Citation: R v Afu, R v Caleo (No 11) [2018] NSWSC 190
Court: Supreme Court of NSW
Date: 15 February 2018
Judge(s): R A Hulme J
Background
The accused Alani Afu faced criminal proceedings in which the Crown proposed to lead evidence of a photographic identification made by a witness, Anthony Stambolis. The witness had allegedly encountered "the Tongan", a person from whom he purchased marijuana on around 20 to 30 occasions in the late 1990s. The Crown's case was that this person was Mr Afu, and that he had made a statement to the witness amounting to an admission of murder.
The identification procedure took place on 21 May 2013, more than two decades after the relevant events. Counsel for Mr Afu applied to exclude the identification evidence at trial on two grounds: that it was improperly obtained under section 138 of the Evidence Act 1995 (NSW), and that its probative value was outweighed by the risk of unfair prejudice under section 137.
Legal Issues
- Whether the photographic identification evidence was improperly obtained under section 138 of the Evidence Act, particularly because police did not follow the procedures set out in a NSW Police Force document on photographic identification.
- Whether the probative value of a photographic identification made more than 20 years after the relevant events was outweighed by the risk of unfair prejudice to the accused under section 137 of the Evidence Act.
Decision
Issue 1: Improper Obtaining (s 138)
The court characterised the NSW Police Force document containing guidance on photographic identification procedures as advice on how to comply with the Evidence Act, not as mandatory instructions. The document itself stated that its content was not definitive (at [5]). Applying the principle from Ridgeway v The Queen and Robinson v Woolworths Ltd that conduct must be "quite inconsistent with" or "clearly inconsistent with" minimum standards to constitute impropriety, the court found no such impropriety on the part of police (at [8]). This ground of exclusion failed.
Issue 2: Probative Value versus Unfair Prejudice (s 137)
Drawing on the High Court's formulation in IMM v R, the court assessed probative value by asking what the evidence's capability was to rationally affect the probability of the fact in issue: namely, that Mr Afu was the person who made the admission to the witness (at [9]). The court identified several factors that significantly reduced that probative value. The witness could not identify anyone during the video-recorded phase of the procedure, making his recognition only after the recording had stopped (at [15]). His prior descriptions of "the Tongan" were broad and inconsistent with Mr Afu's appearance in the photograph, particularly regarding a tattoo (at [20]). The identification was cross-racial, adding further difficulty (at [21]). Earlier in the same session, the witness had identified a photograph of Mr Afu's brother as potentially being "the Tongan", raising the possibility of a displacement effect on the later identification from the larger array (at [22]). The court concluded the probative value was very low (at [23]).
On the prejudice side, the court noted that the witness expressed his recognition confidently, which carried a risk of the jury placing undue weight on the evidence despite any warning (at [25]). Crucially, the absence of any video recording of the moment of recognition meant the recognition could not be tested by cross-examination against a contemporaneous record, and the jury could not assess it directly. The court observed that video recording of photographic identification procedures had long been standard practice for good reason (at [25]). Satisfied that the probative value was outweighed by the danger of unfair prejudice, the court excluded the evidence (at [26]).
Orders Made
- Photographic identification evidence excluded.
Key Takeaways
- Under section 137 of the Evidence Act, even confident evidence of recognition can be excluded where its probative value, assessed by reference to surrounding circumstances, is very low and the risk of the jury placing excessive weight on it is high (at [23]-[26]).
- Guidance documents issued by the NSW Police Force on photographic identification procedures are not necessarily mandatory requirements. Where a document is expressly stated to be non-definitive and operates as advice on Evidence Act compliance, a departure from it will not automatically constitute impropriety under section 138 (at [5], [8]).
- A displacement effect, arising from a witness being shown photographs of associates before the main identification array, is a relevant consideration when assessing the probative value of a subsequent identification, particularly where a photograph of a close relative appeared in the earlier array (at [22]).
- Cross-racial identification, inconsistency between prior descriptions and the photograph, the passage of more than two decades between the relevant events and the identification procedure, and the limited nature of the relationship between witness and subject all bear on the probative value of recognition evidence (at [20]-[23]).
- The absence of video recording of the actual moment of recognition significantly heightened the risk of unfair prejudice, because it denied both defence counsel and the jury the ability to test and observe the recognition directly (at [25]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 137, 138
Cases
- 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