R v Truong - [2007] NTSC 20

R v Truong [2007] NTSC 20
PARTIES:THE QUEEN
v

TRUONG, TONY WINH

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20612453
DELIVERED:  23 March 2007
HEARING DATES:  8-9 February 2007
JUDGMENT OF:  MILDREN J
CATCHWORDS:

EVIDENCE – Circumstantial evidence – witness expert in shoe manufacture and retailing – no formal qualifications – admissibility
EVIDENCE – circumstantial evidence – examination of photographic images to determine levels of identification by expert – admissibility of expert evidence
References:

Cross on Evidence (loose-leaf edition) para [29060]
Citations:
Distinguished
Smith v The Queen (2001) 206 CLR 650
Followed
Clark v Ryan (1960) 103 CLR 486
Kotzmann (No 2) (2002) 128 A Crim R 479
R v Tang (2006) 161 A Crim R 377
Referred to
Lewis (1987) 29 A Crim R 267
REPRESENTATION:
Counsel:
Prosecution:  G McMaster
Accused:A Woodcock
Solicitors:
Prosecution:  Office of the Director of Public Prosecutions
Accused:Maleys
Judgment category classification:         B
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Truong [2007] NTSC 20

No. 20612453
BETWEEN:

THE QUEEN

AND:

TONY WINH TRUONG

CORAM: MILDREN J
REASONS FOR RULING
(Delivered 23 March 2007)

The accused is charged with two counts of aggravated robbery whilst armed with an offensive weapon, namely a knife. The first count relates to a robbery which occurred at the Novotel Atrium Hotel on The Esplanade, Darwin at about 2:18 on the morning of 9 March 2006. The second robbery is alleged to have occurred at the Bank of South Australia, Casuarina, at approximately 11:02 also on the morning of 9 March 2006.
The Crown case is that the accused and his wife attended at the casino, Gilruth Avenue, Darwin at 12:18 am. According to security footage taken from the casino he was then wearing white and blue or black coloured sneakers, white board shorts and a black or navy blue jacket. At 2:07 am, security footage from the casino shows that the accused and his wife left the casino wearing the same clothing.
The Crown case is that the robbery at the Novotel Atrium occurred at 2:18 am and that the accused then returned to the casino at 2:27 am wearing different clothes. The security footage then shows him as wearing red board shorts, a different sweater and a different coloured t-shirt. The shoes, however, appear to be the same.
There are a number of eye witnesses to the robbery at the Novotel Atrium who give various descriptions of the robber. None of the eye witnesses are able to identify the accused as the robber. There is no security footage of the robbery. The eye witnesses are able to give evidence some of which is consistent with the accused’s description as seen from the footage taken from the casino.
A police reconstruction was carried out which shows that it was possible for a person to have left the casino, carried out the robbery and returned to the casino 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 Truong

Details

AGLC: R v Truong [2007] NTSC 20
Case: [2007] NTSC 20
Decision Date: 23 March 2007

CaseChat Overview and Summary

The case of R v Truong was heard by the Supreme Court of Australia. The accused faced charges in relation to a robbery, with the Crown's case relying on circumstantial evidence. This evidence included expert testimony from Mr. Trevor Hunter, a specialist in running shoes, and Senior Sergeant Alan Piper, who examined photographic images to determine the level of identification possible. The admissibility of this expert evidence was challenged. The court found that the evidence of Mr. Hunter, despite his lack of formal qualifications, was admissible. The court ruled that Mr. Hunter's extensive experience in the industry, including his role as the Footwear Product Line Coordinator for Australia, New Zealand, and the Pacific Islands, qualified him as an expert. His detailed knowledge of Nike's product lines and distinctive features allowed him to identify the specific Nike shoes worn by the accused in the crime. This identification was based on the unique design elements and technologies used by Nike, which Mr. Hunter could recognize from his vast experience in the field.

The court also considered the evidence of Senior Sergeant Alan Piper, who examined photographic images to assess the level of identification possible. The court ruled that this evidence was not identification evidence but rather an assessment of the quality and potential for identification from the images. The court found no grounds to exclude this evidence through the exercise of judicial discretion. The expert evidence provided by both witnesses was deemed relevant and reliable, contributing significantly to the Crown's case. The court's decision was based on the thorough analysis of the qualifications and experience of Mr. Hunter, as well as the non-controversial nature of Sergeant Piper's examination of the photographic images. The admissibility of this expert evidence was crucial in establishing the connection between the accused and the crime.

The final orders of the court confirmed the admissibility of the expert evidence. The court found no reason to exclude the evidence of Mr. Hunter or Sergeant Piper, allowing both to provide their expert opinions in the trial. This ruling ensured that the Crown could present a robust case based on the detailed analysis of the shoes worn by the accused and the quality of the photographic evidence. The decision upheld the principles of judicial discretion, ensuring that only relevant and reliable expert evidence was considered in the proceedings.

Orders

Orders of the court

Evidence of the expert witness in shoe manufacture and retail is admissible. There are no reasons why the evidence should be excluded in the exercise of judicial discretion.

Evidence of Sgt Piper is not identification evidence and is clearly admissible. The Court was not persuaded that there were any grounds to reject the evidence by the exercise of judicial discretion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Crown case against the accused is circumstantial. The Crown will be relying principally on two expert witnesses, Mr Trevor Hunter an expert in running shoes, and Senior Sergeant Alan Piper from the Forensic Services Branch Brisbane who examined the images and determined levels of identification available from the images. Objection was taken to the admissibility of this evidence. At the conclusion of the voir dire, I ruled that the evidence is admissible and would not be rejected in the exercise of my discretion for reasons to be given at a later time. These are those reasons.The evidence of Mr Hunter Mr Hunter’s evidence given at the committal was relied upon by both parties for the purposes of this ruling. His evidence at the committal was that he had been working for Nike Australia for eight years. For the last two years he has been the Footwear Product Line Coordinator for Australia, New Zealand and the Pacific Islands. Mr Hunter lives in Melbourne. Prior to that he was the Floor Manager at the flagship store at Nike Melbourne. He is currently involved in creating catalogues, online catalogues and detecting counterfeit work for police and customs in both Australia and New Zealand. As part of his duties, he is involved in determining what products come into Australia. Every quarter he goes to the world headquarters for Nike to work with the staff who create the lines to find out what is going to be best for the local region. In the course of his duties he receives about 1,000-2,000 pairs of samples each season which he then has to catalogue and as a result he sees the entire line of products which Nike produces. From this he selects the shoes that he considers are needed for sale in Australia. His evidence was that each manufacturer of running shoes has distinct logos or designs. Each manufacturer uses certain technologies to produce cushioning in the heel or forefoot. There are discernible types of uppers which are made only by one manufacturer or the other, as well as discernible marks within shoes which are indicative of the manufacturer. Mr Hunter gave evidence that he was contacted by the Northern Territory police in May 2006 and shown an image of the robber jumping the counter. The images shown to him include previews of the shoes that the robber was wearing. When he saw the shoes he was able to recognise them immediately as a certain type of Nike shoe. Mr Hunter gave detailed evidence concerning the design of the shoe as seen in the photographic images which he was able to recognise as being peculiarly a Nike Impact TR3 training shoe. In his evidence he was also able to point out certain features which he indicated distinguished this shoe from other brands and other types of Nike training shoes. He also gave evidence that he was shown images of the accused at the casino and the particular shoes that he was then wearing. In his opinion the shoes shown to be worn by the accused were Nike Impact TR3 cross-trainers. He gave his opinion by pointing to a number of characteristics of the shoes as shown in the photographic images.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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