Director of Public Prosecutions (NSW) v Walford [2011] NSWSC 759 | Case summary

The reasonableness of not holding a parade 23The first question, therefore, is when any identification of the Defendant was made. The evidence of the Complainant was that she had asserted that the person who approached the block of flats was the Defendant. In my view such an assertion amounted to an identification by the Complainant of the Defendant. That is consistent with the definition of identification evidence . The assertion was made to the police on 25 March 2010. The assertion having been made at that time (at or about the time of the commission of the offence) it is inescapable that it would not have been reasonable to have held an identification parade. 24Secondly, contrary to the Defendant's submissions, a literal reading of the words before the identification was made is supported by the remainder of the section. That the "identification" is not referring simply to the identification given in evidence at the hearing finds support in sub-s (3)(c)(ii) which expressly envisages that the identification can be made out of court and at about the time of the commission of the offence. The inclusion of that matter as a consideration in the determination of the reasonableness of the holding of an identification parade supports the overall purpose of the section. This shows that the reference to identification being made in sub-s (2) is not a reference only to identification in court. 25Thirdly, a number of cases supports the construction of the section put forward by the DPP. In DPP v Donald [1999] NSWSC 949 the Complainant was robbed by 3 young women on or about 12 November 1998. On 28 November 1998 the complainant was driving her car when she saw 2 of the women and recognised them as 2 of those who had robbed her. She reported the matter to the police and they were arrested. Her evidence as to identification of the 2 women was held by the Magistrate to be inadmissible because there had been no identification parade. 26On appeal, Bell J said: [7] The identification, upon which the prosecution relied, was the act of identification prior to the arrest of the two defendants. It was not possible for the police to have held an identification parade prior to that time. [8] Section 114(2) provides that visual identification evidence adduced by the prosecutor is not admissible unless: [9] (a) An identification parade including the defendant was held before the identification was made or (b) it would not have been reasonable to have held such a parade or (c) that the defendant refused to take part in such a parade, and the identification was made without the person who made it having been intentionally influenced to identify the defendant. [10] Under s 114(2)(a) and subject to sub-paras (b) and (c), evidence of identification will not be admissible unless an identification parade was held "before the identification was made". The identification upon which the prosecution relied was made when Mrs Flinders first saw the defendants on 28 November. Having regard to this circumstance it is an irresistible conclusion that s 114(2)(b) applied and the evidence of Ms Flinders as to visual identification was not rendered inadmissible for the want of an identification parade. 27But Bell J went further because she then said: [11] I consider there is considerable force in the submissions advanced by Mr Berman, who appears on behalf of the informant, that had the police arranged an identification parade following the arrest of the two defendants any identification made at that parade by Ms Flinders might be said to have been contaminated by her earlier identification of the two women: Alexander v Queen (1981) 145 CLR 359 at 409; R v Carusi (1997) 192 A Crim R 52 at 55; and R v Clarke (1998) 97 A Crim R 414. 28In R v Thomason [1999] ACTSC 112 a security officer at a hotel saw a man strike another customer in the face with a glass. After calling for an ambulance, the security officer saw the man again and identified him to another person as the man who had attacked the customer. The prosecution proposed to call the witness to give evidence of his identification of the accused as the attacker but the defence argued that the evidence should be excluded under s 114 because no identification parade had been held. 29Miles CJ said this: [8] I ruled initially that the evidence proposed to be called was visual identification evidence within s114 and that it was inadmissible because no identification parade had been held as required by s114(2)(a). The ruling was not accompanied by a statement of reasons, but my reasons would have emerged during discussion with counsel during submissions. The submissions of counsel concentrated on the question whether the evidence proposed to be called was visual identification evidence within the meaning of the section, and my attention was not drawn to s114(2)(b). [9] Overnight I became aware of the provisions of s114(2)(b). Without the assistance of further submissions, I formed the provisional view that it would not have been reasonable to have held an identification parade before the identification of the person in question by John Daniel to the other member of the hotel staff, since the identification took place only a few minutes, at the most, after the attack on the customer and before police arrived. I therefore concluded that I was in error in ruling the evidence inadmissible under s114. However, I formed the further provisional view that to give leave for the evidence to be called on the second day of the trial would have been to give it unfair emphasis and that accordingly its prejudicial effect against the accused outweighed its probative value, and thus, although admissible, it should not be admitted into the trial. 30In R v D [2008] ACTSC 82 the Complainant was assaulted in December 2006 near some shops. He immediately went to his workplace at the shops and told workmates that he had been assaulted by the Defendant. The next day he reported the assault to the police and again named the Defendant as one of his assailants. The Complainant knew the Defendant because they had attended the same primary school for some years. It was sought to exclude the evidence of identification of the Defendant. 31During the course of the trial counsel for the Defence objected to identification evidence by the Complainant on the basis that s 114 applied to exclude it. Penfold J refused the application to exclude the evidence and subsequently provided her reasons. She first determined that the words "such a parade" in s 114(2)(b) were a reference back to the parade described in para (a). She then said this: [12] My next step was to interpret "the identification" as used in para (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 para (a) of the definition of "identification evidence" in the Dictionary to the Evidence Act). [13] 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 s 114(2) in this case turned entirely on whether par 114(2)(b) was satisfied. [14] The report to the complainant's workmates, and then the formal complaint to the police the next day, both included a naming of D as the assailant. I considered this to be an identification for the purpose of para 114(2)(a). On that basis, it would not have been possible for an identification parade that included D to have been held before the identification was made. Having concluded that such a parade would have been impossible to hold, I found that it would, in the words of para 114(2)(b), not have been reasonable to have held it. Therefore, the test in para 114(2)(b) was satisfied and evidence of that identification was not inadmissible under s 114. 32The Defendant relied on a decision of Rares J when his Honour sat as a Judge of the Supreme Court of the ACT in R v Benjamin John Taylor [2008] ACTSC 52. In that case the Crown sought to lead identification evidence from 2 witnesses who had known the Accused for a period prior to the occasion of the alleged offence. They gave evidence on the voir dire that on the day of the offence they saw the Accused driving a vehicle away from the Complainant's property. 33Rares J in para [14] identified the issue as: Whether the evidence proposed to be given is evidence of an identification which was made before any identification parade could have been held within the meaning of s 114(2) of the Evidence Act . He referred to the 2 bases upon which the Crown sought to make the evidence admissible. The first and only relevant basis for present purposes was that the statements that had been made by the witnesses prior to the trial were the "identification" to which the definition in s 114(1) applied and thus the "identification" referred to in s 114(2)(a). 34His Honour went on to say: [22] In s 114(1) the further definition of "visual identification evidence" captures what already exists as "identification evidence", and refines it to a particular kind of identification evidence, namely, that "relating to an identification based wholly or partly on what a person saw ..." (my emphasis). The words "relating to" are words of wide import: cf Fountain v Alexander (1982) 150 CLR 615 at 629 per Mason J. The question is what does "an identification" in that definition mean? The Crown argued it means simply the act of identification at the original time it occurred and not the assertion referred to as part of the definition of identification evidence. [23] I am of opinion that the natural and ordinary meaning of the word "identification" when used in the definition in s 114(1) must be the particular identification in the identification evidence, that is, the assertion of the witness that the accused is the person connected to the crime the subject of the dictionary definition. [24] In Clifford v R [2004] TASSC 16 at [26] Crawford J, with whom Underwood and Slicer JJ agreed, referred to the decision of the New South Wales Court of Criminal Appeal in R v Smith [2000] NSWCCA 468 at [83]-[89] and cited what was said by Wood CJ at CL with whom the other members of the Court of Criminal Appeal agreed. The Chief Judge said in Smith [2000] NSWCCA 468 at [83]: Viewed literally, every criminal trial involves identification evidence within the wide meaning given to that phrase in the dictionary to the Evidence Act . The evidence of any eye witness who gives evidence, based upon his or her own observations, that the accused was present at the place where the offence charged occurred, falls literally within that definition. Yet common sense would suggest, in such a case, where such evidence was not in issue, that there would [be] little if any point served in giving the s 116(1) direction." (emphasis added) [25] Here, of course, such evidence is in issue. I am of opinion that the words "an identification" as used in s 114(1) apply to the identification, the subject of the identification evidence; that is the in court assertion that the accused was the person relevantly at the crime scene at the relevant time. Likewise, I am of opinion that when s 114(2)(a) refers to the requirement that an identification parade, including the defendant, be held "before the identification was made", it is referring to such a parade occurring prior to the giving of the identification evidence as defined in the dictionary to the Act. It is common ground that no identification parade was ever held or, as far as the evidence reveals, contemplated in respect of Daniel or Jesse Robinson (or indeed Mr Isaac Nash-Basnet who the Crown said in the course of argument today will not be asked about this in-chief). [26] The Crown suggested that it would have been unreasonable to have held such a parade for two reasons. First, the Crown said that the contemporaneous identification made by each of the witnesses precluded any utility in, or practical ability to hold, an identification parade prior to the police ever knowing about the circumstances of the offence which the two witnesses were alleged to be observing. [27] I reject that argument on the basis of the construction I have given to s 114(2)(a). That permits the identification parade to be held at any time prior to the witness entering the witness box. Such a view appears to be consistent with other decisions, although those are given in different contexts: see eg. R v David Taufua (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 11 November 1996 per Barr J, with whom Priestley AP and James J agreed, BC 9605430). 35With great respect to Rares J I neither agree with his conclusion that the words "an identification" is a reference to the in-court assertion by the witness where there has been an earlier out-of-court identification, nor to the support he says that R v David Taufua ( supra ) provides for the view to which he came. As Penfold J pointed out in R v D at [28]-[29], Barr J in Taufua distinguished between in-court identification and other identification, and noted also that on the facts of that case the witness had not given any visual identification before his in-court identification. A similar distinction can be inferred from R v Tahere [1999] NSWCCA 170 at [27]. 36In my opinion the scheme of the section is understood by looking to when the "identification" is first made by the witness. In that regard the "identification" is to be contrasted with the "identification evidence". If the witness has made an out-of-court identification it is at that time at which the reasonableness of holding the identification parade is to be considered. If the identification is made at or about the time of the commission of the offence the Court will have to consider whether it was not reasonable to have held a parade. If the identification was made at the time of the commission of the offence (e.g. a witness telephoning the police and identifying the person), it will clearly not have been reasonable to hold a parade because it will not have been practicable to do so. The words "or about the time of the commission of the offence" are sufficiently elastic that they may embrace more than minutes or even hours, and in some cases a few days where the investigation is lengthy. In such cases it will not have been impossible to hold such a parade and the matters in sub-s (3)(c)(ii) will need to be considered in determining whether it was not reasonable to hold one. 37If the identification, however, occurs for the first time in Court the provisions of s 114(2) will be clearly engaged as in Taufua . Indeed, it was against the giving of that sort of evidence for the first time in Court that the provision was enacted. In that regard, I respectfully agree with the whole of Penfold J's careful analysis of Taylor and Taufua and of her statutory interpretation and policy considerations at [20]-[58] in her judgment in R v D . 38The Defendant submits that, if the relevant visual identification evidence is evidence of a witness that it was a particular person who assaulted the complainant (which the Defendant called "recognition evidence" following R v Trudgett (2007) 70 NSWLR 696), then in no such case would the words concerning the relationship in sub-s (3)(d) have work to do. This appears to be because it would be impossible to hold a parade before that identification was made, and so one would never reach the stage of having to consider the relationship issue in sub-s (3). 39I do not agree. In coming to the view about whether it would not have been reasonable to have held such a parade the relationship between the parties would still have to be considered. That would involve a consideration of when, how well, and in what circumstances the witness knew the person said to be the Defendant. That would have to be determined before it could be ascertained that there had been an "identification" by the witness. I accept that in cases where there has been an "identification" in an out-of-court statement one would no longer consider the relationship issue. 40But in any event, even if those words have no work to do in the sort of case described, there are other cases where there would be a need to consider the relationship to determine if it was reasonable not to have held the parade. As in Taufua the witness may give evidence that a person's appearance was like the Defendant's, or that he thought he recognised the person. In such a case there may not have been identification by the witness but the issue of the relationship between the witness and the Defendant would be part of the consideration of the reasonableness or not of holding the identification parade: Taufua at p.11 ("despite a degree of familiarity ..."). See also Regina v Fredrick Valdez Ford (unreported - Sup Ct NSW, Barr J - 22 April 1998). 41The Defendant submits that I should take into account what the Australian Law Reform Commission said in its final Report which led to the Evidence Act at para [187] as follows: [187] Recommendation. Consideration has been given to providing more guidance as to what may or may not be 'reasonable'. For example, if the eyewitness saw someone he or she knew committing the crime, there would be little point in holding a parade. It is not possible, however, to draft an exception on this basis because of the range of knowledge or acquaintance that may be involved in particular cases. Similar problems arise in drafting an exception where the defendant refuses to co-operate. The proposals have been amended, however, to make it clear that, in deciding the reasonableness question, the appropriateness of holding a parade is a separate consideration and it is relevant to consider whether the suspects refused to co-operate, whether the identification was made at or about the time of the offence and the relationship between the defendant and the identifier. Subject to these changes it is recommended that the interim proposals be implemented. 42The Defendant submits that s 3(3) Evidence Act permits the use of this material. The sub-section is, however, subject to s 34 Interpretation Act 1987 which applies "if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision". I do not consider that such a situation obtains in the present case. There does not seem to me to be ambiguity in s 114 nor any particular difficulty in construing it. 43The Defendant draws particular attention to what is said in para 187 of the ALRC report that it is not possible to draft an exception on the basis that an eyewitness saw someone whom he or she knew committing the offence. However, as is made clear later in the paragraph, when the reasonableness of holding the parade is considered the relationship between the defendant and the identifier (if any) becomes relevant. Accordingly, even if resort was to be had to para 187 of the ALRC Report, it does not appear to me to provide any support for the Defendant's principal contention that the identification with which s 114 is concerned is only identification in-court on the basis that in recognition cases there is no work for sub-s (3)(d) to do. 44In the present case Senior Constable Robinson gave evidence that the Complainant had identified the Defendant to him when he went to get a statement by saying his name. The Complainant had given evidence that she had seen the Defendant between the date of the assault and the time when he approached her house and she rang the police. She also gave evidence that it was the Defendant out the front of her house taking his shirt off to egg people on. In all of those circumstances the Complainant had identified the Defendant, and that identification (i.e. an assertion by her to the effect that the Defendant was present at the place where the offence for which the Defendant was being prosecuted was committed) took place at or about the time of the commission of the offence. 45The Magistrate appears to have proceeded on the basis that the identification referred to in s 114(2)(a) was the identification made by the Complainant in Court when she said that the person that she saw near her house was Aaran Crawford. Nowhere does he say that her report to the police on 25 March 2010 was the relevant identification although he said he had evidence of the "original identification" by the Complainant. The Magistrate should have so concluded. 46After determining that the Complainant had made the identification on 25 March 2010 the learned Magistrate ought to have concluded that it was not reasonable to hold an identification parade because the Complainant had identified the Defendant and had done so at or about the time of the commission of the offence. Alternatively, and because of the latter matter, he ought to have held that it was impossible to have held an identification parade before the identification with the result that it was reasonable not to have done so. 47The Magistrate also held that the prosecution had failed to exclude the possibility that the Complainant had incorrectly identified the person she saw as being the Defendant. That was the wrong principle to apply. Whether or not she had correctly identified him was a matter for consideration after the question of the admissibility dictated by s 114(2) was determined. 48The Defendant was free, after the evidence had been admitted, to challenge the Complainant's identification of the Defendant. Although there had been an identification of the Defendant by the Complainant it would be open to the Defendant to assert that her identification was mistaken. The Magistrate would at that point need to have regard to the weight of the Complainant's evidence of identification to consider whether it should be accepted. That was, however, a different and later consideration from the issue of its admissibility.

Director of Public Prosecutions (NSW) v Walford

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