DIRECTOR OF PUBLIC PROSECUTIONS v NICHOLLS [2001] NSWSC 523 | Case summary

1 HIS HONOUR: This is an application for leave to appeal brought under s 104(4) of the Justices Act 1902, which permits, with leave of the Court, an informant to appeal on a question of law against any interlocutory order that is made by a magistrate in summary proceedings. The defendant was charged with the offence of maliciously inflicting grievous bodily harm contrary to s 35(b) of the Crimes Act 1900 (the Act). The prosecution relies, inter alia, on the identification of the defendant by the victim from photographs shown to him by the investigating police officer, Detective Sergeant Hardie. Following objection by the defendant and after conducting a voir dire, the learned Magistrate rejected the evidence of identification, concluding that the photograph of the defendant taken in the police station was obtained in circumstances that required its exclusion. 2 The evidence giving rise to the issue for determination was principally that of Detective Sergeant Hardie, who obtained from the victim an identification of the defendant from a number of photographs. The argument proceeded both below and in this Court on the basis that it was anticipated that the victim would give direct evidence identifying the person whose photograph he selected as depicting his assailant. Although the offence occurred on 9 September 1997, the identification of the defendant did not occur until 2 February 2000. The circumstances in which the photograph came to be taken were not in dispute. 3 On 18 January 2000, Detective Sergeant Hardie went with other police to the defendant's premises and, after a short conversation, arrested him for an assault upon Franz Krzyminski on 9 September 1997 and took him to the police station. It was not disputed that there were reasonable grounds for this arrest. In the course of his interview, the defendant agreed to participate in an identification parade and the interview was suspended to allow appropriate arrangements to be made. Something less than two hours later, the defendant was informed that insufficient people could be found to assist at the parade and it was proposed to try again on the evening of 27 January 2000 when, being a Thursday, more people might be expected to be available. After some further questions, during which the defendant denied assaulting Mr Krzyminski, an appointment was made for him to return to the police station at 5 pm on 27 January. It is clear that the defendant's indication of his preparedness to return was entirely voluntary. Detective Sergeant Hardie was not satisfied that he had identified Mr Krzyminski's assailant and thought that the evidence which he had obtained was insufficient to charge the defendant with any offence, although there was reasonable cause to suspect him.. Accordingly, the defendant was allowed to leave the police station and was not subjected to any bail conditions. 4 At about 5pm on 27 January 2000, the defendant returned to Liverpool Police Station, as he had agreed. Detective Sergeant Hardie stated that the offender was "placed in custody ... in a sort of a dock area", where he stayed for about ten minutes before being taken to an interview room. He agreed that the sole purpose of holding the defendant at that stage was to enable an identification parade to be arranged. Detective Sergeant Hardie said that he proposed to interview the defendant following the lineup so he was obliged to "put him back in custody" for this purpose and that the reason that he was placed "in custody" before the lineup was so that the process of informing him of his rights in accordance with the procedures applicable by virtue of part 10A of the Crimes Act 1900 (the Act). It may be inferred that the custody manager carried out the prescribed procedures. Despite the fact that he was "in custody", Detective Sergeant Hardie said that the defendant was free to leave the police station at any time because he was not under arrest. He accepted that the defendant could have been permitted to sit in the public foyer as distinct from the dock area instead of being treated as an arrested person. This evidence, which was not sought to be controverted, indicates that, although Detective Sergeant Hardie used the word "custody", he meant it only in the sense that the defendant was dealt with in accordance with the Part 10A procedures, rather than involuntary detention. 5 The second attempt on 27 January 2000 to locate a sufficient number of people able to participate in the identification parade having failed, the defendant was interviewed again. He had been waiting for about an hour. The defendant was informed that Detective Sergeant Hardie intended to ask him further questions about the matter, that their conversation would be electronically recorded and that he was not obliged to say or do anything unless he wished since anything he said or did would be recorded and could be used in evidence. There is no reason to suppose that the defendant did not understand this caution. He was informed that the identification parade could not take place and that Detective Sergeant Hardie proposed to take a photograph of him for the purpose of a photographic identification parade. Detective Sergeant Hardie told the defendant that he thought that, under the circumstances, it was the only fair way by which to determine whether he would be identified or not. He was told that if he was identified he would be summonsed for the assault but that if he was not identified no further action would be taken. It is clear that the defendant understood what was proposed and the reason for it and that his cooperation was voluntary. 6 In determining whether the photographic identification was admissible, the learned Magistrate held that the failure of the police to conduct an identification parade was reasonable in the circumstances and, furthermore, that it was not unreasonable that the defendant was not specifically cautioned in respect of the proposal to take a photograph. The learned Magistrate found (as appears to me at all events to have been inevitable) that the defendant had consented to having his photograph taken. However, her Worship concluded that, as he had not been informed that he was free to go, the defendant was unlawfully detained because the only purpose for taking him "into custody" was to conduct an investigation and not so that he should be taken before an authorised justice to be dealt with according to law. Her Worship decided that, although the defendant consented to his photograph being taken, since the occasion for obtaining the photograph arose when he was unlawfully held in custody in circumstances where, "given the invasion of the rights of the defendant" and what she described as Detective Sergeant Hardie acting "in a reckless manner", the balancing exercise required by s 138 of the Evidence Act 1995 required exclusion of the evidence. 7 The power to arrest is given by s 352(2) of the Act which, as far as is relevant, provides - "(2) Any constable may without warrant apprehend, (a) any person whom the constable, with reasonable cause, suspects of having committed any such offence [namely, a serious indictable offence], … and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law." 8 Nothing in these provisions qualifies the common law that there is no power to detain a citizen for the purpose of questioning him or her, still less that the intention to do so could justify a delay in bringing the arrested person before a justice in as short a time as is reasonably practicable. In Williams v The Queen (1986) 161 CLR 278, Mason and Brennan JJ said (at 295), it is "unlawful for a police officer having the custody of an arrested person to delay taking him before a magistrate in order to provide an opportunity to investigate that person's complicity in a criminal offence, whether the offence under investigation is the offence for which the person is arrested or another offence". Wilson and Dawson JJ said (161 CLR at 306) - "…The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation… This being the purpose of arrest, any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of that person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose. Where no delay is involved there can, of course, be no objection to the occasion of the arrest and subsequent detention being used for the purpose of further investigation of the offence in question or, for that matter, any other offences, provided the investigation is properly carried out and any necessary caution is given: see Hough v Ah Sam (1912) 15 CLR 452. But to conduct an investigation which does not cut across the purpose for which a person is held under arrest is one thing; to disregard that purpose in order to carry out an investigation is another thing, however much the further investigation may be otherwise necessary or desirable. A person is not to be imprisoned otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring him before the justice to be dealt with according to law. That, as we have conceded, is one of the foundations of the common law." 9 Part 10A of the Act was inserted to provide for lawful detention after arrest for purposes of investigation in certain cases and subject to certain safeguards. So far as is presently material, the relevant provisions are - "354. Objects of Part The objects of this Part are: (a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence, and (b) to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a justice, Magistrate or court without delay or within a specified period, and (c) to provide for the rights of a person so detained. 355. Definitions (2) A reference in this Part to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if: (a) the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or (b) the police officer would arrest the person if the person attempted to leave, or (c) the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so. 356B. Effect of Part on other powers and duties (1) Existing powers relating to arrest and other matters This Part does not: (a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested… 356C. Detention after arrest for purposes of investigation (1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 356D. (2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested. … (4) The person must be: (a) released (whether unconditionally or on bail) within the investigation period, or (b) be brought before a justice, Magistrate or court within that period, or if it is not practicable to do so within that period, as soon as practicable after the end of that period. …" 10 It was submitted that the effect of s 356B(1)(a) of the Act is that the power to detain for the purposes of investigation as provided in s 356C arises only after lawful arrest. A lawful arrest, it was submitted, is an arrest authorised by common law, in particular where there is, at least, the purpose of taking the suspect before a justice. The evidence was that Detective Sergeant Hardie never intended to take the defendant before a justice; if he were identified, he intended to proceed against him by way of summons. Of course, the officer could quite properly have decided that it was appropriate to charge the defendant on the basis of a reasonable suspicion of his guilt (which, it was not contested, was present) and have him dealt with by way of police bail. In that event, there could be no suggestion, assuming that the defendant was in fact arrested, either that it was unlawful or the consequent detention was not authorised by s 356C of the Act. A suspect who is lawfully detained under Part 10A of the Act may be photographed, whether or not the suspect consents. 11 It is clear that an arresting officer may well, and should, have in mind the possible use of the powers to investigate after arrest provided by Part 10A of the Act and to the object of that Part to authorise detention for the specified period for the purpose of such investigation "despite any requirement imposed by law to bring the person before a justice": s 354(b). It is not altogether easy to reconcile s 356B with the other provisions of Part 10A, having regard to the expanded meaning of the phrase "under arrest" in s 355(2) of the Act. Paragraph (c) of that definition comprehends restraint on a person's liberty which would not necessarily be lawful under the common law, whilst paragraphs (a) and (b) are satisfied if there is no restraint of any kind at all. Thus, paragraph 355(2)(a) has the effect that, "a person who is in the company of a police officer for the purpose of participating in an investigative procedure" that person is "under arrest" for the purpose of Part 10A, even where nothing more is done and there is no actual restraint or even an intention to restrain, merely if the officer "believes that there is sufficient evidence to establish that the person has committed the offence" that is to be investigated. (I pass over the great difficulty in understanding the actual nature or extent of the belief contemplated, especially in light of the apparently lesser degree of certainty required for arrest without warrant under s 352(2)(a).) 12 It is self evident that, where a suspect is in the company of an officer, who has the relevant belief (whatever this means), for the purpose of investigation no issues of lawfulness, let alone any issue concerning arrest, arise from these facts alone. The same can be said of the circumstances set out in paragraph 355(2)(b), with some adjustment of language: in short, an intention to arrest is not the same as an arrest. Thus, by virtue of the expanded meaning of arrest, Part 10A seems to apply even to a suspect who is present in the police station entirely voluntarily and without any restraint on his or her liberty. As actual detention under Part 10A is not lawful unless there has been a lawful arrest, it is difficult to see why the phrases "under arrest" and "a person who is arrested" have been given expanded meanings that include situations where there is no arrest at all or, in respect of paragraph 355(2)(c) no lawful arrest unless there is also the relevant suspicion or occasion (where the suspect is caught red-handed) together with the intention to take the suspect before a justice. All the procedural requirements of Part 10A appear to assume, either explicitly or implicitly, that the suspect is detained in the sense that their liberty to be at large is curtailed. Indeed, in his speech of the second reading of the Crimes Amendment (Detention After Arrest) Bill 1997, the then Attorney General, the Hon J W Shaw QC, said that the function of the widened definition of arrest in cl 355(2) was intended as an important safeguard "when, even when a person in custody is not formally under arrest, that person may feel or believe that he or she is not free to leave the company of police… [and that such] a perception may arise because of something said or implied by the police, but equally it may arise when the person's belief does not arise from actions of police". Mr Shaw added, "The bill ensures that, where appropriate, a situation of that sort is treated in the same way as a situation in which the person is formally under arrest" (my emphasis). There are at least three problems with this analysis: first, it ignores the impact of s 356B(1)(a) which prohibits detention in the absence of lawful arrest (in the context, necessarily the same as formal arrest); secondly, the suspect's belief about restraint must be induced by the police and no one else; and, thirdly, the expanded meaning of arrest in the definition applies to persons whose liberty is not restrained at all 13 It should be noted that the determination of what is a reasonable time for the purpose of setting an investigation period under s 356D of the Act must take into account "the time during which the person [detained] is in the company of a police officer before and after the person is arrested": s 356E(j). This provision seems to reflect s 355(2) to a limited extent, but plainly operates in its own terms without any need to consider the expanded definition of the notion of arrest. Moreover, it only comes into play after actual detention is effected. It is strange that it should be necessary to consider, even after arrest, how long the suspect has been in the company of a police officer. 14 Having regard to the confusing provisions to which I have referred, it seems to me to have been entirely reasonable that Detective Sergeant Hardie might have felt that, even though he did not wish to and had not intended to arrest the defendant, he should deal with him under Part 10A of the Act as though he had been formally arrested and thus place him "in custody", whatever that might actually have meant in the circumstances. I think that this intention was completely consistent with his evidence (which, it seems to me, the learned Magistrate accepted) that, so far as he was concerned, the defendant was free to go at any time. 15 It was submitted that the arresting police officer must, at the time of arrest, intend to take such a suspect before a justice to be dealt with according to law, even though, in the meantime, he could be detained for the statutory period for the purpose of investigation. I do not accept this submission. It is clear that the investigation envisaged by Part 10A following arrest might have, not only the effect of confirming the suspicions of the arresting officer, but of dispelling them. If the suspicions were dispelled it is obvious that the suspect must be released. This is specifically envisaged by s 356C(4) which provides that, within the investigation period, the suspect must either be released, unconditionally or on bail, or brought before a judicial officer. In the first instance, he would not have been charged; in the second and third instances, formal charge would have been necessary. Information might well be obtained in the investigation that would make it appropriate or preferable to proceed by summons rather than charge. Again, this would justify release rather than charge and release on bail. If the suspect is charged, an authorised or proper police officer can grant bail under Part 3 of the Bail Act 1978, so that, even in that event, the arrested person is not literally taken before a justice by the arresting officer. If the possibility, even the likelihood, that enquiries can lead to this result does not make the detention unlawful, I cannot see how the detention is made unlawful because the arresting officer considered from the time of the arrest itself that, if no additional evidence is forthcoming confirming the suspicions which gave rise to the arrest, it would be right to release the suspect, even if it is intended (as here) to continue inquiries with a view to proceeding in due course by way of summons if they were productive. 16 Having regard to the objects of Part 10A as set out in s 354, the specific regime as to release or other disposition provided in s 356C(4) and the Bail Act 1978, an officer who arrests a person under s 352 must do so in circumstances provided in paragraphs 352(1) (a) and (b) and 352(2)(a) and (b) but may do so with the intention of taking the arrested person before an authorised justice or otherwise in accordance with the Bail Act 1978 (in which events, there can be no detention for the purpose of investigation and the officer must choose whichever procedure most expeditiously deals with the arrested person's liberty) or of dealing with the person under the provisions of Part 10A of the Act (in which event, the person must ultimately be dealt with in accordance with s 356C(4)). 17 In the circumstances of this case, it seems clear that Detective Sergeant Hardie initially arrested the defendant upon a reasonable suspicion of his guilt of a serious indictable offence with the intention of conducting an identification parade which, obviously, would have the result of either confirming or not confirming those suspicions. This arrest is not in issue. On the assumption that the actions of the Sergeant effected the detention of the defendant, in the sense of an arrest, when he voluntarily returned to the police station on the second occasion and that he was being detained when his photograph was taken, the intention of Detective Sergeant Hardie to proceed by summons, in the event that the defendant was eventually identified, and in the meantime to release him, did not make that detention unlawful providing the procedures required by Part 10A of the Act were followed. 18 In the circumstances of this case, when it appeared that an identification parade could not be organised, so that the defendant would not then be charged or summonsed, rather than inviting the defendant to leave, Detective Sergeant Hardie asked him to agree to be photographed. Was he still detained at this point and, if so, was his detention lawful? If the defendant was not detained, no issue arises under s 353A of the Act. If, on the other hand, the defendant was detained, s356C operated to render the detention for the purpose of taking the photograph lawful, even if the restraining officer (to use neutral language) intended to release him whilst he sought identification, providing that there remained reasonable grounds for suspecting the guilt of the defendant of a serious indictable offence and the officer intended to proceed by way, at least, of summons if he be ultimately identified by use of the photograph. If the defendant was unlawfully detained, then taking his photograph was not authorised by s 353A or s 356C. However, even if the defendant's detention was unlawful, taking the photograph was lawful, if he consented to that course. 19 I come now to the learned Magistrate's findings concerning the events of 27 January 2000. As I have mentioned, the defendant voluntarily attended at the police station. The learned Magistrate first considered whether the offender was under arrest within s 356C of the Act and referred to s 355(2), which defines the meaning of arrest for this purpose. Her Worship found that, although Detective Sergeant Hardie had reasonable cause to suspect that the defendant had committed a relevant crime, he did not believe that there was sufficient evidence to establish his guilt and, accordingly, s 355(2)(a) did not apply. I have already mentioned the difficulties in interpreting this provision. It may be accepted that the officer's belief must be greater than a suspicion of guilt, although this distinction seems to have little point. After all, restraint of the suspect is not involved. It is odd that, where a person's liberty is actually restrained by arrest, a reasonable suspicion will suffice, but where the person is merely in the company of the investigating police officer for purpose of participating in the investigation, he will be taken to be under arrest when the police officer's suspicion has hardened to the point of belief, not merely in his guilt, but that his guilt will be established. If the evidence is such that the police officer considers that it is sufficient to establish guilt, there seems little value in conducting further investigations. Must the officer have the belief that the evidence is sufficient to establish guilt beyond reasonable doubt? Or will a prima facie case be sufficient? Or is this (as one suspects) an attempt to use different language to express the same notion as a suspicion based on reasonable grounds? The evidence of Detective Sergeant Hardie that he did not have such a belief could not, in the circumstances, dispose of the issue. As to s 355(2)(b) and (c), the learned Magistrate said that there was no evidence that the defendant "was going to leave" and added, "All the police officer has to do is have reasonable grounds for believing the person will not be allowed to leave if [the] person wished to do so". Accordingly, her Worship concluded that both paragraphs 355(2)(b) and(c) were irrelevant. However, neither of the considerations adverted to by the learned Magistrate is, in any sense, raised by the paragraphs in question. Paragraph 335(2)(b) is not concerned with whether the defendant intended to leave but with the intention of the accompanying police officer in the event that he attempted to do so. The reasonable grounds to which paragraph 355(2)(c) refers are those which might induce the suspect to believe that he or she was not free to leave. I am unable to discern whether the learned Magistrate accepted Detective Sergeant Hardie's evidence that he would have allowed the defendant to depart had he wished to do so but I rather think that she did, in which event, paragraph 355(2)(b) would not have been satisfied. On the other hand, the Magistrate found that the defendant was "kept within the precincts" of the police station, for some of which time he was in the dock, and concluded that "he was clearly under arrest although those words hadn't been spoken to him" and "there was nothing indicated to say that he was free to go at any time". Her Worship does not seem to have found that the defendant was given to understand by these circumstances that he was or would be restrained. Although the learned Magistrate said that paragraphs 355(2)(a)(b) or (c) of the Act applied, this appears to have resulted from a misunderstanding of their terms at least so far as (b) and (c) are concerned. Of course, if this determination was accepted at face value, so that the defendant would not have been be detained if he attempted to leave and had not been given to understand that he would be detained if he had wished to leave, it is difficult to see how the defendant could be under arrest in any sense. The mere fact that Detective Sergeant Hardie used a protocol and even language that meant that the defendant was dealt with in accordance with the other provisions of Part 10A of the Act would not carry the matter any further. 20 The learned Magistrate found that, following the defendant's voluntary arrival at the police station, he was placed in custody for the sole purpose of obtaining identification material, firstly, by way of an identification parade, if possible, and secondly, to obtain a photograph of him. His Worship concluded that, although the defendant was not "under arrest" within the meaning of s 355(2) of the Act, he was nevertheless, whilst in the police station, under arrest and that this was demonstrated by the fact that nothing was said to him indicating that he was free to go at any time. On the assumption that the defendant was under arrest, I consider that this arrest was lawful, having regard to the uncontested (and incontrovertible) evidence that Detective Sergeant Hardie had reasonable cause for suspecting that he had committed a serious indictable offence and intended to detain him under Part 10A of the Act, during which time he attempted to organise a line up and, when this failed, interviewed him and took his photograph with the intention, after releasing the defendant, of summonsing him if the victim proved able to identify the defendant from the photograph. Although taking the defendant's photograph was lawful even without consent, it was undoubtedly "for the purpose of investigating whether the person committed the offence for which he..[was] arrested" and was warranted, in my opinion, by the authority of either s 353A or s 356C(2) of the Act or both, even if it had not been consented to. 21 The learned Magistrate considered that her conclusion that the defendant was detained for the "sole purpose" of conducting an identification parade or taking his photograph, determined the question whether his custody was unlawful. However, if the defendant was detained, its lawfulness was determined by compliance or otherwise with the provisions of Part 10A of the Act. The uncontested evidence was that, although Detective Sergeant Hardie did not believe that he had arrested the defendant, he was dealt with in accordance with Part 10A. If the defendant was arrested (as the Magistrate found) then, as Detective Sergeant Hardie intended to deal with him in accordance with Part 10A of the Act, the arrest was lawful. The "sole purpose" must necessarily have included (inter alia) the application of s 356C(4). I interpolate that Detective Sergeant Hardie was never asked what he would have done if an identity parade had been conducted at which the defendant was identified. I have assumed for present purposes that he would have still proceeded by way of summons against the defendant. I do not regard this matter as significant. 22 It follows that it is unnecessary to consider the provisions of s 138 of the Evidence Act 1995. However, as the matter was argued in full in this Court, I think it desirable that I should make some brief observations about it. 23 It is important to bear in mind that, accepting the Magistrate's finding that the detention of the defendant was unlawful, the real restraint on his liberty was relatively trivial: the defendant voluntarily attended the police station for the purpose of taking part in an identification parade; the police officer intended to conduct an identification parade and it was only when this was unsuccessful that he proposed to the defendant that his photograph should be taken; the defendant agreed to have his photograph taken, just as he had agreed to be part of the lineup, for which purpose he had come to the police station; the investigating police officer did not intend to arrest the defendant if he decided to leave, although there were adequate grounds for his so doing; there is no evidence that the defendant was conscious of any restraint on his liberty; the defendant was in the police station for only a little over an hour and was dealt with under Part 10A of the Act only because the investigating officer thought it was necessary for him to follow that protocol in order to ensure that the safeguards provided by its provisions should extend to the defendant; the application of Part 10A in the circumstances was unclear and the officer erred on the side of caution. The evidence subject to objection was (when considered with the anticipated evidence of the victim) significantly probative and important. The detention could not have been characterised as serious or grave. Nor, in my respectful view, was there a basis for concluding that Detective Sergeant Hardie had acted recklessly. In this latter respect, "reckless" within the meaning of s 138(1)(3)(e) of the Evidence Act 1995 requires a serious disregard of the relevant procedures amounting to a deliberate undertaking of the risk that the rights of a suspect will be substantially prejudiced. The learned Magistrate's finding that Detective Sergeant Hardie intended at all times to act fairly was not only correct but, in the circumstances, should have been decisive. There was no basis for a finding of recklessness, for all that the officer was possibly not as familiar as he ought to have been about the requirements of Part 10 of the Act, a matter about which there must be considerable doubt. 24 It was submitted on behalf of the defendant, however, that the evidence of photographic identification was inadmissible for other reasons and, accordingly, that leave to appeal should be denied to the plaintiff. As I have already pointed out, the photographs were shown to the victim over two years after the crime was committed. It is submitted that, even if the victim again identified the defendant and deposed that he recognised him as his assailant when shown the photographs, the evidence of that earlier identification would not be admissible since it is hearsay evidence and the prosecution would not be in a position to satisfy the requirement of s 66(2) of the Evidence Act 1995. (Unless otherwise stated, all following statutory references are to the Evidence Act 1995.) 25 In the context of the present case, the answer to this question depends upon the evidence of the victim but it seems to be accepted by both parties that it may safely be anticipated that the victim will be able, at least, to say that he did identify his assailant from amongst the photographs shown to him by Detective Sergeant Hardie and that the photograph he selected is that of the defendant. In the circumstances, there is no reason why the evidence of Detective Sergeant Hardie as to the victim's identification cannot be given conditionally upon the necessary link being established. Absent the evidence of the victim confirming his act of identification of his assailant, Detective Sergeant Hardie's evidence could not be admitted for the purpose of identifying the defendant as that assailant. This is clear not only from s 59 itself, but also from R v Barbaro & Rovere (2000) 112 A Crim R 551. However, upon the assumption that the victim will himself testify to the circumstances of his act of identification, that would amount to original evidence of his own state of mind and the evidence would merely be an expression of it. So much was explicitly stated in Barbaro & Rovere by Grove J (112 A Crim R at 559), with whom the other members of the Court agreed. 26 The purport of the passage to which I have brought attention was considered by Hidden J in R v Taousanis [2001] NSWSC 74. In that case, the prosecution proposed to call a Mr Matri to give evidence that, in April 1991, he sold a boat to a man who, as it happened, was an associate of the accused who had arranged with him to buy the boat for the purpose of disposing of the deceased's body. It was anticipated that the witness would say that, about three months after the sale, he identified the purchaser from a series of photographs shown to him by the police although, as at the time of trial, the witness had no independent recollection of the appearance of the purchaser or of the photograph he selected, which he signed on the back. The prosecution proposed to establish the identity of the person depicted in the photograph by other evidence. Hidden J considered that the effect of the reasoning in Barbaro & Rovere is that evidence of an act of identification made prior to trial is hearsay evidence within the meaning of the Evidence Act 1995 and is admissible only if it fulfils the requirements of s 66 and that this reasoning appeared to apply to evidence of the act of identification by the identifying witness himself as much as evidence of a person present at the time who observed the act of identification. It followed, according to his Honour, that evidence of an act of identification, by whomever it is given, is admissible only if the identification took place when the original observation was fresh in the witness's memory, applying Graham v The Queen (1998) 195 CLR 606. His Honour, therefore, rejected the evidence upon the ground that, at the time of identification, the witness's memory of the purchaser could not be described as "fresh" within the meaning of s 66. 27 With unfeigned respect, I consider that Hidden J was in error. First, it is clear from the passage which I have set out from Barbaro & Rovere, that the Court drew a distinction between the cases where, on the one hand, the identifying witness either is not called or qualifies or denies his or her identification and, on the other hand, where that witness is able to say that the person previously identified in the photograph was the person who had earlier been encountered. Hidden J thought that this passage was of uncertain import but (with the greatest respect) I consider that its meaning is clear. Furthermore, if I may say so without impertinence, the distinction made by Grove J is both valid and reasonable. It may be helpful to be precise about the questions actually to be asked of the identifying witness. Assume that the witness is first asked whether he identified (shall we say) his assailant from photographs shown to him (shall we say) two years after the event. When he answers in the affirmative, assume that he is asked what he intended to do at the time of that identification. His answer is that he intended to identify his assailant. He is then asked whether he was able at that time to recollect his assailant's appearance. He answers in the affirmative. He is asked whether he was able to recognise his assailant from amongst the photographs shown to him. He says that he was able to do so. He says that he marked or otherwise identified the photograph which he selected. He is shown the photograph and affirms that it is, indeed, the photograph he marked. The witness, in this sequence of evidence, is testifying to the state of his recollection on a prior occasion. It is not evidence of a prior representation. It is direct evidence of an event of recollection. In order to record that recollection he made a mark. His evidence as to the significance of that mark is direct evidence of what he intended to do when he made it. In so far as the mark is a representation, the fact of what it was intended to convey was, if hearsay, clearly fresh in the memory of the witness at the time that he made it, that is to say, it recorded an occasion of recollection occurring very shortly before. It seems to me, therefore, that, where evidence of an identifying witness is given along the lines described, at no point, with the possible exception of the refreshment of memory arising from the mark on the back of the relevant photograph, is there a material previous representation within the meaning of s 59. Accordingly, s 66 does not need to be considered except, possibly, with regard to the mark on the photograph which, because it is obviously made when the occasion of recollection is fresh, is easily satisfied. Where evidence of this kind is given, it is, of course, often unnecessary for the accompanying police officer to give evidence of the occasion of identification. Where the officer does give this evidence, it seems to me, again, that it is not hearsay but, rather, direct evidence of an occasion of identification otherwise the subject of direct evidence by the identifying witness and tendered simply to confirm the latter's account of events. The evidence of the officer is, therefore, direct evidence of those circumstances and the fact of identification. It is not tendered to prove, in the circumstances that I have described, the truth of the assertion by the identifying witness that the person whose photograph was selected was indeed the assailant. It seems to me that this analysis is not affected by evidence from the identifying witness that he or she would no longer recognise the assailant or no longer recognise the photograph which had been previously selected. The event of which the mark is intended to refresh the witness's memory is the event of the act of identification which occurred shortly before, not the event of the initial encounter. 28 There being a number of errors of law affecting the decision of the learned Magistrate to reject the evidence of identification, the question which arises is whether there was an interlocutory order within s 102(4) of the Justices Act 1912> It was submitted on behalf of the Director of Public Prosecutions that the effect of excluding the evidence of identification "will lead to the failure of the proceedings, there being insufficient additional evidence to establish the prosecution case". This submission was not really disputed by counsel for the defendant, although he brought to my attention the submission, made by the prosecutor in the context of s 138 of the Evidence Act 1997, to the effect that the photographic identification was "one of the main ways the prosecution can establish the identity of the perpetrator". Counsel for the defendant argued, accordingly, that the ruling of the magistrate was not an "interlocutory order" capable of appeal. 29 It should, perhaps, be noted, that dismissal of an information after a full and fair trial on the admissible evidence should not ordinarily be regarded as a failure of the proceedings. To the contrary, if the verdict is appropriate, the proceedings have served their purpose. Nor, for that matter, is such a verdict a failure of the prosecution, the function of which is simply to present the material evidence; it has no interest in the outcome. 30 In Steffan [1993] 67 A Crim R 506, the Court said (at 512) - "Accordingly, in our opinion, a ruling on evidence made in advance of or in the course of the trial, in either the Supreme Court or the District Court, is not an interlocutory judgment or order within the meaning of s.5F of the Criminal Appeal Act. Even if we were wrong in that conclusion, the fact that the ruling can always be altered means that the circumstances would have to be unusual for leave to appeal to be granted prior to conviction. No such circumstances exist in this case. It was those reasons which led us to decide that leave to appeal against the ruling on evidence should be refused." 31 This is not a case such as Bozatsis & Spanakakis (1997) 97 A Crim R 296 where, as Gleeson CJ put it (at 304) the judge below "was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged...[and] was, in substance, refusing to permit the Crown to seek to make a case against the appellants". A decision of this kind is a judgment or order and not merely a ruling as to evidence. Again, in R v Lisoff (unreported, NSWCCA 23 November 1999), where the Court upheld an appeal under s 5F of the Criminal Appeal Act 1912 in respect of proceedings in the District Court, Sully J (with whom the other members of the Court agreed) said, "The substance of the order made by his Honour in the circumstances of the present case was the rejection of the entire Crown case". In Regina v Haddad & Treglia [2000] NSWCCA 351, the Crown appeal was allowed where the defendants conceded that the effect of the evidentiary ruling by the trial judge was that there must have been an acquittal by direction. On the other hand, in R v Pera [2000] NSWCCA 109 the Court held that, as it could not "be said that, although the identification evidence [rejected by the trial judge] would no doubt be valuable evidence to the Crown, the Crown has no case in substance without it…[t]he character of the question determined is no more than a discrete ruling on evidence made before trial by a judge of the District Court", and thus it did not have jurisdiction to hear the Crown's appeal. 32 In Lisoff (supra) Sully J also made the point that, where the Crown appeals, some flexibility is appropriate in interpreting the scope of what constituted an order or judgment, which are terms of some uncertainty in any event, having regard to the impossibility of a Crown appeal from a verdict of acquittal. I do not understand his Honour to be suggesting that an evidentiary ruling will be an order or judgment when adverse to the prosecution but not when adverse to the defence; rather, the crucial issue will be the effect of the ruling on the proceedings. An important point of distinction between this case and those where the Crown seeks to use the jurisdiction conferred on the Court of Criminal Appeal by s 5F of the Criminal Appeal Act 1912 is that, under s 112(2) of the Justices Act 1902, an informant may appeal on a question of law to this Court against the dismissal of an information by a magistrate in summary proceedings. Accordingly, there seems to me to be no room for a generous interpretation of what might be said to constitute an interlocutory order for the purpose of an application by an informant for leave to appeal from the Local Court. 33 The applicant has not submitted in this Court, let alone sought to demonstrate, that the evidentiary ruling of the learned Magistrate has had the effect that the defendant has no case to answer. Accordingly, I am of the view that there is no interlocutory order in issue to which the provisions of s 104(4) of the Justices Act 1902 apply. In the circumstances, although I am satisfied that that the learned Magistrate has erred in law in excluding the evidence of identification, the summons must be dismissed. In the event that the defendant is acquitted the informant will have his remedy under s 102(2) of the Justices Act 1902. 34 The problems of interpretation of Part 10A of the Crimes Act 1900 to which I have adverted (and there are others to which it was not necessary to refer) suggest that there should be a review of the Part in order to ensure both that police officers, who have the difficult task of applying it, and citizens who come to be dealt with under it should know with clarity what obligations it imposes and what rights it provides. The liberty of the subject and the requirements of investigation of crime are too important for there to be any confusion. I have taken the somewhat unusual course of dealing with the all the legal issues presented in argument by the parties, despite my conclusion that, ultimately, the summons should be dismissed, in an attempt to help with the clarification process. ************

DIRECTOR OF PUBLIC PROSECUTIONS v NICHOLLS

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Judgment (8 paragraphs)

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Cases Cited (6)

Cited By (6)