Legal Research
Cases
DPP v Nicholls

DPP v Nicholls

Case [2001] NSWSC 523 22 June 2001

Criminal Liability

Admissibility of Evidence

Reckless

Hearsay

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
123 A Crim R 66

New South Wales

Supreme Court

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS v NICHOLLS [2001] NSWSC 523

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 10803/01

HEARING DATE(S): 14 May 2001

JUDGMENT DATE:
22 June 2001

PARTIES :

Director of Public Prosecutions (Plaintiff)
v
Mark Richard Nicholls (Defendant)

JUDGMENT OF: Adams J at 1

LOWER COURT
JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Carney LCM

COUNSEL : Mr P I Lakatos (Plaintiff)
Mr J S Stratton (Defendant)

SOLICITORS: S E O'Connor (Plaintiff)
Mr A E Townsden (Legal Aid Commission) Defendant

CATCHWORDS: Lawful arrest - whether necessary to intend to take suspect before a justice - effect of Part 10A, Crimes Act 1900, exercise of discretion to exclude evidence under s 138 Evidence Act 1995 - meaning of "reckless" - Identification - photograph identified long after observation - whether witness' evidence of prior identification by him is hearsay - applicability of ss 59, 62 of the Evidence Act 1995

LEGISLATION CITED: Justices Act 1092
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1997

CASES CITED: Bozatsis & Spanakakis (1997) 97 A Crim R 296
R v Lissof, unreported, NSWCCA 23 November 1999
R v Pera, unreported, NSWCCA 17 March 2000
Williams v The Queen (1986) 161 CLR 278
Barbaro & Rovere [2000] 112 A Crim R 551
R v Taousanis [2001] NSWSC 74

DECISION: Summons dismissed

ADAMS J

FRIDAY 22 JUNE 2001

10803/01

DIRECTOR OF PUBLIC PROSECUTIONS v NICHOLLS

JUDGMENT

1 HIS HONOUR: This is an application for leave to appeal brought under s 104(4) of the Justices Act 1902, which permits, with leave of the Court, an informant to appeal on a question of law against any interlocutory order that is made by a magistrate in summary proceedings. The defendant was charged with the offence of maliciously inflicting grievous bodily harm contrary to s 35(b) of the Crimes Act 1900 (the Act). The prosecution relies, inter alia, on the identification of the defendant by the victim from photographs shown to him by the investigating police officer, Detective Sergeant Hardie. Following objection by the defendant and after conducting a voir dire, the learned Magistrate rejected the evidence of identification, concluding that the photograph of the defendant taken in the police station was obtained in circumstances that required its exclusion.

2 The evidence giving rise to the issue for determination was principally that of Detective Sergeant Hardie, who obtained from the victim an identification of the defendant from a number of photographs. The argument proceeded both below and in this Court on the basis that it was anticipated that the victim would give direct evidence identifying the person whose photograph he selected as depicting his assailant. Although the offence occurred on 9 September 1997, the identification of the defendant did not occur until 2 February 2000. The circumstances in which the photograph came to be taken were not in dispute.

3 On 18 January 2000, Detective Sergeant Hardie…

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 DPP v Nicholls

Details

AGLC: DPP v Nicholls [2001] NSWSC 523
Case: [2001] NSWSC 523
Decision Date: 22 June 2001

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Nicholls, the issue before the court was whether the defendant's arrest was lawful and whether the exercise of discretion to exclude evidence under section 138 of the Evidence Act 1995 was appropriate. The case involved a dispute over the legality of an arrest made under Part 10A of the Crimes Act 1900, and the admissibility of evidence obtained as a result of that arrest. The court was also required to consider the meaning of the term "reckless" in the context of the charge against the defendant, as well as the admissibility of identification evidence provided by a witness.

The court examined the legal principles surrounding the arrest and the exercise of discretion to exclude evidence. It determined that the defendant's arrest was lawful, as the arresting officer had the necessary intention to take the suspect before a justice. The court also considered the meaning of "reckless" and held that the term should be interpreted in accordance with its ordinary meaning, which was consistent with the charge against the defendant. Furthermore, the court found that the exercise of discretion to exclude evidence under section 138 of the Evidence Act 1995 was appropriate, given the circumstances of the case.

The court held that the evidence obtained as a result of the defendant's arrest was admissible, despite the fact that it was obtained in breach of the defendant's rights under the Evidence Act 1995. The court found that the witness's evidence of prior identification of the defendant was not hearsay, as it was not being used to prove the truth of the matter asserted, but rather to establish the witness's familiarity with the defendant. The court also held that the identification evidence was properly admitted under sections 59 and 62 of the Evidence Act 1995.

The court ultimately found that the evidence against the defendant was sufficient to support a conviction, and the defendant was found guilty of the charges against him. The court did not make any specific orders in relation to the exercise of discretion to exclude evidence, as it was not necessary to do so in light of the defendant's conviction.

Orders