R v Adler - [2000] NSWCCA 357

Reported Decision: [2000] 116 A Crim R 38
52 NSWLR 451

New South Wales

Court of Criminal Appeal

CITATION: R v Adler [2000] NSWCCA 357

FILE NUMBER(S): CCA 60491/2000

HEARING DATE(S): 23 August 2000

JUDGMENT DATE:
23 August 2000

PARTIES :

Regina v George Adler

JUDGMENT OF: Heydon JA at 1, 34, 43; Smart AJ at 2; Ireland AJ at 42

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0107

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : CV Jeffreys (solicitor)
DU Arnott

SOLICITORS: Jeffreys & Associates
SE O'Connor

CATCHWORDS: Criminal law - refusal of permanent stay - admissibility of voice identification evidence governed by Evidence Act 1995 - no threshold test

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
R v Smith (1984) 1 NSWLR 463
R v Brownlowe (1987) 7 NSWLR 461
R v Brotherton (1993) 29 NSWLR 95
United States v Cerone 830 Fed Rep. 2nd Series 938 (1987)
R v Hentshel (1988) VR 362
R v Harris (No 3) (1990) VR 310
R v Miladinovic (1992) 60 ACR 206
Bulejcik v The Queen 185 CLR 375
R v Cassar (1999) NSWSC 321
R v Colebrook (1999) NSWCCA 262
R v Leung (1998-9) 47 NSWLR 404

DECISION: Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

HEYDON JA
SMART AJ
IRELAND AJ

Wednesday 23 August 2000

REGINA v George ADLER

JUDGMENT

1 HEYDON JA: The Court is in a position to deliver judgment now in this matter which has a degree of urgency because the trial is scheduled to commence tomorrow. I will ask Smart AJ to deliver the first judgment.
2 SMART AJ: Pursuant to s 5F of the Criminal Appeal Act 1912 George Adler seeks leave to appeal against the decision of Judge Shadbolt, following a hearing on the voir dire, to admit the evidence of Mrs Vera Antonia Konsuo that the man who telephoned her and deceived her by a series of false representations was the applicant. It was a case of aural identification. Mr Adler also seeks leave to appeal against the refusal of a permanent stay of proceedings. Once the evidence of aural identification is admitted it could not be said that the prosecution was bound to fail and accordingly that basis for a stay would not exist. The Crown has further contended that its case was not bound to fail even if the evidence under challenge was rejected although it concedes that it would face some difficulties. 3 The draft indictment contains some 12 counts charging that on various dates between 1 October 1996 and 1 November 1996 both inclusive the applicant dishonestly obtained for himself or another person a valuable thing, namely, a cheque in a specified amount drawn in favour of Cornelius Van der Heul by deception by specified representations which he knew to be false. In view of the number of representations pleaded the precise terms of counts in the indictment may require further consideration to avoid duplicity problems.
4 The Crown case is that…

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 R v Adler

Details

AGLC: R v Adler [2000] NSWCCA 357
Case: [2000] NSWCCA 357
Decision Date: 23 August 2000

CaseChat Overview and Summary

In the case of R v Adler, the defendant, Adler, appealed against the refusal of a permanent stay of proceedings on the basis of the alleged inadmissibility of certain voice identification evidence. The case was heard by the High Court of Australia. The central dispute was whether the trial judge's decision to admit voice identification evidence was correct, and if it was, whether the refusal of a permanent stay was appropriate.

The legal issues before the court involved the interpretation and application of the Evidence Act 1995, specifically regarding the admissibility of voice identification evidence. The court was required to consider whether the evidence in question met the criteria set out in the Act and if the trial judge's decision to admit it was justified. Additionally, the court needed to determine whether the refusal of a permanent stay was proper given the potential admissibility of the voice identification evidence.

The court found that the trial judge's decision to admit the voice identification evidence was correct. It was held that the evidence met the criteria for admissibility under the Evidence Act 1995. The court further held that there was no threshold test for the admissibility of such evidence, and that the trial judge had correctly exercised their discretion. Consequently, the court upheld the refusal of the permanent stay, finding that the evidence was admissible and the trial could proceed. This decision reinforced the importance of correctly interpreting and applying the provisions of the Evidence Act 1995 in criminal proceedings.

Orders