R v Smith - [1999] NSWCCA 317

Reported Decision:
47 NSWLR 419

New South Wales

Court of Criminal Appeal

CITATION: REGINA v SMITH [1999] NSWCCA 317

FILE NUMBER(S): CCA 60555/98; 60261/99

HEARING DATE(S): 16 September 1999

JUDGMENT DATE:
21 October 1999

PARTIES :

Regina v Mundarra Smith

JUDGMENT OF: Sheller JA at 1; Grove J at 27; Hidden J at 28

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0742

LOWER COURT JUDICIAL OFFICER: Latham DCJ

COUNSEL: M Austin - Appellant
M M Cunneen - Crown

SOLICITORS: Sydney Regional Aboriginal Corporation Legal Service - Appellant
S E O'Connor - Crown

CATCHWORDS: CRIMINAL LAW - robbery - conviction - appeal on ground of wrongful admission of evidence - no error of law in admitting evidence; EVIDENCE - identification of accused by police officers from still pictures - whether opinion evidence - not opinion evidence but direct evidence that person in picture was the accused

ACTS CITED: Evidence Act 1995

CASES CITED:
R v Palmer (1981) 1 NSWLR 209
R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
Allstate Life Insurance Co Ltd v Australian and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73
Domican v The Queen (1992) 173 CLR 555
Alexander v The Queen (1981) 145 CLR 395
House v The King (1936) 55 CLR 499

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60555/98

60261/99

SHELLER JA
GROVE J
HIDDEN J

REGINA v Mundarra SMITH
The appellant was found guilty of robbery from a bank and sentenced to a minimum term of 3 years and 10 months penal servitude.
During the trial evidence of several police officers who had identified the appellant from still pictures developed from the bank’s security camera film was admitted.
The appellant appealed on the grounds that the identification evidence from the police officers should have been excluded because it was opinion evidence of a kind which a jury should not have taken into consideration in criminal proceedings, and that the conviction was unreasonable and could not be supported having regard to the evidence.
Held:
By Sheller JA, Grove and Hidden JJ agreeing:
(1) If a distinction must be made between fact and opinion evidence it could only be one of degree, calling for a decision as to whether, on a continuum which was unmarked and for which there was no exact measure, particular testimony had past the point where it had become evidence of an opinion.
(2) The question posed by s76 of the Evidence Act 1995 did not require a determination which started by dividing evidence between evidence of opinion and evidence of fact. The question was whether particular evidence was evidence of an opinion within the meaning of the section.
(3) To a witness who knew a person well enough to recognise that person on sight, there was no more inference involved in recognising that person as the person whose face was shown in a photograph than there was in recognising the same person when meeting…

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 Smith

Details

AGLC: R v Smith [1999] NSWCCA 317
Case: [1999] NSWCCA 317
Decision Date: 21 October 1999

CaseChat Overview and Summary

The case involved an appeal by the defendant, Smith, against his conviction for robbery. The appeal focused on the admissibility of evidence presented at trial, specifically photographs shown to police officers who identified Smith as the perpetrator. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the evidence presented by the police officers constituted opinion evidence or direct evidence, and if there was any error in the trial judge's decision to admit it. The court had to determine whether the evidence was properly admitted and whether its admission led to a miscarriage of justice.

The court held that the evidence presented by the police officers was not opinion evidence but rather direct evidence identifying Smith as the person in the photographs. The court found that the trial judge had not erred in admitting the evidence, as it was relevant and reliable. The court emphasised that the identification of Smith in the photographs was a factual observation by the police officers, rather than an opinion. Therefore, the evidence was properly admitted and did not result in a miscarriage of justice.

As a result of the court's findings, the appeal was dismissed, and Smith's conviction for robbery was upheld. The court confirmed that the evidence was correctly admitted and that there was no error of law in the trial judge's decision. The final order of the court was that the appeal be dismissed.

Orders