AH-SEE v. HEILPERN & ANOR [2000] NSWSC 627

Reported Decision : [2000] 115 A Crim R 1

New South Wales Supreme Court

CITATION : AH-SEE v. HEILPERN & ANOR [2000] NSWSC 627 CURRENT JURISDICTION: COMMON LAW FILE NUMBER(S) : SC 10054/00 HEARING DATE(S) : 14/06/00 JUDGMENT DATE : 6 July 2000

Albert Ah-See - Plaintiff PARTIES : David Heilpern - First Defendant Richard Morley - Second Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : S. Odgers - Plaintiff P. Berman - Second Defendant M. Dennis (s) Western Aboriginal Legal Service SOLICITORS : S.E. O'Connor (s) for Public Prosecutions First defendant submitting. CATCHWORDS : 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. Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 s 424A Crimes Legislation Amendment (Sentencing) Act 1999 LEGISLATION CITED : Criminal Procedure Act 1986 s 108 Evidence Act 1995 (NSW) s59, s72, s81, s82, s85, s115, s138, Dictionary Evidence (Consequential and Other Provisions) Act 1995 Justices Act 1902 s109 Supreme Court Act 1970 s101 Viro v. The Queen (1978) 141 CLR 88 Repatriation Commission v. Vietnam Veterans' Association [2000] NSWCA 65 CASES CITED : Horton (1998) 104A Crim R 306 Hinton (1999) 103A Crim R 142 Esposito (1998) 105A Crim R 27 DECISION : Appeal dismissed