Admissibility of Prior Identification Evidence in Criminal Trials

The court ruled evidence inadmissible where a witness identified a person from a photo array three months after the event, deemed insufficiently 'fresh' under the Evidence Act 1995.

New South Wales Supreme Court

CITATION : R v [NAME] [2001] NSWSC 74 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70033/98 HEARING DATE(S) : 30/1/2001 - 1/2/2001; 5/2/2001 - 9/2/2001; 12/2/2001 - 14/2/2001 JUDGMENT DATE : 7 February 2001

PARTIES : [NAME] (accused) JUDGMENT OF : Hidden J at 1

COUNSEL : [redacted] J Stratton with D Yehia (accused) SOLICITORS : [redacted] CATCHWORDS : CRIMINAL LAW - admissibility - identification prior to trial - whether witness' recollection "fresh" - Evidence Act s66 LEGISLATION CITED : Evidence Act 1995 CASES CITED : R v Barbaro (2000) 112 ACrim R 551 [NAME] v The Queen (1998) 195 CLR 606 DECISION : Evidence rejected

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION HIDDEN J

Sixth Day: Wednesday 7 February 2001

70033/98 - [NAME] v [NAME] - On admissibility of evidence; see page 228 of transcript

1 HIS HONOUR: The Crown proposes to call [NAME], who would give evidence that on 26 April 1991 he sold a boat to a man who represented himself to be [NAME]. It is the Crown case that that man was in fact one [NAME], an associate of the accused, and that it was the accused who had [NAME] purchase the boat for the purpose of disposing of the body of Mr [NAME]. 2 [NAME] would say that on 1 August 1991, a little over three months after this transaction, he identified the purchaser from a series of photographs shown to him by police. I understand that [NAME] now has no independent recollection of the appearance of that person, or of the photograph he selected. However, he did at the time sign the rear of the photograph which he selected. 3 Other evidence will establish that that photograph was indeed a photograph of [NAME]. 4 Objection is taken to this evidence on the basis that it is inadmissible under the Evidence Act, 1995 because it is hearsay evidence which does not fall within any exception created by the Act and, in any event, because to admit it would be unfairly prejudicial to the accused within the meaning of s137 of the Act. 5 Dealing with the hearsay point first, my attention has been drawn to the recent decision of the Court of Criminal Appeal in R v Barbaro (2000) 112 ACrim R 551. In that case the leading judgment was given by Grove J, with whom the Chief Justice and the Chief Judge at Common Law agreed. It is sufficient to say that it appears to be the effect of Grove J's reasoning that evidence of an act of identification made prior to trial is hearsay evidence within the meaning of the Evidence Act, and is admissible only if it fulfils the requirements of s66 of the Act. His Honour's reasoning would appear to apply to evidence of the act of identification by the identifying witness himself as much as evidence of a person present at the time who observed the act of identification. 6 I must say there is some uncertainty about that in the light of what fell from his Honour at par 43 of the judgment but, reading that section of the judgment as a whole, that conclusion appears to me to be inescapable. That being so, it seems that evidence of an act of identification, by whomever it is given, is admissible only if the identification took place when the event in which the witness was involved was fresh in the witness' memory: see [NAME] v The Queen (1998) 195 CLR 606. 7 For present purposes, the event was the sale of the boat by the witness to the man said to be [NAME] late in April 1991. The act of identification did not occur until 1 August 1991. On any view, the witness' memory of the event could not be described as "fresh" within the meaning of s66 of the Evidence Act. That being so, it appears to me that the evidence is inadmissible. 8 I should add that, in any event, I would reject the evidence in the exercise of the balancing process required by s137 of the Evidence Act for this reason: Quite apart from a number of factors bearing upon the weight of the identification evidence, it seems that of the array of photographs shown to [NAME], only three survive. The rest have been lost, perhaps not all that surprisingly in the almost ten years that have ensued. It is not known now how many there were in the photographic array but clearly there were more than three. This would put the accused's representatives at some disadvantage in testing the reliability of [NAME]'s identification because the fairness of the photographic array could not be examined. For that reason alone, I would have been inclined in any event to reject the evidence. **********

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