R v Ackerman - [2007] QDC 248

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Ackerman [2007] QDC 248

PARTIES:

THE QUEEN

V

RICHARD THOMAS ACKERMAN

FILE NO/S:

142/07

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 590AA Criminal Code

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

26 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2007

JUDGE:

Nase DCJ

ORDER:

CATCHWORDS:

COUNSEL:

Ms J. Thomas for the Crown

Mr P. Sloane for the accused

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Legal Aid Queensland for the accused

Richard Thomas Ackerman and Andrew Hazel are charged with a series of offences arising out of the abduction and assault of a Shannon Gregory.[1] Gregory had sold a motor vehicle to Hazel for $2,000 in early October 2005, without telling Hazel the vehicle was subject to finance. On the prosecution case it was this deception that caused the acts of reprisal now charged in the District Court.
[1]Ackerman and Hazel are charged jointly with two counts of assault occasioning bodily harm while armed and in company, one count of stealing, one count of kidnapping, one count of threatening violence in breach of s 75(1)(b) Criminal Code, and one count of demanding property with menaces.

In these proceedings Ackerman applies for a ruling that a photoboard identification by Gregory conducted at Logan Centre police station on 17 December 2005 be excluded in the exercise of the trial judge’s discretionary powers. Section 590AA Criminal Code authorises the determination before trial of a range of legal issues which may arise at trial. The application to exclude the photoboard identification is brought under this section.

For the purposes of the application the following facts are accepted by the parties, or asserted as capable of proof by the prosecution.

At the time of the abduction Gregory was living at 17 Myles Court, Boronia Heights. Myles Court is a cul-de-sac. The abduction was carried out by two men, one of whom Gregory knew (Hazel), the other he did not. The prosecution say the other man involved in the offences is Ackerman.

Gregory had returned to the Myles Court residence at about 4.30 pm on 2 December 2005. He was in a car driven by his half‑brother Barrie Wood. What happened is that as the two men drove into Myles Court they were flagged down by a man carrying a clipboard. The man approached Wood and told him he was conducting a survey in the local area. At that point Hazel appeared from behind the vehicle and physically removed Gregory from it. Gregory was assaulted, bound, and placed face down in the rear compartment of a red Corolla sedan.

Over a course of time Gregory was threatened with violence (including threats to cut his throat and ears and break his kneecaps, etc), and death, and he was repeatedly assaulted. One of the men held a knife to his throat and demanded the pin number of his ATM card. A sum of $850 was subsequently withdrawn from Gregory’s account using his pin number. Gregory…

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 Ackerman

Details

AGLC: R v Ackerman [2007] QDC 248
Case: [2007] QDC 248
Decision Date: 26 October 2007

CaseChat Overview and Summary

In the District Court of Queensland, the case of R v Ackerman involved an application by the accused, Richard Thomas Ackerman, to exclude a photoboard identification conducted by the victim, Shannon Gregory, on 17 December 2005. Ackerman and his co-accused, Andrew Hazel, faced charges related to the abduction and assault of Gregory, arising from a dispute over the sale of a motor vehicle that was subject to finance. The application was made under Section 590AA of the Criminal Code, which allows for the determination of certain legal issues before the trial. The key legal issue before the court was whether the photoboard identification should be excluded from the trial due to potential unfairness or unreliability.

The court considered arguments made by the defence, including the contention that Ackerman's photograph in the photoboard was not a fair representation of his appearance at the time of the offence, as it was taken about 13 months prior. The court also noted that Gregory did not provide any identifying facial features in his verbal descriptions of the offender, and that another witness, Barrie Wood, was unable to select any photograph from the photoboard. Despite these arguments, the court found that the probative value of the identification was not sufficiently compromised to warrant exclusion. The court held that any discrepancies in the photograph's age or any failure of another witness to identify Ackerman could be addressed through cross-examination and jury direction.

The court ultimately ruled that the photoboard identification was admissible and should not be excluded from the trial. The decision was based on the view that the potential criticisms of the evidence could be adequately addressed through the adversarial process, and that no compelling reason existed to exclude the identification evidence from the jury's consideration. The court's decision ensured that the prosecution could rely on the photoboard identification as part of their case against Ackerman.

Orders