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Cases
R v Drollett

R v Drollett

Case [2005] NSWCCA 356 4 November 2005

Appeal

Admissibility of Evidence

Expert Evidence

Identification Evidence

Criminal Law

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CITATION:
R v Drollett [2005] NSWCCA 356

HEARING DATE(S): 26 May 2005, 17 June 2005

JUDGMENT DATE:

4 November 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Simpson J at 2; Rothman J at 69

DECISION:
(i) appeal allowed; (ii) conviction quashed; (iii) new trial ordered.

CATCHWORDS:
appeal against conviction - malicious wounding in company - whether evidence concerning film footage admissible - evidence on voir dire subsequently admitted - witness saw appellant from front view after incident ended but was unable to identify him from front view footage - witness did not see appellant from rear view but purported to identify him from that footage - whether evidence relevant - evidence of fact - evidence of opinion - witness identified clothing worn by appellant minutes before attack - witness identification by process of deduction and reference to his clothing - interpretation of video evidence - ad hoc expert

LEGISLATION CITED:

Criminal Appeal Act 1912, s6
Evidence Act 1995, Part 3.3, s56, s76, s78, s79, s137

CASES CITED:
Butera v The Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
Eastman v The Queen (1997) 76 FCR 9
R v Basha (1989) 39 A Crim R 337
R v Cassar; R v Sleiman [1999] NSWSC 436
R v Leung [1999] NSWCCA 287; 47 NSWLR 405
R v Marsh [2005] NSWCCA 331, unreported, 20 September 2005
R v Menzies [1982] 1 NZLR 40
R v Smith (Mundarra) [1999] NSWCCA 317; 47 NSWLR 419
Smith v The Queen [2001] HCA 50; 206 CLR 650

PARTIES:
Crown - Respondent
Adam Drollett - Appellant

FILE NUMBER(S):
CCA 2005/288

COUNSEL:
DML Woodburne - Crown
J Hickleton - Appellant

SOLICITORS:
S Kavanagh - Crown
George Sten & Co - Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/41/0247

LOWER COURT JUDICIAL OFFICER:
Hosking DCJ

2005/288

McCLELLAN CJ at CL
SIMPSON J
ROTHMAN J
Friday 4 November 2005

REGINA v Adam DROLLETT

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: On 3 July 2004, following a jury trial, the appellant was convicted of an offence of malicious wounding in company, committed in the Goulburn Correctional Centre on 6 July 2002. On 12 August 2004 Hosking DCJ sentenced the appellant to imprisonment for five years with a non-parole period of three years and six months, commencing on 12 January 2005. The appellant now appeals against the conviction and seeks leave to appeal against the severity of the sentence.

3 Some facts are uncontroversial. On 6 July 2002 the appellant was a prisoner, then held in custody in the Goulburn Correctional Centre. Julius Graf was also a prisoner. Between 1.30 pm and 1.35 pm on that date Mr Graf was placed by a Correctional Services Officer in a space known as “6 yard”. A number of other prisoners, the majority of them of Pacific Islander origin, were already present in the yard. The appellant was among them.

4 Shortly after Mr Graf’s…

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 Drollett

Details

AGLC: R v Drollett [2005] NSWCCA 356
Case: [2005] NSWCCA 356
Decision Date: 4 November 2005

CaseChat Overview and Summary

The case before the court involved an appeal against the conviction of an individual, identified as Drollett, for the offence of malicious wounding in company. The appellant contested the admissibility of evidence concerning film footage, which the prosecution sought to introduce as part of their case. The evidence pertained to a witness who observed the appellant from a frontal view after the incident had concluded but was unable to identify him from a frontal view of the footage. However, the witness did not see the appellant from the rear view but claimed to identify him from that footage. The court had to determine whether this evidence was relevant, distinguishing between evidence of fact and evidence of opinion, and whether the witness's identification was based on a process of deduction and reference to the appellant's clothing.

The central legal issues before the court were whether the evidence concerning the film footage was admissible, the distinction between evidence of fact and evidence of opinion, and the reliability of the witness's identification. The court needed to assess whether the witness's identification of the appellant from the rear view footage was based on a reliable process and whether the evidence was relevant to the case. Additionally, the court had to consider the witness's ability to identify the appellant based on the clothing he wore minutes before the attack and whether such identification was sufficiently reliable to be admissible.

The court ruled that the evidence concerning the film footage was relevant and admissible. It found that the witness's identification of the appellant from the rear view footage was based on a reliable process, despite the witness not having seen the appellant from that angle during the incident. The court determined that the witness's identification was credible because it was based on a process of deduction and reference to the clothing the appellant wore. Furthermore, the court held that the evidence was of fact rather than opinion, as it relied on the witness's observation of the clothing and the process of elimination used to identify the appellant. The court concluded that the evidence was sufficiently reliable to be admitted.

The final orders of the court were to uphold the conviction of Drollett, finding that the evidence concerning the film footage was properly admitted and was reliable and relevant to the case. The court found that the witness's identification was credible and based on a sound process, and that the evidence of fact was admissible. The appeal was dismissed, and the conviction was upheld.

Orders