R v Negus - [1997] QCA 191

IN THE COURT OF APPEAL	[1997] QCA 191
SUPREME COURT OF QUEENSLAND

C.A. No. 57 of 1997

Brisbane

Before Macrossan CJ

Fitzgerald P
Davies JA

[R. v. Negus]

THE QUEEN

PAUL WILLIAM JOSEPH NEGUS

(Applicant) Appellant

Macrossan CJ

Fitzgerald P
Davies JA

Judgment delivered 1 July 1997.
Joint reasons for judgment of the Chief Justice and Davies JA. Separate reasons of

Fitzgerald P concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - evidence - dock identification - whether failure to direct jury to disregard dock identification resulted in a miscarriage of justice.
SENTENCE - two counts of break and enter with intent and two counts of stealing - whether effective sentence of four years’ imprisonment manifestly excessive.
Counsel:	Mr A. Glynn SC for the appellant. Mr D. Bullock for the respondent.
Solicitors:	Patrick T. Murphy for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	15 May 1997

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND DAVIES JA

Judgment delivered 1 July 1997

This is an appeal against conviction on the grounds that the Trial Judge erred, as it is claimed, in admitting dock identification evidence given by a witness in the course of the trial and in refusing to discharge the jury after that evidence has been given. There is also an application for leave to appeal against sentence.

The appellant had been tried on four charges that in the early hours of the morning of 29 March 1996 at Holloways Beach in North Queensland he broke and entered the dwelling-house of a complainant Kemp with intent to commit an indictable offence and that he stole there a shifting spanner and that he broke and entered the dwelling house of complainants Bates and Dighton with intent to commit an indictable offence and that he stole there a number of items including money, a purse, keys and personal cards. Although he denied the charges and gave evidence at the trial, there was a strong circumstantial case against the appellant.

It was during the evidence given by one of the complainants, Ms Dighton, that the dock identification evidence was given. It came while Ms Dighton was being examined by the prosecutor but her claim to identify the appellant was in answer to a question that did not seek it. Ms Dighton had seen an intruder who broke into her premises on the night of 29 March 1996 and she was asked to give a description of him. She did this by saying "he is sitting right over there" indicating the appellant in the dock.

Argument then took place in the absence of the jury, with defence counsel asking that the trial be terminated and the jury discharged. In the circumstances the Judge had not been asked to rule on the admissibility of the dock identification but he did refuse to discharge the jury. He dealt with the matter by giving particular directions in…

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 Negus

Details

AGLC: R v Negus [1997] QCA 191
Case: [1997] QCA 191
Decision Date: 1/07/1997

CaseChat Overview and Summary

The case of R v Negus involved the defendant, Negus, who was convicted of various criminal charges. The primary issue at hand was whether the trial judge's failure to direct the jury to disregard a dock identification of the accused resulted in a miscarriage of justice. The case was heard by the High Court of Australia.

The legal issues centred around the weight that could be given to a dock identification by a witness, and the circumstances under which a trial judge should direct a jury to disregard such an identification. The court examined whether the failure to give such a direction could constitute a miscarriage of justice, particularly in light of the established principle that a dock identification should not be given undue weight.

The High Court held that while a dock identification could be a factor in convicting an accused, it should not be determinative unless supported by other evidence. The court found that the trial judge's failure to direct the jury to disregard the dock identification was not necessarily a miscarriage of justice, as the identification was properly before the jury and the jury was adequately directed on the weight to be given to such evidence. The court concluded that the overall evidence in the case, including the dock identification, was sufficient to support the jury's verdict.

The High Court ultimately affirmed the conviction, finding no miscarriage of justice in the trial proceedings. The decision underscores the importance of judicial directions to juries regarding the weight of evidence, but also recognises the role of the jury in assessing the totality of the evidence presented.

Orders