R v Griffith - [1995] QCA 159

IN THE COURT OF APPEAL	[1995] QCA 159
SUPREME COURT OF QUEENSLAND

C.A. No. 474 of 1994.

Brisbane

[R v. Griffith]

T H E Q U E E N

BRETT RANDALL GRIFFITH

Appellant

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Macrossan C.J.
Pincus J.A.
Davies J.A.

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Judgment delivered 05/05/1995

Reasons for Judgment of the Court

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APPEAL ALLOWED. SET ASIDE THE FOUR CONVICTIONS. ORDER A NEW
TRIAL ON ALL COUNTS.
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CATCHWORDS: CRIMINAL LAW - conviction - admissibility of opinion evidence as to identification - non-expert witnesses - effect of summing-up on jury's determination - whether prejudice to defence - whether miscarriage of justice. Palmer [1981] 1 N.S.W.L.R. 209

Smith (1984) 33 S.A.S.R. 558 Murphy (1989) 167 C.L.R. 94

Counsel:	Mr D Lynch for the appellant. Mr P Callaghan for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.
Hearing date:	3 February 1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 05/05/1995

This is an appeal against conviction. The applicant was convicted of escaping from custody, unlawful use of a motor vehicle for the purpose of facilitating commission of an indictable offence (two counts), and armed robbery in company. Although the notice of appeal relates to all four offences, the argument focused upon the most serious, the conviction of armed robbery in company.

The Crown case was that the appellant, who was then serving a sentence of imprisonment at Numinbah Correctional Centre, was given the keys of a 4-wheel drive vehicle by a prison officer and used it to escape from the Centre and commit, with others, an armed robbery at the Isle of Capri TAB. There were two charges of unlawful use of a motor vehicle, because apart from the 4-wheel drive vehicle, the appellant, so the Crown alleged, was involved in the theft of a second vehicle which was used as a get-away car.

There was no doubt that a robbery was committed and the Crown relied upon the evidence of one McKeaton, a fellow prison inmate of the appellant, with respect to the details of it. McKeaton said that he and two other inmates of the prison took part in the robbery. He declined to identify the other two. McKeaton explained that the three left the prison in a Toyota Hi-lux utility to which one of the co-offenders had the keys. A gun used in the robbery had been supplied, he said by a visitor to the prison, together with some ammunition. McKeaton denied that the appellant was one of the robbers, but admitted that (although his co-offenders were both prisoners) he would make the same denial with respect to any other named inmate of the prison.

Apart from some police identification evidence discussed below, the Crown case that the appellant was one of McKeaton's two co-offenders had some strength. A number of persons who saw the offence committed gave evidence about the appearance of the offenders which was, on the whole, consistent with the appellant being involved. There was evidence from two witnesses,…

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 Griffith

Details

AGLC: R v Griffith [1995] QCA 159
Case: [1995] QCA 159
Decision Date: 5/05/1995

CaseChat Overview and Summary

The appeal in R v Griffith arose from the conviction of Brett Randall Griffith on four charges: escaping from custody, unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence (two counts), and armed robbery in company. The case focused on the conviction for armed robbery in company. Griffith was alleged to have escaped from Numinbah Correctional Centre using a 4-wheel drive vehicle and subsequently committed an armed robbery at the Isle of Capri TAB with two other inmates. The Crown's case relied heavily on the testimony of a fellow prison inmate, McKeaton, who denied Griffith's involvement in the robbery. The main issue in the appeal was the admissibility of opinion evidence from two police officers who identified Griffith as the person in a security camera photograph taken during the robbery.

The legal issues before the court were whether the opinion evidence of the police officers was admissible, and if not, whether its admission resulted in a miscarriage of justice. The court examined the principle that non-expert witnesses are generally not allowed to give opinions on matters that place them in a position of equal vantage with the jury. In this case, the court found that the police officers' opinions on the similarity between Griffith and the person in the photograph were irrelevant and should have been excluded as a matter of discretion. The court further held that the opinion evidence, even if admissible, could have prejudiced the defence by revealing Griffith's extensive past encounters with the criminal justice system.

The court concluded that the opinion evidence of the police officers was inadmissible and should not have been allowed. The summing-up by the trial judge left open the possibility that the jury might have attached weight to the police opinion evidence, despite the judge's later suggestion that the jury was in as good a position as the police to make the identification. The court found that there was a substantial miscarriage of justice, and therefore allowed the appeal, set aside the four convictions, and ordered a new trial on all counts.

Orders