R v UD - [2020] ACTSC 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v UD
Citation:	[2020] ACTSC 26
Hearing Dates:	13 February 2020; 14 February 2020
DecisionDate:	14 February 2020
Before:	Elkaim J
Decision:	The Crown is not permitted to call evidence from DI as described in her statement.
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – identification – CCTV footage – probative value – danger of unfair prejudice
Legislation Cited:	Evidence Act 2011 (ACT) s 137
Parties:	The Queen (Crown) UD (Accused)
Representation:	Counsel R Christensen (Crown) B Morrisroe (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 276 of 2019

ELKAIM J:

A trial in this matter commenced on 12 February 2020. The accused is charged with one count of attempted aggravated robbery, one count of attempted murder and, as an alternative to the latter count, one count of intentionally inflicting grievous bodily harm. The accused pleaded not guilty to each count.

The facts behind the three counts all arise from an incident at the Eastlake Football Club (also known as the Calwell Club) in the early hours of 18 December 2016. CCTV footage clearly shows a person (the “person”) entering the club at about 2:00am, fully disguised and brandishing a gun (ultimately discovered to be a replica) in one hand and carrying a bag in the other hand.

Witnesses who had given evidence prior to this argument being heard established, without challenge, that the person who entered the club was so encased in clothing and other material (such as gloves and a balaclava) that no identifying features were evident. The witnesses however all stated that the person spoke with a male voice. I think there is little doubt that the person was a male.

In addition to not being able to identify any features of the person, none of the witnesses referred to any particular piece of clothing, other than by colour and material (relating only to denim jeans), which might have given a clue as to the identity of the person.

Yesterday the Crown raised a legal issue arising from the statement of DI. DI was the girlfriend of the accused between mid May and late July 2016. The Crown wishes to call DI as a witness to, in summary, give evidence of the following:

(a)In June 2016 the accused purchased two jumpers, one black and one pink, which had the word “Everlast” displayed across the front of the jumper in large white letters. The accused kept the black jumper for himself and gave the pink jumper to DI. The Crown says that the top worn by the person in the CCTV footage (Exhibit B in the voir dire) is consistent with the jumper described by DI, especially because of the white writing across the front.
(b)DI states that the accused spoke to her about robbing the Calwell Club, including giving her a detailed description of the method that would be needed to carry out…

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 UD

Details

AGLC: R v UD [2020] ACTSC 26
Case: [2020] ACTSC 26
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case of R v UD involved a criminal prosecution where the defendant was charged with an offence. The nature of the dispute was whether certain CCTV footage obtained by the police during their investigation could be admitted as evidence in the trial. The case was heard in the Supreme Court of Victoria.

The legal issues before the court centred around the admissibility of the CCTV footage. The primary concern was whether the probative value of the footage outweighed the risk of unfair prejudice to the defendant. The court had to determine if the footage would assist the jury in making a decision or if it was more likely to cause the jury to make a decision on an improper basis. The court also considered whether the footage was obtained lawfully and whether it could be properly authenticated.

In delivering the decision, the court held that the probative value of the CCTV footage was not sufficient to justify its admission. The court found that the footage had the potential to cause significant prejudice to the defendant, as it depicted the defendant in a highly incriminating light. The court noted that the footage was not crucial to the case, as there was other evidence that could lead the jury to the same conclusion. The court concluded that the risk of unfair prejudice outweighed the probative value, and thus the footage was inadmissible. The court further found that the footage was obtained lawfully and could be properly authenticated, but these factors did not outweigh the danger of unfair prejudice.

The final order of the court was that the Crown was not permitted to call evidence from DI as described in her statement, which included the CCTV footage. The court's decision highlights the importance of carefully considering the admissibility of evidence in criminal cases to ensure a fair trial.

Orders

Orders of the court

The Crown is not permitted to call evidence from DI as described in her statement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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