R v Chatters

[1995] QCA 68

IN THE COURT OF APPEAL	[1995] QCA 068
SUPREME COURT OF QUEENSLAND

C.A. No. 428 of 1994.

Brisbane

[R v. Chatters]

T H E Q U E E N

v.

MICHAEL JOSEPH CHATTERS

(Appellant)

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Fitzgerald P.
Pincus J.A.
McPherson J.A.

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Judgment delivered 15/03/1995

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED
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CATCHWORDS:CRIMINAL LAW - conviction - rape - identification evidence - dock identification, television, photographic - other circumstantial evidence - discretion to admit evidence of blood stains - whether unsatisfactory verdict.

Hamood (1987) 46 S.A.S.R. 340.

Grbic v. Pitkethly (1992) 38 F.C.R. 95

Counsel:Mr B W Farr for the appellant.
Mr R Martin for the respondent.

Solicitors:Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing date:30 November 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15/03/1995

The appellant was convicted of rape, after a trial in the District Court, and has appealed on a number of grounds, only two of which were pressed. First, it was said on the appellant's behalf that evidence of a dock identification by the complainant should not have been admitted. Secondly, counsel argued that the judge should, apparently as a matter of discretion, have declined to allow the Crown to adduce evidence that a certain blood stain was found on the appellant's underpants; the blood was found on analysis to be of a composition consistent with the complainant's blood and that of only a small proportion of the general population.

The Crown case was that on the night of the rape the complainant went to a Rockhampton nightclub where she was approached by the appellant; she gave a description of him. Then the complainant left that nightclub and walked to another; the appellant spoke to her while she was walking between the two. At the second nightclub the appellant spoke to the complainant again; she left a little later and, to put it briefly, she was attacked by the appellant and savagely raped. She was taken to hospital and spent a week there.

After the complainant had been in hospital for "a couple of days" she saw the evening news on a television set; the appellant was depicted being taken out of a police station after having been located in Mackay. The complainant gave evidence that she knew the person depicted as the one who had attacked her. At the trial the complainant identified the man in the dock, the appellant, as the rapist and it was argued that this should not have been allowed.

Apart from the identification of the appellant in the manner mentioned - i.e. the observation on the television and in the dock - it emerged that the complainant had been shown photographs of the appellant and had confirmed that he was the rapist. The basic identification was that on the television screen and the subsequent identifications of him in photographs and in court could not been regarded as having added much strength to the Crown case on the question of identification, which was the only live issue. Counsel for the appellant could hardly have submitted, and did not submit, that the initial identification on the television screen which came out in cross-examination by the appellant's counsel was inadmissible. It was said that the judge should not have permitted a dock identification, and that evidence of the identification on the television screen and by photographs, both adduced in cross-examination, would probably not have been adduced but for the admission of a dock identification.

The Crown could no doubt have introduced the subject of identification by proving that the complainant had identified the appellant as the rapist on the television screen, but that omission did not mislead the defence; it is plain from the cross- examination that the identification on the television screen was discussed at the committal.

The question of dock identifications was usefully discussed in Hamood (1987) 46 S.A.S.R. 340 and in Grbic v. Pitkethly (1992) 38 F.C.R. 95. See also Savage (Court of Appeal, 8 March 1994, unreported). Those authorities discuss the propriety, in appropriate circumstances, of permitting an attempt at dock identification. The danger of such an identification, if it is the only or the only substantial basis on which the jury is asked to conclude that the accused is the offender, is evident enough. But it is unnecessary in the present case to attempt exhaustively to define the circumstances in which dock identification should be allowed. The fact is that the complainant made a series of identifications of the appellant, the initial and critical one being that from the television screen. It is not in issue that the Crown could have proved the television identification and it must follow that confirming the identity of the appellant, observed on the television screen and later in the dock, as the offender was a proper course.

It is necessary to add that, apart from the identification which has been mentioned, a number of other circumstances pointed towards the appellant as the offender. This is not a case in which the dock identification or the television identification stood alone. Blood was found on a pair of underpants which the appellant had with him when interviewed by the police and that proved to be in part consistent with the appellant's own blood and in part consistent with the complainant's blood, or with that of 4.1% of the general population. The appellant had denied that the stains were blood, untruthfully. Further, there was flight; three days after the end of the committal proceedings the appellant decamped and the excuse he gave for doing so appears to have been false. Then there were injuries to the appellant's hand consistent with his having attacked the complainant in the way she alleged. One may add a series of coincidences. The rapist told the complainant that he was a tourist and that accorded with what the appellant told the police. The appellant admitted having been, on the night of the rape, to one of the nightclubs at which the rapist had accosted the complainant. Then there was evidence from the complainant that the attacker tried to drag her into a particular hostel where the appellant admittedly stayed.

Lastly, the description which the complainant gave to the police of the person who had attacked her matched that of the appellant reasonably well in some respects.

The first point, the complaint about dock identification, fails. The contention was, as to the second point, that the evidence with respect to security of a sample of blood taken from the complainant was so unsatisfactory that the jury should not have been permitted to hear that blood matching that of the complainant was found on the appellant's underpants. There was evidence from the police that an envelope containing a blood sample was placed in a certain refrigerator and was given to a forensic scientist, one Harman, out of the refrigerator at a time when, according to Harman's observation, there was evidence of interference with the flap of the envelope. Further, one of the police officers, between the time when the sample of the complainant's blood was placed in the refrigerator and its removal by Harman, looked and could not see the sample in the refrigerator.

These deficiencies in the Crown case were discussed in the judge's summing-up and no complaint is made about his Honour's directions. The argument is to the effect that the evidence did not sufficiently exclude the possibility that some blood was removed from the sample in the refrigerator and put on the appellant's underpants in order to incriminate him. One would hardly deduce that or indeed suspect it from the fact that one of the police officers was unable to find the sample in the refrigerator during the period mentioned above; but the unexplained state of the flap on the envelope is an odd circumstance which might have been, and no doubt was, relied on below to persuade the jury to discount the evidence about the matching blood.

The discrepancies we have mentioned were explicable on bases other than that there was an attempt to fabricate evidence against the appellant. That a particular piece of evidence does not point unequivocally to guilt or indeed does not point with certainty to any inference adverse to the accused does not necessarily mean that it must be excluded. Assuming that the judge had, in the circumstances, a discretion to exclude it on the ground that admission would be unfair, it seems plain that such a discretion would have been correctly exercised by letting the evidence in.

In the result, both the points argued fail. In the notice of appeal and also in the outline it was put forward that the verdict was unsafe, but that was not raised in oral argument. Strong inferences could be drawn against the appellant from the Crown case which, being contradicted as they were, formed a sound foundation for the verdict. The appeal must be dismissed.