R v Feiloakitau - [1993] QCA 522

IN THE COURT OF APPEAL [1993] QCA 522

SUPREME COURT OF QUEENSLAND

C.A. No. 332 of 1993.

Brisbane

[R v. Feiloakitau]

T H E Q U E E N

- v -

SIAOSI FOTU GEORGE FEILOAKITAU

(Appellant)

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The Chief Justice
McPherson J.A.
Pincus J.A.

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Judgment delivered 14/12/93
Joint reasons for judgment delivered by Pincus J.A. and McPherson J.A., the Chief Justice separately. All concurring as to the orders made.
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APPEAL ALLOWED, CONVICTION SET ASIDE AND A NEW TRIAL ORDERED
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_

CATCHWORDS: CRIMINAL LAW - summing-up - appellant convicted of stealing a handbag with actual violence - appellant and co-accused brought in police car to witnesses and victim for identification - appellant identified by victim and one witness mainly by build and clothing - co-accused recognised by other witness - whether trial judge adequately emphasised the weaknesses in the Crown

identification case, especially
unsatisfactory method of identification, cross-racial identification, and the absence of real opportunity to observe the offenders - whether conviction unsafe.

Counsel:	Mr T Carmody for the appellant. Mr P Callaghan for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing Date: 05/11/93.
IN THE COURT OF APPEAL

Q	UEENSLAND

C.A. No. 332 of 1993

B	risbane
Before	The Chief Justice Mr Justice McPherson Mr Justice Pincus
[	R v. Feiloakitau]

T H E Q U E E N

SIAOSI FOTU GEORGE FEILOAKITAU

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 14/12/93

I agree with the conclusion expressed by Pincus and McPherson JJ.A. in their joint reasons which they have prepared and apart from what I wish to say on one aspect of the Crown case there is nothing I want to add.

It has been pointed out that not long after the robbery occurred the appellant and his co-accused were found together in another suburb it appears and the appellant was wearing a shirt of about the same colour as was said to have been worn by one of the two robbers and the co-accused a shirt of about the same colour as that worn by the other robber. Since we are making an order for a new trial it is desirable to say something about the way in which the trial judge should direct the jury to treat this particular evidence if it emerges again in the retrial. In my view the judge should inform the jury that they should not allow it to reduce the vigilant scrutiny which, in accordance with his other directions, they will be giving to the identification evidence and he should indicate that it would be wrong to use it to compensate for any deficiencies which they might perceive in the identification evidence.

Essentially, identification evidence is evidence which becomes available when a person has observed another in the act of committing an offence or in closely related circumstances which other evidence can connect with the offence and its commission. The person who purports…

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 Feiloakitau

Details

AGLC: R v Feiloakitau [1993] QCA 522
Case: [1993] QCA 522
Decision Date: 14/12/1993

CaseChat Overview and Summary

The appeal in R v Feiloakitau was heard by the Supreme Court of Queensland's Court of Appeal. The appellant, Siaosi Fotu George Feiloakitau, was convicted of robbery in company with actual violence, an offence that allegedly occurred on 4 September 1992. The central issue in this case was the reliability and admissibility of the identification evidence provided by the witnesses. The primary witnesses were Mrs Tat, Ms Bowness, and Mr Simon, who each identified the appellant and his co-accused as the perpetrators of the robbery based on their clothing and physical appearance. However, the method of identification used by the police, who presented the appellant and his co-accused directly to the witnesses, was highly questionable. Furthermore, the witnesses' ability to accurately identify the offenders was compromised by factors such as cross-racial identification and the brevity of their observations.

The court was tasked with determining whether the trial judge had adequately highlighted the weaknesses in the Crown's identification evidence, particularly the unsatisfactory method of identification, cross-racial identification challenges, and the limited opportunity for the witnesses to observe the offenders. Additionally, the court had to assess whether the conviction was safe and sound based on the identification evidence alone, as there was no other independent evidence to support the appellant's guilt.

The Court of Appeal concluded that the trial judge had not sufficiently emphasised the critical weaknesses in the identification evidence, which undermined its reliability. The unsatisfactory method of identification, the challenges of cross-racial identification, and the limited opportunity for the witnesses to observe the offenders were not adequately addressed in the summing-up. Furthermore, the court found that while the identification evidence was not strong, it was not so weak that it rendered the conviction unsafe. However, due to the significant shortcomings in the summing-up, the appeal was allowed, the conviction was set aside, and a new trial was ordered. The court also provided guidance on how the trial judge should handle similar evidence in the retrial, ensuring that the jury did not misuse non-identification evidence to compensate for deficiencies in the identification evidence.

Orders