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R v Trudgett

R v Trudgett

Case [2008] NSWCCA 62 25 March 2008

Admissibility of Evidence

Identification Evidence

Criminal Law

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Reported Decision: 70 NSWLR 696

New South Wales

Court of Criminal Appeal

CITATION: Trudgett v R [2008] NSWCCA 62
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 February 2008

JUDGMENT DATE:
25 March 2008

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 53; Latham J at 54

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – evidence law – identification and recognition evidence – whether direction to jury required – Evidence Act 1995, s 116 - WORDS & PHRASES – “identification evidence”

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Rules 1952
Evidence Act 1995

CASES CITED: Davies and Cody v The King (1937) 57 CLR 170
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Domican v The Queen (1992) 173 CLR 555
Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
R v Clarke (1997) 97 A Crim R 414
R v Demiroz [2003] NSWCCA 146
R v Spero [2006] VSCA 58; (2006) 13 VR 225
R v Turnbull [1977] QB 224
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650

PARTIES: Michael Beverley Trudgett (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/5281

COUNSEL: S Corish (Appellant)
J Dwyer (Respondent)

SOLICITORS: Legal Aid Commission (NSW) (Appellant)
Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/61/0011

LOWER COURT JUDICIAL OFFICER: Hulme SC DCJ

LOWER COURT DATE OF DECISION: 21 November 2006

CCA 2006/00005281

SPIGELMAN CJ
HULME J
LATHAM J
Tuesday 25 March 2008

Michael Beverley TRUDGETT v REGINA

The complainant attended a party hosted by the appellant in the backyard of his residence. A mutual friend introduced them. Although not his real name, the appellant was introduced as “Adam”. He and the complainant entered the house and after a period of time she emerged, distressed and crying. She reported to police that she had been sexually assaulted by “Adam”. Police arrested and charged the appellant with one count of sexual intercourse without consent. The complainant was never asked to identify the person by photographic array or by an identification parade or in court. At trial there was no dispute that the complainant had been sexually assaulted. The only matter in dispute was whether the appellant was the offender. A jury did so find.

The appellant appeals his conviction, arguing that a miscarriage of justice has occurred for the reason that the witnesses’ evidence is identification evidence and, accordingly, the trial judge was required to provide a jury direction under s 116 of the Evidence Act 1995 warning them of the dangers of such evidence. The Crown submits that such evidence is not identification evidence and, accordingly, that no such direction was required. It further relies upon the proviso and r 4.

HELD
Per Spigelman CJ, Hulme and Latham JJ agreeing

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 Trudgett

Details

AGLC: R v Trudgett [2008] NSWCCA 62
Case: [2008] NSWCCA 62
Decision Date: 25 March 2008

CaseChat Overview and Summary

In the case of R v Trudgett, the defendant was convicted of a criminal offence and appealed on the basis of the handling of identification evidence. The matter was heard by the Supreme Court of Victoria, with Spigelman CJ, Hulme, and Latham JJ presiding. The primary issue before the court was whether the trial judge was required to provide a direction to the jury regarding the dangers of accepting identification evidence under section 116 of the Evidence Act 1995.

The court first examined the definition of "identification evidence" as it appears in the Dictionary of the Evidence Act 1995. The court held that this definition extends to recognition evidence. This conclusion was drawn from the statutory language and relevant case law, including Davies and Cody v The King, R v Turnbull, R v Spero, Gardiner v R, and others. The court noted that the definition is concerned with evidence that identifies the accused as the person who committed the offence, whether directly or through recognition.

The court then assessed whether the complainant's evidence constituted identification evidence within the meaning of the Act. It was determined that the complainant provided no identification evidence as defined. The evidence of introduction and the evidence about the appellant’s movements were also considered. The court concluded that these pieces of evidence did not qualify as identification evidence under the Act. The reasoning was that the definition focuses on direct evidence of the accused's presence, and a warning direction is not necessary when the presence of the accused is not in question. The case of Dhanhoa v The Queen was cited as authority for this conclusion.

In summary, the court found that no direction to the jury regarding identification evidence was required because the evidence presented did not fit the statutory definition. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders