Section 114 of the Evidence Act requires that identification evidence adduced by the prosecutor be rejected unless certain preconditions are met. The offer of a parade must be rejected, or else it must have been not reasonable (in the opinion of the court deciding whether or not to admit the evidence) for one to be conducted. When assessing the reasonableness of conducting a parade, the time at which the identification was made must be precisely identified. If it occurs out-of-court and at, or near, the time of the offence alleged it will often simply not be possible for a parade to have been conducted prior to the identification, making the test for admissibility easy to satisfy : Walford v DPP  NSWCA 290.
This case was heard at first instance at the Local Court at Dubbo. It was dismissed, and the DPP appealed the case to the NSW Supreme Court, where Davies J determined that the presiding magistrate had incorrectly decided to reject the identification evidence, and returned the matter to Dubbo: DPP (NSW) v Walford  NSWSC 759.
The accused appealed Davies J’s decision, and the matter went before the NSW Court of Appeal. Though their reasoning differed (Basten and Hoeben JJA each set out their own path but arrived at the same conclusion, while Beazley JA declined to choose between them) there was a consensus that the matter had been incorrectly decided at first instance, and Davies J had been correct to reverse the dismissal of the charges. Leave was granted but the appeal dismissed, and the matter returned to Local Court to be dealt with according to law.
Aaran Walford (who I’ll sometimes refer to as the accused person here, though the roles of the parties kept changing as the matter progressed through the court hierarchy) had an interim Apprehended Violence Order prohibiting him from having contact with the complainant, and from coming within a specified distance of her address. The AVO had been granted because of an incident occurring at a mutual friend’s house in December 2009. The two didn't know one another prior to that incident, and had not seen each other since (except at court, perhaps) until the complainant reported to police that she had seen him outside her home in March 2010.
The complainant didn't look at photographs or a parade of people. She simply told the police that she had seen Aaran Walford outside her apartment on the night. He denied the offence.
The alleged breach of the AVO came before the Dubbo Local Court for contested hearing in January 2011. The defence had squarely nominated identification as the issue in dispute. Objection was taken to the complainant’s identification of the accused as the man who had been outside her apartment block on the night alleged in the charge. After hearing the evidence on the voir dire, the magistrate refused to admit the complainant's identification of the accused, and the charges failed.
Identification evidence is an assertion by a person to the effect that an accused person was or looks like a person who was at a place relevant to a crime, based on what the person making the assertion saw or heard at that time. But the evidence of that identification is not (necessarily) the act of identification.
The DPP had successfully argued in the appeal before Davies J that there was no obligation for the complainant to look at a parade or photographs as a precondition to the admissibility of her evidence. This was because, it was accepted, the identification occurred at the time of the complainant looking out of her window and seeing the accused. Since it would plainly not be reasonable for the complainant to look at a parade prior to that (there would have been no reason to, because prior to her seeing him in March 2010 there was nothing to be investigated) the exception at s 114(2) was clearly engaged.
Hoeben JA [at 49]:
Davies J rejected the applicant's interpretation. He did so on three bases:
(1) An important consideration was the time at which any identification of the applicant was made. The evidence of the complainant was that the person who approached the apartment block was the applicant. His Honour concluded that such an assertion amounted to an identification by the complainant of the applicant. That assertion was made to the police on 25 March 2010 and having been made at that time, i.e. at or about the time of the commission of the offence, it was an inescapable conclusion that it would not have been reasonable to have held an identification parade.
(2) A literal reading of the words "before the identification was made" was supported by the remainder of the section. That the "identification" was not referring simply to the identification given in evidence at the hearing, was supported by s 114(3)(c)(ii) which expressly envisaged that the identification could be made out of court and at about the time of the commission of the offence.
(3) A number of decisions supported the construction of the section put forward by the DPP. Those cases were DPP v Donald and Anor  NSWSC 949 (Bell J), R v Thomason  ACTSC 112 (Miles CJ) and R v D  ACTSC 82 (Penfold J). There was only one decision which expressly adopted the applicant's interpretation, R v Taylor  ACTSC 52 (Rares J). Davies J declined to follow the approach in Taylor on the basis that it involved a misreading of s 114.
Hoeben JA [at 55] held that the act of identification doesn't take place at the time the evidence is given at Court, but rather occurs at the time of the witness forming the view of who the person is. (In the facts of this case, of seeing the man at the window). The reasonableness of the holding of a parade is assessed from that point in time, and not subsequently. The accused’s counsel had argued that if the identification was not held to be the time of the witness giving the evidence in court, it would obviate the need for parades and photo identifications in many cases, defeating the purpose of Part 3.9. This argument was not accepted.
Basten JA's approach was slightly different. His Honour found there was an alternative basis on which the evidence was admissible. If the complainant's statement in court was that the man in the dock was the man at her flat on the night of the charge, then his Honour held that to be an identification to which s 114 required an identification parade. But if her evidence was that the man at the flat was the man who'd previously assaulted her, and against whom she had an intervention order, then that identification occurred on the night of the charge and no prior opportunity for a parade existed. Basten JA held that this ambiguity was not resolved in the Local Court, and had not been properly addressed on the first appeal.
Basten and Hoeben JJA's approaches are not very far apart. Basten JA places more emphasis on whether what is being given is a dock identification or evidence of prior recognition. Perhaps it is an extension of the same argument. But both justices agree that pin-pointing the time at which the identification takes place is the key, and that this isn't always when the evidence of that identification is given.
This decision clarifies the existence of a pathway to the admission of what the common law sometimes referred to as recognition evidence. When a witness approaches the police and tells them that, “I just saw Joe Bloggs steal my car.” then they may ask the complainant and suspect to cooperate with a parade (and probably should, if they want to lend weight to their witness's identification). But I don't think they are required to do so, as a prerequisite to the admissibility of the evidence. (Under Part 3.9, at least - exclusion under ss 135 and 137 would be a separate issue). The time at which the identification occurred (the witnessing of the person stealing the car) has already been and gone; and it’s clear that there was no opportunity for a parade or photo identification to be conducted prior to that point.
Odgers alludes to this possibility in his Uniform Evidence Law [at 1.3.9560] when he wrote,
"The matters listed in s 114(3) may well allow the police to avoid holding an identification parade in such cases as where the identifying witness 'recognised" the defendant when the crime was committed, where identification is not seriously in issue, where the crime involved is relatively minor, or where it is practically difficult to conduct a proper parade. Thus, for example, it would not have been reasonable to hold a parade in a case where the identification occurred a few minutes after the commission of the offence and before the police had begun an investigation."
The last part is reference to situations where the witness sees the accused again after the alleged offence. But the principle applies equally if a witness sees somebody they had recognised as knowing from before the incident in question.