Kelleher v The Queen [1974] HCA 48

High Court of Australia Barwick C.J. McTiernan, Gibbs, Mason and Jacobs JJ. Kelleher v The Queen [1974] HCA 48

ORDER Application for special leave to appeal refused.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 6 Barwick C.J.

On 31st October 1973 the applicant for special leave was found guilty of having raped one Leslie Watson (the prosecutrix) on 13th November 1971 and on the same date of having assaulted and robbed her of a gold finger ring. He was also convicted of having stolen on the same date a television set the property of Linda Tomkins. I need not go into the sordid circumstances of the occasion out of which the charges arose. It suffices to say that there was no dispute at the trial that the prosecutrix had been raped on the occasion in question by a number of members of a bikie gang called the "Galloping Gooses". It was conceded that the applicant was a member of this gang and that he was present on the occasion when the flat, in which the prosecutrix was raped, was raided by this gang. The applicant was identified by the prosecutrix as the man who had raped her when she saw him at the Central Court of Petty Sessions, Sydney, on an occasion when he was charged with the rape of another girl on the same date, a charge which in the event was dismissed by the magistrate. The prosecutrix saw and identified the applicant outside the court room before the court proceedings began, though she did not communicate her identification, which included the theft of the ring, to the police till later in the morning. After the police had been so informed, the applicant was charged with the offences of which he was later convicted. There were criticisms made of the circumstances in which the identification took place, it being said that the identification was the result, whether conscious or unconscious, of promptings or suggestions then made by other persons present at the time the prosecutrix saw and identified the applicant.