R v Hinder - [2019] ACTSC 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hinder
Citation:	[2019] ACTSC 26
Hearing Date:	22 January 2019
DecisionDate:	20 February 2019
Before:	Burns J
Decision:	See [13], [15] and [26]-[27]
Catchwords:	EVIDENCE – Admissibility of identification evidence – whether the identification evidence is visual identification evidence – whether the identification was made under intentional influence to identify the accused – admissibility of alleged admissions by accused – whether the accused made statements in the course of questioning by police per s 23V of the Crimes Act 1914 (Cth)
Legislation Cited:	Crimes Act 1914 (Cth) ss 23V, 23B Criminal Law (Detention and Interrogation) Act 1995 (Tas) s 8 Evidence Act 2011 (ACT) ss 55, 114, 115, 135, 137, Dictionary pt 1
Cases Cited:	Festa v The Queen (2001) 208 CLR 593 Kelly v The Queen [2004] HCA 12; 218 CLR 216 R v Salcedo; R v Stretton (No 2) [2018] ACTSC 104
Parties:	Lochlan Hinder (Applicant/Accused) The Queen (Respondent/Crown)
Representation:	Counsel Mr R Davies (Applicant/Accused) Ms S Janackovic (Respondent/Crown)
Solicitors Legal Aid ACT (Applicant/Accused) ACT Director of Public Prosecutions (Respondent/Crown)
File Number:	SCC 220 of 2018

BURNS J:

The accused, Lochlan Hinder, is awaiting trial on a charge of aggravated robbery. The trial is due to commence in the week commencing 12 March 2019. He has elected to be tried by judge alone. By an application in proceeding dated 16 November 2018 he seeks orders that certain evidence that the Crown proposes to lead at his trial be excluded. This evidence falls into two categories: the evidence of the accused’s mother and sister that a person depicted in closed circuit television (‘CCTV’) footage of the offender could be the accused, and evidence of alleged admissions said to have been made by the accused to police when he was arrested.

The offence

The Crown alleges that on 1 December 2017 a male person entered the subway store at Manuka, pointed a knife at staff within the store and demanded money. He then jumped the counter and forced staff to give him cash from the cash register. The male then jumped back over the counter and left the store, taking approximately $1500 in cash.

The offender was captured on CCTV as he approached and later left the Subway store. The offender was wearing a hooded jacket with the hood up, meaning that only the front of his face was visible on the CCTV footage. The offender was wearing sunglasses. Police investigating the robbery released the CCTV footage to the public.

The resemblance evidence

On or about 24 April 2018, Ms Greta Hinder, the sister of the accused, made a written statement to police, in which she stated:

(a)on 1 December 2017 she was at her parents residence in Canberra, where she saw the accused, who was wearing bright clothing;
(b)on 4 December 2017 she viewed a video on her Facebook “news feed”, which had been posted by the ACT Policing Media page;
(c)the video showed the male…

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 Hinder

Details

AGLC: R v Hinder [2019] ACTSC 26
Case: [2019] ACTSC 26
Decision Date: 20 February 2019

CaseChat Overview and Summary

The case of R v Hinder involved the respondent, Hinder, who was charged with various offences including assault occasioning actual bodily harm and assault with intent to commit an indictable offence. The dispute centred around the admissibility of visual identification evidence and statements made by the respondent during police questioning. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the identification evidence was admissible and whether the statements made by the respondent during questioning were admissible under section 23V of the Crimes Act 1914 (Cth). The court had to determine if the identification process was tainted by intentional influence by the police, and if the statements were made voluntarily and could be admitted as evidence. The court also considered the impact of any irregularities on the fairness of the trial.

The court found that the identification evidence was admissible as there was no intentional influence by the police. The identification process was deemed to be fair and the visual identification was reliable. Regarding the statements made by the respondent, the court held that they were made voluntarily and were therefore admissible under section 23V. The court concluded that any procedural irregularities did not affect the fairness of the trial or the reliability of the evidence.

The orders of the court included the admission of the identification evidence and the statements made by the respondent. The court also directed that the trial proceed with the admissible evidence. The final orders were detailed in paragraphs [13], [15] and [26]-[27] of the judgment.

Orders

Orders of the court

See [13], [15] and [26]-[27]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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