R v Kaine Dargan

Citation: R v Kaine Dargan [2015] NSWDC 121
Court: District Court of New South Wales
Date: 17 June 2015
Judge(s): Acting Judge Phegan

Background

The accused faced five counts on an indictment arising from an alleged home invasion on the evening of 29 December 2013, including entering a dwelling with intent to commit larceny, robbery in company, reckless damage to property, and two counts of assault occasioning actual bodily harm. A co-accused had already pleaded guilty and been removed from the proceedings before trial commenced.

Two days after the alleged offences, the complainant and occupier of the premises attended Liverpool Police Station and was shown a photo array of twelve men. She identified the accused's photograph as depicting the person who had committed the offences against her.

At the start of the second day of trial, the Crown Advocate disclosed to the court, in the jury's absence, that he had inadvertently misled the jury in his opening address. He had told the jury the photograph of the accused in the array was taken following his arrest the day after the alleged offences. In fact, it had been taken eleven months earlier, when the accused was in custody on an unrelated matter.

Legal Issues

• Whether the identification evidence from the photo array was admissible under section 115 of the Evidence Act 1995, specifically whether the Crown could satisfy the exception in section 115(4)(b) by proving it was not reasonably practicable to take an appropriate photograph of the accused after he was taken into custody.
• Whether, if the evidence was inadmissible, any judicial direction to the jury could cure the problem created by the evidence already having been placed before them.

Decision

The section 115(4)(b) question: Was it not reasonably practicable to photograph the accused after arrest?

The court identified that section 115(3) of the Evidence Act applied because the photograph used in the array was not taken after the accused was taken into custody. The burden therefore fell on the Crown under section 115(4)(b) to prove it was not reasonably practicable to take an appropriate photograph after arrest (at [11]).

Police evidence established that the charge room at Liverpool Police Station had a fixed ceiling-mounted camera and dedicated spotlights, and that this equipment could only be used after a suspect was formally charged. Because the photo array was conducted before the accused was charged, that equipment was unavailable (at [14]). Detective Attard had decided against using a handheld camera in another location because she was concerned the resulting photograph would not sufficiently match the other eleven array photographs, risking unfair prejudice to the accused (at [15]).

To test this reasoning, Detective Attard took photographs of a uniformed officer using a handheld camera in both the forensic procedure room and the charge room at Liverpool Police Station. The forensic procedure room was ruled out because its patterned background differed markedly from the uniform backgrounds in the array photographs (at [17]-[18]). However, the photograph taken with a handheld camera inside the charge room, when compared against the existing array photographs, revealed that differences in background darkness, colour tone, clarity, and camera angle fell within the range of variation already present among the twelve array photographs (at [22]-[24]).

The court was satisfied, applying the objective test under section 115(4)(b), that it had been reasonably practicable to photograph the accused with a handheld camera in the charge room before charging, and that such a photograph could have been used in the array without unfairly prejudicing the accused. Accordingly, the Crown had not discharged its burden, and the identification evidence was ruled inadmissible (at [29]-[30]).

Consequence: Discharge of the jury

Because the inadmissible identification evidence had already been placed before the jury during Ms Bozicevic's testimony, the court found no direction could adequately remedy the situation. The jury was discharged, with both parties accepting that course as appropriate (at [30]).

Orders Made

• The identification evidence given by Ms Bozicevic through the photo array was ruled inadmissible.
• The jury was discharged.

Key Takeaways

• Under section 115(4)(b) of the Evidence Act 1995, the Crown bears the onus of proving it was not reasonably practicable to photograph an accused after being taken into custody; if that onus is not discharged, a photograph taken at an earlier time will not satisfy the requirements for admissible identification evidence (at [11], [25]).

• The District Court applied an objective test to the section 115(4)(b) question, assessing whether a photograph taken in the available circumstances would have been sufficiently consistent with the other array photographs to avoid unfair prejudice to the accused (at [25], [29]).

• A good-faith operational decision by police not to photograph an accused before charging does not automatically satisfy section 115(4)(b); the court found, with the benefit of comparative photographic evidence taken after the trial began, that a handheld camera in the charge room would have produced an acceptable result (at [27], [29]).

• Where inadmissible identification evidence has already been presented to a jury, a curative judicial direction is not always sufficient, and discharge of the jury may be the only available remedy (at [30]).

• The court noted that the Crown's conduct throughout the proceedings was commendable: it was the Crown Advocate who identified and disclosed the error in the opening address, and the Crown's own initiative in obtaining comparative photographs ultimately assisted the resolution of the admissibility question (at [28]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995, s115 (4)(b)

Cases
- R v Nelson [1999] NSWCCA 221