R v Pearce

[1992] QCA 168

IN THE COURT OF APPEAL [1992] QCA 168

SUPREME COURT OF QUEENSLAND

C.A. No. 49 of 1992

T H E Q U E E N

v.

COLIN WILLIAM PEARCE

Appellant

JUDGMENT OF THE COURT

Delivered the 26th day of June, 1992

Colin William Pearce was found guilty of one charge of

deprivation of liberty and one charge of armed robbery. He

appeals against that conviction.

The Crown case depended upon the evidence of Marilyn de

Zwart who, on 3 May 1990, was the supervisor of the Suncorp

Building Society Agency at Aspley. At about 5 p.m. that day,

as she was closing the office, she was detained by a man,
forced to open the safe and then bound, while the man stole

money. The principle issue at the trial was whether Mrs de Zwart had correctly identified Pearce as the man who robbed

her. The jury plainly accepted her evidence and rejected alibi
evidence given on behalf of the appellant by his wife and his
brother-in-law.

The experienced trial judge, Shanahan D.C.J. gave a very

full direction to the jury about the dangers of acting on
identification evidence. He fully refreshed the minds of the

jury members of Mrs de Zwart's evidence, both in chief and in

cross-examination. He fairly stated defence counsel's
submissions. The only point argued on appeal was that the
collection of photographs shown to Mrs de Zwart on which she
based her identification of the appellant was not, in the

circumstances, a fair selection.

To consider this submission it is necessary to refer to

Mrs de Zwart's evidence which can be summarised as follows:-

At about five to 5 in the afternoon she locked the office

and walked 100 to 200 yards to where her car was parked
outside the 7 Eleven Store. She unlocked the driver's side
door and as she was getting in she saw a person come running

towards her. He told her to move over, saying, "I've got a

gun", while pointing to a plastic bag he was carrying. She

moved over, and he got in the driving seat. She said, "When I first saw him I knew what he wanted because I had seen him the

day before." He started the car, and in the course of a

conversation said, "If you get me the money, I won't take the
car." They went to the agency and she opened the door, then

the safe. He tied her up, and left with money. He left about

5.10 p.m. She said she was extremely upset at the time. She

said she tried to observe things about the man.

That night she gave a description of the man to the

police. On 7 May 1990, she assisted a police officer prepare

a "photo-fit" (ex. 12). On 2 November 1990, police showed her
a photo-board, (ex. 11) with twelve photographs on it. She

identified her attacker as the man depicted in photograph 7,

the appellant. The defence produced two photographs of the

appellant taken at a wedding on 5 May 1990 (ex. 13).

The description given by Mrs de Zwart to the police on

3 May 1990 was:-
"Fairly short, stocky, well built - I described it as a

beer belly; grey - he had very salt and pepper grey
hair. He had black, dark glasses. He had a beard -
a very very neat, closely shaved beard on at the

time." (p. 23)

She described his height as being 5 feet 4 inches

(p. 23). She did not notice any tattoos or markings on the

offender's hands (p. 37). She said he was wearing a long
sleeved shirt down to his wrists.

Evidence given by the appellant's wife and brother-in-law

was that the appellant was 5 feet 8 inches tall. His wife
said he had tattoos on both hands. One of the photographs in
ex. 13 shows the backs of his hands below the cuffs of his
shirt. There are no obvious tattoos. The other photograph
which shows him dancing may show a tattoo, but it is not
conspicuous.

Mrs de Zwart said that the photo-fit reflected her

recollection of the man who held her up. She agreed that the photo-fit showed a person with much thicker hair than the man

in the two photographs in ex. 13. She also agreed that the

beard in the photographs seemed longer than the beard in the

photo-fit. However, there is a likeness between the photo-fit

drawing and the two photographs. The obvious difference is

that the photo-fit shows a man wearing sunglasses, whereas the

photographs show a man without glasses.

The photo-board, which was shown to Mrs de Zwart on

2 November 1990, contained 12 photographs of men without

beards and without sunglasses. The actual exhibit is a copy of the twelve photographs shown to her. The photographs are coloured. She agreed that the lips of the face in the

photo-fit were just slightly fuller than the lips of the face

in photograph 7 of the photo-board. She also agreed that only

two of the men on the photo-board had grey hair (photographs 7

and 9) (p. 42). She agreed that the man depicted in

photograph 9 was "pretty elderly". The following passage in

cross-examination sets out the contentions of Mr Nase, who

appeared for the appellant, and of Mrs de Zwart (p. 43):-

"So you would rule out as a possible suspect each of

those other men because none of them had that
peppery hair, the grey hair that you described apart
from the men in photographs 7 and 9. You do you

(sic) agree with that?-- That's right.

Then if you look at photographs 7 and 9, the man shown in

photograph 9 is obviously far too old to be a

possible suspect?-- Yes.

So, the only possible suspect in the 12 photographs is

the man shown in photograph 7, in other words, given
your description of his age, the fact that he had
grey hair, number 7 is the only man you could have
selected out of those 12 photographs?-- That is

because he was the man.

Try and answer the questions please? Would you agree

with what I have put to you? Shall I ask the

question again?-- He had the face of the man.

No. If you could try - I know you have said that already

but could you try and answer the questions? If you
look at the 12 photographs that you were shown by
the police officers, only two men, that is the man
shown in photographs 7 and 9, had any grey hair.

You agree with that?-- Yes.

And you would agree that the man shown in photograph 9 is

far too old to seriously entertain as a possible

suspect?-- Yes.

So you would therefore agree that the only man that you

could have picked out, given your description of
him, of the age group and his grey hair, is the man
shown in photograph number 7?-- No, I don't agree
with that."
So far as lighting was concerned, Mrs de Zwart said that,

outside, it was just before dusk. Inside, there was a

fluorescent security light burning. She had no difficulty

seeing her robber.

All of these matters were dealt with in the summing up.

Thus, there was evidence before the jury that the witness had seen the suspect the day before, in the morning. She saw

him over a period of up to twenty minutes when the offences

were committed. The lighting was adequate. She tried to
observe his features. She was frightened. She gave a

description to the police that evening. She adhered to that

description in cross-examination, and appears to have been

confident in her identification.

The only evidence, apart from that of Mrs de Zwart, which

in any way tended to prove that the appellant was the robber,

consisted of a piece of yellow cord which was used to bind

Mrs de Zwart. Similar cord was found under the appellant's

house in November 1990. It was the same type of cord,

probably from the same manufacturer.

The only point taken on appeal was whether the

photo-board contained a fair selection of photographs.

Mr Smit, who appeared for the appellant in this Court, rested

his case on the phrase in the judgment of this Court in The

Queen v. David Leslie Brookes (C.A. No. 317 of 1991), judgment

delivered 13 May 1992:-

"What matters is whether the collection of photographs is

fair."

In considering this, the description given on 3 May 1990

and the photo-fit drawing must provide the guidelines. A
collection of photographs is unlikely to be fair if one
photograph and one only, fits the description which has been

given by the witness, at least if the differences exhibited by

the other photographs relate to significant features of the

person described.

None of the photographs on the photo-board is of a

bearded male with sunglasses, Photograph 7, the photograph of

the appellant, shows the stubble of a beard which is more

marked than any other photograph and the grey in the beard is
very distinctive. Further only paragraph 7 shows "salt and

pepper" grey hair, on the other hand, photographs 2, 3, 4, 7,

8, 10, 11 and 12, show similarities in the general shape of

the face.

Not without some hesitation, we have concluded that the

collection of photographs is not so unsatisfactory that it
should be characterized as unfair. The deficiencies which it
possessed were not such as necessarily cast doubt on the

identification but were able to be used in cross-examination

for that purpose. Such an exercise was thoroughly performed.

Nonetheless, in spite of the points which were

effectively made, the careful references to the evidence in

the summing-up to the evidence and the worry about the changes

in identification evidence, the jury was left in no doubt. It

cannot be concluded that, on the evidence, a reasonable jury
must have had a reasonable doubt.

In the circumstances, the conviction is not unsafe and

unsatisfactory in the administration of justice and the appeal
should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 49 of 1992

T H E Q U E E N

v.

COLIN WILLIAM PEARCE

Appellant

The President
Mr Justice McPherson

Mr Justice Demack

Judgment of the Court delivered the 26th day of

June, 1992

Appeal against conviction dismissed

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 49 of 1992

Before the Court of Appeal

The President

Mr Justice McPherson

Mr Justice Demack

T H E Q U E E N

v.

COLIN WILLIAM PEARCE

Appellant

JUDGMENT OF THE COURT

Delivered the 26th day of June, 1992

MINUTE OF ORDER:  Appeal against conviction dismissed

CATCHWORDS:Evidence - Identification - Applicant convicted of

armed robbery and deprivation of liberty -
whether photo-board from which complainant
identified appellant contained fair
selection of photographs - whether one

photograph only fitted description.

Counsel: Mr P. Smid for the Applicant

Mr M. Byrne for the Crown

Solicitors:Messrs. Brendan Ryan and Associates for Appellant

Director of Prosecutions for the Crown

Hearing Date: 3rd June, 1992