R v Loughhead (No 2)

[2020] ACTSC 368

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Loughhead (No 2)

Citation:

[2020] ACTSC 368

Hearing Date:

13 October 2020

DecisionDate:

13 October 2020

Before:

Burns J

Decision:

See [11]

Catchwords:

CRIMINAL LAW – Application – visual identification evidence – admissibility – consideration of s 114(2) Evidence Act 2011 (ACT) – whether unreasonable to hold identification parade

Legislation Cited:

Evidence Act 2011 (ACT) s 114(2)

Parties:

The Queen (Crown)

Bailey Loughhead (Accused)

Representation:

Counsel

T Hickey (Crown)

J Pappas (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Tu’ulakitau McGuire (Accused)

File Numbers:

SCC 236 of 2019; SCC 237 of 2019

BURNS J:

1. There appears to be no dispute in this matter that the proposed evidence from Stephanie McDonald, which is essentially the statements that are contained within her second statement to the police dated 11 October 2020, constitutes a visual identification evidence for the purposes of s 114(2) of the Evidence Act 2011 (ACT) (the Evidence Act).

1. That section relevantly provides that:

(2) Visual identification evidence presented by the prosecutor is not admissible unless–  

(a) an identification parade that included the defendant was held before the identification was made; or

(b) it would not have been reasonable to have held the parade; or

(c) the defendant refused to take part in the parade.

…

1. There is no dispute that an identification parade has not been held. The Crown submits that it would not have been reasonable to have held the parade on two grounds.

   
   

   Firstly, they submit it would not have been reasonable because the witness Stephanie McDonald purports to know the name of the person that she identified as having struck the complainant in this matter.

1. In some circumstances, the nature of a relationship between a witness and an accused person may be such as to make it pointless to hold an identification parade.

   
   

   For example, if the witness was the brother of the accused person, there would be no point in holding an identification parade because the witness, if they had identified the offender as their brother would, of course, pick out their brother in the identification parade because they know them so well. That is not the case in the present matter. In the present matter, when originally interviewed by police, Ms McDonald did not provide any name to the police of the person who may have struck the complainant.

1. Indeed, there was evidence that she told the informant in this matter that she had not previously met or spoken to the person. In the most recent statement dated

   
   

   11 October 2020, which was only provided last weekend to the police by Ms McDonald, she states that she knew that person who struck the complainant to be Bailey Loughhead. She said that she knew him through her ex-boyfriend's football team and that she had seen him on multiple occasions over the course of three years. By way of oral evidence, she stated she had also been introduced to a person at the Page Tavern by her ex-boyfriend as Bailey Loughhead.

1. The difficulty is that the nature of the relationship between Ms McDonald and the person that she was introduced to as Bailey Loughhead was not of the nature of that which I discussed earlier. In the circumstances where she had not identified the person in her first statement as Bailey Loughhead and where, at best, she had the name of that person who struck the blow through a third party who has not given evidence on the voir dire, the most that can be said is that the person that she saw was someone that had been, at some other time, introduced to her as Bailey Loughhead.

1. To adduce that evidence without there being any attempt by the Crown to connect the name Bailey Loughhead that was given to Ms McDonald to the actual accused,

   
   

   Bailey Loughhead, would be very dangerous. There was every reason, in my opinion, why the prosecution should have held an identification parade and that was to ensure that the person that Stephanie McDonald understood to be Bailey Loughhead is the same person as the accused before the Court of the same name.

1. Secondly, the Crown submitted that it may have been difficult to conduct an identification parade bearing in mind the fact that the statement provided by Ms McDonald in which she names the person who struck the complainant as Bailey Loughhead was only provided last weekend. I accept that is a legitimate issue.

1. The appropriate course, in my opinion, should have been for the Crown at the very earliest opportunity to have contacted the legal representatives of the accused Mr Loughhead to indicate that they wished to conduct a visual identification parade and to ask whether the accused was willing to participate in such a parade. It may well have been necessary to make an application, if consent by the accused had been forthcoming, to the Court to delay the commencement of the trial.

1. I think it would have been difficult for the Court to have forced the parties on in circumstances where the Crown was, very late in the day, provided with further information by a witness which required an identification parade and in circumstances where the accused was not objecting to an adjournment for that purpose. Indeed, in those circumstances the accused would have been consenting to the identification parade. I am not satisfied that it would not have been reasonable to have held an identification parade.

1. In my opinion, s 114(2) of the Evidence Act applies and the evidence is not admissible.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: