R v Sharkey

[2013] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:	R v Sharkey [2013] QCA 259
PARTIES:	R v SHARKEY, David John
(appellant)
FILE NO/S:	CA No 74 of 2013 DC No 282 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING  COURT:	District Court at Beenleigh
DELIVERED ON:	13 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2013
JUDGES:	Margaret McMurdo P and Holmes and Gotterson JJA Separate reasons for judgment of each member of the Court, Holmes and Gotterson JJA concurring as to the orders made, Margaret McMurdo P dissenting in part
ORDERS:	1.  The appeal is allowed.
2. The conviction is quashed. 3. A re-trial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of robbery with personal violence – where the complainant
described his attacker as having tattoos of geckos on either
side of his neck – where an affidavit tendered as fresh
evidence showed that the appellant's tattoos in fact consisted of a name written in ornate script and a skull and cross bones
– where defence counsel at trial deposed that she had not
elicited or led evidence about what the appellant‟s tattoos
actually were because the tattoos would have been visible to
the jury – where defence counsel in her closing address informed the jury that the appellant‟s tattoos were not geckos – where the trial judge instructed the jury to disregard the
purported statement of fact and reminded them that there was
an absence of evidence regarding the nature of the appellant‟s
tattoos – whether defence counsel‟s failure to establish that
the attacker's tattoos as described by the complainant were different from the appellant's or to seek a direction that the
jury were entitled to have regard to what they could see of the
appellant's tattoos deprived the appellant of a real chance of
acquittal – whether a miscarriage of justice occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of robbery with personal violence – where the
complainant, having previously given a description of his attacker, identified a photograph of the appellant on
a photoboard as depicting the man who had attacked him –
where none of the other images on the photoboard were of persons whose description met that given by the complainant
– where defence counsel raised no issue as to the adequacy of
the composition of the photoboard, and where the trial judge
did not warn the jury regarding its inadequacies – whether
there was any forensic reason for defence counsel not to raise
the issue – whether the trial judge erred in failing to give
a warning
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE –
where the appellant was convicted…