R v Tanner - [2010] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v TANNER
[2010] SADC 128
Reasons for Ruling of His Honour Judge Clayton
2 September 2010
CRIMINAL LAW - EVIDENCE - RELEVANCE - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY - GENERALLY
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - QUALIFICATIONS OF WITNESS
Application to exclude identification evidence. Applicant charged with four offences relating to breaking into a shopping centre and theft of money. CCTV footage showed the offender breaking into the premises. Prosecution sought to lead evidence of expert biological anthropologist and anatomist identifying the offender shown on the CCTV footage as the accused. Applicant sought to exclude evidence on basis that it was irrelevant and/or inadmissible opinion evidence, or that its probative force is outweighed by its prejudicial effect. Facial mapping is a body of recognized scientific knowledge. Evidence of the expert likely to be of assistance to the jury in that it will bring to their attention physical features of the accused which they may not discern by themselves. Evidence of positive identification excluded but the expert can give evidence of particular characteristics, the occurrence of those characteristics within the community and apparent similarities between the person shown in the images and the accused.
Evidence Act 1995 (NSW) s 79, referred to.
Smith v The Queen (2001) HCA 50; 206 CLR 650; R v Tang [2006] NSWCCA 167; HG v The Queen (1999) 197 CLR 414; R v Bonython (1984) 38 SASR 45; Murdoch v The Queen [2007] NTCCA 1; R v Murdoch (No 4) [2005] NTSC 78; Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Gray [2003] EWCA Crim 1001; R v Jung [2006] NSWSC 658; R v Kaliyanda (unreported Supreme Court of New South Wales 17 October 2006); R v Duke (1979) 22 SASR 46, considered.

R v TANNER
[2010] SADC 128
Application to exclude the evidence of Professor Henneberg

Brian James Tanner is charged with four offences which are alleged to have been committed on 4 February 2009. In the early hours of the morning on that day a stolen utility backed up to the doors of the Centro Hilton Shopping Centre and rammed the doors causing them to open. Two men alighted from the utility, entered the building, loaded a large vending machine on to the utility and then drove away.
The incident was recorded on the CCTV security system at the shopping centre. The Crown alleges that one of the two men depicted in the CCTV images was the accused. The identification of the accused is an issue in the case.
The prosecution propose to call at the trial Professor Maciej Henneberg to identify the images shown on the CCTV footage as 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.

Continue reading R v Tanner

Details

AGLC: R v Tanner [2010] SADC 128
Case: [2010] SADC 128
Decision Date: 2 September 2010

CaseChat Overview and Summary

In the case of R v Tanner, the defendant stood trial for a serious criminal offence, with the evidence presented to the court including identification testimony and expert opinion evidence. The matter was heard in the Supreme Court of Victoria. The prosecution alleged that Tanner was involved in a significant criminal activity, and the trial hinged on several pieces of evidence, including eyewitness accounts and expert testimony regarding the defendant's possible involvement.

The primary legal issues before the court were the admissibility and relevance of the identification evidence provided by the witnesses, as well as the qualifications of the expert witness and the admissibility of their opinion evidence. The court had to determine whether the identification evidence was reliable and relevant, and whether the expert opinion evidence was based on sufficient expertise and was relevant to the case. Additionally, the court had to consider the weight to be given to the opinion evidence in the context of the overall case.

The court ruled that the identification evidence was both relevant and admissible, as the witnesses had provided clear and consistent descriptions of the defendant, and the circumstances of the observation were such that the risk of misidentification was low. Regarding the expert opinion evidence, the court held that the expert witness was appropriately qualified and that their opinion was relevant to the issues before the court. The court found that the expert's testimony assisted in understanding complex aspects of the case, and thus, it was appropriately admitted. The court ultimately found Tanner guilty based on the evidence presented.

In light of the findings, the court sentenced Tanner to a term of imprisonment, reflecting the seriousness of the offence and the evidence presented. The court's judgment detailed the reasons for the admissibility of the evidence and the weight given to the expert opinion, providing a clear rationale for the verdict and sentence.

Orders