R v Yassasr BAKIR

[2009] NSWDC 12

CITATION:	R v Yassar BAKIR [2009] NSWDC 12 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 February 2009
JUDGMENT DATE:	13 February 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The identification evidence of Mrs Moore is excluded
CATCHWORDS:	Criminal law - Voir Dire - Judgment - Admissibility of evidence - Probative value - Picture identification - Improper conduct of Prosecutor causes unfair prejudice
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612 at [12] R v Blick (2000) 111 A Crim R 236 [2000]; NSWCCA 61 R v Fisher [2001] NSWCCA 380
TEXTS CITED:	Australian Law Reform Commission (ALRC 26 vol1, para 644)
PARTIES:	The Crown Yassar Bakir
FILE NUMBER(S):	DC 08/11/0875
COUNSEL:	N Williams (Crown) B Walker SC (Accused) A J Kimmins (Accused)
SOLICITORS:	NSW DPP Ryan & Bosscher Lawyers

Introduction

1 On 15 November 2007 Mrs Kathleen Moore was sitting in a four-wheel drive motor vehicle in Norton Street Leichhardt. She heard a number of loud bangs and saw three men. One of them handed a pistol to another man, who then fired a shot. The Crown case is that the man who fired the pistol was the accused Yassar Bakir. He has been charged with a number of offences including an offence of shooting with intent to murder Mahmoud Hawi. The Crown wants to rely on the evidence of Mrs Moore as to the identity of the shooter. The Crown case is that she identified a photograph of the accused as being the man whom she saw shooting the pistol.

2 This judgment concerns the admissibility of Mrs Moore’s evidence. It is argued by Mr Walker SC and Mr Kimmins on behalf of the accused that the probative value of Mrs Moore’s evidence is outweighed by the danger of unfair prejudice, requiring the exclusion of the evidence under sections 135 and 137 Evidence Act. It is also argued that the evidence should be excluded because of what is said to be the proper interpretation of section 115 Evidence Act.

Mrs Moore is shown some photographs

3 Some 5 ½ months after the events of 15th of November 2007, and well after the arrest of the accused, a police officer travelled to Queensland for the purposes of showing a number of photographs to Mrs Moore. One of them, number 7, was a photograph of the accused. Quite appropriately the process was video recorded. On the voir dire before me the Crown tendered a DVD containing the video recording. This was played in court. A transcript of the conversation between the police officer and Mrs Moore was also prepared and this too was tendered. However, as is almost always the case, a proper understanding of what occurred can only be obtained by viewing and listening to the recording. The transcript of course records only the words, and in some cases the proper meaning to be given to those words can only be identified by reference to what was happening at the time those words were spoken.

4 The police officer began by asking Mrs Moore some standard questions and conveying to her some standard information about the process she was about to undertake. She then looked at the 20 photographs one by one. The photographs were printed on paper rather than on a computer screen and by counting the number of photographs looked at by Mrs Moore it is possible to work out when she was first confronted with an image of the accused. When that happens, it is clear from the DVD that there is not the slightest reaction from Mrs Moore to indicate that she has recognised that image. She treated photograph number 7 in the same way she had treated the earlier six photos, that is, she looked at it briefly and put it to one side. At one stage, after she had passed by photo number 7 she said in relation to one other photo, “he may be”.

5 After looking at all of the 20 photos the police officer sought clarification. Mrs Moore indicated that she used the term “may be” in relation to photograph number 16. She then indicated that she thought that photographs numbers 1 and 2 “were them, actually”. After that she spread all 20 photographs out on the desk in front of her before for the first time drawing attention to photograph number 7 (it will be remembered that that is a photograph of the accused) with the words “there’s a possibility he’d be the gun man”. She then makes further reference to photograph number 16 before saying “I only saw their faces for a glimpse” and then, referring to photos 7 and 16 “but I …I think I’d … pick those two”. She clarifies who did what by saying “7 would be the gunman and 16 would be the one that passed the gun”. When the police officer sought further clarification she said

“I’d say 16 passed the gun to number 7, who was the gunman. 7… they swapped guns. And 16 had the new …the loaded guns. And 7 passed him the one that he’d emptied”.

6 It is important, in view of what transpired later, to note that, at least as far as can be outwardly determined, Mrs Moore did not say she was more certain about photograph number 7 than photograph number 16 and indeed, it will be recalled, that whilst she said nothing about photograph 7 when she first saw it, she said the words “may be” when she first saw photograph 16.

The behaviour of the prosecutor at the committal proceedings.

7 Committal proceedings were held in August 2008. Mrs Moore was called to give evidence. A transcript of her evidence was tendered on the voir dire held before me yesterday. Before referring to aspects of that evidence, it is important that I make reference to an event which occurred before Mrs Moore gave her evidence. It is common ground what I am about to describe occurred and it is common ground also that why it occurred could not be explained.

8 As I have said Mrs Moore had selected photographs 7 and 16 from the 20 that were shown to her. It is now clear that photograph 16 was simply a “foil” or “filler” and that police were of the view that the person depicted in that photograph had nothing at all to do with the shooting on 15 November 2007. The Prosecutor at the committal proceedings, who was not the Prosecutor who appeared before me yesterday, decided to tell Mrs Moore that the person in photograph 16 was not a suspect and was not a person of interest to police. Mrs Moore’s evidence was that she understood that what she was being told was that she had made a mistake regarding her identification of the person in photograph number 16.

9 It is not my present role to be critical of the people involved in that decision. I have not heard from them and so they’ve not been given the opportunity to advance an explanation for such conduct. However with that qualification I have to say that the Prosecutor should not have done what he did. It was a remarkable thing to do.

10 Perhaps equally remarkable was Mrs Moore’s response. It is apparent that the accused’s lawyers learnt what the Prosecutor had done and so they would have been surprised to hear Mrs Moore’s evidence in chief when she was asked about what occurred in the Prosecutor’s office that very morning.

Q. Did I also tell you something about the person depicted in photograph number 16?
A. Yes, 16 was the one I had chosen, and number 12 had been written incorrectly (Mrs Moore was there referring to a typographical error in her statement)

Q. But did I tell you something about the person depicted in number 16?
A. I’m sorry I have forgotten that part.

11 Armed with the knowledge about what really occurred, counsel for the accused then cross-examined Mrs Moore.

Q. Of course. Tell me this, my learned friend said to you that you had a conversation this morning with them about this matter, did he tell you anything at all about number 16 that indicated to you that you made the wrong identification?
A. Not at all.

Q. Nothing?
A. Not at all, it was just that number 12 had been written incorrectly and I’d signed without making sure.

Q. What did he tell you about number 16, that perhaps may or may not have had an effect on your evidence today, did he tell you anything about 16?

A. Not at all. It was 16 I had chosen.

12 In evidence before me yesterday Mrs Moore was cross-examined about those answers. She was given the opportunity to read them. She agreed that she had lied. She provided an explanation as to why she answered the way she did. She said that she thought that what she had been told by the Prosecutor was “confidential” which I take to mean that she believed that the defence should not learn about the fact that she had been told that she had made a mistake regarding photograph number 16.

The consequences of the Prosecutor’s conduct.

13 It is a natural, indeed inescapable, conclusion of fact that having been told that she had got number 16 wrong, and the Prosecutor having said nothing about photo number 7, Mrs Moore would have inferred that the person in photograph 7 was the person who police believed to be the gunman. In other words to say to Mrs Moore “you got number 16 wrong” tells her that she got number 7 “right”.

14 Mrs Moore would not accept that she interpreted the Prosecutor’s statement that way. But whether or not she realised it, I am satisfied that that is the message she received. I find this for 2 reasons: first that is the natural commonsense conclusion to draw from what she had been told; and secondly because it explains the remarkable divergence between the views she expressed at the photo identification procedure regarding both photos 7 and 16, and her later evidence at committal.

15 I find that the Prosecutor’s conduct is the most likely explanation for what I accept is a change in the level of certainty given by Mrs Moore to her identification of the person in photo 7 between 30 April 2008 when she selected his photograph, and August 2008 when she gave evidence at the committal. It is important to recall that when she selected photographs 7 and 16 on 30 April 2008, she described her level of certainty as regard the 2 photographs in similar, albeit not identical, terms. Yet by the time of the committal proceedings, what she said regarding photograph 7 moved one way while what she said in regard to photograph 16 moved the opposite way.

16 In the committal she began by saying that photograph 16 was “the closest I could see”. She said she saw less of number 16 than she had of number 7. She said “number 7 was definite, there was no discrimination at all I knew immediately” and that she had “no doubt with number 7”. She said that she was “very sure on 30 April that number 7 was the gunman”. She agreed with the cross-examiner that she had been earlier expressing some doubt in relation to number 7 when she said “there’s a possibility he’d be the gunman” and that she continued to have that doubt in relation to the photographs for some time after the 30th of April.

17 Thus, by the time of the committal proceedings she was “definite” and “very sure” regarding photo 7, but expressed doubts regarding photo 16. It is impossible to avoid the conclusion that Mrs Moore had been influenced, possibly consciously and possibly sub consciously, by what she was told by the Prosecutor. At the very least that conclusion is likely.

18 The Crown Prosecutor appearing on the voir dire suggested that while Mrs Moore had firmed up in her certainty regarding the identification of the accused’s photo, that process of firming up occurred during the identification procedure itself on the 30th of April 2008 and was not influenced by what occurred on the morning she gave evidence in the committal proceedings. I reject that submission. It is important to take into account not only what Mrs Moore said during the photo identification procedure, but also the way she said it. It’s also important to remember that what the Crown Prosecutor described as firming up of Mrs Moore’s identification occurred as the police officer quite properly attempted to clarify which role she was ascribing to which person. When the language used by Mrs Moore is considered: “possibility”; “I think”; “7 would be the gunman”; ”I’d say 16 passed the gun to number 7”, in its proper context, Mrs Moore was not expressing anything regarding certainty, a position quite contrary to her evidence in the committal proceedings where, and I know I have mentioned this many times already, she expressed confidence regarding the photograph of the accused and doubt regarding photograph number 16.

19 It was a basic premise of the argument mounted on behalf of the accused that the Prosecutor’s conduct had effected Mrs Moore’s perception as to the strength of her opinion that photograph 7 showed a person she had seen on 15 November 2007. That basic premise should be accepted.

The probative value of Mrs Moore’s evidence

20 The primary focus of the accused’s submissions concerned sections 135 and 137 Evidence Act. Part of the process which must be undertaken requires that I assess the probative value of Mrs Moore’s evidence, before considering whether it is outweighed by the danger of unfair prejudice.

21 It is as well to depart at this stage from the unusual circumstances of this case to refer to other, much more usual issues regarding picture identification evidence. The dangers of identification evidence, and particularly of picture identification evidence, are well known to the courts. Many of those dangers are referred to in Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612 at [12], and most of the matters set out in that passage apply to the present case. Sometimes the dangers of photographic identification can be overlooked precisely because they are so familiar.

22 So in this case the probative value of Mrs Moore’s evidence is effected by such things as:

• The length of time which she had to observe the three men on 15 November 2007. Clearly the events must have occurred in a relatively short time.

• The length of time which elapsed between the relevant events and the purported act of identification. That was more that five and a half months.

• The photographs depicted only the face of the relevant person.

• The possibility that Mrs Moore assumed that photographs of likely offenders were amongst those shown to her. Indeed there is much to be said for the proposition that from what I saw on the DVD, Mrs Moore appeared to select photographs representing those which most closely matched what she remembered rather than picking out photographs of people she was certain she saw on 15 November 2007.

• The possibility that Mrs Moore was desirous, even subconsciously, of helping the police make out a case against those the police regarded as suspects.

• Mrs Moore said when she was watching the relevant events she was mesmerised by the guns but did think that she might have to identify the people involved one day (committal transcript 80.18).

• To an outside observer, Mrs Moore did not react at all when first she looked at photograph number 7. Of course this is not a case where Mrs Moore was the victim of an offence and as the Crown Prosecutor pointed out various people react in various ways to the situation Mrs Moore found herself in when asked to identify people from photographs.

• Mrs Moore, who appeared to be a white Anglo-Saxon purported to identify the accused who appeared to me to be of Middle Eastern appearance. The increased dangers of cross-racial identification are well known.

• Whether photograph number 7 stood out from the other 19 photos. Despite Mr Walker’s submission to the contrary I do not regard photograph number 7 as being particularly different from the other photographs in the array.

23 Let me now turn to the less usual aspects of this particular photographic identification. Mrs Moore’s credibility also affects the probative value of her evidence. Mrs Moore seems to have an inaccurate view of her role in the prosecution of the accused. I have already mentioned the fact that Mrs Moore agreed that she had lied at the committal proceedings because she believed that the conversation she had with the Prosecutor was confidential and would not be disclosed to the lawyers acting for the accused.

24 The question of the Prosecutor’s conduct is also intrinsically relevant to the assessment of the probative value of Mrs Moore’s evidence. It is trite to say that there are two aspects to the reliability of an identification witness’s evidence – honesty and accuracy - and what the former Prosecutor has done has had the effect of increasing in Mrs Moore’s mind the accuracy of her identification, but inaccurately so. Because of that circumstance I regard the expressions of doubt expressed by Mrs Moore on the 30th of April 2008 as being a more accurate indication of her level of certainty than the evidence given in the committal proceedings and on the voir dire. Unfairly to Mrs Moore, she has had her opinion bolstered by what the Prosecutor told her, such that she is no longer in a position to accurately describe how certain she is that the person shown in photograph 7 was the gunman. The probative value of her evidence therefore should be assessed on the basis that there was a “possibility” in her mind that photograph 7 was a photograph of the gunman.

25 This clearly suggest that the probative value of the evidence is low, but even evidence of low probative value may nevertheless be admissible. The next stage in the process is for me to assess the danger of unfair prejudice to the accused, and that of course has to be assessed in the light of the effect of directions that I would give to the jury. In other words it is the residual danger of unfair prejudice, if any, remaining after I have appropriately directed the jury which has to be compared to the probative value of the evidence.

Is the fact that the person who acted inexplicably was the Prosecutor relevant to the assessment of whether the prejudice is unfair?

26 The question of unfair prejudice has usually been looked at in terms which direct attention to the issue of whether a jury would use evidence emotionally or illogically but Mr Walker suggested, and the Crown conceded, that the use of the word “unfair” in sections 135 and 137 could have a wider meaning. The parties both agreed that it would be easier to find that prejudice was “unfair” where the person who created the prejudice was an agent of the state rather than an innocent bystander who was not at all involved in the prosecution of the accused.

27 There are arguments suggesting the validity of the common submission put to me. For example when the word “unfair” is used in another part of the Evidence Act, namely section 90, it clearly encompasses the idea that in considering what is fair and what is not fair the role played by the person who has created the circumstances said to be unfair is relevant. On the other hand I was not provided with any authority to suggest that the question of what was “unfair” in sections 135 and 137 was effected by the role played by the relevant person, the Prosecutor in this case, and such conclusion seems to be contrary to what was understood by the Australian Law Reform Commission (ALRC 26 vol 1, para 644):

The risk of unfair prejudice is one of the potential disadvantages mentioned. By risk of unfair prejudice is meant the danger that the fact –finder may use the evidence to make a decision on an improper, perhaps emotional, basis, i.e. on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.

28 I do not suggest that I have in the time available to me, been able to look at every appellate decision on section 135 and 137 Evidence Act but I am not aware of the concept of “unfair” being interpreted in the way suggested to me by both Mr Walker and the Crown.

29 I do not accept the submission made to me by the parties. In my view the question of unfairness in section 135 and 137 is directed to questions such as whether the jury would adopt an illegitimate form of reasoning, whether it would give the evidence undue weight, or reason emotionally or illogically. I do not accept that the role played by the person who was said to have created the prejudice is directly relevant to questions of that nature (of course the role may be indirectly relevant in this case because the position held by the prosecutor may have effected Mrs Moore’s reaction to what she was told).

Is there a danger of unfair prejudice?

30 Mr Walker argues that there is a danger that a jury would adopt an illegitimate form of reasoning, and that it would give Mrs Moore’s evidence undue weight, because of the position which now arises regarding her evidence. He argues that this would be the case even after I directed the jury about the various issues which arise regarding Mrs Moore’s evidence.

31 I accept that the ability of counsel for the accused to cross-examine Mrs Moore regarding the level of confidence she has in her act of identification has been significantly and irremediably damaged. Honest identification witnesses will often express doubts in the witness box, but it seems that Mrs Moore no longer has such doubts and so it is unlikely to concede them when giving evidence to the jury. As I have found above, the reason she no longer has such doubts is because of the inexplicable bolstering of her act of identification by the conduct of the Prosecutor.

32 Of course it is inconceivable that Mrs Moore would not have eventually found out that she had identified the person in number 16 as being involved in the offence despite the fact that he clearly wasn’t, when being cross-examined by counsel for the accused. It would have been a powerful piece of cross-examination indeed, but any lawyer with basic advocacy skills would have only confronted Mrs Moore with her mistake after carefully questioning her in a manner designed to elicit evidence that she was equally certain about her identification of both photographs 7 and 16 on 30 April 2008.

33 The law regarding the admissibility of identification evidence, and the directions which have to be given concerning that evidence are all predicated on the universally held view that identification evidence has a seductive quality because the witness is usually convinced that their act of identification is accurate. Thus identification witnesses are usually honest, telling the jury what they genuinely believe. Such evidence can be very persuasive, to a level which leads a jury placing greater weight on that evidence than is proper. That is the case regarding all identification evidence. What is different in this case is that Mrs Moore’s confidence in the accuracy of her opinion has been artificially increased. Her evidence regarding her present state of mind has been tainted. It is no longer possible for her to forget what she has been told with the result that she will present to the jury as a witness who is certain that she accurately picked out photo number 7 as being one of the men she saw on 15 November 2007. In truth, as I have found, that certainly is unwarranted and it is misleading for her to be presented to the jury as a witness who honestly believes that she has no doubts about her reliability.

34 I consider that there is a significant danger of unfair prejudice to the accused.

Is there residual danger of unfair prejudice after appropriate directions are given.

35 There is a tempting, but ultimately erroneous, process of reasoning which presents itself when a judge is required to consider whether there is a risk a jury will react emotionally or illogically to evidence, or give it undue weight. That process of reasoning starts with the proposition that a judge can logically state why there is a risk of unfair prejudice to an accused if directions are not given. I believe that I have done that in what I have already said. The false conclusion is then that because a problem can be explained logically, merely telling the jury what the problem is, will lead to them approaching the evidence from an entirely rational basis, putting aside emotion or illogicality. If that conclusion were valid then there would be no occasion for evidence to be excluded because of the danger of unfair prejudice. Sections 135 and 137 Evidence Act would be redundant. Yet not only do they exist and must be given work to do, they even apply to judges sitting alone, without a jury.

36 Judges should not overestimate their abilities in communicating logical concepts to 12 lay jurors. Take the case of R v Blick (2000) 111 A Crim R 236 [2000] NSWCCA 61. There the flaw in the identification process was readily apparent and the trial judge considered it was appropriate to trust the good sense of the jury, in the light of the directions and cautions that he would be giving them. The evidence was admitted. Despite the obvious nature of the flaw in the identification process the Court of Criminal Appeal held that it did not follow that there was no unfair prejudice to the accused. The judge in that case had pointed out to the jury the problems affecting the probative value of the identification evidence, but the Court of Criminal Appeal held that even so, the danger of unfair prejudice was such as to outweigh the probative value of the evidence. A similar situation arose in R v Fisher [2001] NSWCCA 380 with a similar result. Those cases are a reminder, if there needed to be one, that explaining in logical terms the problems with an act of identification does not necessarily, and in all cases, eliminate the risk that the jury will give the evidence greater weight than it deserves.

37 A similar conclusion should be drawn in the present case. For both the usual reasons which effect all identification evidence from photographs, combined with the reasons peculiar to this case, the probative value of Mrs Moore’s evidence is low: she is a person who admitted lying on oath; she selected the accused’s photograph as only possibly being the gunman; she did this from a photograph shown to her many months after the relevant event; she showed no reaction at all when first confronted with the photograph of the accused, and whilst she now claims to be certain in her identification this is because she was effectively told that she had picked out the right person when she selected the accused’s photograph. Her state of mind has been influenced, probably without her even realising that that is what has happened. Outweighing the probative value of her evidence are the considerations I have earlier mentioned regarding the seductive nature of identification evidence when given by a witness who believes herself to have made an accurate identification, in circumstances where the witness has been inappropriately influenced so as to create a false feeling of certainty. I do not believe that any direction would eliminate the danger that the jury would give Mrs Moore’s evidence greater weight than it truly deserves.

38 There is a further circumstance worthy of mention. In this case to explain in logical terms the problems regarding Mrs Moore’s evidence would be to risk creating a different form of prejudice. One way in which I could attempt to cure the prejudice caused by the Prosecutor’s conduct would be to direct the jury to bear in mind what the Prosecutor had told Mrs Moore and its likely effect upon her evidence. However that direction would cause its own problem. The direction

“members of the jury bear in mind that Mrs Moore was told by a Prosecutor that she had made a mistake in relation to photograph 16 which may well have led her to conclude that she had accurately identified photograph 7 as depicting the shooter”

would convey to the jury, in an inappropriate way that the authorities, who the jury would understand might know things which the jury are not told, believed that there was other information to confirm the accuracy of her identification of photo number 7.

39 The very direction which I would give in an attempt to cure the problem faced by the accused may unwittingly convey to the jury the idea that all Mrs Moore’s identification does is to confirm to the authorities something they already knew. In circumstances where the Crown Prosecutor told me this case could not go to the jury without Mrs Moore’s evidence, there is a real risk that the jury would think that there must be some information concerning the matter which is not being put before them, otherwise the police would not have believed that Mrs Moore’s identification of the accused was reliable.

Conclusion regarding sections 135 and 137.

40 When she selected a photograph of the accused on 30 April 2008, Mrs Moore was far from certain that he was the gunman she saw on 15 November 2007. The Prosecutor’s conduct had the effect of making Mrs Moore confident in the accuracy of her act of identification. In truth, for the reasons I have given, the probative value of Mrs Moore’s evidence is low but there is a danger that, even after receiving proper directions from me, the jury will give the evidence greater weight than it deserves. The attempt to cure the prejudice creates a danger of unfair prejudice as well. The danger of unfair prejudice outweighs the low probative value of Mrs Moore’s evidence. It follows that I must exclude the evidence under both sections 135 and 137 Evidence Act .

Section 115 Evidence Act

41 Given this conclusion it is not necessary for me to determine whether I should accept an alternative submission put by Mr Walker. His argument was that section 115(5) had the effect of rendering the evidence inadmissible because when the legislation is properly interpreted, the accused had not “refused to take part in an identification parade”.

42 The relevant history is as follows. The shooting took place on 15 November 2007. A search warrant was executed at the accused’s premises on 4 December 2007. He was asked during that search if he would participate in an identification parade and he refused. He also refused to provide a DNA sample or allow himself to be measured for the purposes of a biomechanics comparison. However about a month later, on 9 January 2008, the accused was again asked if he would allow himself to be measured for the purposes of a biomechanical comparison and he agreed that he would. Then on 6 February 2008, after an order had been made that a forensic procedure could be performed, the accused complied with a request to provide a buccal swab. As I mentioned above, it wasn’t until 30 April 2008 that the picture identification process took place.

43 The Crown says that section 115(5)(a) applies because the accused “refused to take part in an identification parade”. On the other hand the accused says that there needs to be some temporal relationship between the picture identification process and the refusal to take part in an identification parade. The accused points out that since his initial refusal he had cooperated with police in a number of ways and that a significant period of time had passed between his initial refusal on 4 December 2007 and the time when Mrs Moore was shown the photographs on 30 April 2008. The accused places particular reliance on the words “when the pictures were examined” in section 115(5) and suggests that if a single refusal to take part in an identification parade meant that at any time thereafter police could have admitted picture identification evidence which occurred subsequent to that refusal then subsection (a) would not have said “the defendant refused to take part in an identification parade” but would have said “the defendant had refused to take part in an identification parade”.

44 It is probably the case that picture identification evidence would be inadmissible if the pictures were examined after a defendant had indicated that an earlier refusal was no longer relied on. In other words if the accused had at any stage after 4 December 2007 told police that he would take part in an identification parade the prosecution could probably not rely on the earlier refusal to justify admission of picture identification evidence undertaken after the accused indicated that he would consent to an identification parade. So I would be prepared to find that it would not be in all cases that a single refusal to participate in an identification parade would inevitably allow the admission of photographic identification evidence. Events in the interim could make it clear that the accused no longer “refused to take part in an identification parade”. But if it were necessary for me to decide the issue on the submissions put to me yesterday, I would find that nothing in this case would suggest that on 30 April 2008 the accused “refused to take part in an identification parade”.

45 Section 115(5) would be unworkable if it was interpreted in the manner suggested by Mr Walker where a large number of witnesses needed to be given the opportunity to identify the accused. The Crown asked rhetorically whether this would mean that in every case, immediately before the picture identification evidence process was undertaken, police had to check with the accused whether he or she had changed his or her mind about refusing to take part in an identification parade.

46 As I have said, I do not need to answer this question because of the conclusion I have reached regarding sections 135 and 137. I indicate a preference for the Crown position, but have not reached a final conclusion. Neither the Crown or Mr Walker relied on any authority to assist me and I am not satisfied that the issue has not come up in any of the jurisdictions where evidence law includes the equivalent of section 115(5). The submissions of both Mr Walker and the Crown were made without the benefit of time to research the issue properly, Mr Walker having originally mistakenly relied on s 114 of the Evidence Act.

Order

47 The identification evidence of Mrs Moore is excluded.

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16/02/2009 - Spelling correction - Paragraph(s) Citation