R v Freeman - [2009] QCA 354

SUPREME COURT OF QUEENSLAND

CITATION:

R v Freeman [2009] QCA 354

PARTIES:

R
v
FREEMAN, Geoffrey Wayne
(appellant)

FILE NO/S:

CA No 120 of 2009
SC No 610 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2009

JUDGES:

Fraser JA, Cullinane and P Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSON – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Where appellant convicted after trial of one count of murder – where evidence of a witness identified the appellant as the person who was wearing a red shirt and inflicting violence upon the deceased – where appellant only person wearing a red shirt – where witness saw the appellant’s drivers licence at the police station – whether identification evidence of witness was admissible or should have been excluded

R v Abbott[1996] QCA 443, referred to
R v Murphy [1996] 2 Qd R 523, cited

COUNSEL:

A J Glynn SC for the appellant
S G Bain for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I have had the advantage of reading the reasons for judgment prepared by Cullinane J. I agree with those reasons and with the order proposed by his Honour

CULLINANE J: The appellant was convicted of murder after a trial in the Supreme Court at Brisbane.

He appeals against his conviction. On the hearing of the appeal, a single ground was advanced.

This concerned the admission of the evidence of a witness, one Michael James Macklan, a witness who purported to identify the appellant as the person whom he saw inflicting violence upon the deceased. The nature of his evidence and the nature of the objection taken to it will appear a little later in these reasons.

It was not contended that the evidence in question was inadmissible. The appeal therefore involves a challenge to the exercise of a discretion with the difficulties that such a challenge involves.

The relevant events occurred on the evening of 11 March 2006 in a street near the Royal Hotel at Beenleigh. There were two other hotels in the vicinity, the Imperial Hotel and the Sundowner Hotel.

A substantial number of persons were present in the area at the relevant time. Not surprisingly a number of different versions emerged in the evidence of the many witnesses called.

The deceased died as the result of trauma inflicted by a kick or kicks to his head whilst he was lying upon the ground. There is no dispute as to the causal connection between this trauma and his death.

There was evidence from seven witnesses who saw a person wearing a red t-shirt kicking the deceased in the head.

Macklan, who was a…

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 Freeman

Details

AGLC: R v Freeman [2009] QCA 354
Case: [2009] QCA 354
Decision Date: 17 November 2009

CaseChat Overview and Summary

The appellant was convicted of one count of murder after a trial in the Supreme Court of New South Wales. The primary evidence against him was provided by a witness who identified the appellant as the person wearing a red shirt and inflicting violence upon the deceased. The witness also claimed to have seen the appellant’s driver’s licence at the police station. The appellant argued that the identification evidence was unreliable and should have been excluded by the trial judge. He appealed to the Court of Criminal Appeal, challenging the trial judge's decision to admit the identification evidence.

The key legal issue before the Court of Criminal Appeal was whether the identification evidence provided by the witness was admissible, given the potential unreliability of the identification process. The court considered whether the trial judge correctly exercised his judicial discretion in admitting the evidence, and if there were any factors that should have led to the exclusion of the evidence. The appellant’s argument focused on the reliability of the witness’s identification, considering the circumstances under which it was made and the potential for misidentification.

The Court of Criminal Appeal held that the trial judge was entitled to accept the evidence of the witness, finding that there were no significant factors that undermined the reliability of the identification. The court considered the totality of the circumstances, including the witness's opportunity to observe the appellant, the lighting conditions, and the duration of the observation. The fact that the appellant was the only person wearing a red shirt at the scene was also a relevant factor in the court's reasoning. The appeal was dismissed, affirming the conviction.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Freeman [2009] QCA 354
PARTIES:	R v FREEMAN, Geoffrey Wayne (appellant)
FILE NO/S:	CA No 120 of 2009 SC No 610 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	30 September 2009
JUDGES:	Fraser JA, Cullinane and P Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSON – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Where appellant convicted after trial of one count of murder – where evidence of a witness identified the appellant as the person who was wearing a red shirt and inflicting violence upon the deceased – where appellant only person wearing a red shirt – where witness saw the appellant’s drivers licence at the police station – whether identification evidence of witness was admissible or should have been excluded R v Abbott[1996] QCA 443, referred to R v Murphy [1996] 2 Qd R 523, cited
COUNSEL:	A J Glynn SC for the appellant S G Bain for the respondent
SOLICITORS:	Robertson O’Gorman for the appellant Director of Public Prosecutions (Queensland) for the respondent