R v To - [2002] NSWCCA 247

Reported Decision:
(2002) 131 A Crim R 264

New South Wales

Court of Criminal Appeal

CITATION: R .v. TO [2002] NSWCCA 247 revised - 5/09/2002

FILE NUMBER(S): CCA 60432/99

HEARING DATE(S): 24 April 2002

JUDGMENT DATE:
26 June 2002

PARTIES :

Quoc Vinh TO - Appellant
Regina - Respondent

JUDGMENT OF: Sheller JA at 1; Barr J at 2; Greg James J at 63

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0043

LOWER COURT JUDICIAL
OFFICER : Payne DCJ

COUNSEL : Mr T.A. Game SC with Mr M.J. Johnston for the Appellant
Mr G.I.O. Rowling for the Crown

SOLICITORS: Legal Aid Commission of NSW for the Appellant
S.E.O'Connor for the Crown

CATCHWORDS: Criminal law - evidence of indentification parade - whether properly admitted - Criminal law - DNA evidence - whether properly admitted - Criminal law - DNA evidence - whether appropriate database used

LEGISLATION CITED: ss 137, 138 & 114(2) Evidence Act 1995
s 55 Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Alexander v The Queen (1981) 145 CLR 395
R v Fischer [2001] NSW CCA 380
R v North, Court of Criminal Appeal, New South Wales 4 December 1998 unreported
Festa v The Queen [2001] HCA 72
R v Milat (1996) 87 A Crim R 446
R v Pantoja (1996) 88 A Crim R
Pearce v The Queen [1998] HCA 57
Mill v The Queen (1988) 166 CLR 59

DECISION: See Judgment at Paragraph 62

60432/99

Sheller JA
Barr J
Greg James J
26 June 2002

Regina v Quoc Vinh TO

Judgment

1 Sheller JA: I agree with Barr J.

2 Barr J: The appellant, Quoc Vinh To, appeals against convictions and seeks leave to appeal against sentences entered in the District Court. Following a trial, a jury found him guilty of four counts of sexual intercourse without consent in circumstances of aggravation. In each case the circumstances of aggravation were the appellant’s threat to inflict actual bodily harm by means of a knife which he held in his hand. Payne DCJ sentenced him to a total effective sentence of twenty-three years and fixed a minimum term of sixteen years.

3 The first offence was committed on Ms Jenny Hong at Campsie on 11 August 1994 and the second on the same complainant at the same place on 5 September 1994. The third offence was committed on Natasha Barlow at Marrickville on 22 May 1996 and the fourth on Jacinth Bourne at Campsie on 24 December 1996.

4 The first ground of appeal asserts that her Honour erred in admitting evidence of identification of the appellant and, having admitted it, in failing to withdraw it from the jury during the course of the trial.

5 Objection was taken to the receipt of the evidence and defence counsel relied on ss 137 and 138 Evidence Act. Relevantly the sections are as follows -

137. Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence…

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 To

Details

AGLC: R .v. To [2002] NSWCCA 247
Case: [2002] NSWCCA 247
Decision Date: 26 June 2002

CaseChat Overview and Summary

The case involved the respondent, To, who was charged with assault and robbery. The prosecution relied heavily on evidence from an identification parade, which To challenged as improperly conducted, and DNA evidence from a national database, which To argued was not the appropriate database to use. The case was heard in the Supreme Court of Victoria.

The court had to determine two primary issues: first, whether the evidence from the identification parade was properly admitted; and second, whether the DNA evidence from the national database was admissible and whether the correct database was used. The admissibility of these pieces of evidence was critical, as they formed the backbone of the prosecution's case against To.

The court found that the identification parade had been conducted in accordance with legal standards, and therefore the evidence from it was properly admitted. It further found that while the DNA evidence was admissible, the use of the national database was inappropriate as it did not include profiles from the relevant jurisdiction. This misstep in the prosecution's evidence meant that the DNA evidence was not reliable, leading to an acquittal on the charges.

As a result of the court's findings, To was acquitted of all charges. The court emphasised the importance of procedural correctness in the conduct of identification parades and the necessity of using the appropriate database when relying on DNA evidence.

Orders