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Aslett v R

Aslett v R

Case [2009] NSWCCA 188 29 July 2009

Appeal

Failure to Discharge Jury

Identification Evidence

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Aslett v R [2009] NSWCCA 188
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10/07/09

JUDGMENT DATE:
29 July 2009

JUDGMENT OF: Allsop P at 1; Kirby J at 2; Johnson J at 82

DECISION: (1) Appeal allowed.
(2) Convictions quashed and sentences set aside.
(3) The appellant should have a new trial.

CATCHWORDS: CRIMINAL LAW - appeal and new trial - identification evidence - in-court identification - failure by trial judge to discharge jury - failure to direct jury that evidence of no value on identification issue - failure to specify weaknesses in identification evidence - the displacement effect - application of the PROVISO - conviction not inevitable.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Crofts v The Queen (1996) 186 CLR 427
Qoro v Regina [2008] NSWCCA 220
R v Taufua (unreported, NSWCCA, 11.11.96)
R v Tahere [1999] NSWCCA 170
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Domican v The Queen [1991-1992] 173 CLR 555
Davies & Cody v The King [1937] 57 CLR 170
Alexander v The Queen [1980-1981] 145 CLR 395
R v Akgul [2002] VSCA 222; (2002) 5 VR 537 at 543
R v Skaf [2004] NSWCCA 37
R v Adamson (unreported, NSWCCA, 26.11.92)
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521

PARTIES: Jamie Wayne Lee ASLETT (App)
Regina (Resp)

FILE NUMBER(S): CCA 2007/10137

COUNSEL: G Bashir (App)
D Arnott SC (Resp/Crown)

SOLICITORS: S O'Connor - LAC (App)
S Kavanagh - DPP (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0108

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

LOWER COURT DATE OF DECISION: 8/5/08

2007/10137

ALLSOP P
KIRBY J
JOHNSON J
Wednesday 29 July 2009

Jamie Wayne Lee ASLETT v REGINA

Judgment

1 ALLSOP P: I agree with Kirby J.

: Jamie Wayne Lee Aslett (the appellant) was tried before a jury in the District Court at Parramatta in respect of four charges, each said to have been committed on 29 May 2006. The charges were:

Count 1:

Crimes Act

Count 2:

Count 3:

Count 4:

3 Mr Aslett pleaded not guilty to each count. After a short trial, the jury returned a verdict of guilty in respect of all charges. On 8 May 2008, the appellant was sentenced to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aslett v R

Details

AGLC: Aslett v R [2009] NSWCCA 188
Case: [2009] NSWCCA 188
Decision Date: 29 July 2009

CaseChat Overview and Summary

The case of Aslett v R involved an appeal by the defendant against his conviction for robbery. The central issue in the case was whether the trial judge erred in failing to discharge the jury due to the unreliability of the identification evidence provided by the complainant. The matter was heard in the High Court of Australia, which was asked to determine whether the trial judge's failure to adequately address the weaknesses in the identification evidence warranted a new trial.

The primary legal issue before the court was whether the trial judge's failure to discharge the jury and to properly direct them on the weight to be given to the identification evidence constituted a miscarriage of justice. The court needed to consider whether the judge's shortcomings meant that the defendant's conviction was not inevitable, which would necessitate a new trial under the proviso of the common law. The identification evidence was critical, as the only basis for convicting the defendant was the complainant's identification of him as the perpetrator.

The court found that the trial judge's omissions did indeed constitute a significant error. The judge failed to discharge the jury despite clear evidence that the identification process was flawed and unreliable. The High Court emphasised that when identification evidence is highly questionable, it is the trial judge's duty to ensure the jury understands the limitations of such evidence. The court also highlighted the displacement effect, where the tainted identification evidence overshadowed other evidence in the case, potentially leading to an unjust outcome. Given these deficiencies, the court concluded that the conviction was not inevitable, and the defendant was entitled to a new trial.

Orders