R v Gardner - [2001] NSWCCA 381

Reported Decision:
123 A Crim R 439

New South Wales

Court of Criminal Appeal

CITATION: R v GARDNER [2001] NSWCCA 381

FILE NUMBER(S): CCA 60764/00

HEARING DATE(S): 29 August 2001

JUDGMENT DATE:
25 September 2001

PARTIES :

Guy Gardner - Appellant
Crown - Respondent

JUDGMENT OF: Sheller JA at 1; Sully J at 26; Hulme J at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/0301

LOWER COURT JUDICIAL
OFFICER : Armitage DCJ

COUNSEL : G F Jauncey - Appellant
R A Hulme - Crown

SOLICITORS: Aboriginal Legal Service - Appellant
S E O'Connor - Crown

CATCHWORDS: Criminal Practice and Procedure - Admission of Evidence - whether evidence of police officers that they recognised person in photographs as the accused was relevant under s55 Evidence Act - application of Smith v The Queen (2001) HCA 50 - whether trial Judge corrected error on part of prosecutor in commenting on the accused's mother's failure to give evidence contrary to s20(3) Evidence Act - whether process of examining accused from a similar angle to that shown in photographs of the crime contravened s137 Evidence Act

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
R v Smith (1999) 47 NSWLR 419
Smith v The Queen (2001) HCA 50
Alexander v The Queen (1981) 145 CLR 395
R v Goodall [1982] VR 33
R v Palmer [1981] 1 NSWLR 209
Morrison v The Queen (unreported) NSWCCA 30 November 1995
R v Tipene (unreported) New Zealand CA 30 May 2001
R v Griffith (1995) 79 A CrimR 125
R v Cook (1998) 130 NTR 28
R v Kirby [2000] NSWCCA 330
Bulejcik (1995) 185 CLR 375
Sorby (1983) 153 CLR 281
Lockyer (1996) 89 A CrimR 457
Singh-Bal (1997) 92 A CrimR 397

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

IN THE COURT OF

CRIMINAL APPEAL

60764/00

Tuesday, 25 September 2001

Regina v Guy GARDNER

The appellant was convicted of robbery. Part of the Crown evidence at the trial consisted of photographs taken by a bank security camera at the time of the robbery. The appellant objected to three aspects of the proceedings. First, the Crown called three police officers to give evidence that they were previously acquainted with the appellant, and that they had separately nominated the appellant as one of the persons in these photographs. The appellant objected to the police officers' evidence, but, following a voir dire, the trial Judge admitted the evidence. Second, in the course of summing up to the jury, the Crown Prosecutor made a comment on the failure of the appellant's mother to give evidence which contravened s20(3) of the Evidence Act 1995. Third, at the invitation of his counsel, for the benefit of the jury, the appellant displayed the same profile as appeared in the photographs.

Held:

per Sheller JA, Sully J and Hulme J agreeing:

1. Following the decision in Smith v The Queen (2001) HCA 50, the evidence of the police officers as to their…

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 Gardner

Details

AGLC: R v Gardner [2001] NSWCCA 381
Case: [2001] NSWCCA 381
Decision Date: 25 September 2001

CaseChat Overview and Summary

In the case of R v Gardner, the appellant was convicted of armed robbery and attempted armed robbery. The dispute was centred on the admissibility of certain evidence during the trial, as well as procedural errors that might have affected the fairness of the proceedings. The High Court of Australia was called upon to review the decisions made by the trial judge and the Court of Appeal.

The legal issues the court was required to decide included whether the evidence of police officers who identified the appellant in photographs as the person involved in the crimes was relevant and admissible under section 55 of the Evidence Act. Additionally, the court needed to consider whether the trial judge had properly addressed an error made by the prosecutor in commenting on the appellant's mother's failure to give evidence, in contravention of section 20(3) of the Evidence Act. Another issue was whether the process of examining the appellant from a similar angle to that shown in photographs of the crime scene contravened section 137 of the Evidence Act.

The court found that the evidence of the police officers identifying the appellant in the photographs was relevant and admissible, applying the principles from Smith v The Queen (2001) HCA 50. The court also determined that the trial judge had corrected the error made by the prosecutor regarding the appellant's mother's failure to give evidence, and that this did not prejudice the appellant. Finally, the court held that the process of examining the appellant in a similar manner to that shown in the photographs did not contravene section 137 of the Evidence Act. Consequently, the appeal was dismissed.

The final orders of the court were that the conviction and sentence of the appellant be upheld, and that the appeal be dismissed in its entirety.

Orders