R v Kaine Dargan

[2015] NSWDC 121

District Court

New South Wales

Medium Neutral Citation:	R v Kaine Dargan [2015] NSWDC 121
Hearing dates:	16 June 2015 and 17 June 2015
Date of orders:	17 June 2015
Decision date:	17 June 2015
Jurisdiction:	Criminal
Before:	Acting Judge Phegan
Decision:	Inadmissible evidence before jury. Jury discharged.
Catchwords:	Identification evidence - picture of accused.
Legislation Cited:	Evidence Act 1995, s115 (4)(b)
Cases Cited:	R v Nelson [1999] NSWCCA 221
Texts Cited:	Australian Law Reform Commission Report of Uniform Evidence Law (ALRC 102).
Category:	Procedural and other rulings
Parties:	Regina (Crown) Kaine Dargan (Accused)
Representation:	Crown Advocate: Mr R. Kotsis Accused: Mr D. Stewart of Counsel
File Number(s):	2013/00390176

Judgment

1. This is a revised judgment. During two days of argument, rulings were made and a decision delivered. This judgment consolidates those rulings and the decision based on the transcript.

2. The accused pleaded not guilty to five counts on the indictment including : entering a dwelling house with intent to commit a serious indictable offence, namely, larceny; robbery in company; reckless damage to property; and two counts of assault occasioning actual bodily harm.

3. The trial of the accused before a jury commenced on Monday 15 June 2015, following a voir dire and lengthy pre-trial argument between 2 and 12 June 2015. During that time, a co-accused in the original indictment (Mahmoud Ellawn) entered a guilty plea on a number of counts and was withdrawn from the proceedings. A fresh indictment was issued in which the accused only was named.

4. On the first day of the trial, evidence was given in the Crown case by Susan Bozicevic, the occupier of the premises on which the offences allegedly occurred and a complainant in four of the five counts on the indictment. During her evidence, a DVD recording of a photo array in which she participated at Liverpool Police Station two days after the alleged offences was played in Court.

5. In the course of an interview by the Officer in Charge, Detective Senior Constable Samara Attard, Ms Bozicevic was shown an array of photographs of twelve different men, identified only by number. She identified the photograph of the accused as that of the person who had committed the alleged offences.

6. At the commencement of proceedings on the second day of trial, 16 June 2015, in the absence of the jury, the Crown Advocate announced that he had inadvertently misled the jury in his opening address on the previous day. In referring to the evidence that it was anticipated would be given by Ms Bozicevic in connection with the photo array, he referred to the photograph of the accused used in the array and identified by the witness as having been taken following the arrest of the accused on the day after the alleged offence. In fact the photograph was one taken of the accused when in custody on another matter some eleven months earlier.

7. Counsel for the accused objected to the admission of the evidence. Had the photograph been identified as one taken eleven…