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 his stockiness.  At the time she did not recognise these features as belonging to anyone she knew.

1. She assisted the police to compile a comfit picture of the intruder.  There were some inconsistencies between the description in the preceding paragraph and the comfit.  In the latter, the hair was not curly and not 2.5 cm long; rather than a couple of days’ growth of facial hair, there was growth approaching a full beard and moustache.  Consistently with the description above, he was described as having blond hair, being 170 cm in height and of solid build.

1. The complainant claimed to have told Detective Senior Constable Karyn Murphy two days after the incident that the appellant was not someone she liked, that he was not very nice, that she did not trust him and that he was capable of committing the offence.  Detective Murphy denied that any such conversation took place.

1. At some stage before the identification four months after the incident, the complainant’s friend Erin Baker suggested to her that the intruder may have been the appellant.

1. On 4 November the complainant saw the appellant in the local Social Security office.  She said that in the intervening period she had had a mental picture of the intruder.  She said –

“And when I saw him standing in Social Security everything matched perfectly ...when he came into my room in the morning he had all uniform length short hair, it was all the same length.  When I saw him at Social Security it was probably about six centimetres, if that, five centimetres long on top.  So reasonably short still on top but he had hair down to just on his collar length on the sides at the back.  So he had grown it back on the back but it wasn’t very much hair though, it was only just enough to cover over the back of your collar.  So it would only have been, you know, two months, three months growth of hair.  And he had no goatee and no mo at all, he was clean shaven.  That was the only difference.”

This seems to have been the first mention of a goatee beard; she had initially described a two day growth and in the comfit something approaching a full beard and moustache.

1. The complainant had met the appellant on three occasions before 18 July 1998, and they lived only about 150 metres apart.  The first meeting had been in April/May 1998 at her friend Erin Baker’s house; it had lasted about 45 minutes.  The second meeting had been about two weeks later, when the complainant had been in the motor vehicle of Erin Baker’s boyfriend, Mark Taylor when he had collected the appellant from his residence and dropped the complainant at a train station.  The third meeting had been about three months after the first at Erin Baker’s house warming party; both had been at the party for about four hours and they had socialised together for about 30 minutes.

1. On July 18 1998 the appellant worked until about 12:30 am as a cleaner at the Transit Centre in Roma Street, Brisbane.  He wore his work uniform, navy blue slacks and a navy blue polo shirt, and a jacket.  He told the police in his record of interview that he went to a night club over the road from the Transit Centre where he stayed until catching the last train home, which left Roma Street at about 1.06 am.  He said he arrived at Goodna at about 1:45 am in an intoxicated state.  He claimed to have been assaulted by a group of Aborigines in the carpark of a hotel near the Goodna railway station.  They allegedly stole money from his wallet.  Then he staggered home on foot, arriving at about 6:00 am.  (Normally it would have taken him about an hour to walk home from the station.)

1. When the appellant arrived home he had approximately $180.00 cash.  According to his de facto wife, he was very drunk.  The money was not in his wallet; rather it fell from his clothing as he undressed.  He told the police that he had hidden it in his clothing (either his socks or his jocks) because it was money for household shopping, and he did not want to spend it.  It seems strange that it was not found and taken by the persons who allegedly assaulted him and took money from his wallet.

1. His de facto wife gave evidence that he carried two keycards (automatic teller transaction cards), one marked Advance Bank and the other marked St George.  A statement on the Advance Bank account showed a withdrawal of $60.00 from an ATM at BP Express Goodna on 18 July 1998 at 1.52 am, and that relating to the St George account showed a withdrawal from Bi-Lo at Redbank Plains on 17 July 1998 of $160.00 and a further withdrawal of $150.00 from an ATM at First Australian Building Society at Redbank Plaza on 18 July 1998.  According to his de facto wife, who also had access to the accounts, the withdrawal of $160.00 was made by the appellant before he went to work, and the withdrawal of $150.00 was for groceries.

1. Counsel for the appellant submitted that the evidence of identification was unclear, equivocal and ambiguous.  Counsel for the respondent submitted that while it was a somewhat unusual identification, there were at least three factors supporting it – consistency in the descriptions of the clothing, that the appellant had the opportunity to commit the offences (the two houses being only 150 metres apart and the unlikely coincidence of the incident occurring at about 5:45 am and his arriving home at 6:00 am having finished work at 12:30 am), and the somewhat unlikely tale he told in the record of interview as to how he spent the intervening five and half hours.

1. Counsel for the appellant submitted further that there was a substantial risk that the complainant had subsequently substituted the image of the appellant for that of the offender.[2] He submitted that after the incident the complainant had formed in her own mind an opinion, not based on any physical identifying features, that the appellant was someone she disliked, someone she did not trust and someone who was capable of committing the offence, and that there was a substantial risk that when she saw the appellant at the Social Security office she displaced the offender’s image in her mind and replaced it with the image of the appellant.  Counsel submitted that the risk was seriously compounded by Erin Baker’s having suggested the appellant to her as a suspect and by the fact that the only identifying features relied on were solid build, short hair and deep set eyes.

   [2]see Alexander v R (1980-81) 145 CLR 395 at 426 per Mason J.

1. The identification evidence does have some unusual features, particularly the facts that the appellant was known to the complainant before the incident and that although she thought of him as a possible suspect after the incident she did not positively identify him until four months later.

1. Standing alone the identification might be regarded as unsafe but it is sufficiently strengthened by the overall circumstantial case against the appellant.  Each particular circumstance might be capable of explanations other than the guilt of the appellant, but in combination we think they are sufficient.[3] They include the conformity between the descriptions of the clothing that the attacker was wearing and that which the appellant was proved to have been wearing; the fact that the two houses were only 150 metres apart and the unlikely coincidence of the incident having occurred at about 5:45 am and of the appellant having arrived home in a dishevelled state at 6:00 am having finished work more than five hours previously; the somewhat dubious account of his having been attacked by Aborigines who stole $20.00 but failed to find other money (said by the appellant to have been “about $180.00”) on his person; the fact that his wife found money “all over the floor” where he had removed his clothes; the fact that $170.00 was stolen from the complainant; and the fact that a person who may be inferred to have been the attacker who had left the complainant’s flat after the attack was seen by a morning walker at about 6:00 am to run off in the direction that would lead to the appellant’s flat.  The trial judge gave the jury appropriate directions on identification evidence, and the evidence as a whole was, we think, sufficient to convict the appellant.  That evidence stands uncontradicted by any evidence from him.

   [3]see R v Beble [1979] Qd R 278 at 283.

1. The inconsistencies in the complainant’s descriptions of the intruder may be put down to her own intoxication and her distress.  The risk of displacement was not so great as to make the jury’s verdict unreasonable.

1. In all the circumstances it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.

1. We would dismiss the appeal.