R v Matthew Thomas [2006] NSWDC 171

New South Wales District Court

CITATION: R v Matthew Thomas [2006] NSWDC 171

JUDGMENT DATE: 15 December 2006

EX TEMPORE JUDGMENT DATE : 04/15/2007

JUDGMENT OF: Nicholson SC DCJ

DECISION: Evidence of identification from photographic array - admitted [19].; Evidence of claimed recognition from prior encounters rejected as prejudicial - [30].

CATCHWORDS: Criminal Law - pre-trial voir dire - interlocutory judgment - admissibility of evidence - evidence of identification - objection to photograph array conducted by police - meaning of person in police custody - mug shots - non-immediate selection of accused photograph - general use of photographic identification in business, sport, driver's licences and passports - objection to evidence of recognition from prior encounters - probative value of evidence - prejudicial effect of such evidence.

LEGISLATION CITED: s. 115, s116, s137, s165 Evidence Act 1995 (NSW)

PARTIES: Regina Matthew Thomas

FILE NUMBER(S): 05/21/0295

COUNSEL: Defence: P.G.H Nematalla

SOLICITORS: Crown: Ms Donnah

JUDGMENT 1 On his way home from work on the 12th April 2005 Vasanthan Kandiah took a short cut across Parramatta Golf course. He was 50metres along a path that runs along the eastern border of the golf course when he was robbed by four youths. Matthew Thomas has been charged with robbing Mr Kandiah at that site whilst in company of three other youths.

2 His trial was set down for the 6th November 2006 at Parramatta District Court. The strength of the prosecution case against him hinges upon identification evidence of Vasanthan Kandiah. Three months after the robbery Mr Kandiah was shown an array of 20 photographs by police. The procedure was video taped. A CD was made of the computer program photo array as the displayed array was actually interacted with by a police officer at the direction of Mr Kandiah. The CD therefore contains a virtual replay of the computer screen display as responded to by Mr Kandiah. Mr Kandiah selected a photograph of the accused, Matthew Thomas, as being one of the persons who participated in the robbery.