Regina v McKellar [2000] NSWCCA 523

Regina v McKellar [2000] NSWCCA 523

The conviction could not stand because, after examining the photographic arrays and considering the evidence surrounding Mrs Doyle's identification, the Court could not exclude the reasonable possibility that the robber was the appellant's brother. The identification evidence had significant unsatisfactory features, including the striking similarity between the appellant and his brother, the absence of the brother's photograph from the later array, possible displacement from the earlier array, inconsistent height evidence, and the absence of evidence that the brother could not have been the robber. The verdict was therefore unreasonable and could not be supported by the evidence.

Jurisdiction
Australia
Judgment Date
11 December 2000
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal After Jury Trial in the District Court
Outcome
Appeal allowed; conviction quashed; verdict of acquittal entered.
Legal Topics
['armed Robbery' 'identification Evidence' 'picture Identification Evidence' 'police Custody' 'unreasonable Verdict' 'evidence Act 1995 S 115']
['criminal Law' 'evidence' 'criminal Procedure'] ['armed Robbery' 'identification Evidence' 'picture Identification Evidence' 'police Custody' 'unreasonable Verdict' 'evidence Act 1995 S 115']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal After Jury Trial in the District Court

Legal Issues

  1. 1 ["Whether the trial judge erred in admitting evidence of Mrs Doyle's photographic identification of the appellant." 'Whether the videotape of the photographic identification should have been played and tendered before the jury.' 'Whether s 115(5) of the Evidence Act 1995 applied where the appellant was on bail for unrelated matters and not physically in police custody when the pictures were examined.' 'Whether the verdict was unreasonable and could not be supported having regard to the evidence.']

Ratio Decidendi

The conviction could not stand because, after examining the photographic arrays and considering the evidence surrounding Mrs Doyle's identification, the Court could not exclude the reasonable possibility that the robber was the appellant's brother. The identification evidence had significant unsatisfactory features, including the striking similarity between the appellant and his brother, the absence of the brother's photograph from the later array, possible displacement from the earlier array, inconsistent height evidence, and the absence of evidence that the brother could not have been the robber. The verdict was therefore unreasonable and could not be supported by the evidence.

Court Disposition

Appeal allowed; conviction quashed; verdict of acquittal entered.

Orders

  • ['Appeal allowed.' 'Conviction quashed.' 'Verdict of acquittal entered.']