R v B

Case [1999] QCA 105
IN THE COURT OF APPEAL [1999] QCA 105
SUPREME COURT OF QUEENSLAND

C.A. No. 429 of 1998

Brisbane

[R v B]

THE QUEEN

v

B Appellant

McPherson JA
Thomas JA

Shepherdson J

Judgment delivered 13 April 1999
Separate reasons given by each member of the Court, McPherson JA and Thomas

JA concurring as to the order made, Shepherdson J. dissenting.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS: 

CRIMINAL LAW - summing-up - identification evidence - inconsistencies in Crown witness' evidence - that witness the only Crown witness on identification issue - whether trial judge's summing-up was adequate - whether trial judge failed to put a direction which had the authority of the judge’s office behind it - whether summing-up amounted to a miscarriage of justice.

Domican v R (1992) 173 CLR 555
Kelleher v The Queen (1974) 131 CLR 534
R v Turnbull (1977) QB 224
R v Burchielli (1981) VR 611
R v Bartels (1986) 44 SASR 260
Finn (1988) 34 ACrimR 425
R v Dickson (1983) 1 VR 227

Counsel: 

Mr B Devereaux for the appellant Mr T Moynihan for the respondent

Solicitors:  Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:  3 March 1999

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 13 April 1999

  1. The appellant was convicted at a trial in the District Court at Mount Isa on an indictment charging one count of unlawful use of a motor vehicle and another of wilful damage. The appeal is practically confined to one ground, which challenges the adequacy of the summing up at trial in relation to the evidence identifying the appellant as the person who committed the two offences.

  2. William Sadler was provided by his employer with a Holden Rodeo utility, which is the vehicle the subject of the first count. On 21 January 1998, he went to the Post Office Hotel at Cloncurry, leaving the vehicle outside with the keys still in it. After drinking about eight stubbies of beer, he left the hotel at about 10.30 pm to find that the vehicle had been taken from where he had parked it. He called the police, and Constable C A Ogden arrived at the scene.

  3. While waiting at the hotel, Sadler said he saw the vehicle pass by, and, when Ogden arrived, he sat in the front passenger seat of the police car which was being driven by Ogden, and they went on a search for the missing utility. They saw and followed it through various streets in Cloncurry, and then along the road out to the airport. Both vehicles were travelling on the airport road, with the police car in pursuit, when the utility suddenly braked and turned off into a paddock smashing through a wire fence, which was the subject of the second charge. The police car was brought to a halt at the roadside, and Ogden set off in pursuit on foot; but, although the utility was found abandoned some distance further on, the driver eluded…

Continue reading R v B

Sign in free to access the full text

Details
AGLC
R v B [1999] QCA 105
Case
[1999] QCA 105
Decision Date

CaseChat Overview and Summary

The case of R v B involved a criminal trial where the defendant was convicted based on identification evidence. The sole witness who identified the defendant had inconsistencies in their testimony, and the defendant argued that the trial judge's summing-up was inadequate, particularly in light of the weaknesses in the identification evidence. The High Court of Australia was tasked with determining whether the summing-up was adequate and whether the trial judge failed to give a direction that had the authority of their office behind it, potentially leading to a miscarriage of justice.

The central legal issues were whether the trial judge adequately addressed the inconsistencies in the identification evidence and whether the summing-up sufficiently highlighted the need for caution when relying on such evidence. The court examined whether the judge's direction to the jury was appropriate given the circumstances and whether there was a failure to provide the jury with necessary guidance on the reliability of the identification evidence.

The High Court found that the trial judge did not adequately address the inconsistencies in the identification evidence and failed to provide the jury with sufficient direction regarding the need for caution in relying on such evidence. The court emphasised that when identification evidence is crucial to the case, the judge must carefully direct the jury about the potential unreliability of such evidence and the importance of examining the circumstances under which the identification occurred. The summing-up in this case did not sufficiently guide the jury on these critical points, leading to a miscarriage of justice. Consequently, the conviction was quashed.

The High Court ordered that the conviction be quashed, and the defendant's appeal was upheld. The court highlighted the importance of providing appropriate warnings and detailed directions to the jury when identification evidence is central to the prosecution's case, particularly when that evidence is subject to significant doubt or inconsistency.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Of these four cases I refer to the relevant passages in Kelleher and Turnbull. In Kelleher at p.551 Gibbs J (as he then was) said: "I would respectfully endorse the words of Lord Morris of Borth-y-Gest in Arthurs v Attorney-General (Northern Ireland) (1970) 55 Cr.App.R.161, at p.168: "It is manifest that in cases where the vital issue is whether the identification of the accused person is certain and reliable the judge must direct the jury with great care. However careful is his general direction as to the onus of proof, the judge will feel it necessary to deal specifically with all the matters relating to identification." In that case, which was one in which the witness who had identified the accused man knew him well, the House of Lords held that a summing-up which dealt fairly and amply with the evidence of identification could not be held as a matter of law to be defective if it did not contain a general warning to the jury of the dangers of acting on evidence of visual identification, and their Lordships left it open whether it was necessary to lay down any rule for the guidance of courts in a case in which a witness had identified someone he did not previously know and whom he had had only a limited opportunity to observe. In Reg. v Long (1973) 57 Cr.App.R.871, the Court of Appeal (Criminal Division) held that in such a case a judge is not bound, as a matter of law, to give the jury a specific warning about the danger of convicting on such evidence. However, it seems to me that although it is perfectly true that the adequacy of a summing-up can only be decided in the light of the circumstances of the particular case, and that where a warning is necessary no particular form of words is required, it is in practice generally desirable that where the case for the prosecution includes evidence of visual identification by a person previously unfamiliar with the accused, an appropriate warning should be given to the jury, since jurors may not appreciate as fully as a judge may do, or even at all, the serious risk that always exists that evidence of that kind may be mistaken. The failure to give an adequate warning where one is required may have the result that the conviction must be quashed - a course that has been taken in a number of recent cases in Australia ... . If a warning is necessary, the duty to give it will not be satisfactorily discharged by the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence." [emphasis is mine] In Reg v Turnbull (1977) QB 224 Widgery CJ in reading the judgment of the Court of Appeal said: "Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years. The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the courts, including this court, to reduce that number as far as is possible. In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment. First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.