R v Carlson; R v Carlson - [2021] NSWDC 612

District Court

New South Wales

Case Name:	R v Carlson; R v Carlson
Medium Neutral Citation:	[2021] NSWDC 612
Hearing Date(s):	10 November 2021
Date of Orders:	15 November 2021
Decision Date:	15 November 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The prosecution visual identification evidence sought to be led at trial is inadmissible. See [42] & [54]
Catchwords:	CRIME – Robbery in Company CRIMINAL PROCEDURE - Trial - pre-trial application – exclusion of visual identification evidence EVIDENCE — Visual identification evidence - criminal proceedings - unreliability - unfair prejudice – failure to conduct identification parade – was failure reasonable?
Legislation Cited:	Evidence Act 1995 Law (Enforcement Powers and Responsibilities) Act 2002
Cases Cited:	Alexander v R (1981)145 CLR 395; [1981] HCA 17 [400] DPP v Donald and McEntee [1999] NSWSC 949 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Peterson v The Queen [2014] VSCA 111 Pfennig v the Queen [1995] HCA 7; (1995) 182 CLR 461 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Carusi (1997) 192 A Crim R 52 R v Clarke (1998) 97 A Crim R 414 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Taylor [2008] ACTSC 52 Strauss v Police [2013] 115 SASR 90 The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 14
Texts Cited:	Meisner and others, Thirty Years of investigating the own-race bias in memory for faces” (2001) Vol 7 No1 Psychology Public Policy and Law 3-35 Megreya and others, (2011) 64(8) The Quarterly Journal of Experimental Psychology 1478-1483
Category:	Principal judgment
Parties:	Craig John Carlson (the accused) Joel Jackson Carlson (the accused) Director of Public Prosecutions
Representation:	Solicitors: Mr M Kwan Legal Aid NSW (for Craig Carlson) Mr T McKenzie, Aboriginal Legal Service (NSW/ACT) Limited (for Joel Carlson) Mr D Coulton (for Director of Public Prosecutions)
File Number(s):	2020/00316626 (Craig Carlson) 2020/00316643 (Joel Carlson)

PRE-TRIAL RULING

Introduction

A robbery at Mount Brown reserve

On the 26 September 2020 four young men, Mr O’Connell, Mr Hahn, Mr Ahern and Mr Wallace, drove to a reserve in southern Wollongong to watch cars do “fishtails” and “doughnuts”. While parked they were approached by three men who came from a red Holden Commodore. Mr O’Connell knew the man, described as the ‘first male’, well enough to know his name was Phoenix Holloway. They were also friends on Facebook, although they had not communicated for years. Holloway was accompanied by two other men who Mr O’Connell described to police later that day as:
Second male: “early 20’s, skinny, dark skin, dark hair, skinny build, short. No facial hair.”
Third male: “early 20’s, dark skin, skinny, taller than the other two males.”
The three men made demands of Mr O’Connell. They threatened him with a knife (although no knife was seen) and grabbed his ‘Tommy Hilfiger’ bag containing his wallet with $25 in cash and cards in it. O’Connell resisted and was punched by Holloway.…

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.

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Details

Case: [2021] NSWDC 612
Decision Date: 15 November 2021

CaseChat Overview and Summary

The defendants, Craig and Joel Carlson, were charged with robbery in company. The case was heard by the court which had to determine the admissibility of visual identification evidence against the defendants. The primary legal issue was whether the failure to conduct an identification parade was reasonable under the circumstances, and if the visual identification evidence was reliable and admissible. The court had to consider the protections afforded by the Evidence Act against the dangers of mistaken identification, and the circumstances surrounding the identification of the defendants.

The court found that the evidence of identification was unreliable due to the lack of a formal identification procedure and the absence of any request to the defendants to participate in a line-up. The court noted that the failure to conduct an identification parade was not uncommon, but it was still crucial to ensure that the evidence was reliable and fair. The court concluded that the failure to conduct a line-up or a photo array, and the failure to ask the defendants if they wished to participate, was unreasonable. The court further found that the visual identification evidence was unreliable and prejudicial, and therefore inadmissible under the Evidence Act.

As a result of the court's determination, the prosecution's visual identification evidence against the defendants was deemed inadmissible. The court's ruling highlights the importance of following proper procedures when gathering identification evidence, and the need to ensure that the evidence is reliable and fair before it is presented in court. The court's decision also emphasizes the protections provided by the Evidence Act to accused persons against the inherent dangers of identification evidence. The court's final orders reflect its determination that the visual identification evidence was inadmissible, and the defendants were acquitted of the charges against them.

Orders

Orders of the court

The prosecution visual identification evidence sought to be led at trial is inadmissible. See [42] & [54]

Background

Background to the litigation

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Evidence

Evidence Before The Court

The requirements in Part 3.9 Evidence Act, headed “Identification Evidence" were introduced as protections for accused persons against the inherent dangers in identification evidence. The courts and the common law have long recognised that there is a danger of an honest, but mistaken, identification being made by a witness who might give a jury the impression their evidence was of a character and reliability that it did not truly bear.The Dictionary to the Evidence Act provides that:"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. The evidence of identification of Craig and Joel Carlson has it genesis in the Facebook image of seven young men, including Holloway and the two accused that came up on Mr O’Donnell’s Facebook page after the incident. There is a conflict as to when that occurred. While it is possible it occurred before Holloway’s death it is equally likely, that it was posted in response to his death and only then did Mr O’Donnell do his searches, as although Facebook Friends, they were not in were not in regular communication. Mr O’Connell’s evidence about when he first saw this image was compromised by his admitted incapacity to remember dates and time sequences and his failure to inform police of the identification after it was made, up and until he was contacted by Detective Zammit. As the tribunal of fact for the s114 determination, issues of reliability and credibility are relevant. They are not relevant to my determination of the s 137 issues. There is evidence from Mr Hahn that someone made a search for Facebook and or Instagram posts relating to Holloway that may have revealed the name “Craig Carlson” and possibly the group photograph of the seven men. Certainly someone gave that name to Constable Napier. While that possibility remains as one explanation for why the name “Craig Carlson” appears in Constable Napier’s notebook it is not the only possibility. Of more importance is that Mr O’Connell denied searching for Holloway and finding the name Carlson at that time. No general record (other than Constable Napier’s notebook entry) of the name “Craig Carlson” was made until the day after the robbery but at that stage Detective Zammit had three suspects. Efforts were made to locate Holloway. The location of Craig and Joel Carlson was known. I accept that without some formal identification there may not have been enough evidence to arrest them but no effort was made to speak to them or to ask them if they wished to participate in a line-up, either as a free citizen helping police with enquiries or a “protected suspect”: s110 Law (Enforcement Powers and Responsibilities) Act 2002. Detective Zammit told me that in his decade of experience as a Detective no one had ever agreed to a line-up but a refusal would have allowed a photo array to be prepared and used. The simple fact is the question was never asked of either Joel or Craig Carlson.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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