R v Hackett - [2006] VSCA 138

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 79 of 2005

THE QUEEN
	v.
JOHN FREDERICK HACKETT

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JUDGES:	BUCHANAN, NETTLE, JJ.A. and BONGIORNO, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 June 2006
DATE OF JUDGMENT:	27 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 138

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CRIMINAL LAW – Armed robbery – Evidence – Identification evidence – Identification made from photo board – Contrasting evidence of other eye-witness – Whether judge failed to deal with distinction between identification evidence and similarity evidence – Whether judge needed to warn jury of “displacement effect” – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Michael Gleeson & Associates

BUCHANAN, J.A.:

I will ask Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

Following a three-day trial in the County Court at Melbourne, on 18 March 2005 the applicant was convicted of one count of armed robbery, for which he was sentenced to six years' imprisonment with a non-parole period of four years. He now seeks leave to appeal against conviction and sentence.

The facts

The offence was alleged to have taken place in Acland Street, St Kilda at around midnight on Tuesday 11 November 2003. The applicant denied committing the offence. The Crown called the complainant, an eye witness (Mr K) and the informant, Senior Constable Quinlan, and by agreement read to the jury the statement of a medical practitioner (Dr Lim). The applicant did not call any evidence.

The complainant's evidence in chief was that on 11 November 2003 she left her friend's house in Carlisle Street, St Kilda at approximately 11.50 p.m., having consumed no alcohol. She walked along Acland Street, just past Robe Street, when she observed a man alone 50 metres away on the same side of the road and walking towards her. He was wearing dark clothing and had his hands in his pockets and at first sight the complainant thought that she knew him.

The complainant said that the man had his head down as he walked towards her and consequently she could not observe his face from the "far distant". But as he got closer (approximately five metres away) she could see that he was wearing a dark beanie pulled down just above his eyebrows and could see his face. She realised then that she did not know him. She continued to watch him, however, because she was scared and, as they were about to pass, the man stepped across her and cut her off, standing just in front of her face.

The complainant said that the man pulled a knife from his pocket in his right hand and said: "Give us your bag, will you?" She did not, and so he then tried to pull her handbag off her right shoulder with his left hand. She in turn pinched her arms towards her body to hold on to the bag and turned around, and when she…

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 Hackett

Details

AGLC: R v Hackett [2006] VSCA 138
Case: [2006] VSCA 138
Decision Date: 27 June 2006

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, with the appellant, Hackett, contesting a conviction for armed robbery. The central issue was whether the trial judge adequately instructed the jury regarding the reliability of identification evidence provided by a witness, who had identified Hackett from a photo board, despite another witness providing contrasting evidence. The appellant argued that the trial judge had not sufficiently differentiated between the identification evidence and similarity evidence, nor had the judge warned the jury about the "displacement effect." The court was tasked with determining whether the trial judge's instructions were adequate and whether any failure to instruct the jury properly constituted a miscarriage of justice.

The legal issues centred on the adequacy of the trial judge's directions to the jury concerning the reliability of identification evidence. The court had to consider whether the trial judge needed to clarify the distinction between identification evidence and similarity evidence, particularly given the contrasting accounts from two witnesses. Additionally, the court examined whether the judge should have warned the jury about the potential "displacement effect," which could arise from viewing a photo board and subsequently identifying a person as the perpetrator. The court's role was to assess whether these omissions by the trial judge constituted a miscarriage of justice that required the appeal to be allowed.

The High Court found that the trial judge had indeed failed to adequately distinguish between identification evidence and similarity evidence, and had not sufficiently warned the jury about the "displacement effect." The court held that these omissions were significant, as they could have led the jury to place undue weight on the photo board identification. The judge's failure to provide these crucial instructions was deemed a miscarriage of justice, leading the court to allow the appeal. The identification evidence, in the absence of proper instructions, was found to be unreliable, and the conviction was consequently overturned.

The court ordered that the conviction be quashed and a new trial be conducted. The appeal was allowed, and the original conviction was set aside. The case underscores the importance of clear and comprehensive jury instructions regarding the reliability of identification evidence, particularly when conflicting accounts are presented.

Orders