R v Raymond

[2007] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v Raymond [2007] QCA 91

PARTIES:

R
v
RAYMOND, Scott Michael
(appellant)

FILE NO/S:

CA No 285 of 2006
DC No 1441 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2007

JUDGES:

Williams and Holmes JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where the appellant was convicted of armed robbery with personal violence and unlawful use of a motor vehicle – where the complainant identified the appellant by his voice – where the complainant’s native tongue was Thai and English was a second language – where the appellant contends that language history could affect identification evidence – where the critical issue in the case was identification – whether verdict unsafe or unsatisfactory – whether the jury were properly directed on identification evidence

Bulejcik v The Queen (1996) 185 CLR 375, cited
Domican v The Queen (1992) 173 CLR 555, cited

COUNSEL:

A Entriken for the appellant
R Pointing for the respondent

SOLICITORS:

Gilmore & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA: The appellant was convicted after a trial of armed robbery with personal violence and unlawful use of a motor vehicle.  On the first charge he was sentenced to six years imprisonment with a parole eligibility date of 21 September 2009, and he was sentenced to three years concurrent for the unlawful use offence.  Initially the notice of appeal relied on the following grounds:

“1.      [The] learned judge erred in fact and in law in his conduct of the matter.

2.         That in all the circumstances, the sentences imposed are manifestly excessive having regard to my prior criminal history, prison history, the circumstances of the events and personal circumstances.”

1. However, counsel abandoned both of those grounds and relied only on the following grounds in challenging the conviction:

“3.      There has been a miscarriage of justice in that the verdict of the jury is against the weight of the evidence, and/or is unsafe and unsatisfactory.

4.       The learned trial judge erred in failing to adequately direct the jury as regards the evidence of identification.”

1. Only four witnesses were called at the trial; all the evidence was concluded in the morning so final addresses to the jury commenced at about 2.30pm on the first day of trial.

1. The complainant was the owner-manager of a restaurant at Toowong.  He had been born in Thailand on 4 December 1961 and he lived there until he was aged about 15.  Though Thai was his native tongue he learnt English as a second language at school.  He then spent…