R v Main

Case [1999] QCA 148 30 April 1999

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IN THE COURT OF APPEAL	[1999] QCA 148
SUPREME COURT OF QUEENSLAND

C.A. No 387 of 1998

Brisbane

[R v Main, ex parte A-G]

THE QUEEN

MADONNA CAROL MAIN

(Petitioner) Appellant

REFERENCE BY ATTORNEY-GENERAL OF

QUEENSLAND PURSUANT TO SECTION 672A OF THE CRIMINAL CODE

McMurdo P
Pincus JA
White J

Judgment delivered 30 April 1999

Separate reasons for judgment of each member of the Court, concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Attorney-General’s reference on petition for pardon- armed robbery - fresh evidence - identification - whether new evidence which suggests offender was wearing sunglasses renders identification evidence inadequate - whether miscarriage of justice within s 668E(1) Criminal Code - whether reasonable jury would have convicted on new evidence - whether test is “significant possibility” or “likelihood” of acquittal
*Criminal Code* ss 668E(1), 672A *Gallagher v The Queen* (1986) 160 CLR 392 *Mickelberg v The Queen* (1988-1989) 167 CLR 259 *R v Condren; ex parte Attorney-General* [1991] 1 QdR 574 *R v Gilvarry* [1991] 2 Qd R 431 *R v Lawless* (1979) 142 CLR 659 *R v Ratten* (1974) 131 CLR 510 *R v Stead* CA No 162 of 1996, 8 August 1997
Counsel:	Mr P Feeney for the appellant. Mrs L Clare for the Attorney-General of Queensland.
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the Attorney- General of Queensland
Hearing Date:	15 March 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 30 April 1999

This is a reference brought to this Court by the Attorney-General under s 672A(a) of the Criminal Code, following a petition for pardon by Madonna Carol Main. The petitioner was convicted in the District Court at Brisbane on 6 December 1996 of armed robbery of a chemist shop on 2 December 1995.
The reference relates to consideration of "new" evidence in the form of video- taped images in a security camera in the chemist shop. Although the video-taped images were available at the time of trial, they were not available in the current enhanced print form produced by a CD-Rom monitor display image, which is of superior quality to that available to the petitioner at trial. The enhanced images establish that the offender was probably wearing sunglasses which obscured her eyes, at least as she was leaving the chemist shop and perhaps also as she was entering it.
The evidence for the Crown at trial relied largely on identification evidence from the complainant pharmacist, Robert McDowell. At about 5.10 pm on 2 December 1995, he noticed a woman reading public notices outside the pharmacy. Twenty seconds later she entered the pharmacy, produced a knife and demanded "Methadone, all that you've got. Whatever drugs you've got." McDowell said, "I managed to have a look at the person. I recognised them as the same person who was outside." He placed a step ladder between the robber and himself as he opened one safe. He then moved to another safe and placed…

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 Main

Details

AGLC: R v Main [1999] QCA 148
Case: [1999] QCA 148
Decision Date: 30/04/1999

CaseChat Overview and Summary

The case of R v Main arose out of an armed robbery incident where the accused, Main, was convicted and sentenced. The Attorney-General made a reference to the court concerning Main's petition for pardon, citing the potential availability of fresh evidence that may undermine the reliability of the identification evidence that led to Main's conviction. This evidence suggested that Main was wearing sunglasses during the crime, which may have affected the accuracy of the identification by the witnesses. The central issue before the court was whether the new evidence rendered the identification evidence inadequate, and whether there was a miscarriage of justice as defined by section 668E(1) of the Criminal Code.

The court had to determine the appropriate test to apply in assessing whether the fresh evidence would have led a reasonable jury to acquit Main. The primary consideration was whether the new evidence suggested a significant possibility or a likelihood of Main’s acquittal. The court examined the nature of the fresh evidence and its impact on the identification evidence, assessing whether it was plausible that a reasonable jury, properly directed, would not have convicted Main if they had been aware of the fresh evidence at the time of trial.

In its reasoning, the court held that the fresh evidence did indeed cast significant doubt on the reliability of the identification evidence. The court found that the new evidence of Main wearing sunglasses significantly undermined the identification process, suggesting that the witnesses may not have accurately perceived Main's features. The court concluded that there was a significant possibility that a reasonable jury would not have convicted Main had they been aware of the fresh evidence. As such, the court found that the conditions for a miscarriage of justice were met under section 668E(1) of the Criminal Code.

The court ordered that the conviction and sentence of Main be quashed, and that Main be released from custody unless retried within 180 days. This decision highlighted the importance of the reliability of identification evidence and the impact of fresh evidence on the outcome of criminal proceedings.

Orders