R v Sotheren [2001] NSWSC 204

R v Sotheren [2001] NSWSC 204

The video did not show or imply police custody and was not excluded by s115(2). The identification evidence was highly probative and significant to the Crown case, and there was no unfair prejudice requiring exclusion under ss135 or 137. Although the evidence was covered by s138, the police conduct was not improper in the relevant sense; even if it were improper, the high probative value, importance of the evidence, seriousness of the offences and limited gravity of any impropriety meant it should not be excluded. The evidence was also not required to be excluded under any common law fairness discretion.

Jurisdiction
Australia
Judgment Date
26 March 2001
Procedural Posture
Criminal Proceedings on Indictment for Aggravated Robbery and Murder / Application to Exclude Identification Evidence
Outcome
Application refused.
Legal Topics
['identification Evidence' 'discretion to Exclude Evidence' 'improperly Obtained Evidence' 'unfair Prejudice' 'police Video Evidence']
['criminal Law' 'evidence'] ['identification Evidence' 'discretion to Exclude Evidence' 'improperly Obtained Evidence' 'unfair Prejudice' 'police Video Evidence']

Case Brief

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Procedural Posture

Criminal Proceedings on Indictment for Aggravated Robbery and Murder / Application to Exclude Identification Evidence

Legal Issues

  1. 1 ['Whether identification evidence from a police-prepared video should be excluded under ss114, 115, 135 and 137 of the Evidence Act 1995.' 'Whether the identification evidence should be excluded under ss138 and 139 of the Evidence Act 1995 as improperly obtained.' 'Whether the evidence should be excluded at common law as unfair to the accused.']

Ratio Decidendi

The video did not show or imply police custody and was not excluded by s115(2). The identification evidence was highly probative and significant to the Crown case, and there was no unfair prejudice requiring exclusion under ss135 or 137. Although the evidence was covered by s138, the police conduct was not improper in the relevant sense; even if it were improper, the high probative value, importance of the evidence, seriousness of the offences and limited gravity of any impropriety meant it should not be excluded. The evidence was also not required to be excluded under any common law fairness discretion.

Court Disposition

Application refused.

Orders

  • ['Application refused.']