DPP v Donald

[1999] NSWSC 949

CITATION:	DPP v DONALD & ANOR. [1999] NSWSC 949
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	11685/99; 11686/99
HEARING DATE(S):	16 August 1999
JUDGMENT DATE:	16 August 1999
PARTIES :	Director of Public Prosecutions (Plaintiff) Elizabeth Jane Donald (Defendant) Director of Public Prosecutions (Plaintiff) Karen Rebecca McEntee (Defendant)
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr P Berman (Plaintiff)
SOLICITORS:	Mr S E O'Connor (Plaintiff) Mr Byrne (Donald) Mr Prior (McEntee)
CATCHWORDS:	EVIDENCE; visual identification evidence; admissibility; reasonableness of holding identification parade; (Evidence Act 1995 (NSW) s 114)
ACTS CITED:	Justices Act 1902 Evidence Act 1995
CASES CITED:	Alexander v The Queen (1981) 145 CLR 359 R v Carusi (1997) 192 A Crim R 52 R v Clarke (1998) 97 A Crim R 414
DECISION:	See paras 13 and 14

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J
Monday, 16 August 1999

11685/99 - DIRECTOR OF PUBLIC PROSECUTIONS v ELIZABETH JANE DONALD
11686/99 - DIRECTOR OF PUBLIC PROSECUTIONS v KAREN REBECCA MCENTEE

JUDGMENT

1 HER HONOUR: This is an appeal against an order dismissing two informations, brought pursuant to s 104(2) of the Justices Act 1902 by the informant. The proceedings were before the Bidura Children's Court on 21 April 1999.
2 The plaintiff seeks an order setting aside the order of the Magistrate that the visual identification evidence of Anna Brielle Flinders (identifying the defendants Karen Rebecca McEntee and Elizabeth Jane Donald) was inadmissible for the reason that it did not comply with s 114(2) of the Evidence Act 1995.
3    The plaintiff further seeks an order in respect of each defendant that the evidence be admitted; orders setting aside the Magistrate’s orders dismissing the informations; and orders that both matters be remitted to the Magistrate to be determined according to law.
4    Ms Flinders was robbed by three young women on or about 12 November 1998. On 28 November 1998 Ms Flinders was driving her car when she saw two young women, the defendants in the present proceedings; she recognised those two young women as two of the three women who had earlier robbed her. She reported the matter to the police. The two defendants were subsequently arrested by the police.
5 The evidence of Ms Flinders as to her identification of the two women was held by the Magistrate to be inadmissible, having regard to the provisions of s 114(2) of the Evidence Act.
6 The Magistrate found that the police had failed to comply with the provisions of s 114 of the Evidence Act in that no identification parade had been held following the arrest of the two women.
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.
12 For these reasons I consider that the Magistrate erred in law in concluding, for the reasons that he did, that the evidence of identification of the witness, Anna Brielle Flinders, was inadmissible under s 114 of the Evidence Act.
13 I set aside the orders of the Magistrate in respect of each defendant rejecting the evidence of Anna Brielle Flinders as inadmissible pursuant to s 114(2) of the Evidence Act. I set aside, in the case of each defendant, the order of the Magistrate dismissing the information against her charging her with armed robbery contrary to s 97(1) of the Crimes Act. I order in the case of each defendant that the proceedings be remitted to the Magistrate to be dealt with in accordance with the law. I do not consider that I have the power or that it would be appropriate to make orders in terms of para 2 of the Amended Summons, namely, that the evidence be admitted in the proceedings before the Magistrate. I propose remitting the proceedings to the Magistrate and he may consider the admission of the visual identification evidence in the light of any further objection which may be advanced to its reception.
14    I order that the defendants pay the plaintiff's costs as assessed. I order that indemnity certificates in accordance with s 6 of the Suitor’s Fund Act be granted to each defendant.

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Last Modified: 09/21/1999