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

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…

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 Ottaway

Details

AGLC: R v Ottaway [1992] QCA 156
Case: [1992] QCA 156
Decision Date: 19/06/1992

CaseChat Overview and Summary

The case of R v Ottaway before the Queensland Court of Appeal involved the appellant, John Raymond Ottaway, who was appealing his conviction and sentence. The appellant had been convicted in the District Court at Southport on five counts related to stealing and false pretences. The appeal was based on the argument that the trial judge had misdirected the jury on the reliability of the identification evidence and failed to warn the jury adequately about the weaknesses in that evidence. The Crown argued that the other evidence, particularly the fingerprint evidence, was compelling enough to convict the appellant independently of the identification evidence.

The legal issues before the Court were whether the trial judge had misdirected the jury regarding the reliability of the identification evidence, and whether there was a reasonable doubt raised by the fingerprint evidence. Additionally, the Court had to determine if a new trial was appropriate given that the appellant had already served his sentence.

The Court found that the trial judge's directions to the jury were defective as they did not adequately highlight the weaknesses in the identification evidence provided by Scallan and Curtis. The Court concluded that the identification evidence was hesitant and had significant weaknesses that should have been brought to the jury's attention. The Court also found that the fingerprint evidence, while strong, was not compelling enough to ensure that the jury would have convicted the appellant independently of the identification evidence. Consequently, the Court set aside the conviction and ordered a new trial.

The Court of Appeal allowed the appeal, quashed the conviction, set aside the sentence, and ordered a new trial. The decision left the decision to proceed with the new trial to the discretion of the prosecutor.

Orders