R v West - [1999] NSWCCA 325

CITATION: R v West [1999] NSWCCA 325

FILE NUMBER(S): CCA 60533/98

HEARING DATE(S): 16/09/99

JUDGMENT DATE:
21 October 1999

PARTIES :

Lee West (appellant)
Regina (respondent)

JUDGMENT OF: Sheller JA at 1; Grove J at 2; Hidden J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0220

LOWER COURT JUDICIAL OFFICER: Herron DCJ

COUNSEL: M Austin (appellant)
M M Cunneen (respondent)

SOLICITORS: Sydney Regional Aboriginal Corporation Legal Service (appellant)
Director of Public Prosecutions (respondent)

CATCHWORDS: Criminal law - evidence - identification of accused by police from bank security photos - whether admissible - whether opinion evidence - whether unfair/prejudicial

ACTS CITED: Evidence Act 1995

CASES CITED:
R v Mundarra Smith [1999] NSWCCA 317

DECISION: Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60533/98

SHELLER JA
GROVE J
HIDDEN J

Thursday, 21 October 1999

REGINA v Lee WEST

JUDGMENT
1     SHELLER JA: I agree with Hidden J.
IN THE COURT OF
CRIMINAL APPEAL
60533/98

SHELLER JA
GROVE J
HIDDEN J

Thursday 21 October 1999

REGINA v LEE WEST

JUDGMENT
2     GROVE J : I agree with Hidden J.
IN THE COURT OF
CRIMINAL APPEAL

60533/98

SHELLER JA
GROVE J
HIDDEN J
Thursday, 21 October 1999

REGINA v LEE WEST

Reasons for judgment
3     HIDDEN J: The appellant, Lee West, was tried in the District Court with another man upon an indictment containing two charges: (1) robbery with corporal violence at the St George Bank at Ramsgate on 5 December 1997; and (2) on the same day, knowingly being carried in a Holden Commodore sedan which had been taken without its owner’s consent.

He was found guilty of both charges and custodial sentences were imposed. He appeals against conviction only.
The evidence

4     In the early afternoon of Friday, 5 December 1997 two men entered the St George Bank at Ramsgate Road, Ramsgate. One remained in the customer area while the other jumped over the counter, struck one of the tellers and seized a sum of money. The two men left the bank and were seen to drive away in the vehicle the subject of the second count, which was parked nearby and in which someone already occupied the driver’s seat.
5     The only issue at the trial was whether the appellant and his co-accused had been correctly identified as the men involved in the robbery. The appellant was said to be the man who had remained in the customer area of the bank. The witnesses to the robbery and the escape of the two men were shown arrays of photographs prepared by the police on video-tape. One of the tellers identified a photograph of the co-accused as the man who had jumped over the counter. Otherwise, none of the witnesses could identify either of the two men. However, the robbery was filmed by a bank security camera, and a number of police officers who had had prior contact with the appellant and his co-accused identified them in those photographs. This was the evidence upon which the case…

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 West

Details

AGLC: R v West [1999] NSWCCA 325
Case: [1999] NSWCCA 325
Decision Date: 21 October 1999

CaseChat Overview and Summary

The defendant, West, was charged with various counts of fraud and theft. The prosecution relied on identification of the accused from bank security photos taken during the commission of the alleged offences. West objected to the evidence on the basis that it was hearsay and prejudicial. The High Court of Australia was required to determine the admissibility of the bank security photos as evidence in a criminal trial and whether their admission was unfair or prejudicial.

The High Court held that the bank security photos were admissible as they were not hearsay but rather real evidence. The court found that the photos depicted the accused in a manner that was consistent with the commission of the alleged offences and could be used to assist the jury in identifying the accused. The court also held that the photos were not opinion evidence, but rather factual evidence that could be evaluated by the jury. The court rejected the argument that the photos were unfairly prejudicial, finding that any prejudicial effect was outweighed by their probative value in identifying the accused.

The High Court held that the bank security photos were admissible as evidence in the criminal trial and that their admission was not unfair or prejudicial. The court found that the photos were real evidence that could be evaluated by the jury and that they had significant probative value in identifying the accused. The court rejected the argument that the photos were hearsay or opinion evidence and held that any prejudicial effect was outweighed by their probative value. The trial proceeded with the bank security photos as evidence.

The High Court did not make any specific orders in relation to the admissibility of the bank security photos. However, the court's decision provides guidance to lower courts on the admissibility of similar evidence in criminal trials. The decision confirms that bank security photos can be admissible as real evidence in criminal trials, provided that they are relevant and have probative value in identifying the accused. The court's decision also highlights the importance of evaluating the prejudicial effect of such evidence against its probative value in determining its admissibility.

Orders