R v Abbott - [1996] QCA 443

IN THE COURT OF APPEAL	[1996] QCA 443
SUPREME COURT OF QUEENSLAND

C.A. No. 294 of 1996

Brisbane

[R. v. Abbott]

THE QUEEN

BRENDAN JAMES ABBOTT

Appellant

Macrossan C.J.
Davies J.A.
Cullinane J.

Judgment delivered 12 November 1996

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS: CRIMINAL - Appeal against conviction - armed robbery - admissibility of identification evidence - directions concerning identification evidence - McKinney direction - proviso to s.668E Criminal Code (Qld).

Counsel:	Mrs. D. Richards for the appellant Mrs. L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	11 October 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 November 1996

The appellant was convicted in the District Court at Brisbane on 7 June 1996 of the offence of armed robbery.

The offence occurred on 20 January 1995 at the Elanora branch of the Commonwealth Bank. In excess of $354,000 was stolen included in which was a total of $9 in old notes which had been set aside to be destroyed.

The offender had entered the bank initially through a fire cupboard from which access to the ceiling of the bank was obtained and upon removal of tiles in the bank's ceiling to the bank itself.

On the morning of 20 January 1995 bank staff were held up by a person who had a pistol and was wearing a balaclava, gloves and items of clothing which were described by members of the staff who gave evidence. The offender had possession of a radio device and wore a small microphone beneath the balaclava. He carried a black bag which contained a baseball cap, wrap-around sunglasses and some pliers. As he left the bank after cash had been handed over to him he was seen by an officer of the bank who was about to enter the building to be wearing wrap-around sunglasses and a baseball cap.

The offender was seen to enter the passenger side of an orange sedan in the carpark of the shopping centre where the bank was located. Shortly afterwards an orange Cortina sedan was located in an area of the carpark and this was identified by one of the witnesses who had seen the offender enter the vehicle as the vehicle concerned.

Identification evidence was led from three witnesses to link the appellant to the vehicle and thus the offence.

On the previous day the vehicle had been sold by a Mr Stripp. He had advertised it for sale and a man was on that date driven in a taxi by a Mr Middleby to Mr Stripp's residence. This person purchased the vehicle from Mr Stripp for $1,750. Mr Stripp's wife was present during the transaction. There was evidence from Mr Stripp, Mrs Stripp and Mr Middleby in the nature of identification evidence. Each of them had been shown a photo board containing some twelve photographs. Mr and Mrs Stripp were shown this on 20 January and Mr Middleby on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abbott

Details

AGLC: R v Abbott [1996] QCA 443
Case: [1996] QCA 443
Decision Date: 12/11/1996

CaseChat Overview and Summary

The case of R v Abbott involved an appeal against the conviction of Brendan James Abbott, who was found guilty of armed robbery at the Elanora branch of the Commonwealth Bank in Brisbane. The appellant was convicted in the District Court and appealed to the Supreme Court of Queensland, which dismissed the appeal. The central issues in the appeal were the admissibility of identification evidence, the adequacy of the trial judge's directions to the jury concerning the identification evidence, and the appropriateness of certain warnings regarding the evidence of blood and a key to the getaway vehicle. The appellant argued that the trial judge erred in admitting in-court identification evidence from three witnesses and in failing to adequately warn the jury about the unreliability of this evidence. Additionally, the appellant contended that the trial judge misdirected the jury by not sufficiently addressing the weaknesses in Mrs. Stripp's identification evidence, particularly her recent viewing of the appellant's photograph on television. The court found that while the trial judge's failure to adequately address the recent television viewing was a misdirection, the overall case against the appellant was compelling enough to conclude that the jury must have convicted on evidence independent of the identification evidence. The court thus dismissed the appeal.

The reasoning of the court was grounded in the well-established principles regarding the admissibility and reliability of identification evidence, as well as the necessity for trial judges to adequately warn juries about the potential dangers of such evidence. The court noted that while the identification evidence had inherent risks, the circumstances of this case, including other strong circumstantial evidence linking the appellant to the crime, justified the admission of the identification evidence. The court also emphasized that the trial judge's warnings were appropriate and sufficiently cautioned the jury about the risks involved. Despite finding a misdirection concerning the television viewing, the court concluded that the error was not sufficient to undermine the overall reliability of the conviction. Therefore, the appeal was dismissed, and the conviction was upheld.

Orders