R v Duffy - [1992] QCA 31

IN THE COURT OF APPEAL [1992] QCA 031

SUPREME COURT OF QUEENSLAND

C.A. No. 30 of 1992

THE QUEEN

SHANE ANDREW DUFFY

JUDGMENT - THE COURT

Delivered the Twenty-third day of March 1992
This is an appeal against conviction. On 23 January

1992, the appellant was convicted of two offences, one of

grievous bodily harm and the other assault, the victims being,

it was alleged, two people named Clunes and Faint - i.e. the

conviction of grievous bodily harm related to Clunes and that of assault related to Faint. The offences were said to have been committed on the night of 20 March 1991. The primary issue in the case was whether or not the appellant was correctly

identified as one of two persons who took part in an attack on

Clunes and Faint. Mr. O'Regan Q.C. argued for the appellant

that the jury's verdict was unsafe because the jury should not have been satisfied on the question of identification. He also

contended that the trial judge gave inadequate warnings on that point and, lastly, complained of what he said was the admission

of further evidence after the jury had retired.

Clunes and Faint gave evidence that they were
assaulted by two men, neither of whom did they previously know.
The Crown case was that Faint noted the registered number of a
vehicle in which the two people who attacked them travelled. It
was admitted that the vehicle, a Pulsar, belonged to the
appellant. According to the evidence adduced on behalf of the
Crown, each of Clunes and Faint independently picked the

appellant out as one of the two persons who assaulted them, by examining a collection of twelve photographs (Exhibit 2) prepared by the police. It is not clear from the transcript of

Faint's evidence that he identified the appellant, in the court

below, as one of the two assailants, but it is common ground

that he in fact did so. The appellant gave evidence which, if

accepted, would have established that he could not have committed the offences because at the relevant time he was at home with two other people, Julie Strain and Stephen Sutton,

both of whom gave evidence to support his alibi.

The appellant also called one Hansen, who said that on

the night in question, he had borrowed the appellant's Pulsar

and, with another man named "Robert", was involved in encounters with two people in a Suzuki car, that being the type of car in which Clunes and Faint were travelling at the relevant time. When it became known to the police, before the trial, that this

defence was being advanced, a second sheet of twelve photographs

(Exhibit 3) was prepared, including a photograph of Hansen.

Clunes and Faint were shown that sheet and did not pick Hansen

out as a person involved in the affair.

Identification, as has been pointed out, was the substantial issue; the jury did not have to consider that in isolation, but in the context of a positive…

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 Duffy

Details

AGLC: R v Duffy [1992] QCA 31
Case: [1992] QCA 31
Decision Date: 23/03/1992

CaseChat Overview and Summary

In this appeal, the appellant, Shane Andrew Duffy, challenges his conviction for grievous bodily harm and assault against the Crown. The primary issue revolves around the identification of the appellant as one of the two individuals involved in the assault of Clunes and Faint on 20 March 1991. The appellant's defence centred on the assertion that he was not present at the scene of the crime due to an alibi and that Hansen, not the appellant, was the actual offender. The court needed to determine whether the identification process was conducted fairly and whether the trial judge adequately warned the jury about the difficulties associated with identification evidence.

The court examined the process of identification, which involved Clunes and Faint selecting the appellant's photograph from a collection of twelve prepared by the police. While it was argued that a line-up would have been a preferable method, the court acknowledged that identification by photographs is not the only permissible method. The court found that the jury's opportunity to observe the appellant and Hansen in court, along with the significant differences in their appearances, allowed for a fair assessment of the identification evidence. Furthermore, the court considered the trial judge's warnings on identification, concluding that the judge provided an adequate warning considering the unique circumstances of the case.

Regarding the introduction of new evidence during the jury's deliberation, the court found that the judge's decision to allow the jury to view the appellant's and Hansen's torsos again was within his discretion and did not constitute the introduction of new evidence. The court held that the appeal against conviction should be dismissed as the verdict was not unsafe and the trial judge's warnings on identification were sufficient.

Orders