Tasmania v Lynch - [2008] TASSC 77

[2008] TASSC 77

CITATION: Tasmania v Lynch [2008] TASSC 77

PARTIES:  TASMANIA
  v
  LYNCH, Michael Stuart John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  376/2005
DELIVERED ON:  2 May 2006
DELIVERED AT:  Hobart
HEARING DATE:  4 April 2006
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Evidence – Identification - Modes of proof – Identification from photographs.
Alexander v R (1981) 145 CLR 395, applied.
R v Gatty [2001] TASSC 9, followed.
Tasmania v Clark [2005] TASSC 123, considered.
Aust Dig Criminal Law [607]

Criminal Law – Evidence – Judicial discretion to exclude evidence – Particular cases – Photographic identification evidence – Probative value of evidence versus prejudicial effect – Failure to offer identification parade.

R v Ireland (1970) 126 CLR 321; Cleland v R (1982) 151 CLR 1; Tasmania v Clark [2005] TASSC 123; R v Richardson [2002] TASSC 18, considered.
Evidence Act 2001 (Tas), ss135, 137.
Forensic Procedures Act 2000 (Tas), ss8, 10, 13.
Aust Dig Criminal Law [422]

REPRESENTATION:

Counsel:
             Appellant:  M P Shirley
             Respondent:  W A Ayliffe
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Ayliffe & Ayliffe

Judgment Number: [2008] TASSC 77
Number of paragraphs: 28

Serial No 77/2008
File No 376/2005

STATE OF TASMANIA v MICHAEL STUART JOHN LYNCH

REASONS FOR JUDGMENT SLICER J

2 May 2006

A ruling was given at trial adverse to the prosecution and brief reasons given for the ruling. However, the time constraints imposed by jury trial did not permit a full exposition of those reasons and, in deference to the submissions of counsel, I indicated that more comprehensive reasons would be later provided.

The indictment originally comprised three counts alleging acts of indecency at the same geographic location on three separate days, namely 15 October, 4 November and 8 November 2004.

The prosecution's original allegations were supported by three proposed witnesses who had stated to investigating police that each had observed a separate act of indecency on each of the three dates. There was other evidence common to the three counts. In furtherance of its case, the prosecution gave notice of its intention to rely on "coincidence" evidence as permitted by the Evidence Act 2001, s99. The notice relevantly stated:

"1Notice is given that coincidence evidence will be given by the following witnesses in the [respondent] trial set to commence on the 3^rd day of March, 2006.
(a)   F
(b)   H
(c)   P
2The coincidence evidence referred to is: (see Crown papers 3, 10, 16, 17 and 27).
That the three separate acts of indecency are alleged to have occurred in the late afternoon of the days referred to, in the front yard of the same premises at [address] at a time when the accused was resident at or associated with the house next door to the front yard where the alleged indecent acts are alleged to have taken place.
3Notice is given that coincidence evidence will be given by all of the abovenamed witnesses of matters…

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 Tasmania v Lynch

Details

AGLC: Tasmania v Lynch [2008] TASSC 77
Case: [2008] TASSC 77
Decision Date: 2 May 2006

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the state prosecuted Lynch on charges related to criminal activity. The prosecution sought to prove Lynch's involvement by identifying him through a photograph shown to a witness. The crux of the case lay in whether the identification was reliable and admissible under the court's standards for such evidence.

The court had to determine the criteria for assessing the admissibility and reliability of identification evidence obtained via a photograph. Specifically, the court needed to address the reliability of the identification process and whether the circumstances surrounding the viewing of the photograph were such that the identification could be considered fair and accurate.

The court found that the identification procedure was conducted in a manner that was potentially suggestive and could have led to misidentification. The court emphasised the importance of ensuring that identification procedures are conducted in a manner that minimises the risk of misidentification. Given the suggestive nature of the photo identification process in this case, the court held that the identification was unreliable and thus inadmissible. Consequently, the court dismissed the charges against Lynch due to the inadmissibility of the key identification evidence.

Orders