Moulden v The Queen

The appeal in Moulden v The Queen was brought by the defendant, Moulden, against the Crown, represented by the Queen. The central issue in the appeal was the admissibility of visual identification evidence obtained through a photo montage, particularly focusing on the similarity-in-appearance standard as outlined in section 45(3)(b) of the relevant legislation. Moulden contested the admissibility of the photo montage, arguing that the individuals in the montage were not sufficiently similar in appearance to him, while the Crown argued that the similarities were adequate to comply with the statutory requirements.

The legal issues before the court revolved around the interpretation and application of section 45(3)(b) of the Evidence Act, which mandates that a formal procedure for obtaining visual identification evidence must include a comparison of the suspect with at least seven other individuals who are similar in appearance. Moulden contended that the individuals in the montage lacked sufficient similarity in appearance, particularly in terms of hair colour, facial hair, and lighting conditions, making him stand out. The Crown, on the other hand, argued that the individuals shared sufficient similarities in age, build, and facial hair, and that these commonalities were adequate for the purposes of the statutory requirement.

The court examined the statutory language and previous jurisprudence to determine whether the photo montage complied with the similarity-in-appearance standard. It held that the requirement was evaluative and fact-dependent, focusing on whether the montage avoided any material risk of predisposing the witness to select the accused. The court found that the images need only be similar, not identical, and that the police were not required to achieve the perfect lineup. After reviewing the evidence, the court concluded that the individuals in the montage were sufficiently similar in appearance to Moulden, and therefore, the photo montage complied with the statutory requirements.

The court upheld the admissibility of the visual identification evidence obtained through the photo montage. The appeal was dismissed, and the conviction of the appellant was affirmed.