R v Gordon

[1996] QCA 109

IN THE COURT OF APPEAL	[1996] QCA 109
SUPREME COURT OF QUEENSLAND

C.A. no. 520 of 1995

Brisbane

[R. v. Gordon]

THE QUEEN

v.

JEFFREY LEONARD GORDON

Appellant

Fitzgerald P.
McPherson J.A.

Helman J.

Judgment delivered 26 April 1996

Joint reasons for judgment of McPherson J.A. and Helman J., Fitzgerald P. dissenting.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - appeal against conviction - whether identification evidence should have been excluded by trial judge - whether probative value outweighed by prejudicial effect.
Counsel:	Mr D. Lynch for the appellant Mr M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	29 February 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 26/04/1996

The circumstances giving rise to this appeal are set out in the reasons for judgment of the other members of the Court.

In my opinion, Knight’s identification of the appellant from a collection of photographs as the person who inspected the vehicle which was later stolen was so inherently unreliable in the circumstances that, even after appropriate warning, it could not safely be accepted and acted on by the jury. In those circumstances, it ought not have been admitted.

Although there was other evidence implicating the appellant, the prosecution did not argue that the appellant’s convictions could be sustained if evidence of Knight’s identification of the appellant from the photographs should not have been admitted.

I would allow the appeals. Since this is a minority view, there is no reason to consider what further orders would be appropriate if the appeals were allowed.

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. and HELMAN J.

Delivered 26 April 1996

On 30 November 1995 in the Brisbane District Court, a jury found the appellant guilty on two counts. Count 1 alleged that he had been in unlawful possession of a Toyota Hilux motor vehicle with the circumstance of aggravation that he had wilfully interfered with the equipment attached to the vehicle. Count 2 was an allegation of his obtaining money, $20,560.90, by falsely pretending that he was the lawful owner of the motor vehicle. The learned trial judge sentenced the appellant to imprisonment for six months on each count. The appellant has appealed to this Court against his convictions. The only argument advanced on his behalf to us was that his Honour had erred in failing to exercise his discretion to exclude evidence of identification of the appellant from photographs. It was argued that his Honour should have concluded that the probative value of that evidence was outweighed by its prejudicial effect, and so should have upheld an objection taken to the evidence.

The Crown case was that the Toyota was stolen from a car yard at Caloundra, Queensland on or about 2 March 1993, that the appellant's accomplice Nicholas Halligan received it from the appellant with instructions to disguise it, that Halligan did so, and returned it to the appellant who then sold it falsely pretending that it was his. At the time of those events the appellant was a prison officer.

Halligan gave evidence at the trial, and the Crown led, as evidence capable of corroborating Halligan's evidence, an account given by Mr Lance Knight of an encounter with a man calling himself Jeff, who said he was a warder at Wacol. Mr Knight, who was the sales manager at the car yard, said he had had the conversation there a couple of days before the car was stolen. He said that Jeff had shown deep interest in the Toyota. Jeff stayed at the yard for three-quarters of an hour to one hour in the mid-afternoon. No argument was addressed to us about the evidence of the encounter with Jeff. What was complained of, however, was evidence of Mr Knight's having picked out a photograph of the appellant from thirteen computer-generated photographs which were shown to him by a police officer, Sergeant Phillip Stevens, over two years later, on 31 March 1995.

The evidence concerning the photograph was led and received as evidence also capable of corroborating Halligan's evidence. Apart from the obvious difficulty arising from the lapse of time between the meeting in the car yard and the selection of the photograph, there were other weaknesses in Mr Knight's evidence. Mr Knight gave no evidence of having known Jeff before he met him in the car yard, and had not seen him again after that and before the identification of the photograph. The photograph of the appellant showed him with a full beard, whereas Mr Knight said that Jeff had been clean shaven. Mr Knight said that Jeff had had darker hair than the appellant appeared to have in the photograph. The photographs, which we examined, were all in a grainy black and white. There was a conflict between Mr Knight's and Sergeant Stevens's evidence as to how long Mr Knight took to select the appellant's photograph: Mr Knight said that it took one-half to three quarters of an hour, whereas Sergeant Stevens said it took three to five minutes. The conversation between Mr Knight and Sergeant Stevens at the time of Mr Knight's identifying the appellant's photograph was not recorded in any way. The appellant was not asked at any time to take part in an identification parade. In the course of the trial, Mr Knight cast doubt on his powers of observation by identifying Mr Michael Halliday, who appeared for the appellant at the trial, as counsel who had appeared for the appellant at the committal proceedings, but Mr Antony Rafter gave evidence that it was he who had appeared for the appellant in the lower court.

The most serious inadequacies of the identification evidence in order of importance were in our view: the lapse of time between the meeting and the selection of the photograph, the use of photographs rather than an identification parade, and the doubt cast upon Mr Knight's powers of observation and recall by Mr Rafter's evidence. As to the second see Alexander v. The Queen (1981) 145 C.L.R. 395 and Pitkin v. The Queen (1995) 69 A.L.J.R. 612.

On the other hand there was the fact that the meeting in the car yard was not a brief one in difficult conditions but a lengthy one in which Mr Knight would have had every reason to study Jeff as a potential buyer. Furthermore it is reasonable to conclude that the image of Jeff stuck in his mind because the Toyota was stolen soon after.

In those circumstances we conclude that it was open to his Honour to decline to exclude the evidence. Provided adequate directions were given to the jury - and no complaint was made about the summing-up — the probative value of the evidence would not be outweighed by its prejudicial effect.

We accordingly conclude that it has not been shown that his Honour's discretion miscarried. The appeal should be dismissed.