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

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…

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 Pearce

Details

AGLC: R v Pearce [1992] QCA 168
Case: [1992] QCA 168
Decision Date: 26/06/1992

CaseChat Overview and Summary

In the case of R v Pearce, the appellant was convicted of deprivation of liberty and armed robbery and appealed against the conviction. The appeal hinged on whether the photo-board shown to the complainant, Marilyn de Zwart, contained a fair selection of photographs for her to identify the appellant. The trial judge had directed the jury on the dangers of acting on identification evidence and the jury accepted the complainant's evidence and rejected the alibi evidence provided on behalf of the appellant. The appellant argued that the photo-board was not a fair selection of photographs, as only one photograph fitted the description given by the complainant.

The Court of Appeal considered the submission and concluded that the photo-board, while not perfect, was not so unsatisfactory as to be characterized as unfair. The deficiencies in the photo-board could be used in cross-examination for the purpose of casting doubt on the identification. The Court found that the careful references to the evidence in the summing-up and the warnings about the dangers of identification evidence left the jury in no doubt about the appellant's guilt. The Court held that the conviction was not unsafe and unsatisfactory in the administration of justice and dismissed the appeal.

The final orders of the Court of Appeal were that the appeal against conviction was dismissed. The appellant remained convicted of deprivation of liberty and armed robbery. The Court's decision highlights the importance of ensuring that any identification process is fair and that any deficiencies in the process can be used to challenge the identification in court. However, the Court also recognised that a fair process does not necessarily mean a perfect process and that a conviction based on identification evidence can still be safe and satisfactory if the process was conducted properly and the evidence was properly considered by the jury.

Orders