Pitkin v The Queen [1995] HCA 30

High Court of Australia Deane, Toohey and McHugh JJ Pitkin v The Queen [1995] HCA 30

ORDER Appeal allowed

Cur adv vult

28 June 1995 Deane, Toohey and McHugh JJ

THE COURT. The appellant, Mr Kirk Pitkin, was convicted in the District Court of New South Wales of one count of stealing and of another count of allowing himself to be carried in a motor vehicle without the consent of the owner. An appeal to the New South Wales Court of Criminal Appeal (Hunt CJ at Common Law, Smart and Levine JJ) on the ground that the convictions were unsafe and unsatisfactory was unanimously dismissed. At the request of both parties, the present appeal, which is from the judgment of the Court of Criminal Appeal, was heard immediately after the grant of special leave. The appeal was allowed, the order of the Court of Criminal Appeal dismissing the appeal to that Court was set aside and in lieu thereof it was ordered that the appeal to that Court be allowed and the appellant's convictions be quashed. The Court indicated that it would subsequently publish its reasons for making those orders. This we now do.

The background facts fall into a small compass and can be briefly stated. At approximately 1.30 pm on 17 December 1990, Ms Diane Clarke was in a supermarket known as "Jewels Foodbarn" in the Sydney suburb of Rooty Hill. She was holding a shoulder bag under her arm and pushing a shopping trolley. A male stranger gave her a "forceful shove" and "reefed" her handbag from her. The man ran from the shop and got into a red Holden Commodore which was driven away. The Holden Commodore had been stolen from a Mr Povey earlier in the day. The Crown case is that the person who stole Ms Clarke's handbag and was driven off in the stolen vehicle was the appellant.

Ms Clarke did not see the offender's face. To quote her, she "[j]ust saw the back of him running away". The only description she could give of the offender was that he had "short hair", was of "slight build" and wore "a T-shirt and a pair of football shorts". She said that she "estimated from his build" that he was "probably around about his twenties" but added that she "couldn't honestly say how old he was" since she "didn't see his face".