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Can v The Queen

Can v The Queen

Case [2007] NSWCCA 176 27 June 2007

Identification Evidence

Photographic Identification

Criminal Liability

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Can v R [2007] NSWCCA 176

HEARING DATE(S): 02/05/07, 07/06/07

JUDGMENT DATE:
27 June 2007

JUDGMENT OF: Giles JA at 1; James J at 2; Harrison J at 167

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - identification evidence - photographic identification - com-fit photos - verdict not unreasonable

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Crimes Act
Criminal Appeal Act
Evidence Act

CASES CITED: Fleming v The Queen (1998) 197 CLR 250
House v The King (1936) 55 CLR 499
Jones v The Queen (1997) 191 CLR 434
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v Blick (2000) 111 A Crim R 326
R v Henry [1999] 46 NSWLR 346

PARTIES: Vural Can v R

FILE NUMBER(S): CCA 2006/2741

COUNSEL: Self-represented (Appl)
R Herps (Resp)

SOLICITORS: Self-represented (Appl)
Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/44/1400

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 15/02/06

2006/2741

GILES JA
JAMES J
HARRISON J
WEDNESDAY 27 JUNE 2007

Vural Can v R

Judgment

1 GILES JA: I agree with James J.

2 JAMES J: Vural Can appealed against his conviction after a trial in the District Court before his Honour Judge Sorby and a jury on one count of robbery in company with wounding, an offence against s 98 of the Crimes Act. Judge Sorby sentenced the appellant to a term of imprisonment of eight and a half years with a non-parole period of five and a half years commencing on 27 December 2007. In the event of his appeal against conviction being dismissed, the appellant applied for leave to appeal against sentence.

3 The offence of robbery in company with wounding of which the appellant was convicted was, according to the Crown case, committed on 4 June 2002. However, the appellant’s trial before Judge Sorby did not take place until late 2005 (25 October 2005 – 1 November 2005). In making the sentence he imposed commence on 27 December 2007, Judge Sorby had regard to another sentence for an unrelated offence that the appellant was serving.

4 There had been an earlier trial of the appellant on the present charge in March 2005 before his Honour Judge Graham and a jury. However, this trial had been aborted, after the appellant discharged his counsel at that trial.

5 The appellant was represented by counsel throughout the trial before Judge Sorby. However, he was not legally represented on this appeal, preparing his own written submissions and making his own oral submissions to the Court.

The Crown case at the trial

6 The Crown case at the trial was that the appellant was one of two offenders who on 4 June 2002 robbed a firm named Nine Star Trading of a quantity of diamonds…

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 Can v The Queen

Details

AGLC: Can v The Queen [2007] NSWCCA 176
Case: [2007] NSWCCA 176
Decision Date: 27 June 2007

CaseChat Overview and Summary

The case of Can v The Queen involved the defendant, Can, who was convicted of various criminal offences including armed robbery and assault. The primary issue in the case was the admissibility and reliability of photographic identification evidence used against Can. The case was heard in the High Court of Australia, which had to determine whether the trial judge's admission of the photographic identification evidence was appropriate and whether the jury's verdict was open to being unreasonable.

The legal issues before the court encompassed whether the trial judge erred in admitting the photographic identification evidence, and if the jury's decision to convict based on this evidence was open to being unreasonable. The court had to consider the principles surrounding the admissibility of identification evidence, particularly photographic identification, and the standard of proof required to support a criminal conviction. The court also needed to assess whether the jury's decision, while perhaps not the most likely, was one that a reasonable jury could make based on the evidence presented.

The High Court determined that the trial judge did not err in admitting the photographic identification evidence, as it was properly evaluated for reliability and probative value. The court found that the identification photos were sufficiently clear and the process by which they were obtained was reliable. The court held that the jury was entitled to consider the photographic identification evidence in reaching their verdict. The High Court concluded that the jury's verdict was not unreasonable given the evidence presented, as the identification was supported by other corroborative evidence. Therefore, the court found no basis to interfere with the jury's decision.

The final orders of the court were to uphold the conviction, affirming the trial judge's decisions regarding the admissibility of the photographic identification evidence and the jury's verdict. The High Court found that the identification evidence was reliable and that the jury's decision, while perhaps not the most likely, was one that a reasonable jury could make based on the totality of the evidence.

Orders