R v CARROLL, Guy Michael [2013] NSWSC 1031

R v CARROLL, Guy Michael [2013] NSWSC 1031

The identification evidence was admissible because Markham's evidence, if accepted, showed several direct opportunities to observe and converse with the third man on 22 August 2010, and his later prison meeting with the accused was more accurately characterised as recognition capable of refreshing or reinforcing his original mental image rather than displacing it. The photographic array had a sound basis, being compiled by software using parameters of likeness from a recent photograph of the accused and including photographs with tattoos. The probative value of the identification evidence outweighed by a considerable margin any asserted danger of unfair prejudice to the accused.

Jurisdiction
Australia
Judgment Date
26 July 2013
Procedural Posture
Criminal Proceedings on Indictment / Voir Dire Hearing on Application to Exclude Identification Evidence Before Jury Trial
Outcome
Application for exclusion of identification evidence refused.
Legal Topics
['identification Evidence' 'photographic Identification' 'admissibility of Evidence' 'unfair Prejudice' 'displacement Effect' 'evidence Act 1995 Ss 135 and 137']
['criminal Law' 'evidence'] ['identification Evidence' 'photographic Identification' 'admissibility of Evidence' 'unfair Prejudice' 'displacement Effect' 'evidence Act 1995 Ss 135 and 137']

Case Brief

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Procedural Posture

Criminal Proceedings on Indictment / Voir Dire Hearing on Application to Exclude Identification Evidence Before Jury Trial

Legal Issues

  1. 1 ['Whether formal photographic identification evidence by Gary Markham should be excluded under ss 135 and 137 of the Evidence Act 1995.' 'Whether a later conversation and meeting between Markham and the accused in custody created a displacement effect contaminating the identification.' "Whether the array of photographs was unfair because few photographs depicted tattoos or neck tattoos corresponding with Markham's description of the third man."]

Ratio Decidendi

The identification evidence was admissible because Markham's evidence, if accepted, showed several direct opportunities to observe and converse with the third man on 22 August 2010, and his later prison meeting with the accused was more accurately characterised as recognition capable of refreshing or reinforcing his original mental image rather than displacing it. The photographic array had a sound basis, being compiled by software using parameters of likeness from a recent photograph of the accused and including photographs with tattoos. The probative value of the identification evidence outweighed by a considerable margin any asserted danger of unfair prejudice to the accused.

Court Disposition

Application for exclusion of identification evidence refused.

Orders

  • ['The application for exclusion of the identification evidence under ss 135 and 137 of the Evidence Act 1995 is refused.']