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R v Taylor

R v Taylor

Case [2008] ACTSC 52 29 April 2008

Admissibility of Evidence

Identification Evidence

Recognition Evidence

Statutory Interpretation

Exclusion of Visual Identification Evidence

Displacement Effect

Criminal Law

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R v BENJAMIN JOHN TAYLOR
[2008] ACTSC 52 (29 April 2008)

CRIMINAL LAW – EVIDENCE – identification evidence – recognition evidence – visual identification evidence – statutory interpretation – Crown sought to lead evidence from witnesses who claimed to have observed accused at scene of crime when offence committed – meaning of “identification” in ss 114(1) and (2), Evidence Act 1995 (Cth) – whether statements made by witnesses, shortly after alleged incident, asserting that they had observed accused at scene of crime when offence committed, constituted “the identification” in s 114(2) – whether “the identification” in s 114(2) referred, rather, to such assertions made by witnesses in court as “identification evidence”

Held: Evidence sought to be led from witnesses in court would be “an assertion” within definition of “identification evidence” given by Evidence Act dictionary – words “relating to an identification” in s 114(1) apply to identification that is subject of “identification evidence”, i.e. assertion given in court

CRIMINAL LAW – EVIDENCE – admissibility of visual identification evidence – requirement of s 114(2), Evidence Act, for an identification parade, including defendant, to be “held before the identification was made” in order for visual identification evidence to be admissible – whether it would “not have been reasonable” to have held such a parade: s 114(2)(b) – whether it “would have been unfair to the defendant” for such a parade to have been held: s 114(4) – displacement effect – whether witnesses would have been more likely to identify accused in parade, having previously claimed to have recognised him

Held: Following above finding, s 114(2) requires identification parade to be held prior to giving of visual identification evidence in court, but not prior to making of original assertion or statement identifying accused – not unreasonable to hold parade prior to giving of evidence in court – possible that witnesses might not have identified accused in parade – therefore not unfair to accused to require identification parade prior to witnesses giving identification evidence in court – identification evidence inadmissible

WORDS AND PHRASES – “identification evidence”, “visual identification evidence”, “relating to an identification”, “before the identification was made”, “displacement effect”

Evidence Act 1995 (Cth) ss 113, 114, 116, 165

Alexander v The Queen (1981) 145 CLR 395 referred to
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 cited
Clifford v R [2004] TASSC 16 cited
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 applied
Davies and Cody v The King (1937) 57 CLR 170 followed
Fountain v Alexander (1982) 150 CLR 615 cited
R v David Taufua unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 11 November 1996 cited
R v Smith [2000] NSWCCA 468 referred to
R v Turnbull [1977] QB 224 cited
Trudgett v R [2008] NSWCCA 62 followed

No. SCC 227 of 2007

Judge: Rares J
Supreme Court of the ACT
Date:…

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 Taylor

Details

AGLC: R v Taylor [2008] ACTSC 52
Case: [2008] ACTSC 52
Decision Date

CaseChat Overview and Summary

The case of R v Taylor involved the Crown seeking to lead evidence from two witnesses, Daniel and Jesse Robinson, who claimed to have observed the accused at the scene of a crime. The legal issues centered on the interpretation of "identification" in sections 114(1) and (2) of the Evidence Act 1995 (Cth) and the admissibility of the witnesses' visual identification evidence. The court had to decide whether the statements made by the witnesses shortly after the incident constituted "identification evidence" under the Act and if an identification parade was required before the witnesses gave their evidence in court.

The court ruled that the statements made by the witnesses, asserting they had observed the accused at the crime scene, were indeed "identification evidence" as defined by the Act. It found that the phrase "relating to an identification" in section 114(1) applied to the identification that was the subject of the "identification evidence," namely, the assertion made by the witness in court. Regarding the requirement for an identification parade, the court held that while such a parade must be held before the visual identification evidence is given in court, it need not be held before the original assertion identifying the accused. The court concluded that it would not have been unreasonable to hold an identification parade before the witnesses gave their evidence in court, and it was not unfair to the accused to require such a parade. Consequently, the identification evidence from the witnesses was deemed inadmissible.

In summary, the court's reasoning led to the conclusion that the Crown's proposed evidence from Daniel and Jesse Robinson was not admissible under the Evidence Act's provisions concerning identification evidence. The court's final order was that the identification evidence from each of the witnesses was not admissible.

Orders