R v Taylor [2008] ACTSC 52 (29 April 2008)

Last Updated: 28 July 2008

R v BENJAMIN JOHN TAYLOR

[2008] ACTSC 52 (29 April 2008)

CRIMINAL LAW - EVIDENCE - identification evidence - recognition evidence - visual identification evidence - statutory interpretation - Crown sought to lead evidence from witnesses who claimed to have observed accused at scene of crime when offence committed - meaning of "identification" in ss 114(1) and (2), Evidence Act 1995 (Cth) - whether statements made by witnesses, shortly after alleged incident, asserting that they had observed accused at scene of crime when offence committed, constituted "the identification" in s 114(2) - whether "the identification" in s 114(2) referred, rather, to such assertions made by witnesses in court as "identification evidence"

Held: Evidence sought to be led from witnesses in court would be "an assertion" within definition of "identification evidence" given by Evidence Act dictionary - words "relating to an identification" in s 114(1) apply to identification that is subject of "identification evidence", i.e. assertion given in court

CRIMINAL LAW - EVIDENCE - admissibility of visual identification evidence - requirement of s 114(2), Evidence Act, for an identification parade, including defendant, to be "held before the identification was made" in order for visual identification evidence to be admissible - whether it would "not have been reasonable" to have held such a parade: s 114(2)(b) - whether it "would have been unfair to the defendant" for such a parade to have been held: s 114(4) - displacement effect - whether witnesses would have been more likely to identify accused in parade, having previously claimed to have recognised him

Held: Following above finding, s 114(2) requires identification parade to be held prior to giving of visual identification evidence in court, but not prior to making of original assertion or statement identifying accused - not unreasonable to hold parade prior to giving of evidence in court - possible that witnesses might not have identified accused in parade - therefore not unfair to accused to require identification parade prior to witnesses giving identification evidence in court - identification evidence inadmissible

WORDS AND PHRASES - "identification evidence", "visual identification evidence", "relating to an identification", "before the identification was made", "displacement effect"

Evidence Act 1995 (Cth) ss 113, 114, 116, 165

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 referred to

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 cited

Clifford v R [2004] TASSC 16 cited

David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 applied

Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 followed

Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 cited

R v David Taufua unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 11 November 1996 cited

R v Smith [2000] NSWCCA 468 referred to

R v Turnbull [1977] QB 224 cited

Trudgett v R [2008] NSWCCA 62 followed

No. SCC 227 of 2007

Judge: Rares J

Supreme Court of the ACT

Date: 29 April 2008

IN THE SUPREME COURT OF THE )

) No. SCC 227 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: R

AND: BENJAMIN JOHN TAYLOR

ORDER

Judge: Rares J

Date: 29 April 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The identification evidence proposed to be led by the Crown from each of Daniel and Jesse Robinson is not admissible.

1. In this matter, the Crown seeks to lead identification evidence from two witnesses who are to be called, who have known the accused for a period prior to the occasion of the alleged offence.

2. In opening to the jury, the Crown submitted that the central allegations were that:

* the two relevant witnesses, Daniel Robinson and his younger brother, Jesse, together with a third friend, Isaac Nash-Basnet, were on their way to visit the complainant and her then boyfriend, Cam Massey, at the complainant's home at 37 Amagula Avenue in Ngunnawal;

* as they turned right from Gungahlin Drive into Amagula Avenue, the three men saw the accused driving away from Amagula Avenue;

* at that time, the accused looked at them, turned his car around and began to follow them;

* subsequently, on arriving at the complainant's home, Daniel Robinson told the complainant and Mr Massey that he had seen the accused at a roundabout, further down along Amagula Drive.

3. The Crown told the jury that the particulars of the offence alleged in the indictment were that "the accused drove past, slowed down and began yelling abuse at [the complainant] in relation to the group's attendance at the house". The Crown said that the accused, at that time, summoned Mr Massey to fight him, however he declined, and that the complainant began yelling back at the accused to leave her alone and they then had an exchange of words before the accused drove off.

JESSE ROBINSON

4. The gravamen of the evidence sought to be led from Jesse Robinson was given yesterday on the voir dire and in a "Basha inquiry" (R v Basha (1989) 39 A Crim R 337 (NSWCCA) at 339 per Hunt J, with whom Carruthers and Grove JJ agreed) which I permitted because he had not been called at the committal.

5. Jesse Robinson initially said that he had seen the accused, here and there, between 10 and 15 times over the 2 to 3 year period before he gave evidence, that is about 21 to 33 months before the alleged offence. His evidence was that they played football together and he would go with his brother to occasions on which he would meet with the accused and his then girlfriend, the complainant. He said they played football together for may be an hour or two and sometimes they would hang out together. Jesse Robinson said that the accused had been to his house, to which the accused had driven. But he had never been in a car with the accused.

6. In relation to the alleged offence, Jesse Robinson said that he had seen the accused at the bottom of the roundabout as they were driving into Amagula Avenue. He said that he had seen him in a Holden on previous occasions. I note, however, there is other evidence that the accused drove another vehicle before that time.

7. Jesse Robinson also said that he could still see the accused 100 to 200 metres away when the accused was calling out for the group to go down and fight him. He did not recall hearing the accused saying anything as he drove past, but he had seen the accused yelling out things when he turned into the side street further up the road.

8. In cross-examination, Jesse Robinson accepted that it was likely that he would not have met the accused at any time when his elder brother was not also present. When confronted with the assertion that his elder brother had said that he had only met the accused on four occasions in the past three years, Jesse Robinson accepted that that was a possibility. He also agreed that the accused had not lived at Amagula Avenue for some time, and he had not seen the accused for perhaps a couple of months and, then, maybe six months before the occasion he was describing. He asserted that he knew it was the accused because he knew that the Commodore he claimed to have seen was the accused's car.

DANIEL ROBINSON

9. The Crown suggests that Daniel Robinson will give evidence that he saw the accused on about four occasions, including playing football with him.

CONSIDERATION

10. In those circumstances it is clear that the evidence proposed to be led from the Robinson brothers is evidence of a sub-species of identification evidence, as defined in the dictionary to the Evidence Act 1995 (Cth), being recognition evidence. In Trudgett v R [2008] NSWCCA 62 at [24], Spigelman CJ, with whom Hulme and Latham JJ agreed, held that recognition evidence was not wholly based on what the witness perceived at the time of the offence, however, it may be partly so based. He pointed out that the distinction between recognition and identification evidence had been recognised in Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 181 where the High Court said that:

"It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person. It would be ridiculous ... to deny the value or reliability of the identification if the witness' knowledge of the prisoner arose from long and close association or from every day intercourse in business affairs."

11. Spigelman CJ said that that analysis suggested that witnesses can err when purporting to recognise a person whom they have known intimately and or for a long time. He applied what Lord Widgery CJ had said in R v Turnbull [1977] QB 224 at 228 that:

"Recognition may be more reliable than identification of a strange; 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."

12. Spigelman CJ referred to the difficulties which had bedevilled the law concerning identification evidence, the conditions for its reception and the directions and warnings which judges need to give to juries in their considerations. He held that provisions of ss 116 and 165 of the Evidence Act (which deal with the requirement for judges to give warnings to juries in respect of identification evidence) differ in certain respects and are stricter than the directions required to be given at common law since Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. And, significantly, his Honour said (Trudgett [2008] NSWCCA [29]-[31] (omitting citations):

"[29] Plainly, recognition evidence does not suffer from all the defects of identification evidence. However, it does share with such evidence the danger that a witness will propound his or her conclusion with force and conviction. Furthermore, both forms are also likely to be given special weight by a jury, even where its reliability is dubious.

[30] Generally speaking, recognition evidence will be more reliable than identification evidence strictly so called. For example, the displacement effect and the rogues gallery effect would not appear to be material. That is not, however, sufficient to exclude it from the Dictionary definition and from s 116 as a category. Section 116 does not turn on any issue of reliability (cf s 165).

[31] In my opinion, the Crown submission, that recognition evidence does not fall within the definition of `identification evidence' at all, should be rejected."

13. That case dealt with the question of what particular directions or warnings the judge ought to have given under ss 116 and 165 of the Act in circumstances where no direction had been applied for at the conclusion of the summing up.

14. The issue here arises as to whether the evidence proposed to be given is evidence of an identification which was made before any identification parade could have been held within the meaning of s 114(2) of the Evidence Act. Relevantly, the definition of "identification evidence" in the Dictionary to the Act provides:

"identification evidence means evidence that is:

(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:

(i) the offence for which the defendant is being prosecuted was committed; or

(ii) an act connected to that offence was done;

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or

(b) a report (whether oral or in writing) of such an assertion.

15. Next, s 114 provides:

114 Exclusion of visual identification evidence

(1) In this section:

visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.

(2) Visual identification evidence adduced by the prosecutor is not admissible unless:

(a) an identification parade that included the defendant was held before the identification was made; or

(b) it would not have been reasonable to have held such a parade; or

(c) the defendant refused to take part in such a parade;

and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:

(a) the kind of offence, and the gravity of the offence, concerned; and

(b) the importance of the evidence; and

(c) the practicality of holding an identification parade having regard, among other things:

(i) if the defendant failed to cooperate in the conduct of the parade--to the manner and extent of, and the reason (if any) for, the failure; and

(ii) in any case--to whether the identification was made at or about the time of the commission of the offence; and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.

(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.

(5) If:

(a) the defendant refused to take part in an identification parade unless a lawyer acting for the defendant, or another person chosen by the defendant, was present while it was being held; and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a lawyer or person to be present;

it is presumed that it would not have been reasonable to have held an identification parade at that time.

(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications."

16. The correct approach to the use of a statutory definition is to read the words of the definition into the substantive enactment and then to construe the substantive enactment in its confined or extended sense and in its context, bearing in mind the purpose and mischief that it was designed to overcome: Trudgett [2008] NSWCCA 62 per Spigelman CJ at [21]-[22]; applying Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at 253 [103] per McHugh J.

17. The requirements in Pt 3.9 of the Evidence Act (entitled "Identification Evidence") were introduced as protections for accused persons against the inherent dangers in identification evidence which the courts and the common law have long recognised. In particular, the courts here recognised the danger of an honest, but mistaken, identification being made by a witness who would portray to a jury that his or her evidence was of a character and reliability that it did not truly bear. Trial judges have long struggled to frame adequate directions to overcome the effects of such evidence.

18. The Crown sought to argue that the evidence was admissible on two bases. First, it contended that the statements made by the witnesses on 16 January 2007 were the "identification" to which the definition in s 114(1) applied and thus, the "identification" referred to in s 114(2)(a). It argued that the identification that each witness was giving evidence about was his statement or conclusion at the time when he alleged that he had seen the accused, based, among other things, upon his ability to recognise him.

19. Secondly, the Crown said that the evidence of those identifications may be admissible, perhaps under other provisions, as exceptions to the hearsay rule, but it did not develop any argument in relation to s 66. I would have rejected an argument based on admissibility under section 66 that did not otherwise comply with requirements under s 114, because Pt 3.9 contains particular provisions, whereas s 66 is a provision relating to criminal proceedings in general. And, s 113 applies Pt 3.9 only to criminal proceedings, and is also a code intended to govern, in such proceedings, the reception of identification evidence: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J; David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 276 per Gummow J with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed.

WHAT IS THE "IDENTIFICATION" IN s 114(2)(a)?

20. The critical question is really whether the first argument of the Crown ought to be accepted. The dictionary definition of "identification evidence" commences by saying that the expression "means evidence that is: (a) an assertion by a person to the effect that" he or she saw the accused at or near the crime scene at or about the time the crime was committed. As I understand the evidence proposed to be led from each of Daniel and Jesse Robinson, he will say that he saw the accused in the car at the time of the alleged offence.

21. In my opinion that evidence, namely, the assertion to be made to the effect I have said when the witness is giving evidence in court, is evidence within the definition of "identification evidence" in the dictionary to the Act. There may also be other assertions by those witnesses that they said something to the same effect at the time of the alleged offence, or that that assertion to be given in court also represented their state of mind at the earlier time. While that may be so, the evidence sought to be led will be an assertion by the witness which falls within the definition in the dictionary.

22. In s 114(1) the further definition of "visual identification evidence" captures what already exists as "identification evidence", and refines it to a particular kind of identification evidence, namely, that "relating to an identification based wholly or partly on what a person saw ..." (my emphasis). The words "relating to" are words of wide import: cf Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 at 629 per Mason J. The question is what does "an identification" in that definition mean? The Crown argued it means simply the act of identification at the original time it occurred and not the assertion referred to as part of the definition of identification evidence.

23. I am of opinion that the natural and ordinary meaning of the word "identification" when used in the definition in s 114(1) must be the particular identification in the identification evidence, that is, the assertion of the witness that the accused is the person connected to the crime the subject of the dictionary definition.

24. In Clifford v R [2004] TASSC 16 at [26] Crawford J, with whom Underwood and Slicer JJ agreed, referred to the decision of the New South Wales Court of Criminal Appeal in R v Smith [2000] NSWCCA 468 at [83]- [89] and cited what was said by Wood CJ at CL with whom the other members of the Court of Criminal Appeal agreed. The Chief Judge said in Smith [2000] NSWCCA 468 at [83]:

"Viewed literally, every criminal trial involves identification evidence within the wide meaning given to that phrase in the dictionary to the Evidence Act. The evidence of any eye witness who gives evidence, based upon his or her own observations, that the accused was present at the place where the offence charged occurred, falls literally within that definition. Yet common sense would suggest, in such a case, where such evidence was not in issue, that there would [be] little if any point served in giving the s 116(1) direction." (emphasis added)

25. Here, of course, such evidence is in issue. I am of opinion that the words "an identification" as used in s 114(1) apply to the identification, the subject of the identification evidence; that is the in court assertion that the accused was the person relevantly at the crime scene at the relevant time. Likewise, I am of opinion that when s 114(2)(a) refers to the requirement that an identification parade, including the defendant, be held "before the identification was made", it is referring to such a parade occurring prior to the giving of the identification evidence as defined in the dictionary to the Act. It is common ground that no identification parade was ever held or, as far as the evidence reveals, contemplated in respect of Daniel or Jesse Robinson (or indeed Mr Isaac Nash-Basnet who the Crown said in the course of argument today will not be asked about this in-chief).

26. The Crown suggested that it would have been unreasonable to have held such a parade for two reasons. First, the Crown said that the contemporaneous identification made by each of the witnesses precluded any utility in, or practical ability to hold, an identification parade prior to the police ever knowing about the circumstances of the offence which the two witnesses were alleged to be observing.

27. I reject that argument on the basis of the construction I have given to s 114(2)(a). That permits the identification parade to be held at any time prior to the witness entering the witness box. Such a view appears to be consistent with other decisions, although those are given in different contexts: see e.g. R v David Taufua (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 11 November 1996 per Barr J, with whom Priestley AP and James J agreed, BC 9605430).

WOULD IT HAVE BEEN "UNFAIR" TO THE ACCUSED TO HOLD AN IDENTIFICATION PARADE?

28. The second basis on which the Crown argued that it would not have been reasonable to have held such a parade within the meaning of s 114(2)(b), is that holding such a parade would have been "unfair" to the accused within the meaning of s 114(4). The Crown argued that, given the strong conviction with which each of Daniel and Jesse Robinson believed they had made their identifications of the accused at the time of the alleged offence, they certainly would have identified the accused at a parade. The Crown also argued that a subsequent face-to-face identification at an identification parade had the real likelihood of creating the "displacement effect" referred to by Stephen J in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 409.

29. The displacement effect occurs because the witness has seen the accused, or has a memory of the accused based on a photograph shown to him or her later than the time of the crime or in an identification parade and then uses the more recent observation to displace his or her memory of the original sighting. The Crown argued that here, the witnesses' memories would be clearer because in truth they were giving recognition evidence. Therefore, the Crown said that it would be more likely that the accused would be the one recognised by each of those two witnesses at an identification parade and their memories would be of him as seen in the parade, rather than earlier as they asserted.

30. There was no evidence that any consideration was given to this issue at the time by anyone who might have been able to conduct an identification parade. While there may be some force in the Crown's argument, it is just as possible that an identification parade would have revealed that neither of the witnesses was able to identify the accused. This is one of the reasons why the legislature, as a matter of policy, requires identification parades to be held as a usual condition of admissibility of identification evidence, including its subspecies of recognition evidence. Although the discretion does exist to permit identification evidence to be given where no such parade occurs, I am not satisfied that in the circumstances of this case, it would have been unfair to the accused for an identification parade to have been held.

31. The Crown has argued in generalities of the hypothetical time and place at which any parade could have been held. That issue has not been explored, but an obvious time and place for it to have occurred would have been at least very shortly after each of Daniel and Jesse Robinson had been contacted by the police, to give their account of what had occurred. In Taufua (unreported, NSWCAA, 11 November 1996), Barr J referred to the fact that the identifying witness in that case was giving recognition evidence, but still had not attended an identification parade when called to give evidence at the trial. He held that there had been a miscarriage because the trial judge should have rejected the evidence of identification.

32. I am of opinion that the identification evidence proposed to be led from each of Daniel and Jesse Robinson is inadmissible for failure to comply with s 114(2)(a).

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Associate:

Date: 13 June 2009

Counsel for the Crown: S Drumgold

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Counsel for the Defendant: T Warwick

Solicitor for the Defendant: Sheila Foliaki Singh & Associates

Date of hearing: 28, 29 April 2008

Date of judgment: 29 April 2008