JUDGES:	WHELAN and PRIEST JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2015
DATE OF JUDGMENT:	23 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 311
JUDGMENT APPEALED FROM:	DPP v Dickman (Unreported, County Court of Victoria, Judge Coish, 30 October 2014 (Conviction); 21 November 2014 (Sentence)).

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CRIMINAL LAW – Appeal – Conviction – Identification evidence – Intentionally causing serious injury and making a threat to kill – Identification from photoboard – Whether evidence visual identification evidence – Whether failure to comply with s 114 of the Evidence Act 2008 – Whether risk of displacement effect – Whether identification evidence unreliable –Whether probative value of identification evidence outweighed by risk of unfair prejudice – Evidence Act 2008 s 114 and s 137 considered – Appeal allowed.

CRIMINAL LAW – Appeal – Conviction – Admissibility of audio and video record of search – Voice identification evidence – Whether search conducted in contravention of South Australian law – Whether audio record of search obtained unfairly or in breach of law – Whether audio record of search admissible for purposes of voice identification – Evidence Act 2008 s 118; Summary Offences Act 1953 (SA); Criminal Investigation (Extraterritorial Offences Act) 1984 (SA); Haddara v The Queen [2014] VSCA 100 considered.

CRIMINAL LAW – Appeal – Conviction – Whether verdict unsafe and unsatisfactory.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Doyle QC with Mr B Doyle	Barbaro Thilthorpe Lawyers
For the Crown	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:

I have read in draft the judgment of Priest JA and Croucher AJA. I agree with them, for the reasons they have given, that grounds 1, 3, 4, 5 and 6 should be rejected. I do not agree with their conclusion that ground 2 is made out and that the appeal should be allowed.

Assessment of the trial judge’s ruling

Priest JA and Croucher AJA have set out the relevant facts and the trial judge’s ruling and I will not repeat what they have said. I agree with their assessment that the probative value of the photoboard identification of the applicant on 23 August 2011 was low. My reasons for this conclusion are: the earlier identification of Michael Cooper; the mistaken identifications; the delay in the photoboard identification of the applicant; and the complainant’s (Mr Faisal Aakbari – ‘FA’) own evidence about what he was trying to do, namely to find a photo which best resembled his memory of the attacker.

The trial judge also concluded that the probative value was low. But he concluded that the risk or danger of misuse of the evidence in some unfair way was ‘minimal’.[1] Accordingly, the probative value of the evidence, whilst low, outweighed the danger of unfair prejudice, which was minimal. Priest JA and Croucher AJA have concluded he was wrong in this respect. In my…

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 Glyn Dickman v The Queen

Details

AGLC: Glyn Dickman v The Queen [2015] VSCA 311
Case: [2015] VSCA 311
Decision Date: 23 November 2015

CaseChat Overview and Summary

The respondent, Glyn Dickman, was convicted by a jury of intentionally causing serious injury and making a threat to kill. He appealed against the conviction to the South Australian Court of Appeal. The appeal raised three primary issues: whether the identification evidence was reliable, whether the evidence was unfairly prejudicial, and whether the verdict was unsafe and unsatisfactory.

The court first examined the identification evidence provided by the victim, who identified the respondent from a photoboard. The court considered whether the evidence was visual identification evidence and whether there was a failure to comply with section 114 of the Evidence Act 2008. The court held that the identification evidence was unreliable due to the risk of displacement effect and that the probative value of the identification evidence was outweighed by the risk of unfair prejudice. The court found that the evidence was unreliable and inadmissible.

The court then considered the admissibility of the audio and video record of the search conducted by police. The respondent argued that the search was conducted in contravention of South Australian law and that the audio record was obtained unfairly or in breach of law. The court found that the search was lawful and that the audio record was admissible for the purposes of voice identification.

Finally, the court considered whether the verdict was unsafe and unsatisfactory. The court found that the verdict was unsafe and unsatisfactory due to the exclusion of the identification evidence and the lack of other evidence to support the conviction. The court allowed the appeal and quashed the conviction.

The court ordered that the conviction be quashed and that a new trial be held. The court also ordered that the audio and video record of the search be excluded from evidence in any new trial. The court further ordered that the respondent be released on bail pending the new trial.

Orders