The Queen v Redshaw[1997] QCA 483

PINCUS JA:  Mr Justice de Jersey will deliver the first judgment.

de JERSEY J:  The appellant was convicted of armed robbery in company. The Crown case was that he committed the offence with one Portugalla. On 10 July 1996 they entered a news and convenience store at Gympie. The appellant was carrying a pistol. He demanded money and the lone attendant, Mrs Pye, handed over a collection of $50, $20, $10 and $5 notes together with two and $1 coins.

After a period, which she estimated to be up to three to four minutes, the two offenders left. Mrs Pye saw them enter a white Falcon station wagon. She noted its registration number. About three-quarters of an hour later a police officer located that particular vehicle at premises then occupied by the appellant, Portugaller, and Portugaller's mother. In a laundry cupboard near to the door of the appellant's room the police located a plastic packet containing the sum of $103.25.

Mrs Pye described the offender with the pistol, to whom she was quite close over an appreciable period, as being five feet six inches tall, about 20 years of age with a dark complexion. He was of slight build with dark hair. Her impression was that he may have had something over his head. She described the other offender as also about 20 years old, of similar height and having fair, blonde coloured shoulder length hair.

Mrs Shutte saw the two offenders rush out of the shop, followed by Mrs Pye. One, she said, was of Aboriginal appearance, slightly built, 18 or 19 years old and about five feet eight inches tall. The other had long, light brown hair, about the same height and build. She saw them enter the Falcon vehicle and drive off. Nine weeks later Mrs Pye identified the appellant as the offender carrying the pistol by reference to a police photoboard. In fact at the time the appellant had a distinctive dreadlock hairstyle.

The first two grounds of appeal contend that the learned trial Judge erred in failing to exclude the evidence of the photoboard identification. The defence had submitted that the evidence was so weak and unreliable it should be excluded. The Judge, nevertheless, considered it worthy of the jury's consideration and delivered the appropriate warnings.

Although there was delay between the offence and the identification by the photoboard it is significant that Mrs Pye did observe the appellant over an appreciable period, she said up to three to four minutes and at quite close quarters. This was not evidence of little weight but nevertheless gravely prejudicial in terms of Alexander 1981 145 Commonwealth Law Reports 395 at 402. It was open to the trial Judge to receive the evidence. See the Queen against Murphy 1996 2 Queensland Reports 523 at 524 and Gordon, Court of Appeal 520 of 1995.

Importantly there was here other evidence implicating the  appellant and that presumably and properly increased the Judge's reluctance to exclude the identification evidence solely because of its suggested deficiency in quality. That other evidence was the discovery of the appellant and Portugaller less than an hour later at a property where the vehicle was also present, there being money located there in relevant denominations and the appellant and Portugalla having appearances generally, though not precisely, similar to the descriptions given by both Mrs Pye and Mrs Shutte.

It was separately submitted that the photo selection was unfair because the appellant stood out because of his hairstyle, contrary to Brookes, Court of Appeal 317 of 1991. The trial Judge did not consider that the photo selection was unfair and having viewed the board myself I consider that his view of the matter was open. A number of those on the board have long, untidy hairstyles which His Honour noted.

The third ground of appeal is that the Judge should have discharged the jury when they indicated that they had taken two votes and were deadlocked. The jury retired at 12.10 p.m. on 7 August 1997. It was 3.11 p.m. that day that they gave that indication. The trial had begun on 6 August. At 3.11 p.m. on 7 August the Judge directed the jury to retire again to see whether they could reach a verdict. He then gave further direction as to their process, which is not challenged.

The jury returned with a verdict at 4.49 p.m. It was plainly open to the Judge to require more than three hours consideration by the jury notwithstanding its indication and this exercise of discretion is not vulnerable.

The other ground of appeal is that the verdict is unsafe and unsatisfactory. This ground depends on suggested inadequacies in the identification evidence, limitations on the other evidence implicating the appellant and two other incidental circumstances to which I will immediately refer.

At the beginning of the trial a person on the jury panel not selected as a member of the jury made a comment in the back of the Court directed to a newspaper reporter in these terms:

"I don't know why they are proceeding with the trial because Portugalla only got a slap on the wrist and this fellow won't get any more."

It seems that neither the Judge nor counsel heard it but it was drawn to the Judge's attention and he later drew counsels' attention to the remark. The Judge said that he doubted that the jury would have heard it. Counsel did not seek the discharge of the jury. Counsel for the appellant has suggested now a risk that a juror may have heard and been influenced by the comment. Needless to say the Judge gave the usual direction about confining deliberation to the evidence.

It would, in my opinion, be wrong now to see any potential significance in this suggestion about which we should defer to the view of the Judge especially in light of the attitude of counsel at the trial. The second of what I have termed incidental matters relates to an observation made by the jury when returning the verdict. In a note to the Judge the jury said:

"The jury, while able to reach a verdict, were disappointed with the photoboard of police evidence for the following reasons:-

1. Delay in identification in using the photoboard.
2. No clothing tendered in evidence.
3. Police were confused as to the amount of money."

It was submitted for the appellant that the jury thereby indicated uneasiness about their verdict. But to draw that inference would run counter to the terms of their note in which they said that they were able to reach a verdict. What followed was a registration of dissatisfaction with the diligence of the police investigation.

Accordingly, on close analysis, neither of these incidental matters has significance. To say that they could have, with hindsight is, in my view, unjustified. Speculating about possibilities which lack factual foundation cannot lend weight to other deficiencies relied on for an unsafe and unsatisfactory ground of appeal.

I come now to those other deficiencies. They concern the identification evidence and the lack of other substantial evidence linking the appellant to the offence. As to the identification evidence, counsel for the appellant has taken us to differences between Mrs Pye's description in her evidence in chief and then under cross-examination, in the context of the appellant's established appearance. In the end it would seem that she misjudged his height by about five inches and had him three to five years older than he was. Further, she failed to notice his dreadlock hairstyle but there may be an explanation for that in her impression, although not clear recollection, that his hair may have been covered. These were essentially jury considerations and I am not satisfied that any discrepancies were so clearly significant as to give real cause for now questioning the safety of the verdict.

As to the photoboard identification the nine weeks delay between the offence and the identification was regrettable but that did not render the identification so unreliable that its consideration by the jury renders the guilty verdict unsafe.

An important consideration supporting this, as I mentioned earlier, is the other evidence implicating the appellant, that is, his being located with Portugalla at a property with the relevant vehicle within an hour of the offence, their appearances being generally similar to those of the offenders as described by Mrs Pye and Mrs Shutte.

The appellant refers also to suggested limitations on other evidence implicating him. He refers to the fact that the police did not find any firearm at the house or money in the amount, some $400 to $500, claimed by Mrs Pye to have been taken although there was other evidence bearing upon the reliability of that claim; the circumstance that the police did not take possession of clothing; and mention by the principal investigating officer of seeing one other person at the house property close to the car. Those circumstances were obviously relevant to the jury's consideration. The do not however, in my view, warrant this Court now regarding the verdict as unsafe. They were ultimately matters of detail. One might balance them with matters of detail tending the other way, for example, Mrs Portugalla gave evidence that she used the car until mid-morning. Some time after that she heard the car leaving the property. When the police later came only she, the appellant, and her son were there subject to the reference, rather vague, to another person in proximity to the vehicle, yet when questioned at the house the appellant told the police officer: "I don't know what you are talking about. We have been here all day."

Having reviewed the evidence and considered the particular aspect of challenge mounted by the appellant I would conclude that it was open to the jury, acting reasonably, to be satisfied, beyond reasonable doubt, of the guilt of the appellant and that this ground of appeal has therefore not been established. In my opinion the appeal against conviction should fail.

There is an application for leave to appeal against sentence. The Judge sentenced the applicant to 12 months imprisonment to be served by way of an intensive correction order under section 111 of the Penalties and Sentences Act.

Portugalla was apparently give similar treatment. When he committed the offence this applicant was aged 17 years. He had accumulated five breaches of bail and a conviction for behaving in a disorderly manner and obstructing police for which he was fined $200. Counsel submitted that because of his youth and limited record a community based order would have been appropriate. I agree. But so in my opinion was this order, which I note significantly involved the service of the term "through an intensive correction regime."  In short this sort of penalty did, in my opinion, fall within range. It was a serious offence involving the use of a weapon and a degree of planning and the Judge was entitled to conclude that notwithstanding the appellant's young age and very limited record he required more supervision than a probation order or other community service type order would entail.

I would dismiss the appeal against conviction and for those reasons refuse the application for leave to appeal against sentence.

PINCUS JA:  I agree with the orders proposed by Mr Justice de Jersey and His Honour's reasons. As to the conviction, I would add that despite the comprehensive and accurate argument advanced by Mrs McGinness it seems to me clear that the identification evidence to which objection was taken was properly admitted and that the verdict was a safe one.

With respect to the sentence, I would add only that although called, in the Penalties and Sentences Act, a sentence of imprisonment, section 113(1) makes it clear that the sentence imposed does not in fact involve going to prison; therefore, the suggestion that the applicant did not deserve a prison sentence is, in a sense, irrelevant because he did not get one, in reality. As I have said, I agree with the orders proposed.

MUIR J:  I agree with the orders proposed and with the reasons given by Justices Pincus and de Jersey.

PINCUS JA:  The orders will be as I have indicated.