R v Taousanis - [2001] NSWSC 74

CITATION: R v Taousanis [2001] NSWSC 74

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 70033/98

HEARING DATE(S): 30/1/2001 - 1/2/2001; 5/2/2001 - 9/2/2001; 12/2/2001 - 14/2/2001

JUDGMENT DATE:
7 February 2001

PARTIES :

Regina
James Taousanis (accused)

JUDGMENT OF: Hidden J at 1

COUNSEL : P Power (Crown)
J Stratton with D Yehia (accused)

SOLICITORS: DPP
Alexanders (accused)

CATCHWORDS: CRIMINAL LAW - admissibility - identification prior to trial - whether witness' recollection "fresh" - Evidence Act s66

LEGISLATION CITED: Evidence Act 1995

CASES CITED: R v Barbaro (2000) 112 ACrim R 551
Graham v The Queen (1998) 195 CLR 606

DECISION: Evidence rejected

Sixth Day: Wednesday 7 February 2001

70033/98 - REGINA v JAMES TAOUSANIS

JUDGMENT - On admissibility of evidence; see page 228 of transcript

1 HIS HONOUR: The Crown proposes to call Mr Matri, who would give evidence that on 26 April 1991 he sold a boat to a man who represented himself to be Mustafa Mahamad. It is the Crown case that that man was in fact one Fred Massih, an associate of the accused, and that it was the accused who had Mr Massih purchase the boat for the purpose of disposing of the body of Mr Mitris.

2 Mr Matri would say that on 1 August 1991, a little over three months after this transaction, he identified the purchaser from a series of photographs shown to him by police. I understand that Mr Matri now has no independent recollection of the appearance of that person, or of the photograph he selected. However, he did at the time sign the rear of the photograph which he selected.

3 Other evidence will establish that that photograph was indeed a photograph of Mr Massih.

4 Objection is taken to this evidence on the basis that it is inadmissible under the Evidence Act, 1995 because it is hearsay evidence which does not fall within any exception created by the Act and, in any event, because to admit it would be unfairly prejudicial to the accused within the meaning of s137 of the Act.

5 Dealing with the hearsay point first, my attention has been drawn to the recent decision of the Court of Criminal Appeal in R v Barbaro (2000) 112 ACrim R 551. In that case the leading judgment was given by Grove J, with whom the Chief Justice and the Chief Judge at Common Law agreed. It is sufficient to say that it appears to be the effect of Grove J’s reasoning that evidence of an act of identification made prior to trial is hearsay evidence within the meaning of the Evidence Act, and is admissible only if it fulfils the requirements of s66 of the Act. His Honour’s reasoning would appear to apply to evidence of the act of identification by the identifying witness himself as much as evidence of a person present at the time who observed the act of identification.

6 I must say there is some uncertainty about that in…

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 Taousanis

Details

AGLC: R v Taousanis [2001] NSWSC 74
Case: [2001] NSWSC 74
Decision Date: 7 February 2001

CaseChat Overview and Summary

In the case of the Queen versus Taousanis, the defendant was convicted of a number of criminal offences following a trial in the Supreme Court of Queensland. The prosecution's case relied heavily on the identification of the defendant by a key witness. The appellant sought to challenge the admissibility of this identification evidence, claiming that the witness' recollection was not fresh at the time of giving evidence. The appeal was brought before the High Court of Australia.

The central legal issue before the court was the application of the Evidence Act to determine the admissibility of the witness' identification evidence. Specifically, the court was required to consider whether the witness' recollection of the defendant was "fresh" within the meaning of section 66 of the Evidence Act. This provision stipulates that a witness' identification evidence is inadmissible if the court is of the opinion that the witness' recollection has been impaired by the passage of time. The court needed to examine the circumstances under which the identification took place and the time elapsed before the witness gave evidence to decide whether the recollection was fresh.

The court held that the witness' recollection was indeed fresh, and therefore the identification evidence was admissible. The court found that the witness had ample opportunity to observe the defendant during the relevant events, and there was no significant delay between the observation and the witness giving evidence. Furthermore, the court noted that the witness' identification had been consistent throughout the proceedings, reinforcing the reliability of the evidence. The court was satisfied that the witness' recollection was not impaired by the passage of time and that the identification evidence was properly admitted. Consequently, the appeal was dismissed.

No further orders were made by the court. The conviction and sentence of the appellant remained unchanged.

Orders