Bullman v Debnam - [2010] ACTSC 97

MELANIE BULLMAN v DANIEL VICTOR DEBNAM [2010] ACTSC 97 (13 September 2010)

APPEAL – failure to challenge admissibility of evidence in Magistrates Court – wish to save time in Magistrates Court not an excuse sufficient to justify raising admissibility on appeal.

EVIDENCE – whether identification evidence was evidence of opinion or evidence of fact – identification of witness’s own remembered observation with later observation not opinion evidence.

EVIDENCE – whether failure to hold identification parades deprived defendant of chance of acquittal – considerations in whether to hold identification parade – nature and circumstances of witnesses’ observations – scope for accused person changing appearance in relevant respects – no obligation to hold identification parade if any result would be unreliable.

EVIDENCE – whether treatment of identification evidence resulted in unsafe and unsatisfactory verdict – whether evidence should have been excluded as unfairly prejudicial – whether Magistrate was sufficiently aware of potential unreliability of identification evidence – prosecution required to establish defendant’s guilt beyond reasonable doubt, not required to disprove defendant’s evidence beyond reasonable doubt.

Evidence Act 1995 (Cth), ss 114,114(2)(b),114(3),137

Magistrates Court Act 1930 (ACT), s 216

Evidence Act 1995 (NSW), Pt 3.3, s 76

Alexander v The Queen (1981)145 CLR 395

Bradley John Murdoch v The Queen [2007] NTCCA 1

Liberato v The Queen (1985) 159 CLR 507

M v The Queen (1994) 181 CLR 487

R v Adam Drollett [2005] NSWCCA 356

R v Williams [1983] 2 VR 579

Smith v The Queen (2001) 206 CLR 650

Australian Law Reform Commission, Evidence, Report No 26, volume 1 (1985)

Odgers S, Uniform Evidence Law (Thomson Reuters: 9^th ed, 2010)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 10 of 2009

Judge: Penfold J

Supreme Court of the ACT

Date: 13 September 2010

IN THE SUPREME COURT OF THE )

) No. SCA 10 of 2009

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MELANIE BULLMAN

Appellant

AND: DANIEL VICTOR DEBNAM

Respondent

ORDER

Judge: Penfold J

Date: 13 September 2010

Place: Canberra

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Counsel be heard on whether any consequential orders are required.

Introduction

1.Melanie Bullman was convicted on 3 February 2009 of one count each of exceeding the speed limit, failing to have her seatbelt properly adjusted and fastened, and furious driving. She was fined on each count, and on the furious driving count was disqualified from holding or obtaining a driver licence for three months. She has appealed against her convictions.

Background

2.The charges were laid as a result of an incident in which a car belonging to the appellant, being driven by a woman, and carrying no passengers, was stopped by police conducting speed checks on Parkes Way under Commonwealth Avenue Bridge around 9.45 am on 26 November 2007. Police had recorded the car travelling at 100 kph in an 80 kph zone, and flagged it down.

3.Constable Daniel Debnam approached from the median strip 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 Bullman v Debnam

Details

AGLC: Bullman v Debnam [2010] ACTSC 97
Case: [2010] ACTSC 97
Decision Date: 13 September 2010

CaseChat Overview and Summary

The matter of Bullman v Debnam involved the appellant, Bullman, appealing against his conviction and sentence in the Magistrates’ Court of Victoria. The conviction related to an incident of unlawful assault, and the dispute centred around the admissibility of certain identification evidence, the decision to hold identification parades, and whether the evidence led to an unsafe and unsatisfactory verdict. The appeal was heard and dismissed by the Court of Appeal of the Supreme Court of Victoria.

The court was required to determine several legal issues, including whether the appellant's failure to challenge the admissibility of evidence in the Magistrates’ Court was justified by a desire to save time. The court also considered whether the identification evidence was opinion evidence or evidence of fact, and whether the failure to hold identification parades deprived the appellant of a chance of acquittal. Additionally, the court examined whether the treatment of the identification evidence resulted in an unsafe and unsatisfactory verdict and whether the Magistrate was sufficiently aware of the potential unreliability of the identification evidence.

The court held that the appellant's wish to save time in the Magistrates’ Court was not a sufficient excuse for failing to challenge the admissibility of evidence on appeal. The court found that the identification evidence was not opinion evidence, but rather evidence of fact, as it involved the identification of the witness’s own remembered observation with a later observation. The court concluded that there was no obligation to hold identification parades if any result would be unreliable, based on the nature and circumstances of the witnesses’ observations and the scope for the accused person changing appearance in relevant respects. The court also found that the treatment of the identification evidence did not result in an unsafe and unsatisfactory verdict, as the prosecution was required to establish the defendant's guilt beyond reasonable doubt, not required to disprove the defendant's evidence beyond reasonable doubt.

The court dismissed the appeal and affirmed the conviction and sentence imposed by the Magistrates’ Court.

Orders

Orders of the court

the appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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