Brown v R [2008] NSWCCA 306

Brown v R [2008] NSWCCA 306

Leave under Rule 4 was refused on the identification grounds because the trial judge and defence counsel deliberately considered identification directions, no direction was sought for forensic reasons, and that course was open given the defence case and the evidence that the Koens knew the applicant well and were able to recognise him. Leave on the prosecutor's address ground was also refused because the impugned submission did not invite impermissible speculation about an unidentified motive to lie or reverse the onus of proof; it was directed to the consideration that a knowingly false identification would leave the real shooter free and expose the victim to continuing danger. No...

Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal
Outcome
Leave to appeal refused and appeal dismissed.
Legal Topics
['identification Evidence' 'recognition Evidence' 'jury Directions' 'miscarriage of Justice' "prosecutor's Closing Address" 'onus of Proof']
['criminal Law' 'evidence' 'criminal Appeals'] ['identification Evidence' 'recognition Evidence' 'jury Directions' 'miscarriage of Justice' "prosecutor's Closing Address" 'onus of Proof']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the trial judge failed to adequately direct the jury in relation to the dangers of the identification or recognition evidence of Sonia Koen as required by s 116 of the Evidence Act 1995.' 'Whether the trial judge failed to adequately direct the jury in relation to the dangers of the identification or recognition evidence of Jonathan Koen as required by s 116 of the Evidence Act 1995.' 'Whether the trial miscarried because the Crown Prosecutor invited the jury to consider a submission characterised as "why would the victim lie?"' 'Whether leave should be granted under Rule 4 where no identification direction or redirection was sought at trial.']

Ratio Decidendi

Leave under Rule 4 was refused on the identification grounds because the trial judge and defence counsel deliberately considered identification directions, no direction was sought for forensic reasons, and that course was open given the defence case and the evidence that the Koens knew the applicant well and were able to recognise him. Leave on the prosecutor's address ground was also refused because the impugned submission did not invite impermissible speculation about an unidentified motive to lie or reverse the onus of proof; it was directed to the consideration that a knowingly false identification would leave the real shooter free and expose the victim to continuing danger. No...

Court Disposition

Leave to appeal refused and appeal dismissed.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.']