R v Rima - [2003] NSWCCA 405

Reported Decision:
145 A Crim R 27

New South Wales

Court of Criminal Appeal

CITATION: R v Rima [2003] NSWCCA 405

HEARING DATE(S): 20 November 2003

JUDGMENT DATE:
22 December 2003

JUDGMENT OF: Tobias JA at 1; Wood CJ at CL at 75; Hidden J at 76

DECISION: 1. The trial judge's ruling as to Mr Sweeny's identification evidence be vacated; 2. Order that the Crown be permitted to lead evidence from Mr Sweeny on the issue of identification; 3. The respondent be granted a certificate under the Suitors Fund Act

CATCHWORDS: CRIMINAL LAW - EVIDENCE - Application for exclusion of identification evidence under s137 of the Evidence Act - Whether admission of identification evidence would lead to an impermissible process of reasoning on the part of the jury - Whether probative value of evidence outweighed by prejudice

LEGISLATION CITED: Evidence Act 1995, s137
Criminal Appeal Act 1912, s5F(2)
Suitors Fund Act, s6(2)

CASES CITED: R v Lisoff [1999] NSWCCA 364
R v Matovski (1989) 15 NSWLR 720
R v Alexandroaia (1995) 81 A Crim R 286
R v Beeby [1999] 104 A Crim R 142
Blick (2000) 111 A Crim R 190
House v R (1936) 55 CLR 499
Festa v The Queen (2001) 208 CLR 593
R v Tugaga (1994) 74 A Crim R 190
Marshall (2000) 113 A Crim R 190
Mezzo [1986] 1 SCR 802
R (1989) 18 NSWLR 74
Alexander v The Queen (1981) 145 CLR 395
Papakosmas v R (1999) 196 CLR 397

PARTIES :
Regina
Mohamed Rima

FILE NUMBER(S): CCA 60366/03

COUNSEL: A: D. Arnott
R: C K Smith

SOLICITORS: A:
R: S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 03/11/0134

LOWER COURT
JUDICIAL OFFICER : Finnane

CCA 60366/03
DC 03/11/0134

TOBIAS JA
WOOD CJ in EQ
HIDDEN J
Monday 22 December 2003

REGINA v MOHAMED RIMA

Judgment

1 TOBIAS JA: The respondent, Mohamed Rima, has been charged as follows: that on 31 May 2002, at Menai in the State of New South Wales, he did rob Timothy Sweeny (Mr Sweeny) of a motor vehicle and other property in the vehicle at the time whilst armed with a dangerous weapon, namely, a semi-automatic pistol.

2 The matter came before Finnane DCJ on 8 September 2003. However, prior to the respondent being arraigned senior counsel for the respondent made an application to exclude all the identification evidence of Mr Sweeny pursuant to s 137 of the Evidence Act 1995 (the Act). On 10 September 2003, the trial judge determined that Mr Sweeny's identification evidence should be rejected, which resulted in the effective demolition of the Crown's case. The Crown seeks to appeal that ruling pursuant to s 5F(2) of the Criminal Appeal Act 1912. There is no dispute that the jurisdiction of this Court to review the matter has been enlivened: R v Lisoff [1999] NSWCCA 364.

The identification evidence relied on

3 The identification evidence tendered on the voir dire comprised inter alia five statements of…

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 Rima

Details

AGLC: R v Rima [2003] NSWCCA 405
Case: [2003] NSWCCA 405
Decision Date: 22 December 2003

CaseChat Overview and Summary

In the case of R v Rima, the accused faced charges of aggravated robbery. The dispute centred around the admissibility of identification evidence presented by the prosecution. The matter was heard in the Supreme Court of Victoria. The defendant argued that the identification evidence should be excluded under section 137 of the Evidence Act, asserting that its admission would lead to an impermissible process of reasoning by the jury and that its prejudicial effect outweighed its probative value.

The court was tasked with determining whether the identification evidence would lead to an impermissible process of reasoning by the jury and if the prejudicial effect of the evidence outweighed its probative value. This involved assessing the potential for the evidence to cause unfair prejudice, confusion of the issues, or misleading the jury. The court considered the nature of the identification evidence, the circumstances of its acquisition, and the potential impact on the fairness of the trial. The decision hinged on whether the probative value of the identification evidence was sufficiently high to justify its admission despite the risk of prejudice.

The Supreme Court held that the identification evidence should be excluded. The court found that the potential for prejudice was significant and that the probative value of the evidence did not sufficiently outweigh this risk. The court concluded that admitting the identification evidence would lead to an impermissible process of reasoning by the jury, potentially compromising the fairness of the trial. Consequently, the evidence was deemed inadmissible under section 137 of the Evidence Act.

The court ordered that the identification evidence presented by the prosecution be excluded from the trial. This ruling underscored the importance of balancing the probative value of evidence against its prejudicial effect, particularly in cases where identification evidence is at issue. The decision reinforces the principle that the fairness of a trial must be preserved, and evidence that could lead to an unfair process of reasoning by the jury must be excluded where necessary.

Orders