SBT v Colvin

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.