http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/759.html

CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – visual identification evidence – whether it was reasonable not to have held an identification parade – Complainant knew Defendant – s 114 Evidence Act – whether “identification” includes out-of-court identification.

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/71.html

EVIDENCE – identification parades – refusal to take part in identification parade –requirements for effective refusal for Evidence Act 1995 ss 114 and 115 – no requirement for suspect to obtain legal advice – no requirement for suspect to be informed of all details of specific identification parade before refusal – refusal unless lawyer advises participation in identification parade is a refusal, not a conditional agreement.

EVIDENCE – picture identification evidence – digital photograph of suspect does not cease to be that photograph by being loaded onto a computer database, converted into “jpg” format, emailed, or copied into PowerPoint format, having its colour levels changed or having its pixelation or file size reduced or increased – photograph of suspect does not cease to be that photograph by reason of editing to remove an image of removable jewellery such as a small facial stud – no requirement for photograph used in identification process to show only the features specified by the witness.

EVIDENCE – identification processes – minor change in suspect’s appearance since offence was committed does not “protect” suspect from invitation to take part in identification parade or from use of photograph in photo board process.

Evidence Act 1995 (Cth), ss 114(1) and (2), 115, 137, 138(1)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/61.html

Criminal Law – direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness – evidence of comfit identification – fresh evidence – failure by prosecution to disclose to defence material relevant to credibility of Crown witness.

Evidence Act (NSW) – ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165

http://www.austlii.edu.au/au/cases/wa/WASCA/2004/61.html

Criminal law and procedure – Evidence – Dock identification – Admissibility of – Adequacy of trial Judge’s directions in relation to – Similar fact evidence – Admissibility of – Directions in relation to

[2009] ACTSC 60
CRIMINAL LAW – trial by judge alone – aggravated burglary – damage property – assault occasioning actual bodily harm – identification issue – proof of identity required beyond reasonable doubt – finding of not guilty entered

EVIDENCE – identification evidence – witness descriptions of offender – distinguishing feature of offender described as “lazy eye” – accused known to have a “lazy eye” – no identification parade or photo board evidence provided – witness identification of offender by nickname – witness participation in ‘homemade’ identification parade – insufficient evidence to prove identity of the offender

EVIDENCE – physical evidence – offensive weapon used during commission of offences described as “baseball bat” – baseball bat recovered from accused’s residence – not forensically tested – no forensic evidence to link seized bat to the offence

CO-OFFENDER – alleged co-offender as crown witness – witness previously entered plea of guilty – sentenced on offence – sentenced on statement of facts that named the accused as a co-offender – refusal of witness to name accused as the co-offender

Evidence Act 1995 (Cth), s 114

[2001] NSWSC 74

CRIMINAL LAW

admissibility

identification prior to trial – whether witness’ recollection “fresh” – Evidence Act s66

[2003] NSWSC 1068

Objection taken to identification evidence – fresh application after further material made available – numerous factors taken into account in determining whether the unfair prejudice of the evidence outweighs its probative value – evidence excluded.

[2004] NSWSC 816

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/1998/96.html

CRIMINAL LAW – appeal against conviction – verdict unsafe and unsatisfactory

Browne v Dunn (1894) 6 R 67

[2004] NSWCCA 104

CRIMINAL LAW – Appeal against conviction – 2 counts of robbery armed with offensive weapon – plea of not guilty – whether trial judge erred in directions to jury on circumstantial evidence – whether prejudice caused by trials being run together – whether miscarriage due to jury being made aware that appellant and his alibi witness had been in prison – whether Crown cross examination invited adverse inferences relating to onus of proof and right to silence of appellant.

Evidence Act 1995 – s 103

[2003] NSWCCA 19

Appeal against conviction and application for leave to appeal against sentence – identification directions – summing-up lacked balance – trial judge’s obligation to sum up the case – issues of parity and totality

[2005] NSWCCA 170

Criminal Law – appeal against conviction – aggravated break and enter and commit serious indictable offence – plea of not guilty – whether trial judge erred in admitting surveillance log book into evidence – whether trial judge erred by admitting voice identification evidence – admission of expert evidence.

Evidence Act 1995 – s 55, 56(1), 79,135, 137, 165(1)(b), 165(2),177

[2002] NSWCCA 193

MANSLAUGHTER – S6(1) of Criminal Appeal Act 1912 – s116 Criminal Procedure Act 1986 – statements read to jury – warning about weight to be given to deposition evidence – dock/court identification – warning about weight to be given to identification – verdict of jury unreasonable – dangerous to allow conviction to stand

[2000] NSWCCA 554

Criminal Law – evidence – identification – where identification made from a photograph – time lapse between offence and identification – admissibility.

Criminal Law – evidence – identification – jury direction.

[2000] NSWCCA 330

CRIMINAL LAW- appeals – appeal against conviction – appeal against sentence – robbery – directions to jury – identification evidence – sufficiency of directions concerning photographic evidence – Jones and Dunkel direction – aggravating circumstances in sentencing.

[2000] NSWCCA 302

CRIMINAL LAW

affray

maliciously inflict GBH

assault occassioning ABH

appeal against convictions

verdict

whether unreasonable or cannot be supported

EVIDENCE

admissibility of identification evidence

no identification parade held

highly probative value outweighed prejudicial effect

CRIMINAL LAW

appeal against sentence

whether manifestly excessive

special circumstances

whether appropriate to impose cumulative sentences

relationship between minimum and additional terms

Evidence Act 1995, s 114, 136, 137

[2003] NSWCCA 82

CRIMINAL LAW – JURY – juror inadvertently exposed to inadmissible evidence – whether falure to discharge jury – whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not discharge its task impartially – whether direction adequate to correct any prejudice or perception of prejudice to the accused

EVIDENCE – whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial – whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances – whether accused has a fundamental right to confront accuser where issues of identity involved – whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses – whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings (Supreme Court Rules Part 75 rule 2(8)(b))

EVIDENCE – whether inadequate direction as to lies – whether inadequate direction as to accomplice evidence

LEGISLATION CITED:

Evidence Act 1995, ss 55, 56, 87(1)(b) and (c), 108(3)(b), 137, 164, 165(1), (1)(d), (2)(a) (b) and (c), (3),(4) and (5)

Evidence (Audio and Audio Visual Links) Act 1998,

ss 5(1A), 5(2), 5B(1), 5B(2)(a), (b), (c) and (d), (2A), (3), 20A(a)

Evidence (Children) Act 1997

Supreme Court Rules (Part 36 rule 2A(1) and Part 75 rule 2(8)(b)

European Convention on Human Rights Article 6

Charter of Rights and Freedoms (Canada)

[2004] NSWCCA 62

Resemblance evidence – identification – other circumstantial evidence – video of accused said to be “re-enactment” of offence

Evidence Act 1995 (NSW) ss113-116; 137.

[2001] NSWCCA 380

Criminal Law and Procedure – Admission of evidence – accused identified in line-up – where none of the other men in the line-up were of similar appearance to the accused – probative value of evidence outweighed by danger of unfair prejudice – s 137 Evidence Act 1995.

[2004] NSWCCA 68

[2004] NSWCCA 431

Criminal law – attack on victim by number of assailants – grievous bodily harm with intent: s 33 Crimes Act 1900 (NSW) – affray: s 93C Crimes Act 1900 – appeals against conviction and sentence – issue of whether cross-examination regarding visual identification was allowable – effect of alcohol consumption – whether proper exercise of legitimate sentencing discretion effected – weight given to favourable subjective circumstances -rehabilitative aspects including immaturity, youth and favourable circumstances – whether error in directions to jury – admissibility of evidence pertaining to s 13 of Children (Criminal Proceedings) Act 1987 – Crimes (Sentencing Procedure) Act 1997 ss 21A(3) and 44(2) – Criminal Appeal Act 1912 s 6(1) – Criminal Appeal Rules Rule 4 – Evidence Act 1995 s 114(1).

[2000] NSWCCA 61

CRIMINAL LAW AND PROCEDURE

ADMISSION OF EVIDENCE

IDENTIFICATION OF OFFENDER FROM PHOTOGRAPHS

EVIDENCE ACT 1995, s137

[2004] NSWCCA 279

CRIMINAL LAW – Evidence – relevance – probative value – unfair prejudice – identification – similarity – sufficiency of directions – CRIMINAL LAW – Sentencing – armed robbery – whether sentence excessive – special circumstances – variation of statutory ratio

[2002] NSWCCA 247

Criminal law – evidence of indentification parade – whether properly admitted

Criminal law – DNA evidence – whether properly admitted

Criminal law – DNA evidence – whether appropriate database used

ss 137, 138 & 114(2) Evidence Act 1995

[2003] NSWCCA 290

CRIMINAL LAW – Appeal against conviction dismissed – Admissibility of expert voice similarity evidence – Admissiblity of visual identification evidence – Warnings to the jury – Bias of expert evidence does not render evidence inadmissible – Crown appeal against sentence upheld – Set aside trial judge’s sentence periods and in lieu thereof appellant sentenced to 15 years imprisonment with a non-parole period of 11 years 3 months.

Evidence Act 1995, ss 76, 79, 114(1), 137,165(2)

[2006] NSWCCA 164

Appellant charged with wounding with intent to murder or alternatively to do grievous bodily harm – found guilty of the statutory alternative of malicious wounding – principal issue at trial was identification – whether verdict unreasonable – whether directions given on issue of identification adequate – trial judge’s obligation under s 116 of the Evidence Act 1995, to inform the jury of special need for caution both generally and in the circumstances of the particular case, arises whatever defence is raised and however the case is conducted – that obligation relates to the reliability of the identification evidence, not to its honesty – bias does not fall within s 116, and obligation to give directions relating to bias depends on how the case was conducted – need for identification parade, s 114 of the Evidence Act – negative identification evidence – compromise verdict – whether miscarriage of justice based on accumulation of conduct by appellant’s counsel at trial.

[2006] NSWSC 924

Picture identification evidence – Com-Fit images

[1996] HCA 35

Criminal Procedure – Perjury and false statement in course of trial – Whether verdicts inconsistent and unsafe and unsatisfactory – Defendant tried on alternative counts, including counts with aggravating circumstances – Not necessarily inconsistent for jury to find defendant guilty of lesser offence – Crimes Act 1900 (NSW), ss 327, 328.

Criminal Procedure – Perjury and false statement in course of trial – Whether lack of proper direction by trial judge on false evidence given knowingly as distinct from mistakenly without criminal intent – Failure to do so led to miscarriage of justice.

[2001] HCA 72

Criminal law – Evidence – Admissibility – Exclusion of evidence – Identification evidence – Usual precautions for identifying suspects not followed – Whether probative value of identification evidence outweighed danger of unfair prejudice to the accused – Whether admission of identification evidence resulted in a miscarriage of justice.

Criminal law – Evidence – Identification evidence – Whether trial judge adequately directed the jury about the deficiencies of identification evidence.

Criminal law – Evidence – Weapons and ammunitions found at the unit of co-accused were of the same character as those used in the robberies but were not purchased until after the robberies – Whether evidence of weapons was admissible as “propensity” evidence – Whether the trial judge adequately directed the jury in relation to the discovery of weapons and ammunitions.

Criminal law – Evidence – Admissibility – Whether evidence of an association between the accused and co-accused was admissible – Whether direction by the trial judge about the association was a material misdirection.

Criminal law and practice – Appeal against conviction – Application of “proviso” – Whether errors by trial judge constituted a substantial miscarriage of justice – Whether evidence was so strong that no reasonable jury could fail to convict the accused.

Words and phrases – “circumstantial identification evidence” – “positive-identification evidence” – “unfair prejudice”.

Criminal Code (Q), ss 408, 668E.

[1992] HCA 13

Criminal Law – Evidence – Identification – Warning on danger of convicting on disputed evidence – Elements of warning – Presence of other evidence sufficient to convict – Relevance to warning.

http://www.austlii.edu.au/au/cases/cth/HCA/1937/27.html

http://www.austlii.edu.au/au/cases/cth/HCA/1996/50.html

Criminal law and procedure – Tape recording of accused’s unsworn statement played to jury – Whether voice comparison or voice identification – Use of material not admitted into evidence – Trial judge’s directions to jury on permitted use – Whether quality and quantity of material adequate to make comparison – Whether sufficient warnings given – Risk of use of tape as “real evidence” – Whether proper to play tape in the circumstances.

Criminal law and procedure – Procedural matter – Tape played after summing up completed – Whether constitutes procedural irregularity.

Crimes Act 1900 (NSW), s 402.

[2000] FCA 1195

CRIMINAL LAW – armed robbery – evidence – identification – dock identification of appellant by eye-witnesses – whether primary judge erred in permitting evidence of dock identification to be led in circumstances where evidence of previous out-of-court identification admissible – whether conviction unsafe and unsatisfactory – effect of circumstantial evidence pointing to appellant as offender – the availability of the principles governing the “proviso” in the Federal Court.

Evidence Act 1995  (Cth) ss 114, 115, 137

[2002] NSWCCA 401

Criminal law – procedure at trial – Crown Prosecutor’s decision not to call in the Crown case a particular witness – discussion of the duty of a Crown Prosecutor in that connection.

Criminal law – alleged miscarriage of justice at trial deriving from the decision of the Crown Prosecutor not to call a particular witness in the Crown case – discussion of principles to be applied in determining whether or not a miscarriage of justice has in fact occurred.

Criminal law – procedure at trial – admission of photographs depicting the physical injuries sustained by the victim of a very severe physical assault – discussion of relevant principles.

[2003] NSWCCA 83

Admission of identification evidence of Sgt Rayner and directions as to that evidence not erroneous

admissibility of evidence of drugs found at applicant’s premises 2 months after offence

directions not inadequate

cross-examination by Crown of defence witness did not breach the credibility rule as matters had substantial probative value

[1999] NSWCCA 170

Evidence – in-court identification -  Evidence Act 1995  s114

[2008] ACTSC 52

CRIMINAL LAW – EVIDENCE – identification evidence – recognition evidence – visual identification evidence – statutory interpretation – Crown sought to lead evidence from witnesses who claimed to have observed accused at scene of crime when offence committed – meaning of “identification” in ss 114(1) and (2),  Evidence Act 1995  (Cth) – whether statements made by witnesses, shortly after alleged incident, asserting that they had observed accused at scene of crime when offence committed, constituted “the identification” in s 114(2) – whether “the identification” in s 114(2) referred, rather, to such assertions made by witnesses in court as “identification evidence”

Held: Evidence sought to be led from witnesses in court would be “an assertion” within definition of “identification evidence” given by Evidence Act dictionary – words “relating to an identification” in s 114(1) apply to identification that is subject of “identification evidence”, i.e. assertion given in court

CRIMINAL LAW – EVIDENCE – admissibility of visual identification evidence – requirement of s 114(2), Evidence Act, for an identification parade, including defendant, to be “held before the identification was made” in order for visual identification evidence to be admissible – whether it would “not have been reasonable” to have held such a parade: s 114(2)(b) – whether it “would have been unfair to the defendant” for such a parade to have been held: s 114(4) – displacement effect – whether witnesses would have been more likely to identify accused in parade, having previously claimed to have recognised him

Held: Following above finding, s 114(2) requires identification parade to be held prior to giving of visual identification evidence in court, but not prior to making of original assertion or statement identifying accused – not unreasonable to hold parade prior to giving of evidence in court – possible that witnesses might not have identified accused in parade – therefore not unfair to accused to require identification parade prior to witnesses giving identification evidence in court – identification evidence inadmissible

WORDS AND PHRASES – “identification evidence”, “visual identification evidence”, “relating to an identification”, “before the identification was made”, “displacement effect”

Evidence Act 1995  (Cth) ss 113, 114, 116, 165

[2009] ACTSC 127

EVIDENCE – pre-trial application to exclude picture identification evidence – accused declined to participate in identification parade until legal advice had been sought – identification made through use of a photo board – whether photo board ought to have been used where no express refusal to take part in an identification parade – whether reasonable to assume refusal – actual or constructive refusal could not be assumed in the circumstances – operation of s 115 Evidence Act 1995 (Cth) and s 235 Crimes Act 1900 (ACT).

EVIDENCE – pre-trial application to exclude picture identification evidence – identification made through use of a photo board where no refusal to take part in an identification parade – whether contravention of s 235 Crimes Act 1900 (ACT) by police investigators – onus on accused to show he was “otherwise available” to take part in identification parade – accused failed to establish contravention on balance of probabilities – identification evidence not liable to be excluded under s 138  Evidence Act 1995  (Cth).

POLICE PRACTICE AND PROCEDURE – whether photo board can properly be prepared when accused in custody – general prohibition against using photo board for identification where accused in custody does not prevent preparation of photo board while accused in custody – operation of s 115  Evidence Act 1995  (Cth).

Evidence Act 1995  (Cth), ss 114, 115, 138

[1997] NSWSC 174

CRIMINAL LAW & PROCEDURE  – EVIDENCE OF IDENTIFICATION – TRANSITIONAL PROVISIONS AFFECTING  EVIDENCE ACT 1995  – FIRST ACT OF IDENTIFICATION BY WITNESS – POSSESSION OF STOLEN WALLET SHORTLY AFTER OFFENCE – JURY REJECTS EXPLANATION FOR POSSESSION – POSSESSION CAPABLE OF CONFIRMING CORRECTNESS OF EYEWITNESS IDENTIFICATION

[1999] NSWSC 949

EVIDENCE

visual identification evidence

admissibility

reasonableness of holding identification parade

[2001] HCA 50

Criminal law – Evidence – Relevance – Identification – Evidence of recognition by police officers of the accused in photographs from bank security cameras – Police officers in no better position than jury to compare appearance of accused with photographs -  Evidence Act 1995   (NSW), s 55 – Whether evidence could rationally affect the assessment by jury of probability of the existence of a fact in issue – Whether admissible as opinion evidence.

Evidence – Relevance – Opinion or fact evidence -  Evidence Act 1995  (NSW), s 55 – Evidence of recognition by police officers of accused in photographs from bank security cameras – Whether relevant – If relevant whether excluded as opinion evidence.

Evidence Act 1995  (NSW), ss 55, 76.

[2007] HCA 59

Criminal law – Evidence – Admissibility of in court demonstrations – An armed man wearing overalls, balaclava and sunglasses committed a robbery – During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber (“the in court demonstration”) – Whether the in court demonstration was relevant – Whether the in court demonstration was unfairly prejudicial – Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views – Whether s 53 of the  Evidence Act 1995   (NSW) (“the Act”) applied to in court demonstrations – Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law.

Criminal law – Evidence – Admissibility – Whether showing witnesses the overalls and balaclava found at the appellant’s residence was relevant – Whether showing witnesses the overalls and balaclava was unfairly prejudicial.

Criminal law – Appeals – Application of the proviso- Whether the trial judge’s error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso – Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice – Whether the judicial warnings to the jury were adequate – Whether the in court demonstration was so prejudicial as to deny the application of the proviso – Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged.

Words and phrases – “demonstration”, “experiment”, “inspection”, “unfairly prejudicial”, “reconstruction”, “relevance”, “view”.

Evidence Act 1995  (NSW), ss 53, 55, 137.

[2002] NSWCCA 342

Criminal law – appeal – robbery – identification – application to withdraw evidence – unfair prejudice – appropriate identification directions – point not taken at trial – Rule 4 – exculpatory statements in ERISP – whether appropriate jury be directed on relevance of absence of cross-examination – accused not giving evidence – appropriate direction – Rule 4 – inapplicability of earlier decisions after High Court decision in Azzopardi & Davis v. The Queen.

[2003] HCA 40

Evidence – Identification evidence – Where reliability of evidence not in dispute – Whether trial judge required to inform jury of special need for caution before accepting evidence -  Evidence Act 1995   (NSW), s 116.

Evidence – Inconsistency between appellant’s statement to police and his evidence at trial – Where prosecutor did not contend that statement to police was a lie indicating consciousness of guilt – Whether trial judge should have given direction in relation to lies.

Words and phrases: “miscarriage of justice”.

Criminal Appeal Act 1912 (NSW), s 6.

Evidence Act 1995  (NSW), ss 114, 115, 116.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/act/ACTSC/1999/112.html

Criminal Law – evidence – out of court identification – identification of person shortly after commission of offence as person who committed offence – whether relevant – it is – whether excluded by provisions of Evidence Act 1995 (Cth) – it is, unless case falls within exceptions provided for in s 114(2).

Evidence -Evidence Act 1995 (Cth) – visual identification evidence under s 114 – whether confined to “in court” identification – it is not.