R v Brown

[2011] QCA 16

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2011] QCA 16

PARTIES:

R
v
BROWN, Arthur Richard
(appellant)

FILE NO/S:

CA No 202 of 2010
DC No 23 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

15 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2011

JUDGES:

Margaret McMurdo P and Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – appellant convicted of burglary by break with violence, grievous bodily harm, rape and stealing – trial judge admitted similar fact evidence of a prior conviction for common assault – trial judge admitted evidence of photoboard identification – appellant submitted the similar fact evidence should not have been admitted because there was no “striking similarity” – appellant submitted the identification evidence had no probative value because the complainant did not actually identify the appellant – whether the evidence should have been excluded

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – trial judge admitted similar fact evidence – trial judge admitted evidence of appellant’s flight – trial judge admitted evidence identifying property found in the possession of the appellant as garments owned by the complainant – appellant submitted the evidence was weak due to the fact that the complainant made no actual identification of the garments – whether trial judge should have warned the jury as to the dangers of convicting on such evidence where its reliability is disputed

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, followed
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, followed
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, considered
Pitkin v The Queen (1995) 130 ALR 35; [1995] HCA 30, cited
R v Lowe (1997) 98 A Crim R 300; [1997] NSWSC 160, cited
R v Turner (2000) 76 SASR 163; [2000] SASC 27, cited

COUNSEL:

P E Smith for the appellant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1]      MARGARET McMURDO P:  This appeal against conviction should be dismissed for the reasons given by Muir JA.

MUIR JA:  Introduction

[2]      The appellant was convicted in the District Court in Toowoomba on 2 August 2010 of one count of burglary by break with violence, one count of grievous bodily harm, one count of rape and one count of stealing underwear, the property of the complainant.  He appeals against his…