Citation: R v Taousanis [2001] NSWSC 75
Court: Supreme Court of New South Wales (Common Law Division)
Date: 7 February 2001
Judge(s): Hidden J
Background
The accused stood trial in connection with the death and alleged disposal of a man named Mr Mitris. The Crown alleged the accused used a boat to dispose of the victim's body. The boat in question had reportedly been found at Marrickville premises associated with an acquaintance of the accused.
Two witnesses, Mr Matri and Mr Tyrrell, had each been shown police photographs of the boat on 1 August 1991. Both told police at the time that they recognised the boat from prior familiarity. Mr Matri's evidence was that he had sold the boat to a man who identified himself as Mustafa Mahamad. The Crown sought to lead evidence of the witnesses' recognition of the boat from those photographs.
Defence counsel objected to the admission of that recognition evidence on two grounds: that it was irrelevant, and that it was inadmissible hearsay under the Evidence Act 1995.
Legal Issues
- Whether evidence of the witnesses' recognition of the boat in photographs was relevant to the proceedings
- Whether such recognition evidence was admissible under the hearsay provisions of the Evidence Act 1995, and specifically whether s 66 applied
Decision
On relevance, Hidden J was satisfied that the evidence cleared the threshold. There was already testimony from another witness, Mr Kouroumalos, that the accused had acquired a boat after Mr Mitris's disappearance and had later attempted to sell it. Kouroumalos had also seen a boat at the Marrickville premises. The Crown indicated further evidence would be led to link that boat to the one sold by Mr Matri. Against that backdrop, the court held the accused's association with the boat was relevant, leaving the question of weight for later assessment.
On the hearsay question, Hidden J drew a distinction between recognition evidence and identification evidence in the conventional criminal law sense. That distinction had been affirmed by the Court of Criminal Appeal in R v Mundarra Smith and again in R v Gee. The court noted, with some candour, that it had itself been a member of the Court of Criminal Appeal in Gee and had not initially shared the majority's view.
Applying the reasoning of Grove J in Gee, and the Court's subsequent decision in Barbaro, Hidden J accepted that prior recognition evidence of this kind is admissible under s 66 of the Evidence Act 1995. The basis is that at the moment of recognition, the witness's continuing familiarity with the features of the person or object was fresh in memory, satisfying the conditions that s 66 requires for the admission of prior representations about observed events.
Orders Made
• The evidence of recognition of the boat in photographs is admitted.
Key Takeaways
- Evidence of a witness recognising a person or object in a photograph is treated as recognition evidence, not identification evidence in the conventional criminal law sense, and the distinction carries significant admissibility consequences.
- Under s 66 of the Evidence Act 1995, prior recognition evidence is admissible where the witness's familiarity with the features of the recognised person or object was fresh in memory at the time of recognition.
- The Court of Criminal Appeal's reasoning in R v Gee and R v Barbaro was taken to confirm that s 66 provides the appropriate statutory basis for admitting this category of evidence.
- Relevance of evidence connecting an accused to an object does not require forensic proof linking that object to the offence; circumstantial association with the accused during the relevant period can be sufficient to clear the relevance threshold.
- Hidden J acknowledged departing from his own earlier position as a member of the Court of Criminal Appeal in Gee, accepting that subsequent appellate authority had settled the preferred analysis.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 66
Cases
- R v Mundarra Smith (1999) 47 NSWLR 419 (NSW Court of Criminal Appeal)
- R v Gee [2000] NSWCCA 198
- R v Barbaro (2000) 112 ACrim R 551