Carr v The Queen [1988] HCA 47

High Court of Australia Wilson, Brennan, Deane, Dawson and Gaudron JJ. Carr v The Queen [1988] HCA 47

ORDER Application for extension of time in which to apply for special leave to appeal granted. Application for special leave to appeal granted. Appeal allowed. Order that the judgment of the Court of Criminal Appeal of Tasmania be set aside and, in lieu thereof, order—

(1) leave to appeal to the Court of Criminal Appeal be granted;

(2) the appeal to that Court be allowed;

(3) the appellant's conviction and sentence be quashed; and

(4) there be a new trial.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 27 Wilson and Dawson JJ.

The applicant was convicted by a jury upon a charge of robbery with violence, an offence constituted by s. 240 of the Criminal Code Tas. ("the Code"). The Crown case was that, at about 12.40 p.m. on 4 February 1987, the offender entered the premises of a finance company in George Street, Launceston and, after threatening violence to the young woman in charge of the office, stole about $3,220. He was armed with a revolver. After the robbery, he left the premises by the front door and entered a taxi that was standing in a nearby rank. He was driven a short distance through the city before being dropped in the vicinity of a park. He was seen running through the park in the direction of a public toilet. A few minutes later the clothes he was seen to be wearing as he ran through the park were found in the toilet. He was nowhere to be seen.

A rough description of the offender was given by the woman who was robbed, the taxi driver who drove him around the city block, another taxi driver whose car was waiting on the rank and two schoolboys who were in the park. The description given by these witnesses was summarized succinctly by Neasey J. in the Court of Criminal Appeal of Tasmania as follows: "The accounts overall were such as to be not inconsistent with the person described being the [applicant], but they could have been descriptions of any number of persons of similar build and age." Nor was there any later identification of the applicant as the offender. The victim of the robbery was shown a number of photographs, which included one of the applicant, but she was unable to make any identification. One of the taxi drivers attended the Court of Petty Sessions on the morning following the robbery and, on having a solicitor indicate the applicant, said that he had never seen him before. An identification parade was offered to the applicant but he declined to take part "until I see my lawyer".