Category Archives: s. 115

Peterson (a Pseudonym) v The Queen [2014] VSCA 111 (6 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/111.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Review of the trial judge’s refusal to certify with respect to interlocutory decision – Identification evidence – Applicant arraigned and pleaded not guilty to an indictment containing a charge of intentionally causing serious injury – Complainant identified the applicant from a photograph on Facebook – Whether probative value of identification evidence outweighed by the danger of unfair prejudice – Trial judge refused to exclude the identification evidence – Application was made for certification – Certification refused – Application to review certification decision refused – Interlocutory decision plainly correct – Whether reasons for granting leave ‘clearly outweigh any disruption to trial’ – Application for review – Criminal Procedure Act 2009 (Vic) ss 295 (2)–(3), 296, 297 (2).

R v Carpenter [2011] ACTSC 71 (9 May 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/71.html

EVIDENCE – identification parades – refusal to take part in identification parade –requirements for effective refusal for Evidence Act 1995 ss 114 and 115 – no requirement for suspect to obtain legal advice – no requirement for suspect to be informed of all details of specific identification parade before refusal – refusal unless lawyer advises participation in identification parade is a refusal, not a conditional agreement.

EVIDENCE – picture identification evidence – digital photograph of suspect does not cease to be that photograph by being loaded onto a computer database, converted into “jpg” format, emailed, or copied into PowerPoint format, having its colour levels changed or having its pixelation or file size reduced or increased – photograph of suspect does not cease to be that photograph by reason of editing to remove an image of removable jewellery such as a small facial stud – no requirement for photograph used in identification process to show only the features specified by the witness.

EVIDENCE – identification processes – minor change in suspect’s appearance since offence was committed does not “protect” suspect from invitation to take part in identification parade or from use of photograph in photo board process.

Evidence Act 1995 (Cth), ss 114(1) and (2), 115, 137, 138(1)

Aouad and El-Zeyat v R [2011] NSWCCA 61 (8 April 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/61.html

Criminal Law – direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness – evidence of comfit identification – fresh evidence – failure by prosecution to disclose to defence material relevant to credibility of Crown witness.

Evidence Act (NSW) – ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165

M A v The Queen [2011] VSCA 13 (27 January 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/13.html

CRIMINAL LAW – Interlocutory appeal – Admissibility of identification evidence – Certification by trial judge pursuant to s 295(3)(a) Criminal Procedure Act 2009 – Whether ruling was attended by sufficient doubt to require certification – Leave to appeal ordinarily inappropriate where short trial or where ruling concerns routine evidentiary questions involving exercise of discretion – Evidence Act 2008 s 137 – Whether principles in House v The King apply – Probative value – Leave to appeal refused

R v Maklouf [1999] NSWCCA 94 (23 June 1999)

[1999] NSWCCA 94

CRIMINAL LAW – appeals – appeal against conviction

CRIMINAL LAW – verdicts – error of law or miscarriage of justice under s 6(1) Criminal Appeal Act 1912

CRIMINAL LAW – directions to jury – whether judge misstated evidence in summing up.

EVIDENCE – identification – admissibility of photographs – probative value or unfair prejudice.

EVIDENCE – identification – whether warning as to picture identification to be given in absence of request from defendant.

Evidence Act 1995 (NSW) ss 115(7), 137, 165

R v Linard Shamouil [2006] NSWCCA 112 (12 April 2006)

[2006] NSWCCA 112

CRIMINAL LAW – Crown Appeal – Exclusion of Evidence – Jurisdiction to hear appeal – Whether exclusion “substantially weakened” Crown case – Exclusion of evidence of cogency or force will “substantially weaken” Crown case – Evidence to be considered on the assumption that it is accepted by the jury – Criminal Appeal Act 1912, s5F(3A)

EVIDENCE – Probative value – Whether reliability or weight relevant to determination of probative value – Rarely relevant – Evidence Act 1995, s 137

CRIMINAL LAW – Crown Appeal – Whether trial judge erred in excluding evidence on the basis that its probative value outweighed by danger of unfair prejudice – Where trial judge took into account credibility when assessing probative value – Where trial judge failed to identify manner in which prejudice unfair – Evidence Act 1995, s 137

Evidence Act 1995: ss 55(1), 97(1)(b), 98(1)(b), 101, 103(1), 115, 116, 135, 137, 165

REGINA v SKAF, GHANEM & HAJEID [2004] NSWCCA 74 (7 April 2004)

[2004] NSWCCA 74

Criminal appeal – kidnapping and sexual assault in company – separate trial applications – evidence of prior convictions – whether good character had been raised – identification evidence – directions on identification – whether defence submissions unsupported by evidence impacted upon fair trial for co-accused – judicial response thereto – whether warning about unreliability of evidence of co-accused appropriate – directions in relation to failure to testify – whether comment” infringed Evidence Act, s20(2) – whether address of counsel for one defendant caused co-accused’s trial to miscarry – whether verdicts unreasonable – evidence that medical examination of complaints was “consistent” with their history of assaults. (D)

Evidence Act 1995 ss20(2), 102, 110, 112, 115, 116, 135, 137, 138, 165(1)(d), s192(2)

R v Defrutos [2008] VSCA 55 (9 April 2008)

[2008] VSCA 55
Criminal law – Conviction – Attempted murder – Whether jury charged incorrectly in relation to identification evidence – Applicant and victim known to each other – Reliability of recognition evidence given by victim – Whether verdict unsafe and unsatisfactory in the circumstances – Whether evidence of prior relationship and animosity wrongly admitted – Whether prejudicial – Whether existence of motive required to be established beyond reasonable doubt – Application dismissed.

Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394; 76 ALJR 291 (13 December 2001)

[2001] HCA 72

Criminal law – Evidence – Admissibility – Exclusion of evidence – Identification evidence – Usual precautions for identifying suspects not followed – Whether probative value of identification evidence outweighed danger of unfair prejudice to the accused – Whether admission of identification evidence resulted in a miscarriage of justice.

Criminal law – Evidence – Identification evidence – Whether trial judge adequately directed the jury about the deficiencies of identification evidence.

Criminal law – Evidence – Weapons and ammunitions found at the unit of co-accused were of the same character as those used in the robberies but were not purchased until after the robberies – Whether evidence of weapons was admissible as “propensity” evidence – Whether the trial judge adequately directed the jury in relation to the discovery of weapons and ammunitions.

Criminal law – Evidence – Admissibility – Whether evidence of an association between the accused and co-accused was admissible – Whether direction by the trial judge about the association was a material misdirection.

Criminal law and practice – Appeal against conviction – Application of “proviso” – Whether errors by trial judge constituted a substantial miscarriage of justice – Whether evidence was so strong that no reasonable jury could fail to convict the accused.

Words and phrases – “circumstantial identification evidence” – “positive-identification evidence” – “unfair prejudice”.

Criminal Code (Q), ss 408, 668E.

R v Kenneth Mark Atkinson [1997] ACTSC 14 (24 March 1997)

[1997] ACTSC 14

Evidence – admissibility of witnesses testimony as to the identification of the accused from a photoboard – picture identification evidence – practicality of identification parade whilst accused in custody – the dangers of admitting picture identification evidence – certainty of identity as opposed to mere resemblance – probative value not sufficiently great.

Evidence Act 1995  (ACT), s115

Jamal v The Queen [2000] FCA 1195 (30 August 2000)

[2000] FCA 1195

CRIMINAL LAW – armed robbery – evidence – identification – dock identification of appellant by eye-witnesses – whether primary judge erred in permitting evidence of dock identification to be led in circumstances where evidence of previous out-of-court identification admissible – whether conviction unsafe and unsatisfactory – effect of circumstantial evidence pointing to appellant as offender – the availability of the principles governing the “proviso” in the Federal Court.

Evidence Act 1995  (Cth) ss 114, 115, 137

R v Linard Shamouil [2006] NSWCCA 112 (12 April 2006)

[2006] NSWCCA 112

CRIMINAL LAW – Crown Appeal – Exclusion of Evidence – Jurisdiction to hear appeal – Whether exclusion “substantially weakened” Crown case – Exclusion of evidence of cogency or force will “substantially weaken” Crown case – Evidence to be considered on the assumption that it is accepted by the jury – Criminal Appeal Act 1912, s5F(3A)

EVIDENCE – Probative value – Whether reliability or weight relevant to determination of probative value – Rarely relevant –  Evidence Act 1995 , s 137

CRIMINAL LAW – Crown Appeal – Whether trial judge erred in excluding evidence on the basis that its probative value outweighed by danger of unfair prejudice – Where trial judge took into account credibility when assessing probative value – Where trial judge failed to identify manner in which prejudice unfair – Evidence Act 1995, s 137

Evidence Act 1995 : ss 55(1), 97(1)(b), 98(1)(b), 101, 103(1), 115, 116, 135, 137, 165

R v Sarlija [2009] ACTSC 127 (30 September 2009)

[2009] ACTSC 127

EVIDENCE – pre-trial application to exclude picture identification evidence – accused declined to participate in identification parade until legal advice had been sought – identification made through use of a photo board – whether photo board ought to have been used where no express refusal to take part in an identification parade – whether reasonable to assume refusal – actual or constructive refusal could not be assumed in the circumstances – operation of s 115 Evidence Act 1995 (Cth) and s 235 Crimes Act 1900 (ACT).

EVIDENCE – pre-trial application to exclude picture identification evidence – identification made through use of a photo board where no refusal to take part in an identification parade – whether contravention of s 235 Crimes Act 1900 (ACT) by police investigators – onus on accused to show he was “otherwise available” to take part in identification parade – accused failed to establish contravention on balance of probabilities – identification evidence not liable to be excluded under s 138  Evidence Act 1995  (Cth).

POLICE PRACTICE AND PROCEDURE – whether photo board can properly be prepared when accused in custody – general prohibition against using photo board for identification where accused in custody does not prevent preparation of photo board while accused in custody – operation of s 115  Evidence Act 1995  (Cth).

Evidence Act 1995  (Cth), ss 114, 115, 138

Smith v R [2001] HCA 50; 206 CLR 650; 181 ALR 354; 75 ALJR 1398 (16 August 2001)

[2001] HCA 50

Criminal law – Evidence – Relevance – Identification – Evidence of recognition by police officers of the accused in photographs from bank security cameras – Police officers in no better position than jury to compare appearance of accused with photographs -  Evidence Act 1995   (NSW), s 55 – Whether evidence could rationally affect the assessment by jury of probability of the existence of a fact in issue – Whether admissible as opinion evidence.

Evidence – Relevance – Opinion or fact evidence -  Evidence Act 1995  (NSW), s 55 – Evidence of recognition by police officers of accused in photographs from bank security cameras – Whether relevant – If relevant whether excluded as opinion evidence.

Evidence Act 1995  (NSW), ss 55, 76.

R v Hennessy [2001] NSWCCA 36 (27 February 2001)

[2001] NSWCCA 36

ARMED ROBBERY

two counts

application for separate trials not granted

similar fact evidence

photographic evidence admitted

directions

special caution

ss115 and 116  Evidence Act 1995

photograph taken at scene of crime not within ambit of sections

identification evidence

possession of hand gun

LARCENY OF A MOTOR VEHICLE

two counts

APPEAL AGAINST SENTENCE

retribution, deterrence and protection of society

Dhanhoa v R [2003] HCA 40; 217 CLR 1; 199 ALR 547; 77 ALJR 1433 (5 August 2003)

[2003] HCA 40

Evidence – Identification evidence – Where reliability of evidence not in dispute – Whether trial judge required to inform jury of special need for caution before accepting evidence -  Evidence Act 1995   (NSW), s 116.

Evidence – Inconsistency between appellant’s statement to police and his evidence at trial – Where prosecutor did not contend that statement to police was a lie indicating consciousness of guilt – Whether trial judge should have given direction in relation to lies.

Words and phrases: “miscarriage of justice”.

Criminal Appeal Act 1912 (NSW), s 6.

Evidence Act 1995  (NSW), ss 114, 115, 116.

Ah-See v Heilpern and Anor [2000] NSWSC 627 (6 July 2000)

[2000] NSWSC 627

EVIDENCE – Criminal Proceedings – admission in official questioning – accused was asked, in an interview which was not electronically recorded, “Do you wish to participate in a line-up.” and answered “No” – Magistrate admitted picture identification evidence after having regard to this q & a when considering objection – Evidence Act subs 115(5) made picture identification evidence inadmissible unless the accused refused to take part in an identification parade – it was contended that the q & a should not have been regarded when ruling on the objection because the q & a were an admission and the conditions for admissibility of evidence of an admission in Crimes Act s 424A (relates to electronic recording) (see now Criminal Procedure Act s 108) had not been complied with – meaning of “admission” in s 424A and significance of definitions of “admission” and “representation” in  Evidence Act 1995  – cognate legislation – held – the q & a evidence of refusal were not evidence of an admission within s 424A – Magistrate was correct in having regard to q & a when ruling on objection to picture identification evidence.