R v Carroll, Guy Michael - [2013] NSWSC 1031

Supreme Court

New South Wales

Medium Neutral Citation: R v CARROLL, Guy Michael [2013] NSWSC 1031
Hearing dates: 24 & 25 July 2013
Decision date: 26 July 2013
Jurisdiction: Common Law - Criminal
Before: Hall J
Decision:
Application for exclusion of identification evidence refused

Catchwords: EVIDENCE - admissibility of evidence in criminal proceedings - identification of an accused person in an out-of-court identification by array of photographs provided by police - where witness had previously given a description of the accused to police as having, among other features, tattoos and tattoos up to the neck prior to formal identification process - where witness said to have observed and interacted with the accused for some time before and after participating in subject offences - where witness both observed and spoke with the accused on subsequent occasion whilst in custody - whether observation and interaction with the accused on second occasion resulted in "displacement effect" - the conversation and meeting with the accused on second occasion is more accurately characterised as recognition of a person the witness was previously involved with capable of re-enforcing the original mental image of the person - array of photographs compiled by software which randomly selected photographs from a database that share "parameters of likeness" to photograph of the accused taken soon after date of subject offences - array of photographs included some photos exhibiting tattoos - a sound basis existed upon which the array of photographs was compiled - probative value of identification evidence not outweighed by the danger of unfair prejudice to the accused - application for the exclusion of the identification evidence under ss 135 and 137 of the Evidence Act 1995 refused
Legislation Cited: Evidence Act 1995
Cases Cited: Alexander v R (1981) 145 CLR 395
Carusi (1997) 92 A Crim R 52
Festa v R (2001) 208 CLR 593
Knight v Brown [2004] 183 FLR 135
R v Blick [2000] NSWCCA 61; [2000] 111 A Crim R 326
R v Fisher [2001] NSWCCA 380
R v Marshall (2000) 113 A Crim R 190
R v Nguyen [2003] NSWSC 1068
THD v R [2010] 200 A Crim R 106
Category: Procedural and other rulings
Parties: Regina
Guy Michael Carroll (Accused)
Representation: Counsel:
P McGrath (Crown)
P Strickland SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Bell Lawyers (Accused)

File Number(s): 2010/299363

Judgment

(Voir Dire hearing)

The accused, Guy Michael Carroll, has been charged on indictment with the following offences:

Charge (1)

For that he on 22 August 2010 at Werrington in the State of New South Wales did murder Devril Leuthwaite.

Charge (2)

Further, for that he on 22 August 2010 at Werrington in the State of New South Wales whilst in the company of Gavin Bell, and Gary Markham, and being then armed with a dangerous weapon, namely a shortened rifle and a pistol, did assault Robert Leuthwaite Senior with intent to rob.

Charge (3)

Further for that he on 22 August 2010 at Werrington in the State of New South…

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 Carroll, Guy Michael

Details

AGLC: R v Carroll, Guy Michael [2013] NSWSC 1031
Case: [2013] NSWSC 1031
Decision Date: 26 July 2013

CaseChat Overview and Summary

The matter of R v Carroll, Guy Michael was heard in the Supreme Court of Victoria. The accused, Guy Michael Carroll, faced criminal charges and the primary issue was the admissibility of evidence derived from an identification procedure involving an array of photographs. The witness had previously described the accused to the police, noting distinctive features such as tattoos and tattoos up to the neck, prior to the formal identification process. The witness claimed to have observed and interacted with the accused during and after the commission of the alleged offences. Additionally, the witness encountered the accused while he was in custody, which raised questions about whether this subsequent interaction affected the reliability of the identification evidence.

The court had to determine whether the interaction between the witness and the accused, occurring after the alleged offences, constituted a "displacement effect" that could undermine the reliability of the identification. The court considered whether the interaction merely reinforced the witness's pre-existing mental image of the accused or if it introduced new elements that could taint the identification process. Another aspect involved the compilation of the array of photographs by software, which selected images based on likeness parameters. The court examined whether the photographs, some of which showed tattoos, were compiled on a sound basis and whether their probative value outweighed any prejudicial effect on the accused.

In its ruling, the court found that the conversation and meeting between the witness and the accused, while in custody, served to reinforce the witness's pre-existing mental image of the accused rather than introducing new or misleading elements. The court held that the array of photographs was compiled on a sound basis, and the probative value of the identification evidence was not outweighed by the risk of unfair prejudice. Consequently, the application to exclude the identification evidence under sections 135 and 137 of the Evidence Act 1995 was dismissed. The court ruled that the evidence was admissible, thereby allowing the identification to be considered by the jury in assessing the guilt or innocence of the accused.

Orders