R v Tran  VSC 560 is a decision of Hollingworth J presiding over a murder trial. The judgment concerns the admissibility of the selection of the accused’s picture from an array of photographs shown to an eyewitness.
Pitkin v R (1995) 80 A Crim R 302 is often quoted as authority for the proposition (amongst others) that it’s unsafe to convict on a less-than-positive identification. While this is true, that doesn’t mean that a less-than-positive identification is inadmissible, or that a trier of fact cannot use a less-than-positive identification in combination with other circumstantial evidence to find the prosecution case proven beyond reasonable doubt.
Two prosecution witnesses were each shown a selection of photographs arrayed in a folder (a photoboard) and asked to nominate, if possible, the man they saw with the deceased on the day of his death. One of the witnesses eventually selected the accused’s photo, while the other merely said the accused’s photo was ‘like’ the man he saw on that day.
The first witness made his selection this way (as described in his police statement):
I indicated to Photo Number 11 by pointing and saying:
1. They all look similar 11 could be it.
2. I remember that he was taller than average Asian, slender looks young (maybe 18).
3. Remember his lips – Asian lips normally thin whereas white people’s lips are usually fuller and this bloke had fuller lips.
4. Definitely not number 8, I reckon its number 11.
Question – Where have you seen number 11 before?
Reply – In the Telstra building the day the guy was bashed. It was the other guy that I have looked at earlier that had the bat when I saw them.
The first witness was cross-examined at the committal to the effect that, like the second witness, he wasn’t sure whether the person he identified was the person he saw with the deceased. The first witness replied in his evidence, “No, I am sure that this is the bloke.”
Hollingworth J [at 21],
Defence counsel argued that [the first witness] did not make a positive identification of the accused, and the evidence was therefore inadmissible. I rejected both of those submissions, for the following reasons.
Had [the first witness’s] proposed evidence gone no further than his witness statement, there might have been some room for argument about whether or not he had positively identified the accused, or merely said something to the effect of “I think it is him” or “he is similar to the man I saw”. But, when regard is had to his evidence at the committal, it is clear that he positively identified number 11, the accused, as the other man present at the squat at the relevant time.
Even if he had not made a positive identification, [the first witness’s] evidence would have been admissible as part of the Crown’s circumstantial case. Evidence to the effect that an accused person is similar to, or resembles, the offender has been held to be admissible as part of the circumstantial evidence in cases involving issues of identification: Murphy v The Queen (1994) 62 SASR 121 and Festa v The Queen (2001) 208 CLR 593. Although such evidence is not sufficient in itself to sustain a conviction (Pitkin v R (1995) 80 A Crim R 302), it may nevertheless form part of a circumstantial case pointing to the accused as the offender.
As far as [the other witness] was concerned, the Crown accepted that he did not make a positive identification of the accused. However, his evidence was admissible as part of the Crown’s circumstantial case, on the authorities just mentioned.
Hollingworth J declined to reject the evidence under ss 135 or 137, deciding (similar to the way the Court of Appeal did in DPP v B B; DPP v Q N  VSCA 211) that prejudice could be overcome by suitable jury directions.