DPP v Mark Daniel SMILLIE [2010] NSWLC 12

Local Court of New South Wales

CITATION: DPP v Mark Daniel SMILLIE [2010] NSWLC 12

JURISDICTION: Criminal

PARTIES: NSW Director of Public Prosecutions Mark Daniel SMILLIE

FILE NUMBER:

PLACE OF HEARING: Albury Local Court

DATE OF DECISION: 05/14/2010

MAGISTRATE: Magistrate Lerve

CATCHWORDS: Identification – identification from CCTV footage – displacement effect – discharge after defended committal

LEGISLATION CITED: Criminal Procedure Act 1986 Crimes Act 1900

Allen & Saffron (1989) 43 A Crim R 1 Festa v The Queen (2001) 76 ALJR 291 R v Clarke (1997) 97 A Crim R 414 CASES CITED: R v Ilioski [2006] NSWCCA 164 R v Marshall (2000) 113 A Crim R 190 R v Mendoza [2007] VSCA 120 R v Pretorius [2007] QCA 432 Smith v The Queen (2001) 125 A Crim R 10

TEXTS CITED: Odgers – Uniform Evidence Law 8th Edition

Ms. M. Shields for the Director of Public Prosecutions REPRESENTATION: Mr. C. Murnane of the Legal Aid Commission for and with the accused.

The evidence of identification is so unsatisfactory that the accused should be discharged. Therefore, the formal orders I made are: ORDERS: (1) I am of the opinion that the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence; however (2) For the reasons set out above, I am not of the opinion that there is a reasonable prospect of a reasonable jury, properly instructed would convict the accused of an indictable offence; and accordingly (3) The Accused is discharged in respect of the charge of Break and Enter and Commit the Serious Indictable Offence of Assault Occasioning Actual Bodily Harm that is before the Court.