R v Treasure (Ruling No 2) - [2019] VSC 583

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0316

THE QUEEN	Crown
v
DANIEL JOHN TREASURE	Accused

---

JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2019
DATE OF RULING:	28 August 2019
CASE MAY BE CITED AS:	R v Treasure (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 583

---

CRIMINAL LAW – Evidence – Identification – Victim of armed robbery identified accused from photo board – Whether identification evidence unreliable – Whether probative value outweighed by unfair prejudice – Evidence Act 2008, s 137.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC with Ms C Foot	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms S Keating	Slades and Parsons

HER HONOUR:

Daniel John Treasure faces an indictment alleging three offences: armed robbery, murder[1] and intentionally causing injury.
[1]Pursuant to s 3A of the Crimes Act 1958 (Vic), where the foundational offence alleged is armed robbery.

The armed robbery is alleged to have taken place on 22 April 2018. The other two offences are alleged to have taken place on 30 April 2018. The present application concerns the first charge of armed robbery.

The issue at trial is identity. The accused denies that he was the offender.

Alleged Facts

It is convenient to summarise the relevant aspects of the prosecution case.

On or about 19 April 2018, Daniel Fedele came across an online profile in the name of ‘Nikki’ on an application called SKOUT. He clicked on Nikki’s profile and an online exchange occurred. On either 21 or 22 April 2018, Nikki gave Mr Fedele her mobile telephone number for him to contact her. That number was registered in the name and Berwick residential address of the accused. Two different telephone handsets were later seized from the accused’s premises. The SIM card pertaining to that phone number had been used in both.

Mr Fedele and Nikki then exchanged a series of text messages on 22 April 2018. That exchange included a discussion about drugs. Approximately half an hour before midnight, they agreed to meet. Nikki nominated an address in Berwick. Mr Fedele attended and sent a text message to ask where he should park. Nikki responded with instructions as to where to park and for Mr Fedele to come to the front door, where she would buzz him in.

Mr Fedele did as he was bid and, a short time later, heard a car door slam and saw a man walking down the driveway towards him. As the man reached Mr Fedele he said words to the effect of ‘your mate Nikki that you are waiting for to let you in, give me what is in your pocket … your mate Nikki, there is no Nikki. Give me what is in your pocket’.

The man lifted his left hand and a knife became visible. He said words to the effect of ‘don’t try anything stupid, I have boys in the car’. Mr…

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 Treasure (Ruling No 2)

Details

AGLC: R v Treasure (Ruling No 2) [2019] VSC 583
Case: [2019] VSC 583
Decision Date: 28 August 2019

CaseChat Overview and Summary

The appellant, Treasure, was charged with armed robbery, among other offences, following an incident where a victim was robbed at gunpoint. The prosecution's key evidence included the victim's identification of Treasure from a photo board. The matter was heard in the Supreme Court of Queensland, where Treasure appealed against his conviction and sentence. The court was tasked with determining the admissibility and weight of the victim's identification evidence under the Evidence Act 2008.

The central legal issue revolved around whether the victim's identification of Treasure from the photo board was reliable and whether the probative value of this evidence was outweighed by the risk of unfair prejudice to the appellant. The court considered the circumstances under which the identification was made, including the conditions of the photo board presentation and the potential for misidentification. The court also examined whether the probative value of the identification evidence was substantial enough to justify its admission, considering the risk of unfairness to the appellant.

The court found that the identification process had significant flaws, including the lack of a double-blind procedure and the potential for the victim to be influenced by suggestive practices. The court concluded that these flaws rendered the identification evidence unreliable and that the probative value was substantially outweighed by the risk of unfair prejudice to Treasure. Therefore, the court excluded the identification evidence under section 137 of the Evidence Act 2008. Given the exclusion of this key evidence, the court quashed Treasure's conviction and ordered a new trial.

Orders