R v Parrington

[1995] QCA 58

IN THE COURT OF APPEAL [1995] QCA 058

SUPREME COURT OF QUEENSLAND	C.A. No. 527 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. White J.
[R. v. Parrington]

T H E Q U E E N

v.

DAVID WALTER PARRINGTON (Appellant)

FITZGERALD P.
DAVIES J.A.

WHITE J.

Judgment delivered 08/03/1995

REASONS FOR JUDGMENT - THE COURT

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - burglary - indecent assault - issue of identification of the appellant - whether the trial judge gave proper directions to the jury
Counsel:	A. Rafter for the Appellant M. Byrne Q.C. for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions

Date/s of Hearing:27 February 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 08/03/1995

The appellant has appealed against his conviction in the

District Court at Townsville on 16 November 1994 of offences of

burglary and aggravated indecent assault. The only issue

relates to the identification of the appellant as the offender,

and the manner in which that issue was presented to the jury.

The complainant had resided with one Plumstead at a caravan park

for about eight days before the night on which she was

assaulted. During that time, she had noticed the appellant, who was also a resident of the caravan park, on a number of occasions; her evidence was that she had seen the appellant "a fair few" times.

On the night in question, Plumstead went to bed first and, after

watching television, the complainant went to bed a little less than two hours later. One of the appellant's complaints related

to differences in statements made by the complainant at various

times concerning whether the television in the caravan remained

on after both she and Plumstead were in bed and, if so, whether it was still on when she was indecently assaulted. In her

evidence, she agreed that her initial statement, made within five days of the incident, would be correct. According to that

statement, she left the television on when she went to bed but it had been turned off when she woke up at 1.45 a.m. in the

course of being assaulted.
The only significance of the latter circumstance is in relation
to the adequacy of the light in the caravan when the complainant

woke up and saw the man who was assaulting her. Her evidence was that the whole caravan was lit up, and that there was light from outside the caravan - "There's light along the road and

also at the office, which is only a caravan up from ours." The complainant described what was being done to her and what she saw. She recognised the man who was assaulting her as the appellant, and noted his goatee beard and long dark hair and that he was wearing a pair of light blue Stubbie shorts but no

shirt or singlet. She grabbed him and asked him what he was doing and, after some further incidents, he commenced to leave

and she pushed him out the door. She could then see him, in

clear lighting, as he went past the windows of her caravan.

Both the complainant and Plumstead gave evidence that he was

awoken by the complainant, and Plumstead saw a person with "long hair and a beard of some description running past" his caravan.

The complainant saw the appellant run towards the rear of the
caravan park, and then saw him walking back past her caravan

towards the office. Plumstead saw a man walk from the back of

the caravan park to the front, past his caravan. Plumstead went

out and asked the man to come to Plumstead's caravan. Plumstead recognised the appellant. As the appellant stood in the annexe of Plumstead's caravan, the complainant said, "Yes, that's him."

The appellant was wearing the same pair of light blue Stubbie shorts and a dark singlet. He said, "I think you've got the wrong person." The appellant then waited until the police arrived. When he was interviewed later that night, he denied the offences and explained his presence near the scene by saying

that he had been to the toilet. Some support for that view was

given by his girlfriend, but of course the jury was entitled to

reject that evidence.

Plainly, there was ample evidence of identification of the

appellant to sustain a conviction. The trial judge drew the attention of the jury to such weaknesses as existed in the identification evidence, including reference to whether the

television was on or off, and, apart from a request for a re-

direction in relation to the latter point, there was no request

for re-directions at the trial. The direction which the trial

judge gave the jury in relation to the television reminded the

jury of the appellant's trial counsel's submissions and

continued:
"It is a matter for you, members of the jury, but so far as

this is concerned you might well ask yourselves this, does it really matter whether the television was on or not or whether she can now remember whether it was on or not? What really matters you may think is this, what was the quality of the lighting that existed in that van and I have reminded you of the evidence about that. However, that is a matter for you."

In our opinion, that was a satisfactory direction, and no other

complaint about the directions was made in this Court.

The appeal should be dismissed.