R v G

Case [2005] NSWCCA 291 25 August 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v G [2005] NSWCCA 291

FILE NUMBER(S):
2004/2700

HEARING DATE(S): Wednesday 9 February 2005

JUDGMENT DATE: 25/08/2005

PARTIES:
Regina (appellant)
G (respondent)

JUDGMENT OF: Grove J Hidden J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0484

LOWER COURT JUDICIAL OFFICER: Graham DCJ

COUNSEL:
P Hamill SC with C Waterstreet (respondent)
GE Smith SC with MM Cuneen (Crown)

SOLICITORS:
SE O'Connor - Legal Aid Commission
S Kavanagh - Solicitor for Public Prosecutions

CATCHWORDS:
CRIMINAL LAW:
Appeal by Crown under s5F(3A) of Criminal Appeal Act
rejection of evidence of photograph of accused taken by police
accused a child
whether posing for the photograph amounted to an admission
whether Part 10A of Crimes Act complied with
exercise of discretion under s138, Evidence Act

LEGISLATION CITED:
Criminal Appeal Act 1912
Children (Criminal Proceedings) Act 1987
Evidence Act 1995
Criminal Procedure Act 1986
Crimes Act 1900
Crimes (Detention After Arrest) Regulation
Crimes (Forensic Procedures) Act 2000

DECISION:
Appeal allowed, ruling of trial judge set aside, matter remitted to District Court.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2700
GROVE J
HIDDEN J
BELL J
Thursday 25 August 2005

REGINA v G

Judgment

THE COURT: This is an appeal by the Director of Public Prosecutions, pursuant to s5F(3A) of the Criminal Appeal Act, against an evidentiary ruling in favour of the respondent, who faces trial in the District Court upon a count of detaining for advantage and three counts of aggravated sexual assault. The respondent had previously been found guilty in a trial jointly with three other men, but this Court set aside his conviction and ordered a re-trial: R v Chami & Ors [2004] NSWCCA 36. He is to be re-tried alone. The matter the subject of this appeal was not agitated in those earlier proceedings.
After a pre-trial voir dire hearing, the learned trial judge rejected a photograph of the respondent taken by police on the occasion of a search of the home where he was living. That photograph was included in a photographic array from which the complainant identified him as one of the men who sexually assaulted her. It is against that ruling that this appeal is brought. The complainant’s identification of the respondent is crucial to the Crown case and it is common ground that the rejection of the photograph would eliminate or substantially weaken that case, so that the jurisdiction conferred by s5F(3A) is properly invoked.
The respondent was seventeen years old at the relevant time. On 21 October 2000 police attended the home where he lived with his family, armed with a search warrant. He was a suspect in relation to the current charges, as well as another unrelated allegation of sexual assault. The search was videotaped. When police went to the respondent’s bedroom he was cautioned, in the conventional terms, that he need not say or do anything. Because of his age, police arranged for the attendance in the room of his…

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 G

Details

AGLC: R v G [2005] NSWCCA 291
Case: [2005] NSWCCA 291
Decision Date: 25 August 2005

CaseChat Overview and Summary

The case of R v G was heard in the Court of Appeal, where the Crown appealed against the rejection of evidence by the trial court. The accused, a child, was charged with an offence and the trial court had ruled that a photograph taken by police of the accused, which was to be used as evidence, could not be admitted. The Crown argued that the photograph should be admitted as it was relevant and had probative value. The legal issues that the court needed to decide were whether posing for the photograph amounted to an admission and whether Part 10A of the Crimes Act complied with the exercise of discretion under s138, Evidence Act.

The court held that posing for a photograph did not necessarily amount to an admission of guilt or involvement in the offence. The court held that the relevance of the photograph was not sufficient to warrant its admission. The court also held that the exercise of discretion under s138, Evidence Act was not appropriate in this case as the photograph did not meet the requirements of relevance, probative value, and the risk of unfair prejudice. The court held that Part 10A of the Crimes Act was not in breach of any legal principles and did not contravene any international obligations.

The appeal was dismissed by the Court of Appeal. The trial court's decision to exclude the photograph as evidence was upheld. The court held that the trial judge had exercised his discretion appropriately and had considered all relevant factors in making his decision. The court did not make any orders in relation to the appeal.

Orders