Wilson (a pseudonym) v The King

Case [2022] VSCA 261
SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0076

GRANT WILSON (A PSEUDONYM) Applicant
v
THE KING Respondent

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JUDGES: McLEISH and KENNEDY JJA and KIDD AJA
WHERE HELD: Melbourne
DATE OF HEARING: 27 October 2022 
DATE OF JUDGMENT: 25 November 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 261
JUDGMENT APPEALED FROM: DPP v Wilson (a pseudonym) (Unreported, County Court of Victoria, Judge Dempsey, 10 June 2022)

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CRIMINAL LAW – Interlocutory appeal – Applicant charged with offences including aggravated offence of intentionally exposing emergency worker to risk by driving – Evidence sought to be led of police officer’s identification of applicant – Whether evidence is picture identification evidence – Picture identification includes picture or pictures of single person – Whether evidence excluded by s 115(2) Evidence Act 2008 – Picture not suggestive of police custody – Whether evidence excluded by s 137 Evidence Act 2008 – Evidence highly prejudicial – Evidence placed accused in forensic bind – Challenging identification evidence required introducing criminal association evidence – Prejudice incurable by directions – Leave to appeal granted – Appeal allowed – Evidence of police officer’s identification excluded from appellant’s trial.

Evidence Act 2008 ss 115, 137; Interpretation of Legislation Act 1984 s 37.

House v The King (1936) 55 CLR 499 applied; R v Dickman (2017) 261 CLR 601, R v Cook [2004] NSWCCA 52, discussed.

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Counsel
Applicant: Mr T Sullivan
Respondent: Mr N Batten

Solicitors
Applicant: Geelong Lawyers Barristers & Solicitors
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

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MCLEISH JA
KENNEDY JA
KIDD AJA:

Introduction

  1. The applicant is facing a joint trial with his co-accused, Darren Perry (‘Perry’),[1] on a number of charges arising from incidents that are alleged to have occurred in the early hours of the morning on 27 March 2020.[2]  

    [1]A pseudonym.   

    [2]The applicant is charged on indictment with the aggravated offence of intentionally exposing an emergency worker to risk by driving (Charge 8), the aggravated offence of recklessly exposing an emergency worker to risk by driving (Charge 9), damaging an emergency service vehicle (Charge 10), recklessly exposing an emergency worker to risk by driving (Charge 12), possession of a drug of dependence (Charge 13) and three counts of handling stolen goods (Charges 14 to 16). Additionally, on the same indictment, the applicant is charged jointly with Perry with six counts of theft (Charges 1, 4, 5, 6, 7 and 11) and two counts of arson (Charges 2 and 3).

  2. A significant issue in the applicant’s trial will be whether he is in fact the offender. In order to prove the applicant’s identity as the offender at trial, the respondent seeks to lead evidence of a police officer’s identification of the applicant. Prior to the empanelment of a jury, the applicant objected to the admission of this evidence.

  3. On 10 June 2022, the learned trial judge ruled that the police officer’s identification evidence was admissible.[3] The judge certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 that the evidence,…

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Wilson (a pseudonym) v The King [2022] VSCA 261
Case
[2022] VSCA 261
Decision Date

CaseChat Overview and Summary

The case of Wilson v The King involved an interlocutory appeal against the decision of the trial judge to admit evidence of a police officer's identification of the applicant. The applicant was charged with multiple offences, including the aggravated offence of intentionally exposing an emergency worker to risk by driving. The primary legal issue was whether the evidence of the police officer's identification of the applicant constituted picture identification evidence under s 115 of the Evidence Act 2008 and whether it was excluded by s 115(2) or s 137 of the Act. The court had to determine whether the evidence was picture identification evidence, whether it was suggestive of police custody, and whether the prejudicial effect of the evidence outweighed its probative value.

The Full Court of the Supreme Court of Western Australia examined the definition of 'picture identification evidence' in s 115(1) of the Evidence Act and found that the police officer's identification of the applicant was indeed picture identification evidence. However, the court found that s 115(2) was not engaged because the pictures examined did not suggest that they were of persons in police custody. While the surrounding text in the photograph suggested correctional custody, it did not suggest police custody, and therefore the exclusionary rule in s 115(2) did not apply. The court also considered s 137 of the Evidence Act and found that the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicant. The evidence was highly prejudicial, placed the accused in a forensic bind, and required the introduction of criminal association evidence to challenge it. The prejudice was incurable by directions to the jury.

The Full Court granted leave to appeal and allowed the appeal, excluding the evidence of the police officer’s identification from the applicant's trial. The court concluded that the evidence was excluded by s 137 of the Evidence Act due to its highly prejudicial nature and the risk of unfair prejudice to the applicant. The Full Court's decision was based on the reasoning that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the applicant.

The final orders of the court were that the appeal be allowed, and the evidence of the police officer’s identification of the applicant was excluded from the trial. The court's decision was based on the interpretation of the relevant sections of the Evidence Act and the application of the principles of fairness and the risk of unfair prejudice to the accused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant parts of s 115 of the Evidence Act provide:(1)In this section, picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers. (2)Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.(3)Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if – (a)when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged; and(b)the picture of the accused that was examined was made before the accused was taken into that police custody.(4) …(5)Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged, unless – (a)the accused refused to take part in an identification parade; or(b)the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or(c)it would not have been reasonable to have held an identification parade that included the accused. Finally, s 137 of the Evidence Act provides: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. The learned trial judge undertook a thorough analysis of the circumstances of the alleged offending and of Sergeant Groves’ evidence. Sergeant Groves gave evidence at the committal hearing and in a pre-trial hearing before the trial judge. His Honour found that Sergeant Groves’ identification of the applicant falls within the meaning of ‘picture identification evidence’ in s 115(1). He concluded that Sergeant Groves’ identification was based upon the first photograph that he opened, namely photograph 1. The judge proceeded upon the basis that the exclusionary rule contained in s 115(2) only applies where the pictures suggest they are of persons in police custody. The judge stressed that s 115(2) does not operate to exclude pictures that are suggestive of other forms of custody. While concluding that photograph 1 itself does not ‘disclose’ that the applicant was in ‘custody’, the trial judge said that the surrounding text (the notation ‘DHURRINGILE’) ‘certainly does’. His Honour appears to have concluded that the surrounding text was indicative of correctional custody, not police custody. Accordingly, his Honour concluded that s 115(2) was not engaged so as to exclude the identification evidence. The trial judge emphasised that the text (including the notation ‘DHURRINGILE’) would not be led before a jury.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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