The Queen v Main[1997] QCA 52

COURT OF APPEAL

MACROSSAN CJ

DERRINGTON J

BYRNE J

CA No 569 of 1996

THE QUEEN

v.

MADONNA CAROL MAIN Appellant

BRISBANE

DATE 06/03/97

JUDGMENT

THE CHIEF JUSTICE:   In this matter there is an appeal against conviction for armed robbery and the significant question argued on the appeal was the adequacy of the identification evidence.  The appellant had been charged with two counts of robbery, one allegedly occurring on 15 November 1995.   On that count the appellant was acquitted.  A second count was of a robbery perpetrated on 2 December 1995.

Items stolen included bottles of methadone.  The two premises where the robberies occurred were chemist shops.  On the first occasion three bottles of methadone were stolen.  The jury were persuaded of the appellant's guilt on the second count. From the second shop further bottles of methadone were stolen.

The reason why some special mention is made of this fact is that when the appellant's premises were searched by police after the second robbery bottles of methadone were found hidden in the bed-head of the bed shared by the appellant and another person where they were residing.

The point was made that the bottles which were found could have come from the first robbery and not the second.  This submission was able to be made because the labels were in a damaged condition.  That point, however, while undoubtedly true does not mean that the discovery of the methadone bottles in the bed-head on the search to which I have referred was deprived of all significance.  It was a matter which would quite properly have been taken into account by the jury amongst the background facts available for their consideration.

Another matter, a special matter, which I shall mention at this point is that the witness, a Mr McDowell, whose chemist shop was robbed on the occasion of December where the jury convicted, referred to the robber, a female, as wearing pants described as stirrup pants.  This involved a reference to pants which were to be secured or kept down at the bottom in the ankle area by straps which passed around or under the feet.

When the appellant's premises were searched a pair of pants of this description perhaps as part of a trouser suit were discovered there.  This again is a further matter of some significance and the jury could properly have taken it into account in convicting.  It is not of course by itself a matter of overwhelming significance and it is fair to say that the discovery of the methadone bottles at the appellant's premises was also not a matter of overwhelming significance although it remained a matter of significance.

The appellant gave evidence at her trial and denied involvement in both robberies and denied knowledge of the situation of the methadone bottles in her bedhead.  By implication it would appear that she was claiming they had been put there or must have been put there by the person who shared her house.  The principal matter was the adequacy of the identification by the chemist McDowell and a deal of attention was devoted in cross-examination of Mr McDowell to the identification he claimed to have made.

We have had our attention directed to his evidence and I have to say that it reads like strong identification evidence and not evidence which contains any obvious deficiency.  The person who robbed Mr McDowell's shop he identified as one who had been previously a customer of his as a buyer of methadone at some point years before.  It was indeed the fact that the appellant had been a customer of Mr McDowell and had been a daily or virtually a daily recipient of methadone over a period of about a month some years previously.

On the evening of the robbery Mr McDowell said he was in his shop and he saw a person outside whom he recognised as having been a customer of his from years before, as a buyer of methadone from him.  A little time after he made this observation a woman entered the shop.  She was wearing a hat which partly obscured her features and in the robbery which she then carried out she demanded methadone and cash.  Her demands were made and supported or backed by a threat of a knife which she held in one hand holding it towards McDowell.  She was also in possession of a shopping bag which was described as being something that seemed to resemble, as one reads the record, a plastic shopping bag of a common enough kind.   Mr McDowell had this female robber in his shop for some period because he went at first to a safe where he was not able to satisfy the robber's demands and then to another location within his shop.  At one point notwithstanding the presence of the hat he got what was obviously a good view of the woman's face because he said amongst other things that he noticed her eyes and they were a particularly telling feature.  The result of what I have described so far is that Mr McDowell said he recognised the woman robber as the one he had seen some short time before outside his shop and who had been as he knew a customer from some years previously.  When he had first seen her outside the shop on the evening in question he could not exactly remember her name and the way he described his processes of recognition seemed to suggest that had he remembered her name exactly he would have said hello and greeted her by name but he was unable to do that and accordingly did not speak to her.  However, from an early point he had a recollection that she had a name which began with "M".  After the robbery had occurred he looked through his customer register and on what he had available or to the extent he went back at that time he did not find the appellant's name or another name which would have conformed with his recollection of the customer whom he had served years previously. 

He was shown a photo board and no complaint is made about the fair nature of the photo board as compiled by the police.  On seeing this photo board in the police presence Mr McDowell was able to pick out the person readily whom he said was the robber.  At all stages he was confident of this.  The person whose photo he picked out was the appellant.  He was stimulated by the circumstances of recognition of the photo board or by some other factors that occurred about that time into going and further examining earlier registers.  Eventually he discovered the name of the person whom he was claiming firmly to identify as Madonna Main the appellant.

The shop the robber entered was well lit at the time.  The robber was in the shop for a significant period while the methadone was being collected and the money found in response to the robber's demands.  The facts that the victim of the robbery firmly remembered the intruder and the person who had been outside his shop as one of his customers from a previous time are particularly strengthening aspects of the identification process which Mr McDowell described in the course of quite lengthy cross-examination.  A perusal of Mr McDowell's evidence does not lead to any impression that there was a weakness in his identification which should have caused the jury to have doubts.  No deficiency in the summing up of the Judge is pointed to and one is left with the impression that this is a case where the jury having been fully and adequately warned of the dangers of over hasty acceptance of purported identification evidence had available to them a strong case to support a conviction.  It cannot be said that the jury was unreasonable in coming to the conclusion it did indeed, as I say, it was a strong case open for their acceptance and they accepted it beyond reasonable doubt.

In my opinion the appeal lacks substance and it should be dismissed accordingly.

DERRINGTON J:  I agree.  If all the tests of identification evidence are properly taken into account as a means of avoiding the manifest dangers of identification evidence, the result in this case is that the evidence is strong.  Although there were diminishing features that the jury properly had to take into account, they were not such as to raise any doubt at all as to the reliability of the verdict.  Some of the criticisms of the identification evidence were artificial and should not be accepted.  In addition there was some corroborative facts, not themselves probative of the guilt of the appellant beyond reasonable doubt but clearly capable of providing corroboration, and together quite strong corroboration.  I agree with the reasons given by the learned Chief Justice and the result which he proposes.

BYRNE J:  I agree with the Chief Justice.

THE CHIEF JUSTICE:  The appeal is dismissed.