DPP v Mark Daniel SMILLIE [2010] NSWLC 12

DPP v Mark Daniel SMILLIE [2010] NSWLC 12

Although the prosecution evidence was capable of satisfying a properly instructed jury beyond reasonable doubt that the accused committed an indictable offence, the identification evidence was so unsatisfactory that there was no reasonable prospect that a reasonable jury, properly instructed, would convict. The decisive difficulties included the displacement effect from the witnesses viewing security footage, inconsistencies in descriptions of clothing, lack of prior familiarity with the accused, limited and stressful observation by Ms. Doogood, and the need for extensive and strong identification warnings.

Jurisdiction
Australia
Judgment Date
14 May 2010
Procedural Posture
Criminal / Defended Committal; Determination Under Ss 62 and 64 of the Criminal Procedure Act 1986
Outcome
The accused was discharged in respect of the charge of Break and Enter and Commit the Serious Indictable Offence of Assault Occasioning Actual Bodily Harm.
Legal Topics
['identification Evidence' 'identification From CCTV Footage' 'displacement Effect' 'committal Proceedings' 'break and Enter and Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm']
['criminal Law' 'criminal Procedure' 'evidence'] ['identification Evidence' 'identification From CCTV Footage' 'displacement Effect' 'committal Proceedings' 'break and Enter and Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm']

Case Brief

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Procedural Posture

Criminal / Defended Committal; Determination Under Ss 62 and 64 of the Criminal Procedure Act 1986

Legal Issues

  1. 1 ['Whether the prosecution evidence was capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused committed an indictable offence.' 'Whether, having regard to all the evidence, there was a reasonable prospect that a reasonable jury, properly instructed, would convict the accused of an indictable offence.' 'Whether the identification evidence, including identification after viewing security footage, was so unreliable because of discrepancies and the displacement effect that the accused should be discharged.']

Ratio Decidendi

Although the prosecution evidence was capable of satisfying a properly instructed jury beyond reasonable doubt that the accused committed an indictable offence, the identification evidence was so unsatisfactory that there was no reasonable prospect that a reasonable jury, properly instructed, would convict. The decisive difficulties included the displacement effect from the witnesses viewing security footage, inconsistencies in descriptions of clothing, lack of prior familiarity with the accused, limited and stressful observation by Ms. Doogood, and the need for extensive and strong identification warnings.

Court Disposition

The accused was discharged in respect of the charge of Break and Enter and Commit the Serious Indictable Offence of Assault Occasioning Actual Bodily Harm.

Orders

  • ['I am of the opinion that the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence; however' 'For the reasons set out above, I am not of the opinion that there is a reasonable prospect of a reasonable jury,...