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Supreme Court of New South Wales |
Last Updated: 1 August 2011
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Case Title:
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Jurisdiction:
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Before:
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Decision:
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(1) Appeal allowed.
(2) Set aside the order of Magistrate Eckhold made 25 January 2011 at Dubbo Local Court dismissing the proceedings commenced against the Defendant for the offence of knowingly contravening a prohibition specified in an apprehended violence order. (3) Remit the matter to the Local Court to be dealt with according to law. |
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Catchwords:
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CRIMINAL LAW - evidence - judicial discretion to
admit or exclude evidence - visual identification evidence - whether it was
reasonable
not to have held an identification parade - Complainant knew
Defendant - s 114 Evidence Act - whether "identification" includes out-of-court
identification.
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Legislation Cited:
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Cases Cited:
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DPP v Donald [1999] NSWSC 949
R v Benjamin John Taylor [2008] ACTSC 52 R v D [2008] ACTSC 82 R v David Taufua (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 11 November 1996) R v Tahere [1999] NSWCCA 170 R v Thomason [1999] ACTSC 112 R v Trudgett [2008] NSWCCA 62; (2007) 70 NSWLR 696 Regina v Fredrick Valdez Ford (unreported - Sup Ct, Barr J - 22 April 1998). |
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Parties:
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Representation
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- Solicitors:
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Publication Restriction:
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Background
The evidence before the Magistrate
Q. Now ma'am do you know Mr Aaran Walford?
A. No.
Q. Do you mean by that you don't know him personally?
A. No not personally, I mean besides what happened.
Q. Besides what happened okay. If I take you back to Thursday 25 March of last year. At the time was there an apprehended violence order between yourself and Mr Walford?
A. Yes.
Q. And he was the defendant and you're what's referred to as a protected person?
A. (No verbal reply).
HIS HONOUR
Q. You nodded, that's yes?
A. Yes.
PROSECUTOR
Q. I'll just ask you to keep your voice as loud as possible ma'am. The microphone doesn't actually amplify it just records?
A. Okay.
Q. Now about 5pm on 25 March you were at a friend's house is that right?
A. Yes.
Q. And where is that friend's house in relation to your house?
A. Next door to me.
Q. Next door?
A. Yeah.
Q. And what did you see if anything when you were at your friend's house?
A. It's a bit hard to remember - I can't really remember anything really.
Q. Are you able to see your premises or your house from your friend's house?
A. Yes.
Q. And could you see anyone at or near your house?
A. Yes.
Q. And are you able to say who that person was?
A. Yes.
Q. And who was it?
A. Aaran Crawford (as said).
JULIAN: At this point I'm objecting to that response.
HIS HONOUR: All right. Yes all right now I think we need to have a voir dire about the evidence, because the evidence that she has given is that she identified a person called Aaran who I anticipate for obvious reasons who that might be.
PROSECUTOR
Q. Now before that day you'd met Mr Walford is that right?
A. Yes I think. I can't really remember.
Q. You can't really remember?
A. No it's too far away, too long ago.
Q. Are you saying -
A. I just remember the events that happened, like the assault wise stuff.
Q. Okay an assault?
A. Yes.
Q. Now if I take - I want you to think about that day?
A. Yeah.
Q. And that assault. Had you seen Mr Walford before that day?
HIS HONOUR
Q. Before the day of the assault?
A. I think just around.
PROSECUTOR
Q. If you had it was just around?
A. Yeah.
Q. Did you see him again?
A. Yes out the front. He was - I think he was taking his shirt off to egg people on.
Q. So you were taking notice of what he was doing?
A. Yeah because-
Q. You were watching him?
A. Yes. I was on the phone to my girlfriend.
Q. And how did you feel after being assaulted?
A. Upset, hurt.
Q. Were you worried at all in relation to being assaulted again?
A. Yes, him being out the front.
Q. Him being out the front?
A. Yep.
Q. So you were watching him?
A. Yes.
...
Q. On the day of the assault I think you said that you were worried about where he was after being assaulted, you were on the phone to your girlfriend, you were watching him?
A. Yeah yeah.
Q. And was that because - why was that?
A. Because he was out the front.
Q. And when was the next time you saw him. Was that the day you saw him at your house or did you see him before then?
A. Yeah I've - I've seen him after the assault and stuff.
Q. You've seen him after the assault?
A. Yeah going next door across to me.
Q. In the same block of flats?
A. Yeah.
Q. Okay and did you ring the police on those occasions?
A. Yeah I have a couple of times and my neighbour has.
...
Q. Okay today you gave evidence that you were at your friend's house and you saw him walk near your house?
A. Yes he was going to flat four but he wasn't home.
Q. To flat four?
A. Yeah.
Q. And what flat are you?
A. Flat 10.
Q. And so when you saw him how far away were you from him?
A. I was in flat nine so he would have been probably from me to where he is now.
Q. What about you to where Mr Walford is now?
A. Yeah.
HIS HONOUR: Seven metres.
Q. And prior to that day 10 December 2009 you'd never met Mr Walford before had you?
A. No.
Q. You'd never come across him before had you?
A. No I don't think - I don't know, no. Probably seen him around, that's it.
Q. But you can't definitely say that you'd seen him around?
A. No, no.
...
Q. You weren't able to tell the police officers the name of the person that had assaulted you is that right?
A. No because I didn't know him.
Q. And you only know Mr Walford's name because you were given a copy of the AVO papers and that's how you learn of his name is that right?
A. Yes, my neighbours know him.
Q. So after that night in December 2009 you became aware of his name is that right?
A. Yes.
...
Q. And since that night and up until you say that you saw Mr Walford on 25 March last year you hadn't come across Mr Walford before had you?
A. No I'm not sure, no. After the assaults and that I kept seeing him walk past my house, because I know where he was going. He jumped the fence.
Q. When you-
A. I see him a few times doing it. Him and his cousin or brother over there.
...
Q. But it's true that you had been between December of 2009 and March 2010 you'd been mostly staying at other people's house and not your own is that right?
A. Yep when I do come home my property, my clothes and stuff, I do see him.
Q. Senior Constable you're the officer in charge of this matter?
A. Yeah that's correct.
Q. Was there an identification parade held?
A. No.
Q. As part of your investigation?
A. No.
Q. Was there a reason for that?
A. Because the victim knew who the offender was.
Q. And what gave you that impression or gave you that belief?
A. Just in regards to when I actually went to get the statement off her she just said his name straight out, it was him and because of the previous dealings that she'd had with him I believe that there wouldn't be any issue in that regard.
Q. Was there any suggestion in the manner of her speech or the manner of identification that gave you cause to doubt otherwise? A. No there was nothing indicating that she didn't know who it was no.
The Magistrate's reasons
It is surprisingly difficult for a relatively minor manner (sic) as we have described it to adequately determine this. I think the scheme of the Evidence Act sets out a presumption that there will not be identification evidence admitted unless there has been a visual identification parade. Now that parade involves the potential of choosing amongst a number of other people and unsurprisingly it may in fact be a matter of informal policy or the policy of the particular officer, I do not know but it would be generally the case in apprehended violence order matters that an identification parade would be completely useless because the two persons would have - that is in a domestic violence context, would know each other very well but an apprehended personal violence order, which I take it this matter was, then it can be very different and this is a matter where the relationship between the two was not as strong as would normally exist, if I can put it that way, in an apprehended violence order.
So the question arises in this particular case, looking at it specifically as to the relationship between the complainant witness who identified the defendant and that is the sole evidence in the case I might add, as to whether it was reasonable under s 114(2B) - sorry whether it was not reasonable to have had such a parade held.
In factoring into account whether it was reasonable or not I have to take into account a range of different factors. The kind of offence, which in this case we have said on numerous occasions this is of lower gravity in the criminal calendar. The importance of the evidence in this case, it is in fact crucial as the identification is the only evidence of a breach that is alleged of the apprehended violence order. And lastly the practicality of holding an identification parade - sorry second last having the identification parade in relation to evidence, as to whether the identification was made at or about the time of the commission of the offence among other things. And lastly the appropriateness of having an identification parade, having regard among other things to the relationship between the defendant and the person that made the identification.
Now one of the things that has been set out in the case law that I have described is a question as to what rational effect it would have had if there had been identification made in this case and I have evidence before me of the original identification by the complainant in the assault matter that saw the apprehended violence order created, which was it was a person who was fair, cross-eyed, had a beard and Aboriginal and wearing I think a yellow shirt and that constituted the evidence of identification in that particular case.
The order was made. Now no doubt the stand to the order being made (sic) is not a relevant consideration except that it is not a criminal conviction in and of itself. I do not know if there was any criminal conviction that flowed as a consequence of the alleged assault.
It is a matter which I have found difficult, not least because of the background of public policy involved which would potentially see police wondering whether they needed to have an identification parade in every case where there is an alleged breach of an apprehended personal violence order. But I do not think this case would really bear upon that question generally. It is restricted to this case and cases of this sort where there is not really any relationship between the defendant and the witness whose evidence is crucial of visual identification, as to whether an identification parade would have been required or not.
I think it was reasonable to expect in the circumstances an identification parade would have been held and I say that because what has failed to be excluded from this case is the possibility that the witness has incorrectly identified the person she saw as being the defendant, both on the last occasion and on previous occasions that she called police . If she had had the identification parade it would have been possible to determine whether she correctly recognised the defendant from that previous assault or not and at this stage that possibility is not available to the defendant and it will no longer be possible because of course she has seen him here today whilst giving evidence.
So I think that restricted solely to this particular case and to matters of this sort where there is no prior relationship of any significance between the defendant and between the witness who identifies them, it is a matter where I should exclude the evidence because an identification parade should have been held. Now I note that this is in no way any authority ... (not transcribable) ... anyone anyway because it is the Local Court but it is no way authority for any proposition that in all cases of an apprehended violence order breaches an identification parade should be held. In most cases there would be a significant relationship between the defendant and the witness, said to identify somebody in a breach proceeding and in this case there was not such a relationship and it is unusual in that regard.
SO THAT EVIDENCE OF IDENTIFICATION IS EXCLUDED. (emphasis added)
Legislation
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 an Australian legal practitioner or legal counsel 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 an Australian legal practitioner or legal counsel 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.
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.
Treat (in) as identical (with); associate (person, oneself) inseparably or very closely with (party, policy, etc); establish identity of, recognise; select by consideration.
The reasonableness of not holding a parade
[7] The identification, upon which the prosecution relied, was the act of identification prior to the arrest of the two defendants. It was not possible for the police to have held an identification parade prior to that time.
[8] Section 114(2) provides that visual identification evidence adduced by the prosecutor is not admissible unless:
[9] (a) An identification parade including 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) that 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.
[10] Under s 114(2)(a) and subject to sub-paras (b) and (c), evidence of identification will not be admissible unless an identification parade was held "before the identification was made". The identification upon which the prosecution relied was made when Mrs Flinders first saw the defendants on 28 November. Having regard to this circumstance it is an irresistible conclusion that s 114(2)(b) applied and the evidence of Ms Flinders as to visual identification was not rendered inadmissible for the want of an identification parade.
[11] I consider there is considerable force in the submissions advanced by Mr Berman, who appears on behalf of the informant, that had the police arranged an identification parade following the arrest of the two defendants any identification made at that parade by Ms Flinders might be said to have been contaminated by her earlier identification of the two women: Alexander v Queen (1981) 145 CLR 359 at 409; R v Carusi (1997) 192 A Crim R 52 at 55; and R v Clarke (1998) 97 A Crim R 414.
[8] I ruled initially that the evidence proposed to be called was visual identification evidence within s114 and that it was inadmissible because no identification parade had been held as required by s114(2)(a). The ruling was not accompanied by a statement of reasons, but my reasons would have emerged during discussion with counsel during submissions. The submissions of counsel concentrated on the question whether the evidence proposed to be called was visual identification evidence within the meaning of the section, and my attention was not drawn to s114(2)(b).
[9] Overnight I became aware of the provisions of s114(2)(b). Without the assistance of further submissions, I formed the provisional view that it would not have been reasonable to have held an identification parade before the identification of the person in question by John Daniel to the other member of the hotel staff, since the identification took place only a few minutes, at the most, after the attack on the customer and before police arrived. I therefore concluded that I was in error in ruling the evidence inadmissible under s114. However, I formed the further provisional view that to give leave for the evidence to be called on the second day of the trial would have been to give it unfair emphasis and that accordingly its prejudicial effect against the accused outweighed its probative value, and thus, although admissible, it should not be admitted into the trial.
[12] My next step was to interpret "the identification" as used in para (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 para (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 s 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 para 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 para 114(2)(b), not have been reasonable to have held it. Therefore, the test in para 114(2)(b) was satisfied and evidence of that identification was not inadmissible under s 114.
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 .
He referred to the 2 bases upon which the Crown sought to make the evidence admissible. The first and only relevant basis for present purposes was that the statements that had been made by the witnesses prior to the trial were the "identification" to which the definition in s 114(1) applied and thus the "identification" referred to in s 114(2)(a).
[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 eg. 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).
[187] Recommendation. Consideration has been given to providing more guidance as to what may or may not be 'reasonable'. For example, if the eyewitness saw someone he or she knew committing the crime, there would be little point in holding a parade. It is not possible, however, to draft an exception on this basis because of the range of knowledge or acquaintance that may be involved in particular cases. Similar problems arise in drafting an exception where the defendant refuses to co-operate. The proposals have been amended, however, to make it clear that, in deciding the reasonableness question, the appropriateness of holding a parade is a separate consideration and it is relevant to consider whether the suspects refused to co-operate, whether the identification was made at or about the time of the offence and the relationship between the defendant and the identifier. Subject to these changes it is recommended that the interim proposals be implemented.
Conclusion
(1) Appeal allowed.
(2) Set aside the order of Magistrate Eckhold made 25 January 2011 at Dubbo Local Court dismissing the proceedings commenced against the Defendant for the offence of knowingly contravening a prohibition specified in an apprehended violence order.
(3) Remit the matter to the Local Court to be dealt with according to law.
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