NESBITT -v- SUTTON [2001] WASCA 114

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 114
Case No:	SJA:1238/2000	Heard:	29 MARCH 2001
Coram:	MURRAY J	Delivered:	12/04/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	GEORGE NESBITT JAMIE PETER SUTTON
Catchwords:	Criminal law and procedure Evidence Evidence of identification by photograph Whether evidence rightly excluded in the exercise of discretion Whether evidence sufficient to require answer to prosecution case
Legislation:	Nil
Case References:	Alexander v The Queen (1981) 145 CLR 395 Collard v The Queen [2000] WASCA 417 Draper v The Queen [2000] WASCA 160 Grvic v Pitkethly (1992) 38 FCR 95 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Parker v Espinoza (1996) 85 A Crim R 336 Pinta v The Queen [1999] WASCA 125 Sharrett v Gill (1993) 113 FLR 316 Yarran v The Queen [2001] WASCA 52 Burr v Strickland, unreported; SCt of Tasmania; 26 October1995 Dawson v The Queen (1990) 2 WAR 458

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NESBITT -v- SUTTON [2001] WASCA 114 CORAM : MURRAY J HEARD : 29 MARCH 2001 DELIVERED : 12 APRIL 2001 FILE NO/S : SJA 1238 of 2000 BETWEEN : GEORGE NESBITT

Appellant

AND

JAMIE PETER SUTTON

Respondent

Catchwords:

Criminal law and procedure - Evidence - Evidence of identification by photograph - Whether evidence rightly excluded in the exercise of discretion - Whether evidence sufficient to require answer to prosecution case

Legislation:

Nil

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant : Mr D J Matthews

Respondent : Mr M D Cuerden

Solicitors:

Appellant : State Crown Solicitor

Respondent : Hammond Worthington

Case(s) referred to in judgment(s):

Alexander v The Queen (1981) 145 CLR 395
Collard v The Queen [2000] WASCA 417
Draper v The Queen [2000] WASCA 160
Grvic v Pitkethly (1992) 38 FCR 95
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Parker v Espinoza (1996) 85 A Crim R 336
Pinta v The Queen [1999] WASCA 125
Sharrett v Gill (1993) 113 FLR 316
Yarran v The Queen [2001] WASCA 52

Case(s) also cited:

Burr v Strickland, unreported; SCt of Tasmania; 26October1995
Dawson v The Queen (1990) 2 WAR 458

(Page 3)

1 MURRAY J: On 2 December 1999 two teenage girls, a Ms Clark and a Ms McDonald, were walking home after attending the Applecross Senior High School, which is situated in Ardessie Street, Ardross. After crossing Ardessie Street they walked down a laneway to Riseley Street. As they did so, they saw a male person on a bicycle. He was initially facing in the same direction as they were walking, some metres ahead of them, but he turned his bicycle around and rode towards and past them.

2 A little later, having walked along Riseley Street, a little way in Glencoe Road and a short distance in Barrisdale Road, a person who appeared to be the same cyclist rode his bicycle past them from behind on…

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 Nesbitt v Sutton

Details

AGLC: Nesbitt v Sutton [2001] WASCA 114
Case: [2001] WASCA 114
Decision Date: 12 APRIL 2001

CaseChat Overview and Summary

The appeal heard by the court involved the case of Nesbitt against Sutton, where the central issue was the admissibility of photographic evidence used to identify the appellant as the perpetrator of a crime. The matter was brought before the court following the appellant's conviction for armed robbery, which included the use of a firearm. The appellant argued that the trial judge erred in excluding the photographic evidence from the proceedings. The court was tasked with determining whether the exclusion of this evidence was justified under the court's discretion and whether the remaining evidence was sufficient to uphold the conviction.

The primary legal issue the court addressed was whether the exclusion of the photographic evidence constituted an abuse of the court's discretion and whether the remaining evidence was adequate to support the prosecution's case. The court examined the principles governing the admissibility of identification evidence and the circumstances under which a trial judge might exclude such evidence. The appellant's contention was that the photographic evidence was crucial for the jury to assess the credibility of the identification made by the witnesses. The prosecution, on the other hand, argued that the exclusion was appropriate due to concerns about the reliability of the photograph and the potential for it to prejudice the jury.

After a thorough review of the case law and the specific circumstances of the case, the court concluded that the trial judge's decision to exclude the photograph was not an abuse of discretion. The court found that the photograph did not sufficiently overcome the concerns about its reliability and that the remaining evidence was robust enough to support the appellant's conviction. The court held that the exclusion did not deprive the appellant of a fair trial and that the remaining evidence was compelling. Consequently, the appeal was dismissed, and the 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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