R v Wells - [2008] QCA 173

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wells [2008] QCA 173

PARTIES:

R
v
WELLS, Damian Roy
(appellant)

FILE NO/S:

CA No 283 of 2007
DC No 440 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

27 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2008

JUDGES:

Muir and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of one count of breaking and entering at night with intent to commit an indictable offence in a dwelling and two counts of armed robbery in company using personal violence – where a shirt used as a makeshift balaclava was left behind at the house – where the only DNA obtained from the balaclava matched the appellant’s DNA – where the DNA evidence showed that at an undeterminable time, the appellant came into contact with the balaclava – whether the primary judge erred in admitting the DNA evidence as its prejudicial effect outweighed its probative value

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where general descriptions of the intruder by three witnesses was admitted – where the build, hair colour and hair line of the accused may have changed in the 20 months between the date of the incident and the time of trial – whether the identification evidence was inherently unreliable and lacked evidentiary value – whether the primary judge erred in admitting the identification evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the primary judge pointed out that no-one had identified the appellant – where the physical descriptions given by the witnesses played a subsidiary role to the identification of the appellant – where the critical identification evidence was the DNA evidence – whether the primary judge failed to adequately direct the jury in relation to the use of the identification evidence as stated in Domican v The Queen (1991) 173 CLR 555

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where samples were taken from two areas of the makeshift balaclava – where DNA was obtained from areas reasonably considered to be the areas most likely to contain DNA of the user – where the only DNA obtained from the balaclava matched the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wells

Details

AGLC: R v Wells [2008] QCA 173
Case: [2008] QCA 173
Decision Date: 27 June 2008

CaseChat Overview and Summary

The appellant appealed against his conviction and sentence for one count of breaking and entering at night with intent to commit an indictable offence in a dwelling and two counts of armed robbery in company using personal violence. The only DNA obtained from a shirt used as a makeshift balaclava left behind at the house matched the appellant's DNA. The appeal against conviction and sentence was heard by the Court of Appeal. The legal issues before the court included whether the primary judge erred in admitting the DNA evidence, whether the identification evidence was inherently unreliable, whether the primary judge adequately directed the jury in relation to the use of identification evidence, and whether the sentence imposed was manifestly excessive.

The court considered the appeal against conviction, first examining the admission of the DNA evidence. The court found that the DNA evidence, while showing contact with the balaclava at an undeterminable time, had significant probative value and its prejudicial effect did not outweigh this value. The court also dismissed the argument that the identification evidence was inherently unreliable, finding that the physical descriptions provided by the witnesses, although not definitive, were reliable enough to be considered by the jury. The court further found no error in the primary judge's direction to the jury regarding the identification evidence. Finally, the court considered the appeal against sentence and concluded that the sentence imposed was not manifestly excessive, taking into account the appellant's criminal history and the nature of the offences.

The Court of Appeal dismissed the appeal against conviction, finding no errors in the primary judge's handling of the evidence. The court also dismissed the application for leave to appeal against sentence, holding that the sentence was not manifestly excessive. The final orders of the court were to dismiss the appeal against conviction and the application for leave to appeal against sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Wells [2008] QCA 173
PARTIES:	R v WELLS, Damian Roy (appellant)
FILE NO/S:	CA No 283 of 2007 DC No 440 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	27 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	17 June 2008
JUDGES:	Muir and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of one count of breaking and entering at night with intent to commit an indictable offence in a dwelling and two counts of armed robbery in company using personal violence – where a shirt used as a makeshift balaclava was left behind at the house – where the only DNA obtained from the balaclava matched the appellant’s DNA – where the DNA evidence showed that at an undeterminable time, the appellant came into contact with the balaclava – whether the primary judge erred in admitting the DNA evidence as its prejudicial effect outweighed its probative value CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where general descriptions of the intruder by three witnesses was admitted – where the build, hair colour and hair line of the accused may have changed in the 20 months between the date of the incident and the time of trial – whether the identification evidence was inherently unreliable and lacked evidentiary value – whether the primary judge erred in admitting the identification evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the primary judge pointed out that no-one had identified the appellant – where the physical descriptions given by the witnesses played a subsidiary role to the identification of the appellant – where the critical identification evidence was the DNA evidence – whether the primary judge failed to adequately direct the jury in relation to the use of the identification evidence as stated in Domican v The Queen (1991) 173 CLR 555 CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where samples were taken from two areas of the makeshift balaclava – where DNA was obtained from areas reasonably considered to be the areas most likely to contain DNA of the user – where the only DNA obtained from the balaclava matched the…