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Knight v Brown

Knight v Brown

Case [2004] ACTSC 35 31 May 2004

Admissibility of Evidence

Appeal

Identification Evidence

Unjust Enrichment

Criminal Law

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JASON KENNETH KNIGHT v PAUL STEPHEN BROWN
[2004] ACTSC 35 (31 May 2004)

APPEAL – Magistrates Court – Identification evidence – victim told suspect’s photograph on photo board – victim said offender had red hair – offender’s photograph only one with distinctive red hair – prejudicial nature of photographic identification – conviction unsafe.

Evidence Act 1995 (Cth), 115 (2)

Johnson v Giumelli [2003] ACTSC 58

Grbic v Pitkethly (1992) 110 ALR 577

Pitkin v R (1995) 130 ALR 35

Jesse David Blick [2000] NSWCCA 61, (2000) 111 A Crim R 326

Alexander v The Queen (1981) 145 CLR 395

House v The King (1936) 55 CLR 499

D Byrne & JD Heydon, Cross on Evidence, Australian Edition

S Odgers, Uniform Evidence Law, 5^th ed 2002

GL Williams, Proof of Guilt, (3^rd ed 1963)

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 74 of 2003

Judge: Connolly J
Supreme Court of the ACT
Date: 31 May 2004

IN THE SUPREME COURT OF THE       )
  )          No SCA 74 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:JASON KENNETH KNIGHT
Appellant

AND:PAUL STEPHEN BROWN
Respondent

ORDER

Judge:  Connolly J
Date:  31 May 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The Magistrate’s order convicting the appellant be set aside.

This is an appeal from a decision of a Magistrate convicting the appellant on 17 November 2003 of the offence of robbery, and sentencing him to 18 months imprisonment with a non-parole period of 10 months, commencing from 22 March 2003, the date on which he was taken into custody. The offence related to an incident that occurred at Manuka in the Australian Capital Territory on 9 February 2003 at about 6 pm when a male person grabbed two $50 notes from the hand of a victim in Franklin Street in Manuka outside a restaurant. The victim described the offender as having shoulder length red hair and a goatee beard. The learned Magistrate convicted the appellant on the basis that he had been identified by the victim as part of a photo board identification, where the victim picked the appellant out of a series of nine photographs, and on the basis that the offender was “seen to escape the scene of the incident in a white car the registration number of which was YCG 27A” (AB 4). This car was registered in the name of a person known to police to be the girlfriend of the appellant. The appellant has a substantial criminal record for property offences.

The appellant appeals against the conviction as being unsafe and unsatisfactory on two principal grounds, being (1) that the learned Magistrate, although providing herself with appropriate warnings in relation to identification evidence, failed to properly apply the warnings, and (2) that the learned Magistrate was in error in relying on the evidence of the sighting of the offender getting into the identified white car. The respondent concedes that there was in fact…

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 Knight v Brown

Details

AGLC: Knight v Brown [2004] ACTSC 35
Case: [2004] ACTSC 35
Decision Date

CaseChat Overview and Summary

This appeal arises from a conviction for the offence of robbery, where the appellant, Jason Kenneth Knight, was convicted by a Magistrate of robbing a person in Manuka, ACT. The appellant appealed against the conviction on the grounds that the identification evidence was unsafe and unsatisfactory, and that the Magistrate had erred in relying on the evidence of the sighting of the offender getting into a white car. The respondent conceded that there was no direct evidence of this. The appellant argued that the identification evidence was unsafe because the victim was told by police that he was to see photographs that would include a photograph of the police suspect who had been "picked up", and that the selection of photographs shown to him contained only two persons who could be said to be red-headed, being his primary description of the offender, with only one photograph being of a person with striking red hair.

The court held that the evidence of identification was tainted by two fundamental errors, being that the victim was told by police that he was to see photographs that would include a photograph of the police suspect who had been "picked up", and that the selection of photographs shown to him contained only two of persons who could be said to be red-headed, that being his primary description of the offender, with only one photograph being of a person with striking red hair. It seems to the court that these two errors have so contaminated the visual identification that it would be unsafe and unsatisfactory to allow the conviction to stand. Although the learned Magistrate took some comfort from what she believed to be identification of the offender escaping the scene in an identified vehicle, it was conceded that the evidence was not as strong as that, and indeed depended on a description obtained by Ms Connor of what another person said was a car registration number.

The court orders that the appeal be upheld and the Magistrate's order convicting the appellant be set aside.

Orders