R v Afu, R v Caleo (No 11)

1. [1]

   HIS HONOUR: Counsel for the accused Alani Afu seeks exclusion of evidence of photographic identification of Mr Afu by the witness Anthony Stambolis. The exclusion is sought on two bases: the first under s 138 of the Evidence Act 1995 (NSW) and the second under s 137 of that Act.

First ground of exclusion: s 138

1. [2]

   Section 138, relevantly, is concerned with evidence which has been obtained improperly. The case sought to be made for exclusion on that basis was largely upon asserted failures to follow what was characterised by counsel for Mr Afu as "procedural requirements of the Commissioner of Police" in relation to photographic identification. These "procedural requirements" were said to be set out in a document entitled "Procedures for the Evidence Act" published on 12 April 2013 by the Performance Improvement and Planning Command of the NSW Police Force and authorised by the Deputy Commissioner, Corporate Services. What is there set out in relation to procedures for identification by way of photographs is consistent with an earlier version of the document published in 1998.

2. [3]

   The Crown has tendered the complete document because only extracts relating specifically to identification evidence were tendered on behalf of Mr Afu.

3. [4]

   On pages 7 and 8 of the document the following appears:

4. [5]

   The characterisation of what is set out in the document as "procedural requirements of the Commissioner of Police", in my view, and with respect, is an overstatement. I do not understand them to be instructions or mandatory procedures required of police officers. More so, it appears to be advice on how police officers might seek to comply with the provisions of the Evidence Act and it is specifically stated to be other than definitive.

5. [6]

   As to evidence that is improperly obtained, I have had regard to what was said in Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 at [23], where conduct that was improper, relevantly, was described as being that which is:

6. [7]

   Basten JA in Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 at [23], referred to what was said about conduct which is "quite inconsistent with” minimum standards and contrasted that with conduct which merely blurs or contravenes those standards in some minor respect. His Honour said that the conduct must be “quite inconsistent with”, or “clearly inconsistent with”, those standards.

7. [8]

   I have had regard to the submissions made by Mr Wilson on behalf of the accused Afu in relation to this basis of exclusion of the evidence. I am not satisfied that there is any impropriety by police in obtaining the evidence and so that basis of the application fails.

Second basis of exclusion: s 137

1. [9]

   Turning to the second basis of exclusion that is sought concerning s 137 of the Evidence Act, probative value was described in IMM v R (2016) 257 CLR 300 at [49] as indicating that the question is, on the assumption that the jury will accept the evidence: what is the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue?

2. [10]

   Here the fact in issue, critically, is that the accused Mr Afu was the person who did and said the things that Mr Stambolis will describe in his evidence and, in particular, that it was Mr Afu who said, in effect, that he had murdered Ms Caleo.

3. [11]

   It is necessary to take the evidence at its highest but, as was pointed out in IMM at [50], that might not be very high at all. In this exercise, the jury are assumed to accept that Mr Stambolis identified Mr Afu but, in my view, the probative value is weak when regard is had to various circumstances relating to the identification.

4. [12]

   Mr Stambolis said he met with the person he referred to as "the Tongan", "20, maybe 30 times", either at Kings Cross or at Mr Stambolis's home in circumstances where Mr Stambolis purchased marijuana from him. Mr Stambolis said he did not go out or socialise with this person.

5. [13]

   Mr Stambolis said he called this person either "Joe" or "George" or "something"; that is, he did not refer to him by a name associated with Mr Afu.

6. [14]

   In addition to this, the Crown case is that Mr Stambolis was in a car with the person he referred to as "the Tongan" on two occasions at least and once attended at that person's home at Earlwood. Mr Stambolis said he did not know the address at Earlwood, but I was informed by the Crown Prosecutor that he had shown police the street, but not the actual house. The Crown has other evidence that Mr Afu lived at a house in Bayview Avenue, Earlwood, which is the street to which Mr Stambolis took the police.

7. [15]

   Next, there is the identification process on 21 May 2013. It involved Mr Stambolis looking through 20 photographs; a video recording of that exercise showed that he looked at the photographs twice and he could not identify anyone. This was recorded by means of equipment usually used to record interviews. Then, after the recording had ceased because the police thought the procedure had concluded (and whilst Mr Stambolis then went through and signed each of the 20 photographs he had been shown), he said that he recognised the person in photograph 19 as "the Tongan". That photograph is accepted to be a photograph of Mr Afu.

8. [16]

   There were criticisms of the fairness of the array of photographs. In my view, I think it had sufficient photographs of dark-skinned men in their 20s, as Mr Afu was. I do not consider that Mr Afu stood out as being different in any significant way.

9. [17]

   There was a 13-minute gap before the recording was resumed but, when it did resume, police did not make any real attempt to recount in detail all that was said and done during the gap when the recognition was said to have occurred. Mr Stambolis said on the voir dire that, when he went to sign photograph 19, he said, "Oh shit, that's the photo, that's him": T315.48. He also said, "It jumped out at me": T316.11. However, that appears to be a more emphatic and confident expression of recognition than what Mr Stambolis described when the recording resumed:

10. [18]

    Also to take into account are descriptions given by Mr Stambolis of the person he referred to as "the Tongan". In October 1998 he gave the following description (T319):

11. [19]

    A description given by Mr Stambolis on 21 May 2013 prior to the identification procedure was (T319):

12. [20]

    These descriptions are fairly broad and they are not entirely consistent with the appearance of the person, that is, Mr Afu, in photograph 19. Specifically, and most obviously, the person in the photograph does not have a tattoo as described on both occasions by Mr Stambolis.

13. [21]

    The fact that Mr Stambolis appears to have been of Mediterranean origin and Mr Afu of Pacific Islander origin is also a relevant matter to take into account in assessing the value of the claimed recognition. Cross-racial identification (and even recognition) involves additional difficulties.

14. [22]

    Regard should also be had to the fact that prior to being shown the 20 photographs of males, Mr Stambolis was shown an array of 8 persons, both male and female, who were said to be associates of Mr Afu. He referred to the person shown in the photograph number 6 in that array and said that this person "could be this Tongan guy": A882. Photograph number 6 was in fact a photograph of Mr Afu's brother, Davy Afu, otherwise known as Tevita Koloamatangi. What Mr Stambolis said about this person in photograph number 6 was not pursued any further by police. More significantly to my mind, it raises a question about the displacement effect which is discussed in various authorities dealing with identification evidence. This might have had some influence when Mr Stambolis was later shown the array that included Mr Afu. The photograph in number 6 in the array of 8 is quite similar to the photograph of Mr Afu in photograph 19 of the array of 20.

15. [23]

    So, having regard to all of those circumstances, and on the assumption that the jury accepts the evidence that there was this identification or recognition, it has to be said, in my view, that the probative value is very low.

16. [24]

    Turning to the prejudicial effect, I take into account that there would be a need for a strong warning about the danger of giving the evidence more weight than is warranted. Here the weight that is warranted is, as I have indicated, very low.

17. [25]

    There is a concern that remains about the jury being seduced by confidently-given evidence of recognition, despite the warning, but this is exacerbated by there being no recording of the act of recognition. The jury would be confined to the oral evidence, plus what was said when the recording was resumed after the recognition was said to be made, and in that subsequent recording there is no replication of precisely what had occurred. That has the effect that there is an inability by counsel for the accused to effectively test the oral evidence and what was said in the later recording and there is an inability of the jury to see the act of recognition and make its own assessment. Video recording is the usual means by which photographic identification procedures have been carried out for quite some time now and that is for a very good reason. The Court, generally, is denied that advantage in this particular case.

18. [26]

    I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice. The evidence is excluded.