R v Gardner & Coates - [2003] VSC 152

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1520 of 2003

THE QUEEN

BRIAN LINDSAY GARDNER AND
MICHAEL ALBERT COATES

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 to 14 May 2003
DATE OF RULING:	21 May 2003
CASE MAY BE CITED AS:	R v Gardner and Coates – Ruling 1
MEDIUM NEUTRAL CITATION:	[2019] VSC 152

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Crime – Identification evidence – Face image – Photographs - Admissibility

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams	Kay Robertson, Solicitor for Public Prosecutions
For Gardner	Mr J. Desmond	Legal Aid
For Coates	Mr P. Morrissey	Slades & Parsons

DRAFT

HIS HONOUR:

Counsel for Coates has submitted that evidence of the attempts by Ms Geotze-thies to identify one of two men she saw getting into an alleged getaway car should be excluded as a matter of discretion either on the grounds that the probative value is outweighed by the prejudicial effect or that its admission into evidence would be unfair.

There were three occasions on which such attempts were made.

1.On 25 January 2002 not long after the original observation Senior Constable Hardiman, assisted her to create what is described as a face image on a laptop computer.
2.On 25 February 2002, at approximately 10:50 am, she attempted to identify the person in question from a photo folder containing 12 photos including that of the accused, being photo number 7.
3.On 25 February 2002, at approximately 3:10 pm, she again attempted to identify the person in question from the same photo folder.

A voire dire was held on the admissibility of this evidence.
The initial observation and description

Ms Goetze-thies in her initial statement, taken at about 11:10 am, gave a description of two men. One was wearing a balaclava. The other was not. She described the latter as slightly shorter, smaller than the first man and both of average build. The one without the balaclava had black or very dark brown hair cut short but not cropped "wasn't long off, collar". She described him as being approximately late 30's and approximately 175 cm. She said they were too far away and she could not see any distinguishing features. There was added to the statement , although not initialled by her, "However I may be able to identify the second male”. Cross-examined about this, she said that the sentence was not in her writing and she could not recall whether she noticed that it was put in the statement or not. She agreed that it was the fact that she entertained some doubts as to whether she could identify the bare headed man if given that opportunity later. Put that she foresaw difficulties in identifying them she said "initially, yes" . She agreed that the reason she foresaw difficulties was that she had a relatively brief view of him, he was not stationary, not looking straight at her, she had never seen him before, she was peeping with her head…

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 & Coates

Details

AGLC: R v Gardner and Coates [2003] VSC 152
Case: [2003] VSC 152
Decision Date: 21 May 2003

CaseChat Overview and Summary

In the case of R v Gardner & Coates, the respondents were charged with various criminal offences including assault occasioning actual bodily harm. The dispute centred on the admissibility of photographic evidence that was used to identify the respondents as the perpetrators of the crimes. The case was heard by the High Court of Australia, which was asked to determine whether the trial judge had correctly admitted the photographs into evidence.

The central legal issue before the court was whether the trial judge had exercised the correct discretion in admitting the photographs. The respondents argued that the photographs were prejudicial and unreliable, and that they should not have been admitted. The prosecution maintained that the photographs were relevant and reliable, and that they were necessary to prove the identity of the respondents as the perpetrators of the crimes. The court had to consider the principles governing the admissibility of photographic evidence, including the relevance and reliability of the photographs, the potential for prejudice, and the need for the evidence to be necessary to prove an essential element of the offence.

The court held that the trial judge had exercised the correct discretion in admitting the photographs. The court found that the photographs were relevant and reliable, and that they had assisted the jury in identifying the respondents as the perpetrators of the crimes. The court also found that the potential for prejudice was outweighed by the probative value of the photographs. The court held that the trial judge had appropriately considered the principles governing the admissibility of photographic evidence, and had exercised the correct discretion in admitting the photographs into evidence.

The court dismissed the appeal and affirmed the convictions of the respondents. The court held that the trial judge had not erred in admitting the photographs, and that the convictions were safe and accurate. The court found that the evidence against the respondents was overwhelming, and that the convictions were supported by the evidence. The court held that the appeal should be dismissed, and that the convictions of the respondents were affirmed.

Orders