Trudgett v R [2008] NSWCCA 62

Trudgett v R [2008] NSWCCA 62

Although recognition evidence may fall within the statutory definition of identification evidence, the evidence relied on in this trial did not require a s 116 direction. The complainant did not assert that the appellant was or resembled the offender; evidence that a witness introduced the appellant to the complainant as "Adam" was not an assertion based on what the witness saw, heard or otherwise perceived for the purposes of the definition; and evidence about the appellant entering and leaving the house was indirect evidence of presence. In any event, the appellant's presence at or about the time of the offence was not in issue. Accordingly, s 116 was not engaged and no miscarriage of...

Jurisdiction
Australia
Judgment Date
25 March 2008
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From a District Court Conviction
Outcome
Appeal dismissed.
Legal Topics
['identification Evidence' 'recognition Evidence' 'jury Directions' 'sexual Intercourse Without Consent' 'evidence Act 1995, S 116']
['criminal Law' 'evidence Law'] ['identification Evidence' 'recognition Evidence' 'jury Directions' 'sexual Intercourse Without Consent' 'evidence Act 1995, S 116']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From a District Court Conviction

Legal Issues

  1. 1 ['Whether the trial miscarried because the trial judge failed to direct the jury under s 116 of the Evidence Act 1995 about the dangers of identification evidence.' 'Whether recognition evidence falls within the definition of identification evidence in the Dictionary to the Evidence Act 1995.' "Whether the complainant's evidence, evidence of introduction, and evidence about the appellant's movements amounted to identification evidence requiring a s 116 direction." 'Whether r 4 of the Criminal Appeal Rules or the proviso affected the appeal where no s 116 direction was requested at trial.']

Ratio Decidendi

Although recognition evidence may fall within the statutory definition of identification evidence, the evidence relied on in this trial did not require a s 116 direction. The complainant did not assert that the appellant was or resembled the offender; evidence that a witness introduced the appellant to the complainant as "Adam" was not an assertion based on what the witness saw, heard or otherwise perceived for the purposes of the definition; and evidence about the appellant entering and leaving the house was indirect evidence of presence. In any event, the appellant's presence at or about the time of the offence was not in issue. Accordingly, s 116 was not engaged and no miscarriage of...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']