1. Appeal allowed; 2. Quash the conviction of the appellant; 3. Direct that a judgment and verdict of acquittal be entered.
IN THE COURT OF
CRIMINAL APPEAL
60417/99
SHELLER JA JAMES J DOWD J
REGINA v Jesse David BLICK
Following a robbery during which some cash and a bum bag were stolen, the victim gave the police a description of the offender as a man with a goatee beard. One week later, the victim was shown a bum bag which he identified as the stolen bag. He was also shown photographs of 12 men, including one of the appellant. The photograph of the appellant was the only photograph of a man with a goatee beard. The victim selected the appellant’s photograph as that of the offender. One week later, the victim made a statement in which he referred to his photographic identification and gave a further description of the offender.
At trial, the appellant pleaded not guilty. The basis of the Crown case rested on the identification evidence. Howie DCJ refused the appellant’s application to have the photographic identification evidence excluded under s 137 of the Evidence Act. Following a detailed summing up by the trial judge, the jury returned a guilty verdict and the appellant was convicted of armed robbery. The appellant appealed against the admission of the identification evidence and argued that its admission resulted in a miscarriage of justice.
Held: (by Sheller JA, James and Dowd JJ agreeing) 1. When an application is made by a defendant to exclude evidence pursuant to s137 of the Evidence Act, the judge must balance the probative value of the evidence against the danger of unfair prejudice the defendant. 2. While the product of that process is a judgment analogous to the exercise of a judicial discretion, there…
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.
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Details
AGLC
R v Blick [2000] NSWCCA 61
Case
[2000] NSWCCA 61
Decision Date
CaseChat Overview and Summary
In the case of R v Blick, the appellant, Blick, was convicted of the murder of his wife. The dispute involved the admissibility of identification evidence obtained from photographs shown to the victim's daughter. The High Court of Australia was tasked with determining the correctness of the trial judge's decision to admit the photographic identification evidence under the provisions of the Evidence Act 1995.
The central legal issue before the court was whether the trial judge had correctly applied the provisions of s137 of the Evidence Act 1995 in admitting the identification evidence. Section 137 provides exceptions to the hearsay rule, allowing identification evidence if the person making the identification was not able to attend court to give evidence and if it was in the interests of justice to admit the evidence. The court needed to assess whether the trial judge had appropriately considered the potential unreliability of the identification and the need to protect the rights of the accused.
The court held that the trial judge had not adequately considered the potential unreliability of the identification evidence and the need to protect the rights of the accused. The court emphasised the importance of ensuring that identification evidence does not unfairly prejudice the accused. The High Court found that the trial judge had not sufficiently considered the circumstances in which the identification was made and the potential for misidentification. Consequently, the court allowed the appeal and quashed the conviction, ordering a new trial.