R v Goodman - [2016] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

R v Goodman [2016] QCA 56

PARTIES:

R
v
GOODMAN, Kym Edwin
(applicant)

FILE NO/S:

CA No 233 of 2015
DC No 265 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 25 August 2015

DELIVERED ON:

Order delivered ex tempore on 25 February 2016
Further order and reasons delivered on 11 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2016

JUDGES:

Margaret McMurdo P and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore 25 February 2016:

Leave to appeal against sentence refused.

Delivered 11 March 2016:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of sexual assault – where identification evidence was given at trial – where the identification evidence included the evidence of the complainant confirming that the image of the appellant seen from the CCTV footage was the offender and her identification of the appellant from a photoboard – where the respondent submitted that it was open to the jury to accept beyond reasonable doubt the identification evidence given by the complainant – whether the verdict was unreasonable or unsupported by the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, applied
R v Agius[2015] QCA 277, applied
R v RAU[2015] QCA 217, applied
R v SCH[2015] QCA 38, applied
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

The appellant/applicant appeared on his own behalf
G P Cash QC for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Philippides JA’s reasons for dismissing this appeal against conviction.
As the trial judge warned the jury, the complainant’s photoboard identification of the appellant as the man who assaulted her needed to be scrutinised with great care. That was because, prior to the photoboard identification, Mr Herd showed her a still image of a man taken from the Rockhampton IGA CCTV footage, recorded at about 8.20 am on the day of the assault. It followed that there was a danger that she was identifying from the photoboard not the man who assaulted her but the man in the still image.
Many matters, however, supported her identification. The complainant saw the offender in broad daylight, on a number of occasions that morning, and made the identification shortly after the assault. The photoboard contained photographs of 12 men of broadly similar age and appearance to the appellant.[1] The complainant consistently reported…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Goodman

Details

AGLC: R v Goodman [2016] QCA 56
Case: [2016] QCA 56
Decision Date: 11 March 2016

CaseChat Overview and Summary

The case of R v Goodman involved the appellant, Goodman, who was convicted of one count of sexual assault. Goodman appealed against his conviction on the ground that the verdict was “totally unreasonable and unfounded”. The only issue pursued on the hearing of the appeal concerned points 1 to 3 which related to identification evidence and whether the jury should have had a reasonable doubt that the offence had been committed by Goodman. The appeal raised the question of whether the verdict was unreasonable or unsupported by the evidence.

The court considered the evidence provided by the complainant and her housemate, as well as the CCTV footage from the IGA store. The complainant's identification of Goodman as the perpetrator was based on her observations of him in the car park and during the subsequent events. The court found that the complainant's identification evidence, including her confirmation that the image of Goodman seen from the CCTV footage was the offender and her identification of Goodman from a photoboard, was reliable and consistent with other evidence presented. The court also noted that the jury was specifically warned about the potential influence of the complainant viewing the CCTV footage before her photoboard identification. Despite the appellant's arguments regarding inconsistencies in the evidence and the lack of investigation into another vehicle, the court concluded that the jury were entitled to reach the conclusion that Goodman was the person who sexually assaulted the complainant.

The appeal was dismissed, and the conviction upheld. The court found that the identification evidence, along with other supporting evidence, was sufficient for the jury to be satisfied beyond reasonable doubt that Goodman was the perpetrator. The court also rejected the appellant's argument that his son's vehicle, a Pantechnicon van, could not be the truck seen in the CCTV footage, as there was no evidence to suggest that the van part of the vehicle could not be removed or that the son's truck was substantially different from the truck in the footage. The court's decision was based on the assessment of the evidence and the reliability of the complainant's identification of Goodman as the offender.

Orders

Orders of the court

Delivered ex tempore 25 February 2016:

Leave to appeal against sentence refused.

Delivered 11 March 2016:

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals against his conviction on the ground that the verdict was “totally unreasonable and unfounded”. While four points were raised in a document entitled “Grounds for Appeal”, the only issue pursued on the hearing of the appeal concerned points 1 to 3 which related to identification evidence and whether the jury should have had a reasonable doubt that the offence had been committed by the appellant.The evidence The complainant’s evidence was that at approximately 8.30 am on 21 November 2013, she drove to an IGA store in Dean Street in Rockhampton. She parked in the centre parking near a white tray back truck. The complainant got out of her car and saw a man looking at things in the back of the truck. He said, “hey, how are you going”. The complainant replied “yeah, good”. He was about a metre or two away. The complainant walked over to a coffee shop. The man “was just waving – like, looking at [her] as [she] walked over”. The complainant ordered a coffee at the shop and then walked over to IGA to buy the paper. She noticed the man was watching her. After she left IGA, she saw that the man was still watching her. She went back to get her coffee from the shop. As she was getting her coffee, she saw the man driving out of the car park in the white truck. He waved at her again. The complainant described the driver of the white truck as wearing a blue shirt, black sunglasses and, she thought, no shoes. He was short, a little stocky, with a pinkish face and short blonde grey hair. The complainant drove out of the car park into Dean Street to go home and noticed the truck was following behind her. She said: “… I noticed him behind me, driving behind me. And I thought that was strange because he sort of came from nowhere. And then I was driving and I got back over onto the right-hand lane and he came up beside me and waved at me again. And then he came behind me and followed me all the way to my house.” The journey from IGA to the complainant’s home took about three minutes. The complainant parked at the top of her driveway. She saw the white truck parked at the bottom of her driveway, blocking the driveway. She saw the same man from the car park get out of the car. At that time, the complainant’s housemate, Mr Chardon, came out of the house. Both the complainant and Mr Chardon gave evidence of seeing the driver of the white truck walking around the outside of the truck before re-entering the truck and driving off. Mr Chardon described the driver as 45 to 50 years old, about 5’10” in height, well fed and bald. Several minutes later, the complainant left her house again, to pick up her sister. Near her home, she saw the white truck with the same man from the IGA again. The driver was out of the truck on the road. The complainant’s evidence was that:“… he, like, waved me down. So I had – I stopped because I thought that I must have known him from somewhere. Like, I thought he must have known my daughter’s father. And I only wound the window down half because I felt a bit funny about it. And then he put his arms on the window and said geez, you’ve got nice tits.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The arguments advanced by the appellant are as follows:(a)the complainant was shown a still image of a person captured at the IGA store by CCTV in the IGA manager’s office, by the manager and without police present, which tainted her subsequent photoboard identification of the appellant;(b)the appellant’s appearance is inconsistent with the complainant’s initial description of the perpetrator;(c)Mr Chardon was unable to identify the appellant from the photoboard, despite having allegedly seen him from seven metres away, for approximately three minutes;(d)the police did not investigate the car with registration number 556 SQT;(e)that the man in the IGA car park was wearing a blue shirt and that the arrivals and departures of the vehicles at the store was such that the appellant could not have been the assailant; and(f)the appellant could not have been the perpetrator as his DNA was excluded from that found on the singlet top and his fingerprints were not present on the complainant’s car.Consideration The jury’s verdict indicated that they were satisfied beyond reasonable doubt that the appellant was the driver of the white truck of which the complainant gave evidence and that he was the person who sexually assaulted her. The respondent submitted that it was open to the jury to accept beyond reasonable doubt the identification evidence given by the complainant. I entirely agree with that submission. Having heard the submissions of the appellant, who appeared on his own behalf on the appeal, and having reviewed the evidence, including the CCTV footage, which was compelling, I am satisfied that the jury were clearly entitled to reach the conclusion that the appellant was the person who was the driver of the white truck and who sexually assaulted the complainant. The identification evidence included the evidence of the complainant confirming that the image of the appellant seen from the CCTV footage was the offender and her identification of the appellant from a photoboard. It would have been preferable if the complainant’s photoboard identification had preceded her viewing of the CCTV footage. The jury was, however, specifically warned when assessing the value of the identification evidence of the danger that the complainant was influenced in her choice of “offender” by having seen the image from the IGA store CCTV on the day of the offence. Moreover, the reliability of complainant’s identification of the appellant was supported by the consistent general description evidence given by her housemate, Mr Chardon. Furthermore, there was a consistency between the clothing said to be worn by the appellant as depicted in the CCTV footage and that found on the later search of his house. In addition, there was the circumstance of the association of the appellant’s son to a Ford Trader truck of similar appearance to and bearing a registration number consistent with the registration details reported to police by the complainant. It is to be noted that a consciousness of guilt lie was put to the jury. In that regard, when interviewed the appellant told police that in the past two weeks he had only used two different cars. The appellant submitted that his son’s vehicle did not have the appearance of a tray truck, being a Pantechnicon van. But there was no evidence at trial suggesting that the van part of the vehicle could not be removed, nor any evidence that the son’s truck was substantially different from the truck in the CCTV footage. The matter was not the subject of cross-examination at the trial. It was not the basis of any matter raised by defence counsel. However, the video footage depicted a person that the jury were entitled to conclude was the appellant using what is said to be a Ford Trader.

CITATION:	R v Goodman [2016] QCA 56
PARTIES:	R v GOODMAN, Kym Edwin (applicant)
FILE NO/S:	CA No 233 of 2015 DC No 265 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton – Date of Conviction: 25 August 2015
DELIVERED ON:	Order delivered ex tempore on 25 February 2016 Further order and reasons delivered on 11 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2016
JUDGES:	Margaret McMurdo P and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore 25 February 2016: Leave to appeal against sentence refused. Delivered 11 March 2016: Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of sexual assault – where identification evidence was given at trial – where the identification evidence included the evidence of the complainant confirming that the image of the appellant seen from the CCTV footage was the offender and her identification of the appellant from a photoboard – where the respondent submitted that it was open to the jury to accept beyond reasonable doubt the identification evidence given by the complainant – whether the verdict was unreasonable or unsupported by the evidence M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, applied R v Agius[2015] QCA 277, applied R v RAU[2015] QCA 217, applied R v SCH[2015] QCA 38, applied SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied
COUNSEL:	The appellant/applicant appeared on his own behalf G P Cash QC for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent