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Local Court 23 October 2019

R v Berrier

[2019] NSWLC 12

Assault & violenceTraffic & drivingPublic order & justice offences
EVIDENCE IDENTIFICATION EVIDENCE OPINION EVIDENCE EXPERT EVIDENCE PROCEDURAL FAIRNESS RIGHT TO A FAIR TRIAL

Citation: R v Berrier [2019] NSWLC 12
Court: Local Court of New South Wales
Date: 23 October 2019
Judge(s): LCM Donnelly

Background

The defendant faced three serious charges arising from events on 31 October 2018: using an offensive weapon (a motor vehicle) with intent to prevent lawful apprehension by ramming a police vehicle, failing to stop and driving dangerously during a police pursuit, and driving while disqualified. The central factual dispute at trial was whether the defendant was the person driving the vehicle involved in those events.

The prosecution relied on recognition evidence from two police officers who were members of a task force targeting high-risk driving behaviour. Both officers had studied a case file on the defendant and gave evidence that they recognised him on a property and then in the vehicle as it drove past their position. The defendant denied driving the vehicle that day and raised an alibi, claiming he was at a friend's house in Heathcote. His partner also gave evidence that he was not at the property on the relevant date.

The trial proceeded over two days. At the close of evidence, the prosecutor submitted in closing that the officers' recognition evidence could be treated as ad hoc opinion evidence under section 79 of the Evidence Act 1995. The defendant's solicitor contested whether either officer had made a positive identification. The court then deferred delivering a verdict and issued these reasons.

Legal Issues

  • Whether the court was obliged, in the interests of a fair trial, to ensure that the parties addressed the provisions of the Evidence Act 1995 governing identification evidence (Part 3.9) and opinion evidence (Part 3.3) before a verdict was returned.
  • Whether a Magistrate conducting a summary hearing carries the same common law obligation to ensure a fair trial as a judge presiding over a trial on indictment.
  • Whether the court could discharge that obligation by re-listing the matter for further submissions, rather than by intervening during the evidence phase or rejecting evidence of its own motion.

Decision

Issue 1: The overriding obligation to ensure a fair trial

The court identified a well-established common law obligation on any criminal court to ensure a fair trial according to law, drawing on authority from Mraz v The Queen through to James v The Queen and the New South Wales Court of Criminal Appeal decisions in Perish v R and Kapanadze v R (at [3]-[9]). This obligation applies to a Magistrate conducting a summary hearing to the same extent as it applies to a trial judge on indictment (at [10]).

Issue 2: How the obligation applied on the facts

Neither party had addressed the court on the application of Part 3.9 (identification evidence) or Part 3.3 (opinion evidence) of the Evidence Act during the trial, despite identification being the sole live issue (at [21]). The court accepted the proposition from Kapanadze v R that there is ordinarily no obligation to reject evidence of the court's own motion where no objection is taken and the accused is legally represented, but held that the fair trial obligation here required something more (at [21]-[22]). The court drew a distinction between intervening during the adducing of evidence (inappropriate in an adversarial setting) and ensuring, at the verdict stage, that the parties had a proper opportunity to address the governing statutory framework (at [22]).

Issue 3: Procedural fairness and re-listing

The court concluded that delivering a verdict without the parties having addressed the relevant Evidence Act provisions would deny both parties procedural fairness and risk a failure to ensure a fair trial (at [23]-[25]). Consistent with the Supreme Court's repeated statements in DPP v Kirby and DPP (NSW) v Merhi that Magistrates must afford procedural fairness, the court re-listed the matter to receive submissions on how Parts 3.9 and 3.3 apply to the officers' evidence before any verdict is pronounced (at [23]-[25]).

Orders Made

  • The matter is to be re-listed for the parties to make submissions concerning how the provisions of the Evidence Act 1995, particularly Part 3.9 (identification evidence) and Part 3.3 (opinion evidence), apply to the evidence adduced by the prosecutor.

Key Takeaways

  • A Magistrate presiding over a summary criminal hearing carries the same common law obligation to ensure a fair trial according to law as a trial judge in an indictable proceeding (at [10]).

  • Where identification is the sole contested issue and neither party has addressed the court on the applicable Evidence Act provisions governing identification evidence and opinion evidence, the court's fair trial obligation may require those provisions to be properly ventilated before a verdict is delivered (at [21]-[22]).

  • The fair trial obligation does not always require the court to reject evidence on its own motion; a less interventionist response, such as re-listing for further submissions, may adequately discharge the obligation (at [22]).

  • Recognition evidence given by police officers who have studied a case file on a defendant raises questions about both Part 3.9 (visual identification evidence) and Part 3.3 (opinion evidence, including the ad hoc expert doctrine under section 79 of the Evidence Act), and those questions merit distinct treatment (at [16], [21], [25]).

  • Procedural fairness requires that each party be given a genuine opportunity to address the legal framework before the court reaches its verdict, consistent with the Supreme Court's statements in DPP v Kirby and DPP (NSW) v Merhi (at [23]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 , ss 33B(1)(a), 51B(1)
- Evidence Act 1995 , Part 3.6 Opinion evidence, Part 3.9 Identification evidence
- Road Transport Act 2013 , s 54(1)(a)

Cases
- Alexander v The Queen (1981) 145 CLR 395
- Dietrich v The Queen (1992) 177 CLR 292
- Dhanhoa v The Queen (2003) 217 CLR 1
- Doggett v The Queen (2001) 208 CLR 343
- DPP (NSW) v Merhi [2019] NSWSC 1068
- DPP v Kirby [2017] NSWSC 1754
- James v The Queen (2014) 253 CLR 475
- Kapanadze v R [2017] NSWCCA 69
- Mraz v The Queen (1955) 93 CLR 493
- Nguyen v R [2017] NSWCCA 4
- Perish v R [2016] NSWCCA 89; (2016) 92 NSWLR 161
- Pemble v The Queen [1971] HCA 20; 124 CLR 107 Pitkin v The Queen (1995) 69 ALJR 612; (1995) 80 A Crim R 302