SBT v Colvin

Case [2021] ACTCA 40

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

SBT v Colvin

Citation:

[2021] ACTCA 40

Hearing Date:

19 May 2021

DecisionDate:

3 December 2021

Before:

Burns, Wigney and Abraham JJ

Decision:

See [96]-[99]

Catchwords:

APPEAL – appeal from Supreme Court of ACT – where appellant convicted of theft – where appellant is a young person – whether primary judge erred in concluding that identification or recognition evidence was properly admitted in the magistrates court – whether appellant’s conviction was unsafe and unsatisfactory

EVIDENCE – identification or recognition evidence – whether identification or recognition evidence of police officers was relevant in accordance with Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 – whether s 78 of the Evidence Act 2011 (ACT) applies to identification or recognition evidence of police officers – where evidence not admissible pursuant to s 78 of the Evidence Act 2011 (ACT)

EVIDENCE – identification or recognition evidence – whether identification or recognition evidence should have been excluded pursuant to s 137 of the Evidence Act 2011 (ACT) – whether probative value of evidence was outweighed by the danger of unfair prejudice – where probative value of evidence was found to be weak – where danger of unfair prejudice was real and substantial – where evidence ought to have been excluded pursuant to s 137 of the Evidence Act 2011 (ACT)

Legislation Cited:

Criminal Code 2002 (ACT) s 308

Evidence Act 2011 (ACT) ss 76, 78, 137
Evidence Act 1995 (NSW) ss 78, 79

Supreme Court Act 1933 (ACT) s 37E

Cases Cited:

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627

Dyers v The Queen [2002] HCA 45; 210 CLR 285
Kheir v The Queen [2014] VSCA 200; 43 VR 308
Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352
Mokbel v Director of Public Prosecutions (Cth) [2021] VSCA 94
Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Drollet [2005] NSWCCA 356
R v Leung [1999] NSWCCA 287; 47 NSWLR 405
SBT v Colvin [2020] ACTSC 216

Smith v The Queen [2001] HCA 50; 206 CLR 650

Parties:

SBT (Appellant)

David Colvin (Respondent)

Representation:

Counsel

J Cooper (Appellant)

T Hickey (Respondent)

Solicitors

Aboriginal Legal Service (NSW/ACT) (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 34 of 2020

Decision under appeal:

Court: ACT Supreme Court

Before: Mossop J

Date of Decision: 7 August 2020

Case Title: SBT v Colvin

Citation: [2020] ACTSC 216

BURNS J:

  1. I have had the advantage of reading the reasons of Wigney and Abraham JJ in draft. In my opinion there is no significant difference between their reasons in those areas they separately address, except for the final orders they propose. I agree that the appeal should be allowed for the reasons given by Wigney J and I agree…

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SBT v Colvin [2021] ACTCA 40
Case
[2021] ACTCA 40
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the Supreme Court of the Australian Capital Territory against a conviction for theft. The appellant, a young person, had been convicted by a magistrate in the ACT Childrens Court, with his conviction resting almost entirely on identification or recognition evidence provided by police officers. The appeal raised two primary issues: first, whether the primary judge erred in upholding the magistrate's decision to admit the identification or recognition evidence, and second, whether the conviction was unsafe and unsatisfactory given the reliance on this evidence.

The court was required to determine whether the identification or recognition evidence was relevant, whether it constituted inadmissible opinion evidence under section 76 of the *Evidence Act 2011* (ACT), and if otherwise admissible, whether it should have been excluded under section 137 of the *Evidence Act* due to its probative value being outweighed by the danger of unfair prejudice. The court also noted that evidence of admissions, initially admitted by the magistrate, was now conceded to have been wrongly admitted and was therefore disregarded.

The court found that the primary judge had erred in concluding that the identification or recognition evidence was properly admitted. It held that the evidence of Constable Colvin, stating that the person in the CCTV footage was "either [the appellant] or [the appellant’s brother]", was not relevant to establishing the appellant's identity as the thief. Furthermore, his later statement that he "formed the belief" the person in the watchhouse was the same person in the CCTV footage was considered inadmissible opinion evidence, as it did not fall within any exception to the opinion rule. The court concluded that the admission of this evidence was a material error, rendering the conviction unsafe and unsatisfactory.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The first issue is whether the primary judge erred in concluding that the identification or recognition evidence was properly admitted by the magistrate. That issue in turn raises three questions: first, whether the evidence was relevant; second, whether the evidence was opinion evidence which did not fall within any relevant exception to, and was therefore rendered inadmissible by, the opinion rule in s 76 of the Evidence Act 2011 (ACT); and third, if the evidence was otherwise admissible, whether it should have been excluded pursuant to s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the appellant. The second issue, which only arises if it is found that the primary judge was correct in finding that the identification or recognition evidence was properly admitted, is whether the appellant’s conviction was unsafe and unsatisfactory. It was common ground before the primary judge and in this Court that the appellant’s conviction rested almost entirely on the identification or recognition evidence. The allegation against the appellant was that, on 26 May 2019, he stole a black backpack from the Belconnen shopping centre. The backpack contained a number of valuable items. There was no dispute that a person stole the backpack from the shopping centre on the day in question. The only issue was whether the appellant was that person. The prosecutor’s case depended on two categories of evidence. The first was evidence of admissions said to have been made by the appellant. The magistrate admitted that evidence over objection. It is now common ground that the magistrate erred in admitting the evidence of admissions. That evidence can accordingly be put to one side. The second category of evidence was evidence of two police officers, Constables Colvin and Hill, the effect of which was that the person carrying a black backpack depicted in closed circuit television (CCTV) footage (and still images taken from that footage) recorded at the shopping centre at the time of the theft was the appellant. The appellant objected to that evidence. The magistrate heard the evidence of both police officers in that respect on a voir dire and, after hearing argument, admitted it over the appellant’s objections. The first of the two officers, Constable Colvin, obtained the CCTV footage from the shopping centre. His evidence was that when he viewed the footage he “formed the conclusion” that the person depicted in the footage stealing the backpack “was either [the appellant] or [the appellant’s brother]”. Constable Colvin subsequently took some still images from the CCTV footage and circulated internally a document called a “look out to be kept for” which contained some of those stills. Ten days later, on 5 June 2019, Constable Colvin was on duty at the Belconnen Police Station. Another officer, Constable Hill was also on duty that day. It would appear that Constable Hill had arrested the appellant in respect of a different matter and that, as a result, the appellant was in the “watchhouse” on 5 June 2019. Constable Colvin’s evidence was that when he saw the appellant in the watchhouse he “formed the belief that the young person that was in front of me on the day was the same person that was in the CCTV footage”.

Decision

Reasons for decision

The appellant, a young person, was found guilty of theft and convicted by a magistrate in the ACT Childrens Court, contrary to s 308 of the Criminal Code 2002 (ACT). He subsequently appealed against that conviction. He contended, amongst other things, that the magistrate erred in admitting identification or recognition evidence by a police officer and that the finding of guilt was in any event unsafe and unsatisfactory. The primary judge dismissed the appellant’s appeal: SBT v Colvin [2020] ACTSC 216 (Judgment). The appellant appealed the primary judge’s judgment pursuant to s 37E of the Supreme Court Act 1933 (ACT). The appeal raises two issues. The first issue is whether the primary judge erred in concluding that the identification or recognition evidence was properly admitted by the magistrate. That issue in turn raises three questions: first, whether the evidence was relevant; second, whether the evidence was opinion evidence which did not fall within any relevant exception to, and was therefore rendered inadmissible by, the opinion rule in s 76 of the Evidence Act 2011 (ACT); and third, if the evidence was otherwise admissible, whether it should have been excluded pursuant to s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the appellant. The second issue, which only arises if it is found that the primary judge was correct in finding that the identification or recognition evidence was properly admitted, is whether the appellant’s conviction was unsafe and unsatisfactory. It was common ground before the primary judge and in this Court that the appellant’s conviction rested almost entirely on the identification or recognition evidence. The allegation against the appellant was that, on 26 May 2019, he stole a black backpack from the Belconnen shopping centre. The backpack contained a number of valuable items. There was no dispute that a person stole the backpack from the shopping centre on the day in question. The only issue was whether the appellant was that person. The prosecutor’s case depended on two categories of evidence. The first was evidence of admissions said to have been made by the appellant. The magistrate admitted that evidence over objection. It is now common ground that the magistrate erred in admitting the evidence of admissions. That evidence can accordingly be put to one side. The second category of evidence was evidence of two police officers, Constables Colvin and Hill, the effect of which was that the person carrying a black backpack depicted in closed circuit television (CCTV) footage (and still images taken from that footage) recorded at the shopping centre at the time of the theft was the appellant. The appellant objected to that evidence. The magistrate heard the evidence of both police officers in that respect on a voir dire and, after hearing argument, admitted it over the appellant’s objections. The first of the two officers, Constable Colvin, obtained the CCTV footage from the shopping centre. His evidence was that when he viewed the footage he “formed the conclusion” that the person depicted in the footage stealing the backpack “was either [the appellant] or [the appellant’s brother]”. Constable Colvin subsequently took some still images from the CCTV footage and circulated internally a document called a “look out to be kept for” which contained some of those stills.

Ratio Decidendi

Legal Principle Established

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