SUPREME COURT OF QUEENSLAND
CITATION: R v Evan, Robu and Bivolaru [2006] QCA 527 PARTIES: R
v
EVAN, Stefano Marinel
(appellant/applicant)
ROBU, Dorin
(appellant/applicant)
BIVOLARU, Nicolae
(appellant)FILE NO/S: CA No 140 of 2006 CA No 154 of 2006 CA No 164 of 2006 SC No 42 of 2006 DIVISION: Court of Appeal PROCEEDING: Appeals against Conviction & Sentence ORIGINATING
COURT:Supreme Court at Cairns DELIVERED ON: 8 December 2006 DELIVERED AT: Brisbane HEARING DATE: 28 September 2006 JUDGES: Keane and Holmes JJA and Atkinson J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders madeORDER: 1. Each appeal is allowed
2. The conviction in each case is quashed
3. A new trial is ordered in each caseCATCHWORDS: CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - GENERALLY - appellants convicted upon verdict of jury of trafficking in dangerous drug heroin - sentenced to 12 years imprisonment, eight years imprisonment and 12 and a half years imprisonment respectively - all three appellants' offences declared to be serious violent offences - whether evidence of particular witnesses was of resemblance rather than identification and thus inadmissible CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - GENERALLY - visual identification - use of photoboard - difficulty for police of arranging photoboard - dock identification - need to draw attention of jury to evidence of particular witnesses and to matters which might be regarded as undermining evidence of identification - need for direction with authority of the judge's office - whether learned trial judge's directions in relation to the dangers of acting upon the evidence of visual identification were sufficient CRIMINAL LAW - EVIDENCE - GENERALLY - use of material voice identification - need for warning about danger of jury making comparisons of voices on police intercepts with voice tape recordings of interview - need for direction with authority of the judge's office - need for Bulejcik warning - references in intercepts to nicknames said to be those of other appellants - whether learned trial judge's directions in relation to the dangers of acting upon the evidence of aural identification were sufficient CRIMINAL LAW - EVIDENCE - GENERALLY - appellants' counsel sought access to material, relating to witnesses at trial, that was subject to s 13A Penalties and Sentences Act 1992 (Qld) - whether learned trial judge erred in refusing access to these materials Penalties and Sentences Act 1992 (Qld), s 13A Alexander v The Queen (1981) 145 CLR 395, considered
Bulejcik v The Queen (1996) 185 CLR 375, applied
Chamberlain v The Queen (No 2) (1984) 153 CLR 521, cited
Davies and Cody v The King (1937) 57 CLR 170, cited
Doggett v The Queen (2001) 208 CLR 343, applied
Domican v The Queen (1992) 173 CLR 555, applied
Festa v The Queen (2001) 208 CLR 593, cited
Grey v R
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Details
- AGLC
- R v Evan [2006] QCA 527
- Case
- [2006] QCA 527
- Decision Date
CaseChat Overview and Summary
In the case of R v Evan, the appellants were convicted of trafficking in the dangerous drug heroin and sentenced to varying lengths of imprisonment. The Crown's case relied on identification evidence from motel operators, financial evidence from a financial investigator, and records of interview given by the appellants. The appellants challenged the identification evidence which implicated them as suppliers of heroin. The High Court of Australia considered the admissibility of the identification evidence and whether it was of resemblance rather than identification.
The legal issues before the court included the admissibility of identification evidence in criminal cases and whether the evidence provided by the witnesses was of resemblance rather than identification. The court considered the strength of the evidence of identification in relation to each of the appellants and whether the jury was invited to make their own comparison with the recorded voice of one of the appellants. The court also examined the visual identification evidence provided by the witnesses and whether it was reliable and admissible.
The court held that the identification evidence was of resemblance rather than identification and was therefore inadmissible. The court concluded that the evidence against each of the appellants was not strong enough to sustain the convictions. The court quashed the convictions and ordered a new trial for each of the appellants. The judges agreed with the reasons for judgment of Keane JA and the orders he proposed.
The final orders of the court were that each appeal be allowed, the conviction in each case be quashed, and a new trial be ordered in each case. The decision highlights the importance of ensuring that identification evidence in criminal cases is reliable and admissible. The court's decision also underscores the need for the prosecution to establish a strong case against the accused, particularly in cases where identification evidence is relied upon.
The legal issues before the court included the admissibility of identification evidence in criminal cases and whether the evidence provided by the witnesses was of resemblance rather than identification. The court considered the strength of the evidence of identification in relation to each of the appellants and whether the jury was invited to make their own comparison with the recorded voice of one of the appellants. The court also examined the visual identification evidence provided by the witnesses and whether it was reliable and admissible.
The court held that the identification evidence was of resemblance rather than identification and was therefore inadmissible. The court concluded that the evidence against each of the appellants was not strong enough to sustain the convictions. The court quashed the convictions and ordered a new trial for each of the appellants. The judges agreed with the reasons for judgment of Keane JA and the orders he proposed.
The final orders of the court were that each appeal be allowed, the conviction in each case be quashed, and a new trial be ordered in each case. The decision highlights the importance of ensuring that identification evidence in criminal cases is reliable and admissible. The court's decision also underscores the need for the prosecution to establish a strong case against the accused, particularly in cases where identification evidence is relied upon.
Orders
Orders of the court
1. Each appeal is allowed
2. The conviction in each case is quashed
3. A new trial is ordered in each case
Background
Background to the litigation
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Evidence
Evidence Before The Court
The Crown relied upon evidence from the operators of motels at various locations to confirm that the appellants had stayed at those locations at times when they were alleged to have supplied heroin to one or other of the people to whom I have referred. Financial Evidence The Crown relied upon evidence given by a financial investigator from the Australian Crime Commission. His evidence was that, over the period the subject of the charge, Evan had unexplained income of approximately $47,000. On 22 occasions between 6 January 2000 and 28 July 2000, he withdrew money from a bank account in a geographical location different from that where money had been deposited on the same day. Of the deposits, 17 out of 22 were made in Cairns. Withdrawals were made at Woodridge, Coolangatta, Southport, Nerang, Surfers Paradise, Parramatta, Blacktown, Boondall and The Pines. Between 19 November 1999 and 25 October 2000, Bivolaru received cash deposits of $8,310. His only apparent source of income was social security payments. The Crown relied upon records of interview given by the appellants. The appellants had denied being in Cairns at the times relevant to the allegations of trafficking. None of the appellants gave evidence. Their defence consisted of a challenge to the evidence which identified each of them as suppliers of heroin from the witnesses mentioned above. It is, therefore, necessary to further summarise this evidence before discussing the arguments raised on the appeal. Identification By way of preliminary to the summary of the evidence bearing upon the identification of the appellants, three points may be made. First, the strength of the evidence of identification varied in relation to each of the appellants. On Robu's behalf, it is said on appeal that the evidence against Evan and Bivolaru was stronger than the evidence against Robu. But Robu did not seek a separate trial, and does not challenge his conviction on this ground. Secondly, the evidence of identification related to visual, and in one case aural, identification of one or more of the appellants. Thirdly, the jury were invited to conclude that Bivolaru's voice was recorded in telephone intercepts by making their own comparison with the recorded voice established by police evidence to be that of Bivolaru. Visual Identification The witnesses referred to above made visual identifications of one or more of the appellants as suppliers of heroin. Bianca Jeffree said during the photoboard identification process on 19 January 2001 that photo 4 on board 3 (Robu) "looks very similar to the man" who used to sell heroin at "Lumley Street", and "he looks very similar to that but I don't know if that's him or not". On 27 August 2001, she identified photo 7 (Bivolaru) as "the older gentleman [who came] with the younger guy" to deliver "the heroin to Neil … or come to collect the money". At trial, Ms Jeffree admitted that during this identification process she was "stoned on heroin". She had given police a description of the appellant prior to examining the photoboard, and she agreed that the only photo which could possibly match that description was photo 7, located in the middle of the photoboard.
Decision
Reasons for decision
The Crown did not suggest that s 668E of the Criminal Code could be applied to sustain any of the convictions. Accordingly, each conviction should be quashed. Conclusion and orders Each appeal must be allowed. The conviction in each case must be quashed. There should be a new trial in each case. HOLMES JA: I agree with the reasons for judgment of Keane JA, and the orders he proposes. ATKINSON J: I agree with the orders proposed by Keane JA for the reasons he has given.
Ratio Decidendi
Legal Principle Established
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