R v FISHER [2001] NSWCCA 380

New South Wales Court of Criminal Appeal

CITATION : R v FISHER [2001] NSWCCA 380 FILE NUMBER(S) : CCA 60771/00 HEARING DATE(S) : 27 August 2001 JUDGMENT DATE : 11 October 2001

PARTIES : Graham Francis Fisher - Appellant Crown - Respondent JUDGMENT OF : Sheller JA at 1; Sully J at 29; Hulme J at 30

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0152 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : H Dhanji - Appellant G E Smith - Crown SOLICITORS : D J Humphreys - Appellant S E O'Connor - Crown CATCHWORDS : Criminal Law and Procedure - Admission of evidence - accused identified in line-up - where none of the other men in the line-up were of similar appearance to the accused - probative value of evidence outweighed by danger of unfair prejudice - s 137 Evidence Act 1995. LEGISLATION CITED : N/A R v BD (1997) 94 A CrimR 131 CASES CITED: Papakosmas v The Queen (1999) 196 CLR 297 Alexander v The Queen (1981) 145 CLR 395 DECISION : 1. Appeal allowed; 2. Quash the conviction; 3. Order a new trial.

IN THE COURT OF CRIMINAL APPEAL 60771/00 SHELLER JA SULLY J HULME J

Thursday, 11 October 2001 Regina v Graham Francis FISHER

The appellant was convicted of assault with intent to rob. The main question in the case was one of identification. Witnesses claimed they saw the same person who had committed the crime with a woman later that day. An identification parade was held three days after the incident, and two witnesses of the crime identified the appellant. The appellant objected to the admission of this evidence at trial on the ground that its probative value was outweighed by the prejudice to the defendant (s137 Evidence Act 1995). The basis of the objection was that the appellant was the only person in the line-up of six persons to match the description given by witnesses of a man of aboriginal appearance with shoulder length hair. The trial Judge admitted the evidence, and the appellant challenged this decision. An additional challenge was made on the basis that the trial Judge did not direct the jury to consider the identification evidence separately from evidence connecting the appellant with the woman.