Ah-See v Heilpern and Anor [2000] NSWSC 627 (6 July 2000)

[2000] NSWSC 627

EVIDENCE – Criminal Proceedings – admission in official questioning – accused was asked, in an interview which was not electronically recorded, “Do you wish to participate in a line-up.” and answered “No” – Magistrate admitted picture identification evidence after having regard to this q & a when considering objection – Evidence Act subs 115(5) made picture identification evidence inadmissible unless the accused refused to take part in an identification parade – it was contended that the q & a should not have been regarded when ruling on the objection because the q & a were an admission and the conditions for admissibility of evidence of an admission in Crimes Act s 424A (relates to electronic recording) (see now Criminal Procedure Act s 108) had not been complied with – meaning of “admission” in s 424A and significance of definitions of “admission” and “representation” in  Evidence Act 1995  – cognate legislation – held – the q & a evidence of refusal were not evidence of an admission within s 424A – Magistrate was correct in having regard to q & a when ruling on objection to picture identification evidence.