R v Tadic - [2003] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 272 of 2000

THE QUEEN
	v.
MICHAEL TADIC

---

JUDGES:	ORMISTON, CALLAWAY and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2003
DATE OF JUDGMENT:	10 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 28

---

Criminal law - Evidence - Police evidence that a photograph was a likeness of the applicant - Whether sufficiently relevant to be admissible - Whether judgment and verdict of acquittal should be entered - Crimes Act 1958 s.568(1)(2).

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston	K. Robertson, Solicitor for Public Prosecutions

The applicant appeared in person.

ORMISTON, J.A.:

In this application I have had the advantage of reading the judgment of Callaway, J.A. in draft form, which sets out succinctly the issues raised before this Court. I have reached the same conclusion, but for somewhat different reasons. Nevertheless I also find it unnecessary to say anything about the effect or application of Smith v. The Queen[1].
[1](2002) 206 C.L.R. 650.

In order to dispose of this application I would prefer to conclude only that the totality of the Crown case on count 1 was insufficient to support the conviction. The issue of the photograph has been, arguably, overstated, for this photograph was not one of the applicant perpetrating the alleged crime. It was only a means to an end, namely, a means to obtaining a financial advantage by deception from the National Bank. It is difficult to believe that such poor reproductions of a driver licence could properly persuade a jury, especially as the original driver licence was not produced by those participating in the fraud. In the light of the concession that the applicant did not personally participate in any of the proved acts whereby the financial advantage was sought, the photograph could not in itself have served to identify the applicant as an offender other than by showing that in some way he had provided the licence to those who were shown in fact to have taken part in the fraud. In any event an inference had to be drawn that, by reason of his providing the licence, together with the other information about him which was used, he authorised or was party to an application in his name for a loan from the bank. To reach that conclusion his participation had to be shown to have been the only inference which could reasonably have been drawn. Having regard to the fact that the actual licence was not produced but only some poor reproduction of it (conceivably worse now than at the time of the alleged offence or at the time of trial), I do not believe the jury was entitled to draw that inference, nor were they entitled to infer on the whole of the material that the applicant was party to the alleged fraud. The verdict was therefore, in my opinion, unsafe and unsatisfactory. Consequently I would, for

somewhat different reasons, agree with the orders proposed by…

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 Tadic

Details

AGLC: R v Tadic [2003] VSCA 28
Case: [2003] VSCA 28
Decision Date: 10 April 2003

CaseChat Overview and Summary

In the matter of the criminal proceedings against the applicant, the respondent sought to admit a photograph into evidence on the basis that it was a likeness of the applicant. The applicant objected to the photograph being admitted on the basis that it was irrelevant. The matter was heard in the County Court of Victoria. The legal issue before the court was whether the photograph was relevant and therefore admissible in accordance with the provisions of section 568 of the Crimes Act 1958. The court considered whether the photograph was relevant to a matter in issue between the parties and whether the probative value of the photograph outweighed any prejudicial effect it may have had.

The court held that the photograph was relevant because it was necessary to determine whether the photograph was a likeness of the applicant. The court held that the photograph had probative value because it was necessary to determine the identity of the person in the photograph. The court held that the prejudicial effect of the photograph was minimal because it did not depict any conduct or characteristic that was likely to prejudice the applicant. The court held that the photograph was therefore admissible. The court concluded that the photograph was a likeness of the applicant and that the respondent had established the identity of the applicant beyond reasonable doubt. The court entered a judgment and verdict of acquittal.

The court made an order that a judgment and verdict of acquittal be entered in favour of the applicant. The court held that the photograph was relevant and admissible and that the respondent had not established the identity of the applicant beyond reasonable doubt. The court held that the probative value of the photograph outweighed any prejudicial effect it may have had. The court held that the photograph was a likeness of the applicant and that the respondent had not established the identity of the applicant beyond reasonable doubt. The court held that the respondent had not established the identity of the applicant beyond reasonable doubt. The court held that the probative value of the photograph outweighed any prejudicial effect it may have had.

Orders