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R v Fisher

R v Fisher

Case [2001] NSWCCA 380 11 October 2001

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CITATION: R v FISHER [2001] NSWCCA 380

FILE NUMBER(S): CCA 60771/00

HEARING DATE(S): 27 August 2001

JUDGMENT DATE:
11 October 2001

PARTIES :

Graham Francis Fisher - Appellant
Crown - Respondent

JUDGMENT OF: Sheller JA at 1; Sully J at 29; Hulme J at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/61/0152

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : H Dhanji - Appellant
G E Smith - Crown

SOLICITORS: D J Humphreys - Appellant
S E O'Connor - Crown

CATCHWORDS: Criminal Law and Procedure - Admission of evidence - accused identified in line-up - where none of the other men in the line-up were of similar appearance to the accused - probative value of evidence outweighed by danger of unfair prejudice - s 137 Evidence Act 1995.

LEGISLATION CITED: N/A

CASES CITED:
R v BD (1997) 94 A CrimR 131
Papakosmas v The Queen (1999) 196 CLR 297
Alexander v The Queen (1981) 145 CLR 395

DECISION: 1. Appeal allowed; 2. Quash the conviction; 3. Order a new trial.

IN THE COURT OF
CRIMINAL APPEAL

60771/00

SHELLER JA

SULLY J

HULME J

Thursday, 11 October 2001

Regina v Graham Francis FISHER

The appellant was convicted of assault with intent to rob. The main question in the case was one of identification. Witnesses claimed they saw the same person who had committed the crime with a woman later that day. An identification parade was held three days after the incident, and two witnesses of the crime identified the appellant. The appellant objected to the admission of this evidence at trial on the ground that its probative value was outweighed by the prejudice to the defendant (s137 Evidence Act 1995). The basis of the objection was that the appellant was the only person in the line-up of six persons to match the description given by witnesses of a man of aboriginal appearance with shoulder length hair. The trial Judge admitted the evidence, and the appellant challenged this decision. An additional challenge was made on the basis that the trial Judge did not direct the jury to consider the identification evidence separately from evidence connecting the appellant with the woman.

Held: (per Sheller JA, Sully J and Hulme J agreeing):
1. The jury was entitled to take account of the evidence of the appellant’s association with the woman together with the identification evidence, if this was otherwise admissible.
2. None of the men in the line-up parade had an appearance similar to the appellant. Namely, none of them were of aboriginal appearance with shoulder length hair.
3. The inherent tendency of a witness at the identification parade to select the appellant as the only person answering this description had the effect of lessening the probative value of this evidence and of increasing the danger of unfair prejudice. This evidence should have been excluded pursuant to s137.
4. The admission of the identification evidence resulted in a substantial miscarriage of justice.

ORDERS

1. Appeal allowed;
2. Quash the…

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 Fisher

Details

AGLC: R v Fisher [2001] NSWCCA 380
Case: [2001] NSWCCA 380
Decision Date: 11 October 2001

CaseChat Overview and Summary

In the case of R v Fisher, the appellant stood accused of an armed robbery. The dispute before the court revolved around the admissibility of evidence relating to a line-up in which the appellant was identified by a witness. The High Court of Australia was tasked with determining the legal principles governing the admissibility of such identification evidence, particularly when the accused was the only individual in the line-up who bore a resemblance to the perpetrator.

The central legal issue before the court was whether the identification evidence obtained from the line-up was admissible under section 137 of the Evidence Act 1995. This section requires that the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice to the accused. The court had to assess whether the unique circumstances of the line-up, where the appellant was the only person who resembled the perpetrator, rendered the identification evidence unfairly prejudicial.

The court ruled that the identification evidence was inadmissible due to the undue risk of unfair prejudice. The unique circumstances of the line-up, where none of the other participants bore a resemblance to the appellant, heightened the risk that the witness's identification would be based on factors other than a fair assessment of the perpetrator's appearance. The court concluded that this risk substantially outweighed the probative value of the identification, rendering the evidence inadmissible under section 137 of the Evidence Act 1995.

As a result of the court's decision, the identification evidence obtained from the line-up was excluded from the trial. The court's ruling underscores the importance of ensuring that identification procedures do not unfairly prejudice the accused, particularly in circumstances where the accused is the only individual in the line-up who resembles the perpetrator.

Orders