Wilson (a pseudonym) v The King

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.