Legal Research > Evidence Act tables

Sections 113-134

 

Part 3.9: Identification Evidence

Section 114: Exclusion of visual identification evidence


Mesiti aka Lewis
NSWDC (Ducker DCJ) 23.5.1996
Evidence Act 1995 (NSW) s.114 - 11y complainant identified accused from photos shown to her by police - police used photo of accused taken three weeks prior to arrest instead of at time of arrest
Held: s.114 does not apply to identification by police photos

Taufua
NSW CCA 11.11.1996
Evidence Act 1995 (NSW) s.114 - armed robbery - witness permitted to identify accused in court after not having previously identified accused - witness' evidence tended to place accused near site of robbery
Held: s.114 refers to in-court identification generally - evidence inadmissible because no prior identification parade held - no basis to conclude not reasonable to hold parade.

Ford
NSWSC (Barr J) 22.4.1998
Evidence Act 1995 (NSW) s.114 - stabbing murder of fellow prisoner in prison yard - evidence from two eye-witnesses to murder who recognised accused - both acquainted with accused from prison environment - no identification parade held or identification made from photographs - accused of distinctive appearance
Held: evidence admissible - not reasonable to hold identification parade because of familiarity of witnesses with accused and accused's distinctive appearance.

Tahere
NSW CCA [170] 23.6.1999
Evidence Act 1995 (NSW) - s.114 - witness described offender as 'an Islander with long black hair'- police did not conduct an identification parade on night in question because they could not find enough persons of similar appearance to accused - witness could not identify appellant from video of 17 faces - witness later identified accused in-court.
Held: s.114 applies to in-court identifications - prosecution failed to show within s114(2)(b) that 'it would not have been reasonable to have held'an identification parade at time reasonably proximate to trial - while it was impracticable to hold identification parade on night of offence no evidence that those circumstances were present at a time reasonably proximate to trial - appeal allowed.
DPP v Donald
NSWSC [949] Bell J 16.8.1999
Evidence Act 1995 (NSW) s.114(2)(b) - victim of robbery identified two accused in street 16 days after robbery resulting in arrest - Magistrate ruled evidence inadmissible on ground no identification parade had been held.
Held: evidence admissible - not reasonable to hold identification parade - had police held parade following arrest any identification made victim might be said to have been contaminated by earlier identification.

Thomason
ACT SC [112] Miles CJ 3.11.1999
Evidence Act 1995 (ACT) s.114 - assault in hotel - staff member identified accused as assailant minutes after assault occurred
Held: s.114 applies to out of court identification also - not reasonable in circumstances to have held an identification parade

Leroy & Graham
NSW CCA [302] 17.8.2000
Evidence Act 1995 (NSW) s.114 - affray and malicious wounding causing GBH - fight broke out at club during football carnival - employee seriously injured - witnesses identified offenders from photos taken by another employee at football match the following day - other witnesses made identification from police array of photos of all members of football club several months later - whether not reasonable to hold identification.
Held: dismissing appeal - touchstone is not whether 'possible'but whether 'reasonable'- no point holding parade for witnesses who identified appellants from football match because would only be identifying who they had seen at match - other factors included delay in obtaining names of suspects, large number of witnesses, witnesses and suspects left area.

Adler
[2000] 116 A Crim R 38; 52 NSWLR 451; NSW CCA [357] 23.8.2000
Evidence Act 1995 (NSW) s.114 - evidence of voice identification
Held: admissibility of voice identification is governed by relevance test only - there is no threshold test such as exists at common law or as exists under the Evidence Act for visual identification.

Lumsden
NSW CCA [83] 3.4.2003
Evidence Act 1995 (NSW) s.114(3) - drug supply - undercover operation - identification by undercover police officer - whether not reasonable to hold ID parade - whether directions on identification erroneous.
Held: evidence of police witness identifying A was subsidiary to primary identification by another police officer who knew A and whose evidence was not challenged on appeal - TJ's directions proper - once police witness had gone to A's home, executed search warrant, saw her and arrested her there was no point in holding an identification parade.

Razzak
NSW CCA [62] 19.3.2004
Evidence Act 1995 (NSW) s.114 - malicious wounding with intent to do GBH - stabbed stranger in street at night - complainant identified appellant from photographs saying he was 'not 100% sure' and that hair was different - videotape from surveillance cameras showed appellant near scene of offence shortly after stabbing - only issue at trial was identity of assailant
Held: appeal dismissed - weak identification evidence is not inadmissible, although alone it could not support a conviction: Pitkin (1995) 69 ALJR 612; Festa (2001) 208 CLR 593 at [51] - weaknesses in identification evidence appropriately emphasised by standard directions - evidence from the videotape could not be used to bolster weak identification evidence, but was admissible and relevant to issue of whether appellant stabbed complainant
Buchanan, Smith and Thomas
NSWSC [816] 10.8.2004, Buddin J
Evidence Act 1995 (NSW) s114 - murder - prison inmate stabbed to death in showers by three inmates - murder witnessed by another inmate - accused identified by witness from video of photographs of 194 inmates of relevant section of gaol - three accused placed in first twenty photos of array amongst Aboriginal inmates - Crown case 'bound to fail' without identification evidence
Held: application to exclude evidence refused - no error in failing to hold identification parade - not reasonable in circumstances of case - fact that witness recognized accused relevant - conduct of parade with inmates would have revealed identity of witness - logistical difficulties - complications if one or more suspects declined parade - probative value of evidence not outweighed by unfair prejudice

Derbas
NSWSC [972] 23.8.2004, Dunford J
Evidence Act 1995 (NSW) s114, 115 - murder of prison inmate - Crown witness gave evidence at Crime Commission - during evidence identified two accused from between six to twelve photographs - subsequently made statement to police - whether evidence could be given of initial identification at Crime Commission
Held: application to exclude evidence refused - s.115 did not apply because not identification made by someone from photos kept for use by police and shown to them by police - s.114 did not apply because picture identification is excluded by section - definition of 'picture identification'under s.115 not relevant to s.114 - s.114 definition does not require picture identification to be made from photos kept for the use of police officers - if s.114 did apply still admissible because one accused refused identification parade when arrested seven months earlier and identification made of second accused was recognition evidence - s.137 not applied - weaknesses in procedure can be dealt with in cross-examination, comments and directions to jury
 
O’Meara
[2006] NSW CCA 131, 28.4.2006
Evidence Act 1995 (NSW) s114 – cultivation of cannabis – admissibility of identification by neighbour where no identification parade
Held: no error in admitting evidence - identification parade superfluous in circumstances of case
 
Gonzales
(2007) 178 A Crim R 232 at [21]-[26]
Evidence Act 1995 (NSW) s 114
Held: following Reid [1999] NSWCCA 258 – phrase ‘is not admissible’ means not admissible if objection made – where no objection evidence not wrongly admitted
 
DPP v Walford
[2011] NSWSC [759]
Evidence Act 1995 (NSW) s114 – complainant alleged assaulted by W at party – did not know each other prior to assault – AVO made against W – complainant told police W had approached house in breach of order – no identification parade held – whether magistrate erred in excluded evidence of complainant
Held: magistrate erred in finding identification made by complainant in court - ‘before identification made’ referred to making of identification to police upon reporting incident – identification parade could not have been held prior to that time – evidence should not have been excluded.
Confirmed in Walford v DPP [2012] NSWCA 290

 


 

Section 115: Exclusion of Evidence of Identification by Pictures


Mesiti aka Lewis
NSWDC (Ducker DCJ) 23.5.1996
Evidence Act 1995 (NSW) s.115 - 11y complainant identified accused from photos shown to her by police - police used photo of accused taken three weeks prior to arrest instead of at time of arrest
Held: test under s.115(2) is whether photos, divorced from their context, suggest persons depicted are in police custody - being in custody of Corrective Services is not police custody as required under s.115(3) - photographic evidence can have high probative value - although evidence of identification not excluded under s.115 use of photograph taken prior to arrest created situation of prejudice sought to be avoided by s.115 and excluded under s.135.

Campbell
NSWSC (Howie DCJ) 24.2.1997
Evidence Act 1995 (NSW) s.115 - sexual assault and armed robbery of prostitute - upon reporting incident victim identified accused from bail reporting card - accused refused line up - photoboard produced from photo of accused taken four months before arrest - on voir dire police officer indicated he could have taken photo of accused at time of arrest but did not - at time of making up photoboard accused at Long Bay and police officer believed it was not reasonable to seek photo - used most recent photo available
Held: Crown must show it was not reasonably practical for photo to be taken of accused at any time after arrest, not just at time photoboard being produced - purpose of section is to allow jury to be aware that photo of accused was taken after his arrest - evidence excluded - even if evidence admissible would exclude under s.90 or s.137 - accused would wish to challenge victim's identification on basis that she had been shown earlier photo from bail card - unable to raise this challenge because of prejudice.

Barakat & Karapidis
NSWDC (Murrell DCJ) 7.5.1997
Evidence Act 1995 (NSW) s.115 - home invasion - upon arrest accused refused identification parade - witness identified accused from twelve photos - two photos were clearly mug shots with details at bottom of photo - five photos had white space where details could be - accused photo not one of these photos.
Held: (dismissing appeal) - s.115(2) aimed at eliminating danger of jury thinking accused has criminal record and danger that witness will be more inclined to pick accused if think they have a record - if mug shot is not of accused those dangers do not arise - evidence admissible unless photo of accused suggests accused was in police custody

Batty
NSW CCA 6.8.1997
Evidence Act 1995 (NSW) s.115 - robbery in company of pizza delivery man - victim shown four large photo books - each photo had a strip containing details - strip either covered by photo below or by plastic strip - evidence admitted - appellant argued photos suggested police custody because clearly concealed something, all persons displayed in similar posture, lighting, distance from camera and drab background, and most seemed unhappy
Held: test is whether photos themselves, without regard to context in which they are viewed, suggest accused was in police custody - photos themselves did not suggest police custody - nothing to suggest what was being concealed.

Maklouf
NSW CCA [94] 23.6 1999
Evidence Act 1995 (NSW) s.115(7) - assault with intent to rob - accused declined to participate in identification parade - witnesses identified accused from photos of accused standing outside Downing Centre - whether judge erred in not giving warning under s.115(7) - two photographs of accused within bundle of photos shown - whether prejudicial
Held: nothing in photos to suggest accused was in custody or known to police - s.115(7) requires request by accused for a warning - no prejudice arising from there being two photos of accused within one set of photographs - other photos depicted same persons - one photo depicted appellant from front and one in profile.
 
Nelson
NSW CCA [221] 10.8.1999
Evidence Act 1995 (NSW) s.115(7) - armed robbery - witness identified appellant from police photographs - police officer showing witness photographs said 'If you saw a photo of the man that held you up yesterday do you think you'd recognise him? I have a number of pieces of paper here each with pictures of males on them. Have a look and see if you see anyone you recognise'.
Held: words used by police officer carried implication police believed photographs included photo of suspect - risk that witness would be influenced to select photo which most resembled offender - in this case only finding open to judge was that evidence had substantial probative value - evidence was rightly admitted.
Held: fact that jury knows accused had prior criminal record or adversely known to police does not necessarily render trial unfair - s.115(7) warning shows expectation of legislature that use of photograph taken prior to arrest will not necessarily render evidence inadmissible - warning can mitigate if not eradicate prejudice - in this case prejudicial effect does not outweigh probative value.

 
F A P
NSW CCA [278] 6.9.1999
Evidence Act 1995 (NSW) s.115 - assault - victim shown three folders each containing three photos - folders included two photos of accused - both photos looked very different
Held: not good practice but judge made no error in discretion under s.135 / 137
 
Smith (Mundarra)
(1999) 47 NSWLR 419; NSW CCA [317] 21.10.1999
Evidence Act 1999 (NSW) s.115 - accused identified by police from bank security film.
Held: evidence by a witness identifying a person in a photograph to be someone they know does not fall within the definition of 'identification evidence'- s.115 does not apply.
(NB: High Court allowed appeal on basis evidence not relevant)

McKellar
NSW CCA [523] 11.12.2000
Evidence Act 1999 (NSW) s.115 - armed robbery - accused arrested in relation to other offences and released on bail - agreed to participate in line up but police unable to make arrangements - identified from photo board line up.
Held: appeal allowed on other grounds - 'in the custody of a police officer'does not mean on bail with verbal agreement to participate in line up.

Hennessy
NSW CCA [36] 27.2.2001
Evidence Act 1999 (NSW) s.115 - armed robbery - security camera photographs tendered as evidence at trial.
Held: evidence admissible - s.115 applies only to police photographs (per O'Keefe J) - s.115 applies only to picture identification evidence and these photos constituted real evidence of robbery (per Spigelman CJ)
Derbas
NSWSC [972] 23.8.2004, Dunford J
Evidence Act 1995 (NSW) s114, 115 - murder of prison inmate - Crown witness gave evidence at Crime Commission - during evidence identified two accused from between six to twelve photographs - subsequently made statement to police - whether evidence could be given of initial identification at Crime Commission
Held: application to exclude evidence refused - s.115 did not apply because not identification made by someone from photos kept for use by police and shown to them by police - s.114 did not apply because picture identification is excluded by section - definition of 'picture identification'under s.115 not relevant to s.114 - s.114 definition does not require picture identification to be made from photos kept for the use of police officers - if s.114 did apply still admissible because one accused refused identification parade when arrested seven months earlier and identification made of second accused was recognition evidence - s.137 not applied - weaknesses in procedure can be dealt with in cross-examination, comments and directions to jury

Ahmad
NSW CCA [460] 17.12.2004
Evidence Act 1995 (NSW) s115 - maliciously inflict grievous bodily harm with intent - assault on female in night club with glass - police attended home address of appellant to offer line up - advised by brother no way to contact appellant - complainant identified appellant from photos - whether line up should have been held - persons in photos unsmiling and solemn looking - whether photos suggestive of persons in custody
Held: dismissing appeal - not reasonable to hold line up where family refused to co-operate and police unable to locate appellant - police not required to do more than they did - although faces not smiling and some looked unhappy photos not suggestive of persons in custody
 
Darwiche
NSWSC [924], Bell J, 19.4.2006
Evidence Act 1995 (NSW) s115 – murder - offender in correctional centre for unrelated matter when witness made identification from photos – when offered identification parade offender indicated he wished more information on case before deciding
Held: evidence admissible – custody in correctional centre not in police custody – conditional reply to identification parade offer constituted refusal
 

Smith (No 3)

[2014] NSWSC 771, Garling J

Evidence Act 1995 (NSW) 137 – murder – S observed person at scene – later saw single photograph of A accompanying online news article about the murder - admissibility of identification evidence by S - unreliability - displacement effect

Held: Identification evidence by S is inadmissible under s 137.

When a person sees, or is shown, a single photograph rather than a photo array from which one photograph is chosen, it is obvious that an identification arising from that single photograph may be unreliable. As well, where the photograph is associated with the description that the person is wanted by the police, albeit for the provision of assistance, those difficulties are magnified: at [28]. Alexander (1981) 145 CLR 395 at 400.  Risk of displacement effect i.e. that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person. Real risk that S has, entirely unconsciously, substituted that image in the photograph for the image in his mind of the face of the person whom he saw

 


 

Section 116: Direction to Jury

Taliai
NSW CCA 11.4.1997

Evidence Act 1995 (NSW) s.116 - mal inflict GBH.
Held: no error in warning given as to identification evidence - statement in Domican that attention of jury should be drawn to any weakness in identification evidence does not require judge to refer to every weakness

Bruno
NSW CCA 7.7.1997
Evidence Act 1995 (NSW) s.116 - supply - identification evidence - police went to flat of appellant - one officer claimed saw appellant drop package out window - on retrieval found to be heroin - only other occupant of flat at time was female
Held: neither s.116 nor s.165 requires particular form of warning - warning did not comply with requirements because failed to express need for caution before accepting identification evidence and general reasons for such caution - Powell JA applied Domican as test - Studdert J stated that Domican principle that judge must warn of dangers of convicting on identification evidence found statutory expression in s.116

Clarke
(1997) 97 A Crim R 414
Evidence Act 1995 (NSW) s.116 - AR initially no identification parade because police believed witness impeded by balaclavas - on day of trial witness indicated could identify from photos - identification by photographs hurriedly arranged - whether direction to jury as to identification sufficient
Held: s.116 and s.165 now law rather than common law under Domican (1992) 173 CLR 555 - Domican warning can still be given if appropriate - greater protection provided under Evidence Act - greater emphasis on telling jury the reason why warning is necessary - discussion re content of warning - must refer to dangers of innocent people having been convicted on honestly mistaken evidence - do not have to tell jury it is 'dangerous to convict'- in this case warning both generally and specifically deficient.

Cook
NSW CCA 24.8.1998
Evidence Act 1995 (NSW) s.116 - aggravated armed robbery
Held: (dismissing appeal) - 'The requirements for a trial judge to warn the jury in relation to identification evidence are now to be found in ss.116 and 165(2), although to an extent those provisions particularly s.116 constitute a statutory enactment of the principles laid down in Domican'

Kingswell
NSW CCA 2.9.1998
Evidence Act 1995 (NSW) s.116.
Held: judge required to alert jury to 'special need for caution', both generally and in context of case - although no mandatory form of expression a warning should ordinarily include instruction that innocent people have been convicted on honestly mistaken identification evidence
Zammit
(1999) 107 A Crim R 489
Evidence Act 1995 (NSW) s.116 - murder and armed robbery.
Held: appropriate identification warning should include warning of need for special caution, explanation of reasons for caution and application of warning to facts - need for appropriate direction as to danger, including special need for caution, and explanation for reasons for caution and application of warning to facts established both under s.116 and s.165, and at common law

Nguyen
NSW CCA [285] 22.8.2000
Evidence Act 1995 (NSW) s.116(1)(a) & (b) - supply prohibited drug - identification evidence given by purchaser of drug.
Held: directions to jury did not comply with requirements - no reference made to delay in making identification, fact that identification made from photographs, specific dangers in circumstances and danger where identifying someone from different race.

Kirby
NSW CCA [330] 13.9.2000
Evidence Act 1995 (NSW) s.116 - robbery - jury given photos from security camera to make comparison during trial to accused.
Held: s.116 does not require specific wording in warning - depends upon facts of case - direction appropriate in circumstances - Domican accepted.

Camilleri
(2001) 127 A Crim R 290; NSW CCA [527] 19.12.2001
Evidence Act 1995 (NSW) s.116 - warning as to voice identification - police officer spoke to accused on several occasions during search - subsequently purported to identify accused's voice on surveillance tapes - adequacy of warning to jury
Held: allowing appeal - judge should have warned jury that fact that Crime Commission advised police officer he was about to hear the voice of the accused on the tape prior to making of identification affected reliability of evidence - Domican applied to s.165 and s.116 warning.

Nguyen
NSWSC O'Keefe J [1254] 18.4.2002
Evidence Act 1995 (NSW) s.116 - negative identification evidence - evidence by witnesses that suspect was not assailant - meaning of direction 'judge is to inform' jury of need for caution in relation to identification evidence.
Held: 'Identification evidence'definition applies to positive identification not negative identification - direction s116 is imperative and requires, as a matter of law, judge act in accordance with directives in section

Eldridge
NSW CCA [205] 3.6.2002
Evidence Act 1995 (NSW) s.116 - identification evidence given by two witnesses from photographs - one witness made positive identification - second witness chose two photos
Held: evidence admissible and relevant - not primary evidence of identification - s.116 warning does not require judge to lend judicial office to characterisation of matters of evidence as showing weaknesses in fact - would intrude on realm of jury - followed Cook 24.8.1998 - assumed, without deciding, requirements of s.116 corresponded with Domican

Coe
NSW CCA [385] 25.9.2002
Evidence Act 1995 (NSW) s.116 - robbery with violence
Held: discussion of what is required by warnings under ss 116 and 165 and relevant case law at [67].

Riscuta & Niga
NSW CCA [6] 6.2.2003
Evidence Act 1995 (NSW) s116 - supply drugs - admissibility of voice identification evidence - intercepted telephone conversations - relevance - probative value - whether trial judge's direction on voice identification evidence adequate - witness had heard appellant's voice in English on previous occasion and then in Romanian - overconfidence in witness - whether witness's prior familiarity with voice identified amounted to unfair prejudice to accused - whether trial judge's summing up was satisfactory.
Held: evidence properly admitted - directions and warnings not sufficient but appeal dismissed applying proviso.

Inamata
(2003) 137 A Crim R 510; NSW CCA [19] 14.2.2003
Evidence Act 1995 s116 - AR in company - identification directions
Held: dismissing appeal - sufficient instruction on factors that may have made identification unreliable to comply with ss 116 and 165 - appropriate to deal with issues affecting reliability of identification together rather than in respect of each witness - not necessary to refer to every conceivable "weakness" in identification evidence - directions concerning weaknesses need not follow a particular formula - sufficient if directions provide a sufficient understanding of potential weaknesses in particular evidence.

Demiroz
NSW CCA [146] 26.5.2003
Evidence Act 1995 (NSW) s116 - BE&S - identification of accused in issue
Held: TJ failed to give mandatory directions and warnings in accordance with s.116 - appeal allowed

Dhanhoa v The Queen
(2003) 217 CLR 1; HCA [40] 5.8.2003
Evidence Act 1995 (NSW) s116 - robbery in company with wounding and kidnapping - 4 men involved in offences - complainant identified appellant from photo board - appellant did not dispute identification or deny being in company of complainant but claimed left before violence commenced - no identification warning requested and none given
Held: warning under s.116 only mandatory where dispute as to reliability of identification evidence - no warning required here because no dispute

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.116 - multiple sexual assaults - multiple offenders - complainant described G as having ponytail - identified G from photo board - only 8 of 15 photos had long hair - no photos with ponytail - G had longest hair - whether evidence of identification unfair - whether directions as to identification evidence failed to refer to specific weaknesses in case
Held: appeal dismissed - no error in admission of evidence of identification - nothing distinctive about photo of G - process videotaped - directions as to identification evidence adequate - not necessary to give judicial authority to every defence argument or to draw attention of jury to every discrepancy in evidence
 
Hajje
NSW CCA [23] 23.2.2006
Evidence Act 1999 (NSW) s.116 – mal wounding – complainant shot in calf during fracas – inadequacy of identification evidence warning
Held: appeal dismissed – followed Dhanhoa [2003] HCA 40, 217 CLR 1 – direction only required where id evidence disputed – in this case no dispute that applicant present at time of offence – dispute was over conduct of applicant – no warning under s.116 required
 
Collins
[2006] NSW CCA 162, 22.5.2006
Evidence Act 1999 (NSW) s.116, 165 – aggravated robbery – complainant attacked in church yard by female assailant – complainant named accused as assailant to police – subsequently sought to withdraw identification – description of assailant provided by two eye-witnesses – witnesses suggested assailant of middle eastern origin – accused Islander – warning to exercise caution given in relation to both evidence of identification and evidence of description
Held: appeal dismissed – no error – while warning not required for descriptive evidence nothing to prevent trial judge giving direction where appropriate – in circumstances of case appropriate to point out weaknesses in descriptive evidence – although warning had potential to undermine exculpatory value of descriptive evidence, not unfairly prejudicial
 
Gardiner
(2006) 162 A Crim R 233
Evidence Act s.116 - possess firearms – firearms found in storage unit leased by appellant – claimed rented on behalf of bikie club where many others had access – evidence led from employers as to identification of appellant paying rent
Held: Identification direction adequate in circumstances of case – following Dhanhoa – warning only required where identification evidence in dispute – content of warning depends upon nature of evidence
 
Kanaan
NSW CCA [109] 13.4.2006
Evidence Act 1995 (NSW) s.116 — murder - negative identification evidence - witness gave evidence that A and B were not at scene of offence
Held: negative identification evidence does not fall within s 116 – if “evidence of a kind that may be unreliable” it falls within s 165 - mere fact that evidence favours accused is not good reason for not giving a s.165 warning – discussion as to content of direction [145]
 
Ilioski
[2006] NSWCCA 164, 10.7.2006
Evidence Act s.116 – malicious wounding – brawl outside nightclub – victim slashed and stabbed with knife – central issue was identification
Held:
[63] A judge is usually required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury so far as those cases are revealed by the conduct of the parties: Domican (1992) 173 CLR 555 at 561. However, because the seductive effect of honest evidence of identification has so frequently led to proven miscarriages of justice when the evidence is subsequently shown to have been mistaken, special rules apply in relation to identification evidence. Where such evidence is admitted as part of the Crown case (unless the identification is in the end not in dispute: Dhanhoa (2003) 217 CLR 1 at [19]–[22], [53]), the judge must isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence — whatever the defence raised and however the case is conducted: Domican at 561-562.
In circumstances of case warning adequate.
Held: failure to warn as to possible bias of witnesses not erroneous – warning presumes honesty of evidence – no reference to credibility of witnesses required
Held: affirmed Kanaan in relation to appropriate directions for negative (exculpatory) identification evidence
 
Mouroufas
NSW CCA [58] 9.2.2007
Evidence Act 1995 (NSW) s.116 — cultivate cannabis – appellant allegedly involved in harvesting plants – appellant claimed attended site but feigned back injury when realised what was involved and did not participate – two Crown witnesses claimed to see appellant undertake work in relation to plantation – no identification direction given
Held: no direction required – issue not identification of appellant but whether witnesses lied about what they claim to have seen
 
Trudgett
NSW CCA [62] 25.3.2008
Evidence Act 1995 (NSW) s.116 — sexual assault – complainant attended party at premises of accused – witness gave evidence he introduced accused to complainant under name of Adam – complainant gave evidence she was raped by person introduced to her as Adam – witnesses suggested accused entered and left premises around time of alleged assault – accuse claimed left party before assault – whether TJ erred in not giving direction under s.116
Held: appeal dismissed – rejected Crown submission that recognition evidence can never be included under definition of identification evidence – followed Dhanhoa – in circumstances of case not identification evidence but indirect evidence of presence – presence of accused ‘at or about the time’ of the offence not in dispute – once presence of accused is accepted detail of presence at specific time or location not relevant under s.116
 
Brown
NSW CCA [306] 17.12.2008
Evidence Act 1995 (NSW) s.116 — no request by defence counsel for warning due to tactical considerations - whether trial judge failed to adequately direct jury in relation to identification evidence – no warning given – both witnesses knew A - defence case at trial was that witness K could have readily recognised A - defence was that K had either deliberately implicated the applicant in revenge for certain matters.
Held: Leave pursuant to Rule 4 to raise this ground refused. Because the primary basis of the defence was a deliberate false identification, significant tactical issues arose. A case of deliberate false identification did not require identification directions. This was not a case where the requirement for directions was overlooked. Failure to seek a direction or warning was a considered decision made for tactical reasons.
 
Aslett
NSW CCA [188] 29.7.2009
Evidence Act 1995 (NSW) s.116 — security guards failed to identify accused from photo array – 18m later spontaneously identified accused in court during trial
Held: Evidence inadmissible and jury should have been discharged – directions to jury inadequate – failed to make clear weaknesses in identification and given directions authority of court



Part 3.10: Privileges
Division 1: Client legal privilege

Sections 117, 118, 119: Definitions, Legal Advice & Litigation

Pearson

NSW CCA 5.3.1996
Evidence Act 1995 (NSW) ss.118 & 123 - arson - fire damaged business premises - sought access to insurance documents subject to legal professional privilege.
Held: Act reverses Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 - privilege does not stand in way of obtaining access to subpoenaed documents in circumstances where access serves legitimate forensic purpose of accused in criminal trial

James
NSW CCA 30.7.1998
Evidence Act 1995 (NSW) s.118 - accused wrote statement for solicitor regarding offence - Crown called for production of statement for purpose of verifying date of making, not contents
Held: statement should have been protected by privilege and not produced - jury should have been warned that no adverse inference could be drawn from non-production of document.

Sharp
(2003) 143 A Crim R 344; NSWSC [1117] (Howie J) 3.12.2003
Evidence Act 1995 (NSW) s.117, s.119 - accessory after fact to murder - during execution of search warrant at home of accused answered telephone and spoke to solicitor in presence of police
Held: conversation overheard by police not covered by legal professional privilege - not a confidential communication in circumstances of case.
 
Mead v Mead
[2007] HCA Transcript 22.5.2007
Evidence Act 1995 (NSW) s.118, s.119 – appeal from Full Court of Family Court – Applicant husband and respondent wife in property dispute – respondent sold property in contravention of court order – judge at first instance inferred communication between solicitor and client as to existence of orders – on appeal Full Court found legal professional privilege constituted bar to drawing such inferences
Held: appeal allowed – legal professional privilege did not prevent trial judge from drawing inferences
 
Lysle
[2012] NSWCCA 20
Evidence Act 1995 (NSW) s.118 – child sexual assault – appellant asked in cross –examination
Had you told your barrister about that episode before (the complainant) gave evidence?
Did you bring to his attention when he was cross-examining her that he hadn't ever put to her that there was an occasion where you had carried her from her bed up?
Held: questions were unfair and should not have been asked - although the Appellant could claim professional privilege under s118 an accused person should not be asked for the first time in the presence of a jury about the content of conversations with his legal advisers - entitled to legal advice and the potential for prejudice is obvious.
 
In Lysle [2012] NSWCCA 20 the appellant was convicted of child sexual assault offences. During cross-examination the appellant was asked the following questions by the Crown:
Had you told your barrister about that episode before (the complainant) gave evidence?
Did it concern you that he didn't ask her any questions about that when he was cross-examining her?

Did you bring to his attention when he was cross-examining her that he hadn't ever put to her that there was an occasion where you had carried her from her bed up _?

Did it concern you that your barrister didn't ever put to (N) that she was aware that you were going to go into the caravan and take (the complainant) out?

The CCA The two questions that commenced “Did it concern you …” were not unfair. However, on the evidence, all questions were irrelevant and inadmissible since they could not substantially affect the assessment of the appellant’s credibility as required under ss 102 and 103 Evidence Act. The appeal was nonetheless dismissed because there was no miscarriage of justice.

 

Gittany (No.3)

[2013] NSWSC 1670, McCallum J

Evidence Act 1995 (NSW) s.119 – murder – accused served tendency notice in relation to victim – Crown called for all witness statements, conference notes and other notes in relation to potential witnesses of incidents contained in notice – whether such documents covered by legal professional privilege despite tendency notice

Held: privilege remains – followed Petroulias (2007) 176 A crim R 309

 

El-Zayet

[2014] NSWCCA 298

Evidence Act 1995 (NSW) s.118, s.119 – Crown prosecutor had handed to court document advising that DPP had determined there be no further proceedings – on application for costs the applicant sought access to that document on basis DPP had waived privilege – trial judge dismissed applicant's application - applicability of ss 118 and 119 - Whether privilege was waived when the legal advising report was handed to the Court.

Held: i) The primary judge erred in finding ss 118 and 119 applied. The procedure did not involve the adducing of evidence, and as such the Evidence Act was not engaged: [88]. (ii) The only person who could waive privilege was the Director or a person authorised by him: [117].  (iii) The Crown Prosecutor did not have implied authority to waive privilege, as such waiver was neither necessary nor incidental to the task of informing the court that the Director had made a direction under the Director of Public Prosecutions Act 1986, s 7(2)(b): [118].

 

  

Section 122: Loss of client legal privilege: consent and related matters

Trevenna

NSWSC [1276] Buddin J 18.9.2002
Evidence Act 1995 (NSW) s.122 - murder - at committal offender's legal representative spoke to magistrate and Crown solicitor - offered to plead guilty to manslaughter - Crown seeking to tender evidence of conversation as admission by accused
Held: evidence not admissible - not prepared to accept privilege lost in circumstances - not confident counsel communicated instructions (often use hypothetical scenarios when discussing plea bargains) - not clear on paucity of information what was being admitted - 'admission'did not provide direct support of Crown case - Court should be very hesitant to find accused changed instructions
 
Petroulias (No.22)
[2007] NSWSC 692, Johnson J, 29.6.2007
Evidence Act 1995 (NSW) s.119, 122 – fraud – application for production of conference notes between Crown and Crown witnesses
Held: production refused – Evidence Act applies to application for production through Part 75 SCR – material subject to privilege – confidential communication for dominant purpose of pending Australian proceedings – Crown decides application of duty of disclosure – calling of witnesses at committal and previous trial does not constitute waiver of privilege under s.122
 
Petroulias (No.24)
[2007] NSWSC 783, Johnson J, 12.7.2007
Evidence Act 1995 (NSW) s.119, 122 – fraud – application for production of notes between Crown witness and solicitor – witness obtained legal advice before giving induced statement to police – subsequently volunteered some of communications in earlier committal and trial proceedings – never advised of right under s.132 – no objection by Crown in earlier proceedings
Held: production ordered – communications were subject to legal professional privilege – although in hindsight witness should have been warned as to right under s.132 in circumstances of case disclosure consensual, knowing and voluntary – not made ‘under compulsion of law’ – volunteered in non-responsive manner
 
Wilkinson (No.3)
[2009] NSWSC 293, Johnson J, 1.4.2009
Evidence Act 1995 (NSW) s.122 – murder – pleaded guilty to murdering girlfriend after being found fit to plead – changed legal representatives and sought to withdraw plea before sentence – made ERISP interview with police revealing some communications between legal representatives and himself regarding guilty plea – further revelations made in affidavit tendered on behalf of accused – whether legal professional privilege waived
Held: accused waived client/solicitor privilege in regard to circumstances of entering original plea of guilty
 


 

Section 123: Loss of client legal privilege: defendants

Pearson

NSW CCA 5.3.1996
Evidence Act 1995 (NSW) ss.118 & 123 - arson - fire damaged business premises - sought access to insurance documents subject to legal professional privilege.
Held: Act reverses Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 - privilege does not stand in way of obtaining access to subpoenaed documents in circumstances where access serves legitimate forensic purpose of accused in criminal trial


 

Division 1B: Sexual assault communications privilege

Young
(1999) 46 NSWLR 681; 107 A Crim R 1; NSW CCA [166] 7.7.1999
Evidence Act 1995 (NSW) Part 3.10 Div 1B - sexual assault - appeal against interlocutory order declining to grant appellant access to patient's notes, records and files produced in response to subpoenas issued to Hospital, sexual assault service and psychiatrist - complainant disclosed she had depression, was previously admitted to psychiatric ward of hospital, previously sexually abused, and had withdrawn sexual assault allegation against another person - judge held Part 3.10 Div 1B applied and declined to grant access.
Held: Act does not apply to production of documents on subpoena - language of legislation covers only 'adduction of evidence in court'and cannot be construed so as to also apply to documents produced on subpoena - R v N (NSW CCA 21.7.1998) wrongly decided - appeal allowed

Developments since Young

* Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999 inserted Part 13 into Criminal Procedure Act - privilege applies to documents produced on subpoena. * Part 13 became Part 7 (ss.147-159) by Crimes Legislation Amendment (Sentencing) Act 1999. * For summary and discussion of provisions see Glenn Bartley, Sexual Assault Communications Privilege, 10.10.2000 (NSW Bar Association Criminal Law Section Seminar)* s.148(d) amended by Statute Law (Miscellaneous Provisions) Act (No.2) 2000 No.93, to commence 8.12.2000. * Renumbered ss.295-306 Criminal Procedure Act - commenced 3.7.2003


Lee
(2000) 50 NSWLR 289; NSW CCA [444] 18.10.2000
Criminal Procedure Act 1986 s.148(4)(a) - sexual offences - refused access to documents subpoenaed from Mission Australia where complainant stayed for some time after offences - meaning of "counselling, giving therapy to or treating the counselled person for any emotional or psychological condition" pursuant to s.148(4)(a)
Held: access granted - s.148(4)(a) refers to provision of expert advice and procedures by persons skilled, by training or experience, in treatment of mental or emotional disease or trouble - does not include someone merely seeking to assist - in this case social worker merely arranging counselling or listening to complainant.

Kremmer
(2000) 50 NSWLR 538;118 A Crim R 176; NSW CCA [529] 13.12.2000
Victim's Support and Rehabilitation Act s.84(1) & (2) - accused issued subpoena to Victim's Compensation Tribunal - judge upheld refusal of tribunal to produce documents under s 84(1).
Held: accused prohibited access to application for compensation, supporting documents and transcripts of applicant's evidence

 
Section 126A Definitions
 
 
 
RLP
NSW CCA [2009] NSW CCA 93, 8.4.2009
Evidence Act 1995 (NSW) s.126A, s.132, s.138 - sexual assault child aged 14 – appellant’s Doctor gave statement to police indicating appellant confessed to sexual assault of step-daughter – whether evidence a protected confidence under s.126A – whether failure to warn Doctor of right to object to evidence caused miscarriage – whether evidence obtained improperly because it breached Code of Conduct for Medical Practitioners and Article 17 International Covenant of Civil and Political Rights
Held: appeal allowed on other grounds – no error in admitting evidence – consideration given to effect of Children’s and Young Persons (Care and Protection) Act 1998 on evidence of doctor – failure to warn doctor about s.132 rights caused no miscarriage where appellant objected to evidence and doctor aware of objection – no breach of s.138
 
 
Leung
[2012] NSWSC [1451]
Evidence Act 1995 (NSW) – s.90, 126A – Crown application to adduce evidence of conversation between A and nurse at police station – A charged manslaughter – hysterical and very upset – nurse from Mental Health crisis team called in to assess risk of self-harm and mental health – A told nurse he had been “arguing a lot” with V – Crown case circumstantial, one of the circumstances being that A and V had been arguing – whether conversation an “admission” within s 90 – unfairness – reliability – whether relationship between A and nurse was a ‘protected confidence’ under s 126A
Held: Application dismissed. Conversation inadmissible – unfair to use evidence. Conversation within s 90 given the disclosures made by A to the nurse are previous representations that are plainly adverse to A’s interest in the outcome of the trial. They bolster the Crown's circumstantial case and are admissions. The relationship between a clinical nurse specialist who is called to a police station to make a mental health assessment and an accused person is a protected relationship under s 126A Evidence Act


 

Division 2: Other privileges

Section 128: Privilege in respect of self-incrimination in other proceedings

Fowler

NSWSC (Dowd J) 5.5.1997
Evidence Act 1995 (NSW) s.128 - murder - Crown proposed to call co-accused from previous trial in retrial - unrepresented by legal aid.
Held: witness may object to giving evidence which may incriminate themselves - Crown to satisfy judge that witness required to give evidence - certificate may be issued by trial judge where evidence likely to indicate that witness has committed an offence.

Fowler
NSWSC (Dowd J) 7.5.1997
Evidence Act 1995 (NSW) s.128 - murder - crown witness refused to give evidence despite explanation of certificate re self-incrimination.
Held: witness required to give evidence - seriousness of charge and importance of evidence.

McGoldrick
NSW CCA 28.4.1998
Evidence Act 1995 (NSW) s.128 - drug offences - sought to cross-examine police about allegations made at Royal Commission that arresting officer had taken bribes from alleged drug dealer - had further information from informant at Royal Commission not covered by certificate - Judge refused to grant fresh certificate
Held: certificate should have been granted - a voir dire should at least have been held to consider request.

Bikic
NSW CCA [537] 13.12.2001
Evidence Act 1995 (NSW) s.128 - appeal hearing - witness to be cross-examined by Crown - witness already convicted of offence - objection taken on basis of self-incrimination - possible appeal - witness fearful evidence may jeopardise appeal - whether 'reasonable grounds for the objection'.
Held: objection to answering questions on ground of self-incrimination overruled, subject to objection to particular questions.

Parkes
(2003) 147 A Crim R 450; NSW CCA [12] 17.2.2003
Evidence Act 1995 (NSW) s.128 - fraud - warning given to accused in presence of jury
Held: error to give warning in front of jury

Cornwell
NSWSC [660] 5.5.2003 Howie J
Evidence Act 1995 (NSW) s.128(8) - conspiracy import cocaine - accused giving evidence - whether sections applies to evidence of accused suggesting uncharged criminal conduct - what is a 'fact in issue'
Held: fact in issue is any matter that must be ultimately determined by jury - accused entitled to refuse to answer question in relation to uncharged criminal conduct in interests of justice certificate would be issued

Collisson
(2003) 139 A Crim R 389; NSW CCA [212] 29.7.2003
Evidence Act 1995 (NSW) s.128 - murder - 2 men approached victim in park in attempted robbery - victim shot by taller man - Crown claims appellant was shooter - other man charged with related offence - declined to give statement - proceedings still outstanding - called to give evidence on voir dire but declined to answer questions - TJ declined to grant certificate under s.128 - declined to adjourn trial until outstanding proceedings dealt with
Held: dismissing appeal - no error in judge finding that any evidence from co-offender would be inherently unreliable and declining to grant certificate or adjournment

Cornwell
NSWSC [45] 11.2.2004 Howie J
Evidence Act 1995 (NSW) s.128(8) - certificate promised by Howie J in trial (see above) - jury unable to decide on verdict and retrial ordered - application for certificate - new trial judge indicated certificate would prevent Crown using evidence of accused from first trial at retrial - late application for certificate - whether certificate should be granted
Held: certificate granted - section not intended to prevent evidence of accused at first trial being used at retrial - however no basis for declining to issue certificate where promised - cannot issue certificate on limited basis specifying evidence to be used at retrial - use of certificate depends on interpretation of trial judge - no basis for refusing to grant certificate despite lengthy delay in application
 
Collisson
(2003) 139 A Crim R 389; NSW CCA [212] 29.7.2003
Evidence Act 1995 (NSW) s.128 – murder – 2 men approached victim in park in attempted robbery – victim shot by taller man – Crown claims appellant was shooter – other man charged with related offence – declined to give statement – proceedings still outstanding – called to give evidence on voir dire but declined to answer questions – TJ declined to grant certificate under s.128 – declined to adjourn trial until outstanding proceedings dealt with
Held: dismissing appeal – no error in judge finding that any evidence from co-offender would be inherently unreliable and declining to grant certificate or adjournment
 

Cornwell

[2004] NSWSC 45, Howie J (see CCA and HCA below)      

Evidence Act 1995 (NSW) s.128(8) – certificate promised by Howie J in trial (see above) – jury unable to decide on verdict and retrial ordered – application for certificate – new trial judge indicated certificate would prevent Crown using evidence of accused from first trial at retrial - late application for certificate - whether certificate should be granted

Held: certificate granted – section not intended to prevent evidence of accused at first trial being used at retrial – however no basis for declining to issue certificate where promised – cannot issue certificate on limited basis specifying evidence to be used at retrial – use of certificate depends on interpretation of trial judge – no basis for refusing to grant certificate despite lengthy delay in application

 

MacArthur

[2005] NSWCCA 65

Evidence Act 1995 (NSW) s.128 – appeal against refusal of TJ to warn jury Crown witnesses had received immunity from prosecution

Held: s.128 certificate does not provide immunity from prosecution – only prevents any evidence given in current trial being used against witnesses

 

Hore; Fyffe

[2005] NSWCCA 3

Evidence Act 1995 (NSW) s.128(5) – prison murder – Crown witness admitted lying in statement to police as to presence of cellmate – declined to answer questions at trial – TJ refused to require witness to answer question under s.128(5)

Held: no error in approach taken by trial judge – evidence as to inconsistency of statement and directions sufficiently dealt with issue – no need to force witness to give evidence possibly incriminating him

 

Cornwell

(2006) 160 A Crim R 243, NSWCCA (see HCA judgment below)

Evidence Act 1995 (NSW) s.128 – see above (judgments by Howie J) – accused gives evidence at trial, is issued a certificate, and later seeks to exclude his evidence at the first trial from being tendered at retrial, relying upon the certificate –TJ would not grant s128 certificate thereby preventing appellant from giving oral evidence at his retrial - whether miscarriage of justice.

Held: certificate operates to protect evidence given by the appellant at his first trial which is within the terms of the certificate - appeal allowed - new trial ordered.

 

Lodhi

[2006] NSWSC 638 (Whealy J)

Evidence Act 1995 (NSW) s.128 – terrorism offences – application by Crown to force witness to give evidence - witness awaiting trial for terrorism offences – disputing records of interview.

Held: order refused – evidence suggests witness would be admitting to offences under Pakistani terrorism act – also not in interests of justice to force witness to give evidence taking into account importance of evidence, effect on witness' trial and anticipated attack on

credibility of witness.

 

Cornwell

(2007) 231 CLR 260, HCA

Evidence Act 1995 (NSW), s.128 – Crown appeal and cross appeal by accused against order of a new trial - conspiracy to import cocaine - retrial – first TJ admitted as circumstantial evidence telephone intercept conversations of domestic drug supply arrangements - accused granted certificate of protection under s128(6) to explain domestic drug supply -  certificate granted on basis conversations were not evidence of a "fact in issue" under s128(8) – In re-trial, second TJ ruled certificate should not have been granted because evidence came under s128(8) – evidence given by accused at first trial subject to a s128(6) certificate was thus admitted and the accused was convicted – second TJ also earlier ruled that s128(6) certificate would prevent accused's evidence being admitted as the retrial was another "proceeding" under s128(7) - whether first TJ erred in granting certificate under s128(6) – whether second TJ ruling on s128(7) was incorrect.

Held:  First TJ erred in granting s128(6) certificate as telephone intercept conversations went to a "fact in issue" under 128(8).  Section 128(8) is not limited to direct evidence that the accused did the act or had the requisite state of mind.  It applies to evidence by an accused from which the act or state of mind can be inferred, including circumstantial evidence.

Second TJ's ruling on s128(7) was incorrect as the section does not apply to re-trials.  Section 128(7) ensures evidence given at a trial is not used later in different proceedings.

NCW CCA erred in holding that first TJ's ruling on s128(8) prevented the second TJ's reception of the evidence at the second trial.  Second TJ was not bound by first TJ's ruling or certificate.

Matter remitted to CCA.

 

Hunter (No.11)

[2014] NSWSC, 1154 (Button J)

Evidence Act 1995 (NSW) s.128 murder

Held: if witness objects to giving evidence is granted certificate under s.128 judge will explain to jury granting of certificate and its effect

 

Simmons (No.6)

[2015] NSWSC, 418 (Hamill J)

Evidence Act 1995 (NSW) s.128 murder – co-offender had charge of murder reduced to accessory after fact them no billed – called to give evidence in trial against accused for murder – whether interests of justice to require witness to give evidence

Held: considered the following matters – no current outstanding proceedings – no bill not final and court would be reluctant to intervene if Crown chose to reinstate matter – adversarial proceedings would be fundamentally altered by compulsory examination if new proceedings brought – evidence significant – possibility of permanent stay if proceedings reinstated although hard to get – s.128 prohibits derivative use – disadvantaged if future proceedings brought – certificate granted and evidence required to be given

 



Division 3: Evidence excluded in the public interest

Section 130: Exclusion of evidence of matters of state

DPP v Smith

(1996) 86 A Crim R 308; NSW CCA 2 May 1996
Evidence Act 1995 (NSW) s.130 - committal proceedings for murder - magistrate refused application for use of pseudonyms for two Crown witnesses under public interest immunity.
Held: magistrate failed to adequately deal with material - Attorney General entitled to rely upon high importance of public interest immunity for police informers - application granted.

Eastman v The Queen
Fed Ct Canberra 25.6.1997
Evidence Act 1995 (NSW) s.130 - murder - Judge refused to allow accused to tender evidence of police investigations into other possible suspects in killing.
Held: s.130 closely reflects common law position - judge must conduct balancing exercise considering whether harm would be done by production of documents and whether administration of justice would be frustrated or impaired if documents withheld (i.e. no fair trial) - judge must first consider whether documents will assist accused - documents must be at least capable of being, if not likely to be, of some real assistance to accused in answering case made out against him - in this case accused failed relevance test.

Abdullah
NSW CCA [188] 7.7.1999
Evidence Act 1995 (NSW) s.130- drug offences - subpoena to police commissioner in relation to police informer - police made application to keep identity of informer secret - judge refused.
Held: claim can only be rejected if evidence will help prove innocence of accused - onus on accused to demonstrate this - consideration of authorities

AG v Kaddour & Turkmani
NSW CCA [456] 16.11.2001
Evidence Act 1995 (NSW) s.130- solicit to murder - refused police application that cross-examination be prohibited on the basis of public interest - concerned for safety of police informers
Held: appeal allowed - Judge failed to properly consider issue - judge focused primarily upon potential forensic interest of accused in investigating evidence of informers - had to strike considered balance between competing interests of adducing evidence and preserving confidentiality

Fandakis
NSW CCA [5] 1.2.2002
Evidence Act 1995 (NSW) s.130- interlocutory appeal - police officer seeking privilege against revealing name of informer in committal hearing
Held: protection of informer very important - magistrate bound to give Commissioner of Police opportunity to present further evidence - public interest required rejection of any question which would identify informer

Francis
(2004) 145 A Crim R 233; NSW CCA [85] 7.4.2004
Evidence Act 1995 (NSW) s.130 - interlocutory appeal - application for access to subpoena
Held: section does not apply to subpoena - only admission of evidence - must decide claim of public interest immunity on common law
 
Hawi (No.2)
[2011] NSWSC 1648; RA Hulme JA
Evidence Act 1995 (NSW) s.130 – trial for murder and riot – violent fight between rival motorcycle gangs at Sydney airport – over 150 civilian witnesses – application by Crown to provide all witnesses with pseudonyms
Held: application considered under s.130 and common law – principles of open justice and fair trial balanced with concern for safety of witnesses and potential to deter both current and future witnesses – do not need to make order for witnesses living overseas and witnesses who have not expressed concern for safety – for remaining witnesses need further information and proceed on case by case basis
 

Hawi (No.9)

[2011] NSWSC 1655, RA Hulme J

Evidence Act 1995 (NSW) s.130 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – application for pseudonyms for witnesses who have indicted fear for safety

Held: application granted – evidence provided established several witnesses have real; and genuine fear

 

AG(NSW) v Lipton

[2012] NSWCCA 156

Evidence Act 1995 (NSW) s.130, 131A – drugs – sentencing offender sought access to police documents in relation to possibility partner was a police informer – whether s.130 applied – appropriate test under s.130

Held: because person objecting to the production of material and the person required to produce the material was the same person s.130 applied (s.131A) – test under s.130 requires balancing

[39] Whatever may be the principle applicable under the general law, the test to be applied under s 130 is clearly a balancing exercise which requires the court to be satisfied that, relevant to the present circumstances, the public interest in preserving secrecy or confidentiality in relation to a category of documents outweighs the public interest in their production. In undertaking that balancing exercise, the court is required to take into account those factors identified in sub-s (5) as are relevant in the circumstances of the case. That exercise is not to be constrained by unexpressed rules derived from the general law, although the same result may be expected on either approach.