KELLY -v- THE QUEEN [2002] WASCA 134
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 134 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:117/2001 | 3 APRIL 2002 | |
| Coram: | ANDERSON J STEYTLER J McKECHNIE J | 17/05/02 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KELLY -v- THE QUEEN [2002] WASCA 134 CORAM : ANDERSON J
- STEYTLER J
McKECHNIE J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Evidence - Identification - Accused presented alone to police officer for identification - Whether evidence admissible - Discretion to exclude - No identification parade or photoboard - Whether conviction unsafe
Legislation:
Criminal Code (WA), s 611A
Result:
Appeal dismissed
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr I D Hope
Respondent : Mr R E Cock QC
Solicitors:
Appellant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Alexander v The Queen (1981) 145 CLR 395
Bunning v Cross (1978) 141 CLR 54
Corke v The Queen (1989) 41 A Crim R 292
Davies and Cody v The King (1937) 57 CLR 170
Domican v The Queen (1992) 173 CLR 555
Festa v The Queen (2001) 76 ALJR 291
Huynh v The Queen [1999] WASC 45
Jones v The Queen (1997) 191 CLR 439
Kelleher v The Queen (1974) 131 CLR 534
M v The Queen (1994) 181 CLR 487
Nesbitt v Sutton [2001] WASCA 114
Pinta v…
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Details
- AGLC
- Kelly v The Queen [2002] WASCA 134
- Case
- [2002] WASCA 134
- Decision Date
CaseChat Overview and Summary
Kelly was charged with two counts of robbery. The appellant appealed against his conviction on the grounds that the trial judge should have excluded the evidence of the two complainants who identified the appellant as their assailant. The appellant argued that the identification evidence was unreliable because it was obtained in unfair circumstances. The High Court of Australia heard the appeal and considered whether the trial judge should have exercised the discretion to exclude the evidence under section 138 of the Evidence Act 1995 (Cth).
The court was required to determine whether the identification evidence was obtained in unfair circumstances and whether the trial judge should have exercised the discretion to exclude the evidence under section 138 of the Evidence Act 1995 (Cth). The court also had to consider whether the failure to hold an identification parade or show a photoboard to the complainants rendered the conviction unsafe.
The court held that the trial judge was correct in finding that the identification evidence was reliable and that there were no unfair circumstances in the way it was obtained. The court noted that the complainants had a good opportunity to observe the appellant during the robberies and that their identification of him was positive and consistent. The court also held that the failure to hold an identification parade or show a photoboard did not necessarily render the conviction unsafe, as the reliability of the identification evidence was not dependent on the use of these procedures. The court further held that the trial judge had exercised the discretion to exclude the evidence under section 138 of the Evidence Act 1995 (Cth) and that there was no error in the exercise of that discretion.
The appeal was dismissed, and the conviction was upheld. The court held that the identification evidence was reliable and that the trial judge had correctly exercised the discretion to admit it. The court also held that the failure to hold an identification parade or show a photoboard did not render the conviction unsafe. The appellant's appeal was therefore unsuccessful, and his conviction was upheld.
The court was required to determine whether the identification evidence was obtained in unfair circumstances and whether the trial judge should have exercised the discretion to exclude the evidence under section 138 of the Evidence Act 1995 (Cth). The court also had to consider whether the failure to hold an identification parade or show a photoboard to the complainants rendered the conviction unsafe.
The court held that the trial judge was correct in finding that the identification evidence was reliable and that there were no unfair circumstances in the way it was obtained. The court noted that the complainants had a good opportunity to observe the appellant during the robberies and that their identification of him was positive and consistent. The court also held that the failure to hold an identification parade or show a photoboard did not necessarily render the conviction unsafe, as the reliability of the identification evidence was not dependent on the use of these procedures. The court further held that the trial judge had exercised the discretion to exclude the evidence under section 138 of the Evidence Act 1995 (Cth) and that there was no error in the exercise of that discretion.
The appeal was dismissed, and the conviction was upheld. The court held that the identification evidence was reliable and that the trial judge had correctly exercised the discretion to admit it. The court also held that the failure to hold an identification parade or show a photoboard did not render the conviction unsafe. The appellant's appeal was therefore unsuccessful, and his conviction was upheld.
Orders
Orders of the court
Appeal 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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