THD v R

Case [2010] VSCA 115 10 May 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0087
S APCR 2010 0088

THD
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2010
DATE OF JUDGMENT:	10 May 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 115

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EVIDENCE – Admissibility – Criminal proceedings – Identification evidence – Photo board – Whether unfair prejudice to accused – Whether construction of photo board singled out accused – Failure to hold identification parade – Instructions given to identifying witness – R v Fisher [2001] NSWCCA 380, Knight v Brown (2004) 183 FLR 135, R v Blick (2000) 111 A Crim R 326 considered – Leave to appeal granted – Appeal dismissed – Evidence Act 2008 (Vic) ss 135, 137.

CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of evidence – Nature of appeal –Whether appellate court should decide for itself whether evidence admissible –Evidence Act 2008 (Vic) ss 135, 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M P McGrath	Victoria Legal Aid
For the Respondent	Mr J D McArdle QC with Ms C Barbagallo	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

This is an application for leave to appeal under s 298 of the Criminal Procedure Act 2009 (Vic) (the ‘CPA’) from an interlocutory decision made before the commencement of a criminal trial. The applicant is soon to be tried on counts of aggravated burglary, burglary and theft relating to an incident at a house in Springvale.

At issue is the identification evidence on which the prosecution seeks to rely. In circumstances to which I will refer, the victim of the break-in identified the applicant from a photo of him which was included with 11 other photos of Asian males on a ‘photo board’.

The trial judge rejected a defence application to exclude the identification evidence. Defence counsel sought, and the trial judge gave, a certificate as required by s 295(3)(a) of the CPA in relation to the identification evidence. Because the interlocutory decision concerned the admissibility of evidence, the certificate was to the effect that if the evidence were ruled inadmissible, that would ‘eliminate or substantially weaken the prosecution case’.

In contradistinction to CGL v DPP (No 2),[1] the certificate given by the judge was, in my opinion, fully justified. The prosecutor told the judge, when certification was under discussion, that the Crown case ‘depends entirely’ on the identification of the applicant by the victim and that the case against the applicant would accordingly have been eliminated had the evidence been excluded.
[1][2010] VSCA 24.

For reasons which follow, I would grant leave to appeal but dismiss the appeal.

The complaints about the photo board

Defence counsel, who also appeared on this application, advanced three complaints before the trial judge about the photo board. Those same complaints were advanced in this court.

Composition of the photo board

The first and principal complaint concerned the composition of…

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 THD v R

Details

AGLC: T H D v the Queen [2010] VSCA 115
Case: [2010] VSCA 115
Decision Date: 10 May 2010

CaseChat Overview and Summary

The decision in THD v R involved the appellant, THD, contesting the admissibility of identification evidence against him in a criminal proceeding. The matter was heard in the Court of Appeal, Victoria, where the appellant sought to challenge the decision of a lower court that had ruled the evidence admissible. The nature of the dispute centred on whether the photo board presented to an identification witness was constructed in a way that unfairly prejudiced the appellant by singling him out, especially in the absence of a formal identification parade.

The legal issues before the court were whether the photo board was improperly constructed and whether its presentation to the witness, combined with the lack of an identification parade, unfairly prejudiced the appellant to the point of rendering the evidence inadmissible. The court had to consider the principles set forth in R v Fisher, Knight v Brown, and R v Blick, among others, to determine the admissibility of the identification evidence.

In its reasoning, the court held that the photo board did not unfairly prejudice the appellant. The court found that the witness was properly instructed and the photo board did not single out the appellant. Furthermore, the court concluded that it was not necessary for the appellate court to independently assess the admissibility of the evidence; rather, it should defer to the primary court's decision unless there was a clear error in the application of the law. As a result, the appeal was dismissed, and leave to appeal to a higher court was granted.

Orders