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SBT v Colvin

SBT v Colvin

Case [2020] ACTSC 216 7 August 2020

Appeal

Admissibility of Evidence

Conviction

Identification Evidence

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	SBT v Colvin
Citation:	[2020] ACTSC 216
Hearing Date:	13 May 2020
DecisionDate:	7 August 2020
Before:	Mossop J
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – Appellant convicted of theft – appellant is a young person – Crown concession that magistrate erred in admitting evidence of admissions – conviction not dependent upon such evidence – whether magistrate erred in admitting recognition evidence by police officers – whether finding of guilty is unsafe and unsatisfactory EVIDENCE – IDENTIFICATION EVIDENCE – whether recognition evidence of police officers relevant in accordance with Smith v The Queen [2001] HCA 50; 206 CLR 650 – whether opinion evidence of recognition admissible as law opinion under Evidence Act 2011 (ACT) s 78 – evidence admitted
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 5531 Criminal Code 2002 (ACT), s 308 Evidence Act 1995 (NSW), ss 135, 137 Evidence Act 2011 (ACT), pt 3.3, ss 76, 78, 116, 137, 165
Cases Cited:	Alexander v The Queen (1981) 145 CLR 395 Bullman v Debnam [2010] ACTSC 97 Kheir v The Queen [2014] VSCA 200; 43 VR 308 Lithgow Council v Jackson [2011] HCA 36; 244 CLR 352 Munro v The Queen [2014] ACTCA 11 Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v Dickman [2017] HCA 24; 271 CLR 601 at [48] R v Goodall [1982] VR 33 R v Leung [1999] NSWCCA 287; 47 NSWLR 405 R v Marshall [2000] NSWCCA 210; 113 A Crim R 190 R v Smith [1999] NSWCCA 317; 47 NSWLR 419 Smith v The Queen [2001] HCA 50; 206 CLR 650
Texts Cited:	Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15^th ed, 2020)
Parties:	SBT (Appellant) David Colvin (Respondent)
Representation:	Counsel J Cooper (Appellant) M Howe (Respondent)
Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 11 of 2020
Decision under appeal:	Court/Tribunal: Childrens Court of the ACT Before: Magistrate Cook Date of Decision: 4 February 2020 Case Title: Colvin v SBT Court File Number: CH585 of 2019

MOSSOP J:

Introduction

The appellant, a young person, was charged with theft contrary to s 308 of the Criminal Code2002 (ACT). It was alleged that on 26 May 2019 he stole a black backpack from premises within the Westfield Belconnen shopping centre which contained a number of valuable items. He pleaded not guilty. He was convicted by a magistrate. He has appealed against that conviction.

The grounds of appeal are:

(a)the finding of guilty is unsafe and unsatisfactory;
(b)the magistrate erred in admitting the recognition evidence; and
(c)the magistrate erred in admitting the evidence of admissions.

The third of these grounds was conceded by the Crown. However, the reasons of the magistrate were not…

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 SBT v Colvin

Details

AGLC: SBT v Colvin [2020] ACTSC 216
Case: [2020] ACTSC 216
Decision Date: 7 August 2020

CaseChat Overview and Summary

The appellant, SBT, appealed against their conviction for theft in the Magistrates Court. The appellant, a young person, was found guilty of theft and the matter was referred to the Court of Appeal. The Crown conceded that the magistrate erred in admitting evidence of admissions made by the appellant, but argued that the conviction was not dependent on such evidence. The central issue before the court was whether the magistrate erred in admitting recognition evidence provided by police officers and whether the finding of guilt was unsafe and unsatisfactory.

The court considered whether the recognition evidence was relevant in accordance with the principles set out in Smith v The Queen and whether the opinion evidence of recognition was admissible as law opinion under the Evidence Act 2011 (ACT). The court found that the evidence was relevant and admissible. The court further considered the weight of the evidence and the reliability of the police officers' identification. The court found that the evidence was sufficient to support the finding of guilt and that the conviction was safe and satisfactory.

The court dismissed the appeal, finding that the magistrate did not err in admitting the recognition evidence and that the conviction was not unsafe or unsatisfactory. The appeal was dismissed, and the conviction for theft was upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

SBT v Colvin [2020] ACTSC 216

Most Recent Citation

R v UD [2020] ACTSC 249

Cases citing this decision · 2 of 2 shown

SBT v Colvin
[2021] ACTCA 40 Para 1

…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).…
R v UD
[2020] ACTSC 249 Para 1

…In addition, in respect of recognition evidence, the Crown referred me to the discussion by Mossop J in SBT v Colvin [2020] ACTSC 216, from [49], and the accused relied upon the decision of the Court of Appeal in the Supreme Court of Victoria in Bayley v The Queen [2016] VSCA 160; 260 A Crim R 1. I was particularly…

View all 2 citing cases →

Cases cited in this decision · 15 of 15 shown

R v Bauer
[2018] HCA 40 Para 1

…t. The danger of an unfair prejudice involves the risk that "the jury will use the evidence improperly in some unfair way”: R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at [73]. This includes prejudice arising “because evidence has some quality which is thought to give it more weight in the jury’s assessmen…
R v Smith
[2017] SASCFC 153 Para 1

…time of his arrest which was less than a month after the alleged offence and more than a year prior to the trial: R v Smith [1999] NSWCCA 317; 47 NSWLR 419 ( R v Smith ) at [1], [5], [6].…
R v Dickman
[2017] HCA 24 Para 1

…or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence”: R v Dickman [2017] HCA 24; 271 CLR 601 at [48]. That prejudice may arise from procedural considerations such as the inability to cross‑examine a witness: Munro v The Queen [2014] ACTC…
Smith v The Queen
[2017] HCA 19 Para 1

…arly on in First Constable Colvin’s evidence an objection was taken to him giving recognition evidence, based upon Smith v The Queen [2001] HCA 50; 206 CLR 650 ( Smith v The Queen ). His Honour confirmed that he was taking the evidence on a voir dire and would make a ruling on it so that “whatever comes out of…
Kheir v The Queen
[2014] VSCA 200 Para 1

…nal Appeal in Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267 at [30]-[31], the decision of the Victorian Court of Appeal in Kheir v The Queen [2014] VSCA 200; 43 VR 308 at [65]-[68] and the discussion in Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15 th edition, 2020) at [78.60].…
Munro v The Queen
[2014] ACTCA 11 Para 1

…LR 601 at [48]. That prejudice may arise from procedural considerations such as the inability to cross‑examine a witness: Munro v The Queen [2014] ACTCA 11 at [20]-[28], [85]-[87] (although in that case it did not amount to unfair prejudice).…
R v Leung
[2013] NSWSC 259 Para 1

…whether the recognition evidence is characterised as evidence of fact or evidence of opinion. As has been pointed out in R v Leung [1999] NSWCCA 287; 47 NSWLR 405 at [43] and R v Smith at [16]-[24], the line between opinion evidence and evidence of fact is not always clearly defined (see generally Australian La…
Lithgow City Council v Jackson
[2011] HCA 36 Para 1

…f opinion in certain cases rather than insisting upon lengthy and possibly not particularly helpful recitation of facts. In Lithgow Council v Jackson [2011] HCA 36; 244 CLR 352 French CJ, Heydon and Bell JJ explained why the common law permitted the reception of non-expert opinion:…
Bullman v Debnam
[2010] ACTSC 97 Para 1

…Counsel for the respondent submitted that the evidence should be characterised as evidence of fact and that the case was similar to Bullman v Debnam [2010] ACTSC 97, where Penfold J treated the identification of a person in a photograph as the same person who the police officer had observed committing an offence…
Nguyen v R
[2007] NSWCCA 363 Para 1

…This conclusion is consistent with the decision of the New South Wales Court of Criminal Appeal in Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267 at [30]-[31], the decision of the Victorian Court of Appeal in Kheir v The Queen [2014] VSCA 200; 43 VR 308 at [65]-[68] and the discussion in Stephen Odgers, Unif…
Smith v The Queen
[2001] HCA 50 Para 1

…e Simon Hill. Early on in First Constable Colvin’s evidence an objection was taken to him giving recognition evidence, based upon Smith v The Queen [2001] HCA 50; 206 CLR 650 ( Smith v The Queen ). His Honour confirmed that he was taking the evidence on a voir dire and would make a ruling on it so that “whatever…
R v Marshall
[2000] NSWCCA 210 Para 1

…ave been take into account. They were not matters which would inevitably have required the evidence to have been given little weight: cf R v Marshall [2000] NSWCCA 210; 113 A Crim R 190.…
R v Smith
[1999] NSWCCA 317 Para 1

…he appellant at the time of his arrest which was less than a month after the alleged offence and more than a year prior to the trial: R v Smith [1999] NSWCCA 317; 47 NSWLR 419 ( R v Smith ) at [1], [5], [6].…
R v Leung
[1999] NSWCCA 287 Para 1

…plies depends upon whether the recognition evidence is characterised as evidence of fact or evidence of opinion. As has been pointed out in R v Leung [1999] NSWCCA 287; 47 NSWLR 405 at [43] and R v Smith at [16]-[24], the line between opinion evidence and evidence of fact is not always clearly defined (see generally…
Alexander v the Queen
[1981] HCA 17

…Alexander v The Queen (1981) 145 CLR 395 Bullman v Debnam [2010] ACTSC 97 Kheir v The Queen [2014] VSCA 200; 43 VR 308 Lithgow Council v Jackson [2011] HCA 36; 244 CLR 352 Munro v The Queen [2014] ACTCA 11 Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v Dickman [2017…

Legislation cited in this decision · 3

Evidence Act 1995 (Cth)
135, 137 3 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
5531 2 mentions (from Para 1)
Evidence Act 2011 (ACT)
78 2 mentions (from Para 1)