R v Lockwood - [2018] ACTSC 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Lockwood
Citation:	[2018] ACTSC 26
Hearing Date:	6 February 2018
DecisionDate:	23 February 2018
Before:	Mossop J
Decision:	The evidence of the complainant’s identification of the accused by reference to his Facebook page is not excluded by ss 114 or 137 of the Evidence Act 2011 (ACT).
Catchwords:	CRIMINAL LAW – EVIDENCE – Evidentiary matters relating to witnesses and accused persons – pre-trial application – identification evidence – whether not reasonable to have held an identification parade – whether probative value is significantly outweighed by unfair prejudice EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Visual identification evidence – use of Facebook profile photograph to identify the accused – not reasonable to have held an identification parade – probative value not outweighed by unfair prejudice – evidence of the identification of the accused by reference to his Facebook page not excluded
Legislation Cited:	Evidence Act 2011 (ACT), ss 114, 114(2), 114(2)(b), 116, 137
Cases Cited:	Bayley v The Queen [2016] VSCA 160 IMM v The Queen [2016] HCA 14; 257 CLR 300 Peterson v The Queen [2014] VSCA 111 R v Smith (No 3) [2014] NSWSC 771 R v Yates [2002] NSWCCA 520
Parties:	Steven Dean Lockwood (Applicant) The Queen (Respondent)
Representation:	Counsel P Bevan (Applicant) J Walker (Respondent)
Solicitors Bevan & Co (Applicant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCC 211 of 2017 SCC 212 of 2017

MOSSOP J:

Introduction

On 28 January 2017, four men entered the unit of Brian Walters, who was punched, kicked, tackled, stabbed in the chest with a pair of scissors, repeatedly threatened to be killed and then “hog tied”, before his apartment was ransacked and burgled by the intruders.

Mr Walters recognised one of the men as an acquaintance he knew from time previously spent in custody at the Alexander Maconochie Centre. He could not identify the other assailants although he provided some limited descriptions of them to police.

Forensic evidence obtained by the police indicated that someone called Steven Lockwood had been in Mr Walters’ unit. Mr Walters told the police that he did not know anyone by that name and proceeded to search the name Steven Lockwood on “Facebook”, a popular social media website. He found a profile page of a person who he identified as one of his attackers. Mr Walters passed this information onto police. The profile page showed the accused.

Application

The accused, Steven Dean Lockwood, is to face trial on an indictment alleging aggravated burglary and intentional wounding of Mr Walters.

By Application in Proceeding, dated 22 January 2018, the accused seeks a pre-trial ruling that the evidence of the Facebook identification is not admissible in the trial. He alleges that the circumstances of the identification meant that it had little probative value, and any probative value is significantly outweighed by unfair prejudice. Further, the accused alleges that the identification is not admissible as no identification parade, that included the…

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 Lockwood

Details

AGLC: R v Lockwood [2018] ACTSC 26
Case: [2018] ACTSC 26
Decision Date: 23 February 2018

CaseChat Overview and Summary

The case of R v Lockwood was heard in the Magistrates Court of the Australian Capital Territory, where the defendant, Lockwood, was charged with various criminal offences. The central dispute in the case revolved around the admissibility of identification evidence provided by the complainant, who identified Lockwood through his Facebook profile photograph rather than through a traditional identification parade. Lockwood contested the admissibility of this identification evidence, arguing that it was unfair and prejudicial, and that the probative value of the evidence was significantly outweighed by the potential for prejudice.

The primary legal issue that the court had to address was whether the evidence provided by the complainant, who identified Lockwood through his Facebook profile, should be excluded under sections 114 or 137 of the Evidence Act 2011 (ACT). Lockwood's legal team argued that it was not reasonable to hold an identification parade in this case and that the probative value of the Facebook identification was significantly outweighed by the potential for unfair prejudice. The court had to consider the circumstances under which the identification occurred and weigh the probative value of the evidence against any potential prejudice it might cause to the accused.

The court determined that the circumstances did not warrant holding an identification parade, as the complainant had already clearly identified Lockwood through his Facebook profile. Furthermore, the court held that the probative value of the Facebook identification was not significantly outweighed by the potential for unfair prejudice. The court emphasised that the identification was based on the complainant's familiarity with Lockwood and that the probative value of the evidence was high. Consequently, the court ruled that the evidence of the complainant's identification of Lockwood via his Facebook page would not be excluded under sections 114 or 137 of the Evidence Act 2011 (ACT).

The court's decision meant that the evidence of the complainant's identification of Lockwood through his Facebook profile would be admissible in the trial. No further orders were made by the court regarding the admissibility of the identification evidence.

Orders

Orders of the court

The evidence of the complainant’s identification of the accused by reference to his Facebook page is not excluded by ss 114 or 137 of the Evidence Act 2011 (ACT).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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