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Davey v Tasmania

Davey v Tasmania

Case [2020] TASCCA 12 5 August 2020

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[2020] TASCCA 12
COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:                Davey v Tasmania [2020] TASCCA 12
PARTIES:  DAVEY, Matthew John
  v
STATE OF TASMANIA
EATON, David John
  v
  STATE OF TASMANIA

FILE NOS: 1183/2019
1270/2019

DELIVERED ON:  5 August 2020
DELIVERED AT:  Hobart
HEARING DATES:  7 May, 2 June 2020
JUDGMENT OF:  Blow CJ, Estcourt and Geason JJ
CATCHWORDS:
Criminal Law – Evidence – Identification evidence – Voice identification – Admissibility – Bases for admissibility – Opinion of detective after listening to hundreds of phone calls and police interview with accused.

Kheir v The Queen [2014] VSCA 200, 43 VR 308; Nguyen v The Queen [2017] NSWCCA 4, 264 A Crim R 405; R v Phan [2017] SASCFC 70; Tasmania v Farhat [2017] TASSC 66, referred to.
Aust Dig Criminal Law [2940]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Contention that counsel disobeyed instructions to seek separate trial.

R v Birks (1990) 19 NSWLR 677, referred.
Aust Dig Criminal Law [3515]
REPRESENTATION:
Counsel:
             Appellants:  In person
             Respondent:  E Avery
Solicitors:
             Respondent:  Director of Public Prosecutions
Judgment Number:  [2020] TASCCA 12
Number of paragraphs:  125
Serial No 12/2020
File Nos 1183/2019
             1270/2019

MATTHEW JOHN DAVEY v STATE OF TASMANIA
DAVID JOHN EATON v STATE OF TASMANIA
REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
BLOW CJ
ESTCOURT J
GEASON J
5 August 2020
Orders of the Court (2 June 2020):
1         Appeal 1183/2019 dismissed.
2         Appeal 1270/2019 dismissed.
Serial No 12/2020
File Nos 1183/2019
             1270/2019

MATTHEW JOHN DAVEY v STATE OF TASMANIA
DAVID JOHN EATON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
5 August 2020
1In late January 2016 thieves stole 14 firearms from a locked safe in a shed in the Launceston suburb of Blackstone Heights. Three men were charged with stealing them, tried before Wood J, and found guilty by the jury. Two of them, Matthew Davey and David Eaton, appealed against their convictions. Their appeals were heard together on 7 May and 2 June 2020. At the conclusion of the hearing, the Court made orders dismissing both appeals, reserving its reasons for publication at a later date.
2I joined in the making of those orders for the same reasons as those that are published today by Estcourt J.

File Nos 1183/2019
1270/2019

MATTHEW JOHN DAVEY v STATE OF TASMANIA
DAVID JOHN EATON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
5 August 2020
The appeals
3The appellants, Matthew John Davey and David John Eaton, have each appealed their convictions following jury verdicts of guilty on indictment of one count of stealing a firearm or firearm part contrary to s 234A(1) of the Criminal Code.
4The appellants were found not guilty on the same indictment to one count of aggravated burglary contrary to s 245(a)(ii) of the Code, and one…

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 Davey v Tasmania

Details

AGLC: Davey v Tasmania [2020] TASCCA 12
Case: [2020] TASCCA 12
Decision Date: 5 August 2020

CaseChat Overview and Summary

In *Davey v Tasmania*, the Supreme Court of Tasmania, Court of Criminal Appeal, considered the admissibility of voice identification evidence. The appeal concerned a criminal conviction where the prosecution sought to rely on the opinion of a detective who claimed to recognise the appellant's voice from intercepted telephone calls and a police interview.

The central legal issue before the Court was whether the detective's opinion constituted admissible evidence of identification. Specifically, the Court had to determine the criteria for admitting such evidence, particularly when the witness's familiarity with the voice was gained through listening to a significant number of intercepted calls and a police interview with the accused.

The Court held that the detective's evidence was admissible. It applied the principle that a witness may give opinion evidence as to the identity of a person if they have had such opportunities of observing or hearing the person as to be able to form an opinion. The Court reasoned that the detective's extensive exposure to the appellant's voice through hundreds of intercepted calls and the police interview provided a sufficient basis for him to form a reliable opinion regarding the identity of the speaker in other recordings. The Court distinguished this from a situation where a witness has only a fleeting or limited acquaintance with the voice.

Orders