Citation: R v Carlson; R v Carlson [2021] NSWDC 612
Court: District Court of New South Wales
Date: 15 November 2021
Judge: Haesler SC DCJ
Background
In September 2020, four young men parked at a reserve in southern Wollongong were robbed by three men who approached from a red Holden Commodore. One victim, Mr O'Connell, recognised the apparent ringleader by name. The other two men were described only in general terms at the time: one as short, dark-skinned and skinny, the other as taller with dark skin. A shoulder bag, cash, and an iPhone were taken during the incident.
Police traced the stolen iPhone to a residential address, where the phone was recovered. The occupants included two brothers, Joel and Craig Carlson, who became persons of interest. However, no identification parade was arranged, and the investigation stalled for several weeks.
About five weeks after the robbery, Mr O'Connell told police he had identified Joel and Craig Carlson as the second and third offenders, after seeing a Facebook photo in which one man was tagged as "Joel Carlson" and then navigating to Craig Carlson's profile. He also said he saw both men named on a Channel 9 news story about the ringleader's death in a motorcycle accident. The Carlsons were arrested and charged with robbery in company. Both pleaded not guilty, and their defence lawyers applied before trial to exclude Mr O'Connell's identification evidence.
Legal Issues
- Whether the prosecution was required under section 114 of the Evidence Act 1995 to offer the accused an identification parade before visual identification evidence could be admitted, and whether any failure to do so was excused on reasonable grounds.
- Whether the identification evidence derived from Facebook photographs and a television news broadcast should be excluded under section 137 of the Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice to the accused.
Decision
Section 114: Identification parade requirement
Section 114 of the Evidence Act 1995 generally prohibits the admission of visual identification evidence in criminal proceedings unless the accused was given a reasonable opportunity to take part in an identification parade before the evidence was obtained, or the failure to hold one was reasonable in the circumstances. The court examined whether Detective Zammit's failure to arrange a parade was justified. The detective had delayed any further investigation for weeks, did not delegate follow-up tasks, and made no arrangements for a parade even after the Carlsons became persons of interest. The court found the failure to hold an identification parade was not reasonable, and accordingly the identification evidence was inadmissible under section 114.
Section 137: Probative value versus unfair prejudice
The court went on to consider, on the assumption the evidence were otherwise admissible, whether it should be excluded under section 137 because the danger of unfair prejudice substantially outweighed its probative value. The court noted the identification arose from an uncontrolled process: a witness searching through social media and matching faces to names, without any of the safeguards that a formal parade provides. The circumstances raised real concerns about reliability, including questions about cross-racial identification and the suggestive nature of finding names attached to photographs. The court also identified several inconsistencies in Mr O'Connell's account of when and how he conducted his searches.
Despite these concerns, the court concluded that the evidence was relevant and carried significant probative value in context. The court was satisfied that appropriate judicial directions to the jury under section 116, including warnings about the dangers of cross-racial identification, could adequately address the risk of reasoning or emotional prejudice. On the section 137 question, the court would not have excluded the evidence. However, because section 114 rendered the evidence inadmissible, this conclusion was expressed as an alternative finding only.
Orders Made
• The evidence is admitted pursuant to s137 of the Evidence Act
• A direction under s116 of the Evidence Act is to be given to the jury, including cautions about the dangers of cross-racial identification and the 'own race effect'
Key Takeaways
- The District Court held that an investigating detective's failure to arrange an identification parade was not reasonable within the meaning of section 114 of the Evidence Act 1995, where the detective simply failed to follow up on the investigation, took extended leave, and did not delegate the task to anyone else.
- Visual identification evidence obtained through an uncontrolled process of social media searching and Facebook profile navigation falls within the operation of section 114, and its admissibility is governed by whether the preconditions of that section are satisfied.
- Under section 137, a court must weigh the probative value of identification evidence against the genuine risks of reasoning prejudice (jurors giving it too much weight) and emotional prejudice (jurors losing objectivity), particularly where the identification process lacked procedural safeguards.
- A well-crafted judicial direction to the jury under section 116, including cautions about the "own-race effect" in facial recognition, may be sufficient to ameliorate unfair prejudice so that exclusion under section 137 is not warranted.
- Where identification evidence is excluded under section 114, any finding on section 137 is expressed as an alternative, and does not affect the primary exclusion.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 114, 116, 137
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Crimes Act 1900 (NSW), s 97(1)
Cases
- Alexander v R (1981) 145 CLR 395; [1981] HCA 17
- DPP v Donald and McEntee [1999] NSWSC 949
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Peterson v The Queen [2014] VSCA 111
- Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- R v Carusi (1997) 92 A Crim R 52
- R v Clarke (1998) 97 A Crim R 414
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Taylor [2008] ACTSC 52
- Strauss v Police [2013] 115 SASR 90
- The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 14