R v Peter Buchanan, Justin Robert Smith and Trevor Thomas - [2004] NSWSC 816

Reported Decision:
152 A Crim R 302

Supreme Court

CITATION: R v Peter Buchanan, Justin Robert Smith and Trevor Thomas [2004] NSWSC 816

HEARING DATE(S): 09/08/2004

JUDGMENT DATE:
10 August 2004

JUDGMENT OF: Buddin J

DECISION: Application to exclude identification evidence refused.

LEGISLATION CITED: Evidence Act

CASES CITED: Domican v The Queen (1992) 173 CLR 555
Festa v The Queen (2001) 208 CLR 593
Papakosmas v R (1999) 196 CLR 297
R v BD (1997) 94 A Crim R 131
R v Blick (2000) 111 A Crim R 326
R v Carusi (1997) 92 A Crim R 52
R v Ford (NSWSC unreported 22/4/98)
R v Jamal (2000) 116 A Crim R 45
R v Leroy and Graham [2000] NSWCCA 302
R v Tugaga (1994) 74 A Crim R 190

PARTIES :
Regina
Peter Buchanan
Justin Robert James Smith
Trevor Anthony Thomas

FILE NUMBER(S): SC 70054/03; 70235/03; 70236/03

COUNSEL: B Smith (Crown)
M Ramage QC (Buchanan)
J Chicken (Smith)
G Turnbull (Thomas)

SOLICITORS: SE O'Connor (Crown)
John Krajcik (Buchanan)
Andrew Harris & Associates (Smith)
Adamson Solicitors (Thomas)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

TUESDAY 10 AUGUST 2004

70054/03 – REGINA v PETER BUCHANAN
70235/03 – REGINA v JUSTIN ROBERT JAMES SMITH
70236/03 – REGINA v TREVOR ANTHONY THOMAS
JUDGMENT – Application by accused Trevor Anthony Thomas to exclude identification evidence

1 HIS HONOUR: Peter Buchanan, Trevor Thomas and Justin Smith are accused of the murder of Raymond Carrion on 5 July 1998. The alleged offence occurred in the shower block of Wing 12 of Long Bay Gaol. All three men were then inmates who were being housed in that part of the Gaol. The Crown case depends very largely upon the evidence of another inmate who was in Wing 12 at the time. For the purposes of these proceedings, that inmate has been given the pseudonym, Ronald Stuart.

2 Objection is taken by Mr Turnbull on behalf of the accused, Trevor Thomas, to evidence which the Crown seeks to lead from Ronald Stuart in which he purports to identify the accused as a participant in the murder of Mr Carrion. I have already ruled upon an objection raised by Mr Chicken, who appears on behalf of the accused, Smith. Although Mr Chicken took objection to the identification evidence which Stuart purports to give in relation to his client, the issues which he raised were somewhat different from those which are now raised. Neither Mr Chicken nor Mr Ramage QC, who appears on behalf of the accused Buchanan sought to make any submission on behalf of their clients in support of the current application. Each however reserved the right to make submissions in the event that I upheld Mr Turnbull’s objection. The accused have been arraigned and a jury has been empanelled but for reasons which are not presently relevant the evidence has not yet commenced.

3 It is necessary to briefly outline the case which the Crown seeks to lead against the accused.…

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.

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Details

Case: [2004] NSWSC 816
Decision Date: 10 August 2004

CaseChat Overview and Summary

The case of R v Peter Buchanan, Justin Robert Smith and Trevor Thomas concerns the application by the accused, Trevor Anthony Thomas, to exclude identification evidence that the Crown seeks to lead. The accused are charged with the murder of Raymond Carrion, an inmate at Long Bay Gaol, which occurred on 5 July 1998. The Crown's case relies heavily on the evidence of another inmate, Ronald Stuart, who witnessed the alleged offence. The primary legal issues for the court to decide are whether it was reasonable to exclude an identification parade and whether the array of photographs shown to Stuart was unfair.

The court found that it would not have been reasonable to hold an identification parade due to the practical difficulties of conducting such a parade in a gaol setting and the potential risk to the witness's safety. The court also found that the array of photographs was not unfairly prejudicial and that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The court emphasised the importance of the evidence in the Crown's case and the need to give appropriate directions to the jury regarding the inherent dangers of identification evidence. As a result, the application to exclude the identification evidence was refused.

Orders