Aslett v R [2009] NSWCCA 188

Aslett v R [2009] NSWCCA 188

The trial miscarried. The security guard's volunteered in-court identification of the appellant in the dock was inadmissible absent compliance with s 114(2) of the Evidence Act 1995, had little probative value, was highly prejudicial, and went to the central issue of identity, changing the complexion of the Crown case from circumstantial to direct identification evidence. The jury should have been discharged, particularly as the trial had just begun and the Crown's case shifted after the identification. The trial judge also failed to give adequate identification directions: the jury was not told that the in-court identification was of no value on the identification issue, and the judge...

Jurisdiction
Australia
Judgment Date
29 July 2009
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal
Outcome
Appeal allowed; convictions quashed; sentences set aside; new trial ordered.
Legal Topics
['identification Evidence' 'in Court Identification' 'discharge of Jury' 'jury Directions' 'proviso' 'new Trial']
['criminal Law' 'evidence' 'criminal Procedure' 'sentencing'] ['identification Evidence' 'in Court Identification' 'discharge of Jury' 'jury Directions' 'proviso' 'new Trial']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the trial miscarried because the trial judge refused to discharge the jury after the security guard made an in-court identification of the appellant in the dock.' 'Whether the trial judge gave adequate directions concerning identification evidence, including the weaknesses of the in-court identification.' 'Whether the proviso should be applied on the basis that conviction was inevitable.' 'Whether it was necessary to consider the application for leave to appeal against sentence.']

Ratio Decidendi

The trial miscarried. The security guard's volunteered in-court identification of the appellant in the dock was inadmissible absent compliance with s 114(2) of the Evidence Act 1995, had little probative value, was highly prejudicial, and went to the central issue of identity, changing the complexion of the Crown case from circumstantial to direct identification evidence. The jury should have been discharged, particularly as the trial had just begun and the Crown's case shifted after the identification. The trial judge also failed to give adequate identification directions: the jury was not told that the in-court identification was of no value on the identification issue, and the judge...

Court Disposition

Appeal allowed; convictions quashed; sentences set aside; new trial ordered.

Orders

  • ['Appeal allowed.' 'Convictions quashed and sentences set aside.' 'The appellant should have a new trial.']