R v Fenton

[1994] QCA 492

[1994] QCA 492

COURT OF APPEAL

FITZGERALD P
McPHERSON JA
DERRINGTON J

CA No 323 of 1994

THE QUEEN

v.

DEBORAH JANE FENTON  Appellant

BRISBANE

..DATE 17/10/94

JUDGMENT

DERRINGTON J:  The appellant appeals against conviction on
19 July 1994 in the Magistrates Court at Cairns where she was convicted of stealing a purse and a sum of money on
9 February 1994.  Identification is the only issue.

The circumstances are brief.  The complainant was shopping at a suburban supermarket in Cairns and her purse was stolen from her shopping trolley.  Another shopper observed the offender take the purse and spoke to a member of the staff. 

To avoid unnecessary detail, it might be mentioned that the complainant subsequently confronted the offender and saw her face to face for some little time when she spoke to her; and three other witnesses called at the trial also saw the offender.

The offender departed without being apprehended.  About five weeks later, whilst at another shopping centre, the complainant recognised the appellant in the crowd and spoke to the manager of the shopping centre.  The police were called and, from inquiries from a bank there, were able to locate the address of the appellant who was spoken to.

She denied any involvement in the offence but was uncooperative and the police took no immediate action at that time.  However, the investigating police officer had a photoboard prepared on which he included a photograph of the appellant.  The photograph of the appellant was recognised by the complainant and one other of the witnesses who had seen the offender at the time of the offence.  The other two witnesses were not able to identify the offender from the photoboard.

There are two other factors that should be mentioned.  Three of the witnesses at the time of the offence were able to describe tattoos on the offender and broadly speaking, with some minor defects, they were consistent with tattoos which the appellant bore.  In addition, the general description given by all of the witnesses conformed with the appearance of the appellant.

The appeal takes two forms.  The first is that the Magistrate wrongly admitted evidence of the photoboard identification.  With respect, there is nothing in this ground.  The authorities clearly indicate that such evidence is admissible.  They just said that it was preferable that there be personal identification.

However, in the present circumstances, given the unwillingness of the appellant to cooperate with the police, it was certainly proper for the Magistrate to admit the evidence of the photoboard identification.  He added that he down-graded the quality of such evidence appropriately.

The second ground of the appeal relates to the Magistrate's reliance upon the identification by the complainant of the appellant as the offending party.  There is nothing in this.  The complainant had the opportunity of seeing the offender in good light, at close quarters and for a time that was much more than merely a fleeting glance.

Moreover, although she was unable to describe the colour of the offender's clothing, she appears to have been reasonably satisfactory as a witness in respect of identification and the Magistrate was entitled to accept her evidence as a competent witness, subject, however, to the need to show appropriate caution as referred to in the authorities. 

In particular, he spoke of and identified the authorities that required the caution that is necessary in these cases.  The evidence of the complainant was supported, of course, by the evidence of other eyewitnesses in various ways, in particular, the identification of the appellant by means of the photoboard identification.  It was supported by one of the other eyewitnesses.

In addition to that and perhaps very powerfully, there is the evidence of the distinguishing marks that were, it might be thought, reasonably unique to the appellant, that is, the tattoo marks which were mentioned by a number of witnesses and conformed with those borne by the appellant.

The third feature is the general match between the appearance of the appellant and the descriptions of all of the eyewitnesses, including the complainant. 

In those circumstances, this is really a factual matter that depends upon the accumulated quality of the evidence of the various witnesses.  That combination is very powerful in the present circumstances and it is not surprising that the Magistrate, who had the opportunity of seeing and hearing the witnesses and assessing their quality as identifying witnesses, was prepared to accept, in the end, the evidence of the complainant, supported by those additional features fortifying her evidence which I have mentioned.  The appeal should be dismissed.

THE PRESIDENT:  I agree.

McPHERSON JA:  I agree.

THE PRESIDENT:  The appeal is dismissed.

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