Tate (a pseudonym) v The King - [2023] VSCA 249

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0130

LEONARD TATE (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of prejudice in the respondent’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2023
DATE OF JUDGMENT:	19 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 249
JUDGMENT APPEALED FROM:	DPP v [Tate] (Unreported, County Court of Victoria, 14 July 2023, Judge Gwynn)

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CRIMINAL LAW – Interlocutory appeal – Recklessly exposing emergency worker to risk by driving, reckless conduct endangering serious injury and associated charges – Identification evidence by police officer – Whether probative value of evidence outweighed by prejudicial effect – Whether prejudice capable of amelioration by directions – Leave to appeal against interlocutory decision refused.

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Counsel
Applicant	Mr A Malik
Respondent	Ms S Borg
Solicitors
Applicant	James Dowsley & Associates
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA:

Introduction

The applicant faces trial in the County Court on an indictment charging him with theft (two charges – charges 1 and 2); theft of a motor vehicle (one charge – charges 3); recklessly exposing an emergency worker to risk by driving (one charge – charge 4); recklessly causing injury (one charge – charge 5); reckless conduct endangering serious injury (one charge – charge 6); and handling stolen goods (two charges – charges 7 and 8).
In relation to charges 4, 5 and 6, the prosecution seeks to rely on the evidence of First Constable Sean Hendricks (for convenience, ‘Hendricks’) identifying the applicant as the driver of a Jeep Grand Cherokee motor vehicle (‘the Jeep’) at about 4.14 am on 27 July 2022 (‘the identification evidence’).
In pre-trial submissions made to a judge of the County Court, the applicant sought the exclusion of the identification evidence on two bases. First, he contended that the identification evidence was picture identification evidence within the meaning of s 115 of the Evidence Act 2008 (‘the Act’), and on that account inadmissible. Secondly (and in the alternative), the applicant contended that the identification evidence should be excluded under s 137 of the Act, since its probative value was outweighed by the danger of unfair prejudice to the applicant.
On 14 July 2023, the judge rejected both contentions advanced by the applicant and ruled that the identification evidence was admissible in the applicant’s forthcoming trial (‘the ruling’ or ‘the interlocutory decision’).
Pursuant to certification of the judge given that same day under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), the applicant seeks leave to appeal against the interlocutory decision on a single ground, formulated as follows:
The decision of the learned trial judge to admit visual identification evidence was not reasonably open, contrary to s137 of the Evidence Act 2008.
Particulars:
(a) The danger of unfair prejudice to the accused outweighed its probative value.
(b) The danger…

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 Tate (a pseudonym) v The King

Details

AGLC: Tate (a pseudonym) v The King [2023] VSCA 249
Case: [2023] VSCA 249
Decision Date: 19 October 2023

CaseChat Overview and Summary

The defendant, identified as Tate, appeals against an interlocutory decision of the Supreme Court of Victoria, which denied his application to exclude identification evidence provided by a police officer. Tate was charged with recklessly exposing an emergency worker to risk by driving, reckless conduct endangering serious injury, and related offences. The core issue before the court was whether the probative value of the identification evidence was outweighed by its prejudicial effect, and whether any prejudice could be mitigated by judicial directions to the jury.

The court considered the principles governing the admissibility of identification evidence, particularly in light of the potential for prejudice. The trial judge had concluded that the probative value of the identification evidence outweighed any prejudicial effect, and that any prejudice could be effectively managed by appropriate directions to the jury. The appeal court found that the trial judge's assessment was well-reasoned and consistent with established legal principles. The probative value was deemed significant, as the identification of Tate by the police officer was an integral part of the prosecution's case. The court further found that the potential for prejudice could be adequately addressed through clear and precise directions to the jury, thereby ensuring a fair trial.

Consequently, the court upheld the trial judge's decision and dismissed the interlocutory appeal. The identification evidence was to be admitted, and the trial would proceed as scheduled. The court emphasised the importance of balancing probative value against prejudicial effect in such cases, reaffirming that judicial directions could effectively mitigate any undue prejudice.

Orders