R v Taylor [2008] ACTSC 52 (29 April 2008)

[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