The blindness of the eye- Ian R Coyle, David Field and Glen Miller* A criminal trial is an attempt to recreate the past. It involves the presentation of physical and eyewitness evidence. The scientific model has long been accepted in the presentation of physical evidence but not with eyewitness evidence. Although the have long recognised the potential for prejudice that can arise at each stage of the process of eyewitness identification, attempts to remedy this problem have been largely limited to giving judicial warnings and instructing jurors to apply their common sense and human experience. Yet, there are many occasions where common sense fails and there are many occasions where the results of eyewitness identification are counter-intuitive. All too often this has led to grave miscarriages of justice as, whatever warnings are given to a jury, the danger of misidentification remains. The time has come for the superior courts to revisit and carefully examine the very tenuous basis upon which expert evidence is rejected in cases where eyewitness identification is involved. THE PROCESS OF IDENTIFICATION Identification of an accused by an eyewitness The process which occurs when a witness identifies an accused during a criminal trial as the person who committed the offence was well described some 70 years ago by Evatt and McTiernan JJ in Craig v The King (1933) 49 CLR 429 at 446 in the following terms: An honest witness who says “the prisoner is the man who drove the car” while appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver; (2) that the observation became impressed upon his mind; (3) that he still retained the original impression; (4) that such impression has not been affected, altered or replaced … and (5) that the resemblance between the original impression, and the prisoner is sufficient to base a judgment not of resemblance but of identity. The elements involved in the proposition that a witness could identify a driver of a car so astutely observed by Evatt and McTiernan JJ involve fundamental psychological principles in the processing and retention of information, and decision-making. Essentially, these involve consideration of perception, learning, memory and cognition. Each of these areas has been the subject of substantive judicial reflections insofar as expert evidence has been sought to be adduced in these areas over the last seven decades. Equally, each of these areas has been the subject of substantive scientific research over the same period. In our view, the admissibility or otherwise of expert evidence on all of the psychological principles identified by Evatt and McTiernan JJ in this decision, although without direct reference to psychological studies, are critical to the administration of justice. In our view, judicial reflections on these issues, in the main, have been contradictory and confusing. In some cases, the witness may be identifying someone very well known to them, in which case the most likely danger, but not by any means the only one to the accused, will be if the witness is lying. In other cases, however, the witness may be called upon to identify the accused as someone they saw only for a few fleeting moments that were full of drama and emotion, such as during a bank robbery, or, as in the circumstances in the Murdoch case1 (considered below). The dangers inherent in this latter situation were the subject of an authoritative warning from Mason J in Alexander v The Queen (1981) 145 CLR 395 at 426 as follows:

* I Coyle: Visiting Professorial Fellow, Centre for Forensic Excellence, Bond University. D Field: Associate Professor of Law, Director of Centre for Forensic Excellence, Bond University. G Miller: Member, Advisory Board, Centre for Forensic Excellence, Bond University; QC. 1 Murdoch v The Queen (2007) 167 A Crim R 329; [2007] NTCCA 1.

(2008) 82 ALJ 471 471 © Coyle, Field and Miller Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion the person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed. The High of Australia is not the only court in the world to remark upon “the vagaries of human perception”. In R v Sutton [1970] 2 OR 358 at 368, the Ontario Court of Appeal had occasion to refer to “the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection”. In the United Kingdom, the Turnbull Rules, arising from R v Turnbull [1977] QB 224; [1976] 3 All ER 549, defined a set of criteria to enable, in theory, a jury on the basis of appropriate directions from the presiding judge to evaluate eyewitness identification competently. Similarly, in The People v Casey [No 2] [1963] IR 33 at 39, the Supreme Court of Ireland stated: We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerable number of cases in which such identification has proved to be erroneous; and also that they may be inclined to attribute too much probative effect to the test of an identification parade. In our opinion it is desirable that in all cases, where the verdict depends substantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous, to the possibilities of mistake in the case before them and to the necessity of caution. Nor do we think that such warning should be confined to cases where the identification is that of only one witness. Experience has shown that mistakes can occur where two or more have made positive identifications.2 Mistakes not only can occur in eyewitness identification, they repeatedly occur. Despite judicial warnings these are often not appreciated by the triers of fact. In fact, it is well demonstrated that mistaken eyewitness identification is the single largest factor in miscarriages of justice which have been rectified by subsequent indisputable forensic evidence such as DNA analysis.3 This fact alone negates much of the force of the argument that proper warnings to a jury can circumvent the problems inherent in eyewitness identification in the absence of expert evidence to assist jurors in evaluating the probative value of such evidence. Bearing this in mind, what can be done to integrate legal and psychological principles so as to minimise the risk of continued miscarriages of justice based on inaccurate eyewitness ? One way forward is to consider each of the elements involved in eyewitness identification described in Craig from a legal and psychological perspective. This follows, but it is necessary to note that the examples referred to under the headings posited in Craig are just that: examples. It is beyond the scope of this article to provide a thorough exposition of all the psychological principles involved and the experimental evidence supporting these principles in such broad ranging areas of science. It is also necessary to note that, from a psychological perspective, the stages identified in Craig are not discrete. Rather, they overlap to one degree or another. This is not to criticise the approach taken their Honours; it is simply to acknowledge that verbal descriptors of complex neurological events do not necessarily provide discrete criteria for categorisation from a psychological or neuroscience perspective. In any event, the law is verbally based and not amenable to categorical reductionism. This aside, the approach taken here is to demonstrate, hopefully, the putative value of expert psychological evidence vis-à-vis eyewitness evidence in the light of extant judicial reflections and statutory considerations.

2 A similar ruling became the norm in Australia in Domican v The Queen (1992) 173 CLR 555. A good example of a false positive identification (incorrectly identifying a suspect as the perpetrator) by several witnesses is provided in the Case of Adolf Beck (see n 34 and accompnaying text). 3 See Wells GL and Olson EA, “Eyewitness Testimony” (2003) 54 Ann Rev Psychol 277.

© 472 (2008) 82 ALJ 471 The blindness of the eye-witness Observation and perception The sight of cricket umpires utilising lux meters to objectively judge whether or not the level of illuminance4 is safe for play to proceed is common enough in recent years. What has this innovation in the game of cricket got to do with the law? Well, many crimes occur at night or in circumstances of minimal illuminance. Why has expert evidence rarely been adduced in Australian courts on one of the most basic elements of eyewitness testimony: how much illuminance, for example, is needed to be able to identify a suspect at a crime scene? Psychologists are the only scientists who have developed and systematised a body of expert knowledge dealing with perception, eyewitness identification and eyewitness testimony, all of which are critical to the administration of justice. Yet, there has been a great reluctance by the courts in Australia to admit expert evidence from psychologists on these issues. Conversely there are pervasive exhortations given in instructions to jurors to use their “common sense”, ill defined though this is, in considering issues of perception, memory, and eye witness testimony. If a cricket umpire utilises objective measures relevant to perception, why is this evidence not routinely admitted in criminal proceedings when it is routinely admitted in civil proceedings, some of which can be associated with criminal proceedings? For example, expert evidence is routinely admitted vis-à-vis the failure to comply with the levels of illuminance specified in the Building Code of Australia,5 which mandates minimum levels of illuminance in a variety of situations. Failure to comply with the provisions of this Code, which has been adopted by statute throughout Australia, can render designers, builders and occupiers of premises subject to civil and criminal sanctions. Expert evidence is normally admitted in such cases. And it is founded, inter alia, on the minimum levels of illuminance required by objective, scientific studies to be able to perceive the environment so as to be able to recognise features necessary to move safely in a variety of situations. The human visual system does not discriminate between the amount of illuminance required to perceive an escape route from a building in conditions of relative darkness, a cricket ball when playing with variable illuminance, or the facial/anthropometric characteristics of a villain at night or under other visual conditions which affect perception. Despite the scientific objectivity mandated in other areas of the law in criminal cases, witnesses routinely assert that a crime scene was illuminated “sufficiently” for them to be able to accurately perceive the accused without there being any objective measures of the levels of illuminance, let alone other relevant measures, vis-à-vis visual perception and recognition, such as contrast, expectancy effects and the effects of drugs and alcohol on visual perception, to name but a few. To our knowledge, there have only been two cases where expert evidence has been admitted in Australia as to the amount of illuminance and other objective relevant perceptual factors relating to the reliable identification of an alleged villain at night. One of the authors (IRC) was involved in both of these cases as an expert witness. R v Hepburn (unreported, District Court, Qld, O’Sullivan J, 25 August 2003) involved a night time robbery at a drug warehouse where the police claimed to have been able to observe, through binoculars, the facial characteristics of the accused leaving the scene. There was no substantive evidence linking the accused to the scene of the crime. Objective measurement of the level of illuminance at the scene, the resolving power, light transmission and relative brightness of the binoculars (to name but some of the elements of visual perception involved in this case) employed by the police at the material time demonstrated that the facial characteristics of the person they claimed to have observed would have been orders of magnitude below the resolving power of the human visual system. A not guilty verdict resulted. R v Fuhrmann (unreported, Supreme Court, NSW, Newman AJ, 8 October 2004) involved an alleged identification a murderer at a night time crime scene by a surviving victim who was greatly affected by alcohol at the material time. In addition, he claimed to have been able to identify the perpetrator who was standing in shrubbery while looking towards a bright light which would have induced what is technically referred to as disability glare. There was no other substantive evidence

4 “Illuminance” refers to the light incident upon an object: this is measured in lux in the metric system. 5 See Building Code of Australia (1996), s F4 and as amended.

(2008) 82 ALJ 471 473 © Coyle, Field and Miller linking the accused to the crime scene. Purely considering the well documented effects of alcohol on visual perception under the low levels of illuminance and other relevant visual factors such as disability glare that obtained at the material time it was argued that the victim’s perception would have been so seriously compromised as to render any identification gravely suspect. A not guilty verdict resulted. In 1996, a seminal study was conducted by Wagenaar and van der Schrier.6 It was seminal, not because it was a technological tour de force although it was a robust and well designed study. It was seminal, if not extraordinary, because it dealt with a simple question that no one had addressed in any scientific forum before: how much illuminance is needed to be able to accurately identify a suspect at a crime scene at various distances? The authors reported on the confidence interval of witnesses being accurate under a variety of conditions, that is, they produced tables of accuracy of recognition. The methodology employed, Signal Detection Methodology7 is so well established that it used by military air traffic controllers, for example, as a basis for determining whether or not a pattern on a radar screen is a false alarm or a real threat. It might seem that looking at a radar screen and trying to discern a threat bears no to looking at a series of photographs of faces and trying to identify which is a villain. However, from a perceptual viewpoint, both these tasks involve pattern recognition and so the methodology can be used in different contexts. In fact, perception always involves pattern recognition as is clearly recognised in the judgment of Evatt and McTiernan JJ in Craig, albeit that it was not explained in these terms. Signal Detection Methodology, which provides an unparalleled means of assessing pattern recognition is, simply put, the gold standard in studies of perception and is as unchallenged in the disciplines of visual physiology and perception as DNA testing is in the disciplines of medicine, genetics and forensic pathology. Wagenaar and Van Der Schrier’s study, based as it was on over 100 years of research in perception, has led to a fundamental change in the law in The Netherlands. Expert evidence on issues of perception is now routinely adduced in such cases in this jurisdiction. Yet, in many jurisdictions in Australia, if the prevailing wisdom is accepted, the triers of fact are overwhelmingly denied the access to scientific data that could assist in resolving issues of identification, despite the well acknowledged problems involved in identification evidence. Indeed, the prevailing view in many legal circles is that expressed in R v Smith [1987] VR 907; 25 A Crim R 1. Referring to this judgment, Freckelton8 paints a gloomy picture of the receptiveness of the courts in Australia to evidence from psychologists, particularly in cases involving perception and eyewitness identification. This view stands in stark contrast to that expressed by Mullane.9 Defining “social facts” for the purpose of his article as “facts revealed by the disciplines of psychology, sociology, anthropology, political science and related fields”, Mullane concluded: Australian law provides numerous avenues for litigants to prove social facts in the Family Court of Australia, however, a survey of judgments in children’s cases and a survey of judges of the Family Court of Australia show that these methods are not often used. The judges in judgments appear to often rely upon private knowledge to arrive at findings of social facts. They perceive a need for more frequent evidence of social science research.10 Freckelton founds his argument on the opinions expressed in Smith, particularly the “common knowledge rule”, referred to in that judgment, in which Vincent J observed, in relation to expert

6 Wagenaar WA and Van Der Schrier JH, “Face recognition as a function of distance and illumination: A practical tool for use in the courtroom” (1996) 2 Psychol Crime & Law 321. 7 Green DM and Swets JA, Signal Detection Theory and Psychophysics (John Wiley & Sons, NY, 1966). Also referred to as Receiver Operating Characteristic or ROC analysis in the forensic psychological literature. 8 Freckelton I, “Social sciences and the justice system: Contemporary Roles and Counter Intuitiveness” in Chappell D and Wilson P (eds) Issues in Australian Crime and Criminal Justice (Butterworths, Sydney, 2005). 9 Mullane GR, “Evidence of social science research: Law, practice and opinions in the Family Court of Australia” (1998) 72 ALJ 434. 10 Mullane, n 9 at 456.

© 474 (2008) 82 ALJ 471 The blindness of the eye-witness psychological evidence sought to be adduced as to perception: Processes of human perception have been the subject of considerable analysis in a number of other disciplines over recent years. The assumptions generally made in relation to them and upon which trials have been conducted for generations have been queried and on occasions possibly thrown into doubt by researches conducted in those disciplines. Nevertheless, in general terms, the conduct of criminal trials still depends upon the acceptance of a number of premises. Among these are assumptions that human beings are capable of observing events, of recalling that which has been observed and subsequently, verbally for the most part, repeating that which has been heard and describing that which has been seen. These basic assumptions still remain fundamental to the operation of the criminal justice system.11 This case, at first instance, was the subject of an unsuccessful appeal to the Victorian Court of Criminal Appeal and ultimately an unsuccessful application to the High Court by way of special leave, where the High Court indicated that it would not reconsider settled law. Deane J held: It is basic to the operation of the jury system the general questions as to the credit and reliability of the evidence of witnesses, including the reliability of identification evidence, are, subject to special exceptions [emphasis added], matters which are within the range of human experience which must be determined by the assessment of the jury.12 While there are many cases where expert evidence as to the reliability of identification evidence as it pertains to perception and identification is not required, there are many cases where the obverse holds. Further, there are many issues of identification, insofar as it is only a function of perception, that most definitely are not within the range of human experience of the average juror. There are numerous examples in the vast literature on perception that confirm this argument. Many of them debunk the notion that the common sense and human experience of jurors will serve them adequately in their deliberations, provided they are assisted by judicial warnings. For example, judicial imprecations to apply common sense, undefined as it is and poorly explicated in the common knowledge rule, is based on the proposition that common sense is valid and reliable across a wide spectrum of situations. This is not so. For example, common sense tells us that if one views two objects at the same distance and one looks to be bigger than the other, then it is so. This is, in many cases, wrong, as is proved by examples of visual illusions. The Muller-Lyer Illusion is one well known example. One line looks longer than the other, but it is not. Muller-Lyer Illusion

sss Common sense fails us in this case. We do not know, precisely, how the Muller-Lyer Illusion, or any other illusion for that matter, operates. But this lack of knowledge does not affect the power of illusions.

11 R v Smith [1987] VR 907 at 909; 25 A Crim R 1 at 4. 12 Smith v The Queen (1990) 64 ALJR 588 at 588.

(2008) 82 ALJ 471 475 © Coyle, Field and Miller There are other visual illusions which we experience in everyday life. Mostly, we are unaware of them, often with inimical results. The Dietzel-Roelofs Illusion is one such example. It has been proposed with considerable justification as an explanation for head-on accidents on straight, relatively featureless, country roads.13 Another commonly encountered example of the problems of misperception of size in forensic cases involves rear-end collisions of motor vehicles at night. Sometimes reference is made to this as the “moth effect” whereby drivers are drawn like moths to the light. As Olson14 pithily observes: When an intoxicated individual runs into the rear of a police car with all its lights going this may not be an unreasonable explanation. People who are not intoxicated run into stopped or slow moving vehicles on occasion, however, sometimes leading investigators to conclude that they must have been very inattentive to have failed to see it. Detection is not the problem … the driver must not only see something, but must understand what it is and what it is doing. There is nothing unusual about closing on another vehicle, but closing on another vehicle at high speed, particularly in the absence of other visual clues (for example, on a deserted country road), requires attending to the image size of the other vehicle. If a vehicle or any other object appears to be getting larger quickly, it is probably getting closer, fast. The problem here though is that the image size depends on the distance and the rate of closure. Consider a vehicle stopped at night while another vehicle approaches from behind. Between 1,000 and 500 feet (304.8 and 152.4 metres) the image doubles, yet between 250 and 50 feet (76.2 and 15.2 metres) it doubles again. Imperial measurements are used here to demonstrate that this problem is not confined to those countries that adopt the metric system of measurement: perception is not affected by the bewildering farrago of laws and regulations that govern admissibility of expert evidence on such issues. Thus, a high rate of closure only becomes apparent when the distance between the vehicles has reduced significantly. This is a dangerous perceptual limitation and it is completely outside the control of anyone to affect. In fact the ability of drivers to judge the relative speeds of other vehicles, whether traveling in the same direction or not, is limited, even in controlled studies. In considering this example it is important to consider that we have no capacity to affect the perceptual limitations imposed upon us by our genes. For example, we cannot choose to ignore the Muller-Lyer Illusion even though we know it to be just an illusion. The legal import of this simple fact is as obvious as it is profound. When does something become impressed upon the mind? From a psychological perspective, the short answer is within 150 milliseconds, or thereabouts, or some time later, if at all, depending on what is meant by “impression”. Re-phrasing the question to: “How long and under what conditions does an individual need to be exposed to a stimulus to remember it?” narrows the focus somewhat in a legal context. We all observe countless details in interacting with the world. Most of them are unremarkable and do not leave any lasting impression. In the forensic context the problem can, fortunately, be largely phrased in terms of the time an individual is able to perceive an object and the attention they apply to it. In general, the most important of these factors is attention. The time that a witness has to perceive a culprit is not as important to identification as the type or amount of attention given to the villain.15 Complicating the issue is the demonstration that the presence of a weapon reduces the chance that an eyewitness can identify the person holding the weapon.16 Not surprisingly, in this situation the eyewitnesses’ attention is focused on the weapon rather than the person holding it. More generally, there is considerable evidence to suggest that high levels of emotional arousal causes a narrowing of

13 Triggs T, “Observations of driver braking and steering performance” (1988) 88 Erg Int 469. 14 Olson PL, Forensic Aspects of Driver Perception and Response (Lawyers & Judges Publishing Co, Tucson, 1996) pp 54-55. 15 Leippe MR, Wells GL and Ostrom TM, “Crime seriousness as a determinant of accuracy of eyewitness identification” (1978) 63 J Appl Psychol 345. 16 Loftus E, Loftus G and Messo J, “Some facts about ‘weapon focus’” (1987) 15 Law and Human Behav 55.

© 476 (2008) 82 ALJ 471 The blindness of the eye-witness attention with loss of recall of peripheral details. In fact, this phenomenon follows the Yerkes-Dodson law which states that only very low and very high levels of arousal will impair memory. Extraordinary examples of the way that observations can fail to become impressed upon the mind in the most bizarre of circumstances is provided in studies of inattentional blindness, sometimes called change blindness. In one famous study, observers were asked to count the number of times two teams of three players, one team dressed in white and one team dressed in black, passed a basketball between team members over a one minute period. After 35 seconds, a person dressed in a gorilla suit walked between the teams, thumped his chest and exited after nine seconds. Fifty percent of the observers completely failed to notice this even when they were asked if they noticed anything unusual! In fact, even after being told what had occurred it was necessary for the experimenters to rewind the videotape to prove to the observers that a gorilla had indeed been shown on the tape. People dressed in gorilla suits are unlikely to be encountered in day-to-day life and the failure of observers to notice this bizarre event proves just how important attention is enabling observations to be recalled even when one is paying close attention to a scene.17 Subsequent studies have replicated this finding in numerous situations that are more likely to occur in the real world. In the light of the above it is relevant to reconsider Alexander.18 The facts of the case provide a perfect illustration of the effect of attention on memory. A was convicted of burglary, following his identification as the person seen near the scene of the crime by several witnesses, one of whom was a police officer (B), who had seen A as one of two men running from a car subsequently linked with the burglary. A few hours later, he allegedly identified A from a folder of photographs, and then, at A’s trial, he identified A again in the dock. In the course of A’s unsuccessful appeal to the High Court against his subsequent conviction, Stephen J observed: the quality of (B’s) evidence must greatly affect its cogency. He spoke of (A’s) photograph only as “reasonably similar, anyway” to the man he had earlier seen. That man was a stranger whom he had never seen before. His opportunity of observing him had been slight: he first saw him, reflected in the rear vision mirror of the police car, as the car driven by the man approached the police car from the rear; and again as the car passed the stationary police car, with the driver of the police car and the front seat passenger of the other car between (B) and the man: all this at a time when (B) did not know that there was anything to be remarked about the man or his car and when (B) failed to draw the car to the attention of his companion in the police car. He saw him again for a few seconds while the man was making his escape on foot, pursued at a distance by police … All this in my view required the discretionary exclusion of (B’s) evidence of identification.19 Clearly, the psychological literature supports this view. One can only speculate on A’s prospects had expert psychological evidence been called as to the credibility of B’s evidence insofar as it applied to the first two tests proposed in Craig. The judgment in Smith was founded on the common knowledge rule and, in part, on the credibility rule. There are specific exceptions to the credibility rule within Australian jurisdictions. For example, in the New South Wales version of the Uniform Evidence Act, there are numerous exceptions to the credibility rule. For the purposes of the argument espoused here, s 106(d) is particularly relevant. This states: “The credibility rule does not apply to evidence that tends to prove that a witness … is, or was, unable to be aware of matters to which his or her evidence relates.” This merits further examination. In Uniform Evidence Law (7th ed), Odgers quotes as an example, the following general considerations of potential application of the exception afforded by s 106(d): This formulation is significantly different from that in s 104(3)(b) in that there is no express reference to an inability to “recall” matters to which the witness’ evidence relates. This omission may have been inadvertent. However, the NSW Court of Criminal Appeal has rejected a submission that the provision

17 Simons DJ and Chabris CF, “Gorillas in our midst: Sustained inattentional blindness for dynamic events” (1999) 28 Perception 1059. 18 Alexander v The Queen (1981) 145 CLR 395. 19 Alexander v The Queen (1981) 145 CLR 395 at 420-421.

(2008) 82 ALJ 471 477 © Coyle, Field and Miller should be broadly interpreted to permit evidence relating to an inability “to recall”. Nevertheless, despite this important limitation, this provision has been interpreted broadly, extending too many aspects of “reliability”, including “psychological, psychiatric or neurological considerations” creating a “proneness to lying”. If the witness has denied the substance of these matters in cross-examination, evidence may be admitted to prove them (subject to the court’s discretion). Thus, the cross-examining party may be permitted to call expert testimony to establish the condition which allegedly may affect awareness, so long as the requirements of s 79 are satisfied. For example, an ophthalmologist who has examined the witness may be permitted to testify to the extent of the witness’s shortsightedness, where this is relevant to whether the witness’s testimony should be accepted On the face of it, this provision would permit (subject to the opinion provisions in Pt 3.3 and the discretions in Pt 3.11) evidence to be given on problems with perception and identification processes generally: for the common law position, compare Smith v The Queen (1990) 64 ALJR 588 [footnotes omitted]. Having regard to the well documented phenomenon of change blindness it is not stretching too long a bow to argue that expert psychological evidence on perception and recall falls within the ambit of information that a witness is, or was, potentially unable to be aware of. In HG v The Queen (1999) 197 CLR 414 at [58]; 73 ALJR 281 per Gaudron J, the High Court, applying the common law test for the purposes of s 79 of the Evidence Act 1995 (NSW), addressed specifically the position of a psychologist’s opinion in a child sex abuse case in the following terms: So far as this case is concerned, the first question that arises with respect to the exception in s 79 of the Evidence Act is whether psychology or some relevant field of psychological study amounts to “specialised knowledge”. The position at common law is that, if relevant, expert or opinion evidence is admissible with respect to matters about which ordinary persons are unable “to form a sound judgment … without the assistance of (those) possessing special knowledge or experience … which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience”. There is no reason to think that the expression “specialised knowledge” gives rise to a test which is in any respect narrower or more restrictive than the position at common law. Gleeson CJ held a similar position when he opined, that it is “not in dispute that psychology is a field of specialised knowledge”. He referenced this opinion as follows (at [40]): It is not necessary for present purposes to enter into issues of the kind considered in Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993). It is the language of s 79 which has to be applied. Even so, warnings have been expressed as to the care to be taken in the use in cases such as the present of certain aspects of the behavioural sciences: see, for example R v F (1995) 83 A Crim R 502; Underwager and Wakefield, “A Paradigm Shift for Expert Witnesses”, Issues in Child Abuse Accusations (1993), vol 5, pp 156-167. Clearly this leaves open the prospect of expert evidence being led not only on issues of perception but on the psychological processes of memory as they apply to identification. At the risk of repetition it is necessary to note that the psychological processes involved in observation, retention, recall and identification of events of whatever type are not discrete. The processes identified in Craig rather represent continuous and dynamic neural processes in the normal course of events. What affects an impression upon the mind? Just as the eye is not a camera, so memory is not like a video-recorder. Memory is an interpretive process. Gudjonsson’s20 description of the memory process uses the terms acquisition, retention, and retrieval. The first two stages of the process outlined in Craig are largely concerned with acquisition of information. Memory errors typically involve a failure to pay attention to stimuli or selective attention or interference with the memory process by thoughts, feelings and external stimuli. Individuals forget information because it fades if it is not used (decay theory) or because of the influence of other learning (interference theory). Interference can be retroactive or proactive. While decay can and does occur, it is more common for interference to be the major cause of forgetting in long term memory. In the forensic context interference can occur in the most surprising of ways. Professor Don Thompson, the expert whose evidence was sough to be adduced in Smith is the only professor of psychology, so far as we are aware, considered a suspect in connection with rape in

20 Gudjonsson G, The Psychology of Interrogations, Confessions and False Testimony (John Wiley & Sons, Chichester, 1993).

© 478 (2008) 82 ALJ 471 The blindness of the eye-witness Australia. He was identified after appearing on television and discussing forensic cases, by a victim who had been raped shortly before. Although he bore a resemblance to the perpetrator and the victim was adamant in her identification he was released shortly after being questioned. The timing and place of interview he was giving, which had been seen by the victim, totally precluded him being the rapist. This case may be explained by a very old idea that has been recently supported. That is, recently activated highly arousing memories are vulnerable to the effects of interference.21 As Nader22 notes, the notion that new memories are initially labile, that is prone to decay or interference, before becoming permanently stored or hard wired in the brain, has been dogma for more than 100 years. However, recent neurobiological techniques have shown that reactivation of a consolidated memory can return it to a labile state in which it can be modified or even erased. This finding has enormous consequences for the way in which memory traces are considered in the criminal justice system. In short, they are not like physical trace evidence which is not altered with the passage of time or, if proper scientific procedures are employed, when subject to examination. There are, of course, other factors that affect whether or not an observed event, assuming it has been attended to, is recalled. Apart from obvious factors, such as neuropsychological insult occasioned by trauma or some disease process, there is a range of surprisingly common factors that can interfere with the prospect of an observation being remembered. For example, state-dependent memory is a well known phenomenon in psychopharmacology.23 Simply put, if an individual learns something under the experience of a drug they are more likely to be able to remember it when they are exposed to a similar physiological concentration of the drug. Apart from recreational drugs, there are a number of prescription medications which can induce, to one degree or another, this phenomenon. It is surprising that this has not been explored further in a legal context having regard to the credibility rule. Although it makes sense, both from a psychological/neuroscience perspective to discriminate between what affects the impression of an observation and what alters or replaces it, in practice discrimination of these stages in the process of identification is incredibly difficult. Apart from the examples cited here we are unaware of substantive judicial reflections on this point alone. Although it is true that numerous judicial comments have been made as to the effects of drugs on memory in the context of criminal cases we are unaware of any cases where this has not been primarily concerned with the retention of an observation by an eyewitness. Although the difference between blocking an impression, retention of an impression and blocking access to retention of an impression is not nugatory, there does not seem to be any way to advance this argument in any practical sense as it pertains to the law, apart from the examples cited here. Retention of an observation The time course over which questions are asked, the context and the way in which questions are asked provide fertile ground for decay to blossom and interference to flourish. This is particularly important with children witnesses and highly suggestible adults,24 but no one is immune from the subtle and pervasive effects of the context and the format of questions. A number of classic studies demonstrate this point. In one study, observers who viewed a photograph, film or physically saw an individual and then heard a description of the suspect that was incorrect were influenced by the description. For example, if they were told by another witness that the individual they had seen had a moustache, despite the fact that the suspect did not, then when they subsequently came to identify the individual nearly 70%

21 Nader K, Schafe GE and Le Doux JE, “Fear memories require protein synthesis in the amygdala for reconstruction after retrieval” (2000) 406 Nature 722. 22 Nader K, “Memory traces unbound” (2003) 26(2) Trends in Neurosciences 65. 23 Goodwin DW, Powell B, Bremer D, Hoine H and Stern J, “Alcohol and recall: State-dependent effects in man” (1969) 163 Science 1358. 24 Bruck M and Ceci SJ, “The suggestibility of children’s memory” (1999) 50 Ann Rev Psychol 419; Frizton K, “Assessing the reliability of interviews with vulnerable witnesses” in Allison J (ed), Offender Profiling and Crime Analysis: A Forensic Psychology Case Book (William Publishing, Devon, 2005).

(2008) 82 ALJ 471 479 © Coyle, Field and Miller “recognised” an individual with a moustache.25 Similarly, when individuals viewed a film of an automobile collision, the amount of damage they recalled was affected by seemingly innocuous changes to the post-event questions asked. Changing the question from “About how fast were the cars going when they hit each other?” to “About how fast were the cars going when they smashed into each other?” affected the amount of damage that the observers recalled.26 When are impressions altered, affected or replaced? The examples cited in the preceding section overlap with the well known misinformation effect on memory. The misinformation effect refers to the effect of misleading information after the memory has become established which impairs, alters or erases the memory. There are some truly striking examples of this for real world events. Details for events that did not occur, such as wounded animals being present, have been implanted into memories of a scene of a terrorist bombing,27 and children have incorporated details of events into allegations of sexual abuse that are utterly bizarre.28 Interestingly, warning people that may have been exposed to misinformation only works sometimes in helping them resist the misinformation.29 As Loftus notes: In the real world misinformation comes in many forms. When witnesses to an event talk with one another, when they are interrogated with leading questions or suggestive techniques, when they see media coverage about an event, misinformation can enter consciousness and cause contamination of memory. These, of course, are not the only source of distortion in memory. As we retrieve and reconstruct memories, distortions can creep in without explicit external influence, and these can become pieces of misinformation.30 As was noted at the beginning of this article, a criminal trial is essentially an attempt to recreate the past. Typically, it involves presentation of physical evidence, often trace evidence uncovered by forensic techniques and presentation of what might be referred to as the memory trace evidence of eyewitnesses. Scientific protocols have been developed for the presentation of physical evidence and the courts have embraced scientific methods for the presentation of such evidence. Yet there has been no such adoption of scientific methods for the presentation of memory trace evidence.31 This defect cannot simply be remedied by judicial warnings. When and how are judgments of identity based upon identity and not resemblance of the original impression? Nowhere in the criminal justice system do the courts have the opportunity to provide guidance, limit the excesses of corrupt and incompetent investigators and proscribe the evidence of overzealous lying or plainly stupid witnesses more directly than in the final stage of the process identified in Craig. It is not surprising then, that this stage of the process of identification identified in Craig has attracted the greatest amount of judicial notice. Identification evidence has been said to take one of three distinct and separate forms.32 (1) Recognition As the Court of Criminal Appeal of South Australia put it in R v King (1975) 12 SASR 404 at 410:

25 Loftus EF and Greene E, “Warning: even memory for faces may be contagious” (1980) 4(4) Law and Human Behav 323. 26 Loftus EF and Palmer JC, “Reconstruction of automobile destruction: An example of the interaction between language and memory” (1974) 13 J Verbal Learn and Verbal Behav 585. 27 Nourkova VV, Bernstein DM and Loftus EF, “Altering traumatic memories” (2004) 18 Cognition and Emotion 575. 28 Davies G, “Research on children’s testimony: Implications for interviewing practice” in Hollin CR and Howells K (eds), Clinical approaches to Sex Offenders and Their Victims (John Wiley & Sons, Chichester, 1991) Ch 5. 29 Loftus EF, “Planting misinformation in the human mind: A 30 year investigation of the malleability of memory” (2005) 12 Learn and Mem 361. 30 Loftus, n 29 at 365. 31 Wells GL and Loftus EF, “Eyewitness Memory for People and Events” in Weiner IB and Freedheim DK (eds), Handbook of Psychology (John Wiley & Sons, Chichester, 2003). 32 Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases, 1976 (Devlin Report).

© 480 (2008) 82 ALJ 471 The blindness of the eye-witness Recognition constitutes a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person. In so doing he no doubt takes into account the general physical characteristics of the person who he is recognising. But a complete catalogue of these personal characteristics, if supplied to a stranger, would be insufficient to enable that stranger to achieve the same act of recognition … he could not say “it is the man”; and it is that type of evidence of which the cases speak when they refer to evidence of identification. A similar observation was made in Turnbull: Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognise someone whom he knows the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.33 As indicated by his Honour in that case, even direct recognition evidence can be fallacious. Perhaps the best-known example of such an occurrence, historically, is afforded by the Case of Adolf Beck in 1895, when B was falsely identified by several women independently as the man with whom they had shared an intimate relationship before he swindled them out of their jewellery. The fallout from Beck’s wrongful conviction not only spawned what ultimately became, in 1907, the Court of Criminal Appeal for England and Wales, but also led to a Committee of Inquiry, whose Report warned the common law world that: evidence as to the identity based on personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe basis for the verdict of a jury.34 One can only assume that the women in Beck’s case genuinely believed what they were saying, which would tend to make them more impressive as witnesses. Visual identification as has been demonstrated is a very subjective and hazardous process, but because it involves direct evidence by a witness who is usually convinced that they are telling the truth, it can be a far more convincing form of evidence than is really justified for what it is. In essence, visual identification is merely an opinion that the person involved in the crime is the person in the dock. More recently, in Peck v Western Australia [2005] WASCA 20, the same point was made in a case in which the accused, P, was alleged to have assaulted her former de facto’s new de facto, R, in the bedroom of their new home, while she was in the process of falling asleep. P was identified as the assailant by R, whilst the former de facto, I, saw her walking away from the house in the company of two other women after R pointed her out to him from the verandah of the house immediately after the alleged assault. Although the lighting in the bedroom was not of the best (whatever that might mean in objective terms), P was R’s first cousin, whom she had known virtually all her life, and although I had only seen P from behind, he had lived in a de facto relationship with her for some 10 years and she claimed to have been able to identify him. In dismissing P’s appeal, Roberts-Smith JA (with whom the other judges concurred), quoting Turnbull, stated (at [50]-[51]): In my opinion his Honour was quite correct to describe the evidence of [R] and [I] as evidence of recognition rather than identification. There is a significant difference between identification evidence coming from witnesses not knowing the accused and from those knowing him or her. The first category really is identification evidence properly so called, whereas the second is better described as recognition. The distinction is not always recognised in the cases and there are instances in the authorities in which what is really identification has been referred to as recognition. Nonetheless the distinction, as I say, is important because a warning, or at least a different warning, is required in the case of identification evidence but not necessarily the latter, that is to say, recognition evidence.35 An interesting issue regarding recognition evidence arose in Polidano v The Queen [2003] WASCA 93, in which P was convicted of the murder of a man in an isolated location near a mine site

33 R v Turnbull [1977] QB 224; [1976] 3 All ER 549 at 552 per Lord Widgery. 34 Report of the Committee of Inquiry into the Case of Mr Adolf Beck, 1905, Cd 2315, vii. 35 His Honour is here referring to the traditional “Domican” warning, which is considered below. For another recent case involving the distinction between “identification” and “recognition”, this time from South Australia: see Smith v Police [2004] SASC 25. For such a case in the Northern Territory: see Tatam v Svikart [1999] NTSC 54.

(2008) 82 ALJ 471 481 © Coyle, Field and Miller in Bunbury. One of the witnesses was a truck driver, Q, who passed the scene of the murder at some speed, and was able to describe a motor vehicle which he saw there, in terms which linked the vehicle to P. However, although he caught sight of a man associated with the vehicle, and although P was well known to him over a period of time, he was unable to say that the man was P. Although the general description he gave of the man he had seen was consistent with it having been P, Q explained in evidence that he had not seen his face, and that “He didn’t appear to be anyone that I knew. The person made no effort to try to get my attention. If anything he was intent on not being seen.” Not unnaturally, the defence wished to make something of this, to the effect that the person “seen” by Q could not have been P. However, in the process of dismissing the appeal, Parker J (with whom the other judges concurred), in response to the defence’s suggestion that the trial judge should have issued a Domican warning, stated (at [104]-[106]): In his charge to the jury, the trial judge observed: … there is no question of [Q] having recognised that man, or having identified him as the accused. However, he did suggest that the man looked away and he never saw his face. … … … In my view, the evidence of [Q] was quite clearly not identification evidence within the purview of Domican … A Domican direction would, therefore, have been quite inappropriate and potentially misleading. (2) Resemblance A clear example of this form of identification is afforded by R v Bartels (1986) 44 SASR 260 in which a couple who witnessed a man struggling with a woman from a considerable distance away “recognised” him shortly afterwards when he jogged past them in the street, primarily on the basis that he had a similar build. It was held that, “this evidence was evidence of an assumption of identity based on circumstances, not evidence of visual identification” (at 274 per Johnston J). (3) Distinctive characteristics The more unusual or individual the characteristics, such as tattoos, that are claimed to apply to the accused, the stronger the evidence. This was described by McHugh J in Festa v The Queen (2001) 208 CLR 593 at 611 as “circumstantial identification evidence”. McHugh J added (at [56]): It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime … It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime. Identification evidence: Direct evidence and circumstantial evidence It has been argued that only the first of the above three categories should be regarded as “direct” evidence sufficient to identify the accused and support a conviction.36 The remaining two are in essence items of circumstantial evidence which go into the general mix of evidence from which the jury have to decide whether or not the Crown have excluded all reasonable case theories consistent with the accused’s innocence.37 This is particularly important to bear in mind when the witness is being asked to identify, by means of a photograph, a suspect they saw only fleetingly. In Alexander, Stephen J gave the following reasons why identification by photograph alone is potentially hazardous: When identification is attempted with the aid of photographs, there are introduced peculiar difficulties, due to the various ways in which photographic representations differ from nature: their two dimensional

36 See Pitkin v The Queen (1995) 69 ALJR 612 at 614; 80 A Crim R 302, a case in which the only evidence against P was that of an eye-witness who asserted that photographs shown to her of P “looked like” the offender. The High Court quashed P’s subsequent conviction. See also Peck v Western Australia [2005] WASCA 20; cf R v BBA [2006] QCA 234; R v Hackett [2006] VSCA 138; R v Evan (2006) 175 A Crim R 1; [2006] QCA 527. 37 See R v Athuai [2005] VSC 192.

© 482 (2008) 82 ALJ 471 The blindness of the eye-witness and static quality, the fact that they are often in black and white and the clear and well lit picture of the subject which they usually provide … Again, by what may be called the “rogues’ gallery” effect, evidence that the police had in their possession and showed to the identifying witnesses photographs of the accused may often strongly suggest to a jury that the accused has a criminal record … Lastly, there is the “displacement” effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting. … … To attack his evidence of identification the defence will wish to expose this effect. But cross-examination which reveals the earlier photo-identification will be likely to subject the accused to the rogues’ gallery effect … In the evidentiary process, then, photo-identification has serious disadvantages, in addition to that of its inherent unreliability.38 The term “displacement effect”, although understandable in the context of a judicial decision at the time, is misleading. It is more accurate to refer to this phenomenon as a classic example of post event misinformation coupled with, in some cases, overt investigator bias. Still, the term has gained currency in legal circles and with these misgivings it is referred to herein as such. A recent example of the rejection of identification evidence based on a photo-board process which might have given rise to the “displacement” effect was supplied by the Northern Territory case of R v Yirrawala [2004] NTSC 7,39 in which Y had been identified as the person responsible for a break and enter at the home of the witness M, whom he had woken up when he crept into her bedroom and indecently assaulted her. M conceded that she had only seen the offender in profile in poor light for no more than a second before he ran from the room, and yet she had subsequently identified him from a photo-board. In the words of the trial judge who refused to allow in the evidence of this identification (at [10]): In those circumstances there is a significant danger that what she now recalls is not the face of the accused that she saw that night, but the photo of the accused which was shown to her on the photo-board … the probative value of this evidence was very small and was clearly outweighed by its prejudicial effect. This has been partially recognised, in that, over the years, successive senior appeal courts have built procedural safeguards into the reception of eyewitness identification evidence. But they have done comparatively little towards allowing expert evidence to be adduced on the fallibility of human observation. These issues may be considered seriatim. Judicial direction on the jury use of identification evidence The procedural form First came judicial attempts to regulate, and to some extent control, the procedural form which identification ought to take. This began in Alexander, with the strong suggestion that identification parades were to be preferred over the use of photo-boards, or any other form of photographic identification, at least when the resulting identification was to be employed in the evidential process, as opposed to the investigative stage of a police operation. Thus, in Alexander, Stephen J opined: Photo-identification thus remains available as an effective aid in the detection of crime, but will tend to be excluded from the trial evidence unless its intrusion be justified by its earlier use having occurred in the detection process. Where it is not excluded from the trial evidence the accused obtains some

38 Alexander v The Queen (1981) 145 CLR 395 at 409-410. 39 Similar issues arose, however, but were dealt with inconsistently, in another recent Northern Territory case, Murdoch v The Queen (2007) 167 A Crim R 329; [2007] NTCCA 1 (considered below) in which, prior to identifying M by way of a photo-board as the person who had assaulted her, the victim saw his photograph on an internet site, as part of a news item in which he was described as the main suspect in the case. The photo-board evidence, and even a subsequent dock identification, were nevertheless allowed into evidence by the trial judge, and this decision was upheld on appeal.

(2008) 82 ALJ 471 483 © Coyle, Field and Miller protection against its prejudicial consequences by the existence of that exclusionary discretion, dependent upon a balance of prejudice against probative value, always vested in trial judges, who will also, where appropriate, warn the jury of the particular dangers of this form of identification.40 He added: photo-identification … will possess only its character of a second-best mode of identification, particularly prone to error and also productive of those well-recognised consequences so likely to be prejudicial to an accused. This will in most cases be reason enough, at least where some more reliable mode of identification such as an identification parade was available, to exclude from evidence the identification testimony of a witness whose testimony has been infected by contact with photo-identification.41 Mason J was even more forthright: Because it is evidence which may be inherently fragile and it may be influenced by suggestion, considerations of fairness indicate that the police should, wherever possible, arrange for an identification parade, when the accused has greater opportunity of knowing the circumstances under which the identification comes to be made … the conduct of the police in failing to arrange an identification parade when it could have done so deserves strong censure.42 Murphy J based a concurring judgment on the then recent recommendations of the Australian Law Reform Commission Report: The Australian Law Reform Commission reported their firm view “that the showing of photographs of a suspect to a witness after the suspect has been apprehended should be prohibited. Where a suspect is still at large and unidentified the showing of photographs is unavoidable. But this rationale ceases as soon as he is in custody: identification then, if necessary, should be by parade. The Commission recognises the necessity for an exception to this rule when the person in custody refuses to take part in, or consistently aborts, a parade, or where for some reason – he is unable meaningfully and fairly to participate.” (Report No 2 Criminal Investigation (1975), p 56 …). In general judicial discretion should be used to exclude photo-identification evidence obtained after the detection process.43 The practical drawback to the suggestion that suspects always be identified by means of an identification parade is that, in most jurisdictions, out of considerations relating to civil liberty, and some lingering concern over self-incrimination, no suspect is obliged to take part in one, and may refuse to do so. Under Queensland law,44 this is the effect of s 617 of the Police Powers and Responsibilities Act 2000 (Qld), which also prescribes the permissible alternatives. These are: “photo board”; “videotape”; “computer-generated image” (the successor to the Identikit picture).45 In extreme cases, the principles enunciated in Alexander can result in identification evidence being rejected even though an identification parade has been conducted. This is what transpired in R v Kostic (2004) 151 A Crim R 10, in which the court rejected evidence of an identification parade in which a witness (B) identified K, even though he had previously told police that the person he had seen had been a woman. As Bleby J put it (at [34]): There was an obligation on the police to present persons of reasonably similar build and features to those of [K]. That could not include a woman. However, that did not render the evidence admissible. The fact that [B] had previously described a woman as the person he was then asked to identify merely meant that he should not have been asked to identify anyone from the line-up at all … His positive identification of [K] was highly prejudicial to the appellant … It was of no probative value at all.

40 Alexander v The Queen (1981) 145 CLR 395 at 410-411. 41 Alexander v The Queen (1981) 145 CLR 395 at 417. 42 Alexander v The Queen (1981) 145 CLR 395 at 430-433. 43 Alexander v The Queen (1981) 145 CLR 395 at 436-437. 44 See also R v Hallam (1985) 42 SASR 126; 18 A Crim R 221 (South Australia); R v Evan (2006) 175 A Crim R 1 at [26]; [2006] QCA 527 (Western Australia). 45 All of these procedures are referred to in Police Powers and Responsibilities Regulation 2000 (Qld), Sch 10, s 45 (frequently referred to as “the Code”) as “identification processes”, and s 45 further requires that, “if reasonably practicable”, these procedures must be electronically recorded. In practice, this is usually done by means of videotape.

© 484 (2008) 82 ALJ 471 The blindness of the eye-witness It goes almost without saying that if identification by photo-board is an unsafe practice, then it is even more unsafe for the witness to be asked to identify the accused when he is the only one to choose from, as for example, when the witness is shown only his photograph, or identifies him in the back of a police car. The subsequent identification of the accused in the dock by the same witness at the trial was held to make matters even worse.46 In R v Clune [1982] VR 1, the Victorian Court of Appeal held that the accused’s refusal to take part in an identification parade constituted one of the “exceptional circumstances” referred to in Alexander as justifying the use of the photo-board, although the judge should warn the jury about the inherent dangers of such a process. It would seem that the judicial discretion to exclude evidence of identification obtained by inappropriate means is regarded as part of the general judicial discretion to exclude evidence whose prejudicial effect outweighs its probative value.47 Psychological evidence supports this approach, at least as far as warnings are concerned, since identification parades such as are routinely conducted in Australia are manifestly flawed. The problems associated with the traditional identification or line-up parade used in Australia have been the subject of extensive investigation, in part because this part of the process identified in Craig is one of the few areas where the criminal justice system has some control over those variables that affect the accuracy of eyewitness identification. One of the egregious errors in the way that identification parades are conducted throughout Australia is the failure to hold suspect-absent identification parades. Thus, in one major study, the rate of correct identification of a suspect in a six-person line-up was 54% while 21% made no identification. Yet when the suspect was removed, making a five-person line-up, the rate of no identification only rose to 32% with the other 68% mistakenly identifying an innocent person as the suspect.48 Unfortunately, photo-boards have the same problems if a suspect-absent photo-board is not used and thus any warnings the judge gives cannot remedy this inherent defect. The consequences of a failure to conduct suspect-absent line-ups or photo-board identifications are profound. Wells and Olson49 provide an egregious example. Consider, for example, two police forces which have different standards as to when a suspect will be included in a line-up. Police force A only requires a hunch to include a suspect in a line-up. Police force B requires substantive evidence, with the result that over time there will be different base rates of suspect-present / suspect-absent line-ups because of this approach. Suppose police force A has an equal number of suspect-absent / suspect-present line-ups (say 500/1,000) and police force B has 100/1,000 suspect-absent line-ups and 900/1,000 suspect present line-ups. Given equal eyewitness identification skills, the rate of false positives in the suspects identified in police force A will be nine times higher than that identified in police force B. Although this is actually a straightforward application of Bayes’ Theorem, the results are counter-intuitive and the consequences are profound. This implies that one of the most powerful factors affecting the chances of mistaken identification is the decision to conduct a line-up or photo-board identification of a suspect irrespective of all other factors. The process of identification adopted The next attempt to exercise judicial control over the use made of identification evidence took the form of an insistence that the jury be strongly and judicially warned of the hazards involved in the process. The leading case in this area, but one which seems, to judge by certain more recent decisions, to be losing its initial authority, is still the High Court ruling in Domican v The Queen (1992) 173 CLR 555. In January 1985, F and her husband were the victims of an attack by a gunman in the driveway of their home, for most of which they understandably hid behind the bonnet of their car, and as the result

46 R v Burchielli (1980) 2 A Crim R 352; [1981] VR 611. There would, however, seem to be nothing objectionable in “dock identification” when the witness has already picked out the accused by means of a properly-conducted photo-board process: see R v Blair [2005] SASC 319; Murdoch v The Queen (2007) 167 A Crim R 329; [2007] NTCCA 1; R v Athuai [2005] VSC 192. 47 See, eg Alexander v The Queen (1981) 145 CLR 395 at 4034 (Gibbs CJ). 48 Wells GL, “The psychology of line-up identifications” (1984) 14 J Appl Soc Psychol 89. 49 Wells and Olson, n 3.

(2008) 82 ALJ 471 485 © Coyle, Field and Miller of which F did not get a good look at the gunman responsible. In April that year, F saw D being interviewed on television in relation to another matter entirely. In May she told police that she could not identify the gunman, and in October she formally identified D. To make matters worse, at the trial, F claimed that the gunman had been wearing a wig and false moustache, a fact which she had not mentioned in her original description of the man. To complete the picture, after her initial description to police, police were advised by an alleged accomplice that D may have used a wig and false moustache during the attack, the clear inference being that the police had arranged for F to adjust her description of the offender in the light of that additional information. Hardly surprisingly, her identification evidence was heavily discredited. The majority High Court in this case took time and trouble to formulate the general rule that whenever identification is a “significant” factor in the Crown’s case, the jury should be given a warning (the “Domican direction”) about, not only the hazards of the identification process in general, but also any specific points of concern in the case in hand. In particular, the trial judge should emphasise to the jury the fact that a witness may present as a very credible witness because they are totally honest in their belief, but may still be mistaken. The court went so far as to warn future trial judges that it would assess the adequacy of a direction to the jury on the issue of identification on the assumption that the subsequent conviction was based entirely on the identification of the accused, and will quash any conviction in which the direction is deemed to have been inadequate, regardless of the strength of the rest of the Crown case, unless it is so compelling that the identification was not even necessary for the conviction. It is instructive to set out at length the precise words used by the majority (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) when laying down this standard for the future. They began by identifying as a factor of considerable concern (at 561-562): the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue. … where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed … the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. Having identified the factors of concern in relation to F’s evidence in the instant case, their Honours continued to elaborate on what was required of future trial judges (at 565): the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification – not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty … because there is other evidence, which, if accepted, is suffıcient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused [emphasis added; footnotes omitted]. Despite the good intentions of the court in Domican, it was not long before the strict rigour of its strictures became diluted by the seductive effect of other evidence adduced by the Crown in later cases which seemed to corroborate the reliability of the identification evidence, however unreliable it might be in itself. The first to be so seduced was the High Court itself. In Festa, F had been convicted of two armed robberies and related offences, partly on the basis of her social association with R, her co-accused, and her related association (again through R) with various items which could be linked with the robbery and the subsequent getaway in a stolen car. There were, in addition, four witnesses to the robbery who subsequently claimed to have been able to

© 486 (2008) 82 ALJ 471 The blindness of the eye-witness identify F as one of the two people who had committed it. Three of them had identified her in the precincts of the court house, after being asked by the investigating police “to keep an eye out”, because “the female could possibly be here on the day”. Thus predisposed by the police to see someone who might be the female who was believed to have been involved in the robbery, one of them claimed to recognise her by her size and height, another said of F that she “looked familiar”, and the third claimed that, on the basis of her height and gait he was “about 75% sure” that F was the second robber. The fourth so-called identification witness picked out F from a photo-board on the basis of her hair and skin type, although he also picked out two more women on the same basis. This was hardly identification evidence of the finest, and the principal ground of appeal was that it should have been excluded by the trial judge, and that, given that it had not been excluded, the trial judge should at least have given the jury “strong and clear directions about its use and weakness”, whereas only a warning “in general terms” had been given. For the Crown, it was argued that the trial judge had warned the jury that the identification evidence was not strong enough to justify conviction on its own, and that in any case “because of the substantial body of compelling circumstantial evidence, conviction did not depend upon the jury’s accepting the identification evidence”. The line of argument adopted by the court in rejecting this ground of appeal is best encapsulated in this passage from Gleeson CJ’s judgment: Some of the evidence given by each of those three witnesses [the witnesses who had identified F in the court building] was plainly admissible. It was evidence of their observations of a female person, near the scene of [one of the robberies[ who, although wearing a wig and disguised to an extent, was of a physical appearance consistent with that of the appellant, and who acted in a certain manner which, when related to other evidence, was such that it was open to the jury to infer that the female was one of the two bank robbers in each case. The significance of this evidence was not that, standing alone, it permitted the jury to conclude that the appellant was involved in the robberies. Indeed, standing alone, this part of the evidence of the witnesses did not even permit the conclusion that the female person whose behaviour was observed and described was the appellant. But, if accepted, it tied in with other evidence that one of the robbers was a female, and it showed that the appearance of the female was consistent with her being the appellant. It was only identification evidence in the loosest sense of that term. None of the witnesses professed to have known or recognised the appellant on [the days of the robberies]. They observed, and were able to describe, a female’s approximate age, size and general physical appearance. They said she wore a wig. That was particularly significant in the light of other evidence, which included fingerprints of the appellant on a can of wig and hair sheen, and a bottle of spirit gum, found in a unit occupied by the co-accused … together with wig stands and a set of instructions on the use of disguises [emphasis added].50 Subsequently, Gleeson CJ held that the trial judge had failed to adequately direct the jury on the “dangers involved in the acts of identification”51 made by two of the witnesses at the court house, who had been sitting near each other, and had shared their opinions regarding the identification of F before reporting them to the police. Nevertheless, he concluded that there had been no miscarriage of justice, and that the conviction should stand. He was no doubt reinforced in that by the consideration, that the so-called identification evidence against F was what McHugh J described as “circumstantial identification evidence” and of which he went on to observe: When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence.52 However, later in his judgment, and somewhat confusingly, Gleeson CJ confirmed that:

50 Festa v The Queen (2001) 208 CLR 593 at 597. 51 Festa v The Queen (2001) 208 CLR 593 at 604. 52 Festa v The Queen (2001) 208 CLR 593 at 611.

(2008) 82 ALJ 471 487 © Coyle, Field and Miller a trial judge is not absolved from his or her duty to give general and specific warnings concerning the dangers of convicting on identification evidence because there is other evidence which, if accepted, is sufficient to convict the accused.53 Gleeson CJ went on to conclude that the trial judge in this case should have warned the jury that the identifications might have been unreliable because: (a) the police had pre-conditioned the witnesses to expect the accused to arrive at court; (b) F was one of the few women seen in the court house that day; and (c) the witnesses sitting together may have reinforced each others’ identifications. Nevertheless, since F’s conviction seemed to him to have been “inevitable” on the totality of the evidence, he also dismissed the appeal. Kirby J referred to the “plainly unsatisfactory evidence of the courthouse identification”,54 while refusing to allow its status as an item of evidence to be undervalued in terms of its potential to influence the jury. He stated: defects of identification evidence cannot be repaired by labeling it as “circumstantial” and suggesting that, for that reason, the evidence does not need to meet the stringent standards for identification evidence set by this Court … … The strictures about the particular dangers of identification evidence must be obeyed because courts in this country, as elsewhere, have recognised dual features of identification evidence against which special protections are required in criminal trials … The first feature is the propensity of incorrect evidence of identity, even given honestly and with assurance, to involve mistakes leading to serious miscarriages of justice. The second is the tendency for identification evidence to be given special weight, including in the mind of a jury. If accepted, such evidence will link the accused to the crime. No other evidence against the accused may then be needed. The link, once established, may be suffıcient. Respectfully, I cannot agree with the opinion that “circumstantial identification evidence”, or indeed identification evidence generally, is no more presumptively prejudicial than other forms of evidence. The history of wrongful convictions in this and other countries is littered with instances of convincing, honest identification testimony subsequently proved to have been erroneous. If believed, such evidence tends to be fatal for the accused. … It is identification evidence, as such, that experience shows carries risks of great prejudice and of erroneous or inadequate directions to juries resulting in miscarriages of justices. That is why exclusion of such evidence is sometimes required and, where it is received, why careful directions to the jury are commonly necessary. A simple standard is stated by this Court in Domican v The Queen. We should adhere to that standard.55 With respect, Kirby J’s point is a crucial one. As the emphasised portion of his judgment indicates, nothing is likely to impact on a jury more than a seemingly honest and confident witness testifying that the person in the dock appears to them to be someone they saw involved in the crime in some way. His Honour rightly points out that once this has occurred, “No other evidence against the accused may be needed”, and whether or not subsequent academics are able to categorise the evidence in question as “circumstantial” is not going to alter the outcome for the accused. The fallacy of concluding that “the identification evidence was only circumstantial, but was reinforced by other evidence” can be simply illustrated by reference to the facts of Festa themselves. As Gleeson CJ conceded, the fact that a woman seen behaving suspiciously near the scene of a robbery was of a similar age and physical appearance to F did not of itself mean that F was that woman. What seems to have led to that conclusion is the fact that the offender appeared to be wearing a wig, and that further evidence linked F to wig-related equipment and disguises in R’s unit. But what part did this generalised identification evidence play in persuading the jury that the finding of the wig and disguise equipment linked F to the robbery? The discovery of such artefacts in a unit on the Gold Coast regularly attended by a woman in her mid to late thirties is hardly in itself remarkable, until one adds the fact that she answers the general description of a person using a wig

53 Festa v The Queen (2001) 208 CLR 593 at 618. 54 Festa v The Queen (2001) 208 CLR 593 at 640. 55 Festa v The Queen (2001) 208 CLR 593 at 643-645 (emphasis added; footnotes omitted).

© 488 (2008) 82 ALJ 471 The blindness of the eye-witness and other disguise during a robbery. It is not the case that two independently significant items of evidence are combining to reinforce each other, because the “significance” of one of those items depends upon the “truth” of the other. The same point is dramatically underlined by the facts of the more recent cause célèbre of Murdoch v The Queen (2007) 167 A Crim R 329; [2007] NTCCA 1, which gained considerable public notoriety as the “Peter Falconio murder case”. Although no body has ever been found, it was alleged that Murdoch had murdered Falconio and subsequently disposed of his body, at the same time that he attacked Falconio’s travelling companion, Joanne Lees, who fortunately escaped. The incident took place at a remote location in the outback late at night and for some time the police had no leads in the case, until M was indicated as a possible suspect by a former drug business partner who entertained no lingering affection for him. It then became necessary for the police to construct a case against M based on items of evidence of varying quality. There was, for example, the circumstantial suggestion that M had been captured on security video while filling his utility with petrol at a service centre at a time and location which fitted the time of the alleged crime. His DNA was allegedly on the back of a top being worn by L at the time of the incident, his vehicle fitted the general description of the vehicle used by the assailant (and two-thirds of the rest of the local community), he had a dog which was described (inaccurately) by L, and at one stage he might have owned a silver gun of the type described by L as being used to threaten her. Against this unimpressive list of circumstantial pointers to M’s involvement in the crime was the alleged eyewitness identification of M by L on no less then three occasions, by means of a photograph published on the internet, a photo-board image shown to her after she had seen the internet photograph, and a “dock identification” at the trial itself. The psychological consequences of this are profound for post-event misinformation, as has been demonstrated repeatedly. L had seen the internet photograph some 15 months after the incident while she was out of Australia and after she had been informed by friends that the internet article had been published, and was positive towards her, which had not been her exclusive experience with the media up to that point. Her version of events was that she had accessed the internet article in order to read the positive comments about her, and that even though she had earlier been told by police that they had a suspect, she did not log onto the article for the purpose of gaining more information about him; indeed, it was her evidence that the inclusion of a photograph in the article came as a surprise, although she testified at the trial that “I’d recognise him anywhere”, even though M had altered his appearance considerably from how he looked at the date of the alleged offence, and was by the date of the trial nothing in appearance like the initial description given by L to the police. It was argued by the defence at trial that this identification was worse than useless in that it would be likely to be afforded by the jury far more weight than it deserved and that to allow it into evidence would be to invite a miscarriage of justice for the reason given by the court (at [66]): there is the danger that the witness will too readily come to believe, without any true recollection, that the person charged is the person whom the witness had previously seen, particularly if the memory of the witness has become dim and there is some resemblance between the offender and the person identified.56 As we have already noted, this is known to psychologists as the “misinformation effect”, although this variant of misinformation has been referred to in legal circles as the “substitution effect” and it clearly has to be strongly guarded against. However, the court in this case, as in previous cases, seems to have been prepared to distinguish between a situation57 in which the accused had been presented to the witness by the police, and “a wholly spontaneous identification by the witness”,58 and concluded that L’s identification of M in the internet photograph fell into the latter category.

56 This is an almost word-perfect reproduction of what was said in Alexander v The Queen (1981) 145 CLR 395 at 399 by Gibbs CJ in respect of “dock identifications”. 57 See, eg R v Hallam (1985) 42 SASR 126; 18 A Crim R 221. 58 See, eg R v Williams [1983] 2 VR 579.

(2008) 82 ALJ 471 489 © Coyle, Field and Miller In concluding that the trial judge had not erred in allowing in this first identification, the court observed (at [74]): what occurred was in the nature of spontaneous recognition, in circumstances in which Miss Lees was not expecting to see an image of the appellant. By inference his reasons indicate an acceptance of the fact that her reaction to the photograph was the product of her clear memory of the events of the night in question and was not substantially affected or tainted by any knowledge that she may have possessed that the appellant was a suspect in relation to those events. The main objection to the admission of evidence that, approximately a month after she had seen the internet photograph, L picked out M on a photo-board brought to her home in England by Australian police was obviously that L’s choice of suspect on this later occasion would be greatly affected by her vision of M in the internet photograph earlier – another clear example of the “substitution” effect, or the “displacement” effect, as the court called it, and as it was referred to by the trial judge when he very carefully warned the jury of relying on this identification without being aware of such caveats. He also apparently warned them against the “rogues’ gallery” effect, which might convey to the jury the suggestion that the accused has a criminal record, and that this is why the police have a photograph of him, whereas in fact such photographs are routinely taken as a lawful part of most contemporary police investigations. The way in which any lingering concerns regarding the use of the photo-board identification evidence in this case were neatly swept away emerges from this passage of the court’s judgment (at [99]-[104]): the photo-board identification was of substantial probative value. For the reasons articulated by the learned trial judge, the so-called “rogues gallery” effect was not really an issue and, such are the differences between the two photographs, that any danger arising from the displacement effect was, in this case, minimal. The fact that Ms Lees was, without equivocation, able to identify the man depicted in [the photo-board photograph] as her assailant after the lapse of some weeks and in the context of a quite different form of presentation was important as demonstrating a degree of consistency on her part that would otherwise not be relevant or significant, had the image presentation been similar to that seen on the web site. … As the learned trial judge said to the jury it was, at the end of the day, a matter of what weight they were prepared to accord the evidence, given the careful directions and warning that he gave them. After all this, one could be forgiven for regarding it as an unnecessary, but perhaps prejudicial, formality, from the defence’s perspective, to allow the witness to identify the accused as he stood in the dock59 at both the committal hearing and the trial. This was also made a ground of the appeal, but the court dismissed it in the following airy terms (at [110]): The process is, in reality, no more than identifying in the dock the person already identified in the photographs, so as to confirm that the person previously identified is, in fact, the person before the Court. With respect, if this is the case, why is the task not left to one of the police officers, to state to the jury that the person now in the dock is the person then identified by the witness?60 Under the present system, the jury is given a clear impression that the witness is identifying the accused yet again as the person responsible. Not only does this allow a reinforcement effect into the proceedings, but it should then become necessary to warn the jury yet again about the effect of having previously seen a photograph of the person now in the dock. The overwhelming impression left in the minds of the jury in this case must surely have been that there was only one person now available as a witness who had actually been present at the time when Peter Falconio had allegedly been murdered, and that she had firmly identified Murdoch no less than four times as the person responsible. It is unlikely to have occurred to them that the final three

59 Hence the term “dock identification”. 60 Such a process was approved in Alexander v The Queen (1981) 145 CLR 395 at 407.

© 490 (2008) 82 ALJ 471 The blindness of the eye-witness so-called identifications were almost certainly heavily influenced by the first, and that the first identification was only made after the witness had been told by the police “This is our suspect”. This is exactly the sort of situation that has been repeatedly demonstrated to lead to false identifications, for the reasons enumerated above. This was not a case of four identifications, but a case of one suspect identification made four times, yet the Northern Territory Appeal Court said of it: “We regard the identification by Ms Lees of the appellant as the assailant as powerful evidence in support of the Crown case” (at [345]). Curiously, however, in the process of formally rejecting Murdoch’s appeal against conviction, the court chose to depict the identification evidence of Joanne Lees as what might be termed “the icing on the cake”. Their conclusion was (at [367]): In our opinion the presence of the blood of the appellant upon the T-shirt of Ms Lees establishes beyond reasonable doubt the presence of the appellant at the time Ms Lees was attacked just north of Barrow Creek. When this evidence is considered along with the other evidence properly admitted at trial of events occurring at that location, the guilt of the appellant of the murder of Peter Falconio is established beyond reasonable doubt. The case against the appellant becomes overwhelming when the evidence of the identification of the appellant as the assailant by Ms Lees is taken into account. Murdoch was subsequently denied special leave to appeal to the High Court, and yet once again, as in Festa, there seems to have been some confusion over the precise role which the identification evidence was allowed to play in the overall decision by the jury. Is there not some tension between the suggestion that, on the one hand, the evidence of Ms Lees was “powerful evidence in support of the Crown case” (at [367]), while on the other hand it was of a secondary nature by comparison with the DNA evidence and “the other evidence properly admitted at trial” (at [367])? In any event, when rejecting Murdoch’s appeal application, the court seems to have overlooked the ruling of the majority in Domican, to the effect that concerns relating to the reliability of identification testimony do not cease to apply simply because “other evidence makes a very strong case against the accused”. In Festa, a distinction was made between “direct” identification evidence (in which a Domican direction should be given), and “indirect” or “circumstantial” evidence, in which it need not. This then raises the question of whether or not the presence of circumstantial evidence tending to identify D as the offender can make up for any deficiencies in the direct identification evidence, and in Queensland at least, the answer would appear to be “yes”. In R v Clapson [2004] QCA 488, C was one of two men charged with a home invasion and assault on the victim, S. He was identified by S as someone he knew by his nickname, and S later picked him out on a photo-board. There was some difficulty with this identification evidence, because of inconsistencies in statements which S had given to police; however, S’s DNA from blood had been identified on a pair of jeans worn by C during the assault, and the trial judge directed the jury, after first giving them a Domican direction, that (see at [14]): if you accept the evidence of the DNA match … that is capable of supporting the identification evidence. If you don’t accept the DNA evidence, you have to look carefully at the identification evidence, bearing in mind the warnings I have given you about it. C appealed against his subsequent conviction, but in dismissing the appeal, the Queensland Court of Appeal held (at [19] per Jones J): The assessment of the reliability of identification evidence ought, like any other part of the evidence, to be considered having regard to the whole of the evidence which was open to the jury to accept. In this case the matching of the complainant’s DNA with fluid on the appellant’s jeans was robust support for the complainant’s identification … the trial judge’s instructions to the jury were correct.61

61 For another recent case in which the alleged existence of DNA evidence served to move the main focus of the Crown case from that of the identification of the accused by the victim see Murdoch v The Queen (2007) 167 A Crim R 329; [2007] NTCCA 1.

(2008) 82 ALJ 471 491 © Coyle, Field and Miller A recent Queensland case in which the adequacy of otherwise of a Domican direction was a crucial issue was R v Murphy [2003] QCA 234, in which M was convicted on one count of burglary and six counts of sexual abuse of a 30-year-old intellectually impaired person almost entirely on the evidence of the victim herself. M and two other co-offenders who had never been identified had been at the house in which the victim resided with her mother (and M’s mother) earlier in the day, and it was the Crown’s contention that they had returned later, entered the house via a window and committed the offences specified on the indictment. Identification was obviously crucial, but a clinical psychologist warned the court that the victim had a very low IQ, and was extremely unreliable at placing events in order. Despite this unpromising introduction, the trial judge allowed into evidence as a s 93A statement,62 in which the only credible evidence of identification which the victim gave was that the three boys who had later come to her bedroom had been the same three who had been in the house earlier that day. She only gave that information in response to direct “leading” questions from police. She was able to remember M’s first name, but failed to pick him out on a photo-board. Nor did she give any evidence of identification at the trial, which is hardly surprising given that in the same evidence, she could not remember her own age or date of birth, and had a tendency to answer “Yes” to every question asked of her. This did little to enhance the credibility of her s 93A statement, in which she had again answered “Yes” to specially-worded questions from the police. To add insult to injury, she had apparently been drinking heavily in the 12 hours leading up to the incident. The trial judge, when asked to give a Domican direction, declined on the ground that such directions were “for different situations”. The Queensland Court of Appeal overturned the convictions on the ground that they were “unsafe and unsatisfactory”. The trial judge, the Court of Appeal held, should have drawn the attention of the jury to the fact that the only time that the victim came remotely close to identifying the accused was in response to leading questions, that she failed to pick out M on a photo-board, and that the events complained of took place in almost total darkness at a time when the victim was drunk. The Court of Appeal described the trial judge’s summing up as “totally inadequate” (at [13]).63 Domican continues to be cited as authority for the suggestion that the direction to the jury by the trial judge regarding the potential unreliability of identification evidence is not of critical importance to the integrity of any subsequent finding of guilt in cases in which it is only one strand in a circumstantial Crown case. In R v Evan (2006) 175 A Crim R 1; [2006] QCA 527, the Queensland Court of Appeal was called upon to overturn findings of guilt against E, R and B on charges of trafficking in heroin. The Crown case included evidence of telephone “intercepts” between the three men in circumstances indicative of drug dealing, the use of false names by each defendant while using a network of different mobile telephones, evidence of financial transactions between two of the accused, and the eye-witness testimony of six witnesses who claimed to have witnessed drug transactions between one or more of the accused and various customers, including the witnesses themselves. Because of the risk that the basic reliability of the evidence of each of these witnesses could be bolstered by the sheer weight of the “maybes” in this case, it is worth examining the circumstances and content of each of these alleged identifications. F was an addict who had been introduced to E at the house of another witness, R, and had subsequently bought heroin from E on several occasions in different locations for a period of over a year. On some five occasions he also purchased heroin from R and B, and claimed to have seen all three accused together on many occasions. F and R also onsold heroin supplied by the three accused,

62 Under Evidence Act 1977 (Qld), s 93A, a statement by someone who is intellectually challenged may be given in the form of a video recording of an interview between that person and a police officer. 63 See also R v Djerke [2006] ACTSC 104, in which the trial judge admitted into evidence a video-recording of a photo-board identification process in which D was picked out, as being the person responsible for robbing him, by the 84-year old victim who by the date of the trial was mentally unfit to testify.

© 492 (2008) 82 ALJ 471 The blindness of the eye-witness in order to fund their habits. F had identified all three accused by means of a photo-board, which had been lost by the date of the trial. He was allowed to give a dock identification of all three accused at the trial, despite having previously been given a reduced sentence of his own for his part in the operation after he undertook to testify against E, R and B,64 and despite his unsubstantiated allegations that the three accused had “put a hit on him”. In the words of Keane JA: “although there were reasons to doubt aspects of (F’s) evidence, it was … supported in important respects by other evidence” (at [39]). R’s evidence was almost identical to that of F, in that she had, at one time or another, purchased heroin from each of the accused, and there was other evidence consisting of fingerprints and telephone numbers written on slips of paper which linked her with E and B. She had also “done a deal” with the Crown in terms of s 13A in respect of her involvement in the overall trafficking operations, and she received a short prison sentence in return for offering to testify at the trial of E, R and B. She also made both a photo-board identification and a dock identification of E which went unchallenged, but in respect of R (whom she knew as “Don”), there was a challenge to her preliminary photo-board identification of him at a time when she was intoxicated, during which she said “I’m not sure”, and that the photograph of R “reminds me of the person I knew as Don”. Despite a protest from R’s counsel, and a suggestion that R had met “Don” socially, she was allowed to make a dock identification of him. Having earlier identified B from a photo-board, R was also allowed to make a dock identification of him at the trial, despite a defence’s suggestion that she had met R socially, and was confusing him with someone else. The third identification witness, P, was a heroin addict and prostitute who had previously purchased heroin from the three accused, and had arranged to find other customers for them. She was granted immunity from prosecution, and identified R from a photo-board while admittedly intoxicated, and after initially being reluctant to do so. Six months later, when shown another photo-board, she failed to recognise anyone on it, although she said of one of the photographs that “it was very vague to me where I knew him from”, and that this particular photograph was “the only face … that looks familiar to me” (see at [34]). J was a heroin addict who had allegedly seen B and R when they supplied heroin to a fellow addict “probably half a dozen or more times”. She was given indemnity from prosecution, and during a photo-board identification session, she said of a photograph of R that “he looks very similar”. At a subsequent session, during which she later claimed to have been “stoned on heroin”, she picked out B as another of those who had sold heroin to her friend, although she subsequently admitted that she had previously given police a description of B, and that he was the only one on the photo-board who could possibly match the description she had given. I was yet another heroin addict, and one who had allegedly on-sold heroin for B. She was granted immunity from prosecution herself in exchange for her testimony, and admitted that she had implicated B because he was not a local resident. I identified B from a photo-board, after she had already provided police with a description of him. Finally, E was yet another customer of the accused who gave evidence under an indemnity from prosecution. She had identified B on a photo-board, although conceded that at the time, she was “probably on methadone” (at [35]). In the case of the identification of R by J, P and R, it was argued that their evidence went no higher than “resemblance”, and that on the authority of Pitkin v The Queen (1995) 69 ALJR 612; 80 A Crim R 302, this was insufficient for a conviction. However, in that case the identification had been the sole evidence against the accused, and the Queensland Court of Appeal in this matter was able to distinguish the two cases on the basis that the identification evidence in question was “one strand in a circumstantial case [and] therefore, admissible” (Evan at [47]). Keane JA added, for the avoidance of doubt: “It has some probative value, but it is not suggested that it would be sufficient, if it stood alone, to support a conclusion of guilt beyond reasonable doubt.” (at [47]). Having held the evidence to have

64 A process made available under Penalties and Sentences Act 1992 (Qld), s 13A.

(2008) 82 ALJ 471 493 © Coyle, Field and Miller been admissible, the court then turned to the issue of whether or not the jury had been sufficiently warned of the dangers of relying too strongly on identification evidence, after noting (at [52]) that the Domican direction should be: given in any criminal case where the prosecution relies on identification evidence as “any significant part of the proof of guilt of an offence”. Thus, the need for the warning is not obviated by the existence of other evidence of circumstances tending to inculpate the accused. The court also reminded itself (at [58]), that: insofar as each identification evidence was relied upon by the Crown as part of its case, its weight was to be assessed by the jury independently of the other evidence in the case. While other evidence might justify a conviction independently of the identification evidence, the value of each identification was to be addressed as if that might be the only basis on which the jury might decide to convict. In my view, the direction given by the learned trial judge was, in this respect, not in conformity with the requirements of Domican v The Queen. The passage from the trial judge’s direction to which reference was being made was that in which he had directed the jury that (aee at [57]): The quality of the identification might be poor, but other evidence might support its correctness, so again your decision as to the identification has to be based upon the totality of the evidence that you have heard. Other issues dealt with on this appeal, which resulted in an order for a re-trial, were as follows. First of all, the trial judge had observed to the jury, during a debate on the integrity with which the photo-board process had been conducted, that “It’s not an easy task to arrange a photo-board”. The court said (at [60]): It is inconsistent with the requirements of Domican v The Queen to suggest to the jury that deficiencies in the evidence may be overlooked because of the practical difficulties attending the obtaining of satisfactory evidence of identification. It was also suggested during the arguments on appeal that the dangers attendant upon dock identifications were so real that “an explicit caution to that effect is required”. In the process of agreeing that the trial judge has erred in this regard, the court observed (at [61]): The question is not whether there could be special confidence in a dock identification, but whether it is sufficiently reliable to be acted on at all. So far as regards the potential fallacy of allowing an unsatisfactory photo-board identification to be bolstered by a dock identification, the court agreed (at 64), that: It is one thing to say that evidence of two persons to the effect that an offender resembled the accused might add more strength to a circumstantial case than evidence of resemblance from one witness. It is another thing to say that two identifications, each of which is deficient, because there are reasons to doubt the accuracy of each, support a conclusion that each witness has made an accurate visual identification of an offender. In a direct reference to the authority of Alexander, the court also pointed out (at [65]), that, on the facts of the instant case: While the “vagaries of human perception and recollection” are less significant, and the evidence of identification accordingly less “fragile”, where evidence of identification is given by a witness who has become familiar with an accused because of repeated contact over time, there may be other reasons to doubt that evidence, for example, because a witness’ history of drug abuse may tend to cast doubt on his or her reliability … The decision in Domican v The Queen requires that the trial judge isolate and identify, by way of direction on his authority for the benefit of the jury, and not merely by way of comment which the jury are at liberty to disregard, matters which might reasonably be regarded as undermining the reliability of the identification evidence. Domican is also alive and well in contemporary Victoria, and was recently employed by the Court of Appeal of that State, in R v Mendoza (2007) 173 A Crim R 157; [2007] VSCA 120, to authorise a retrial in the case of M, who had been convicted of two related counts of armed robbery within the premises of a hairdressing salon, largely on the evidence of two of the staff of the business, N and C, who had been present when the offender stole some $350 in total from the shop and from N.

© 494 (2008) 82 ALJ 471 The blindness of the eye-witness So far as concerned N, she claimed to have seen the accused, M, in the salon where she worked on two or three prior occasions during the three months immediately prior to the robbery, when he had been attempting to sell products such as face cream and thermos mugs. But when shown books of Asian male photographs65 the day after the robbery, N was unable to identify M, even though his was one of the photographs she was shown. At that time, she assisted a police technician to compile a computer image of the robber. Then, five days after the robbery, M attended the salon,66 attempting to sell rechargeable batteries. C was also in the salon that day, and after comparing notes the two witnesses agreed that M was the person who had robbed the store previously, and contacted the police. The following day, when shown a photo-board which contained only three photographs of persons whom N considered to be Filipino in appearance, N identified M as the perpetrator of the robbery. Vincent JA, with whom the other two judges concurred, said of this identification (at [34]-[36]): If (N) was correct in her evidence concerning the number of occasions he had been at the salon prior to the robbery (and excluding the robbery), she had seen him three or four times personally and twice in photographs. She had also discussed with (C) the identification of the person selling batteries as the perpetrator of the robbery … In the circumstances, the potential for misidentification by this witness must be regarded as, at least, real. In particular, there can be seen to be a risk of wrong identification by reason of what has been termed the displacement effect and the possible contamination of her recollection as a consequence of her discussions with (C). With regard to the identification by C, the risk was no lower, and if anything higher, since she had only seen M on one occasion prior to the robbery (again, when he attended the salon attempting to sell face cream). N had not been present on that occasion, but prior to the robbery, C and N had agreed that they had probably both met the same individual. She conceded that her identification of the offender during the robbery itself was somewhat limited by the fact that she had a knife held to her throat, and when shown photographs the following day, although she picked out the photograph of M, she simply claimed at the time that M “could” have been the perpetrator, and that he was only “60%” similar to the person involved. Like N, she had also identified M from a photograph after he had called in at the salon selling batteries, but only after she and N had put their heads together for their conclusions. As Vincent JA concluded, in respect of C’s identification evidence (at [42], [43]): The potential for misidentification in the circumstances clearly existed and necessity for the provision of careful directions is apparent … Surprisingly, rather than drawing the attention of the jury to the risk of contamination of identification through displacement of recollection or the discussion between the two witnesses, the trial judge directed the jury on the basis that their various observations strengthened rather than detracted from the reliability of their evidence. After confirming, that the Domican direction had been brought into existence because of “the numerous occasions on which the courts have directed to the risk of injustice arising from confidently made, but nevertheless possibly incorrect, identification of persons as offenders” (at [24]), his Honour delivered the unanimous opinion of the court that there must be a retrial because (at [45]): In the present case, the judge not only failed to provide instructions concerning the possibility of displacement of recollection when directing the jury on the issue of identification but … treated the various observations of the applicant as somehow strengthening the evidence. Those deficiencies were not cured by the provision of a summary of the submissions of counsel and certainly not in a situation in which he completed his reference to those submissions with the remark, “It’s entirely a matter for you”. The superior courts of Western Australia have also, in recent years, had occasion to consider the implications of authorities such as Domican and Alexander, and on the whole they have kept the faith. Thus, for example, in Al-Hashimi v The Queen 145 A Crim R 186; 181 FLR 383; [2004] WASCA 61,

65 M was Filipino. 66 He did not deny that he was the one attending on this occasion.

(2008) 82 ALJ 471 495 © Coyle, Field and Miller a “people-smuggling” case,67 the issue was whether or not A had been validly convicted following a dock identification of him by one of those he had allegedly smuggled to Australia (the witness S). In dismissing the appeal against conviction, the unanimous opinion of the Court of Appeal was contained in the judgment of Miller AJA, so far as concerned the suggestion that a dock identification was of no evidential value. The true position was set out by his Honour (at [22], [23]): When evidence is given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with a crime, that evidence will be of very little value if the witness has not seen the accused since the events in question, or is asked to identify him for the first time in the dock. Dock identification is therefore often regarded as the least satisfactory form of identification evidence … However, there is a sharp distinction between cases in which identification of an accused person is made by way of dock identification where the witness saw the accused only fleetingly at the scene of the crime or in circumstances connected with the crime, and in circumstances where the accused person is someone who is known to the witness. In the latter case, the evidence is not evidence of identification but of recognition. Applying that test to the dock identification which had been permitted in the present case, his Honour was able to conclude (at [27]) that: (S) had a number of meetings with the person whom he recognized in the dock as (A) and … had, in my view, ample opportunity to become familiar with his appearance … the circumstances put the identification into a different category from that which generally renders dock identification so suspect. In Pinta v The Queen [1999] WASCA 125, the issue was the familiar one that the accused, P, had not taken part in an identification parade, but had instead been identified from a photo-board, and had then subsequently been the subject of a dock identification by the same witness. On appeal, the usual argument was raised to the effect that photo-board identifications were suspect, and that identity parades were to be preferred. While rejecting that as a ground of appeal, the unanimous court did order a retrial on the basis that the trial judge had failed to follow the requirements of Domican in placing “the authority of the judge’s office” behind a warning to the jury regarding the use of photo-boards, and instead had appeared to support their reliability. Settled law: Unsettled outcome What is to be made of the conflicting decisions regarding Domican warnings in what has been regarded as settled law? At the very least, the confusion evident in the application of Domican leads to the inescapable conclusion that judicial warnings are no substitute for expert evidence as to the reliability or otherwise of eyewitness testimony. This is not to say that expert evidence led as to, say, the risk of misidentification resulting from asking an eyewitness to make an identification after they have seen a photograph of the accused will prove a panacea to miscarriages of justice arising from misidentification. It will not, as has been demonstrated by California v Brewster 95 F 8703 (1997), described at length by Wells and Loftus;68 but it cannot be anything other than an improvement to the current state of affairs. ABOLITION OF THE COMMON KNOWLEDGE RULE As has been comprehensively argued, the main problem with identification evidence as it is received in our contemporary courts is the failure to recognise the difficulties which attend the psychological processes of perception, cognition and memory, together with the failure to acknowledge that this is a matter upon which juries require guidance, not just from the trial judge, but from psychologists with expertise in such areas. This need in turn derives from the fallacy that recognition, observation and perception are all matters which members of a jury are competent to assess using their common sense and human experience. The guiding principle is that, before expert evidence may be given on a particular issue, it must be an issue in respect of which there is an “accepted body of knowledge”, or an established “field of

67 For a similar case considered more recently by the same court, in which issues were also raised regarding proper identification, see Chaudhry v The Queen [2007] WASCA 37. 68 Wells and Loftus, n 31.

© 496 (2008) 82 ALJ 471 The blindness of the eye-witness expertise”.69 It is also often said to be the hallmark of true “expert evidence material” that it belongs to a body of knowledge which requires a special course of study. This is based on the observation of Dixon CJ in Clark v Ryan (1960) 103 CLR 486 at 491: The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J W Smith in the notes to Carter v Boehm 1 Smith LC, 7th ed (1876), p 577. “On the one hand” that author wrote, “it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of inquiry … so far partakes of the nature of a science as to require a course of previous habit or study, in order to the attainment of a knowledge of it.” If, on the other hand, the proffered evidence is something which forms part of the general experience of life, then it is referred to as common knowledge, and expert evidence according the overwhelming weight of authorities will not be admitted. The problem here though is that the criminal courts not only fail, in many areas, to adopt the same standards to the admission of physical evidence as they do to psychological evidence but they also ignore that the common knowledge rule has been abolished in many jurisdictions in Australian. Perhaps the most significant change to the use of expert evidence is a consequence of the implementation of the Uniform Evidence Act in both the Commonwealth and the several States. The conjoint operation of ss 79 and 80 of that Act, together with the operation of s 135 thereof has not, it is submitted, yet been fully determined by the courts. The common knowledge rule has been revoked in those States which have adopted the Uniform Evidence Act (1995). In Commonwealth jurisdictions, New South Wales, Tasmania, and Norfolk Island, the common knowledge rule does not apply. In other jurisdictions, the various State legislations and the common law apply. Even in those states which have adopted the Uniform Evidence Act there is lack of uniformity. In those jurisdictions where the common knowledge rule still applies, it is argued that it is not within the province of an expert to provide an opinion upon matters which inherently are within the common knowledge of the triers of fact. Thus, on the one hand, members of the jury are expected to be fully apprised of the problems which are attendant upon acceptance of eyewitness identification but are not to be assisted by expert opinion directed to apprising them of those areas in which, scientifically, it has been established that such problems can arise. Accordingly, they are not to be assisted by any scientific opinion as to how they might identify the problem/s, or address same, beyond complying with the general exhortation to take specific care and apply their common sense. We argue that the time has arrived for the superior courts to reconsider the general principles which are relied upon historically to reject expert opinion evidence on issues of identification where, in particular, the purpose of that expert opinion evidence is to assist the jury in better understanding the pitfalls which can be attendant upon their application of “common sense” to issues such as perception, memory and cognitive ability. The courts have historically recognised the fallibility of memory and the other senses which are relied upon by witnesses who are no doubt seeking to speak truthfully of their identification, but they nonetheless deny to the jury the opportunity to better understand, from the scientific point of view, the reasons why such opinions might be accurate or might be inaccurate. It is no different, it is submitted, to the situation where a jury might be called upon to evaluate a case of culpable driving, to be presented with the results of a breath analysis test and nonetheless to be denied an opportunity to appreciate the circumstances in which such test apparatus might not be accurate, or the reading might not be capable of universal application in relation to the resultant incapacity of the driver concerned. The time has come to adopt the general thrust of the United States Supreme Court’s decision in Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) in Australia. Referring to this seminal decision, in a challenging article entitled, “Psychological Evidence at the Dawn of the Law’s

69 This is a distillation of the test laid down in the US in Frye v United States 54 App DC 46; 295 F 1013 at 1014 (1923), in which it was held that the opinion in question, to be admissible, must be based upon a body of knowledge “sufficiently established to have gained general acceptance in the particular field to which it belongs”. The Frye test has since been replaced with the test set out in Daubert.

(2008) 82 ALJ 471 497 © Coyle, Field and Miller Scientific Age”, it was noted:70 For psychologists, Daubert stands as a guardian at the courtroom door, warmly welcoming those with relevant and valid scientific evidence, and brusquely sending others on their way. In Australia, in contrast, legal concepts based on a fallacious view of the adequacy of judicial warnings in the absence of expert evidence as to the dangers inherent in much eyewitness testimony stand at the courtroom door and prohibit entry to psychologists and other scientists who can provide valid scientific evidence to assist the judicial process. It is still night time for those denied justice as a result of these outmoded and restrictive concepts, but the dawn approaches.

70 Faigman DL and Monahan J, “Psychological evidence at the dawn of the law’s scientific age” (2005) 56 Ann Rev Psychol 631.

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