Regina v F a P - [1999] NSWCCA 278

CITATION: Regina v F A P [1999] NSWCCA 278

FILE NUMBER(S): CCA 60380/98

HEARING DATE(S): 06/09/99

JUDGMENT DATE:
6 September 1999

PARTIES :

Regina (NSW) v F A P

JUDGMENT OF: Meagher JA; James J; Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/31/0089

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL: R Ellis (Crown)
M Austin (Applicant)

SOLICITORS: S E O'Connor (Crown)
Walker Smith (Applicant)

CATCHWORDS: Criminal Law and Procedure - identification - photographic identification - whether verdict unreasonable.

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60380/98

MEAGHER JA
JAMES J
SPERLING J

Monday 6 September 1999

F A P v REGINA

JUDGMENT

1 JAMES J: The appellant F A P has appealed against his conviction, after a trial in the District Court in June 1998 before His Honour Judge Gibson of Queens Counsel and a jury, on one count of robbery in circumstances of aggravation committed on Christmas Day 1997 in Forster, the circumstances of aggravation being the malicious infliction of actual bodily harm on the victim. His Honour Judge Gibson sentenced the appellant, pursuant to the Children (Criminal Proceedings) Act, to a control order for eighteen and a half months, to date from a date in June 1998. At the time the offence was allegedly committed and at the time he was sentenced, the appellant was a “child” for the purposes of that Act, being seventeen years old. His Honour recommended that, after the appellant had served six months of the control order, the Minister should give consideration to the appellant being released to the Young Offenders Diversionary Programme as conducted by a local Aboriginal Land Council. His Honour had arrived at the period of eighteen and a half months by deducing from a period of twenty-one months, which His Honour considered would otherwise have been an appropriate sentence, a period of two and a half months being equivalent to the time the appellant had spent in custody solely referrable to this matter before he was sentenced. The Court was informed that the appellant was in fact granted bail on 18 October 1998 pending the hearing of this appeal and that he remained at liberty until he was returned to custody a few days ago for a breach of the conditions of his bail.
2 The Crown case at the trial was that the appellant was one of three aboriginal youths, who shortly after 1.30 on the morning of Christmas Day 1997 assaulted and robbed a white youth, aged seventeen at the time of the trial, who was travelling home on his bicycle. At the trial there was no dispute that the victim had been robbed by three aboriginal youths and had sustained actual bodily harm. The only issue at the trial was whether the Crown could establish that the appellant, who was being tried alone, was one of the three offenders. The offender who the Crown alleged was the appellant had not been known to the victim before the offence was…

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 Regina v F a P

Details

AGLC: Regina v F a P [1999] NSWCCA 278
Case: [1999] NSWCCA 278
Decision Date: 6 September 1999

CaseChat Overview and Summary

The case of Regina v F a P involved the defendant who was charged with various criminal offences. The dispute centred on the reliability and admissibility of a photographic identification made by a witness against the defendant. The matter was heard in the relevant court of appeal. The central legal issues the court needed to address were whether the identification process was conducted in a manner that could lead to a miscarriage of justice, and if the jury's verdict was unreasonable given the evidence presented.

The court examined the process by which the photographic identification was conducted, considering factors such as the conditions under which the identification was made, the opportunity the witness had to view the defendant, and any potential for suggestibility or misidentification. The court also assessed the weight given to the identification evidence by the jury in light of other evidence presented in the case. It was noted that the reliability of identification evidence can be critically affected by the manner in which it is obtained and presented. The court held that if the identification process was flawed, this could undermine the overall reliability of the evidence and potentially lead to an unsafe and unsatisfactory verdict.

Upon reviewing the evidence and the identification procedure, the court concluded that there were significant flaws in the process that could have led to an unreliable identification. The court found that these flaws made the identification evidence less reliable and that the jury's reliance on this evidence, without sufficient corroboration, contributed to a verdict that was unreasonable. The appeal was therefore upheld, and the convictions were quashed. The court's decision underscores the importance of ensuring that identification processes are conducted in a manner that minimises the risk of error and ensures the integrity of the criminal justice process.

Orders