R v Rowbotham

[1992] QCA 215

IN THE COURT OF APPEAL [1992] QCA 215

SUPREME COURT OF QUEENSLAND Appeal No.98 of 1992

T H E Q U E E N

v.

WILLIAM DAVID ROWBOTHAM

Appellant

JUDGMENT OF THE COURT

Delivered the 20th day of July, 1992

On 2 March 1992, the appellant was convicted in the

District Court at Brisbane of house breaking. He has appealed against his conviction on the grounds that the trial judge erred in his discretion in admitting certain evidence and that the verdict was unsafe and unsatisfactory.

On 8 May 1991, the complainant observed a man on the

opposite side of the street from where she lived cross the
street and walk towards her front door. Shortly afterwards,
she went downstairs and saw the flyscreen being removed from
a window. She went to the back door of her residence and
called out for him to stop. He ran past her laundry and she

gave chase, but lost sight of him in an adjoining street.

The police were called and attended at the complainant's

residence. While travelling there, a police constable saw the
appellant at a house in another near by street, which was in
the opposite direction from the direction in which the
offender was running when pursued by the complainant. The
appellant had an explanation for his presence at the house

where he was seen, which was the residence of his girlfriend.

When the police vehicle stopped, the appellant ran, but

was chased and apprehended. Another man who was present in
the yard of the house also ran. In a subsequent interview,
the appellant denied that he knew the other man and said that
he had run because he believed that there was a warrant
outstanding for him. Although there was no outstanding
warrant, a substantial amount of restitution had been owing by
the appellant since 1987, and a warrant could well have been
in existence.

The only other evidence against the accused was his

appearance and the clothes which he was wearing when
apprehended, which corresponded to the description given by
the complainant of the offender and the clothes which he was

wearing.

In all, the complainant had the offender under

observation before, during and after the offence for perhaps 4
to 5 minutes. After the police arrived at her residence, she
described the offender as "180 centimetres, medium-build,
brown, wavy hair, tanned complexion, greeny-blue T-shirt and
blue jeans."

The appellant, although heavier in appearance at the time

of trial, otherwise met the description and was wearing a T-
shirt and jeans when he was apprehended. At that time, two
photographs were taken of him, showing those clothes.

However, little more than a week later, when the

complainant was shown a collection of photographs including a
photograph of the appellant, she was unable to identify him as
the offender. On the same occasion, she was shown the T-shirt
which he had been wearing when he was apprehended and which
she said was "the same colour" and "identical" to the one

which was worn by the offender.

A little more than five weeks later the complainant was

shown one of the photographs taken of the appellant shortly
after he was apprehended but from which the head of the
subject had been excised. On that occasion she said that the
T-shirt and jeans depicted in the photograph were identical to
those worn by the offender. There was nothing distinctive
about the clothing, which was referred to in the summing up as
"a very common T-shirt and a very common pair of jeans".

As the case was conducted, the complainant's identification of the appellant's T-shirt and her identification of his clothing from the photograph provided an

important link in the identification of the appellant. To have
the complainant identify his clothing, and thus the offender,
in the manner adopted was patently unfair. The complainant
could not identify the appellant from a line-up and, quite
likely, she could not have identified his clothing if she had
been presented with it, or photographs of it, in the context
of similar clothing or photographs of similar clothing. While
the evidence may have been admissible, it ought to have been
excluded and its reception deprived the appellant of a fair
trial. Although there was no application for a redirection,
that conclusion is emphasised by the omission from the
summing-up of any reference to the deficiencies in the
complainant's identification of the appellant's clothing by

reference to the T-shirt and the photograph.

The appeal ought therefore be allowed and the conviction

quashed.

However, a case may be able to be made against the

appellant that he was in the vicinity at the time, of the
offence, he and his clothing matched the offender and his
clothing and he ran from the police. While the appellant gave
an explanation for his flight, a jury is entitled to assess
what he said in the light of his denial of any knowledge of
the other man who also fled when the police approached. In the
circumstances, it ought be left to the Director of
Prosecutions to determine whether or not to proceed with a
retrial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND Appeal No.98 of 1992

T H E Q U E E N

v.

WILLIAM DAVID ROWBOTHAM

Appellant

The President
Mr Justice McPherson

Mr Justice Davies

Judgement of the Court delivered the 20th

day of July, 1992

Appeal allowed. Conviction quashed. New trial ordered

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No.98 of 1992
Before the Court of Appeal

The President

Mr Justice McPherson

Mr Justice Davies

T H E Q U E E N

v.

WILLIAM DAVID ROWBOTHAM

Appellant

JUDGMENT OF THE COURT

Delivered the 20th day of July, 1992

MINUTE OF ORDER: Appeal allowed. Conviction quashed. New trial

ordered

CATCHWORDS:Evidence - Identification - applicant convicted of

house breaking - applicant identified from
clothing only complainant unable to
identify him from line-up - whether
identification patently and deprived

applicant of fair trial.

Counsel:Mr A. Rafter for the Appellant

Mr M. Byrne for the Respondent

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

Hearing Date:20/7/92