R v Cooney

[1993] QCA 445

IN THE COURT OF APPEAL [1993] QCA 445

SUPREME COURT OF QUEENSLAND

C.A. No.330 of 1993

Brisbane
[R v. Cooney]

BETWEEN:

T H E Q U E E N

v.

BEN KEVIN COONEY

(Appellant)

The President
Mr Justice Pincus

Mr Justice Mackenzie

Judgment delivered 04/11/94

Judgment of the Court

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Evidence - Whether trial judge sufficiently drew jury's attention to a feature of identification evidence which might have detracted from its reliability.
Counsel:	Mr. T. Carmody for the appellant Mr. R.J. Hunters for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date: 1/11/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 330 of 1993

Before The President
Mr Justice Pincus
Mr Justice Mackenzie

[R. v. Cooney]

BETWEEN:

T H E Q U E E N

v.

BEN KEVIN COONEY

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 04/11/93
The appellant has appealed against his conviction in the District Court at Southport on 31 August 1993 on two counts of breaking and entering premises on 6 January 1993 with intent to commit an indictable offence. The sole ground of appeal argued was that the trial judge did not sufficiently draw to the attention of the jury one feature of the identification evidence which might have detracted from its reliability. It should be said immediately that the trial judge was not asked for a redirection on the point, which was not even made the subject of cross-examination by counsel who represented the appellant at the trial.

At about 8.45 p.m. on 6 January 1993, a waitress at a restaurant situated on the ground floor of a building at 126 Scarborough Street, Southport observed a group of three young men, all aged about 18 or 19, share a pizza at a table outside the restaurant. She noticed that one member of the group was wearing a blue and white horizontally striped shirt and that a second member was "very dark with long black hair ... dreadlocks ... and ... something like a t-shirt or turban wrapped around his head". She said that she particularly remembered the third person because at one stage she had come "... face to face with him for a few seconds as he was coming out of the toilet area ...", and had taken special notice of what she described to be his short "sort of pretty", "girly", "coloured", "mousy-brown" hair with blonde streaks.

The two premises which were broken and entered were in the same building, one on the first floor and the other on the ground floor, the same floor as the restaurant.

Later that evening, about 20 to 30 minutes after the young men had left the restaurant, the waitress was standing outside when she saw the same group of persons run out of the door of an office, which was one of the two premises broken and entered, led by the person wearing the blue and white striped shirt, followed in turn by the "dark guy" and then the "... person I'd noticed earlier coming from the toilet in the restaurant".
About three and a half months later, the waitress identified the appellant as the third of the young men, the person whom she had observed "coming out of the toilet area" and the last of the persons whom she had seen running from the premises which had been broken and entered. The identification was carried out by reference to a "photo board".
The photo board consisted of 12 photographs of different young men and provided a good selection of persons of the general age and appearance of the appellant. All had dark or mid-coloured hair, but one feature which distinguished the appellant was that, in his photograph, he had a single blonde curl near the left side of his forehead.

In her evidence in chief, the waitress said:
"The third person had blondie-browny coloured hair. I
came face to face with him for a few seconds as he was
coming out from the toilet area, it's really - I
remember specifically this particular person because I
thought to myself that the colour of his hair was
girly in a sense, it wasn't girly, it was sort of
pretty, that's why I recalled it as much as I did.
Well, what was the colour of this person's hair? -- It
was a brown, it was a mousy-brown with blondie
coloured streaks in it.
What about the length of the hair? -- It was short
hair.
Did you at that time note the facial features of the
person that you encountered for a second in the
vicinity of the toilet? -- Yeah, if I was to see him
again I'd know him for sure."

Later, she was asked additional questions concerning the third person whom she saw coming out of the premises which had been broken and entered.

"You made, you said, the connection between that person and the person you'd seen in the restaurant in the vicinity of the toilet. What was there about the person you saw in the doorway and the person you'd seen earlier at the restaurant? -- Well, they - he looked exactly the same; he had the same hair style; he was with the same person that I'd first see him in the restaurant; it was automatic - I automatically knew who it was.
You've referred earlier to the person you saw for some seconds in the vicinity of the toilet, of having what you've described as 'girlie' and something like 'girlie' style hair. How did that compare with the person you saw at the door? -- It was the same.
As to facial features? -- The same.
Build? -- Mmm.
Age? -- The same."

Towards the end of her examination in chief, she spoke of the occasion when she viewed the photo board.

"For how long did you look at the board? -- Three
minutes, four minutes.
How carefully did you look at it? -- Oh, I looked at
it - each photo very closely; three or four minutes is
quite a long time when you're studying something.
And after you'd done that, did you select one of the
12 photographs? -- Yes.
...
Now the photograph which you selected, of what person
was that a photograph? -- It was the third person
out of the group of three in the restaurant that I'd
seen the night in January; it was the person I'd come
face to face with in the toilet area of the
restaurant."

She then went on in front of the jury to inspect the photo board and select the photograph of the appellant as the photograph of the person whom she had seen coming from the toilet area and running out of the premises that had been broken and entered.

In cross-examination, the waitress agreed that she had been unable to provide a description of the person whom she saw coming out of the toilet area except by reference to his haircut. Later, her evidence continued:

"Now, when you say a girly type haircut, does that mean it was sort of one of these that so many men wear these days; the under cut with - what used to be called a basin cut? -- Girly's not probably an adequate word for it because it had streaks and mine had streaks, sort of thing. That's just why I referred to it as girly. That's the only thing.
So that was the only thing about it that you particularly recall? -- No, the style and everything was something similar that I had seen, but I just noticed the streaks more than anything. They weren't plentiful, they were just, you know, sort of scattered, but that's what made me recall it more than anything.

They could have equally been on someone who had been
in the surf a lot and has those sort of streaks too?
-- Quite possibly.
And apart from that there was nothing remarkable about
this person's haircut? -- No.
...
And the third one out you recognised predominantly
because of the first two and because you saw he had
the girly haircut? -- Mmm.
...
I put it to you that in respect of your evidence about
the third person who came out of the door, that you
could quite possibly be mistaken about that person? -
- No.
I put it to you that the person that came out of that
door wasn't my client? -- No. I believe it was."

Later that evening, the appellant was located by police hiding in a park at Southport in company with another 18 year old male who was wearing a blue and white striped t-shirt.

Before the investigating police officer had mentioned the precise location of the offences but after he had informed the appellant that persons matching the description of him and his companions had been seen leaving the subject building, the appellant betrayed guilty knowledge by saying "I don't eat pizza and do break and enters upstairs".

Further, the appellant originally supplied a false name and, during a record of interview, denied having made the unconscious admission and to having admitted eating pizza at Southport earlier that evening.

Again, a shoe print found at the scene was consistent with the print of the shoes being worn by the appellant at the time of his apprehension.

It was conceded for the appellant that the trial judge gave careful, accurate and adequate instructions to the jury with respect to the issue of identification, properly emphasising its critical significance in the circumstances of the case, but it was argued that the verdict was unsafe and unsatisfactory, and that there ought to be a new trial, because his Honour did not specifically warn the jury that the photograph of the appellant was the only photograph on the photo board which showed a person with a blonde curl.
It is plain that that omission did not cause a miscarriage of justice. It might be that counsel who represented the appellant at his trial deliberately did not draw attention to the curl in the photograph of the appellant on the photo board for tactical reasons, perhaps thinking that reference to a distinctive feature might bolster the identification of the appellant by the witness who saw him. Or it might have been that, at the trial, no importance was attached to the point now made the foundation of the appeal to this Court. Nowhere was the waitress who identified the appellant even asked whether the blonde curl in the photograph played a part in her decision.
However that may be, the omission relied upon from the summing up did not deprive the appellant of a fair trial or raise any doubt as to the safety and soundness of his conviction. Reference to the blonde curl in the photograph of the appellant on the photo board, and to the absence of a similar feature from the other photographs, was not necessary to ensure that the jurors had sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence: Domican v. The Queen (1992) 66 A.L.J.R. 285.

Accordingly, the appeal is dismissed.