R v Turner

[2000] SASC 27

R v TURNER
[2000] SASC 27

Court of Criminal Appeal:  Doyle CJ, Perry and Mullighan JJ

1. DOYLE CJ       In this matter the Court has already given its decision, allowing the appeal, setting aside the appellant’s conviction and ordering a re‑trial.

2. I have had the opportunity to consider the reasons given by Mullighan J for that decision.  I agree with much of what he says.  But there are some aspects of his reasons with which I disagree, and accordingly it is appropriate for me to state briefly where I do disagree.

3. It is not necessary to set out any of the facts.  They are to be found in the reasons of Mullighan J.

4. I agree with Mullighan J that the evidence given by Andrew at the trial was not evidence of an earlier act identifying the appellant as the offender.  It was no more than evidence that he attended at an identification parade and indicated someone at the identification parade.  The evidence about what transpired at the identification parade is also to be found in the reasons of Mullighan J.  That evidence is a sufficient caution against drawing too easily what might otherwise seem an obvious inference that Andrew must have meant, by his answer in Court, that he had identified the appellant as the offender.  It may be that the gap in Andrew’s evidence could have been closed, in one way or another, by the Prosecutor asking further questions of Andrew, but that was not done at trial.

5. Nevertheless, in my opinion the evidence of Constable Nickolai, and the other evidence establishing what happened at the identification parade, was admissible.  It is on this point that I differ, with respect, from Mullighan J.

6. I recognise the difficulty about the admissibility of the evidence.  The basis of the admissibility of evidence of an out of court identification has been the subject of some debate.  One view is that such evidence is admissible only when the identifying witness is called and identifies the accused in Court, the evidence then being admitted as an exception to the rule prohibiting tender of prior consistent statements.  The other view is that evidence of an out of court identification is admissible as a true exception to the hearsay rule.  I refer to the consideration of the topic in Ligertwood Australian Evidence (3rd ed Butterworths 1998) par 7.63.

7. Andrew was called as a witness, but did not positively identify the appellant as the offender.  He gave equivocal evidence to the effect that he picked someone out, the meaning of that statement in evidence and of that act out of court remaining unclear.  For present purposes I am prepared to assume that other evidence was admissible to establish that the person whom he picked out, number 10, was the appellant.

8. As Mullighan J says, the authorities dealing with the admissibility of evidence of an out of court identification, when the identifier is not called as a witness, or is called as a witness but does not give evidence…