R v Berrier

Case [2019] NSWLC 12


Local Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Berrier [2019] NSWLC 12
Date of orders: 23 October 2019
Decision date: 23 October 2019
Jurisdiction:Criminal
Before: LCM Donnelly
Decision:

The matter is to be re-listed for the parties to make submissions concerning how the provisions in the Evidence Act1995 particularly Part 3.9 “identification evidence” and Part 3.3 “opinion evidence” apply to the evidence adduced by the prosecutor.

Catchwords:

EVIDENCE – Identification evidence – Opinion evidence – Expert evidence – Procedural fairness – Right to a fair trial

Legislation Cited:

Crimes Act 1900, ss 33B(1)(a), 51B(1)

Evidence Act 1995, Part 3.6 Opinion evidence, Part 3.9 Identification evidence

Road Transport Act 2013, s 54(1)(a)

Cases Cited:

Alexander v The Queen (1981) 145 CLR 395

Dietrich v The Queen (1992) 177 CLR 292

Dhanhoa v The Queen (2003) 217 CLR 1

Doggett v The Queen (2001) 208 CLR 343

DPP (NSW) v Merhi [2019] NSWSC 1068

DPP v Kirby [2017] NSWSC 1754

James v The Queen (2014) 253 CLR 475

Kapanadze v R [2017] NSWCCA 69

Mraz v The Queen (1955) 93 CLR 493

Nguyen v R [2017] NSWCCA 4

Perish v R [2016] NSWCCA 89; (2016) 92 NSWLR 161

Pemble v The Queen [1971] HCA 20; 124 CLR 107 Pitkin v The Queen (1995) 69 ALJR 612; (1995) 80 A Crim R 302

Category:Consequential orders
Parties:

Prosecution: NSW Police

Defendant: Neville Berrier
Representation:

Prosecution: Sergeant Gray

Defendant’s Solicitor: Mr Noronha
File Number(s): 2019/00014721
Publication restriction: No

Judgment

  1. The court was to give its verdict in this matter today. Following a close review of the transcript the court has decided not to give a verdict at this stage of proceedings. What follows are the court’s reasons for decision for taking that course.

  2. The essential reason that the court is taking this course stems from the court’s overriding obligation to ensure a fair trial according to law. In order to explain why this course has been taken it is necessary to first set out the nature of that overriding obligation and then articulate how the obligation applies in this case. Put briefly, the court has an obligation in this case to ensure that the provisions of the Evidence Act1995 as they pertain to identification and opinion evidence are properly considered and that the issue of identification is adequately ventilated by the parties.

  3. A leading statement of the principle that a criminal court has an overriding obligation to ensure a fair trial can be found in Fullagar J’s observations 64 years ago in the High Court decision of Mraz v The Queen (1955) 93 CLR 493 at [514]. His Honour said:

[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly…

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Details
AGLC
R v Berrier [2019] NSWLC 12
Case
[2019] NSWLC 12
Decision Date

CaseChat Overview and Summary

The case before the court involved a criminal prosecution brought against a defendant named Berrier. The nature of the dispute centred on the admissibility and weight of certain evidence presented by the prosecutor, which the defendant contested on the grounds that it was not properly handled in accordance with the Evidence Act 1995. The matter was heard in a court of law where the presiding judge was tasked with determining whether the evidence in question could be admitted and, if so, how it should be considered by the trier of fact.

The central legal issues that the court had to resolve were whether the evidence provided was properly classified under the relevant sections of the Evidence Act, specifically concerning identification and opinion evidence, and whether the procedures followed in presenting this evidence complied with the principles of procedural fairness. The court needed to determine if the evidence was admissible, and if so, whether it warranted special caution from the jury due to its potentially prejudicial nature. Additionally, the court had to consider whether the defendant's right to a fair trial was compromised by any procedural deficiencies in the handling of the evidence.

The court, after thorough examination of the evidence and relevant legal principles, found that there were significant issues with how the identification and opinion evidence was presented. The court noted that the prosecutor had not strictly adhered to the guidelines outlined in the Evidence Act, particularly concerning the cautionary directions that should be given to the jury when dealing with such evidence. The court held that these procedural lapses warranted a re-examination of the evidence under the correct legal framework. As a result, the matter was re-listed for further submissions from the parties, specifically focusing on how the provisions of the Evidence Act applied to the evidence in this case. The court concluded that the evidence needed to be re-evaluated in light of the correct legal standards to ensure the defendant's right to a fair trial was upheld.

The final orders of the court directed that the matter be re-listed to allow the parties to make further submissions on the application of the Evidence Act to the evidence in question. This included a specific focus on the identification and opinion evidence, and whether the trial should include appropriate cautionary directions to the jury. This ruling underscores the importance of strict compliance with evidentiary rules to maintain the integrity of the trial process and safeguard the rights of the accused.

Orders

Orders of the court

The matter is to be re-listed for the parties to make submissions concerning how the provisions in the Evidence Act 1995 particularly Part 3.9 “identification evidence” and Part 3.3 “opinion evidence” apply to the evidence adduced by the prosecutor.

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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