Facts: Home invasion
One night, two women approached a house and knocked on the door, asking to use the house phone. When the residents answered the door, three men appeared and assaulted them demanding money in a home invasion. The offenders fled the scene following the arrival of the police.
Afterwards, two of the victims described the appearance of the offenders. They also gave evidence that one of the offenders was referred to by a certain nickname. This nickname could have been used for XWX, who was in a relationship with one of the female offenders who had plead guilty to the offence.
Identification board (photoboard) used by police
The police organised an identification board for the victims as witnesses to help identify one of the male offenders. There were a number of problems with the photoboard. On the police’s side, the photoboard was built around XWX’s appearance specifically rather than the first eyewitness descriptions of the ‘third man’.
On the witnesses’ side, the statements they gave to police were unreliable. One witness positively identified XWX as an offender after asking an officer of the identities of those in the photoboard. He later became ‘unavailable’, meaning that he could not be found and brought to court by the police to give evidence, and therefore his evidence could not be tested in Court. The other identified XWX, another man and raised that it could also be another unrelated person on the photoboard if his weight had changed.
Regardless, the police proceeded to charge XWX with one count of enter dwelling house with intent to commit a serious indictable offence, and one count of assault with intent to rob with infliction of corporal violence.
Outcome:
O’Brien Solicitors and Counsel were able to make a successful application to exclude the evidence of the two witnesses from the identification photo-board as being unfairly prejudicial to XWX. This is because the evidence of one witness was not only very weak, but the maker of the statement positively identifying XWX at the scene could not be questioned on the truthfulness of his account.
To further help XWX’s defence, evidence was raised of SMS messages he had sent to one of the offenders during the crime by XWX. This provided potential alibi evidence that he was not involved in the offence when it happened.
As a result, the police withdrew their charges and were ordered to pay costs to XWX as compensation.
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