Director of Public Prosecutions (NSW) v Walford [2011] NSWSC 759

Director of Public Prosecutions (NSW) v Walford [2011] NSWSC 759

The complainant identified the Defendant to police on 25 March 2010 when she asserted that he was the person near her premises, and that identification occurred at or about the time of the alleged offence. Because the identification had already been made, it was not reasonable, or was impossible, to hold an identification parade before it. The Magistrate erred by treating the relevant identification as the in-court identification and by considering the possibility of mistaken identification as a reason for exclusion rather than as a matter going to weight.

Jurisdiction
Australia
Judgment Date
29 July 2011
Procedural Posture
Criminal Appeal / Appeal From an Order of Magistrate Eckhold in the Dubbo Local Court Excluding Visual Identification Evidence and Dismissing Proceedings
Outcome
Appeal allowed.
Legal Topics
['visual Identification Evidence' 'identification Parade' 'admissibility of Evidence' 'apprehended Violence Order Breach' 'construction of S 114 Evidence Act 1995']
['criminal Law' 'evidence'] ['visual Identification Evidence' 'identification Parade' 'admissibility of Evidence' 'apprehended Violence Order Breach' 'construction of S 114 Evidence Act 1995']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal From an Order of Magistrate Eckhold in the Dubbo Local Court Excluding Visual Identification Evidence and Dismissing Proceedings

Legal Issues

  1. 1 ["Whether the Magistrate erred in excluding the complainant's visual identification evidence under s 114 Evidence Act 1995 because no identification parade had been held." 'Whether the words "before the identification was made" in s 114(2) refer only to in-court identification or also include out-of-court identification.' 'Whether it was reasonable not to have held an identification parade where the complainant had identified the defendant to police at or about the time of the alleged offence.']

Ratio Decidendi

The complainant identified the Defendant to police on 25 March 2010 when she asserted that he was the person near her premises, and that identification occurred at or about the time of the alleged offence. Because the identification had already been made, it was not reasonable, or was impossible, to hold an identification parade before it. The Magistrate erred by treating the relevant identification as the in-court identification and by considering the possibility of mistaken identification as a reason for exclusion rather than as a matter going to weight.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' '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.' 'Remit the matter to the Local Court to be dealt with...