|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Supreme Court of the ACT |
Last Updated: 15 September 2008
The Queen v D [2008] ACTSC 82 (8 September 2008)
APPLICATION – pre-trial application – exclusion of evidence – Evidence Act 1995 (Cth), ss 114, 137.
EVIDENCE – identification evidence – no identification parade held – reasonableness of holding identification parade in the circumstances – Evidence Act 1995 (Cth), s 114.
EVIDENCE – exclusion of evidence – identification evidence is evidence of an identification, whenever made – Evidence Act 1995 (Cth), s 114.
EVIDENCE – exclusion of evidence – whether identification parade can be held after the identification is made – Evidence Act 1995 (Cth), s 114.
EVIDENCE – exclusion of evidence – what constitutes “unfair prejudice” to the accused – Evidence Act 1995 (Cth), s 137.
Evidence Act 1995 (Cth), ss 114, 137
Trudgett v R [2008] NSWCCA 62 (25 March 2008)
R v Taufua [1996] NSWSC 548 (unreported, 11 November 1996)
R v Tomason [1999] ACTSC 112 (13 November 1999)
R v Taylor [2008] ACTSC 52 (29 April 2008)
R v Reed and Carberry [2003] ACTSC 6 (21 February 2003)
Alexander v R [1981] HCA 17; (1981) 145 CLR 395
R v Lumsden [2003] NSWCCA 83 (5 April 2003)
Odgers, Uniform Evidence Law, 7th edition
No. SCC 208 of 2007
Judge: Penfold J
Supreme Court of the ACT
Date: 8 September 2008
IN THE SUPREME COURT OF THE )
) No. SCC 208 of 2007
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
D
REASONS FOR DECISION
Judge: Penfold J
Date: 8 September 2008
Place: Canberra
Summary
1. “D”, a young person, has been charged with one count of assault occasioning actual bodily harm.
2. His jury trial was to start on 1 September 2008. On 2 September 2008 I refused an application made on 1 September by counsel for the defence to rule that certain evidence proposed to be led in the trial was inadmissible under s 114 of the Evidence Act 1995 (Cth), which applies in the ACT (the Evidence Act). The application was that the evidence, being “identification evidence” for the purposes of s 114, should be ruled inadmissible under subs 114(2) because no identification parade had been held.
3. In summary, I refused the application on the ground that in the circumstances of the particular case, it would not have been reasonable to have held such a parade, and that therefore par 114(2)(b) was satisfied and the evidence was not inadmissible under s 114.
4. I also refused counsel’s subsequent application to exclude the evidence under s 137 of the Evidence Act.
5. These are my reasons.
The circumstances of the case
6. In December 2006 the complainant was assaulted near the Charnwood shops. Immediately following the assault he went to his workplace at the shops and told workmates that he had been assaulted by D. The next day he reported the assault to police and again named D as one of his assailants. The complainant knew D because they had attended the same primary school for years 4, 5 and 6, finishing primary school almost exactly four years before the assault.
7. The evidence sought to be excluded was evidence of the complainant’s identification of his assailant as D.
8. Initially the application also applied to evidence to be given by a witness to the assault, who apparently also knew D from primary school. The application to exclude this evidence was withdrawn before I needed to rule on it.
The finding
9. For the purpose of the application, I assumed that the evidence concerned, although of a kind sometimes called “recognition evidence”, amounted to “visual identification evidence” for the purposes of s 114. Counsel for the defence, in submitting to this effect, relied on the case of Trudgett v R [2008] NSWCCA 62 (25 March 2008). Counsel for the prosecution suggested that the relevant comments in that case were obiter dicta and therefore not necessarily binding, and reserved the right to make further submissions on that matter if I ruled that the evidence would be inadmissible under s 114. In the event those further submissions were not required.
10. My ruling that the evidence was not inadmissible under s 114 started with a reading of subs 114(2) as follows:
Visual identification evidence adduced by the prosecutor is not admissible unless:
(a) ...; or(b) it would not have been reasonable to have held [an identification parade that included the defendant before the identification was made]; or
(c) ...;,
and the identification was made without the person who made it having been intentionally influenced to identify the defendant.
11. The bracketed words in paragraph (b) are taken from paragraph (a), and replace the phrase “such a parade”, which refers back to the parade described in paragraph (a).
12. My next step was to interpret “the identification” as used in paragraph (b) to mean the act of identifying the defendant in some way as the person whom the witness could link in some way to the offence (that is, making an assertion of the kind described in paragraph (a) of the definition of “identification evidence” in the Dictionary to the Evidence Act).
13. Paragraphs 114(2)(a) and (c) had no direct application to the case, and there was no suggestion that the complainant had been intentionally influenced to identify D. Accordingly, the operation of subs 114(2) in this case turned entirely on whether par 114(2)(b) was satisfied.
14. The report to the complainant’s workmates, and then the formal complaint to the police the next day, both included a naming of D as the assailant. I considered this to be an identification for the purpose of par 114(2)(a). On that basis, it would not have been possible for an identification parade that included D to have been held before the identification was made. Having concluded that such a parade would have been impossible to hold, I found that it would, in the words of par 114(2)(b), not have been reasonable to have held it. Therefore, the test in par 114(2)(b) was satisfied and evidence of that identification was not inadmissible under s 114.
15. In making my ruling I noted that it was based on a particular interpretation of s 114, and appeared to be consistent with the decisions in R v Taufua [1996] NSWSC 548 (unreported, 11 November 1996) (Taufua), R v Tomason [1999] ACTSC 112 (13 November 1999) and R v Reed and Carberry [2003] ACTSC 6 (21 February 2003).
Inconsistency with other decisions
16. However, while consistent with some previous decisions, my interpretation and application of s 114 was inconsistent with a recent decision of Rares J sitting as a judge of this court (R v Taylor [2008] ACTSC 52 (29 April 2008) (Taylor)). It is necessary to explain that inconsistency in some detail, particularly since my decision may be appealed having regard to it.
17. Section 114 of the Evidence Act is as follows:
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.
18. “Identification evidence” is defined in the Dictionary to the Evidence Act as follows:
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.
Comparison of different views of s 114(2)
1"> 19. I interpreted s 114(2) as follows:
• that paragraph (b) should, because of the reference to “such a parade”, be read as if it said “it would not have been reasonable to have held an identification parade that included the defendant before the identification was made”; and
• that the identification referred to in the phrase “before the identification was made” in par 114(2)(a), and therefore also as read into par 114(2)(b), was the witness’s identification of the defendant as the person that the witness could link to the offence in some way.
20. In contrast, Rares J in Taylor held at [25] that the reference in subs 114(1) to “an identification” was a reference to “the in court assertion that the accused was the person relevantly at the crime scene at the relevant time” and therefore that par 114(2)(a), requiring an identification parade to be heard before the identification was made, only required a parade to take place before the giving of the identification evidence in court.
21. Rares J said:
...
22. His Honour’s interpretation was based on the case of Taufua mentioned in [15] above, in which Barr J (with whom the other two members of the court agreed), found that “evidence of in-court identification made before a jury at a trial is visual identification evidence for the purposes of s 114”.
23. Taufua involved an armed robbery by several men. A witness who worked at a railway station had, before the trial, described a man whom he had come across several times in the company of another of the robbers, a Mr Price, whom the witness knew well and whose identity was not in issue. At the trial, the witness gave evidence that on the day of the robbery he had seen this man at the railway station with Mr Price, that the two men had asked the witness for money, that the other man had threatened the witness with a knife, and that the two men had then left, after Mr Price had suggested they hold up a shop across the road. The witness then identified the accused as the man he had seen with Mr Price on the day of the robbery.
24. However, because the witness had been late for the only identification parade held, he had not previously formally identified anyone as being the second man he had seen on the day of the robbery. Thus his identification, in court, of the accused as the man he had seen on the day of the robbery in the company of the known robber was in fact the first time the witness had identified the accused as the man he had been describing.
25. Barr J (initially for the purpose of determining the date of the “identification” in order to decide whether the Evidence Act provision applied) found that the identification concerned was made only when the witness came to court (and therefore was made after the commencement of s 114). Barr J said:
One may test the matter by asking whether before his in-court identification of the appellant Mr Little gave any visual identification evidence. The answer must be no. His evidence was of seeing a man in the circumstances I have mentioned whom he had seen a number of times before. The man’s appearance was like the appellant’s (if the jury should think that Mr Little’s description corresponded with their own observations). That was evidence of circumstances consistent with the appellant’s being the second man, but it did not identify him. Without the question and answer objected to there was nothing to link the evidence of what Mr Little saw at the railway station with the appellant as opposed to anybody else of that general description. That link was necessary before the evidence could be described as identification evidence – cf. the definition in the dictionary.
26. Having decided that the identification actually made in court was the identification the evidence of which was under challenge, and noting that there had been no identification parade involving the relevant witness, Barr J considered whether it would have been reasonable to hold an identification parade before that identification was made in court during the trial. He said: “I do not think that if [the trial judge] had considered subs (2)(b) he could reasonably have come to the view that it would not have been reasonable to have held an identification parade.”
27. Taufua is significant to the current case for two reasons.
28. First, the court expressly distinguished evidence of the identification from the identification itself, when it said “evidence of in-court identification ... is visual identification evidence for the purposes of s 114”.
29. Secondly, the effect of the court’s analysis of the facts was that the identification made when the witness identified the accused in court as the man he had seen at the railway station was the first actual identification of the accused by that witness. As such it was an identification covered by par 114(2)(a), and thus provided the cut-off point for the operation of that paragraph. That is, because in that case there was no complete “identification” before the trial, an identification parade held at any time before the trial would have satisfied par 114(2)(a).
30. The questions for the court in Taufua were, first, when the identification was made for the purpose of para 114(2)(a), and secondly, once it was decided that the identification was made in court during the trial, whether that took the identification out of the scope of 114(2)(a). What the Court decided in Taufua was, first, that in the particular case the identification was not made until during the trial, and secondly, that subs 114(2) can sensibly be applied even in such a case.
31. What the Court did not decide was that any identity parade held before the trial would satisfy para 114(2)(a), irrespective of when the witness actually made the assertion that constituted the identification.
32. As already mentioned, in Taylor, Rares J read Taufua as authority for the proposition that the reference to “the identification” in par 114(2)(a) is in fact a reference to “the giving of the identification evidence”, such that the paragraph therefore “permits the identification parade to be held at any time prior to the witness entering the witness box” (at [25]).
33. As indicated above, I do not read Taufua as, relevantly, authority for anything beyond the proposition that s 114 applies to an identification that is only made during a trial in the same way that it applies to an identification that is made at some earlier point in the process of investigating and prosecuting an offence.
34. My interpretation of s 114 as set out in [19] above is drawn from my reading of Taufua as described above, but relies also on the following matters.
Statutory interpretation
35. First, I have interpreted s 114 on the basis that, at least for modern legislation, it is appropriate to start from the presumption that if the same expressions are repeated in a provision they are intended to refer to the same concept, while if different expressions are used in a provision they are intended to identify different concepts.
36. The definition of “identification evidence” set out at [18] above refers to evidence of assertions and evidence of reports of assertions. The particular kinds of assertions referred to, although not expressly defined as such, could properly be described as “identifications”, and it seems to me that this term is used in s 114 to refer to the relevant kinds of assertions, as distinct from the evidence proposed to be given in court, which may be a direct assertion made in court or a report of an earlier assertion.
37. Section 114 continues the distinction between “identification evidence” and the specific kind of assertion of which it is evidence, referring to the assertion as an “identification”.
38. The reference in subs 114(1) to “identification evidence relating to an identification” is clearly intended to distinguish the evidence from the identification itself.
39. The statement in subs 114(2) that “visual identification evidence adduced ... is not admissible unless an identification parade ... was held before the identification is made” must also be intended to distinguish the identification evidence from the making of the identification (otherwise the provision would properly have referred to an identification parade having been held “before the visual identification evidence is adduced”).
40. The reference in subpar 114(3)(c)(ii), in the context of the practicality of holding an identification parade, to “whether the identification was made at or about the time of the commission of the offence” indicates that “the identification ... made” in that subparagraph does not mean “identification evidence given at the trial”. Such evidence could never be given “at or about the time of the commission of the offence”, having regard to the time inevitably taken in bringing even the simplest matter to trial. If the subparagraph is interpreted on the basis that the making of the identification is the same as the giving of the identification evidence, it would necessarily be meaningless, but there is no apparent justification for finding either that the provision is intended to be meaningless or that the drafting has failed so badly that it must be treated as meaningless. To the contrary, the provision appears to make complete sense if it is interpreted according to its tenor and treated as using two different expressions to refer to two different things.
41. If subpar 114(3)(c)(ii) is read as distinguishing between the identification and the identification evidence, as I consider it must be, then the use of those different expressions in the earlier provisions of s 114 should also be presumed to convey the same distinctions, unless there is a clear and specific reason for adopting a different interpretation. I cannot find such a reason, and as mentioned at [28] above, the distinction between the two concepts was recognised in the decision in Taufua.
Policy considerations
42. There is also a policy reason for finding (assuming that the words of the provision permit) that “before the identification was made” in par 114(2)(a) refers to the period leading up to the making of an identification in whatever form and wherever it is made, and should not be read as meaning in all cases “at any time before the evidence of the identification is given at the trial”.
43. Identification evidence is recognised as potentially unreliable (see, for instance, Alexander v R [1981] HCA 17; (1981) 145 CLR 395 (Alexander) at 426, per Mason J). In particular, there is a risk that a witness who has given a description of a person with some resemblance to the accused will, in court, identify the accused as that person not because he reliably recognises the accused as the person he saw and has been describing but because he sees the accused in court identified as the accused. This risk is seen to be reduced if the witness can actually identify the accused, outside the court environment, from among a group of people not distinguished from each other by any aspect of their environment. This was explained by Mason J in Alexander as follows:
Traditionally it has been accepted that a witness identifies the accused at the trial as the person whom he observed at the scene of, or in connexion with, the crime. This “in court” identification, sometimes described as primary evidence, is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock. It has been the practice to reinforce this “in court” identification by proving that the witness had earlier identified the accused out of court in a line-up ...
44. The explanation for the proposals implemented by s 114 and associated sections has been summarised as follows (Odgers, Uniform Evidence Law, 7th edition, at 477):
The ALRC considered that these proposals were necessary because it had concluded, on the basis of the extensive literature, that identification evidence was generally more unreliable and difficult to assess than other types of evidence, ... that the standard method of testing evidence by cross-examination does not provide adequate protection against unreliable identification evidence ... and that identification parades are likely to be less unreliable than other modes of first identification: [References omitted]
45. Hence the starting assumption of s 114 that ideally, identification evidence should have been tested through an identification parade before it is given in court.
46. That starting assumption reflected in par 114(2)(a) is, however, qualified in several ways. It is qualified by par 114(2)(b), which recognises that in certain circumstances it will not be reasonable to hold an identification parade, and by par 114(2)(c) which recognises that a parade cannot be held without the suspect’s co-operation. The expectation of an identification parade is also qualified in par 114(2)(a) itself, by the requirement that the identification parade is held “before the identification is made”.
47. There is good reason for a policy that identification parades held after an identification is made are undesirable. In general terms, that reason is that if a witness has already identified a person in the absence of a parade, holding a parade is more likely to confirm the witness’s previous identification than to test his ability to make an identification. Thus, evidence of a prior identification that has been reinforced through an identification parade might in fact be more dangerous than evidence of the prior identification alone, and excluding such evidence would be consistent with the overall aim of s 114 to restrict the admissibility of unreliable identification evidence.
48. In R v Lumsden [2003] NSWCCA 83 (5 April 2003), the court accepted that it would not have been reasonable, for the purpose of subs 114(2), to hold an identification parade after the witness concerned, a police officer, had been involved in executing a search warrant at the appellant’s premises where the appellant was present.
49. The court rejected a ground of appeal to the effect that the trial judge’s direction to the jury in relation to the witness’s “purported identification” was inadequate or misleading. The majority (Mason P and Hulme J) found that the appeal ground failed because the evidence was not significant in “the proof of [the appellant’s] guilt” (at [35]). Smart AJ, in dissent in upholding this appeal ground, accepted the appellant’s contention that “nowhere did the judge point out ‘the most essential feature of [the witness’s] evidence, namely, that the circumstances in which [the witness] first saw the appellant on 2 July 2001 [when he executed the search warrant] made it almost inevitable that he would identify her as the person he saw on 2 May 2001 [apparently involved in committing the offence]’” (at [104]). Although the majority judges rejected the appeal ground, Hulme J, with whom Mason P agreed, said at [34]:
There can be no doubt that if [the witness’s] evidence of identification of the Appellant at the time of her arrest represented “any significant part of the proof of guilt”, the directions given were inadequate ... . Obviously, there was a risk—whether great or small was a matter for the jury—that, if [the witness’s] observations and recollection of the offender had been less than perfect, that he would be influenced to pick the Appellant because, when he went to her home, he first saw her in conversation with 2 other police officers.
50. All three judges seem to have recognised the risk I have described above, that an opportunity to identify an accused in circumstances which facilitate or encourage the identification may, by the time the witness gives in-court evidence of the identification, taint rather than validate a previous identification.
51. Section 114 in its express terms can be read as intended to discourage the holding of identification parades after an identification has been made, and the danger described above provides a basis for interpreting it to that effect by reference to its plain words rather than reading it, despite its plain words, as providing that a parade held at any time before trial, irrespective of when an identification was first made, will justify the admission of the identification evidence.
52. Where, as here, the identification takes the form of putting a name to the person observed by the witness, and conveying that identification to investigating officials and others in the absence of the person identified, the practical considerations are slightly different. However, a consideration of the facts of this case confirms the proposition that identification parades may be undesirable after the relevant identification is made.
53. The following scenario based on the facts of this case and a hypothetical identification parade illustrates the risks of identification parades after identification.
• C is assaulted by a person he believes he recognises, during a 90-second encounter, as A, a fellow student from the primary school he left four years ago. He passes on this identification of his assailant to the police when he reports the assault.
• An identification parade is organised including A. C expects that A will be included, and has a sufficient memory of A to identify him in the identification parade. On the basis of this memory and his previously expressed belief that A was the assailant, C, acting entirely in good faith, picks out A in the parade.
54. The problem is that all this identification really shows is that C does know A well enough to pick him out of a parade. His ability to do that does not confirm that the assailant was A; at most it confirms that the assailant was sufficiently similar in appearance to A to explain C’s initial identification. The reliability of that initial identification is not established or increased by C’s ability to identify A in a different context, and one in which he is already expecting to see A.
55. Furthermore, if C’s memory of A was reasonably accurate, but C had doubts about his identification of his assailant, the effect of including A in an identification parade might simply be to confirm C’s initial identification. Among other things, seeing A in an identification parade might overlay C’s actual memory of the assault with his now reinforced memory of A’s appearance so as to minimise those doubts. Although, as demonstrated above, C’s ability to pick out A in the parade does not prove that C’s initial identification was reliable, it might nevertheless make C more certain about his identification and less susceptible to cross-examination on behalf of A. That is, rather than demonstrating the accuracy of C’s initial identification, such an identification parade might contaminate C’s identification dangerously, but without that contamination being apparent.
56. It might be argued that in cases such as the current one, an identification parade could reveal a dramatically mistaken identification (for instance if the complainant had recognised the assailant as a former classmate but had wrongly albeit honestly attributed the name of another former classmate to him). However, if such a mistake is likely to be disclosed at an identification parade when the complainant recognises the person he has named but realises that person was not the assailant, it is also likely to be disclosed at the trial when the complainant realises that the person in court is the person he has named but not the assailant. The possibility that a mistaken identification might emerge earlier if an identification parade is held would not seem to outweigh the very real prejudice already described that might be caused by holding a parade after an identification has been made.
57. Thus, there are policy considerations that tell against permitting an identification parade to be held after a witness has made the identification consisting of the assertion linking a particular person with a particular offence. Having regard to these considerations and the express words of s 114, I consider that, while s 114 favours the holding of identification parades in certain circumstances, par 114(2)(a) deliberately sets a timeframe within which an identification parade should be held, and aims to deter the holding of an identification parade after the identification has been made.
58. For these reasons, I declined to follow the interpretation of s 114 relied on by Rares J in Taylor, and found that s 114 did not in this case require the identification evidence to be excluded.
Relationship evidence
59. In initial argument on the application to exclude evidence under s 114, defence counsel submitted that the prior relationship between the complainant and the accused was not such as to make it inappropriate to hold an identification parade by reference to par 114(3)(d). In case this issue became important, the complainant gave evidence on a voir dire of his knowledge of the accused, and was cross-examined. However, once I concluded that it would not have been possible to hold an identification parade in accordance with par 114(2)(a), and therefore it would not have been reasonable to have held one, I did not need to decide on the appropriateness of holding an identification parade in the light of the nature of the prior relationship (par 114(3)(d)).
Application to exclude prejudicial evidence
60. After I had indicated my ruling on defence counsel’s initial application, she sought to have the identification evidence excluded under s 137 of the Evidence Act which is as follows:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
61. It was conceded by both counsel that the evidence had probative value, although the assessment of how much probative value it had varied according to the view of counsel about the relationship between the complainant and the accused and therefore the strength of the identification evidence.
62. It was also noted in argument that prosecution evidence with probative value is inherently likely to be prejudicial to an accused, and that the nature and extent of the prejudice is likely to increase with the probative value of the evidence.
63. As explained by the Australian Law Reform Commission (ALRC 26, Vol 1, par 957, quoted in Odgers, Uniform Evidence Law, 7th edition, at 633):
There is some uncertainty over the meaning of “prejudice”. But, clearly, it does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.
64. The section is not aimed at excluding all evidence that might be useful in making out the charges, only evidence that may cause unfair prejudice to the accused. For instance, identification evidence that is prejudicial purely because it tends to place the accused at the scene of the offence can be distinguished from identification evidence that is unfairly prejudicial because the explanation given for the witness’s ability to identify the accused contains material unrelated to the current offence that may nevertheless prejudice a jury. In this case, for instance, if the complainant had given evidence (which, I emphasise, he did not) that he remembered D from school because D had bullied him at school, the reference to bullying might have generated unfair prejudice.
65. However, counsel was unable to point to any way in which the identification evidence proposed to be given, including the evidence given on the voir dire about the relationship between the two men which presumably would have been repeated in the trial, could be said to be prejudicial at all, except to the extent that it tended to show the accused’s involvement in the offence. In particular she was not able to articulate any basis for finding the evidence unfairly prejudicial. I therefore refused her application under s 137.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 8 September 2008
Counsel for the prosecution: Mr M Clark
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the accused: Ms T Warwick
Solicitor for the accused: Aboriginal Legal Service (NSW/ACT) Limited
Date of hearing: 1, 2 September 2008
Date of judgment: 8 September 2008
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2008/82.html