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District Court 30 October 2018

R v Doidge

[2018] NSWDC 330

Public order & justice offences
EVIDENCE ADMISSION OF EVIDENCE ACCUSED IDENTIFIED IN PHOTOGRAPHIC LINE WHERE NONE OF THE OTHER MEN IN THE LINE

Citation: R v Doidge [2018] NSWDC 330
Court: District Court of New South Wales
Date: 30 October 2018
Judge(s): Wilson SC DCJ

Background

The Crown sought to rely on photographic identification evidence in a criminal proceeding against the accused. The identification had been made by a complainant who selected the accused's photograph from a line-up of twenty images, each depicting young males in their mid-twenties with some form of facial tattoo.

The accused had two notable physical features: a small tattoo below his left eye and a rat's tail hairstyle. The charge photograph used in the line-up showed the rat's tail draped visibly across the accused's left shoulder. None of the other nineteen photographs in the line-up depicted anyone with a rat's tail.

The complainant had consistently described the rat's tail as a key identifying feature from his very first statement to police. When viewing the line-up video, the complainant advanced quickly through the other images before selecting the accused, and expressly pointed to both the accused's face and the rat's tail as the basis for his identification.

Legal Issues

  • Whether the photographic identification evidence was admissible under section 137 of the Evidence Act 1995 (NSW), which requires exclusion of evidence where the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence.

Decision

Section 137 Balancing Exercise: The court acknowledged that identification evidence of this kind carries some probative value (at [15]). However, that value was partially undermined by the fact that the complainant's original statement placed the tattoo under the accused's right eye, whereas the tattoo was actually under his left eye (at [9], [15]).

Unfair Prejudice from the Rat's Tail: The court found that the more significant problem was the rat's tail appearing in only the accused's photograph, in circumstances where the complainant had consistently and prominently described the rat's tail as an identifying feature from the outset (at [8], [10], [19]). The officer who assembled the line-up had focused on age, complexion, and facial tattoo when selecting participants, without accounting for the rat's tail as a separately reported distinguishing feature (at [12]).

Available Alternative: The court noted that among the fifteen custody photographs of the accused, at least one showed him clearly without any visible rat's tail. It was described as "regrettable" that this alternative photograph was not chosen for the line-up (at [13]).

Conclusion: Applying the principles from R v Blick and related authorities, the court concluded that the accused inevitably stood out from the other participants by reason of the rat's tail, and that the danger of unfair prejudice to the accused substantially outweighed the probative value of the identification evidence (at [19]). The evidence was excluded (at [20]).

Orders Made

  • Photographic identification evidence excluded.

Key Takeaways

  • The District Court applied section 137 of the Evidence Act 1995 (NSW) to exclude photographic identification evidence where the accused's distinctive physical feature, a rat's tail hairstyle, appeared in only his photograph among twenty in the line-up, causing him to stand out in a way that produced unfair prejudice (at [19]).

  • Under section 137, the weighing exercise requires a court to assess both the probative value of the identification evidence and the danger of unfair prejudice. Where a key identifying feature described by the witness from the outset is visible only in the accused's image, that feature can decisively tip the balance toward exclusion (at [14], [19]).

  • Consistent with R v Blick (2000) 111 A Crim R 326, where the accused was the only participant with a goatee beard, and R v Fisher [2001] NSWCCA 380, the court confirmed that a photographic parade in which the accused is the sole person displaying a distinguishing feature identified by the complainant risks rendering the identification exercise unreliable and unfairly prejudicial.

  • The existence of an alternative custody photograph in which the accused had no visible rat's tail reinforced the court's concern: a more carefully selected charge photograph could have produced a fairer line-up (at [13]).

  • Police officers assembling photographic identification parades are expected to account for all physical features consistently reported by a complainant, not only those characteristics such as age and facial tattoos that are most easily matched across a database (at [12]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- R v Blick (2000) 111 A Crim R 326
- R v Fisher [2001] NSWCCA 380
- THD v R (2010) 200 A Crim R 106