The Queen v Dencle Vic Barnes - Application to Exclude Identification Evidence - Ruling

¶ ```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> <td>INDICTMENT NO：17-2021</td> </tr> <tr> <td>Criminal Division</td> </tr> <tr> <td>THE QUEEN</td> </tr> <tr> <td>v.</td> </tr> <tr> <td>DENCLE VIC BARNES</td> </tr> <tr> <td>Appearances：</td> </tr> <tr> <td>Mr. Greg Walcolm，Senior Crown Counsel，for the</td> </tr> <tr> <td>Prosecution</td> </tr> <tr> <td>Mr. Jonathan Hughes，Samson Law for the Defendant</td> </tr> <tr> <td>Before：</td> </tr> <tr> <td>Hon. Mrs. Justice Marlene I. Carter (Actg.)</td> </tr> <tr> <td>Date of Hearing：</td> </tr> <tr> <td>25 April 2022</td> </tr> <tr> <td>Date of Ruling：</td> </tr> <tr> <td>27 April 2022</td> </tr> <tr> <td>HEADNOTE</td> </tr> <tr> <td>Criminal Law - Evidence Act (2021 Revision)，Section 40 -</td> </tr> <tr> <td>Application to exclude photograph identification evidence</td> </tr> <tr> <td>RULING</td> </tr> <tr> <td>BACKGROUND</td> </tr> <tr> <td>1.</td> <td>The defendant is before the court on an indictment containing four counts，once count of Illicit</td> </tr> <tr> <td>Trafficking，contrary to the Misuse of Drugs Act and three counts relating to offences contrary to</td> </tr> <tr> <td>Firearms present application</td> </tr> <tr> <td>investigating the course</td> </tr> <tr> <td>application is made pursuant to s.40 of the Evidence Act.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>2.</td> <td>Counsel for the defendant has applied to exclude from the evidence to be presented at trial by the prosecution, any reference to the photograph identification procedure carried out by the police with the witness Andrew Beckford, on the basis that to allow such evidence would operate unfairly against the defendant.</td> </tr> <tr> <td>5</td> <td>6</td> <td>7</td> <td>3.</td> <td>The evidence of Andrew Beckford is the main evidence against the defendant on the Crown’s case. Andrew Beckford was arrested in relation to the same incident which gives rise to the present indictment. He has pleaded guilty to an offence relating to the drugs in question and has been convicted of firearms offences for which he stands to be sentenced.</td> </tr> <tr> <td>11</td> <td>12</td> <td>THE APPLICATION TO EXCLUDE</td> </tr> <tr> <td>13</td> <td>4.</td> <td>Counsel for the defendant has submitted that the court should determine the present application having firmly in mind the safeguards contained within Code D of PACE. He referred the court to the case of Oliver v R,1 and to what he termed the “cautious approach” of the Cayman Islands Court of Appeal [“CICA”]. In that case the CICA overturned the appellant’s conviction, finding that the trial judge should have excluded identification evidence on the basis that the officer who had made the identification by CCTV, “made no attempt” to observe the kind of safeguards contained within Code D of the Police and Criminal Evidence Act. He referred to the CICA’s observation that:</td> </tr> <tr> <td>21</td> <td>22</td> <td>“Although Code D of the Police and Criminal Evidence Act 1984 codes of practice</td> </tr> <tr> <td>23</td> <td>24</td> <td>had no direct application in the Cayman Islands, nonetheless the requirement of b in the identions... was a matter of common law”</td> </tr> <tr> <td>25</td> <td>5.</td> <td>mitted that if</td> </tr> <tr> <td>26</td> <td>Counsel sub the instant c</td> </tr> <tr> <td>27</td> <td>D of PACE, were observed by the officer who conducted the photograph identification procedure.</td> </tr> </table> <sup>1</sup> [2018(2) CILR 308 220427 The Queen v Dencle Vic Barnes - Application to Exclude Identification Evidence - Ruling Page 2 of 13 ```
The safeguards which the defence submit were ignored by the officer conducting the identification procedure were identified were as follows: i. Before any identification procedure is undertaken, a description of the suspect must be taken from the witness, written down and provided to the suspect or his lawyer, PACE Code D, para 3.1. ii. The arrangements for, and conduct of, the eyewitness identification procedures shall be the responsibility of an officer not below inspector rank who is not involved with the investigation, PACE Code D, para 3.11. iii. When an eye-witness is shown photographs, they shall be told that the photograph of the suspect may or may not be amongst them and if they cannot make an identification, they should say so. The eye-witness shall also be told they should not make a decision until they have viewed at least twelve photographs, PACE Code D, Annex E, para 5. iv. A record shall be kept of the showing of photographs on forms provided for the purpose. This shall include anything said by the eye-witness about any identification or the conduct of the procedure, any reasons it was not practicable to comply with any of the provisions governing the showing of photographs and the name and rank of the supervising officer. The supervising officer shall inspect and sign the record as soon as practicable, PACE Code D, Annex E, para 11 & 12. Counsel for the defendant submitted that by wholly failing to record any of the steps taken, the defendant is denied the opportunity to fairly scrutinize the way in which this important evidence was gathered. 220427 The Queen v Dencle Vic Barnes – Application to Exclude Identification Evidence - Ruling Page 3 of 13

¶ [7] Counsel also referred to PACE Code D paragraph 3.3 which reads: > "An eye-witness must not be shown photographs, computerised or artist's composite likenesses or similar likenesses or pictures (including 'E-fit' images) if in accordance with paragraph 3.1A, the identity of the suspect is known and they are available to take part in one of the procedures under paragraphs 3.5 to 3.10. If the suspect's identity is not known, the showing of any such images to an eye-witness to see if they can identify a person whose image they are shown as the person they saw on a previous occasion must be done in accordance with Annex E."

¶ [8] He submitted that the suspect, the defendant in this case, was known to the police. The police should have determined his availability in accordance with paragraph 3.1A(b): > "Reference in this Part to the suspect being 'available' mean that the suspect is immediately available, or will be available within a reasonably short time, in order that they can be invited to take part in at least one of the eye-witness identification procedures under paragraphs 3.5 to 3.10 and it is practicable to arrange an effective procedure under paragraphs 3.5 to 3.10;"

¶ [9] Counsel submitted that in May 2020 the defendant was on Conditional Release from HMP Northward and subject to strict license conditions. As a result, the police knew the defendant's address however "there is nothing within the available evidence to suggest that the police made any effort to contact or trace Mr. Barnes for the purpose of ascertaining his availability and willingness to take part in a Video ID procedure (the procedure that takes priority of use over photo-ID, and that ID unless an individual is unavailable)."

¶ [10] Counsel referred to the interview which identified the defendant as Andrew Beckford which concluded at 4:12 p.m. on the 22nd of May 2020. The second interview during which the photo spread was put to Mr. Beckford commenced at 4:56 p.m. Counsel invited the court to ```
```html <table> <tr> <td>1</td> <td>consider that there was an interval of 44 minutes between the two interviews, during which time, given that the defendant was on Conditional Release, the police could have determined that the defendant was available.</td> </tr> <tr> <td>4</td> <td>11.</td> <td>In further support of his application to exclude this evidence, counsel for the defendant submitted that the officer who conducted the photograph identification had failed to comply with the RCIPS Standing Orders. He referred to Part II of Standing Order C4, governing the use of photographs in the identification of suspects. At Paragraph 7, ‘Rules to be observed’:</td> </tr> <tr> <td>9</td> <td>10</td> <td>11</td> <td>12</td> <td>13</td> <td>14</td> <td>15</td> <td>16</td> <td>17</td> <td>18</td> <td>19</td> <td>20</td> <td>21</td> <td>22</td> <td>23</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>13.</td> <td>Counsel concluded that the failures of the officer who conducted the photo identification, as identified above at paragraph 6, coupled with the officer’s apparent failure to consider an identity parade before using the photo spread and the fact that the procedure itself was conducted under what counsel termed oppressive conditions, [‘the ID procedure in this case was carried out in the middle of a police interrogation. At the time, the witness was being interviewed under caution as a suspect in a serious criminal case. He had just been told earlier that day that, unbeknownst to him, there were two firearms and ammunition amongst the drugs that he had agreed to import into the country’] should lead this court to find that to allow the admission of the evidence would operate unfairly against the defendant.</td> </tr> <tr> <td>28</td> <td>29</td> <td>Counsel submitted that the instant application should be considered in the further context that the evidence of Andrew Beckford is the evidence of an accomplice, which evidence should always be approached with caution; that the nature of the evidence being visual identification evidence, which</td> </tr> </table> ```
```markdown by its nature could be considered potentially unreliable, required that safeguards concerning identification by witnesses be adhered to; and, as well, the benefits which Andrew Beckford can expect to accrue should he assist in the defendant’s conviction by way of a reduction in his sentence. THE PROSECUTION RESPONSE

¶ [14] Counsel for the prosecution, in response, submitted that "The question for this Court is whether in all the circumstances, the evidence from Andrew Beckford, specific to the identification photospread procedure conducted during his second interview under caution, would offend the basic requirement of fairness, so that it is admission would so unfairly operate against the defendant."

¶ [15] The prosecution’s position is that the admission of this evidence would not operate unfairly against the defendant.

¶ [16] Counsel submitted as follows:

¶ [28] The police did not breach Code D of Pace nor the RCIPS Standing Orders C4 when conducting the identification procedure in this case. The police were seeking to probe the assertion made by Andrew Beckford in relation to his accomplice and seeking to trace that accomplice when the identification procedure was conducted.

¶ [29] The defendant was not available to the police at the time of the identification procedure.

¶ [30] As of the point by the defence, the evidence presented by the defendant, these circumstances required that Andrew Beckford, on his evidence, would have had a significant opportunity to be able to identify the defendant prior to being arrested. His identification evidence cannot be said to be weak. ``` This text is a transcription of the provided page, maintaining the original structure and content.
```html <table> <tr> <td>1</td> <td>32.</td> <td>Andrew Beckford provided the name he was given by the defendant to the police and identified him without being prompted in any way.</td> </tr> <tr> <td>2</td> <td>33.</td> <td>The identification procedure cannot be said to have been conducted in oppressive circumstances as Andrew Beckford was represented by his attorney during both interviews and was properly cautioned and advised of his rights in their entirety.</td> </tr> <tr> <td>3</td> <td>34.</td> <td>At the time when Andrew Beckford made the identification of the defendant he was not facing any charges nor was he convicted of any offence. It cannot be said that he identified the defendant with a view to seek a reduction in the likely sentence to be imposed should [he] be convicted."</td> </tr> <tr> <td>4</td> <td>17.</td> <td>Counsel invited the court to find that unlike the position in Oliver v R, where the issue was whether the evidence of the officer who identified the defendant could be properly tested by the defendant at trial, the officer having made no contemporaneous notes of the manner in which he identified the defendant via the CCTV footage, a failure which the CICA found should have resulted in that evidence being excluded, on the present evidence, the police:</td> </tr> <tr> <td>5</td> <td>18</td> <td>“a. Took a record of the witness' initial description as this is clearly contained in the audio and video record of both interviews under caution as well as the transcripts produce[d] therefrom;</td> </tr> <tr> <td>6</td> <td>19</td> <td>b. Did not fail to provide this description to the suspect or his attorney as the suspect was not arrested nor available to the police at the time the identification procedure was conducted;</td> </tr> <tr> <td>7</td> <td>20</td> <td>c. Were not required to consider an identity parade before using a photo spread in all the circumstances;</td> </tr> <tr> <td>8</td> <td>21</td> <td>d. 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```html <table> <tr> <td>18.</td> <td>Counsel for the prosecution submitted that the audio and video recordings of the interviews of the</td> </tr> <tr> <td>witness Andrew Beckford ensures that the initial description of the defendant given by Beckford,</td> </tr> <tr> <td>and anything said by him about his identification or the conduct of the procedure, was recorded and</td> </tr> <tr> <td>in the possession of the defendant.</td> </tr> <tr> <td>3.</td> <td>Andrew Beckford initially provided evidence to the police, identifying the defendant</td> </tr> <tr> <td>as his accomplice, during his interview under caution, held on the 22.05.2020, the</td> </tr> <tr> <td>day following his arrest. During that audio and video recorded interview under</td> </tr> <tr> <td>caution Andrew Beckford, who was represented by his attorney who was present</td> </tr> <tr> <td>during the interview, provided the name ‘Vic Barnes’ to the police as his accomplice</td> </tr> <tr> <td>and also provided a physical description. He indicated that he had met ‘Vic Barnes’</td> </tr> <tr> <td>in Whitehouse, Westmoreland in Jamaica some days prior to travelling to the</td> </tr> <tr> <td>Cayman Islands via boat.</td> </tr> <tr> <td>4.</td> <td>Andrew Beckford, based on his evidence, would have had a significant opportunity</td> </tr> <tr> <td>to identify the defendant having initially interacted with him before leaving on the</td> </tr> <tr> <td>voyage from Jamaica to Grand Cayman and thereafter being on the voyage with</td> </tr> <tr> <td>him alone for several hours. The identification evidence cannot in those</td> </tr> <tr> <td>circumstances be said to be weak.”</td> </tr> <tr> <td>19.</td> <td>Further, the court was urged to consider the actions of the officer conducting the</td> </tr> <tr> <td>photograph identification procedure in the context that, on the date in question, 22nd May 2020, the Cayman</td> </tr> <tr> <td>Islands was “locked down” because of the Covid-19 pandemic. Counsel submitted that an identity</td> </tr> <tr> <td>parade was not feasible in those circumstances, and it was in this context that the police chose to</td> </tr> <tr> <td>use the photospread procedure.</td> </tr> <tr> <td>Regarding the defence submitted that at the time</td> <td>def</td> <td>he was not</td> </tr> <tr> <td>the availability of the defendant was not such that he was in police custody. Counsel submitted that availability according to Code D at 3.1A (b)</td> <td>28</td> <td>taken to utilise spread procedure as it was not a suspect at</td> </tr> <tr> <td>meant that “the suspect is immediately available, or will be available within a reasonably short</td> <td>29</td> <td>the defendant was, to conduct a</td> </tr> <tr> <td>time...” He submitted that neither of those scenarios was available to the police.</td> <td>30</td> <td>arrested not</td> </tr> <tr> <td>220427 The Queen v Dencle Vic Barnes - Application to Exclude Identification Evidence - Ruling</td> <td>Page 8 of 13</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>2</td> <td>21.</td> <td>Counsel also took issue with the defence submission that the description of the defendant was</td> </tr> <tr> <td>3</td> <td>misrepresented by the officer who conducted the photospread procedure. While he agreed that the</td> </tr> <tr> <td>4</td> <td>witness stated that the suspect was stout, he suggested that the officer's description of "medium</td> </tr> <tr> <td>5</td> <td>build" was not a difference of any substance.</td> </tr> <tr> <td>6</td> <td>7</td> <td>22.</td> <td>Counsel for the prosecution maintained that even if the court were to find that there were failings</td> </tr> <tr> <td>8</td> <td>regarding the safeguards suggested by Code D in the identification procedure, such failings did not</td> </tr> <tr> <td>9</td> <td>equate to a finding that the admission of such evidence would operate unfairly against the</td> </tr> <tr> <td>10</td> <td>defendant. He stated that none of the alleged breaches was of such significance to warrant the</td> </tr> <tr> <td>11</td> <td>exclusion of the evidence of the photospread identification. He submitted further that counsel</td> </tr> <tr> <td>12</td> <td>for the defendant had not articulated how these failings resulted in unfairness to the defendant. Counsel</td> </tr> <tr> <td>13</td> <td>for the prosecution noted that there had been no submission that the actual array of photographs</td> </tr> <tr> <td>14</td> <td>was somehow tainted and maintained that the defence could effectively test the identification</td> </tr> <tr> <td>15</td> <td>evidence.</td> </tr> <tr> <td>16</td> <td>COURT'S ANALYSIS AND CONCLUSIONS</td> </tr> <tr> <td>17</td> <td>18</td> <td>23.</td> <td>Section 40 of the Evidence Act (2021 Revision) states:</td> </tr> <tr> <td>19</td> <td>20</td> <td>21</td> <td>22</td> <td>“Nothing in this Act derogates from the power of a court in any criminal proceeding</td> </tr> <tr> <td>23</td> <td>to disallow evidence otherwise admissible which, in the opinion of such court,</td> </tr> <tr> <td>24</td> <td>25In Oliver v 1 the court eui</td> <td>26effectively er</td> <td>ss'</td> <td>ssential tis</td> </tr> <tr> <td>27</td> <td>28</td> <td>29</td> <td>276</td> <td>276</td> <td>276</td> <td>276</td> <td>276</td> <td>276</td> 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```html <table> <tr> <td>25.</td> <td>Counsel for the prosecution submits that in determining the application based as it is on the Code</td> </tr> <tr> <td>D requirements for the conduct of the identification procedure that the court should examine:</td> </tr> <tr> <td>26.</td> <td>The court is mindful that even where a breach of Code D has been established for failure to comply</td> </tr> <tr> <td>with Code D procedures, that such failure is a factor to be considered by a court and may result in</td> </tr> <tr> <td>the exclusion of tainted evidence. A finding of breach in and of itself is not determinative of the</td> </tr> <tr> <td>application to exclude.</td> </tr> <tr> <td>27.</td> <td>In the instant case having considered oral and written submissions from the defence and the</td> </tr> <tr> <td>prosecution, I find the following regarding the breaches of Code D of PACE complained of by the</td> </tr> <tr> <td>defendant:</td> </tr> <tr> <td>(i)</td> <td>There is no issue that the officer who conducted the identification procedure Sergeant</td> </tr> <tr> <td>Mendez is “below inspector rank” and was involved with the investigation. This is a</td> </tr> <tr> <td>requirement of Code D para 3.11. However, that stipulation applies to “eye-witness</td> </tr> <tr> <td>identification procedures in paragraphs 3.5 to 3.10” of Code D which concern video</td> </tr> <tr> <td>identification parade and group identification. At Annex F, Showing</td> </tr> <tr> <td>photographs to the re</td> </tr> <tr> <td>28.</td> <td>Archbold 2020 -- Paragraphs 14-57</td> </tr> <tr> <td>220427 The Queen v Dencle Vic Barnes - Application to Exclude Identification Evidence - Ruling</td> </tr> <tr> <td>Page 10 of 13</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>photographs.” There is therefore no breach with respect to the rank of the identification</td> </tr> <tr> <td>2</td> <td>officer.</td> </tr> <tr> <td>3</td> <td>(ii) The witness was not told that the suspect may or may not be amongst the photographs, neither was he told that if he could not make an identification, he should say so. The witness</td> </tr> <tr> <td>4</td> <td>was also not told that he should not make a decision until he had viewed at least twelve</td> </tr> <tr> <td>5</td> <td>photographs.</td> </tr> <tr> <td>7</td> <td>(iii) No record was kept of the showing of photographs on forms provided for the purpose to</td> </tr> <tr> <td>8</td> <td>detail anything said by the eyewitness about any identification or the conduct of the</td> </tr> <tr> <td>9</td> <td>procedure, or any reasons it was not practicable to comply with any of the provisions</td> </tr> <tr> <td>10</td> <td>governing the showing of photographs.</td> </tr> <tr> <td>11</td> <td>(iv) Before the photo spread identification procedure was undertaken, a description of the</td> </tr> <tr> <td>12</td> <td>suspect was not taken from the witness, written down and provided to the suspect or his</td> </tr> <tr> <td>13</td> <td>lawyer. I agree with the prosecution’s submission on this point that while there was no</td> </tr> <tr> <td>14</td> <td>written note taken by the officer in this regard, there is an audio and video recording of the</td> </tr> <tr> <td>15</td> <td>interview in which the description was given, and this been reduced to a transcript. The</td> </tr> <tr> <td>16</td> <td>defence are in possession of the audio and video recording as well as the transcript.</td> </tr> <tr> <td>17</td> <td>(v) At issue however is the defendant’s availability as it relates to him being present and</td> </tr> <tr> <td>18</td> <td>provided with such description at the time of the identification procedure. It appears to</td> </tr> <tr> <td>19</td> <td>this court that had efforts being made to ascertain the defendant’s availability, these could</td> </tr> <tr> <td>20</td> <td>have ensured his attendance during the identification procedure given the circumstance of</td> </tr> <tr> <td>21</td> <td>him being on conditional release.</td> </tr> <tr> <td>22</td> <td>As counsel adant points</td> </tr> <tr> <td>23</td> <td>24notice of theCOVID-19 pas，</td> </tr> <tr> <td>25</td> <td>down during the relevant period, if efforts to ensure that the defendant was present had been</td> </tr> <tr> <td>26</td> <td>there may have been no issue with finding other persons for an identity parade as the CI Detention</td> </tr> </table> 220427 The Queen v Dencle Vic Barnes - Application to Exclude Identification Evidence - Ruling Page 11 of 13 ```
```html <table> <tr> <td>1</td> <td>Centre affords the police the opportunity to conduct a video identification procedure3, obviating</td> </tr> <tr> <td>2</td> <td>the need to have the physical attendance or presence of other persons of similar description to the</td> </tr> <tr> <td>3</td> <td>defendant. This was a case of the suspect being known and available. The defendant could have</td> </tr> <tr> <td>4</td> <td>been available within a short time.</td> </tr> <tr> <td>5</td> <td>29.</td> <td>I do not consider that the identification was made in oppressive conditions as suggested by counsel</td> </tr> <tr> <td>6</td> <td>for the defendant. The witness was at the time of interview represented by counsel and had every</td> </tr> <tr> <td>7</td> <td>opportunity to confer with him at any point during the interview or before the subsequent</td> </tr> <tr> <td>8</td> <td>identification.</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>11</td> <td>30.</td> <td>Having found that there were failures on the part of the police as per the Code D safeguards, the</td> </tr> <tr> <td>12</td> <td>next question that I must consider is whether those failures have resulted in the defendant being</td> </tr> <tr> <td>13</td> <td>denied basic fairness. I bear in mind counsel's submissions concerning the nature of the evidence</td> </tr> <tr> <td>14</td> <td>as accomplice evidence and the resulting need for caution and as well the potential unreliability of</td> </tr> <tr> <td>15</td> <td>identification evidence.</td> </tr> <tr> <td>16</td> <td>17</td> <td>31.</td> <td>In Oliver the CICA decried the inability of the defendant to effectively examine the reliability of a</td> </tr> <tr> <td>18</td> <td>witness' identification which had been caused by the failures to observe the safeguards in Code D</td> </tr> <tr> <td>19</td> <td>as it related to identification of a suspect by a police officer by means of CCTV. In the instant</td> </tr> <tr> <td>20</td> <td>case, the defendant would not be denied such opportunity. While no written record was kept of the</td> </tr> <tr> <td>21</td> <td>showing of photographs on forms provided for the purpose to detail anything said by the eyewitness</td> </tr> <tr> <td>22</td> <td>about any identification or the conduct of the procedure, this is itself not surprising since Code D,</td> </tr> <tr> <td>23</td> <td>which requires forms be provided for such purpose, has no direct application in the Cayman Islands.</td> </tr> <tr> <td>24</td> <td>However, the forms were the Cayman</td> <td>ation.</td> <td>an be glea vi</td> </tr> <tr> <td>25</td> <td>and transcript the identificat</td> <td>io evidenc</td> </tr> <tr> <td>e detail that told conve</td> <td>vc</td> <td>deo and ae</td> </tr> </table> <sup>3</sup> Counsel for the defendant in written submissions noted that "the Cayman Islands Detention Centre has a dedicated suite for the preparation and conduct of controlled video identification parades. 220427 The Queen v Dencle Vic Barnes - Application to Exclude Identification Evidence - Ruling Page 12 of 13 ```
```html <table> <tr> <td>1</td> <td>2</td> <td>32.</td> <td>Counsel can explore at trial whether the investigating officer considered the practicality of</td> </tr> <tr> <td>3</td> <td>complying with any of the provisions governing the showing of photographs as per Code D.</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>33.</td> <td>This is not a case where on the face of the evidence that the prosecution will seek to lead from this</td> </tr> <tr> <td>6</td> <td>witness, the identification can be considered weak. This was a highly relevant factor in Oliver</td> </tr> <tr> <td>7</td> <td>where the identifying witness’ evidence of identification via CCTV was the only evidence which</td> </tr> <tr> <td>8</td> <td>directly linked the defendant to the offences charged. Apart from being able to effectively examine</td> </tr> <tr> <td>9</td> <td>the reliability of the witness’ evidence of the photograph identification procedure, the defendant</td> </tr> <tr> <td>10</td> <td>can test other aspects of the prosecution identification evidence.</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>34.</td> <td>I do not find that the identification officer ran roughshod over all the safeguards of Code D in</td> </tr> <tr> <td>13</td> <td>relation to the photo spread identification by the witness Beckford as suggested by counsel for the</td> </tr> <tr> <td>14</td> <td>defendant. I find that despite breaches of some of the safeguards that the cumulative effect of same</td> </tr> <tr> <td>15</td> <td>is not capable of engendering considerable suspicion that the identification procedure was unfair</td> </tr> <tr> <td>16</td> <td>or of these being such as to operate unfairly against the defendant. This is not a case in which this</td> </tr> <tr> <td>17</td> <td>court will exercise its discretion under Section 40 of the Evidence Act to exclude otherwise</td> </tr> <tr> <td>18</td> <td>admissible and relevant evidence because to do otherwise would operate unfairly against this</td> </tr> <tr> <td>19</td> <td>defendant.</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>35.</td> <td>The application to exclude the photograph identification evidence is denied.</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>Justice Mater</td> </tr> <tr> <td>Madamlene J. Car</td> <td>28f the Granding)</td> <td>Judge o Court (Act</td> </tr> </table>