R v Benjamin Mark Sarlija - [2009] ACTSC 127

R v BENJAMIN MARK SARLIJA [2009] ACTSC 127 (30 September 2009)

EVIDENCE – pre-trial application to exclude picture identification evidence – accused declined to participate in identification parade until legal advice had been sought – identification made through use of a photo board – whether photo board ought to have been used where no express refusal to take part in an identification parade – whether reasonable to assume refusal – actual or constructive refusal could not be assumed in the circumstances – operation of s 115 Evidence Act 1995 (Cth) and s 235 Crimes Act 1900 (ACT).

EVIDENCE – pre-trial application to exclude picture identification evidence – identification made through use of a photo board where no refusal to take part in an identification parade – whether contravention of s 235 Crimes Act 1900 (ACT) by police investigators – onus on accused to show he was “otherwise available” to take part in identification parade – accused failed to establish contravention on balance of probabilities – identification evidence not liable to be excluded under s 138 Evidence Act 1995 (Cth).

POLICE PRACTICE AND PROCEDURE – whether photo board can properly be prepared when accused in custody – general prohibition against using photo board for identification where accused in custody does not prevent preparation of photo board while accused in custody – operation of s 115 Evidence Act 1995 (Cth).

Crimes Act 1900 (ACT), ss 233, 235
Evidence Act 1995 (Cth), ss 114, 115, 138

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
R v Atkinson [1997] ACTSC 14 (unreported, Higgins J, 24 March 1997)
R vJones (1998) 72 SASR 281
Robinson v Woolworths Ltd (2005) 64 NSWLR 612

No. SCC 119 of 2008

Judge: Penfold J
Supreme Court of the ACT

Date: 30 September 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 119 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

R

v

BENJAMIN MARK SARLIJA

ORDER

Judge:  Penfold J
Date:  30 September 2009
Place:  Canberra

THE COURT ORDERS THAT:

The application to exclude from Mr Sarlija’s trial the identification evidence obtained through the use of a photo board is refused.

Introduction

Benjamin Mark Sarlija has been arraigned on two counts of aggravated robbery committed on 11 December 2007 and has pleaded not guilty to each count.

Application for exclusion of evidence from trial

Mr Sarlija has applied for identification evidence, being evidence of an identification made by one of the victims of the robbery and obtained through the use of a “photo board”, to be excluded from his forthcoming trial.

At the hearing of the application, s 115 of the Evidence Act 1995 (Cth) and s 235 of the Crimes Act 1900 (ACT) were identified as relevant, as was the possibility of excluding the evidence under s 138 of the Evidence Act.

What is a “photo board”?

Section 235 of the Crimes Act provides limited circumstances in which photographs or other pictures may be used to enable witnesses to identify suspects. The section lays…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Benjamin Mark Sarlija

Details

AGLC: R v Benjamin Mark Sarlija [2009] ACTSC 127
Case: [2009] ACTSC 127
Decision Date: 30 September 2009

CaseChat Overview and Summary

In the case of R v Benjamin Mark Sarlija, the accused was facing charges and the prosecution sought to rely on identification evidence obtained through the use of a photo board. Sarlija had declined to participate in an identification parade until he had consulted with his legal representative. The dispute centred on whether the use of the photo board was appropriate and whether it violated any statutory provisions that would render the evidence inadmissible.

The primary legal issues the court needed to address were whether the accused's refusal to participate in an identification parade could be inferred from his conduct, and if the use of the photo board was permissible under the relevant legislation. Specifically, the court had to consider the application of sections 115 and 138 of the Evidence Act 1995 (Cth) and section 235 of the Crimes Act 1900 (ACT). The court examined whether there was an actual or constructive refusal by the accused to participate in the identification parade, and if the police had complied with the statutory requirements when preparing the photo board.

The court determined that while Sarlija had delayed participation in the identification parade until he had consulted with his legal representative, this did not amount to an actual or constructive refusal to participate. Therefore, the court concluded that the police were not required to assume a refusal and were permitted to prepare the photo board. The accused had the onus to prove that he was "otherwise available" to take part in the identification parade, a burden he did not meet on the balance of probabilities. Consequently, the court found that the evidence obtained from the photo board was not inadmissible under section 138 of the Evidence Act 1995 (Cth).

The application to exclude the identification evidence from Sarlija's trial was subsequently refused, and the evidence was deemed admissible.

Orders

Orders of the court

The application to exclude from Mr Sarlija’s trial the identification evidence obtained through the use of a photo board is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.