R v Sotheren [2001] NSWSC 204

New South Wales Supreme Court

CITATION : R v Sotheren [2001] NSWSC 204 FILE NUMBER(S) : SC 70044/00 27/2/2001 1/3/2001 HEARING DATE(S) : 2/3/2001 5/3/2001 6/3/2001 JUDGMENT DATE : 26 March 2001

PARTIES : Regina Darren James Sotheren JUDGMENT OF : Dowd J at 1

COUNSEL : Ms M Cunneen- Crown Mr G Ikners- Accused SOLICITORS : Ms K Thompson- Crown Mr A Williams- Accused CATCHWORDS : Discretion to exclude evidence - Evidence improperly obtained - Admission unfair to accused LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 Bunning v Cross (1978) 141 CLR 54. R v Barbaro (2000) 112 A Crim R 551. R v Ireland (1970) 126 CLR 321. R v Lee (1950) 82 CLR 133. CASES CITED : R v McDermott (1948) 76 CLR 501. R Salem (1997) 96 A Crim R 421. R v Taousanis [2001] NSWSC 74. Ridgeway v The Queen (1995) 184 CLR 19. Swaffield v Pavic (1998) 151 ALR 151. DECISION : 1. Application refused.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

DOWD J

26 March 2001 70044/00 R v Darren James SOTHEREN

REASONS FOR JUDGMENT - On Application to Exclude Identification Evidence (Transcript page 183, 6 March 2001)

1 The applicant sought, by way of Notice of Motion, to exclude evidence of identification of the applicant based on witnesses viewing a video prepared by the police for such identification purposes. The application was made on the grounds that the film shown to the witnesses clearly conveyed the impression that the witnesses were in police custody at the time the video was taken, and that the use of the evidence is covered by ss114, 115, 135 and 137 of the Evidence Act 1995 ('the Act'), and that the evidence ought to be excluded under the provisions of those sections of the Act. 2 During the course of the hearing, the applicant also sought and was allowed to amend the Motion to seek to exclude the identification evidence pursuant to ss138 and 139 of the Act. 3 The applicant accused is charged in an indictment with four counts of Aggravated Robbery and one charge of Murder, all such offences having been committed on either 9 and 10 May 1999. 4 In a previous Application by the applicant to separate the counts in the indictment, I held that the evidence in support of each count was admissible in respect of each of the other counts, and thus dismissed the application on the basis that all counts should be heard together as the jury would hear the evidence of each matter in a trial of each count, in any event. 5 The subject police video comprises a presentation of the applicant for about ten seconds, in black and white photography, moving his head for about one second towards the camera and then back. He is wearing prison garb. Since the video is in black and white, although dark, the nature of this clothing is not obviously apparent. There are nine other persons similarly attired who are depicted in the video, the video also being in black and white, each person making similar movements for about the same length of time. 6 The video film was used for several witnesses to see if they could identify the applicant. This was undertaken with varying degrees of success. Two of those witnesses are to be called to give identification evidence in the trial of the applicant. 7 On the hearing of this application, statements of several witnesses were tendered. Oral evidence was given by the two detectives responsible for the matter and the prison social worker who was a qualified psychologist. The two detectives and the psychologist were present when the video film, from which the segment portraying the applicant was taken, was made.