Regina v J W S Rose [No 10] [2001] NSWSC 1060

New South Wales Supreme Court

CITATION : Regina v J W S Rose [No 10] [2001] NSWSC 1060 CURRENT JURISDICTION: Common Law Criminal Division FILE NUMBER(S) : SC 70032/01 14/09/01 19/09/01 02-04/10/01 08-11/10/01 HEARING DATE(S) : 15-19/10/01 22-25/10/01 29-31/10/01 01/11/01 05-09/11/01 12-16/11/01 JUDGMENT DATE : 22 November 2001

PARTIES : Regina Jeffrey William Spencer Rose JUDGMENT OF : Kirby J

COUNSEL : C Maxwell QC (Crown) J Stratton (Accused) SOLICITORS : S E O'Connor - Crown Solicitor D J Humphries - LAC (Accused) CATCHWORDS : CRIMINAL PRACTIE & PROCEDURE - Direction to Jury on Identification - Request by Crown for a warning concerning identification evidence where such evidence is favourable to accused. LEGISLATION CITED : Evidence Act 1995 - s116 & s165 Jamison, Elliot & Blessington (1992)60 A Crim R 68 R v Baker [2001] NSWCCA 151 R v Baartman [2000] NSWCCA 298 CASES CITED : R v Stewart [2001] NSWCCA 260 R v Lewis (CCA, unreported, 8.9.98) R v Clout (1995) 41 NSWLR 312 R v Lowe (1997) 98 A Crim R 300 DECISION : Ref para 14

IN THE SUPREME COURT OF NEW SOUTH WALES criminal DIVISION KIRBY J 22 November 2001 70032/01 - REGINA v Jeffrey William Spencer ROSE Judgment [No 10] - Direction on Identification 1 KIRBY J: An issue arose during the trial in respect of which I gave a ruling, undertaking to later provide reasons. This judgment contains those reasons. 2 The Crown foreshadowed a request under s165(2)(a) of the Evidence Act, 1995 for a warning that certain evidence may be unreliable. The evidence was from a witness who identified the deceased at a time, and in circumstances, inconsistent with the Crown case. 3 It is the Crown case that the deceased went to the accused's flat at about 5.00 pm on 30 April 1982. She was travelling to Brisbane by bus that evening. The bus was scheduled to leave at 11.00 pm. She was supposed to meet friends beforehand at the New England Hotel. When she did not appear at the hotel, her friends became concerned. They went to the flat of Mr Rose, arriving at about 10.45 pm. Mr Rose answered the door. He told the deceased's friends that his wife was not there, and that she had "gone off with a young bloke" at about 6.30 pm. 4 The disappearance of Mrs Kristine Rose received considerable publicity. Within three days of her disappearance, on 3 May 1982, Mr Dawson came forward. He was the proprietor of the Centrepoint Laundromat in Armidale. He told the police that he had seen the photograph of the missing woman on television. He recognised her. She had been to his laundromat between 9.00 pm and 9.30 pm on the night that she disappeared (30 April 1982). He spoke to her. She told him that she was on her way to Brisbane by bus. 5 Mr Dawson was again interviewed on 26 May 1982, after the body of Kristine Rose had been found in a creek bed six kilometres from Armidale. He said that he was certain that the woman in the photograph was the woman in the laundromat. 6 The Crown relies upon s165(1)(b) of the Evidence Act, 1995, which is in these terms: "s165(1) Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (b) identification evidence; .... " 7 Once a party requests a warning, the Judge is obliged to provide that warning (s165(2)(a)), unless there are good reasons for not doing so (s165(3)). 8 Mr Stratton contends that the warning should not be given. He points to the definition of "identification evidence" in the Dictionary which accompanies the Act. Identification evidence is the identification of the accused. The definition is as follows: "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: