R v Perry (a pseudonym) (No 3) - [2016] ACTSC 341

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Perry (a pseudonym) (No 3)
Citation:	[2016] ACTSC 341
Hearing Date:	13 September 2016
DecisionDate:	13 September 2016
Reasons Date:	14 December 2016
Before:	Penfold J
Decision:	See [21] below.
Catchwords:	CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – identification – evidence identifying the accused as the person depicted in photographs – evidence to be given by partner of accused who lived with him at time photograph taken – whether evidence relevant – whether evidence properly characterised as fact or opinion – whether admissible as opinion evidence given by an ad hoc expert – evidence admitted subject to further satisfactory evidence concerning witness’s familiarity with accused.
Legislation Cited:	Evidence Act 1995 (NSW), pt 3.3 Evidence Act 2011 (ACT), ss 56(2), 192A
Cases Cited:	Miller v The Queen [2015] NSWCCA 206 R v Drollett [2005] NSWCCA 356 R v Marsh [2005] NSWCCA 331 R v Smith [1999] NSWCCA 317; 47 NSWLR 419 Smith v The Queen [2001] HCA 50; 206 CLR 650
Texts Cited:	Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12^th ed, 2016)
Parties:	The Queen (Crown) Tom Perry (Accused)
Representation:	Counsel Mr A Williamson (Crown) Mr J Masters (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 218 of 2015

Introduction

Tom Perry (a pseudonym) has been charged with six offences, being one burglary, one theft, one offence of taking a motor vehicle dishonestly and without consent, and three offences of obtaining property by deception.

The offences

The burglary took place between 5.40 am and 7.30 am on Friday 12 June 2015 at premises in Ainsworth Street in Mawson. Among the items stolen was a wallet containing a number of credit and debit cards.

Over about 20 minutes starting at 7.51 am on the same day, two men used several of the stolen cards in five separate transactions to obtain goods to the total value of several hundred dollars, and attempted to use them in a further transaction, at retail businesses in Tuggeranong.

The investigations

Police obtained CCTV footage showing the various transactions and attempted transactions.

On 20 June 2015, Mr Perry was interviewed by police about the burglary, the theft, the taking of the car and one of the deception offences. He was charged with two of the deception offences that day, and was later charged with a further deception offence, as well as the burglary and thefts in which the cards were stolen.

Mr Perry maintained pleas of not guilty, and in due course his trial began in the Supreme Court.

Application for advance ruling

Defence counsel applied for an advance ruling under s 192A of the Evidence Act 2011 (ACT) in relation to evidence proposed to be tendered by the Crown. The Crown proposed to call [redacted], Mr Perry’s partner, to give evidence that she, having viewed still images taken from the CCTV footage, could identify one of the…

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 Perry (a pseudonym) (No 3)

Details

AGLC: R v Potts (No 3) [2016] ACTSC 341
Case: [2016] ACTSC 341
Decision Date: 13 September 2016

CaseChat Overview and Summary

The case before the court involved the respondent, referred to as Perry, who was facing criminal charges. The primary dispute centred on the admissibility of certain photographic evidence intended to identify Perry as the individual depicted within. The matter was heard in a relevant Australian court, with the specifics of the proceedings focusing on evidentiary principles, particularly those relating to witness identification and expert opinion evidence.

The court was tasked with determining whether the proposed evidence from a witness, who claimed to have lived with Perry at the time the photographs were taken, was admissible. This required the court to assess the relevance of the evidence and to decide whether it was properly characterised as factual or opinion-based evidence. Additionally, the court needed to consider whether such opinion evidence, if it were to be given by an ad hoc expert, was admissible under the rules of evidence. The court concluded that the evidence was admissible, but only on the condition that further satisfactory evidence concerning the witness's familiarity with Perry was provided.

In its reasoning, the court found that the evidence in question, although potentially opinion-based, could be considered relevant if the witness had a sufficiently close and prolonged relationship with Perry. The court also determined that the evidence could be admitted as opinion evidence from an ad hoc expert, provided that the witness's familiarity with Perry was substantiated. Consequently, the court allowed the evidence to proceed subject to the provision of additional evidence concerning the witness's familiarity with Perry. The final orders of the court, outlined in [21], detailed the conditions under which the photographic evidence could be presented to the jury.

Orders

Orders of the court

See [21] below.

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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