Director of Public Prosecutions v Higgins
[2023] ACTSC 230
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Higgins |
Citation: | [2023] ACTSC 230 |
Hearing Date: | 21 August 2023 |
Decision Date: | 22 August 2023 |
Before: | Loukas-Karlsson J |
Decision: | The prosecution is not permitted to adduce the photo board identification evidence of 6 September 2022 |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of photo board identification evidence – where police conducted the photo board procedures in contravention of s 235 of the Crimes Act 1900 (ACT) – consideration of s 138 of the Evidence Act 2011 (ACT) – significant evidence in the proceedings – desirability of admitting evidence outweighed by undesirability of admitting evidence obtained in the way in which the evidence was obtained – photo board identification evidence not admissible |
Legislation Cited: | Crimes Act 1900 (ACT) ss 34, 233, 235 |
Cases Cited: | IMM v The Queen [2016] HCA 14; 257 CLR 300 |
Parties: | Director of Public Prosecutions (Applicant) Jaiden Ashton Higgins (Respondent) |
Representation: | Counsel M Dyason (Applicant) T Jackson (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Bevan & Co Lawyers (Respondent) | |
File Number: | SCC 25 of 2023 |
LOUKAS-KARLSSON J:
Introduction
1․The Adolf Beck case was a notorious case of mistaken identity. That case led to the creation of the English Court of Criminal Appeal and later Courts of Criminal Appeal in Australia. It must be said that the potential dangers of identification evidence are well known to the Courts. The Legislature has similarly recognised that danger, in part by legislating ss 233 and 235 of the Crimes Act 1900 (ACT) (Crimes Act). This case concerns the application of s 235 in relation to identification parades and identification by means of photographs.
2․The trial by judge alone of Mr Jaiden Higgins, the respondent to this application, was listed before me pursuant to s 68B of the Supreme Court Act 1933 (ACT). Before commencing the trial, it was necessary to consider the application by the prosecution to adduce photo board identification evidence.
3․The application to adduce photo board identification evidence was made pursuant to s 192A of the Evidence Act 2011 (ACT) (Evidence Act) and is supported by the affidavit of DPP solicitor Ms Narouz dated 15 August 2023. The application is opposed by counsel for the accused.
4․In addition to the application in proceeding regarding photo board identification evidence, the prosecution filed two further applications concerning witnesses giving evidence via audio-visual link (AVL) and adducing coincidence evidence. It is not necessary for me to consider these applications at this stage, though I note the application for witnesses to give evidence via AVL is not opposed by counsel for the accused.
Background
5․Mr Higgins has been charged with the following offences:
(a)Count 1: Aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code), by virtue of s 45A of the Criminal Code;
(b)Count 2: Forcible confinement contrary to s 34 of the Crimes Act, by virtue of s 45A of the Criminal Code; and
(c)Count 3: Damage property contrary to s 403(1) of the Criminal Code, by virtue of s 45A of the Criminal Code.
6․Mr Higgins entered a plea of guilty to Count 3 at the commencement of the hearing on 21 August 2023. At this time, Mr Higgins also entered pleas of not guilty to Counts 1 and 2.
7․In summary, the prosecution alleges in relation to Count 1 and 2 that on the evening of 30 July 2022, the victim was walking home from the Belconnen Interchange. As the victim passed his neighbour’s house, a male allegedly grabbed his jacket and said words to the effect of, “give me all your stuff”. The victim provided a description of the male who grabbed him. The prosecution asserts the male described by the victim was the accused.
8․The accused allegedly then began assaulting the victim by hitting him, resulting in one of his earphones falling out of his ear. Shortly after, two further unknown males allegedly approached the victim and demanded property, with one saying words to the effect of “give me your earphones. Where do you think you’re going?”. A third unknown male arrived shortly after.
9․The accused allegedly then grabbed the victim and dragged him to a location, while continuing to hit him in the face, causing pain to the victim’s right temple area. Once arriving at the intended location, a member of the group opened the door and pushed the victim into the residence. The victim reported being very compliant, ‘fearing for his safety and not wanting to make the situation worse’. When the victim entered the residence he saw his neighbour who said words to the effect of, ‘he’s my neighbour, he’s cool’.
10․The victim was then allegedly forced into the master bedroom of the residence and confined in this space for approximately five minutes. When the victim attempted to leave, he allegedly was repeatedly pushed back onto the bed and hit. The victim was also threatened. At some point, the victim’s phone and wallet were taken, but the wallet was later returned. The victim was then told to “get going” by an unknown male and was able to flee the residence. The accused and an unknown male chased after the victim but were unable to keep up. The victim then spoke to a security guard at a nearby supermarket who contacted police.
Application to adduce photo board identification evidence
Relevant statutory provisions
11․The relevant statutory provisions are s 235 of the Crimes Act, and ss 138 and 192A of the Evidence Act.
12․Section 235 of the Crimes Act provides as follows:
235 Identification by means of photographs
(1) If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a police officer investigating the offence shall not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless—
(a) the suspect has refused to take part in an identification parade; or
(b) the holding of an identification parade would be—
(i) unfair to the suspect; or
(ii) unreasonable in the circumstances.
(2) If a police officer investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a)the police officer shall show to the witness photographs or pictures of at least 9 different persons;
(b)each photograph or picture of a person who is not the suspect shall be of a person who—
(i) resembles the suspect in age and general appearance; and
(ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
(c)the police officer shall not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d)if practicable, the photograph or picture of the suspect shall have been taken or made after he or she was arrested or was considered as a suspect;
(e)the witness shall be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
(f)the police officer shall keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
(g)the police officer shall notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
(h)the police officer shall retain the photographs or pictures shown, and shall allow the suspect or his or her legal representative, on application, an opportunity to inspect the photographs or pictures.
(3) If—
(a)a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and
(b)the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and
(c)proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and
(d)the photograph or picture is admitted into evidence;
the jury shall be informed that the photograph was taken or the picture made
after the suspect was arrested or was considered as a suspect.
(4) If a suspect is in custody in respect of an offence, a police officer investigating the offence shall not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.
(5) If, after a police officer investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4)—
(a) a suspect comes into custody in respect of the offence; and
(b) an identification parade is to be held in relation to the suspect;
the police officer in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend.
(6) If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the police officer in charge of investigating the offence shall, on application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness about the picture.
(7) If a suspect is in custody in respect of an offence and a police officer investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a police officer from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.
(emphasis added)
13․Section 138 of the Evidence Act provides:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a)did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it must take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note The International Covenant on Civil and Political Rights is accessible at s 192A of the Evidence Act provides:
192AAdvance rulings and findings
Where a question arises in a proceeding, that is a question about—
(a)the admissibility or use of evidence proposed to be presented; or
(b)the operation of a provision of this Act or another law in relation to evidence proposed to be presented; or
(c)the giving of leave, permission or direction under section 192;
the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is presented in the proceeding.
Evidence
15․The prosecution seeks to adduce the evidence of the victim that he participated in a photo board identification procedure on 6 September 2022, during which he identified the accused, Mr Higgins, as the person responsible.
16․The ‘Supplementary Statement’ provided by the officer in charge of the investigation (the officer) dated 9 August 2023 was tendered to the Court at exhibit ‘EN6’ to the affidavit of Ms Narouz (at Exhibit 2 on the voir dire). This was described by the officer as ‘supplementary to his original statement dated 9 November 2022’. In summary, the statement of 9 August 2023 outlines the following.
17․On 30 July 2022, the officer attended a location in Bruce, ACT and observed the accused to be in police custody.
18․On 25 August 2022, the officer submitted a request for the creation of photo boards in relation to the accused and the suspected co-offender. On 31 August 2022, the officer provided to the AFP Forensic Artist imagery of the accused obtained after his arrest to be used in the photo boards. The officer received the photo boards on 2 September 2022, tendered at exhibit ‘EN4’ to the affidavit of Ms Narouz.
19․On 5 September 2022, the officer requested assistance from a team member of one of the other Major Crime teams to conduct the Photo Board Record of Conversations (the ROCs) with the witnesses. On 6 September 2022, the officer received confirmation that another officer had completed the ROCs and the officer received three transcripts. A statement of the officer who undertook the ROCs was tendered at exhibit ‘EN5’ to the affidavit of Ms Narouz.
20․The photo boards were then returned to the officer and recorded as ‘exhibits’.
21․The statement of the officer dated 9 August 2023 also indicates the following at [11]:
At the time of requesting the photo boards, I did not offer the [accused] the opportunity to participate in an Identification Parade, as I believed that it was not reasonable in the circumstances to conduct an identification parade. At that time, the [accused] was in custody and I believed it would not have been feasible to locate eight other similar looking persons to conduct an identification parade with the [accused], let alone get them to agree to attend the Alexander Maconochie Centre to participate in the identification parade.
22․A statement of an AFP Forensic Artist was tendered at exhibit ‘EN7’ to the affidavit of Ms Narouz. The statement detailed the process that is undertaken by the Forensic Artist to compile photo boards in relation to the investigation of criminal offences. The statement indicates that the Forensic Artist received a request on 26 August 2022. In response to this request, the Forensic Artist completed photo boards which were provided to the officer on 2 September 2022.
23․In addition to the Supplementary Statement above, the officer gave evidence at the hearing on 21 August 2023. The officer gave evidence that he was attached to the Criminal Investigation Unit with the Tuggeranong Police Station and that he was the informant in this case.
24․The officer gave evidence he had now been a police officer for ten years and has been attached to Criminal Investigations since November 2019 (T9.6-9). The officer gave evidence that he had undertaken two “detective’s courses”, at least one of which was completed prior to the investigation into the accused in this matter (T9.11-20). The officer confirmed he had also participated in “legal courses” (T10.47). The officer gave evidence that these courses instructed that identification can be ‘one of the most difficult aspects of an element to prove’, and that there are ‘very strong legislative requirements in relation to the proof of identity’ (T11.1-3, T11.8-9). The officer gave evidence that he is “aware of the dangers of identification evidence in general” (T11.14-15).
25․The officer gave evidence that ‘“ideally” you should offer an identification parade to the accused prior to having the photo board prepared’, however explained his understanding of the legislation (referring to s 235 of the Crimes Act) to be that “if it is unreasonable to do the identification parade then you can use other avenues” (T9.32-33). The officer conceded there was no record of his decision-making process in relation to not offering an identification parade to the accused, and gave evidence that he “either overlooked it or did not realise it was going to be relevant”, and therefore did not record his decision-making (T12.43-44).
26․Counsel for the accused challenged the statement of the officer that it was not feasible to offer the identification parade to the accused because he was in custody at the time. The officer indicated his statement referred to the feasibility of conducting the identification parade in custody, as opposed to offering it (T9.41-43). The officer gave evidence that “finding eight people of similar appearance and getting them to the AMC to do an identification parade and the victim to AMC all at the same time” presented a difficulty (T15.1-2). The officer gave evidence that he had not recorded any attempts to find these eight people, and that he made assumptions about the likelihood of finding people of similar appearance before consulting police indices which enable searches by particulars such as height, skin colour, hair colour and facial features (T23.10-16).
27․The officer gave evidence that he “felt he wouldn’t be able to” organise an identification parade at the prison (T19.15-16). Counsel for the accused put to the officer in cross-examination that this would never have been a feasible option (due to practicalities and inferences about participants being in custody) and the officer conceded he was aware, “in hindsight”, that he could apply for a warrant to move the prisoner from the jail to a police station (T19.46).
28․The officer gave evidence that “at the time [he] was pretty confident [he] was doing the right thing” (T14.6-7). Further, the officer gave evidence he did not consult the legislation or speak with a supervisor about the ‘correct procedure’ (T14.18-20, 33-34). The officer’s confidence that he was “doing the right thing” was, in my view, clearly misplaced.
29․The officer conceded that his “ability to go to the prison was not hampered” (T10.35-36) and gave evidence that he “could have gone [to the AMC] and tried to speak to [the accused]”, however did not agree that the accused would make himself available to speak to police (T22.40-45). The officer gave evidence that he did not make any enquires with the AMC (T23.45-47).
30․During cross-examination, counsel for the accused tendered a copy of a Statement of Facts (SOF) in an unrelated matter in which Mr Higgins was the accused. The SOF indicated that investigating officers in that matter attended the AMC to enquire as to whether Mr Higgins wanted to participate in an identification parade.
Consideration
31․Counsel for the accused submitted that the conduct (or omission) of the officer constitutes a significant non-compliance with s 235 of the Crimes Act. This is a relevant contravention that is within s 138 of the Evidence Act. The prosecution conceded in oral and written submissions that the accused was not offered the opportunity to participate in an identification parade prior to the photo board procedure being undertaken and, therefore, that the evidence was obtained in contravention of s 235. In my view, this was a proper concession.
32․Counsel for the accused submitted this conduct did not fall within the scope of s 235(1)(b)(ii) of the Crimes Act as to “unreasonable”. The “unreasonable in the circumstances” point was not pressed by the prosecution. The contravention was properly conceded by the prosecution on the evidence in this case.
33․The question then becomes whether “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained” (as per s 138 of the Evidence Act).
34․Section 138(3) of the Evidence Act provides a non-exhaustive list of matters relevant to the above assessment. See R v Thompson (No 3) [2017] ACTSC 53 (Thompson) and R v Cunningham (No 2) [2021] ACTSC 325 (Cunningham (No 2)).
35․I will address each of the matters under s 138(3) as follows.
(a) The probative value of the evidence
36․The prosecution submitted, in circumstances where the identity of the accused must be the primary issue at trial, the probative value of the evidence is high. Counsel for the accused conceded the probative value was high in those circumstances.
37․I will assume for the purposes of this legal exercise that the probative value is high, and proceed on the assumption the evidence is accepted: see IMM v The Queen [2016] HCA 14; 257 CLR 300 at [43]-[45]. Nevertheless, a photo board identification procedure undertaken more than a month after the offences in question is far from ideal.
(b) The importance of the evidence in the proceeding
38․That the evidence is significant evidence in the proceeding is a factor which favours admission of the evidence.
39․The prosecution submitted that the photo board evidence is crucial to the prosecution case with respect to establishing the identity of the accused as one of the persons involved in the commission of the aggravated robbery and forcible confinement offences. The prosecution submitted that, without this evidence, the prosecution case would fail.
40․Counsel for the accused acknowledged the importance of the evidence to the prosecution case in oral submissions.
41․I take into account the importance of the evidence in the proceeding. It is clearly critical to the prosecution case. This is a factor which may favour admission.
(c) The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding
42․Parties self-evidently agreed that the offences are serious.
43․I take into account that the offences are serious and that this is a factor which may favour admission.
(d) The gravity of the impropriety or contravention
44․The prosecution submitted that the gravity of the contravention was “slight” and was “reckless at its highest”.
45․As stated earlier, the prosecution submitted that while the belief of the informant represents a “misunderstanding” of the requirements of s 235 of the Crimes Act, the belief was genuinely held (T29.33-35). The prosecution further submitted that the failure to offer the identification parade was a result of a genuine (albeit unreasonable) belief, held by the officer.
46․The prosecution submitted where the impropriety is serious, this tended towards the exclusion of evidence. However, the prosecution distinguished the facts of Thompson submitting this impropriety was less serious than the trespass or forceful invasion considered in Thompson. It is trite to observe that a case falls to be decided on its own facts.
47․Counsel for the accused submitted that this conduct represented a “high level of impropriety and contravention” and that the reasoning process of the officer otherwise does not withstand analysis (T41.42-43). In my view, the conduct amounts to a failure to comply with a clear legislative requirement. Counsel for the accused submitted that the contravention is a result of “laziness, possibly incompetence”, but that it did not amount to “malice” (T42.39-40). I agree that there is no evidence of malice.
48․I do not accept that the contravention was “slight”. There was at least a high degree of recklessness. The legislative mandate is clear. The gravity of the impropriety in this case is significant and I take this into account. I will expand on recklessness under the next heading.
(e) Whether the impropriety or contravention was deliberate or reckless
49․The prosecution made oral submissions that the conduct was not deliberate as the officer had an “erroneous belief, but one genuinely held” that he was complying with s 235 (T28.16). See R v Hoang [2015] ACTSC 17; 248 A Crim R 282at [103] and Thompson at [80].
50․Counsel for the accused submitted that, in circumstances where the officer has been a police officer for approximately 10 years and in the Criminal Investigations team since 2019, has undertaken at least two ‘detective’s courses’ and had access to the supervision of superior officers, this conduct is more appropriately described as “deliberate” and “illogical”. Counsel for the accused submitted there was a high degree of recklessness, if not deliberateness (T41.10-11).
51․In considering this question, I echo the statement of Mossop J in Cunningham (No 2) at [20]:
I do not characterise the contravention as deliberate or reckless. Rather I would characterise it as based upon a misapprehension of the strength of the obligation in s 235 of the Crimes Act and institutional incentives to favour the use of convenient and flexible methods of identification rather than inconvenient and cumbersome methods such as identification parades.
(emphasis added)
52․In my view, the officer in the case before me did not understand the importance of the obligation under s 235 of the Crimes Act. In this case, on the evidence of the officer before me, he chose the “convenient” over the “inconvenient”. In my view, there was a high degree of recklessness involved. He did not consult a superior officer (T15.15-16). He did not consult a police manual (T19.1-6). In the evidence of the officer before me, ‘inconvenient’ appears to have therefore become ‘unreasonable in the circumstances’.
(f) Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights (ICCPR)
53․Parties agreed this was not a relevant matter. I agree it is a neutral factor.
(g) Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention
54․The prosecution submitted that no other proceedings have been or are likely to be taken in relation to the contravention. Counsel for the accused accepted it was neutral factor on admission in the circumstances of this case.
55․The prosecution expressed an intention to raise the issue of the erroneous understanding with the informant after the conclusion of the matter in an effort to improve the practice of this officer and other officers involved in investigations.
(h) The difficulty (if any) of obtaining evidence without impropriety or contravention of an Australian law
56․The prosecution, in written submissions, submitted there may have been some difficulty in obtaining the evidence in the absence of the contravention. In support of this submission, the prosecution drew the Court’s attention to the conduct of the accused upon his arrest. However, in oral submissions, the prosecution conceded that it was “clear that there would not have been any difficulty or the difficulty would not have been significant in obtaining the evidence in the absence of the contravention” (T30.46, T31.1-2). Therefore, the earlier submission was withdrawn.
57․Counsel for the accused correctly submitted that the first question in assessing the difficulty of obtaining the evidence without contravention is considering the difficulty of asking the accused whether he would like to participate in an identification parade. As stated earlier, counsel for the accused established in cross-examination of the officer that this would have been a relatively “simple” exercise, tendering the SOF in an unrelated matter in which officers were able to attend AMC and speak with the accused about his willingness to participate in an identification parade.
58․The question should have been asked of the accused in accordance with s 235(a).
59․In this case, counsel for the accused submitted that if the accused had been asked and agreed to participate, the question would then be whether it was “reasonable in the circumstances” to undertake the identification parade in accordance with s 235(1)(b)(ii) of the Crimes Act. However, counsel for the accused submitted that the officer did not meet this first hurdle. Importantly, had a request been made to the accused, and he refused, ss 235(1)(a) or 235(1)(b)(ii) would have permitted the photo board identification procedure to lawfully proceed. The officer gave evidence that he made no request of the accused while he was in custody at the AMC.
Conclusion
60․Had a request been made to the accused in this case and he agreed to an identification parade, an identification parade could have been conducted. If the accused refused, then s 235(1)(a) concerning refusal or s 235(1)(b)(ii) concerning “unreasonable in the circumstances” would have permitted photo board identification evidence.
61․Conducting identification parades places demands upon the police. These demands reflect a “legislative command” about the appropriate criminal process: see Cunningham (No 2) at [26].
62․Undoubtedly, a photo board procedure is less demanding and can be delegated to another officer. Therefore, there are also undoubtedly incentives to adopt the less demanding procedure. But that is not what the law demands.
63․In determining the s 138 question, I have considered that the probative value, importance of the evidence in the proceeding and the seriousness of the offences do favour admission. On the other hand, the gravity of the impropriety, the high degree of recklessness and the lack of difficulty of obtaining the evidence without contravention in this case tends toward non-admission. In my view, the factors favouring non-admission outweigh the factors favouring admission.
64․It is relevant in this case, as Mossop J stated in Cunningham (No 2) that it “would allow the undermining of a clearly and long-expressed legislative preference for the conduct of identification parades”. Further, I agree with Mossop J in Cunningham (No 2) at [33] that there is a clear need to ensure that police comply with clearly expressed legislative requirements.
65․Undoubtedly, for a police officer, the requirements for an identification parade are demanding. The requirements are demanding, and the law demands it.
66․It is for these reasons that I am not persuaded that “the desirability of admitting the evidence outweighs the undesirability of admitting [the] evidence”.
Orders
67․The Court makes the following orders:
(1)The prosecution is not permitted to adduce the photo board identification evidence of 6 September 2022.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 22 August 2022 |
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Amendments
24 August 2023 Replace “convention” with “contravention” Paragraph: Above [44]
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