R v Reiken - [2006] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

R v Reiken [2006] QCA 178

PARTIES:

R
v
REIKEN, Douglas Adsett

(appellant)

FILE NO/S:

CA No 7 of 2006

DC No 152 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2006

JUDGES:

McMurdo P, Jerrard JA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION - where appellant was accused of robbing a liquor store wearing a baseball cap, sunglasses, tracksuit pants and a distinctive green T-shirt and armed with a knife - where robbery was recorded on closed circuit camera and the recording used to make stills and a video which were shown to the jury - where one witness to the robbery was shown photographs on a photo board but was unable to identify a suspect - where a second witness identified the appellant from photos on the photo board - where police subsequently obtained clothing from appellant's house consistent with the distinctive clothes worn by the offender - where trial judge gave jury directions on the unreliability of photo identification and on the weaknesses in this photo identification evidence - where appellant was convicted of armed robbery - whether trial judge erred in admitting the photo board as identification evidence given by second witness - whether trial judge should have exercised judicial discretion to exclude photo identification evidence - whether jury verdict can be supported by the evidence - whether jury verdict was unreasonable and unsafe and unsatisfactory

Alexander v The Queen (1981) 145 CLR 395, applied
Festa v The Queen (2001) 208 CLR 593, applied
M v The Queen (1994) 181 CLR 487, applied

MFA v The Queen (2002) 213 CLR 606; (2002) 77 ALJR 139, applied

Pitkin v R (1995) 130 ALR 35, distinguished

R v Brookes [1992] QCA 103; CA No 317 of 1991, 13 May 1992, followed

COUNSEL:

A W Moynihan for appellant

D R Mackenzie for respondent

SOLICITORS:

Legal Aid (Queensland) for appellant

Director of Public Prosecutions (Queensland) for respondent

McMURDO P: The appellant was convicted on 14 December 2005 of one count of armed robbery. He appeals against his conviction contending that the identification evidence of the witness Michael Strong by means of a photo board was wrongly admitted and that the jury verdict cannot be supported by the evidence and is unreasonable and unsafe and unsatisfactory.

The evidence

The consideration of these grounds of appeal requires a review of the evidence. It is not contentious that on 3 June 2004 Mr Strong was working at a "Grape" liquor store as a store attendant. Mr Anifandis, a wine company representative, was…

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 Reiken

Details

AGLC: R v Reiken [2006] QCA 178
Case: [2006] QCA 178
Decision Date: 26 May 2006

CaseChat Overview and Summary

The appellant was convicted of armed robbery, involving the theft of goods from a liquor store while armed with a knife. The incident was captured on a closed circuit camera, and stills and a video were shown to the jury. The appellant was later identified by a witness from a photo board shown to them. Police found clothing in the appellant's home consistent with that worn during the robbery. The appellant appealed the conviction, arguing that the trial judge erred in admitting the photo board as identification evidence and should have exercised a judicial discretion to exclude it. The appellant also claimed that the jury verdict was unreasonable and unsafe. The court of appeal considered whether the jury would have reached the same verdict had the photo board not been admitted and whether the jury verdict was unreasonable, unsafe, and unsatisfactory. The court found that the trial judge did not err in admitting the photo board as identification evidence, and the jury verdict was not unreasonable, unsafe, or unsatisfactory. The court held that the trial judge had correctly directed the jury on the unreliability of photo identification and the weaknesses in this evidence. The appeal against conviction was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Reiken [2006] QCA 178
PARTIES:	R v REIKEN, Douglas Adsett (appellant)
FILE NO/S:	CA No 7 of 2006 DC No 152 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2006
JUDGES:	McMurdo P, Jerrard JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION - where appellant was accused of robbing a liquor store wearing a baseball cap, sunglasses, tracksuit pants and a distinctive green T-shirt and armed with a knife - where robbery was recorded on closed circuit camera and the recording used to make stills and a video which were shown to the jury - where one witness to the robbery was shown photographs on a photo board but was unable to identify a suspect - where a second witness identified the appellant from photos on the photo board - where police subsequently obtained clothing from appellant's house consistent with the distinctive clothes worn by the offender - where trial judge gave jury directions on the unreliability of photo identification and on the weaknesses in this photo identification evidence - where appellant was convicted of armed robbery - whether trial judge erred in admitting the photo board as identification evidence given by second witness - whether trial judge should have exercised judicial discretion to exclude photo identification evidence - whether jury verdict can be supported by the evidence - whether jury verdict was unreasonable and unsafe and unsatisfactory Alexander v The Queen (1981) 145 CLR 395, applied Festa v The Queen (2001) 208 CLR 593, applied M v The Queen (1994) 181 CLR 487, applied MFA v The Queen (2002) 213 CLR 606; (2002) 77 ALJR 139, applied Pitkin v R (1995) 130 ALR 35, distinguished R v Brookes [1992] QCA 103; CA No 317 of 1991, 13 May 1992, followed
COUNSEL:	A W Moynihan for appellant D R Mackenzie for respondent
SOLICITORS:	Legal Aid (Queensland) for appellant Director of Public Prosecutions (Queensland) for respondent