R v Rockwell

[2015] QDC 52

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Rockwell [2015] QDC 52

PARTIES:

THE QUEEN
(respondent/Crown)

v

ROCKWELL, Mark Lawrence
(applicant/defendant)

FILE NO/S:

Indictment no. 199 of 2014

PROCEEDING:

Application pursuant to s 590AA Criminal Code

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

10 March 2015

DELIVERED AT:

Townsville

HEARING DATE:

6 March 2015

JUDGE:

Rafter SC DCJ

ORDER:

Application to exclude the evidence of identification made by the complainant on 1 August 2013 is dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – GENERALLY— where the defendant was identified by the complainant on a police photoboard that depicting him having brown eyes – where the defendant has blue eyes – where the complainant did not identify the complainant by reference to his eye colour -- application to exclude photoboard evidence -- whether the probative value of the photoboard evidence is outweighed by its prejudicial effect

Criminal Code 1899 (Qld), s 590AA

Alexander v The Queen (1981) 145 CLR 395, cited

Driscoll v The Queen (1977) 137 CLR 517, cited

Festa v The Queen (2001) 208 CLR 593, cited

R v Corke (1989) 41 A Crim R 292, cited

R v Currie CA No. 313 of 1990, cited

R v Lambert; ex parte Attorney-General (2000) 111 A Crim R 564; [2000] QCA 141, cited

R v Reiken [2006] QCA 178, cited

R v Rockwell [2014] QCA 321, cited

COUNSEL:

H.A. Walters for the applicant/defendant

A. Lowrie for the respondent/Crown

SOLICITORS:

Arthur Browne and Associates for the applicant/defendant

Director of Public Prosecutions (Qld) for the respondent/Crown

Introduction

1. The defendant is charged with the following offences:

Count 1 – that on a date between 25 February 2013 and 4 July 2013 at Townsville he robbed the complainant, whilst armed with a knife, and in company with another, and that immediately after the robbery he used personal violence;

Count 2 – that on 4 July 2013 he robbed the complainant whilst armed with a knife.

1. The defendant was found guilty of the offences on 20 May 2014.  He appealed against the convictions, and on 5 December 2014 the Court of Appeal allowed the appeal, set aside the convictions, and ordered that there be a new trial.[1]

   [1]R v Rockwell [2014] QCA 321.

1. The complainant identified the defendant as the offender during a videotaped identification procedure that was conducted on 1 August 2013.  The complainant was shown three photoboards which each contained photographs of 12 different adult males.  The complainant selected photograph 10 on the third photoboard as being the offender.  That was a photograph of the defendant. 

1. At the trial the complainant was asked in cross-examination about the fact that she did not provide a description to the police of the colour of the eyes of the offender.  She answered, “His – his – his, like, normal brown eye.”[2]

   [2]Transcript 19 May 2014 at p 16 line 26.

1. The Court of Appeal admitted new evidence which…