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Supreme Court 29 July 2011

Director of Public Prosecutions (NSW) v Walford

[2011] NSWSC 759

Public order & justice offences
CRIMINAL LAW EVIDENCE VISUAL IDENTIFICATION EVIDENCE COMPLAINANT KNEW DEFENDANT S 114 EVIDENCE ACT WHETHER "IDENTIFICATION" INCLUDES OUT

Citation: Director of Public Prosecutions (NSW) v Walford [2011] NSWSC 759
Court: Supreme Court of New South Wales
Date: 29 July 2011
Judge: Davies J

Background

The respondent was charged with knowingly contravening a prohibition in an apprehended violence order (AVO). The protected person under that AVO (the complainant) reported to police on 25 March 2010 that she had seen the respondent near her residential apartment block, in breach of a condition requiring him to stay at least 100 metres away. She had first encountered the respondent on 10 December 2009, when he allegedly assaulted her, and had since seen him on multiple occasions in her neighbourhood.

At the defended hearing in the Dubbo Local Court, the complainant gave evidence identifying the person she had seen. The magistrate conducted a voir dire and ultimately excluded the identification evidence on the basis that no identification parade had been held and the prosecution had not established it was reasonable to proceed without one.

The DPP appealed to the Supreme Court, contending that the magistrate had misapplied section 114(2) of the Evidence Act 1995.

  • What constitutes an "identification" for the purposes of section 114(2) of the Evidence Act 1995: does it refer only to an in-court identification, or does it also encompass an out-of-court identification made at or about the time of the offence?
  • Whether, on the facts, it was reasonable not to have held an identification parade before the identification was made.
  • Whether the magistrate applied the correct principle in requiring the prosecution to exclude the possibility of mistaken identification at the admissibility stage.

Decision

Davies J held that the magistrate had misconstrued section 114(2) in two significant respects. First, the magistrate focused on the complainant's in-court identification as the relevant "identification" for the provision's purposes. Davies J found that the correct identification was the out-of-court identification the complainant made when she reported the matter to police on 25 March 2010, at or about the time of the alleged offence. Section 114(2) is not confined to in-court identifications.

Second, once the relevant identification was correctly characterised as the report made to police on 25 March 2010, it followed that it was not reasonable to have held an identification parade beforehand. The complainant identified the respondent at or about the time of the offence, making a prior parade practically impossible. On either basis, the section 114(2) exception for cases where it was not reasonable to hold a parade was satisfied.

Davies J also found that the magistrate had applied the wrong legal test when requiring the prosecution to exclude the possibility of mistaken identification. That question goes to the weight of the evidence, not its admissibility. Once the section 114(2) threshold was satisfied, the evidence should have been admitted, leaving the respondent free to challenge the reliability of the identification at the substantive hearing.

Orders Made

  • Appeal allowed.
  • The order of Magistrate Eckhold made 25 January 2011 at Dubbo Local Court, dismissing the proceedings against the respondent for the offence of knowingly contravening a prohibition in an apprehended violence order, was set aside.
  • The matter was remitted to the Local Court to be dealt with according to law.

Key Takeaways

  • Under section 114(2) of the Evidence Act 1995, the "identification" that triggers the identification parade requirement is not limited to in-court identifications. An out-of-court identification made at or about the time of the alleged offence is the relevant identification for the purposes of that provision.
  • Where a complainant identifies a person to police at or about the time of the offence, it will generally be impossible, and therefore not reasonable, to hold an identification parade beforehand, satisfying the exception in section 114(2).
  • The question of whether an identification is correct goes to the weight of the evidence, not its admissibility under section 114(2). A magistrate errs in law by requiring the prosecution to exclude the possibility of mistaken identification before the evidence is admitted.
  • The Supreme Court confirmed that admitting identification evidence does not foreclose the defendant from challenging the reliability of that identification at the substantive hearing. Weight and admissibility are distinct inquiries.
  • Davies J's construction of "identification" draws support from prior authority, including R v Trudgett (2007) 70 NSWLR 696, confirming that the section 114 regime applies to the act of identification itself, which may occur well before any court proceeding.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 114
- Interpretation Act 1987 (NSW)

Cases:
- R v Trudgett (2007) 70 NSWLR 696
- DPP v Donald [1999] NSWSC 949
- R v Tahere [1999] NSWCCA 170
- R v Benjamin John Taylor [2008] ACTSC 52
- R v D [2008] ACTSC 82
- R v Thomason [1999] ACTSC 112
- R v David Taufua (unreported, NSWCCA, 11 November 1996)
- Regina v Fredrick Valdez Ford (unreported, Supreme Court, Barr J, 22 April 1998)