R v Doidge

[2018] NSWDC 330

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Doidge [2018] NSWDC 330
Hearing dates:	29, 30 October 2018
Date of orders:	30 October 2018
Decision date:	30 October 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Photographic identification evidence excluded
Catchwords:	EVIDENCE - admission of evidence - accused identified in photographic line-up - where none of the other men in the line-up had distinguishing feature of accused - probative value of evidence outweighed by danger of unfair prejudice
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Blick (2000) 111 A Crim R 326 R v Fisher [2001] NSWCCA 380 THD v R (2010) 200 A Crim R 106
Texts Cited:	None
Category:	Principal judgment
Parties:	Regina (Crown) Damian Doidge (Accused)
Representation:	Counsel: Mr G Whittaker (Crown Trial Advocate) Mr P Segal (Accused)   Solicitors: ODPP (Crown) Legal Aid (Accused)
File Number(s):	2017/170240
Publication restriction:	None

Judgment

1. In this matter, the Crown sought to rely upon and the accused sought to exclude evidence of identification by photographs. The Crown did not seek extensive reasons for this ruling. Section 115 of the Evidence Act relates to the admissibility of that type of evidence. The real issue arose, however, under s137 which provides:

“In a criminal proceeding the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”.

2. Evidence was admitted on the voir dire as to this matter including the printout of the line-up identification comprising 20 people who appeared to be young males, all of whom appeared to be around their mid-20s with some form of tattoo on their face. The accused was in his mid-20s and had a small tattoo below his left eye. The photographic line-up, which is Exhibit VD-A, also contained the charge image in relation to the accused person which showed a rat’s tail coming from the back of his hair across his left shoulder. There was no other person in the other 19 photographs who has apparent any rat’s tail. In fact, the accused’s rat’s tail seemed placed across his shoulder so as to make it readily identifiable.

3. It was submitted on behalf of the Crown that others may have had rat’s tails but they were not apparent. In my view, that does not ameliorate the risk of unfair prejudice to the accused.

4. For the purpose of ruling in relation to this matter, I also had regard to the video during which the complainant performed an examination of the twenty images. As is common practice, each of the twenty images were displayed for a short period of time before the slide moved to the next image.

5. Upon observing the video, it was apparent that the complainant clicked “next” in relation to virtually all of the images, save for that of accused. When he was shown the photograph of the accused again, he referred to two features which he thought were distinguishing and formed the basis of…