R v CARROLL, Guy Michael [2013] NSWSC 1031

Supreme Court New South Wales

Medium Neutral Citation: R v CARROLL, Guy Michael [2013] NSWSC 1031 Hearing dates: 24 & 25 July 2013 Decision date: 26 July 2013 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Application for exclusion of identification evidence refused Catchwords: EVIDENCE - admissibility of evidence in criminal proceedings - identification of an accused person in an out-of-court identification by array of photographs provided by police - where witness had previously given a description of the accused to police as having, among other features, tattoos and tattoos up to the neck prior to formal identification process - where witness said to have observed and interacted with the accused for some time before and after participating in subject offences - where witness both observed and spoke with the accused on subsequent occasion whilst in custody - whether observation and interaction with the accused on second occasion resulted in "displacement effect" - the conversation and meeting with the accused on second occasion is more accurately characterised as recognition of a person the witness was previously involved with capable of re-enforcing the original mental image of the person - array of photographs compiled by software which randomly selected photographs from a database that share "parameters of likeness" to photograph of the accused taken soon after date of subject offences - array of photographs included some photos exhibiting tattoos - a sound basis existed upon which the array of photographs was compiled - probative value of identification evidence not outweighed by the danger of unfair prejudice to the accused - application for the exclusion of the identification evidence under ss 135 and 137 of the Evidence Act 1995 refused Legislation Cited: Evidence Act 1995 Cases Cited: Alexander v R (1981) 145 CLR 395 Carusi (1997) 92 A Crim R 52 Festa v R (2001) 208 CLR 593 Knight v Brown [2004] 183 FLR 135 R v Blick [2000] NSWCCA 61; [2000] 111 A Crim R 326 R v Fisher [2001] NSWCCA 380 R v Marshall (2000) 113 A Crim R 190 R v Nguyen [2003] NSWSC 1068 THD v R [2010] 200 A Crim R 106 Category: Procedural and other rulings Parties: Regina Guy Michael Carroll (Accused) Representation: Counsel: P McGrath (Crown) P Strickland SC (Accused) Solicitors: Director of Public Prosecutions (Crown) Bell Lawyers (Accused) File Number(s): 2010/299363