R v Brookes

[1992] QCA 103

IN THE COURT OF APPEAL [1992] QCA 103

SUPREME COURT OF QUEENSLAND	C.A. No. 317 of 1991
Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Derrington

T H E Q U E E N

v.

DAVID LESLIE BROOKES

JUDGMENT OF THE COURT

Delivered the 13th day of May, 1992

On 5 November 1991, the appellant was convicted in the

District Court at Brisbane with stealing with actual violence criminal robbed the Cordelia Street Antique Centre. During the course of the robbery, the store-owner and an employee were held at gunpoint for about 6 to 7 minutes. The robber did not seek to hide or disguise his face and the witnesses had a clear view of his features for a significant period.

whilst armed with a dangerous weapon and, on 8th November
1991, he was sentenced to twelve years imprisonment. He has
appealed to this court against his conviction.

Later that day, a Police Technical Officer compiled an

artist's impression of the criminal with the assistance of the witnesses. compiled a collection of twelve photographs including a photograph of the appellant, which was the fifth photograph in the "line up".	On the following day, Monday 29 April, a police officer
At approximately 9.15 a.m. that day, the gallery of

photographs was shown first to the employee and subsequently
to the store-owner, each of whom separately identified the

appellant as the robber.

Shortly afterwards, the police interviewed the appellant

and executed a search warrant at his residence. He denied
committing the robbery and said that he had been home
throughout the Sunday on which it occurred except for a brief
period during which he went to the local shop to buy a

newspaper.

At the trial, the shopkeeper said that the appellant had

visited the shop at about 9.45 a.m. to 10.00 a.m., on the
morning of the robbery. However, the distance from the shop
where the appellant brought a newspaper to the premises which
were robbed is not great and could be travelled by car in less
than 10 minutes. It could not be said that the evidence of
the shopkeeper is inconsistent with the appellant's presence

at the other premises at the time when the robbery occurred.

None of the stolen property was recovered, and there was

no other evidence linking the appellant to the robbery.

At the beginning of the trial, Counsel then appearing for

the appellant objected to the admission of the identification
evidence but the objection was overruled. The application was
renewed but again refused after the witnesses to the robbery

had given evidence.

No complaint is made of the summing up, but it is

contended in this court that the evidence ought to have been excluded or, alternatively, that the jury's verdict that the appellant was guilty of the offence based only upon such

evidence is unsafe and unsatisfactory and ought to be quashed.

Both contentions are based upon a proposition that most

of the other photographs in the collection shown to the
witnesses were of persons who did not meet their verbal
descriptions of the robber. Each witness stated that the
criminal was of "mediterranean" appearance with a "shallow or
gaunt face". According to the storekeeper, there were only
two other persons in the photographic "line up" who had a
mediterranean appearance and one who looked "a little bit
mediterranean". He also considered that only two of the other
photographs showed men with gaunt faces. The employee thought
that there was only one other photograph of a person with a
mediterranean appearance and that there was no other
photograph of a man with a gaunt face.

Broad descriptions such as "mediterranean", "gaunt",

etc., obviously have a subjective content. Even without
elaboration, they may be of some help in selecting an
appropriate set of photographs within which to set the
photograph of a suspect. However, it is not a critical
consideration whether witnesses consider that a descriptive
term applies to all, or a majority, or some other sufficient

percentage of the other persons in a photographic collection.

What matters is whether the collection of photographs is

fair. It must include photographs of persons sufficiently which the identification evidence should have been excluded and there is no cause for concern at the jury's verdict.

similar to the suspect and there must be nothing which draws
attention to him or her.
The court has inspected the photographs placed before the
store-keeper and the employee. There are twelve photographs,
and none of them could be said to be inappropriate for
inclusion in the collection. At least six, and perhaps as
many as eight, of the persons in the other eleven photographs
are generally similar to the appellant.

Accordingly, the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND C.A. No. 317 of 1991

T H E Q U E E N

v.

DAVID LESLIE BROOKES

The President
Mr Justice Davies
Mr Justice Derrington

Judgment delivered the 13th day of May, 1992

Appeal against conviction dismissed

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 317 of 1991
Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Derrington

T H E Q U E E N

v.

DAVID LESLIE BROOKES

JUDGMENT OF THE COURT

Delivered the 13th day of May, 1992

MINUTE OF ORDER:APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:Evidence - Identification - Appellant convicted

stealing with actual violence armed with
dangerous weapon - whether verdict unsafe
or unsatisfactory give identified from
photos only few of which watched verbal

description of offender

Counsel:	Mr A. Rafter for the Appellant Mr. G. McGuire for the Respondent
Solicitors:	Legal Aid Office (Queensland) for the Appellant Director of Prosecutions for the Respondent
Hearing Date:	11th May, 1992