R v Graham

[2000] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

R v Graham [2000] QCA 143

PARTIES:

R
v
GRAHAM, David John
(appellant)

FILE NO/S:

CA No 319 of 1999
DC No 2528 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

28 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2000

JUDGES:

McMurdo P, Thomas JA, Wilson J
Judgment of the Court

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR UNSUPPORTABLE VERDICT - identification of appellant by the complainant four months after assault – risk of displacement of offender’s image for that of appellant

Alexander v R (1980-81) 145 CLR 395, considered
Farrell v R (1998) 194 CLR 286, referred to
M v R (1994) 181 CLR 487, referred to
R v Beble [1979] Qd R 278, considered

COUNSEL:

A W Moynihan for the appellant
M J Byrne QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT: The appellant appeals against his conviction by a jury in the District Court at Ipswich of two offences – unlawful assault causing bodily harm whilst armed with a dangerous weapon and breaking and entering a dwelling house in the night time and stealing $170.00.

1. No complaint was made about the trial judge’s summing up, but it was submitted that the verdict was unreasonable.[1] In particular the appellant’s counsel argued that it was not open to the jury to be satisfied beyond reasonable doubt of guilt because of the inadequacies in the identification evidence.  The complainant did not identify the appellant as the perpetrator until almost four months after the incident.

   [1]see Farrell v R (1998) 194 CLR 286 at 295; M v R (1994) 181 CLR 487 at 494.

1. In the early hours of Saturday 18 July 1998 the complainant walked home to her flat having consumed bourbon constantly from about 6.30 pm on the previous evening until 4.00 am.  On arriving home, she undressed and immediately went to bed.  At about 5.45 am she awoke to find someone kneeling next to her bed and leaning over her.  In an incident which lasted 15 minutes he assaulted her and stole $170.00.

1. The complainant was intoxicated when the incident occurred.  Her descriptions of the intruder were not altogether consistent, and despite her acquaintance with the appellant prior to the incident she did not identify him as the intruder until almost four months later.

1. According to the complainant the sun came up during the incident.  Her first description of the intruder was of someone of stocky build with dark, deep set eyes, light coloured curly hair about 2.5 cm long all over, and some facial hair consistent with not having shaved for two days.   He was wearing a dark blue jacket and dark pants.  The features which really stood out were his hair, his eyes, the width of his shoulders and…