R v DS and HJ (Unreported) NSWDC per Bennett DCJ

Mr Walsh successfully represented accused DS who was charged with sexual assault after events that occurred in a mosh-pit at popular concert venue the Horden Pavilion. The case involved the wrongful identification of the accused after key witnesses searched through photos of the night posted on facebook and saw the accused near by to them. All charges against the accused were dismissed after a lengthy examination of facebook and internet materials.

The allegations were that the accused and co-accused entered a concert venue in late 2010 where they moved through the crowd to the front of the most-pit. It was then alleged that they had a conversation with the female complainant and the complainant’s aunt, aged 15 and 16 respectively, while waiting for the concert to begin. At this point neither of the girls turned around to look at the face of the people talking to them. It was then alleged that during the show the accused sexually assaulted her while inside the mosh-pit.

After the events of the concert the complainant disclosed to her aunt what had happened to her. The two girls looked through the aunt’s camera and eventually found a picture where the accused could be seen standing in the crowd some distance behind the girls. The accused stood out as he was quite tall and had hereditary discolouration under his eyes.  The next morning the two girls went online to a photographers website who took photos at the concert, on this site they found photos of the accused near, but not directly behind, the complainant.

A complaint was then made to police who tracked down and eventually charged the accused.

Mr Walsh ran a 2 week pre-trial application to exclude the evidence of photographs posted over facebook to identify the accused. In the proceedings it was uncovered by Mr Walsh, and Mr Charles Waterstreet for the co-accused, that the aunt of the complainant had only observed the accused in photographs accidentally taken by her and over facebook.

Mr Walsh was successful in the pre-trial application and the evidence gathered over facebook was excluded. All charges against the accused were dismissed.