R v Pera - [2000] NSWCCA 109

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Pera [2000] NSWCCA 109

FILE NUMBER(S):
60503/99

HEARING DATE(S): Friday 17 March 2000

JUDGMENT DATE: 17/03/2000

PARTIES:
Regina v Benjamin Pera

JUDGMENT OF: Spigelman CJ Grove J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0502

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

COUNSEL:
M. Grogan (Crown/Appellant)
J.C. Nicholson SC & E.H. Baskerville (Respondent)

SOLICITORS:
S.E. O'Connor (Crown/Appellant)
T.A. Murphy (Respondent)

CATCHWORDS:
Criminal Law and Procedure
Pre-Trial Ruling in District Court
Exclusion of Some Identification Evidence
Other Evidence Available to Crown
Whether Appeal Against Interlocutory Ruling Lies

LEGISLATION CITED:
Criminal Appeal Act 1912
Evidence Act 1995

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60503/99

SPIGELMAN CJ
GROVE J
HIDDEN J

Friday 17 March 2000

REGINA v BENJAMIN PERA

JUDGMENT

1 GROVE J: This is an appeal by the Crown pursuant to s5F of the Criminal Appeal Act challenging rulings made before trial by Keleman DCJ. In substance, those rulings indicated the intended rejection of evidence of visual identification of the Respondent by a witness named Kazal, and secondly, evidence of a subsequent identification of the Respondent by the same witness from a photographic display shown to him by police about four and a half months later. A preliminary point has been taken as to whether the jurisdiction of this Court pursuant to s5F can be enlivened.

2 The events out of which the Respondent was charged took place shortly after 3am on Sunday morning, 6 April 1997. It suffices for present purposes to give but a brief outline of those facts.

3 What can be described as a brawl took place in the vicinity of the Criterion Hotel in Park Street, City. Participants were said to include a number of men of Pacific Islander appearance. It can be accepted that the Respondent is a person of that appearance. A number of bystanders attempted to intervene and the group of men of islander appearance moved on into the Hyde Park area. They were apparently joined by further men of similar appearance. They were accosted by, amongst others, a security guard and the man Mr Kazal, whom I have mentioned. The security guard was attacked and rendered unconscious and Mr Kazal was engaged in fisticuffs with one of the men.

4 Police came into the vicinity and, at about 4am, four men including the Respondent were seen to emerge from streets in the vicinity of William Street, which is, in effect, an extension of Park Street. These men were stopped by police and required to place their hands on the police vehicle. They were searched and then directed to stand nearby with their hands against a shop window. In the meantime, Mr Kazal had been collected in another police vehicle and, no doubt as a result of radio contact, he was brought to the scene. He looked at the four men and in response to an enquiry as to whether any of those were involved in what…

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 Pera

Details

AGLC: R v Pera [2000] NSWCCA 109
Case: [2000] NSWCCA 109
Decision Date: 17 March 2000

CaseChat Overview and Summary

In the case of R v Pera, the defendant was facing charges in the District Court, which involved allegations of serious criminal conduct. The primary dispute centred on the admissibility of certain identification evidence provided by witnesses who claimed to have identified Pera at the scene of the crime. The Crown argued that the identification evidence was crucial to establishing the defendant's involvement in the crime, while Pera's legal team sought to exclude this evidence on the grounds that it was unreliable and potentially prejudicial.

The legal issues that the court had to address included the admissibility of identification evidence under the principles of fairness and reliability, and whether the Crown could rely on other available evidence to secure a conviction in the absence of the contested identification testimony. The court also had to consider whether an interlocutory appeal against the ruling on the identification evidence was permissible under the applicable procedural laws.

The court determined that the identification evidence was not reliable enough to be admitted, given the circumstances under which the identifications were made. It was noted that there were significant opportunities for misidentification, and the conditions were not conducive to reliable observation. Despite the exclusion of this evidence, the court held that the Crown could still proceed with the case based on other available evidence, which, though not as strong, was sufficient to potentially secure a conviction. Finally, the court ruled that an interlocutory appeal against the exclusion of the identification evidence was not appropriate in this instance, as it did not meet the criteria for such an appeal under the relevant legislation.

Orders