R v Corney

[1998] QCA 39

IN THE COURT OF APPEAL	[1998] QCA 039
SUPREME COURT OF QUEENSLAND
C.A. No. 2 of 1998
Brisbane [R. v. Corney]

THE QUEEN

v.

CRAIG CORNEY

Appellant

Fitzgerald P
Pincus JA

Williams J

Judgment delivered 10 March 1998

Judgment of the Court

APPEAL AGAINST CONVICTIONS ALLOWED. CONVICTIONS QUASHED.

VERDICTS OF ACQUITTAL ENTERED.

CATCHWORDS:	Criminal law - Identification evidence - Sole evidence - Identification from photographs - Want of clear and unambigous identification - Evidence insufficient to exclude doubt as to identity - Conviction unsafe and unsatisfactory
Counsel:	Mr S.J. Hamlyn-Harris for the appellant. Mr P.F. Rutledge for the respondent.
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	5 March 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 10 March 1998

The appellant has appealed against two convictions in the District Court at Townsville on 12 December 1997. After a trial, he was convicted of breaking and entering a dwelling house with an intent to commit an indictable offence therein on 28 April 1997 and, on the same day, stealing a compact disc player, a microwave oven and a video cassette recorder.

The house broken into was on a five acre block at Black River, and the offences occurred while the home owner was at work. The only evidence against the appellant was that of a neighbour, Mrs Anderson.

On the morning on which the offences occurred, she saw a white Fairlane car come up her driveway, and a man get out of the car and approach her house. He was wearing a baseball cap and pair of tinted glasses. She opened the front door and spoke to him from a distance of about ten metres for perhaps two to three minutes. He said that he was looking for a house which was for sale. She told him that her house was not for sale, and suggested that it might be the house which was later broken into. The man went back to his car, reversed out of her driveway and drove into the driveway of the house which was broken into. Mrs Anderson went into her kitchen and saw the man to whom she had spoken take the screen off a window and climb into the other house. On this occasion, she observed the man for about 30 seconds to one minute. She telephoned the police, who attended, but did not arrive until after the offender had left. Police were unable to locate the white Fairlane vehicle.

Mrs Anderson gave police a description of the offender. She said that he was tall, or at least taller than she was, and that he had a big build. It is not clear whether she also said that he had a fair complexion and a big stomach and that he was about 40 years of age. The appellant was 27 years old when the offences were committed, and there is no evidence about his height or whether he had a big stomach at the time. A photograph of the appellant indicates that he had a plump face with a substantial jowl.

About four days later, Mrs Anderson was shown a photo board containing photographs of 12 men, one of whom was the appellant. All but two of the men appear to be about 40 years of age. The other younger man whose photograph was included had shoulder length hair which would have been clearly visible to Mrs Anderson if he had been the offender. Mrs Anderson indicated the photograph of the appellant and said: “I think it was him.” When asked why, she replied, “His build. ... And it just looks like the bottom half, what I saw of his face.” If the “top half” of the appellant’s face in his photograph on the photo board is covered up, there is nothing distinctive about the bottom half of his face other than a degree of plumpness and the jowl, which Mrs Anderson did not mention.

At the committal, when it was pointed out to Mrs Anderson that she had said she thought it was the appellant when she had identified his photograph, she answered: “Well, I wasn’t going to say that’s definitely him.” Her evidence at the trial was stronger, in that she said she did not think it was possible that she had made a mistake. However, apart from her statements at the time she was shown the photo board and during the committal hearing, the possibility of error is self- evident.

As stated earlier, there was no other evidence implicating the appellant in the offences.

The appellant’s guilt was not proved beyond reasonable doubt by Mrs Anderson’s evidence, and his convictions were necessarily unsafe and unsatisfactory.[1]

[1]              See Pitkin v. R. (1995) 69 A.L.J.R. 612.

The appeal is allowed, the convictions are quashed and verdicts of acquittal entered.