R v Curtis

[2009] SASC 266

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire (Murder))

R v CURTIS

[2009] SASC 266

Reasons for Ruling of The Honourable Justice Gray

2 September 2009

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - COURT ROOM IDENTIFICATION

Defendant charged with murder - defendant objected to dock identifications made by three witnesses during trial - objections overruled - whether identification evidence properly characterised as recognition evidence - whether evidence of dock identification admissible.

Held:  dock identification evidence relevant, probative and admissible having regard to witnesses' prior knowledge and association with defendant.

Alexander v The Queen (1981) 145 CLR 395; R v Hallam (1985) 42 SASR 126; R v Britten (1988) 51 SASR 567, considered.

R v CURTIS
[2009] SASC 266

Voir Dire

GRAY J.

1. In the course of the trial of the defendant, Leon Curtis, on an information for murder of Rebecca Hogan, the prosecution proposed to have witnesses make dock identifications of the defendant.  This was opposed by the defendant. I overruled the objection during the trial. I now publish reasons for my ruling.

2. In the present trial the dock identification evidence came from Peter Chimney and Wendy Brown, long-term acquaintances of the defendant and Stanley Smith, a more recent acquaintance of the defendant. 

3. The witnesses had been at the home of Judy Wallatina on the night on which Rebecca Hogan died.  All had been in the small three-bedroom home.  All had contact with the defendant that night. 

4. The proposed evidence from Mr Chimney and Wendy Brown was plainly recognition evidence.  The defendant was well known to both.  Their in-court identification was evidence of recognition by long-term associates of the defendant. 

5. Stanley Smith, although his acquaintance with the defendant appeared to be of a relatively short duration, had met the defendant prior to the night of Ms Hogan’s death.  He had spent time with the defendant.  In these circumstances his proposed evidence is properly characterised as recognition evidence.  That is, he was to identify somebody known to him prior to the incident in question.

6. Dock identification was considered by Gibbs CJ in Alexander:[1]

   Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v The King (1937) 57 CLR 170 at 181-182. In particular there is the danger that the witness will too readily come to believe, without any true recollection, that the man charged is the man whom he had previously seen, particularly if his own memory has become dim and there is some resemblance between the two men. The courts in England and Australia have long recognised the danger of acting upon evidence of identification made in those circumstances;

   (emphasis added)

   and by Mason J:[2]

   Traditionally it has been accepted that a witness identifies the accused at the trial as the person whom he observed at the scene of, or in connection with, the crime. This "in-court" identification, sometimes described as primary evidence, is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock.

   (emphasis added)

   [1]    Alexander v The Queen (1981) 145 CLR 395 at 399.

   [2]    Alexander v The Queen (1981) 145 CLR 395 at 399; at 426-427.

7. These observations were applied by King CJ in Hallam[3] and Britten,[4] where In Britten King CJ made the following further observation:

   It is not to be thought that because courts have stated that dock identification is of little value where the accused is not previously known to the witness, the witness should therefore not be asked whether he can see the person concerned in court. This should be done in every case depending upon identification notwithstanding that the evidence principally relied upon by the prosecution is the out of court identification.

   [3]    R v Hallam (1985) 42 SASR 126 at 129-130.

   [4]    R v Britten (1988) 51 SASR 567 at 572.

8. In accordance with these authorities evidence of identification in the form of dock identification is admissible.  However, its weight is another matter.  In particular circumstances, it may be of little or no weight.

9. The proposed evidence was to be led from two witnesses who, by long association, was familiar with the appearance of the defendant. The other witness, whose acquaintances were less extensive, had sufficient prior knowledge and association to become familiar with the appearance of the defendant.

10. In my view there was no basis to exclude the proposed dock identification evidence.  It was relevant.  It was admissible and having regard to the circumstances of the witnesses and in particular, their acquaintance and dealings with the defendant, it was probative.  The weight to be given to their observations on the night of Ms Hogan’s death is another matter.

11. For these reasons I overruled the objection with respect to the in-court identification of the defendant by each of the above witnesses.