R v Ottaway

[1992] QCA 156

IN THE COURT OF APPEAL [1992] QCA 156

SUPREME COURT OF QUEENSLAND C.A. No. 80 of 1992

T H E Q U E E N

v.

JOHN RAYMOND OTTAWAY

(Appellant)

MINUTE OF ORDER:Appeal allowed. Conviction quashed. Sentence

below set aside. New trial ordered.

CATCHWORDS:APPEAL AND NEW TRIAL - MISDIRECTION AND NON-DIRECTION - appellant convicted for stealing/false pretences on fingerprint and identification evidence - whether jury misdirected as to reliability of identification - whether reasonable doubt arose from fingerprint evidence - whether new trial appropriate as sentence already served

CRIMINAL LAW - DIRECTIONS TO JURY - appellant convicted for mis- using credit cards on fingerprint and identification evidence - whether in view of explanation of presence of fingerprints judge should have warned jury re reliance on identification from limited photo assembly - conviction quashed/new trial

EVIDENCE - IDENTIFICATION - appellant convicted following identification by witnesses from photo gallery - identificiation hesitant but firmed by assurance of appellant's opportunity to commit offences - jury not warned re variations in identification - whether jury warned re danger of reliance

Counsel:W. McMillan for the Appellant

J. Costanzo for the Respondent

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

Hearing Date/s:5 June 1992

REASONS FOR JUDGMENT OF COURT

Delivered the 19th day of June 1992

The appellant, who appeals against his conviction and applies

for leave to appeal against sentence, was convicted in the

District Court at Southport on 5 March 1992 on two counts of

stealing and three counts of false pretences. He was sentenced to two years' imprisonment with a recommendation that he be

considered for parole after serving three months of that sentence. We were told during the hearing that he has already been released from jail.

The appellant was a bank officer employed by the National

Australia Bank Limited and was, at the relevant time, working at

the Biggera Waters branch of that Bank. The Crown case, based

on circumstantial evidence, was that at some time between mid- March and the end of April 1991 the appellant stole a Bankcard

and a Mastercard, each the property of the Bank, and on 19 and 20 April 1991 used those cards for the purpose of defrauding

three retailers and obtaining goods by falsely pretending he was

the person identified on each card. The appellant was one of 16

people employed at the above branch who had access to credit

cards kept there prior to collection by customers. The main evidence against him consisted of visual identification by two persons, Scallan and Curtis, each of whom served in a shop in

which one of the stolen credit cards had been used, and identification of the appellant's fingerprints on credit card

vouchers.
The fingerprint evidence was strong circumstantial evidence.

However, the appellant, who gave evidence at his trial, swore

that on 2 July 1991, when he was present at the Runaway Bay

police station sitting facing a desk, he noticed some credit

card vouchers under some other papers on that desk and he slid them down to have a look at them. However, he said that, in

effect, he was unable to look at them properly without being detected and so he slid them back underneath the other papers.

He did not identify the credit card vouchers as the ones in

question in this case. His evidence on this question was

contradicted by that of Senior Constable Parker, who was seated at his desk in a different part of the same room at the relevant time. Mr Parker said that at all times while the appellant was

at the police station the relevant credit card vouchers were
securely locked in the drawer in his desk.

The jury clearly did not accept as a reasonable possibility that the appellant's fingerprints had been placed on the credit card

vouchers whilst he was at the police station on 2 July. However, the appellant's case on appeal is that they may have

had a reasonable doubt on this point had they not been

influenced to the extent that they were by the identification

evidence and that the failure of the trial judge to instruct the jury adequately on the weaknesses in that evidence contributed

to that influence.

Grounds 1 and 2 of the notice of appeal allege a failure on the part of the trial judge properly to exclude the identification evidence of Scallan and Curtis respectively. Although pursued in the written outline of argument, these grounds were abandoned

by the appellant's counsel in his oral argument before us

because, as he said, they were subsumed in the argument with

respect to the trial judge's directions. We therefore turn to the direction which his Honour gave in respect of the

identification evidence.

There were undoubted weaknesses in the identification evidence

by each of Scallan and Curtis. Scallan gave a general

description of the offender which resembled the appellant; male,

6'2", big chap with light blonde hair, wearing a shirt which

resembled a National Bank staff shirt, looked like a surfer, well built, blonde hair dark skin, more blonde than brown. These were various descriptions which he gave of the offender in

his evidence. They were given after he had, in a manner which

we will describe below, identified the appellant as the offender from five passport size photographs shown to him by an officer

of the Bank.

The date on which Scallan was asked to look at these photographs

with a view to identifying the offender was not given in evidence but it was clearly before the appellant's arrest. The five photographs were of five male employees at the relevant

branch of the Bank. They had been assembled by an officer of

the Bank. Scallan had no difficulty in eliminating three of

those immediately. He had some difficulty then in choosing between two photographs, one of the appellant and the other of a

Mr Jason Ross. He finally chose the appellant. However, he was

afterwards informed by the Bank officer that, of the appellant and Ross, only the appellant could have had access to the area of the Bank where the cards were kept and this, he said, made him think that he had identified the right person. There was no

evidence that what the Bank officer told Scallan was correct.

Scallan's uncertainty in identifying the appellant rather than

Ross and the strengthening of his belief that his identification

of the appellant was correct by the assurance of the Bank officer that of the appellant and Ross only the appellant could have had access to the cards were serious weaknesses in his

evidence which should have been drawn to the attention of the

jury: Domican v. The Queen (1992) 66 A.L.J.R. 285 at 288.

His Honour specifically mentioned to the jury Scallan's doubt in identification of the appellant from the five photographs and

some delay by him before selecting the appellant out of the last two photographs, the other being Ross. However, he did so in

the context of referring to the argument of counsel for the

appellant. He did not, as he should have, given them "the benefit of a direction which has the authority of the judge's office behind it": Domican at 288. And he did not mention at all the effect which the statement by the Bank officer, that of the appellant and Ross only the appellant would have had access

to the cards, had in strengthening Scallan's confidence that he

had correctly identified the offender.
His Honour was asked for a redirection on both of these
questions; that he should mention the effect which the Bank

officer's statement to Scallan must have had and that there was no evidence of its correctness; and that he should express, as concerns of his rather than merely as submissions by the defence, the weaknesses in the identification evidence. His

Honour refused to redirect in either respect.

Mr Curtis, when interviewed by the Bank officer, Buhmann, told

him that the offender had straight dark hair. He also

identified the offender's car, to which he had carried some

items purchased, as a white Toyota Corolla sedan. This was on

10 or 11 May 1991. When he came to give evidence in the

committal proceedings in September, he apparently said that the car was a faded rusty yellowish colour. At the trial in the following March he was unable to recall the make or colour of

the vehicle. More importantly, his identification of the

offender's hair had changed from dark and straight to fair coloured and curly. The appellant's hair was fair (or at least "sandy") and curly. The trial judge, in the course of outlining the defence submission, told the jury of the defence suggestion that the description which Curtis gave in court differed from

his description to the Bank officer. But he did not specify the

respect in which it differed and he did not do so other than in the context of outlining the defence submissions. He was asked

for a redirection in both of these respects and refused. We

should add, though it does not alter the view which we have formed, that Curtis identified the appellant from a photo board

prepared by the police which contained 12 photographs.

His Honour's directions to the jury were therefore defective as to the weaknesses in the identification evidence of both Scallan

and Curtis. In reliance on the other evidence, in particular the fingerprint evidence, counsel for the Crown sought to invoke

the proviso to s. 668E of the Criminal Code that,

notwithstanding the misdirections, no substantial miscarriage of justice has occurred. In order to succeed in that argument the

Crown must show that the other evidence is "so compelling that a

court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence": Domican at 289. We do not think that the Crown can discharge that burden. Though, as we have said, the other

evidence makes a very strong case against the appellant, we would not be prepared to say that the jury must inevitably have convicted him independently of the identification evidence of Scallan and Curtis. It may be that the degree of their

satisfaction on the fingerprint evidence was caused by their acceptance of the identification by Scallan or Curtis which was, in turn, contributed to by one or more of the misdirections.

The verdict therefore must be set aside.

It was submitted by counsel for the appellant that, in the event

that we set aside the verdict, we should not order a new trial.

The reasons advanced were the fact that the appellant had served the sentence imposed and made restitution and the length of time which will elapse before he is tried again. On the other hand, as we have already said, there is a strong Crown case, apart from the identification evidence, based on the fingerprint evidence. In the circumstances, we can see no

option but to order a new trial. Whether the Crown proceeds
further is a matter within the prosecutor's discretion.