R v Gatty - [2001] TASSC 9

[2001] TASSC 9

CITATION: R v Gatty [2001] TASSC 9

PARTIES:  R
  v
  GATTY, Shawn Lee

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  369/2000
DELIVERED ON:  14 February 2001
DELIVERED AT:  Hobart
HEARING DATES:  9 February 2001
JUDGMENT OF:  Cox CJ

Edited edition of Reasons for Judgment given orally

CATCHWORDS:

Criminal Law - Evidence - Identification evidence - Modes of proof - Identification from photographs - Adoption of alternative approach to identification - Whether acceptable - Risk of influence by the "displacement factor" - Discretion to exclude.

R v Murphy (1995) 85 A Crim R 286; Alexander v R (1980 - 1981) 145 CLR 395, referred to.
Aust Dig Criminal Law [606]

REPRESENTATION:

Counsel:
             Crown:  J N Perks
             Accused:  K M Baumeler
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Wilson Dowd

Judgment Number: [2001] TASSC 9
Number of Paragraphs: 12

Serial No 9/2001
File No 369/2000

R v SHAWN LEE GATTY

RULING ON TRIAL COX CJ

14 February 2001

I have been asked to exercise my discretion to exclude evidence of identification of the accused who is charged with one count of armed robbery on 23 November 1999, committed at the Westerway Roadhouse. The sole occupant of the premises at the time was Tracey Baker who, while checking a refrigerator, was approached from behind by the offender who thrust a knife against her back and propelled her to the cash register, demanding money. At the till, he seized its contents with his left hand and Mrs Baker observed the word, "L O V E" tattooed on his fingers above the knuckles. The tattoo appeared to be a home-made one, rather than professionally done. Just before he reached for the money, Mrs Baker got a quick side-on glimpse of the offender. Upon obtaining the money, he ran out of the shop. As he ran, she again caught a view of the right side of his face. She had this view, she said, for eight to ten seconds. When he got outside he joined another man and they ran off down the road towards Maydena.

The best description that she could give was that he was wearing black jeans, black windcheater and a black beanie which concealed his hair and ears. He appeared not to have shaved for a day or two, was between 20 and 25 years old and was about the same height as, or a little taller than, the police officer who interviewed her and who gave his height as 178cms. She at no stage had a frontal view of him. He spoke with an Australian accent and did not appear to be well educated.

The next day she attended the Hobart police station and with the assistance of Sergeant McMillan, a computerised identikit was prepared for circulation in the media. Mrs Baker said in evidence that she was not happy that it resembled the offender. It bears little resemblance to the accused. Sergeant McMillan could not recall her expressed degree of satisfaction…

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 Gatty

Details

AGLC: R v Gatty [2001] TASSC 9
Case: [2001] TASSC 9
Decision Date: 14 February 2001

CaseChat Overview and Summary

The Supreme Court of Tasmania was asked to consider a case in which Shawn Lee Gatty was charged with armed robbery. The only evidence of his involvement was the identification evidence of Tracey Baker, the sole occupant of the premises at the time of the robbery. The legal issue before the Court was whether the identification evidence provided by Baker was admissible and whether the court should exercise its discretion to exclude such evidence. The Court found that the identification evidence was highly prejudicial to Gatty as it was based on a limited observation of the offender and the risk of influence by the "displacement factor" was significant. The Court considered that the prejudicial effect of the evidence outweighed its probative value, and therefore exercised its discretion to exclude the evidence.

The Court held that the identification evidence was prejudicial as it was based on a limited opportunity to observe the offender and there was no distinctive feature to aid in identification. The Court also found that the risk of influence by the "displacement factor" was significant, as Baker had seen Gatty's photograph before identifying him in person. The Court further noted that the evidence of the photo board would be highly prejudicial to Gatty as it was likely that a jury would conclude that all persons on it were adversely known to the police. The Court held that the prejudicial effect of the evidence outweighed its probative value and therefore exercised its discretion to exclude the evidence.

The Court's decision to exclude the identification evidence was based on the significant risk of prejudice to Gatty, which could not be neutralized by any amount of detailed directions. The Court held that the prejudicial effect of the evidence outweighed its probative value, and therefore exercised its discretion to exclude the evidence. This decision highlights the importance of ensuring that identification evidence is obtained through a fair and impartial process, and that the probative value of such evidence is not outweighed by its prejudicial effect.

Orders