are satisfied. No parade was offered here, and no exception applied.
- The District Court found that both the AFP and Immigration authorities acted with institutional recklessness in disregarding s 3ZO, and that characterisation weighed heavily against admission under s 138 of the Evidence Act 1995.
- Where a suspect is held in custody by the same State apparatus that seeks to prosecute them, the court treated strict compliance with identification procedure laws as carrying particular weight in the s 138 balancing exercise.
- Even significant probative value and the practical importance of the evidence to the Crown's case did not overcome the s 138 discretion where the manner of obtaining the evidence reflected serious and reckless non-compliance with statutory safeguards.
- Concerns about the composition of a photo board, including whether the other photographs sufficiently match the witness's description of the suspect, were treated as matters properly assessed by a jury rather than as grounds for exclusion under s 137 on their own.
Legislation and Cases Referenced
Legislation:
- Migration Act 1958 (Cth), s 233A
- Crimes Act 1914 (Cth), s 3ZO
- Evidence Act 1995 (NSW), ss 137, 138
Cases: No cases were cited in the judgment.