R v Sharkey

The appellant, Sharkey, was convicted of robbery with personal violence and appealed against his conviction. The complainant had described his attacker as having tattoos of geckos on either side of his neck, however, the appellant’s tattoos were a name written in ornate script and a skull and crossbones. Defence counsel at trial informed the jury that the appellant’s tattoos were not geckos, however, 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. 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. The complainant identified a photograph of the appellant on a photoboard as depicting the man who had attacked him, however, none of the other images on the photoboard were of persons whose description met that given by the complainant. 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.

The court found that 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. The court found that the failure of defence counsel to raise the issue of the photoboard's inadequacy and the trial judge's failure to give a warning amounted to a miscarriage of justice. The court found that the identification evidence was unreliable and the appellant's conviction was unreasonable. The court found that the appellant was not given a real chance of acquittal and that a miscarriage of justice had occurred.

The appeal is allowed. The conviction is quashed and a retrial ordered.