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District Court 28 April 2020

R v Ross (No. 3)

[2020] NSWDC 196

Assault & violence
EVIDENCE CRIMINAL PROCEEDING PICTURE IDENTIFICATION EVIDENCE ASSAULT VICTIM IDENTIFIED THE ACCUSED

Citation: R v Ross (No. 3) [2020] NSWDC 196
Court: District Court of New South Wales
Date: 28 April 2020
Judge: Abadee DCJ

Background

The accused faced charges arising from an alleged group assault on a victim on 19 April 2018. The Crown case was that the accused was one of a group who set upon the victim, causing him injuries. The Crown intended to call the victim to identify the accused as a participant, supported by other circumstantial evidence including witness evidence about the accused's vehicle.

On the morning the trial commenced, police conducted a photoboard identification process at Hornsby Police Station. This took place approximately two years after the alleged assault. The victim selected the accused's photograph from an array of ten, doing so quickly and without hesitation.

The accused objected to the admission of this identification evidence. A particular complication arose from the fact that the victim had encountered the accused in a courthouse cell block in December 2019, roughly four months before the photoboard, and had not disclosed this to the investigating officer before or during the identification procedure.

  • Whether the photoboard evidence constituted "picture identification evidence" within the meaning of s 115 of the Evidence Act 1995 (NSW), and whether its admission was prohibited
  • Whether it was reasonable to have conducted an identification parade rather than a photoboard, for the purposes of s 114(2) of the Act
  • Whether the victim's identification was contaminated or influenced by the encounter with the accused in the court cells in December 2019
  • Whether the evidence should be excluded under s 137 of the Act on the basis that its probative value was outweighed by the danger of unfair prejudice

Decision

Abadee DCJ confirmed that the photoboard evidence was a form of "picture identification evidence" as defined in s 115(1) of the Act, and that it also constituted "recognition evidence," being evidence from a witness who already knew the person being identified. The parties agreed on this characterisation, consistent with Trudgett v R (2008) 70 NSWLR 696.

On the question of whether an identification parade should have been held instead, his Honour found it was not reasonably practicable in the circumstances. The accused was in custody, and conducting a parade of persons of similar appearance at short notice would have been logistically impractical. Accordingly, the s 114 preconditions for admitting the photoboard evidence were satisfied.

The more contested issue was whether the victim's recognition of the accused was tainted by his undisclosed sighting of the accused in the court cells in December 2019. His Honour accepted that the victim had a genuine prior acquaintance with the accused spanning approximately six weeks before the assault, including multiple visits to the accused's home. The December 2019 cell encounter was brief and, in context, was unlikely to have contaminated the identification. His Honour noted that the victim had been consistently adamant that the accused participated in the assault, and that the speed of identification during the photoboard was consistent with genuine prior familiarity.

On the s 137 discretion, his Honour was not satisfied that the danger of unfair prejudice to the accused outweighed the probative value of the evidence. The trial being one before a judge alone, any risks associated with this form of identification evidence were mitigated by the availability of appropriate warnings under ss 115(7) and 116 of the Act. The objection was dismissed, and the voir dire evidence was admitted as evidence in the trial.

Orders Made

• The objection under s 137 fails
• The accused's objections to the photoboard evidence fail
• The evidence on the voir dire will be evidence in the trial

Key Takeaways

  • Recognition evidence (identification by a witness who already knows the accused) is a form of "picture identification evidence" under s 115 of the Evidence Act 1995 (NSW), and is subject to the same admissibility framework: Trudgett v R confirmed this, and Abadee DCJ applied it here.
  • Under s 114(2), an identification parade is the preferred mode of identification; however, where logistical impracticality makes a parade unreasonable, a photoboard procedure may satisfy the statutory requirements for admission.
  • A prior social acquaintance between the identifying witness and the accused can significantly reduce, though does not eliminate, concerns about the reliability of a photoboard identification conducted years after the relevant events.
  • An undisclosed encounter between a witness and an accused shortly before a photoboard procedure does not automatically contaminate the identification evidence, particularly where a genuine and documented prior relationship already existed between them.
  • In a judge-alone trial, the risk of misuse of photographic identification evidence (as cautioned by Kirby J in Smith v The Queen (2001) 206 CLR 650) can be addressed through judicial warnings and directions under ss 115(7) and 116 of the Act, which factors into the s 137 discretionary analysis.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 114, 115, 116, 135, 137

Cases
- Gardiner v R (2006) 162 A Crim R 233
- IMM v The Queen (2016) 90 ALJR 529
- Pace v The Queen (2014) 247 A Crim R 1
- R v Batty (NSWCCA, 6 August 1997, unreported)
- R v Buchanan (2004) 152 A Crim R 302
- R v Ford [1998] NSWSC 96
- R v Taufua (NSWCCA, 11 November 1996, unreported)
- Smith v The Queen (2001) 206 CLR 650
- Trudgett v R (2008) 70 NSWLR 696