Facebook ID goes on trial

By Bill Rowlings, CEO of Civil Liberties Australia

How reliable are police ‘ID parades’ when an alleged victim has already resorted to Facebook to track down a likely suspect?

That difficult dilemma came before relatively new (appointed November 2016) Queensland District Court Judge Catherine Muir recently.

An alleged armed robber claimed that it was unfair that he had been identified during a “photoboard” ID interview with police, after the alleged victim has trawled through Facebook to give the accused person’s name – and visage – to the police before the “parade”.

A photoboard ‘parade’ is where police show a complainant a series of photos of possible miscreants, asking for the complainant which one (or ones) did he or she think had done the deed.

The written submissions filed on behalf of the defendant said it would be unfair to the defendant to admit the evidence of the “photoboard identification process”, on which the entire Crown case rested.

Judges have a discretion to exclude any evidence on the basis that its prejudicial effect will out-weigh the probative value. But the balancing point is often difficult to find.

The defendant highlighted the following features of the present case as justifying the exercise of Judge Muir’s discretion in his favour:

• There was no other evidence implicating the defendant.
• There was a significant danger of the operation of the displacement effect due to the manner in which the identification came about.
• The complainant, in effect, actively participated in the compilation of the photoboard by the police.
• The probative value of the photoboard is significantly reduced because it was not necessarily an identification of the defendant at the alleged robbery, rather the “identification of an identification,” that is, the defendant identified a person he had already identified on Facebook who(m) he expected to be depicted in the photoboard.
• The Facebook image from which the complainant reached a conclusion of the defendant’s involvement was utterly unknown to him and, for example, may have been highly prejudicial by depicting the applicant holding a knife “whilst wearing a black hooded jumper with an image of a skull on it and the words ‘thug life’”.
• The identification is uncorroborated with any other evidence and the defendant’s initial sighting of his assailant would have been made in a highly stressful situation.
• The complainant is Caucasian and the purported identification is of a person of Maori descent.
• There is nothing said by the complainant to be remarkable or distinguishing about the defendant’s appearance through which a court could be provided with some degree of comfort as to the reliability of the identification.

Displacement effect

Judge Muir waded through a bunch of previous cases with some bearing on the issue. Her comments included:

Recently, the South Australian Court of Criminal Appeal in R v Crawford, considered that there is a real risk identified that identification evidence will be irretrievably contaminated through social media searching in a number of ways. In doing so the court referred to the descriptions of the “displacement effect” given in 1981 by Stephen J in Alexander v R and in a number of other authorities as follows:

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.

(references omitted)

Stephen J appears to Civil Liberties Australia to have been right on the button!

However, the goodly judge Muir decided to refuse the complainant’s application to exclude the photoboard ID interview evidence. He was convicted, by photoboard out of Facebook.

So, for the moment in Queensland and Australia, Facebook searching has become the primary mechanism for people to track down the identity of anyone who has done them an alleged legal wrong.

Yet courts are adamant that jurors can’t use Google and the internet to help them make difficult decisions about who is guilty and who is innocent.

It seems there’s one rule for the goose…and another for the ‘have-a-gander’.

There will be much more friction over many years between the slow-moving, arcane world of the legal system and the instant and constant change of e-living before new principles are settled that will provide consistency across courtrooms and cases.

Anyone who wants to become a Facebook sleuth – and there’s a whole new business opportunity opening up here – can see full details of the case here:

The case:

Moke v The Queen [2017] QDC 157   https://sclqld.org.au/caselaw/QDC/2017/157

Muir DCJ

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – NATURE OF DISCRETION – GENERALLY – Where complainant first identified the defendant by searching through ‘Facebook’ – where complainant subsequently identified the defendant in a photoboard identification interview with police – where original Facebook photograph or photoboard is not available -whether the photoboard identification interview should be excluded from evidence

Crowdsourcing justice?

https://techcrunch.com/2011/08/09/google-group-members-to-use-facial-recognition-to-identify-london-rioter/

Where will it all end?

http://www.slate.com/blogs/future_tense/2017/06/06/automatic_facial_recognition_software_helps_police_make_an_arrest_in_the.html