R v Callaghan - [2001] VSCA 209

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 120 of 2000

THE QUEEN
	v.
CHRISTOPHER PAUL CALLAGHAN

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JUDGES:	WINNEKE, P., BROOKING, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 November 2001
DATE OF JUDGMENT:	27 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 209

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Criminal law – Evidence – “Voice identification” – Judge not obliged to exclude in the absence of “familiarity” or “distinctiveness” – Distinction between Victorian and N.S.W. authorities discussed – Courts in this State should continue to apply principles established by Victorian appellate courts.

“Voice” and “gun” identification – Adequacy of directions – Nature of directions discussed.

Procedure – “Voire dire” – Discussion of circumstances in which voire dire is required.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. W.H. Morgan-Payler Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. M.J. Croucher	Victoria Legal Aid

WINNEKE, P.:

At about 11.40 in the morning of 7 October 1998 an armed robbery occurred at the “Barkly Square Shopping Centre” branch of the National Australia Bank in Sydney Road, Brunswick. The robbery occurred about five minutes after a “Brinks Security” armoured van had made a “drop-off” of a large amount of cash at the bank. It is clear from the demands made to the tellers by one of the two robbers that they wanted the “drop-off”. The robbery, however, was characterized by a series of blunders which not only deprived the perpetrators of their principal target, but identified the applicant as one of them. The escape from the bank of a customer who eluded the robber guarding the front door short-circuited the event. This escape, according to another customer, Alan Rodden, prompted the robber on guard at the door to exclaim to his confederate in the tellers’ section words to the effect “Fuckin’ hurry up, Chris – one’s got away”. As Rodden remarked: “I thought [the statement] was completely stupid”. The robbers fled from the bank into a stolen car leaving behind them notes strewn over the bank floor and frightened staff and customers on their hands and knees. A sum of about $2,700, taken from the drawers in the tellers’ section, was the sole fruit of their escapade.

There were features of this armed robbery which are commonly seen in many of the all too frequent armed robberies of the branches of major banks in the suburbs of Melbourne. The robbers wore dark balaclavas and hooded jackets to shield their distinguishing features from the eyes of staff and customers and from the surveillance cameras which are universally installed by the banks inside their premises. The cameras do, however, disclose matters of significance. In this case they showed the robber, who played the principal role, opening the door of the bank with his left hand, and carrying a pistol in that hand. The offenders carried short-arm weapons which, in this case, the cameras demonstrated to be a black butt-loading pistol in the hands of the robber who entered the tellers’ section of…

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 Callaghan

Details

AGLC: R v Callaghan [2001] VSCA 209
Case: [2001] VSCA 209
Decision Date: 27 November 2001

CaseChat Overview and Summary

In the case of R v Callaghan, the respondent was convicted of armed robbery and the court was tasked with determining the admissibility of voice identification evidence. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the trial judge was obliged to exclude voice identification evidence in the absence of evidence of familiarity or distinctiveness on the part of the witness.

The court examined the principles established by the Victorian appellate courts, distinguishing them from the authorities in New South Wales. The court held that the trial judge was not obliged to exclude voice identification evidence if the witness was not required to demonstrate familiarity or distinctiveness. The court found that the trial judge's directions to the jury regarding the voice identification evidence were adequate. The court also discussed the nature of the directions given, including whether a voire dire was necessary in this case.

The court concluded that the trial judge was not required to conduct a voire dire in this instance, as the evidence was admissible and the directions given to the jury were sufficient. The conviction was upheld, and the respondent's appeal was dismissed. The court's decision reinforces the principles established by the Victorian appellate courts and clarifies the circumstances in which a voire dire is required.

Orders