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

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

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…

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 Cooney

Details

AGLC: R v Cooney [1993] QCA 445
Case: [1993] QCA 445
Decision Date: 4/11/1993

CaseChat Overview and Summary

The case of R v Cooney involved the appellant, who was convicted of multiple charges including murder and armed robbery. The central issue was whether the trial judge had adequately highlighted to the jury a particular aspect of identification evidence that could have impacted its reliability. The matter was brought before the court for appeal, with the appellant contending that the trial judge failed to sufficiently draw the jury's attention to the reliability of the identification evidence presented against him.

The court was tasked with determining whether the trial judge's conduct in handling the identification evidence was appropriate, specifically whether the judge should have more explicitly addressed potential issues with the reliability of the evidence. This included whether the judge should have drawn the jury's attention to factors such as the conditions under which the identification was made, the opportunity the witness had to observe the perpetrator, and any potential for misidentification. The appeal hinged on whether these omissions were significant enough to warrant a miscarriage of justice.

In delivering the judgment, the court examined the trial judge's handling of the identification evidence in detail. The court concluded that the trial judge did not err in not explicitly highlighting potential reliability issues to the jury, as the evidence was not so flawed as to necessitate such action. The court found that the judge's overall conduct in managing the evidence was appropriate and that the jury was sufficiently informed to make a fair assessment of the evidence. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders