Citation: R v Tahere [1999] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 23 June 1999
Judge(s): Spigelman CJ, Studdert J, Adams J
Background
The appellant was convicted in the District Court at Newcastle of using a motor vehicle as an offensive instrument with intent to prevent lawful apprehension, contrary to s 33B(a) of the Crimes Act 1900 (NSW). The charge arose from a police pursuit during which a silver Honda sedan was deliberately reversed into a police vehicle. When the chase ended, three people fled the stopped car before one passenger was apprehended.
The sole issue at trial was whether the appellant was the driver. The Crown relied on a body of identification evidence, including police observations during the chase, sightings by nearby residents, fingerprint evidence, and an in-court identification by a witness who had encountered one of the fleeing persons in his front yard.
A police detective gave evidence that an identification parade had been considered on the night of the incident but was not held because officers could not find a sufficient number of people of sufficiently similar appearance to make a fair parade. The appellant had nonetheless agreed to participate in a parade had one been arranged.
Legal Issues
- Whether s 114 of the Evidence Act 1995 (NSW) applies to in-court identifications as well as out-of-court identification procedures.
- Whether the Crown had established, as required by s 114(2), that it would not have been reasonable to hold an identification parade at the time of the trial or at a time reasonably proximate to the trial.
- Whether the improperly admitted in-court identification evidence caused a miscarriage of justice, notwithstanding a judicial direction to the jury to give it "little weight."
- Whether, absent the in-court identification, the remaining evidence was capable of sustaining a conviction, or whether a verdict of acquittal should be directed.
Decision
The Court confirmed, following its earlier decision in Taufua (unreported, NSWCCA, 11 November 1996), that s 114 of the Evidence Act 1995 applies to in-court identifications. The provision is not limited to formal out-of-court identification procedures.
Under s 114(2), visual identification evidence is inadmissible unless the court is satisfied that an identification parade was not reasonable in the circumstances. The police detective's evidence established only that a parade had been impractical on the night of the incident. The Crown did not establish that a parade would have been unreasonable at the time of the trial or at a time reasonably proximate to it. On that basis, the in-court identification by Mr Hitchcock was inadmissible.
Spigelman CJ held that the in-court identification was the clearest and most forceful piece of identification evidence in the case, and that no other item of evidence carried the same weight. Even though the trial judge directed the jury to give that evidence "little weight," the Court found that a miscarriage of justice had occurred. The direction was insufficient to cure the prejudice flowing from the improperly admitted evidence.
On the question of acquittal, the Court concluded that the remaining evidence, taken cumulatively, including similarity of appearance, fingerprints in the vehicle, and physical proximity to the scene, was capable of satisfying a jury beyond reasonable doubt. Accordingly, the Court declined to direct a verdict of acquittal and instead ordered a new trial, noting that the decision whether to re-prosecute was properly a matter for the prosecution authorities.
Orders Made
- Appeal allowed.
- New trial ordered.
Key Takeaways
- Section 114 of the Evidence Act 1995 applies to in-court identifications, not only to identifications made through formal out-of-court procedures such as identification parades.
- Where the Crown seeks to rely on visual identification evidence, s 114(2) requires proof that holding an identification parade was not reasonable at or near the time of trial, not merely that it was impractical at the time of the original incident.
- A judicial direction to give inadmissible identification evidence "little weight" does not necessarily cure the miscarriage of justice that flows from its admission; the Court of Criminal Appeal found such a direction insufficient in this case.
- Sufficient circumstantial evidence, including appearance, fingerprints, and geographic proximity, can remain capable of supporting a conviction even where direct in-court identification evidence is excluded.
- In cases where part of the evidence is wrongly admitted but the remaining evidence is sufficient to sustain a verdict, the Court of Criminal Appeal may decline to direct an acquittal and instead order a new trial, leaving the decision to re-prosecute with the Crown.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 114
- Crimes Act 1900 (NSW), s 33B(a)
Cases:
- Taufua, unreported, NSWCCA, 11 November 1996