AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
9
Court of Criminal Appeal 25 March 2008

Trudgett v R

[2008] NSWCCA 62

Also reported as (2008) 70 NSWLR 696
Sexual offences
CRIMINAL LAW EVIDENCE LAW IDENTIFICATION AND RECOGNITION EVIDENCE WHETHER DIRECTION TO JURY REQUIRED EVIDENCE ACT 1995, S 116 WORDS & PHRASES

Citation: Trudgett v R [2008] NSWCCA 62
Court: New South Wales Court of Criminal Appeal
Date: 25 March 2008
Judge(s): Spigelman CJ; Hulme J; Latham J

Background

The appellant was convicted by jury of sexual intercourse without consent following a trial in the District Court. The complainant attended a party at the appellant's home, where a mutual friend introduced him to her under the false name "Adam." The complainant and the appellant entered the house together, and she later emerged distressed and reported to police that she had been sexually assaulted.

At trial, it was not disputed that a sexual assault had occurred. The sole issue was whether the appellant was the perpetrator. The complainant was never asked to identify her attacker through a photographic array, an identification parade, or in-court identification. Instead, the Crown relied on witnesses who knew the appellant personally and who gave evidence that he was the one who entered and left the house with the complainant around the relevant time.

The trial judge gave no warning to the jury about the dangers of identification evidence under s 116 of the Evidence Act 1995. The appellant appealed, arguing that the witnesses' evidence constituted "identification evidence" as defined in the Act and that the absence of a s 116 direction was a miscarriage of justice.

  • Whether the witnesses' evidence that the appellant was at the party, was introduced to the complainant as "Adam," and entered and left the house with her constituted "identification evidence" within the meaning of the Dictionary to the Evidence Act 1995.
  • Whether the trial judge was therefore obliged to give a jury warning under s 116 of the Act about the special need for caution before accepting that evidence.
  • Whether, if s 116 was engaged, the absence of such a direction caused a miscarriage of justice.

Decision

Spigelman CJ (with Hulme and Latham JJ agreeing) held that the definition of "identification evidence" in the Dictionary to the Evidence Act 1995 is broad enough to extend to recognition evidence. This confirmed that the provision is not limited to cases where a stranger identifies an unknown person; it also applies where a witness recognises someone already known to them.

However, the court held that none of the evidence adduced at trial actually met that definition. The complainant gave no identification evidence at all, having never been asked to identify her attacker. The evidence of the introduction by name was not identification evidence because it was not an assertion that the appellant resembled a person present at the scene; it was simply evidence that the appellant was present.

On the evidence about the appellant's movements, the court drew on the High Court's reasoning in Dhanhoa v The Queen (2003) 217 CLR 1. The Dictionary definition is concerned with direct evidence of an accused's presence at or near the scene, not indirect evidence about their movements. Furthermore, because the appellant's presence at the house "at or about" the time of the offence was not in dispute, s 116 was not engaged with respect to that evidence either.

The court found the present case analogous to Dhanhoa, where the contested question was not whether the accused had been present but whether he had already left before the offence occurred. In both cases, the nature of the evidence did not bring it within the scope of the identification warning obligation. The appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the definition of "identification evidence" in the Dictionary to the Evidence Act 1995 is wide enough to encompass recognition evidence, not only stranger-identification evidence.
  • The s 116 direction obligation is not triggered merely because identity is in dispute at trial. The evidence itself must satisfy the Dictionary definition, meaning it must be an assertion that the accused was, or resembles, a person present at or near the scene of the offence.
  • Evidence of a social introduction by name does not constitute "identification evidence" for the purposes of the Act. It is not an assertion of resemblance to a person seen at the crime scene.
  • Under the reasoning in Dhanhoa v The Queen, evidence about an accused's movements in and around the relevant location is not identification evidence where the accused's presence "at or about" the time of the offence is not itself in issue. The s 116 obligation does not extend to resolving granular questions of timing or precise location within an already-established presence.
  • In dismissing the appeal, the court drew a clear distinction between the reliability of an identification (which s 116 is designed to address) and the reliability of an account of the identified person's conduct, which engages different evidential considerations.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), Dictionary (definition of "identification evidence"); ss 114, 115, 116
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Rules 1952

Cases
- Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
- Domican v The Queen (1992) 173 CLR 555
- Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
- Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
- Davies and Cody v The King (1937) 57 CLR 170
- R v Turnbull [1977] QB 224
- Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
- R v Spero [2006] VSCA 58; (2006) 13 VR 225
- R v Clarke (1997) 97 A Crim R 414
- R v Demiroz [2003] NSWCCA 146