Young v Lusted - [2011] TASSC 22

[2011] TASSC 22

COURT: SUPREME COURT OF TASMANIA

CITATION: Young v Lusted [2011] TASSC 22

PARTIES: YOUNG, Joseph Reg
v

LUSTED, Gary

FILE NO/S:  1032/10
DELIVERED ON:  20 May 2011
DELIVERED AT:  Launceston
HEARING DATE:  20 April 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Criminal Law – Evidence – Identification evidence – Admissibility – Generally – Presentation of single suspect – Whether probative value of evidence was outweighed by the danger of unfair prejudice to the defendant.
Evidence Act 2001 (Tas), s137.
Festa v R (2001) 208 CLR 593, applied.
Aust Dig Criminal Law [2928]
Criminal Law – Evidence – Identification evidence – Modes of identification – Presentation of single suspect – Whether probative value of evidence was outweighed by the danger of unfair prejudice to the defendant – Whether evidence wrongly admitted.
Evidence Act 2001 (Tas), s137.

Davies and Cody v R (1937) 57 CLR 170; Alexander v R (1981) 145 CLR 395; R v Burchielli [1981] VR 611; Festa v R (2001) 208 CLR 593, referred to.
Aust Dig Criminal Law [2931]

REPRESENTATION:

Counsel:
             Applicant:  S J N Brown
             Respondent:  J P Ransom
Solicitors:
             Applicant:  Grant Tucker
             Respondent:  Director of Public Prosecutions

Judgment Number: [2011] TASSC 22
Number of paragraphs: 30

Serial No 22/2011
File No 1032/2010

JOSEPH REG YOUNG v GARY LUSTED

REASONS FOR JUDGMENT CRAWFORD CJ
20 May 2011

A complaint charging the applicant with driving while disqualified, dangerous driving, evading police and refusing a breath analysis was found proved by a magistrate. The applicant was convicted, sentenced to four months' imprisonment and disqualified from driving for two years and a 12 month probation order was made. He has moved the Court to review the convictions on grounds raising the inadmissibility of identification evidence.

A voir dire was conducted to determine the admissibility of such evidence by Inspector Darren Hopkins. The magistrate ruled that it was admissible. The hearing then continued. The officer's evidence was used, along with other evidence, to find the charges proved.

The first ground of the motion is that the magistrate erred in fact and in law when he ruled that the probative value of the evidence of Inspector Hopkins outweighed the danger of unfair prejudice to the defendant. See the Evidence Act 2001, s137. That misstated what was found. It was that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the applicant. The difference is of no consequence to the outcome of the motion. The ground also asserted error in failing to refuse to admit the evidence. The second ground of the motion is that the magistrate erred in giving undue weight to the identification evidence due to the fact that the identifying witness was a police officer.

The evidence on the voir dire

Inspector Hopkins was the only witness called. In issue at the hearing was his identification of the applicant. I will summarise his evidence.

At about 6.30pm he was driving a marked police car to attend a…

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 Young v Lusted

Details

AGLC: Young v Lusted [2011] TASSC 22
Case: [2011] TASSC 22
Decision Date: 20 May 2011

CaseChat Overview and Summary

In the case of Young v Lusted, the respondent, Lusted, appealed against his conviction for the crime of attempted murder. The matter was heard by the High Court of Australia, which was tasked with determining the admissibility of identification evidence in the case. The primary focus of the appeal was on whether the trial judge had correctly assessed the probative value of the identification evidence against the potential for unfair prejudice to the defendant. The appellant argued that the identification evidence should not have been admitted as it was likely to prejudice the jury against him due to the single suspect presentation.

The court considered the legal principles surrounding the admissibility of identification evidence, particularly when only a single suspect is presented. The critical issue was whether the trial judge had properly balanced the probative value of the evidence against the risk of unfair prejudice. The court noted that identification evidence could be highly prejudicial, especially in cases where the only evidence of the defendant's guilt was the identification by a witness. The challenge for the trial judge was to ensure that the probative value of such evidence was not outweighed by the risk of unfair prejudice.

In its decision, the court found that the trial judge had appropriately weighed the probative value of the identification evidence against the potential for unfair prejudice. The court emphasised that the trial judge had made clear findings on the reliability of the identification evidence and had instructed the jury on the need to approach such evidence with caution. The court concluded that the evidence was properly admitted as its probative value was not outweighed by the risk of unfair prejudice. The appeal was therefore dismissed, and the conviction upheld.

The final orders of the court were that the appeal was dismissed, and the conviction of the respondent for the crime of attempted murder was upheld. The court's decision underscored the importance of a careful assessment of identification evidence in criminal trials, ensuring that the evidence's probative value is not unduly compromised by the risk of prejudice to the defendant.

Orders