R v Taousanis
[2001] NSWSC 75
•7 February 2001
CITATION: R v Taousanis [2001] NSWSC 75 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 2001PARTIES :
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 - evidence of witnesses' recognition of an object in photographs LEGISLATION CITED: Evidence Act 1995 CASES CITED: R v Mundarra Smith (1999) 47 NSWLR 419
R v Gee [2000] NSWCCA 198
R v Barbaro (2000) 112 ACrim R 551DECISION: Evidence admitted
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION
HIDDEN J
SIXTH DAY: WEDNESDAY 7 FEBRUARY 2001
JUDGMENT
- On admissibility of evidence. See page 302 of the transcript.
1 HIS HONOUR: Objection is taken by counsel for the accused to the evidence by the witness Mr Matri and the witness Mr Tyrrell that on 1 August 1991 they were shown photographs of a boat which police found in premises at Marrickville occupied by an associate of the accused. Both witnesses told police that they recognised that boat, with which they were well familiar. This is the boat which Mr Matri says he sold to a man who represented himself as Mustafa Mahamad and the boat which the Crown says was used by the accused to dispose of Mr Mitris’ body.
2 Mr Stratton, for the accused, objects to the evidence of recognition of the boat on two bases. Firstly, he submitted that evidence about the boat is irrelevant.
3 I have before me some statements admitted by consent from which it can be said that forensic and scientific examination of the boat disclosed nothing to link it with the death of Mr Mitris. Nevertheless, there is already evidence from Mr Kouroumalos that the accused bought a boat sometime after the disappearance of Mr Mitris and at a later stage was trying to sell it. Mr Kouroumalos said he himself had seen a boat at the premises at Marrickville.
4 The Crown anticipates that there will be further evidence tending to link the boat seen at the Marrickville premises with that sold by Mr Matri. I think that this evidence of the accused's association with the boat around that time is relevant. What weight is to be afforded to it is a matter to be assessed in due course.
5 Mr Stratton objects to the evidence of recognition of the boat in photographs on another basis arising from the provisions of the Evidence Act and, in particular, that part of the Act dealing with hearsay evidence. I have already referred to that matter in dealing with the related question of Mr Matri’s identification of the photograph of Mr Massih. I dealt with that matter this morning in a separate judgment.
6 It is sufficient to say that I consider this evidence to be evidence of recognition, rather than identification evidence in the sense in which that term is ordinarily used in the criminal law. That distinction was recognised by the Court of Criminal Appeal in R v Mundarra Smith (1999) 47 NSWLR 419. I mention in passing that I am aware that the High Court has granted special leave to appeal against the Court's decision in that case. The distinction was also affirmed in the more recent decision of the Court in R v Gee [2000] NSWCCA 198.
7 In the light of what was said by Grove J in Gee at pars 8 to 10, and in the light of the Court's more recent decision in Barbaro (2000) 112 ACrim R 551, it seems to me that evidence of a witness on a prior occasion recognising someone or something in a photograph is admissible by virtue of s66 of the Evidence Act. That is because, as Grove J said in Gee, at the time of recognition the witness’ continuing familiarity with the features of the person or object recognised was fresh in the witness’ memory. I must say that was not my own view in Gee, as I was a member of that Court, but I think I must accept that it is the view to which other members of the Court are now inclined and it would appear to be the proper analysis of the basis of admissibility of evidence of that kind.
8 Accordingly, the evidence will be admitted.