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Court of Criminal Appeal 22 December 2003

R v Rima

[2003] NSWCCA 405

Also reported as (2003) 145 A Crim R 27
Theft & propertyFirearms & weapons
CRIMINAL LAW EVIDENCE

Citation: R v Rima [2003] NSWCCA 405
Court: NSW Court of Criminal Appeal
Date: 22 December 2003
Judge(s): Tobias JA; Wood CJ at CL; Hidden J

Background

The respondent faced a charge of armed robbery in the District Court. The prosecution alleged that on 31 May 2002, he robbed a man (referred to here as the complainant) of his motor vehicle at knifepoint after posing as a prospective buyer of the car earlier that day.

The complainant had spent time with the alleged robber during a vehicle inspection and test drive before the robbery occurred at traffic lights that evening. He claimed to have recognised the robber as the same man he had dealt with earlier, and gave detailed descriptions of the person, his clothing, and a vehicle associated with him.

Before the trial commenced, the respondent's senior counsel applied to exclude the complainant's identification evidence under section 137 of the Evidence Act 1995. The trial judge upheld that application, finding the probative value of the evidence was outweighed by the danger of unfair prejudice. That ruling effectively dismantled the Crown's case. The Crown appealed to the Court of Criminal Appeal under section 5F(2) of the Criminal Appeal Act 1912.

  • Whether the trial judge erred in excluding the complainant's identification evidence under section 137 of the Evidence Act 1995
  • Whether admission of the identification evidence would lead the jury to engage in an impermissible process of reasoning
  • Whether the probative value of the identification evidence was outweighed by the danger of unfair prejudice to the respondent

Decision

The Court of Criminal Appeal, with all three judges in agreement, held that the trial judge had erred in excluding the complainant's identification evidence. The central question under section 137 is whether the probative value of evidence is outweighed by the danger of unfair prejudice. The Court found the trial judge had misapplied this test.

The Court emphasised the strength of the identification in this case. The complainant had a prolonged and close opportunity to observe the alleged robber during the earlier inspection and test drive. He then recognised that same person at the traffic lights during the robbery, where the encounter involved direct, face-to-face confrontation at close range. The consistent and detailed descriptions the complainant provided, including of the robber's clothing, physical features, and the associated vehicle, reinforced the probative weight of his evidence.

Various matters raised by the respondent as weaknesses in the identification, including discrepancies about the vehicle registration number and whether the complainant reported it during a triple-zero call, were characterised by the Court as matters going to weight rather than admissibility. Those were questions for the jury to resolve, not grounds for pre-trial exclusion.

The Court concluded that the identification evidence did not carry a risk of leading the jury into impermissible reasoning. Its probative value was not outweighed by unfair prejudice, and the ruling excluding it could not stand.

Orders Made

  • The trial judge's ruling excluding the complainant's identification evidence was vacated
  • The Crown was permitted to lead identification evidence from the complainant at trial
  • The respondent was granted a certificate under the Suitors Fund Act in relation to costs incurred as an unsuccessful respondent on the Crown's appeal

Key Takeaways

  • Under section 137 of the Evidence Act 1995, a court must exclude evidence only where its probative value is outweighed by the danger of unfair prejudice. The test is not satisfied merely because identification evidence has weaknesses or inconsistencies.
  • Weaknesses in identification evidence, such as discrepancies in descriptions or gaps in the witness's account, ordinarily go to weight and are matters for the jury to assess rather than grounds for exclusion at the admissibility stage.
  • A prolonged prior opportunity to observe a person can substantially strengthen the probative value of a subsequent identification, particularly where the witness provides detailed and consistent descriptions across multiple accounts.
  • The Court of Criminal Appeal confirmed that a trial judge's discretionary ruling under section 137 is reviewable on appeal where the judge has applied the wrong test or given insufficient weight to factors bearing on probative value.
  • A respondent who unsuccessfully opposes a Crown appeal under section 5F(2) of the Criminal Appeal Act 1912 may obtain a costs certificate under section 6(2) of the Suitors Fund Act where the costs of the appeal are not ordered against them by any other party.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Suitors Fund Act 1951 (NSW), s 6(2)

Cases:
- R v Lisoff [1999] NSWCCA 364
- R v Matovski (1989) 15 NSWLR 720
- R v Alexandroaia (1995) 81 A Crim R 286
- R v Beeby [1999] 104 A Crim R 142
- Blick (2000) 111 A Crim R 190
- House v R (1936) 55 CLR 499
- Festa v The Queen (2001) 208 CLR 593
- R v Tugaga (1994) 74 A Crim R 190
- Marshall (2000) 113 A Crim R 190
- Mezzo [1986] 1 SCR 802
- R (1989) 18 NSWLR 74
- Alexander v The Queen (1981) 145 CLR 395
- Papakosmas v R (1999) 196 CLR 397