R .v. TO [2002] NSWCCA 247

R .v. TO [2002] NSWCCA 247

The trial judge applied the correct s 137 test and was entitled to find that the identification parade evidence had probative value not outweighed by unfair prejudice and was not shown to have been improperly obtained. The fact that some witnesses knew police had a suspect did not materially change the ordinary expectation of a witness attending an identification parade and did not require reconsideration. The DNA statistical evidence was admissible because the trial judge was entitled to accept Mr Goetz's evidence that the Chinese and other Asian database results were statistically similar and that applying the 3% FST factor was an appropriate conservative alternative to confidence...

Jurisdiction
Australia
Judgment Date
26 June 2002
Procedural Posture
Criminal Appeal Against Convictions and Application for Leave to Appeal Against Sentences / Appeal From District Court Convictions After Jury Trial and Sentences Imposed by Payne DCJ
Outcome
Appeal against convictions dismissed; leave to appeal against sentence granted but sentence appeal dismissed.
Legal Topics
['identification Parade Evidence' 'visual Identification Evidence' 'dna Evidence' 'dna Population Databases' 'unfair Prejudice' 'improperly Obtained Evidence' 'sexual Intercourse Without Consent in Circumstances of Aggravation' 'totality in Sentencing']
['criminal Law' 'evidence' 'sentencing'] ['identification Parade Evidence' 'visual Identification Evidence' 'dna Evidence' 'dna Population Databases' 'unfair Prejudice' 'improperly Obtained Evidence' 'sexual Intercourse Without Consent in Circumstances of Aggravation' 'totality in Sentencing']

Case Brief

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Procedural Posture

Criminal Appeal Against Convictions and Application for Leave to Appeal Against Sentences / Appeal From District Court Convictions After Jury Trial and Sentences Imposed by Payne DCJ

Legal Issues

  1. 1 ['Whether evidence of identification from the identification parade was properly admitted under ss 137 and 138 Evidence Act 1995.' 'Whether evidence of identification should have been reconsidered or excluded because witnesses were told police had a suspect and because of s 114(2) Evidence Act 1995.' 'Whether DNA statistical evidence based on Chinese databases and an FST factor was properly admitted.' 'Whether the total effective sentence of twenty-three years with a minimum term of sixteen years was excessive or crushing.']

Ratio Decidendi

The trial judge applied the correct s 137 test and was entitled to find that the identification parade evidence had probative value not outweighed by unfair prejudice and was not shown to have been improperly obtained. The fact that some witnesses knew police had a suspect did not materially change the ordinary expectation of a witness attending an identification parade and did not require reconsideration. The DNA statistical evidence was admissible because the trial judge was entitled to accept Mr Goetz's evidence that the Chinese and other Asian database results were statistically similar and that applying the 3% FST factor was an appropriate conservative alternative to confidence...

Court Disposition

Appeal against convictions dismissed; leave to appeal against sentence granted but sentence appeal dismissed.

Orders

  • ['Dismiss the appeal against conviction.' 'Grant leave to appeal against sentence.' 'Dismiss the appeal against sentence.']