Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290
• Hearing dates: 15 May 2012
• Decision date: 17 September 2012
• Before: Beazley JA; at [1]; Basten JA; at [5]; Hoeben JA; at [34]

Decision

Leave to appeal granted but appeal dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: EVIDENCE - visual identification evidence - meaning of s 114 Evidence Act 1995 (NSW) - what was the relevant act of identification - what was the act of identification to which the question objected to was addressed - does the section refer to out of court visual identification as well as in court visual identification - whether reasonable to have held an identification parade - correct interpretation and application of s 114.
• Legislation Cited: Crimes (Appeal and Review) Act 2001,; ss 56, 59; Evidence Act 1995 (NSW), ss 113, 114; Pt 3.9
• Cases Cited: Alexander v R [1981] HCA 17; 145 CLR 395; Director of Public Prosecutions (NSW) v Walford [2011] NSWSC 759; DPP v Donald and Anor [1999] NSWSC 949; R v Buchanan [2004] NSWSC 816; 152 A Crim R 302; R v D [2008] ACTSC 82; R v Reed and Carberry [2003] ACTSC 6; R v Rose [2002] NSWCCA 455; 55 NSWLR 701; R v Taufua (unrep, NSWCCA, 11 November 1996); R v Taylor [2008] ACTSC 52; R v Thomason [1999] ACTSC 112; Regina v Ford (NSWSC, unreported, 22 April 1998; Trudgett v R [2008] NSWCCA 62; 70 NSWLR 696
• Category: Principal judgment
• Parties: Aaran Walford - Applicant; Director of Public Prosecutions (NSW) - Respondent
• Representation: Counsel: Mr C Smith/Ms L Jardim - Applicant; Mr I Bourke - Respondent; Solicitors: Aboriginal Legal Service (NSW/ACT) Ltd - Applicant; SC Kavanagh, Solicitor for Public Prosecutions - Respondent
• File Number(s): 2011/137698

Decision under appeal

• Citation: [2011] NSWSC 759
• Date of Decision: 2011-07-29 00:00:00
• Before: Davies J
• File Number(s): 2011/137698

Judgment

1 BEAZLEY JA: The central question in this matter was the proper construction of the Evidence Act 1995, s 114(2), which makes visual identification evidence inadmissible except in the circumstances prescribed in the section. In particular, the question in issue was whether the section applied only to in court identification evidence, or whether it also applied to out of court identification evidence.

2 I have had the advantage of reading in draft the judgments of Basten JA and Hoeben JA. Their Honours have taken different routes to the resolution of the arguments advanced by the parties. However, as I understand their reasons, each has concluded that the section applies to out of court identification evidence. I agree with that view.

3 Once that construction is given to the section, I am of the opinion that the primary judge, Davies J was correct to remit the matter to the Local Court for determination in accordance with law. For that reason, I agree with the orders proposed by each of their Honours that leave to appeal should be granted and the appeal dismissed.

4 Basten JA, at [27], has expressed the view that the primary judge misstated the critical question that he had to determine. His Honour identified the critical question as being, "what was the act of identification to which the question (of the witness) was addressed?" I think this is correct. However, I do not understand the primary judge's approach as being to different effect. Nor do I think that the question being asked was of an in court identification of the defendant. However, it is not necessary for the determination of the appeal to resolve those matters. The order of Davies J correctly required that the matter be remitted to the magistrate for determination in accordance with law.

5 BASTEN JA: The applicant seeks leave to appeal from a judgment of Davies J who was himself hearing an appeal, from an order made in the Local Court at Dubbo. Leave should be given to appeal, but the appeal should be dismissed. The Director did not seek an order for costs in the event that the appeal was dismissed, and hence no order should be made.

6 There are three preliminary matters which should be noted. First, the appeal to the Supreme Court could be brought as of right by the prosecutor against an order dismissing the summary proceedings in the Local Court, "but only on a ground that involves a question of law alone": Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"), s 56(1)(c). In determining the appeal, the primary judge (Davies J) had power to set aside the order in the Local Court and make such other order as he thought just: Appeal and Review Act, s 59(2)(a). This he did, by remitting the matter to the Local Court to be dealt with according to law: Director of Public Prosecutions (NSW) v Walford [2011] NSWSC 759.

7 The question of law was not clearly specified below. The magistrate approached the matter on the basis that the identification, for the purposes of s 114(2)(a) of the Evidence Act 1995 (NSW), was the identification evidence to be given by the complainant. The primary judge held that that approach involved a misconstruction of s 114: at [45]-[47]. According to the primary judge, the correct approach was to treat "the identification" as the statement made by the complainant to police identifying a person she saw outside her apartment as the person the subject of the apprehended violence order. The relevant identification thus occurred at or prior to her complaint to the police. In not adopting that approach, the magistrate addressed the question posed by s 114(2)(b), namely whether it "would not have been reasonable" to have held an identification parade prior to the identification, on a legally erroneous basis. Davies J further held that "the learned magistrate ought to have concluded that it was not reasonable to hold an identification parade because the Complainant had identified the Defendant and had done so at or about the time of the commission of the offence": at [46].

8 No question was raised on the appeal as to whether the last conclusion of the primary judge was a conclusion on a question of law, properly raised on the appeal. On one view, the remittal would have permitted the Local Court to reconsider the application of s 114 generally in the circumstances as presented at trial. However, the order may reflect a finding that only one result was available once the section was correctly construed. For reasons which will be explained below, the approach of the primary judge may also be erroneous.

9 Secondly, it is appropriate to note that the applicant's challenge in point of principle, involved two steps. He said that what is commonly described as "recognition" evidence is a form of identification evidence; next he asserted that the approach adopted by the primary judge effectively excluded from the scope of s 114 the whole class of identification constituted by "recognition": at [19].

10 However, this exercise will tend to subvert the proper construction of s 114 which should focus, in the first instance, on the language of the Evidence Act and not on the perceived consequences of a particular construction, which is then judged against the apparent purpose of the provision, in order to identify an apparent anomaly. That is not to say that a purposive construction of the language is inappropriate.

11 Thirdly and most importantly, application of the section requires careful attention as to the evidence proffered, to which objection is raised. Once that step is taken, the tests as to admissibility in s 114 will rarely give rise to legal difficulty. Further, alleged inconsistencies in the case law either flow from a failure of the court to specify the question to which objection was taken, or a failure in subsequent cases to take note of the precise evidence ruled upon.

Construction of s 114

(a)general points

12 The terms of s 114 are set out at [38] below. For the reasons given by Hoeben JA, conduct constituting "an identification" must be distinguished from that which is proffered as "identification evidence" or, for the purposes of s 114, "visual identification evidence". There may, of course, be more than one instance of identification in a particular case; evidence of each must be addressed separately. Thus, reference in sub-s (2)(a) to "the identification" is a reference to the identification which is the subject of a particular question to which objection is taken.

13 Although, read literally, s 114(2)(a) requires, as a condition of admissibility, that the identification parade be held "before" the identification is made, a purposive construction requires that the condition should be understood as satisfied where the identification occurs in the course of conducting the identification parade. The language is awkward in another respect. The fact that an identification parade would have been impossible, or not reasonably practicable, would seem to be factors of quite a different kind from considerations as to the reasonableness of conducting a parade. However, it is clear from the categories of factors to be taken into account in considering reasonableness, as identified in s 114(3), that practicality is to be addressed.

14 An act of identification may occur in-court or out-of-court at any time between the offending conduct and the witness giving evidence. As this Court noted in R v Taufua (unrep, NSWCCA, 11 November 1996) the use of the past perfect tense in sub-s (2) is curious. Nevertheless, Barr J (with whom Priestley AP and James J agreed) concluded that "the language of the subsection is wide enough to refer to evidence of in-court identification generally". That conclusion was reached, in part, because in-court identification is widely recognised as the least reliable of all forms of identification evidence and is not separately dealt with in the Evidence Act: referring to Alexander v R [1981] HCA 17; 145 CLR 395 at 426, 427 (Mason J). There is no reason to depart from that construction: it is manifestly correct.

(b)"identification evidence"

15 Next, it is necessary to have regard to the definition in the Dictionary to the Evidence Act of the phrase "identification evidence", which is in the following terms:

"identification evidence means evidence that is:

(a)an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:

(i)the offence for which the defendant is being prosecuted was committed, or

(ii)an act connected to that offence was done,

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or

(b)a report (whether oral or in writing) of such an assertion."

16 For the purposes of s 114, this category of evidence is limited to an identification "based wholly or partly on what a person saw": s 114(1). (There is an exclusion of picture identification evidence which is not presently relevant.)

17 One aspect of the definition which has not always received full recognition is the object of the identification evidence, namely the "defendant". It has been held that the definition does not cover identification of third parties: R v Rose [2002] NSWCCA 455; 55 NSWLR 701 at [325] (Smart AJ), and [285] (Wood CJ at CL and Howie J agreeing). Part 3.9 which includes s 114 applies only in a criminal proceeding: s 113. Importantly for present purposes, what must be identified is a connection (identity or resemblance) between the person the subject of the criminal proceeding (the defendant) and a person present at or near the place where the offence was committed at the time it was committed. This language encompasses an in-court identification, but less obviously also covers an out-of-court identification. In the latter case, there must be a link between the act of identification and the person on trial. In the case of an identification parade, where there is an affirmative identification, the assertion by the witness will be to the effect, "I identified from the line-up the person whom I recognised as the woman I saw break the shop window". Absent an in-court identification, the link between the person selected at the identification parade and the person on trial will need to be proved by other evidence, for example by the investigating police officer saying that the person identified at the parade is the person on trial.

18 Accordingly, the fact that a further link is required between the person identified and the defendant does not exclude the operation of the section. On the other hand, evidence involving a physical description of the offender, or the name by which he was addressed, does not involve an "assertion ... to the effect that [the] defendant was, or resembles ... a person", being the putative offender: Trudgett v R [2008] NSWCCA 62; 70 NSWLR 696, at [34]-[36] (Spigelman CJ, Hulme and Latham JJ agreeing). In Trudgett the complainant was able to identify her assailant as a person introduced to her as "Adam". Spigelman CJ noted that although another witness gave evidence that he had introduced the defendant to the complainant as Adam, that merely allowed the jury to make an identification of the defendant as the assailant.

19 Trudgett was concerned with the giving of a warning under s 116, which is not limited to visual identification evidence: a link between two parties based on what the witness had heard (namely the introduction of her assailant by name) could not constitute visual identification evidence for the purposes of s 114. What is less clear from the reasoning in Trudgett is the extent to which, in particular circumstances, the need for a further link will mean that the actual connection will be made by the jury and not by the witness.

20 Recognition evidence gives rise to different issues. Thus, in the present case, the complainant might have been asked to make one or both of two assertions. The first could have been that the person she saw outside her apartment was the person about whom she had complained to the police on an earlier occasion, as a result of which an apprehended violence order had been made. A second assertion could have been that the defendant before the court was the person whom she had seen outside her apartment on the latter occasion. (In theory, there could have been a third and separate link, namely that the person about whom she had complained to the police on the earlier occasion was the defendant before the court.)

21 In order for the defendant to be convicted, it was not sufficient that he was identified by the complainant as the person who was present at the time of the alleged offence. The alleged offence only occurred if he were also the person against whom the apprehended violence order had been made. In a practical sense, it may be assumed that the police would not have laid a charge against anyone other than the person against whom the apprehended violence order had been made. Accordingly, the critical question was whether the person observed by the complainant outside her apartment on the second occasion was the person she had complained about on the first occasion. If she were able to make that link, she was, for practical purposes, identifying the defendant as the offender. With respect to that evidence, the "identification" was made at or just prior to her complaint to the police. There was no opportunity for an identification parade to be held before she made that identification.

22 On the other hand, if it were sought to have her, at the trial, identify the defendant in the dock as the person she saw outside her apartment, there would, as the magistrate held, have been ample opportunity to hold an identification parade before that identification was made.

What was the identification relied on in the Local Court?

23 The critical step noted above is determining the act of identification to which the impugned question is directed. It was at this point that the present case became mired in confusion. The questioning was set out by the primary judge at [9] of his reasons and need not be repeated. It commenced with the prosecutor asking the complainant if she knew "Mr Aaran Walford". She said she did not. The prosecutor told her that he was the person against whom the apprehended violence order had been made. She was then taken to the date of the alleged breach of that order and asked if she saw anyone at or near her house. She said yes and when asked who it was said "Aaran Crawford". Objection was taken and a voir dire held.

24 The question and answer were ambiguous. By giving (albeit incorrectly) the name of the person which she had just been told was the person against whom the apprehended violence order had been made, the complainant may have intended to identify the person she saw outside her apartment with the person against whom the order had been made. Alternatively, she may have been identifying the defendant in the courtroom. Or she may have been doing both. The question could have been taken in each way. The point was never clarified. If the magistrate had resolved the ambiguity as constituting an in-court identification, no appeal could have been brought.

25 However, the primary judge held that "the magistrate fell into error by not making a finding concerning when identification was first made": at [20]. After considering the terms of the section and a number of authorities, the primary judge stated at [36]:

"In my opinion the scheme of the section is understood by looking to when the 'identification' is first made by the witness. In that regard the 'identification' is to be contrasted with the 'identification evidence'. If the witness has made an out-of-court identification it is at that time at which the reasonableness of holding the identification parade is to be considered."

26 At [45], the primary judge stated:

"The Magistrate appears to have proceeded on the basis that the identification referred to in s 114(2)(a) was the identification made by the Complainant in Court when she said that the person that she saw near her house was Aaran Crawford."

27 Although the magistrate failed to address the critical question, the primary judge also misstated it. The relevant question was not 'what was the act of identification to which s 114(2)(a) referred?' but 'what was the act of identification to which the question was addressed?' If the question (to which objection should have been taken before the answer was given) had been directed to the complainant's recognition of the person at the time he appeared outside her apartment, as he against whom the apprehended violence order had been made, there was no opportunity to conduct an identification parade before that identification occurred. If, on the other hand, the question had invited an in-court identification, there was, as the magistrate properly held, ample opportunity to have conducted an identification parade before the question was asked. In the latter case, the occurrence of an earlier identification would have been relevant to the next question, namely whether there should have been an identification parade. Thus, the question referred to by the primary judge only arose after the act of identification the subject of the question had been determined.

28 The primary judge then referred to the fact that the original identification had been made at the time of the offence and held that "the learned Magistrate ought to have concluded that it was not reasonable to hold an identification parade because the Complainant had identified the Defendant and had done so at or about the time of the commission of the offence". It is true that there are good reasons for not conducting an identification parade in those circumstances. However, if that were the magistrate's error, it did not involve a question of law only, but an evaluative judgment, as to which reasonable minds might differ.

29 It was open to the magistrate to resolve the ambiguity apparent from the transcript of the complainant's evidence, by treating the question as seeking an in-court identification. (It is at least possible that there was no ambiguity apparent to those who heard and saw the question asked and answered.) In any event, even if such a characterisation were erroneous, it would not have involved an error of law only. However, in my view the magistrate adopted an approach which was incorrect in law because he assumed that the issue identified by s 114 was whether an identification parade had been held prior to the giving of the identification evidence, and if not whether the omission was not reasonable. The correct question required the magistrate to determine the act of identification about which evidence was being led. That he did not do. Until that was done, it was not possible to address the question as to whether it was not reasonable to fail to hold an identification parade before the identification was made. Accordingly, the primary judge was correct to uphold the appeal.

Case law

30 Although, both before the primary judge and in this Court, the parties analysed the existing authorities with respect to s 114, there is no appellate court decision which is inconsistent with the construction taken above and, for the most part, the supposed inconsistencies between judgments disappear when account is taken of the precise act of identification to which objection had been raised. (Some authorities remain unclear as to the principle stated because the act of identification in question was not specified.) It is, however, convenient to note two cases which illustrate the approach adopted above.

31 As already noted, Taufua is authority in this Court that an in-court identification will fall within the terms of s 114. A witness, Mr Little, was permitted to identify the defendant in court, without any identification parade being held. There was a question as to whether, for that purpose, an identification parade would not have been reasonable, because Mr Little was in fact recognising a man he had seen at the station on a number of occasions over a period of time and of whom he had given a general description in his evidence. Consistently with Trudgett, Barr J held that this was not prior identification evidence, it being a matter for the jury to make the link, if they saw fit, between Mr Little's description of the man and the defendant. It was implicit in this consideration that the Court accepted that an identification could occur in-court or out-of-court.

32 The second case, which illustrates the importance of specifying the act of identification in question, is DPP v Donald [1999] NSWSC 949. Bell J, hearing an appeal from the Local Court, succinctly noted the relevant circumstances as follows:

"[4]Ms Flinders was robbed by three young women on or about 12 November 1998. On 28 November 1998 Ms Flinders was driving her car when she saw two young women, the defendants in the present proceedings; she recognised those two young women as two of the three women who had earlier robbed her. She reported the matter to the police. ...

[5]The evidence of Ms Flinders as to her identification of the two women was held by the Magistrate to be inadmissible ....

...

[7]The identification, upon which the prosecution relied, was the act of identification prior to the arrest of the two defendants. It was not possible for the police to have held an identification parade prior to that time."

33 Apart from setting out the orders, the full judgment is less than one page. Having referred to the relevant act of identification the subject of the impugned evidence, the reasoning was straightforward. The only excursus not set out above was to note that had an identification been made at a parade, there might have been a suggestion of contamination by her earlier identification, thus rendering the identification parade not reasonable. Nothing more needed to be said. Although both the magistrate and the primary judge were taken to Donald, neither adopted the straightforward approach which it revealed.

34 HOEBEN JA:

Nature of proceedings

This is an application for leave to appeal from a decision of Davies J in Director of Public Prosecutions (NSW) v Walford [2011] NSWSC 759. In that matter his Honour allowed an appeal by the DPP from a decision of a magistrate in which the magistrate excluded evidence of visual identification because the police had not conducted an identification parade. The appeal was heard concurrently with the application for leave to appeal.

35 In the Local Court the applicant had been charged with breaching an apprehended violence order by entering an apartment complex where the complainant lived. Unusually, given the nature of the charge, there was no significant prior relationship between the applicant and the complainant. When the complainant spoke to the police, she told them that it was the applicant who had committed the offence.

36 Central to this application for leave to appeal is the interpretation of s 114 Evidence Act 1995 (NSW) (the Act).

37 The relevant provisions of the Act are:

"Identification evidence" is defined in the dictionary to the Act as:

"(a)An assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:

(i)the offence for which the defendant is being prosecuted was committed, or

(ii)an act connected to that offence was done,

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or

(b)A report (whether oral or in writing) of such an assertion."

38 Section 114 of the Act provides:

"114(1) In this section

"visual identification evidence" means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.

(2) Visual identification evidence adduced by the prosecutor is not admissible unless:

(a) an identification parade that included the defendant was held before the identification was made, or

(b) it would not have been reasonable to have held such a parade, or

(c) the defendant refused to take part in such a parade,

and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:

(a) the kind of offence, and the gravity of the offence, concerned, and

(b) the importance of the evidence, and

(c) the practicality of holding an identification parade having regard, among other things:

(i) if the defendant failed to cooperate in the conduct of the parade-to the manner and extent of, and the reason (if any) for, the failure, and

(ii) in any case-to whether the identification was made at or about the time of the commission of the offence; and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.

(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.

(5) If:

(a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held, and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present,

it is presumed that it would not have been reasonable to have held an identification parade at that time.

(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications."

Factual background

39 On 10 December 2009 the applicant was alleged to have assaulted the complainant at a gathering at a mutual friend's house. The applicant and the complainant did not know each other before that date.

40 As a result of the alleged assault, the applicant was arrested and the police applied for, and were granted, a provisional apprehended violence order in respect of the applicant for the protection of the complainant. One of the conditions of the provisional AVO was that the applicant not go within a hundred metres of the premises at which the complainant might from time to time reside or work, or other specified premises being an address in Dubbo. The provisional AVO became an interim AVO by virtue of an order of the Dubbo Local Court on 24 February 2010.

41 On 25 March 2010 the complainant informed the police that the applicant had breached the AVO by approaching her residential apartment block and looking towards her apartment on the day of the complaint. She had observed the applicant from a neighbour's apartment next door to her apartment.

42 The applicant was subsequently arrested on 20 October 2010 and charged with knowingly contravening a prohibition specified in an apprehended violence order. The charge came on for a defended hearing on 25 January 2011 at the Dubbo Local Court. At the outset of the proceedings, the applicant's solicitor informed the court that identification was the issue.

43 Objection was taken, pursuant to s 114 of the Act, to the complainant giving identification evidence. As a result of the objection, the evidence of the complainant was taken on a voir dire. The complainant described the assault that led to the imposition of the AVO. She then gave evidence to the effect that she had seen the person who assaulted her, i.e. the applicant, outside the apartment block where she resided. This worried her and she called the police.

44 At the conclusion of the voir dire, the magistrate rejected the applicant's evidence on the basis that it was prohibited by s 114. The precise basis for the learned magistrate's decision is hard to discern from the reasons. What his Honour seems to have done is to interpret s 114 as imposing a requirement in every case for an identification parade, unless it was not reasonable to conduct one. Once this evidence was excluded, it was inevitable that the charge would be dismissed.

Proceedings before Davies J

45 The respondent (the DPP) appealed, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 against the order of the learned magistrate dismissing the charge. The DPP sought an order, pursuant to s 59(2) of that Act, setting aside the order of dismissal and remitting the proceedings to the Dubbo Local Court to be determined according to law.

46 When the matter came before Davies J, the error of law on the part of the learned magistrate was not clearly articulated. The matter proceeded before his Honour on the basis that the learned magistrate had misinterpreted, and therefore misapplied, s 114 of the Act when rejecting the complainant's visual identification evidence.

47 The argument before Davies J was run on the following basis. The DPP submitted that because the complainant had asserted to the police that the person who approached her flat was the applicant, the identification had taken place at that point in time so that it would not have been reasonable to have held an identification parade. It would have been impossible to have held an identification parade before that identification was made.

48 The applicant submitted that the words "before the identification was made" in s 114(2)(a) should not be read literally, but in the context of the whole of that part of the Evidence Act, with particular reference to the warnings that are required to be given in s 116. If that approach were followed, the applicant submitted that the words should be interpreted to mean "before the relevant witness gives visual identification evidence in court". The applicant submitted that if the words were read literally, an identification parade would never be necessary in a case involving "recognition evidence". This was because it would never be reasonable to hold a parade before the identification was made since the police would never know that the recognition was to occur. The applicant submitted that the words in s 114(3)(d) - "the relationship (if any) between the defendant and the person who made the identification" would be meaningless and would have no work to do.

49 Davies J rejected the applicant's interpretation. He did so on three bases:

(1)An important consideration was the time at which any identification of the applicant was made. The evidence of the complainant was that the person who approached the apartment block was the applicant. His Honour concluded that such an assertion amounted to an identification by the complainant of the applicant. That assertion was made to the police on 25 March 2010 and having been made at that time, i.e. at or about the time of the commission of the offence, it was an inescapable conclusion that it would not have been reasonable to have held an identification parade.

(2)A literal reading of the words "before the identification was made" was supported by the remainder of the section. That the "identification" was not referring simply to the identification given in evidence at the hearing, was supported by s 114(3)(c)(ii) which expressly envisaged that the identification could be made out of court and at about the time of the commission of the offence.

(3)A number of decisions supported the construction of the section put forward by the DPP. Those cases were DPP v Donald and Anor [1999] NSWSC 949 (Bell J), R v Thomason [1999] ACTSC 112 (Miles CJ) and R v D [2008] ACTSC 82 (Penfold J). There was only one decision which expressly adopted the applicant's interpretation, R v Taylor [2008] ACTSC 52 (Rares J). Davies J declined to follow the approach in Taylor on the basis that it involved a misreading of

s 114.

50 Davies J summarised the basis for his conclusion as follows:

"36In my opinion the scheme of the section is understood by looking to when the "identification" is first made by the witness. In that regard the "identification" is to be contrasted with the "identification evidence". If the witness has made an out-of-court identification it is at that time at which the reasonableness of holding the identification parade is to be considered. If the identification is made at or about the time of the commission of the offence the Court will have to consider whether it was not reasonable to have held a parade. If the identification was made at the time of the commission of the offence (e.g. a witness telephoning the police and identifying the person), it will clearly not have been reasonable to hold a parade because it will not have been practicable to do so. The words "or about the time of the commission of the offence" are sufficiently elastic that they may embrace more than minutes or even hours, and in some cases a few days where the investigation is lengthy. In such cases it will not have been impossible to hold such a parade and the matters in sub-s (3)(c)(ii) will need to be considered in determining whether it was not reasonable to hold one."

Application for leave to appeal and appeal

51 The draft Notice of Appeal set out five grounds of appeal. They all raised the central issue of the construction of s 114 and in particular, s 114(2) and the meaning of the words "the identification" in s 114(2)(a) and of the words "such a parade" as used in s 114(2)(b) and (c).

52 In oral submissions to this Court, the applicant eschewed any reliance upon Taylor's case. He submitted that he was prepared to accept that the word "identification" in subs (2)(a) could include an out of court identification but that the words "such a parade" as used in subs (2)(b) and (c) only referred to "an identification parade that included the defendant", i.e. the temporal element in subs (2)(a) was not included. The applicant submitted that this was the error in the approach of Davies J and in the cases upon which he relied, in particular R v D.

53 The applicant submitted that support for this approach was provided by such cases as Regina v Ford (NSWSC, unreported, 22 April 1998 - Barr J) and R v Buchanan [2004] NSWSC 816; 152 A Crim R 302 (Buddin J).

54 I have concluded that the decision of Davies J is correct.

55 Before addressing the submissions put to this Court, I need to say something about the approach in Taylor. I have concluded that the word "identification" as used in s 114(2)(a) does not refer to the giving of visual identification evidence in court but to "the act of identifying the defendant in some way as the person whom the witness could link in some way to the offence (that is making an assertion of the kind described in paragraph (a) of the definition of "identification evidence" in the dictionary to the Evidence Act)" (R v D at [12]).

56 In Taylor Rares J said:

"25 ...I am of opinion that the words "an identification" as used in s 114(1) apply to the identification, the subject of the identification evidence; that is the in court assertion that the accused was the person relevantly at the crime scene at the relevant time. Likewise, I am of opinion that when s 114(2)(a) refers to the requirement that an identification parade, including the defendant, be held "before the identification was made", it is referring to such a parade occurring prior to the giving of the identification evidence as defined in the dictionary to the Act. It is common ground that no identification parade was ever held or, ... contemplated ...

26 The Crown suggested that it would have been unreasonable to have held such a parade for two reasons. First, the Crown said that the contemporaneous identification made by each of the witnesses precluded any utility in, or practical ability to hold, an identification parade prior to the police ever knowing about the circumstances of the offence which the two witnesses were alleged to be observing.

27I reject that argument on the basis of the construction I have given to s 114(2)(a). That permits the identification parade to be held at any time prior to the witness entering the witness box."

57 With all due respect to his Honour's approach, there are a number of difficulties with that interpretation. His Honour's approach was based, to a large extent, on the decision of R v Taufua (NSWCCA, unreported, 11 November 1996). In that case, Barr J (with whom Priestley AP and James J agreed) found that "evidence of in court identification made before a jury at a trial was visual identification evidence for the purposes of s 114".

58 Taufua involved an armed robbery by several men. A witness before the trial described a man whom he had seen in the company of another of the robbers, Mr Price, whom the witness knew well and whose identity was not in issue. At trial the witness gave evidence that on the day of the robbery he had seen this man with Mr Price and that the two men had demanded money and the other man had threatened the witness with a knife. The witness identified the accused as the man he had seen with Mr Price on the day of the robbery.

59 An identification parade was held but the witness had been late and had not attended. He had not previously formally identified anyone as being the second man he had seen on the day of the robbery. Accordingly, his identification in court of the accused as the man he had seen on the day of the robbery in the company of Mr Price, was the first time the witness had identified the accused as the man he had been describing.

60 Barr J found that the identification was made only when the witness came to court. Barr J said at p 4:

"One may test the matter by asking whether before his in-court identification of the appellant Mr Little gave any visual identification evidence. The answer must be no. His evidence was of seeing a man in the circumstances I have mentioned whom he had seen a number of times before. The man's appearance was like the appellant's (if the jury should think that Mr Little's description corresponded with their own observations). That was evidence of circumstances consistent with the appellant's being the second man, but it did not identify him. Without the question and answer objected to there was nothing to link the evidence of what Mr Little saw at the railway station with the appellant as opposed to anybody else of that general description. That link was necessary before the evidence could be described as identification evidence - cf. the definition in the dictionary."

61 Since the identification in court was the identification evidence which was challenged and since there had been no identification parade, Barr J considered whether it would not have been reasonable to hold an identification parade before the identification was made in court. Barr J concluded that it was reasonable to have conducted an identification parade.

62 The questions for the court in Taufua were: when the identification was made for the purpose of s 114(2)(a) and once it was decided that the identification was made in court during the trial, whether that took the identification out of the scope of s 114(2)(a). The court decided that the identification was not made until during the trial and that s 114(2) applied in such a case. What the court did not decide was that any identification parade before the trial would satisfy s 114(2)(a) regardless of when the witness actually made the assertion that constituted the identification. It follows that Taufua does not support the interpretation of s 114(2)(a) in Taylor.

63 There are other considerations which raise problems concerning the approach to s 114 in Taylor. There is a clear distinction in s 114(1) between "identification evidence" and "an identification". Similarly, the distinction between "visual identification evidence adduced ..." in s 114(2) and "before the identification is made" in s 114(2)(a) must also be intended to distinguish the identification evidence from the making of the identification. Finally, the reference in s 114(3)(c)(ii) to "whether the identification was made at or about the time of the commission of the offence" indicates that "the identification ... made" in that subsection does not mean "identification evidence given at the trial". Such evidence could never be given "at or about the time of the commission of the offence".

64 As a matter of basic statutory construction, words such as "identification" should be given the same meaning when used in the same section. The interpretation of "identification" in Taylor would, however, give the word a different meaning when used in subs 114(2)(a) to that which it has elsewhere in the section.

65 Finally, the interpretation of s 114(2)(a) in Taylor fails to give to the words "the identification" their normal and usual meaning. The alternative interpretation has been applied in DPP v Donald; R v Thomason; R v Reed and Carberry [2003] ACTSC 6 and R v D. The interpretation in Taylor has not been applied in any other decision of a superior court.

66 In DPP v Donald and Anor, s 114 was considered by Bell J, who said:

"7The identification, upon which the prosecution relied, was the act of identification prior to the arrest of the two defendants. It was not possible for the police to have held an identification parade prior to that time.

...

10 Under s 114(2)(a) and subject to sub-paras (b) and (c), evidence of identification will not be admissible unless an identification parade was held "before the identification was made". The identification upon which the prosecution relied was made when Ms Flinders first saw the defendants on 28 November. Having regard to this circumstance it is an irresistible conclusion that s 114(2)(b) applied and the evidence of Ms Flinders as to visual identification was not rendered inadmissible for the want of an identification parade.

11I consider there is considerable force in the submissions advanced by Mr Berman, who appears on behalf of the informant, that had the police arranged an identification parade following the arrest of the two defendants any identification made at that parade by Ms Flinders might be said to have been contaminated by her earlier identification of the two women: Alexander v Queen (1981) 145 CLR 359 at 409; R v Carusi (1997) 192 A Crim R 52 at 55; and R v Clarke (1998) 97 A Crim R 414."

67 R v D was decided after Taylor. Penfold J, when construing s 114 reached the same conclusion as Bell J in Donald. Not only did Penfold J expressly reject the interpretation of "the identification" in s 114(2)(a) applied in Taylor, but she carefully examined the rationale underpinning the interpretation in Taylor (persuasively in my opinion) and demonstrated why that interpretation was wrong.

68 I have concluded that the interpretation of s 114 of the Act in Taylor is wrong and should not be followed.

69 Having abandoned any reliance upon Taylor, the applicant's submission in this Court was that the words "such a parade" as used in s 114(2)(b) and (c) were to be read as if they incorporated the words "an identification parade that included the defendant". No justification was provided as to why the whole of s 114(2)(a) should not be incorporated into the words "such a parade".

70 I can see no reason why the temporal element in s 114(2)(a) should not be included in the words "such a parade". As a matter of statutory instruction, the incorporation of the concept is warranted but its exclusion is not. On that approach, s 114(2)(b) would read "It would not have been reasonable to have held an identification parade that included the defendant before the identification was made". That was the approach which was followed by Penfold J in R v D. It is, with respect, the correct approach.

71 In order to test the correctness of the applicant's submission, the following syllogism was put to counsel by the Court. The syllogism assumed, as was accepted by the applicant, that the words "the identification" in s 114(2)(a) could refer to an out of court identification.

(i)If there were an identification parade held after the first identification, s 114(2)(a) would not be satisfied.

(ii)In such a circumstance, s 114(2)(b) would not be satisfied because an identification parade was actually held.

(iii)Similarly s 114(2)(c) would not be satisfied because the defendant had participated in the identification parade.

In those circumstances, the identification evidence would not be admissible. That is an absurd result and is indicative of error in the interpretation submitted by the applicant.

72 The applicant submitted that the interpretation of s 114 upon which he relied was consistent with the decisions in Ford and Buchanan. He submitted that in neither case had Barr J or Buddin J made reference to the time at which identification had first taken place. Rather their Honours had gone straight to the question of whether it would not have been reasonable to have held an identification parade that included the defendant.

73 It is true that neither Barr J in Ford nor Buddin J in Buchanan made reference to the time at which the identification had first been made. Had their Honours done so, however, the same result would have eventuated, i.e. the visual identification evidence would have been admissible. What seems to have occurred in those cases was that the factual evidence as to the unreasonableness of conducting an identification parade was so compelling that their Honours went straight to that issue, rather than fully analysing the section.

74 Put at its highest from the applicant's point of view, it can be said that those two decisions while not supporting expressly his interpretation of s 114 are not inconsistent with it. Equally, they are not inconsistent with the interpretation which incorporates all of s 114(2)(a) into the parade referred to in s 114(2)(b) and (c).

75 I have concluded that the interpretation of s 114(2)(b) relied upon by the applicant, which ignores the temporal element in s 114(2)(a) is not correct. It follows that the challenge to the decision of Davies J has not been made out and that the appeal against his decision fails.

76 I would grant leave to appeal but dismiss the appeal.

As agreed, there will be no order as to costs.

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Amendments

15 April 2013 - Typographical error
Amended paragraphs: 7

Decision last updated: 15 April 2013