The Queen v D - [2008] ACTSC 82

The Queen v D [2008] ACTSC 82 (8 September 2008)

APPLICATION – pre-trial application – exclusion of evidence – Evidence Act 1995 (Cth), ss 114, 137.
EVIDENCE – identification evidence – no identification parade held – reasonableness of holding identification parade in the circumstances – Evidence Act 1995 (Cth), s 114.
EVIDENCE – exclusion of evidence – identification evidence is evidence of an identification, whenever made – Evidence Act 1995 (Cth), s 114.
EVIDENCE – exclusion of evidence – whether identification parade can be held after the identification is made – Evidence Act 1995 (Cth), s 114.
EVIDENCE – exclusion of evidence – what constitutes “unfair prejudice” to the accused – Evidence Act 1995 (Cth), s 137.

Evidence Act 1995 (Cth), ss 114, 137

Trudgett v R [2008] NSWCCA 62 (25 March 2008)
R v Taufua [1996] NSWSC 548 (unreported, 11 November 1996)
R vTomason [1999] ACTSC 112 (13 November 1999)
R v Taylor [2008] ACTSC 52 (29 April 2008)
R v Reed and Carberry [2003] ACTSC 6 (21 February 2003)
Alexander v R (1981) 145 CLR 395
R v Lumsden [2003] NSWCCA 83 (5 April 2003)

Odgers, Uniform Evidence Law, 7^th edition

No. SCC 208 of 2007

Judge: Penfold J
Supreme Court of the ACT

Date: 8 September 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 208 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

D

REASONS FOR DECISION

Judge:  Penfold J
Date:  8 September 2008
Place:  Canberra

Summary

“D”, a young person, has been charged with one count of assault occasioning actual bodily harm.

His jury trial was to start on 1 September 2008. On 2 September 2008 I refused an application made on 1 September by counsel for the defence to rule that certain evidence proposed to be led in the trial was inadmissible under s 114 of the Evidence Act 1995 (Cth), which applies in the ACT (the Evidence Act). The application was that the evidence, being “identification evidence” for the purposes of s 114, should be ruled inadmissible under subs 114(2) because no identification parade had been held.

In summary, I refused the application on the ground that in the circumstances of the particular case, it would not have been reasonable to have held such a parade, and that therefore par 114(2)(b) was satisfied and the evidence was not inadmissible under s 114.

I also refused counsel’s subsequent application to exclude the evidence under s 137 of the Evidence Act.

These are my reasons.

The circumstances of the case

In December 2006 the complainant was assaulted near the Charnwood shops. Immediately following the assault he went to his workplace at the shops and told workmates that he had been assaulted by D. The next day he reported the assault to police and again named D as one of his assailants. The complainant knew D because they had attended the same primary school for years 4, 5 and 6, finishing primary school almost exactly four years before 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 The Queen v D

Details

AGLC: The Queen v D [2008] ACTSC 82
Case: [2008] ACTSC 82
Decision Date: 8 September 2008

CaseChat Overview and Summary

In the case of The Queen v D, the defendant sought to exclude evidence from the jury trial that was set to begin on 1 September 2008. The application, made by the defence counsel on 1 September, aimed to rule that certain proposed evidence was inadmissible under section 114 of the Evidence Act 1995 (Cth), specifically because no identification parade had been held. The evidence in question was the identification of the defendant by the complainant as the assailant from a previous assault.

The legal issues the court had to decide included whether the failure to hold an identification parade rendered the identification evidence inadmissible under section 114 of the Evidence Act, and if the identification evidence could be considered unfair prejudice to the accused under section 137. The court also needed to determine what constituted 'unfair prejudice' to the accused, as per the Evidence Act. The application to exclude evidence was initially broad, but was narrowed down to focus solely on the complainant’s identification evidence before the court ruled on it.

The court rejected the application to exclude the evidence on the basis that it would not have been reasonable to hold an identification parade in the circumstances of this case. The complainant had known the defendant since primary school, finishing primary school almost exactly four years prior to the assault. This long period of time and the familiarity between the complainant and the defendant led the court to conclude that holding an identification parade would not have added significant probative value to the identification. The court also dismissed the subsequent application to exclude the evidence on the grounds of unfairness to the accused, finding that the evidence was not unfairly prejudicial. Consequently, the evidence was deemed admissible in the trial.

Orders

Orders of the court

(reasons for decision)

Background

Background to the litigation

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Evidence

Evidence Before The Court

His jury trial was to start on 1 September 2008. On 2 September 2008 I refused an application made on 1 September by counsel for the defence to rule that certain evidence proposed to be led in the trial was inadmissible under s 114 of the Evidence Act 1995 (Cth), which applies in the ACT (the Evidence Act). The application was that the evidence, being “identification evidence” for the purposes of s 114, should be ruled inadmissible under subs 114(2) because no identification parade had been held. In summary, I refused the application on the ground that in the circumstances of the particular case, it would not have been reasonable to have held such a parade, and that therefore par 114(2)(b) was satisfied and the evidence was not inadmissible under s 114. I also refused counsel’s subsequent application to exclude the evidence under s 137 of the Evidence Act. These are my reasons. In December 2006 the complainant was assaulted near the Charnwood shops. Immediately following the assault he went to his workplace at the shops and told workmates that he had been assaulted by D. The next day he reported the assault to police and again named D as one of his assailants. The complainant knew D because they had attended the same primary school for years 4, 5 and 6, finishing primary school almost exactly four years before the assault. The evidence sought to be excluded was evidence of the complainant’s identification of his assailant as D. Initially the application also applied to evidence to be given by a witness to the assault, who apparently also knew D from primary school. The application to exclude this evidence was withdrawn before I needed to rule on it. For the purpose of the application, I assumed that the evidence concerned, although of a kind sometimes called “recognition evidence”, amounted to “visual identification evidence” for the purposes of s 114. Counsel for the defence, in submitting to this effect, relied on the case of Trudgett v R [2008] NSWCCA 62 (25 March 2008). Counsel for the prosecution suggested that the relevant comments in that case were obiter dicta and therefore not necessarily binding, and reserved the right to make further submissions on that matter if I ruled that the evidence would be inadmissible under s 114. In the event those further submissions were not required. My ruling that the evidence was not inadmissible under s 114 started with a reading of subs 114(2) as follows: The bracketed words in paragraph (b) are taken from paragraph (a), and replace the phrase “such a parade”, which refers back to the parade described in paragraph (a). My next step was to interpret “the identification” as used in paragraph (b) to mean the act of identifying the defendant in some way as the person whom the witness could link in some way to the offence (that is, making an assertion of the kind described in paragraph (a) of the definition of “identification evidence” in the Dictionary to the Evidence Act). Paragraphs 114(2)(a) and (c) had no direct application to the case, and there was no suggestion that the complainant had been intentionally influenced to identify D. Accordingly, the operation of subs 114(2) in this case turned entirely on whether par 114(2)(b) was satisfied.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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