Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Walford [2011] NSWSC 759 Hearing dates: 18 July 2011 Decision date: 29 July 2011 Jurisdiction: Common Law Before: Davies J Decision: (1) Appeal allowed. (2) Set aside the order of Magistrate Eckhold made 25 January 2011 at Dubbo Local Court dismissing the proceedings commenced against the Defendant for the offence of knowingly contravening a prohibition specified in an apprehended violence order. (3) Remit the matter to the Local Court to be dealt with according to law. Catchwords: CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - visual identification evidence - whether it was reasonable not to have held an identification parade - Complainant knew Defendant - s 114 Evidence Act - whether "identification" includes out-of-court identification. Legislation Cited: Evidence Act 1995 Interpretation Act 1987 Cases Cited: DPP v Donald [1999] NSWSC 949 R v Benjamin John Taylor [2008] ACTSC 52 R v D [2008] ACTSC 82 R v David Taufua (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 11 November 1996) R v Tahere [1999] NSWCCA 170 R v Thomason [1999] ACTSC 112 R v Trudgett (2007) 70 NSWLR 696 Regina v Fredrick Valdez Ford (unreported - Sup Ct, Barr J - 22 April 1998). Category: Principal judgment Parties: Solicitor for Public Prosecutions (NSW) (Plaintiff) Aaran Walford (Defendant) Representation: I Bourke (Plaintiff) C Smith (Defendant) Solicitor for Public Prosecutions (Plaintiff) S Oliver (Defendant) File Number(s): 2011/137698 Decision under appeal Date of Decision: 2011-01-25 00:00:00 Before: Magistrate Eckhold File Number(s): 2010/341306 Judgment 1The Director of Public Prosecutions appeals against an order of Magistrate Eckhold in the Dubbo Local Court on 25 January 2011 excluding visual identification evidence of a witness. The witness was the complainant in respect of an alleged breach of an apprehended violence order by the Defendant. 2The issue on the appeal was the proper construction of s 114(2) Evidence Act 1995. Background 3On 10 December 2009 the Defendant was alleged to have assaulted the Complainant at a gathering at a mutual friend's house. The Defendant and Complainant did not previously know each other prior to that date. 4As a result of the alleged assault the Defendant was arrested, and the police applied for and were granted a provisional apprehended violence order in respect of the Defendant for the protection of the Complainant. One of the conditions of the provisional AVO was that the Defendant was not to go within 100 metres of the premises at which the Complainant might from time to time reside or work or other specified premises being 14 Lovett Avenue, Dubbo. 5The provisional AVO became an interim AVO by virtue of an order of Dubbo Local Court made on 24 February 2010. 6On 25 March 2010 the Complainant informed the police that the Defendant had breached the AVO by approaching her residential apartment block and looking towards her apartment on the day of that complaint. She had observed the Defendant from a neighbour's apartment next door to her apartment. 7The Defendant was subsequently arrested on 20 October 2010 and charged with knowingly contravening a prohibition specified in an apprehended violence order. The evidence before the Magistrate 8The charge came on for a defended hearing on 25 January 2011 at Dubbo Local Court. At the outset of the proceedings the Defendant's solicitor informed the Court that identification was the issue in the matter. The Statement of the police informant, Senior Constable Ben Robinson, was tendered by consent and Senior Constable Robinson was briefly cross-examined. 9The Complainant was then called to give evidence. The transcript relevantly discloses the following: Q. Now ma'am do you know Mr Aaran Walford? A. No. Q. Do you mean by that you don't know him personally? A. No not personally, I mean besides what happened. Q. Besides what happened okay. If I take you back to Thursday 25 March of last year. At the time was there an apprehended violence order between yourself and Mr Walford? A. Yes. Q. And he was the defendant and you're what's referred to as a protected person? A. (No verbal reply). HIS HONOUR Q. You nodded, that's yes? A. Yes. PROSECUTOR Q. I'll just ask you to keep your voice as loud as possible ma'am. The microphone doesn't actually amplify it just records? A. Okay. Q. Now about 5pm on 25 March you were at a friend's house is that right? A. Yes. Q. And where is that friend's house in relation to your house? A. Next door to me. Q. Next door? A. Yeah. Q. And what did you see if anything when you were at your friend's house? A. It's a bit hard to remember - I can't really remember anything really. Q. Are you able to see your premises or your house from your friend's house? A. Yes. Q. And could you see anyone at or near your house? A. Yes. Q. And are you able to say who that person was? A. Yes. Q. And who was it? A. Aaran Crawford (as said). JULIAN: At this point I'm objecting to that response. HIS HONOUR: All right. Yes all right now I think we need to have a voir dire about the evidence, because the evidence that she has given is that she identified a person called Aaran who I anticipate for obvious reasons who that might be. 10Thereafter a voir dire was held in which the following evidence was given by the Complainant: PROSECUTOR Q. Now before that day you'd met Mr Walford is that right? A. Yes I think. I can't really remember. Q. You can't really remember? A. No it's too far away, too long ago. Q. Are you saying - A. I just remember the events that happened, like the assault wise stuff. Q. Okay an assault? A. Yes. Q. Now if I take - I want you to think about that day? A. Yeah. Q. And that assault. Had you seen Mr Walford before that day? HIS HONOUR Q. Before the day of the assault? A. I think just around. PROSECUTOR Q. If you had it was just around? A. Yeah. 11The Complainant then gave evidence of the original assault that led to the imposition of the AVO. After having described the assault and the fact that she rang the police, the Complainant gave the following evidence: Q. Did you see him again? A. Yes out the front. He was - I think he was taking his shirt off to egg people on. Q. So you were taking notice of what he was doing? A. Yeah because- Q. You were watching him? A. Yes. I was on the phone to my girlfriend. Q. And how did you feel after being assaulted? A. Upset, hurt. Q. Were you worried at all in relation to being assaulted again? A. Yes, him being out the front. Q. Him being out the front? A. Yep. Q. So you were watching him? A. Yes. ... Q. On the day of the assault I think you said that you were worried about where he was after being assaulted, you were on the phone to your girlfriend, you were watching him? A. Yeah yeah. Q. And was that because - why was that? A. Because he was out the front. 12She was then asked when she had seen him subsequent to the assault and this evidence was given: Q. And when was the next time you saw him. Was that the day you saw him at your house or did you see him before then? A. Yeah I've - I've seen him after the assault and stuff. Q. You've seen him after the assault? A. Yeah going next door across to me. Q. In the same block of flats? A. Yeah. Q. Okay and did you ring the police on those occasions? A. Yeah I have a couple of times and my neighbour has. ... Q. Okay today you gave evidence that you were at your friend's house and you saw him walk near your house? A. Yes he was going to flat four but he wasn't home. Q. To flat four? A. Yeah. Q. And what flat are you? A. Flat 10. Q. And so when you saw him how far away were you from him? A. I was in flat nine so he would have been probably from me to where he is now. Q. What about you to where Mr Walford is now? A. Yeah. HIS HONOUR: Seven metres. 13In cross-examination on the voir dire she gave this evidence: Q. And prior to that day 10 December 2009 you'd never met Mr Walford before had you? A. No. Q. You'd never come across him before had you? A. No I don't think - I don't know, no. Probably seen him around, that's it. Q. But you can't definitely say that you'd seen him around? A. No, no. ... Q. You weren't able to tell the police officers the name of the person that had assaulted you is that right? A. No because I didn't know him. Q. And you only know Mr Walford's name because you were given a copy of the AVO papers and that's how you learn of his name is that right? A. Yes, my neighbours know him. Q. So after that night in December 2009 you became aware of his name is that right? A. Yes. ... Q. And since that night and up until you say that you saw Mr Walford on 25 March last year you hadn't come across Mr Walford before had you? A. No I'm not sure, no. After the assaults and that I kept seeing him walk past my house, because I know where he was going. He jumped the fence. Q. When you- A. I see him a few times doing it. Him and his cousin or brother over there. ... Q. But it's true that you had been between December of 2009 and March 2010 you'd been mostly staying at other people's house and not your own is that right? A. Yep when I do come home my property, my clothes and stuff, I do see him. 14Senior Constable Robinson was then recalled and gave evidence on the voir dire as follows: Q. Senior Constable you're the officer in charge of this matter? A. Yeah that's correct. Q. Was there an identification parade held? A. No. Q. As part of your investigation? A. No. Q. Was there a reason for that? A. Because the victim knew who the offender was. Q. And what gave you that impression or gave you that belief? A. Just in regards to when I actually went to get the statement off her she just said his name straight out, it was him and because of the previous dealings that she'd had with him I believe that there wouldn't be any issue in that regard. Q. Was there any suggestion in the manner of her speech or the manner of identification that gave you cause to doubt otherwise? A. No there was nothing indicating that she didn't know who it was no. 15Argument then took place about the admissibility of the identification evidence. The Magistrate's reasons 16The Magistrate gave his reasons for excluding the evidence as follows: It is surprisingly difficult for a relatively minor manner (sic) as we have described it to adequately determine this. I think the scheme of the Evidence Act sets out a presumption that there will not be identification evidence admitted unless there has been a visual identification parade. Now that parade involves the potential of choosing amongst a number of other people and unsurprisingly it may in fact be a matter of informal policy or the policy of the particular officer, I do not know but it would be generally the case in apprehended violence order matters that an identification parade would be completely useless because the two persons would have - that is in a domestic violence context, would know each other very well but an apprehended personal violence order, which I take it this matter was, then it can be very different and this is a matter where the relationship between the two was not as strong as would normally exist, if I can put it that way, in an apprehended violence order. So the question arises in this particular case, looking at it specifically as to the relationship between the complainant witness who identified the defendant and that is the sole evidence in the case I might add, as to whether it was reasonable under s 114(2B) - sorry whether it was not reasonable to have had such a parade held. In factoring into account whether it was reasonable or not I have to take into account a range of different factors. The kind of offence, which in this case we have said on numerous occasions this is of lower gravity in the criminal calendar. The importance of the evidence in this case, it is in fact crucial as the identification is the only evidence of a breach that is alleged of the apprehended violence order. And lastly the practicality of holding an identification parade - sorry second last having the identification parade in relation to evidence, as to whether the identification was made at or about the time of the commission of the offence among other things. And lastly the appropriateness of having an identification parade, having regard among other things to the relationship between the defendant and the person that made the identification. Now one of the things that has been set out in the case law that I have described is a question as to what rational effect it would have had if there had been identification made in this case and I have evidence before me of the original identification by the complainant in the assault matter that saw the apprehended violence order created, which was it was a person who was fair, cross-eyed, had a beard and Aboriginal and wearing I think a yellow shirt and that constituted the evidence of identification in that particular case. The order was made. Now no doubt the stand to the order being made (sic) is not a relevant consideration except that it is not a criminal conviction in and of itself. I do not know if there was any criminal conviction that flowed as a consequence of the alleged assault. It is a matter which I have found difficult, not least because of the background of public policy involved which would potentially see police wondering whether they needed to have an identification parade in every case where there is an alleged breach of an apprehended personal violence order. But I do not think this case would really bear upon that question generally. It is restricted to this case and cases of this sort where there is not really any relationship between the defendant and the witness whose evidence is crucial of visual identification, as to whether an identification parade would have been required or not. I think it was reasonable to expect in the circumstances an identification parade would have been held and I say that because what has failed to be excluded from this case is the possibility that the witness has incorrectly identified the person she saw as being the defendant, both on the last occasion and on previous occasions that she called police . If she had had the identification parade it would have been possible to determine whether she correctly recognised the defendant from that previous assault or not and at this stage that possibility is not available to the defendant and it will no longer be possible because of course she has seen him here today whilst giving evidence. So I think that restricted solely to this particular case and to matters of this sort where there is no prior relationship of any significance between the defendant and between the witness who identifies them, it is a matter where I should exclude the evidence because an identification parade should have been held. Now I note that this is in no way any authority ... (not transcribable) ... anyone anyway because it is the Local Court but it is no way authority for any proposition that in all cases of an apprehended violence order breaches an identification parade should be held. In most cases there would be a significant relationship between the defendant and the witness, said to identify somebody in a breach proceeding and in this case there was not such a relationship and it is unusual in that regard. SO THAT EVIDENCE OF IDENTIFICATION IS EXCLUDED. (emphasis added) Legislation 17Section 114 Evidence Act provides: 114 Exclusion of visual identification evidence (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. 18The difference between the parties turned on what is meant by the words "before the identification was made" in s 114(2). The DPP contends that in a case such as the present, where the Complainant had asserted that the person who approached her flat was the Defendant, she had identified the Defendant at that point so that it would not have been reasonable to have held an identification parade. This is because it would have been impossible to have held an identification parade before that identification was made. 19On the other hand, the Defendant contends that the words "before the identification was made" should not be read literally but should be read in the context of this whole Part of the Evidence Act with particular reference to the warnings that are required to be given in s 116. The result, the Defendant submits, is that the words should be interpreted to mean "before the relevant witness gives visual identification evidence in Court". The Defendant submits that if the words were read literally an identification parade would never be necessary in a case involving "recognition evidence" because it would never be reasonable to hold a parade before the identification was made because the police would never know the recognition was to occur. Moreover, it is said 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. 20In my opinion, the Defendant's submission should not be accepted. In my opinion the Magistrate fell into error by not making a finding concerning when identification was first made and by confusing the weight to be accorded to the identification by the Complainant with the issue of whether the evidence ought to be excluded. My reasons are these. 21First, although the word "identification" is not defined in the Dictionary identification evidence is defined in this way: 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. 22Such a definition is entirely consistent with the ordinary dictionary definition of the word identify which is: Treat (in) as identical (with); associate (person, oneself) inseparably or very closely with (party, policy, etc); establish identity of, recognise; select by consideration. The reasonableness of not holding a parade 23The first question, therefore, is when any identification of the Defendant was made. The evidence of the Complainant was that she had asserted that the person who approached the block of flats was the Defendant. In my view such an assertion amounted to an identification by the Complainant of the Defendant. That is consistent with the definition of identification evidence . The assertion was made to the police on 25 March 2010. The assertion having been made at that time (at or about the time of the commission of the offence) it is inescapable that it would not have been reasonable to have held an identification parade. 24Secondly, contrary to the Defendant's submissions, a literal reading of the words before the identification was made is supported by the remainder of the section. That the "identification" is not referring simply to the identification given in evidence at the hearing finds support in sub-s (3)(c)(ii) which expressly envisages that the identification can be made out of court and at about the time of the commission of the offence. The inclusion of that matter as a consideration in the determination of the reasonableness of the holding of an identification parade supports the overall purpose of the section. This shows that the reference to identification being made in sub-s (2) is not a reference only to identification in court. 25Thirdly, a number of cases supports the construction of the section put forward by the DPP. In DPP v Donald [1999] NSWSC 949 the Complainant was robbed by 3 young women on or about 12 November 1998. On 28 November 1998 the complainant was driving her car when she saw 2 of the women and recognised them as 2 of those who had robbed her. She reported the matter to the police and they were arrested. Her evidence as to identification of the 2 women was held by the Magistrate to be inadmissible because there had been no identification parade. 26On appeal, Bell J said: [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. [8] Section 114(2) provides that visual identification evidence adduced by the prosecutor is not admissible unless: [9] (a) An identification parade including 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) that 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. [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 Mrs 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. 27But Bell J went further because she then said: [11] I 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. 28In R v Thomason [1999] ACTSC 112 a security officer at a hotel saw a man strike another customer in the face with a glass. After calling for an ambulance, the security officer saw the man again and identified him to another person as the man who had attacked the customer. The prosecution proposed to call the witness to give evidence of his identification of the accused as the attacker but the defence argued that the evidence should be excluded under s 114 because no identification parade had been held. 29Miles CJ said this: [8] I ruled initially that the evidence proposed to be called was visual identification evidence within s114 and that it was inadmissible because no identification parade had been held as required by s114(2)(a). The ruling was not accompanied by a statement of reasons, but my reasons would have emerged during discussion with counsel during submissions. The submissions of counsel concentrated on the question whether the evidence proposed to be called was visual identification evidence within the meaning of the section, and my attention was not drawn to s114(2)(b). [9] Overnight I became aware of the provisions of s114(2)(b). Without the assistance of further submissions, I formed the provisional view that it would not have been reasonable to have held an identification parade before the identification of the person in question by John Daniel to the other member of the hotel staff, since the identification took place only a few minutes, at the most, after the attack on the customer and before police arrived. I therefore concluded that I was in error in ruling the evidence inadmissible under s114. However, I formed the further provisional view that to give leave for the evidence to be called on the second day of the trial would have been to give it unfair emphasis and that accordingly its prejudicial effect against the accused outweighed its probative value, and thus, although admissible, it should not be admitted into the trial. 30In R v D [2008] ACTSC 82 the Complainant was assaulted in December 2006 near some shops. He immediately went to his workplace at the shops and told workmates that he had been assaulted by the Defendant. The next day he reported the assault to the police and again named the Defendant as one of his assailants. The Complainant knew the Defendant because they had attended the same primary school for some years. It was sought to exclude the evidence of identification of the Defendant. 31During the course of the trial counsel for the Defence objected to identification evidence by the Complainant on the basis that s 114 applied to exclude it. Penfold J refused the application to exclude the evidence and subsequently provided her reasons. She first determined that the words "such a parade" in s 114(2)(b) were a reference back to the parade described in para (a). She then said this: [12] My next step was to interpret "the identification" as used in para (b) to mean 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 para (a) of the definition of "identification evidence" in the Dictionary to the Evidence Act). [13] Paragraphs 114(2)(a) and (c) had no direct application to the case, and there was no suggestion that the complainant had been intentionally influenced to identify D. Accordingly, the operation of s 114(2) in this case turned entirely on whether par 114(2)(b) was satisfied. [14] The report to the complainant's workmates, and then the formal complaint to the police the next day, both included a naming of D as the assailant. I considered this to be an identification for the purpose of para 114(2)(a). On that basis, it would not have been possible for an identification parade that included D to have been held before the identification was made. Having concluded that such a parade would have been impossible to hold, I found that it would, in the words of para 114(2)(b), not have been reasonable to have held it. Therefore, the test in para 114(2)(b) was satisfied and evidence of that identification was not inadmissible under s 114. 32The Defendant relied on a decision of Rares J when his Honour sat as a Judge of the Supreme Court of the ACT in R v Benjamin John Taylor [2008] ACTSC 52. In that case the Crown sought to lead identification evidence from 2 witnesses who had known the Accused for a period prior to the occasion of the alleged offence. They gave evidence on the voir dire that on the day of the offence they saw the Accused driving a vehicle away from the Complainant's property. 33Rares J in para [14] identified the issue as: Whether the evidence proposed to be given is evidence of an identification which was made before any identification parade could have been held within the meaning of s 114(2) of the Evidence Act . He referred to the 2 bases upon which the Crown sought to make the evidence admissible. The first and only relevant basis for present purposes was that the statements that had been made by the witnesses prior to the trial were the "identification" to which the definition in s 114(1) applied and thus the "identification" referred to in s 114(2)(a). 34His Honour went on to say: [22] In s 114(1) the further definition of "visual identification evidence" captures what already exists as "identification evidence", and refines it to a particular kind of identification evidence, namely, that "relating to an identification based wholly or partly on what a person saw ..." (my emphasis). The words "relating to" are words of wide import: cf Fountain v Alexander (1982) 150 CLR 615 at 629 per Mason J. The question is what does "an identification" in that definition mean? The Crown argued it means simply the act of identification at the original time it occurred and not the assertion referred to as part of the definition of identification evidence. [23] I am of opinion that the natural and ordinary meaning of the word "identification" when used in the definition in s 114(1) must be the particular identification in the identification evidence, that is, the assertion of the witness that the accused is the person connected to the crime the subject of the dictionary definition. [24] In Clifford v R [2004] TASSC 16 at [26] Crawford J, with whom Underwood and Slicer JJ agreed, referred to the decision of the New South Wales Court of Criminal Appeal in R v Smith [2000] NSWCCA 468 at [83]-[89] and cited what was said by Wood CJ at CL with whom the other members of the Court of Criminal Appeal agreed. The Chief Judge said in Smith [2000] NSWCCA 468 at [83]: Viewed literally, every criminal trial involves identification evidence within the wide meaning given to that phrase in the dictionary to the Evidence Act . The evidence of any eye witness who gives evidence, based upon his or her own observations, that the accused was present at the place where the offence charged occurred, falls literally within that definition. Yet common sense would suggest, in such a case, where such evidence was not in issue, that there would [be] little if any point served in giving the s 116(1) direction." (emphasis added) [25] Here, of course, such evidence is in issue. 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, as far as the evidence reveals, contemplated in respect of Daniel or Jesse Robinson (or indeed Mr Isaac Nash-Basnet who the Crown said in the course of argument today will not be asked about this in-chief). [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. [27] I 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. Such a view appears to be consistent with other decisions, although those are given in different contexts: see eg. R v David Taufua (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 11 November 1996 per Barr J, with whom Priestley AP and James J agreed, BC 9605430). 35With great respect to Rares J I neither agree with his conclusion that the words "an identification" is a reference to the in-court assertion by the witness where there has been an earlier out-of-court identification, nor to the support he says that R v David Taufua ( supra ) provides for the view to which he came. As Penfold J pointed out in R v D at [28]-[29], Barr J in Taufua distinguished between in-court identification and other identification, and noted also that on the facts of that case the witness had not given any visual identification before his in-court identification. A similar distinction can be inferred from R v Tahere [1999] NSWCCA 170 at [27]. 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. 37If the identification, however, occurs for the first time in Court the provisions of s 114(2) will be clearly engaged as in Taufua . Indeed, it was against the giving of that sort of evidence for the first time in Court that the provision was enacted. In that regard, I respectfully agree with the whole of Penfold J's careful analysis of Taylor and Taufua and of her statutory interpretation and policy considerations at [20]-[58] in her judgment in R v D . 38The Defendant submits that, if the relevant visual identification evidence is evidence of a witness that it was a particular person who assaulted the complainant (which the Defendant called "recognition evidence" following R v Trudgett (2007) 70 NSWLR 696), then in no such case would the words concerning the relationship in sub-s (3)(d) have work to do. This appears to be because it would be impossible to hold a parade before that identification was made, and so one would never reach the stage of having to consider the relationship issue in sub-s (3). 39I do not agree. In coming to the view about whether it would not have been reasonable to have held such a parade the relationship between the parties would still have to be considered. That would involve a consideration of when, how well, and in what circumstances the witness knew the person said to be the Defendant. That would have to be determined before it could be ascertained that there had been an "identification" by the witness. I accept that in cases where there has been an "identification" in an out-of-court statement one would no longer consider the relationship issue. 40But in any event, even if those words have no work to do in the sort of case described, there are other cases where there would be a need to consider the relationship to determine if it was reasonable not to have held the parade. As in Taufua the witness may give evidence that a person's appearance was like the Defendant's, or that he thought he recognised the person. In such a case there may not have been identification by the witness but the issue of the relationship between the witness and the Defendant would be part of the consideration of the reasonableness or not of holding the identification parade: Taufua at p.11 ("despite a degree of familiarity ..."). See also Regina v Fredrick Valdez Ford (unreported - Sup Ct NSW, Barr J - 22 April 1998). 41The Defendant submits that I should take into account what the Australian Law Reform Commission said in its final Report which led to the Evidence Act at para [187] as follows: [187] Recommendation. Consideration has been given to providing more guidance as to what may or may not be 'reasonable'. For example, if the eyewitness saw someone he or she knew committing the crime, there would be little point in holding a parade. It is not possible, however, to draft an exception on this basis because of the range of knowledge or acquaintance that may be involved in particular cases. Similar problems arise in drafting an exception where the defendant refuses to co-operate. The proposals have been amended, however, to make it clear that, in deciding the reasonableness question, the appropriateness of holding a parade is a separate consideration and it is relevant to consider whether the suspects refused to co-operate, whether the identification was made at or about the time of the offence and the relationship between the defendant and the identifier. Subject to these changes it is recommended that the interim proposals be implemented. 42The Defendant submits that s 3(3) Evidence Act permits the use of this material. The sub-section is, however, subject to s 34 Interpretation Act 1987 which applies "if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision". I do not consider that such a situation obtains in the present case. There does not seem to me to be ambiguity in s 114 nor any particular difficulty in construing it. 43The Defendant draws particular attention to what is said in para 187 of the ALRC report that it is not possible to draft an exception on the basis that an eyewitness saw someone whom he or she knew committing the offence. However, as is made clear later in the paragraph, when the reasonableness of holding the parade is considered the relationship between the defendant and the identifier (if any) becomes relevant. Accordingly, even if resort was to be had to para 187 of the ALRC Report, it does not appear to me to provide any support for the Defendant's principal contention that the identification with which s 114 is concerned is only identification in-court on the basis that in recognition cases there is no work for sub-s (3)(d) to do. 44In the present case Senior Constable Robinson gave evidence that the Complainant had identified the Defendant to him when he went to get a statement by saying his name. The Complainant had given evidence that she had seen the Defendant between the date of the assault and the time when he approached her house and she rang the police. She also gave evidence that it was the Defendant out the front of her house taking his shirt off to egg people on. In all of those circumstances the Complainant had identified the Defendant, and that identification (i.e. an assertion by her to the effect that the Defendant was present at the place where the offence for which the Defendant was being prosecuted was committed) took place at or about the time of the commission of the offence. 45The 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. Nowhere does he say that her report to the police on 25 March 2010 was the relevant identification although he said he had evidence of the "original identification" by the Complainant. The Magistrate should have so concluded. 46After determining that the Complainant had made the identification on 25 March 2010 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. Alternatively, and because of the latter matter, he ought to have held that it was impossible to have held an identification parade before the identification with the result that it was reasonable not to have done so. 47The Magistrate also held that the prosecution had failed to exclude the possibility that the Complainant had incorrectly identified the person she saw as being the Defendant. That was the wrong principle to apply. Whether or not she had correctly identified him was a matter for consideration after the question of the admissibility dictated by s 114(2) was determined. 48The Defendant was free, after the evidence had been admitted, to challenge the Complainant's identification of the Defendant. Although there had been an identification of the Defendant by the Complainant it would be open to the Defendant to assert that her identification was mistaken. The Magistrate would at that point need to have regard to the weight of the Complainant's evidence of identification to consider whether it should be accepted. That was, however, a different and later consideration from the issue of its admissibility. Conclusion 49I make the following orders: (1) Appeal allowed. (2) Set aside the order of Magistrate Eckhold made 25 January 2011 at Dubbo Local Court dismissing the proceedings commenced against the Defendant for the offence of knowingly contravening a prohibition specified in an apprehended violence order. (3) Remit the matter to the Local Court to be dealt with according to law. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2011