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Mohammed Tiba v The Queen

Mohammed Tiba v The Queen

Case [2020] VSCA 204 17 August 2020

Appeal

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0103

MOHAMMED TIBA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2020
DATE OF JUDGMENT:	17 August 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 204
JUDGMENT APPEALED FROM:	[2019] VCC 6 (Judge Lewitan)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of two charges of reckless conduct endangering life and one charge of intentionally causing serious injury – Photo board identification of applicant by witness – Hearsay evidence by police as to terms in which witness identified photograph of applicant – Whether trial judge erred in admitting hearsay evidence – Whether memory of witness fresh at time of making identification of applicant pursuant to s 66(2) of Evidence Act 2008 – Whether prosecutor should have sought leave for witness to refresh memory of previous identification of applicant pursuant to s 32 of Evidence Act 2008 – Whether prosecutor should have sought leave to cross-examine witness under s 38 of Evidence Act 2008 – Whether miscarriage of justice – Whether applicant denied procedural fairness – Hearsay evidence relevant and admissible – Verdict of the jury reasonable having regard to the evidence – Application for leave to appeal dismissed – Saddik v The Queen [2018] VSCA 249; Ritchie (a pseudonym) v The Queen [2019] VSCA 202; Murillo (a pseudonym)v The Queen [2020] VSCA 68; Astbury v The Queen [2020] VSCA 132; Evidence Act 2008 ss 32, 38, 66 and 137 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC with Mr P J Smallwood	Milides Lawyers
For the Respondent	Ms D Piekusis QC with Ms J Warren	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
KAYE JA
EMERTON JA:

The applicant was convicted, by the jury empanelled on his trial in the County Court, of two charges of reckless conduct endangering life (charges 1 and 3) and one charge of intentionally causing serious injury (charge 2). He was sentenced to a total effective sentence of eight years’ imprisonment with a non-parole period of five years.

The applicant seeks leave to appeal against his conviction on two grounds, namely:

Ground 1:There has been a substantial miscarriage of justice as a result of the prosecution leading inadmissible hearsay evidence through Sergeant Potts.
Particulars:
The inadmissible hearsay evidence given by Sergeant Potts was that, when shown a photo board, Jayden Happel — a witness who gave evidence in relation to charges 1 and 2 — identified the applicant’s image and very confidently said ‘it’s definitely that guy there’, ‘that’s the guy who shot the other person’ and ‘that’s the guy with the gun’.
That evidence was of a very different quality to that given by Mr Happel, and led in circumstances where Mr Happel was never invited to refresh his memory and was never directly asked (or given an opportunity to directly address) whether he in fact said (or agreed with) what…

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 Mohammed Tiba v The Queen

Details

AGLC: Mohammed Tiba v The Queen [2020] VSCA 204
Case: [2020] VSCA 204
Decision Date: 17 August 2020

CaseChat Overview and Summary

The matter of Mohammed Tiba v The Queen involved the appellant, who was convicted by a jury in the County Court of Victoria on two charges of reckless conduct endangering life and one charge of intentionally causing serious injury. The case was heard by the Victorian Court of Appeal, where the appellant sought leave to appeal against his conviction and sentence. The central issue before the Court of Appeal was whether the trial judge had erred in admitting hearsay evidence in relation to a witness's identification of the appellant from a photo board. The appellant contended that the trial judge should not have admitted the hearsay evidence as it was inadmissible and prejudicial, and that the prosecutor should have sought leave to cross-examine the witness or to refresh her memory of a previous identification.

The Court of Appeal found that the hearsay evidence was both relevant and admissible, and did not lead to a miscarriage of justice. The witness had identified the appellant from the photo board shortly after the incident, and her memory of the events was deemed to be fresh at the time of the identification. The Court held that the witness's identification was a spontaneous statement, and therefore fell within an exception to the hearsay rule under section 66(2) of the Evidence Act 2008. The Court also found that the prosecutor was not required to seek leave to cross-examine the witness or to refresh her memory, as the witness's identification was reliable and the evidence was not unreliable or unfair. The Court concluded that the verdict of the jury was reasonable, having regard to the evidence presented at trial.

Accordingly, the Court of Appeal dismissed the appellant's application for leave to appeal. The Court noted that the trial judge had properly exercised their discretion in admitting the hearsay evidence, and that the verdict of the jury was open to them on the evidence before them. The Court also found that the appellant had not been denied procedural fairness, as the trial judge had properly considered the admissibility of the evidence and the reliability of the witness's identification. The Court's decision was based on a careful consideration of the relevant statutory provisions and case law, including Saddik v The Queen, Ritchie (a pseudonym) v The Queen, Murillo (a pseudonym) v The Queen, and Astbury v The Queen.

Orders