Background
In this case, the applicant sought leave to appeal against pre-trial rulings made by the ACT Supreme Court to temporarily stay proceedings. The respondent, who had pleaded not guilty to charges associated with a burglary, had applied to have proposed evidence of a photo board identification rejected. In staying the proceedings, Justice Gray had also expressed concern that a fair trial, per s 21 HRA, would not be possible, as certain items that were found at the scene of the burglary had not yet been properly DNA and fingerprint tested by the police.
Decision
The Court (Chief Justice Higgins) dismissed the application.
Reasoning
In his reasoning, his Honour first reviewed Justice Gray’s determination that the police had not complied with s 115 of the Evidence Act (Cth) in seeking identification evidence by photoboard rather than identification parade. The relevant part of section 115(5) of the Evidence Act (Cth) provides that:
Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless:
(a) the defendant refused to take part in an identification parade;
His Honour held that in light of the speculation as to whether the police accurately and fully conveyed a request for the respondent to take part in the identification parade, Justice Gray was “manifestly correct” (at 14) in finding s 115(5) had not been complied with.
Chief Justice Higgins noted that the applicant appeared to have misunderstood Justice Gray’s temporary stay of proceedings to be a permanent one. His Honour explained that Justice Gray had “stayed the proceedings until the prosecution availed themselves of an opportunity to correct a glaring omission in the evidence they could well address and should have addressed from the outset” (at 17). |
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