R v Smith (No 3) - [2014] NSWSC 771

Supreme Court

New South Wales

Medium Neutral Citation: R v Smith (No.3) [2014] NSWSC 771
Hearing dates: 21/05/2014
Decision date: 03 June 2014
Jurisdiction: Criminal
Before: Garling J
Decision:
(1) Leave to further re-examine Mr Stein with respect to his identification of the figure on Gidley Crescent is refused.

Catchwords: CRIMINAL LAW - evidence - identification evidence - modes of identification - other visual identification - single photograph - accompanying online news article
CRIMINAL LAW - evidence - identification evidence - admissibility - single photograph - unreliability - displacement effect
CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - Evidence Act 1995; s 137 - prejudicial evidence - probative value - unfairly prejudicial to accused - whether danger of unfair prejudice to the accused outweighs probative value
Legislation Cited: Evidence Act 1995
Cases Cited: Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
R v Skaf [2004] NSWCCA 37
Category: Interlocutory applications
Parties: The Crown
Graham Smith (Accused)
Representation: Counsel:
Mr M Barr (Crown)
Ms K Traill (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
SCT Lawyers (Accused)

File Number(s): 2013/23883

Judgment - Disputed Identification Evidence

The Crown has sought leave in the re-examination of Mr Jason Stein to lead identification evidence. Counsel for the accused opposes the introduction of the identification evidence on the basis that the evidence has little, if any, probative value, and there is significant unfair prejudice to the accused if the evidence is admitted.

For the reasons which follow, I have decided to reject the evidence, and accordingly, dismiss the application of the Crown.

The Indictment

The accused, Mr Graham Smith, has been indicted in the following terms:

"for that he, on 20 January 2013, at Claymore, in the State of New South Wales did murder Joshua George."

The accused has pleaded not guilty.

In opening her case to the jury, counsel for the accused informed the jury that the principal issue which the jury would be required to determine, was whether, at the time he deliberately shot the deceased, Mr Joshua George, the accused was acting in self-defence.

To date, the accused's case has been conducted in a way which reflects this statement of the principal issue.

Accordingly, it is not in dispute in the course of the trial that the deceased was shot and killed by the accused. Nor it is in issue that he did so with the intention of causing grievous bodily harm.

Some Uncontroversial Facts

The shooting occurred in Gidley Crescent, Claymore at about 1.30pm on 20 January 2013. In the relevant area, houses that backed onto Gidley Crescent had their street address as Salvana Way.

The fatal shot was fired from a .22 calibre rifle, and only one shot was fired. The bullet entered the deceased's body at a position slightly above the sternal notch, and continued on a path through the body damaging major organs and causing the death of the deceased in a very short space of time.

The accused left…

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 (No 3)

Details

AGLC: R v Smith (No.3) [2014] NSWSC 771
Case: [2014] NSWSC 771
Decision Date: 03 June 2014

CaseChat Overview and Summary

The case of R v Smith (No 3) involved a criminal prosecution where the defendant was charged with a serious offence. The matter was heard in the Supreme Court of New South Wales. The primary dispute centred around the admissibility of a single photograph of the defendant, which was presented as identification evidence alongside an online news article. The photograph was published by a media outlet and had been viewed by a potential witness, who subsequently identified the defendant as the perpetrator of the crime.

The legal issues the court was required to decide revolved around the reliability and admissibility of the photograph as evidence. Specifically, the court had to consider whether the photograph, which was a single image without corroboration, could be considered a reliable mode of identification. Additionally, the court examined whether the prejudicial effect of the photograph on the defendant outweighed its probative value, as required by section 137 of the Evidence Act 1995.

The court held that the single photograph was unreliable as a mode of identification evidence due to its potential for the 'displacement effect', where a witness's memory can be influenced by an image viewed after the event. Furthermore, the court found that the photograph was prejudicial to the defendant, potentially unfairly influencing the jury against him. Weighing the prejudicial impact against the probative value, the court concluded that the danger of unfair prejudice to the accused outweighed the probative value of the photograph. Consequently, the photograph was excluded from evidence.

As a result of the court's decision, the photograph was not admitted as evidence in the trial. The defendant was therefore not prejudiced by the photograph, and the jury was instructed to disregard any prior knowledge or assumptions they might have had about the defendant based on the photograph. The final orders of the court did not alter the substantive proceedings of the trial but ensured that the evidence presented was fair and reliable.

Orders