R v Smillie

[1995] QCA 402

[1995] QCA 402

COURT OF APPEAL

DAVIES JA
AMBROSE JA
HELMAN J

CA No 199 of 1995

THE QUEEN

v

SMILLIE, Kerry John  Appellant

BRISBANE

DATE 28/07/95

JUDGMENT

DAVIES JA:  The appellant was convicted in the District Court in Brisbane of armed robbery on 19 May this year.  He was sentenced to seven years' imprisonment.  The Crown case rested solely on the identification of the appellant, the identification being given by a man aged 30 who was a console operator at a garage at Kingston, on Easter Monday 1993 when that garage was robbed, and the identification evidence of that person consisted of a description of the offender, the adoption of a sketch which had been drawn based on his description and identification of the appellant from a photo board which he looked at some seven months after the relevant events.

The events occurred late at night, or in the early hours as it turned out, of Easter Monday.  The complainant was working in the office of the garage on that morning.  A male person entered that office, or service area, which the complainant said was well lit, and he had a conversation with the complainant about spark plus for a Barina and for a Gemini motor vehicle.  After that conversation, during which they appeared to be facing one another, the complainant turned around to go behind the counter.  He was then grabbed by the assailant by the arm.  A knife was produced and a robbery proceeded.

There was, as Mrs Richards who appeared for the appellant before us said, limited opportunity for the complainant to observe the assailant, although, as I have said, it was in good light.  The assailant was there, in all, for about 10 minutes and the complainant said he had a decent view of the offender.  He described him as white, Australian male, about 5'10 with light brown hair, a mouth which sort of drooped down, a couple of chipped teeth, and he was about 40 years of age.  At least in substantial part that described the appellant, although it would be fair to say that that would also describe many other people.

The complainant saw the offender full face for only short periods over that 10 minutes but during that time he said he got, as I said, a decent look at the offender and a more detailed description of that would indicate that that was so.  I do not think it is necessary to go through in detail, the description of events that occurred on that night.

The photo board and the sketch, which were exhibits in the trial, indicate, in my view, a fairly close similarity between the sketch drawn, based on the complainant's description and the person identified by the complainant as number 5 on the photo board who, as it turned out, was and is the appellant.

There was some argument before us about the way in which the complainant described the appellant in the course of identifying him on the photo board.  Both the complainant and the police officer - who was in his presence at the time - described the identification as instantaneous, or almost instantaneous, so much so that the police officer invited the complainant to look at the board again very carefully and to be absolutely sure.  It was after he had looked at the board again very carefully that the complainant said about photograph number 5, "That photograph is the closest that can come with that is the offender."

It was submitted that that indicated some doubt about the complainant's identification.  I do not think it did, particularly in view of the very quick identification, almost immediately, after he was shown the photoboard of the person, number 5 on that board.  Some other matters were put forward by Mrs Richards on behalf of the appellant to indicate that the identification was sufficiently doubtful as to make the verdict unsafe.

He initially described the offender as having a harelip or something wrong with his lips.  It was submitted that that was not so, although the photograph of the appellant which we have, indicates that his lips do not appear to be perfectly straight across.  There was also mention of the fact that he described his assailant as having a chipped tooth at the front whereas, in fact, he apparently had lost some of his front teeth.  It was also mentioned, as I think I have said, that the identification was some seven months after the relevant events.

I should also add that, as opposed to that the jury, of course, had the opportunity of determining whether, in fact, the detailed description given by the complainant of the appellant and the photograph which emerged from that detailed description, bore a close resemblance to the appellant.  I should also add that the appellant neither gave nor called evidence in this case.

Having regard to all those circumstances I do not think this is a case in which the verdict was unsafe or unsatisfactory and I would, therefore, dismiss the appeal.

AMBROSE J:  I agree.  Reference to the sketch made by a police officer shortly after the offence containing details then given by the appellant indicates a very minor irregularity on one corner of his mouth.  And when one compares that sketch with what was shown in photograph number 5 it seems to me that that was a feature that indicated that the assailant of the complainant, in fact, had a noticeable minor lack of symmetry in the mouth region and it seems to me that those are matters which the jury almost certainly took into account when assessing the reliability of the evidence of the complainant.  I agree that the appeal should be dismissed.

HELMAN J:  I agree with the reasons given by the learned presiding Judge and by Mr Justice Ambrose.  I agree with the order that they propose.

DAVIES JA:  The appeal is therefore dismissed.