R v Thomson

[1992] QCA 196

COURT OF APPEAL  [1992] QCA 196

PINCUS JA
DAVIES JA
DEMACK J

CA NO 60 OF 1992

THE QUEEN

v.

DAVID THOMSON  Applicant

BRISBANE

... DATE 4/6/92

JUDGMENT

PINCUS JA:  This is an appeal against conviction.  The applicant, Mr Thomson, was convicted of three offences, all alleged to have occurred on 3 November 1991.  The first was unlawful use of a motor vehicle; the second, doing grievous bodily harm; and the third, stealing certain property armed with a dangerous weapon in company - stealing with actual violence.

The contention which has been advanced on hearing has been in substance that the verdicts of the jury should not stand because they are unsafe.  Mr Thomson has argued that this Court should set aside the three convictions and enter a verdict of acquittal in each case, on the ground that he was not sufficiently identified by the evidence as the person who committed the offences; that offences were committed, is not, it appears, disputed and it has never been disputed.

In outline, what happened was that the complainant, a foreign visitor, went to a party at Hemmant.  After the party he got in the back of his car, apparently partly because he was tired and partly because he had had a fair bit to drink.  Two men subsequently occupied the front of the car and drove it off, initially not realising, it appears, that the complainant was in the back.  Some conversation ensued between them and ultimately the vehicle was pulled up and Mr Indermau, the complainant, was seriously assaulted using a knife or knives and robbed.  The complainant went to the police.  He gave some description, it appears, of the assailants, and no doubt inquiries were made.  The police approached the appellant and discussed the matter with him.

The principal identification relied upon by the Crown was made by the complainant from a video which this Court has seen.  The video shows a number of guests at the party from which the complainant had come before he was assaulted.  One of the guests undoubtedly was the appellant, who was dressed at the time in what appears to be jeans and a black T-shirt with an advertisement for Bundaberg rum on the front.

At the trial the complainant said he recognised the appellant "for sure" as one of the assailants.  He was not sure of the other man.  He described himself as being - (p 29) - "100 per cent sure" of the driver.  In his evidence, the complainant said that the appellant had not had a very good shave, that his hair was short "like in the army" - black or dark brown, his complexion was light, he had blue jeans and a black T-shirt.  The complainant admitted - and this was relied on by the appellant - that he did not describe the appellant as having a Bundaberg Rum advertisement on the front of his T-shirt.

The appellant complained of the circumstances that the description of the pair given by the complainant was not very accurate. That is, the complainant - if one reads the evidence - gives the impression of shorter hair than it appears the appellant in fact had on the night of the party.

It is necessary to say something about the appellant's clothes.  When the police interviewed the appellant about the matter, he was asked to bring in the clothes he was wearing at the party and he brought clothes in, but not a T-shirt.  The version of events which was given was that the person who had his T-shirt at that stage was somebody in North Queensland.  When the appellant gave evidence at the trial, he said that the T-shirt had been taken by a man who was a friend of the people in the caravan park where he was staying. That man had come down from Cairns for two or three days and he then "took off back to Cairns".  The appellant then said he was not sure whether the man from Cairns had the T‑shirt or whether somebody stole it off the clothesline.

He was asked, "Why would he take you T-shirt though?", and the answer was, "He'd come down in his good clothes".  The appellant assumed, he said, that the man from Cairns had borrowed some of a lady's son's clothes - that is, apparently the lady with whom the man was staying - and the appellant assumed, "He probably would have taken one of my shirts as well".  That evidence was a matter, as it seems to me, which the jury was entitled to take notice of, on this question of identification.

Another factor which they should have noticed, and no doubt did, was that the complainant was a man who wore glasses.  The complainant said that when he was not wearing his glasses, things were not very sharp and it appears to me that the defect in his vision would have made it more difficult for him accurately to identify the assailant.  However, there is evidence which, as it seems to me, shows (if accepted by the jury) that the complainant had his glasses on at one stage during the commission of the offence.

Another factor in favour of the appellant is that the incident happened at night.  However, the evidence of the complainant included statements which, if accepted by the jury, would have satisfied them that he did not have considerable opportunity to observe the assailants.  For example, at p 35, speaking of the incident in which he was assaulted, he was asked this: "You said that he had a black T-shirt on and blue jeans, is that correct, because you were watching this person?  He was within a matter of inches of you, wasn't he?"  The answer was, "How much is an inch, excuse me?"  "I am sorry.  I will say about 5cm of you?"  "So a few 5 cm?"  "Yes.  He was very close to you?"  "Yes".

The complainant also said that at one stage that that person - the man who he subsequently identified as the appellant - pulled his shirt up over his face.  The other person in the front seat of the car, that is, the person whom the complainant claimed to be the appellant's companion was described as being blond.  His name was given during the course of the conversation between the two persons in the front of the car, in a way which is set out in the record at p 24 and there transcribed as "Sean".  At p 65 it appears from the evidence of the appellant that his companion was a man whose name is transcribed as "Shane".  The appellant gave evidence that his friend "Shane with the blond hair was at the party".  It appears to me that, again, that is a matter which the jury were entitled to take into account in determining whether or not the complainant had correctly identified the appellant as one of the people who had attacked him.

Looking at the matter broadly, however, one would be surprised if there was an error.  It would seem to me likely that only by malice or deliberation could the complainant wrongly have identified the appellant as the assailant.  The appellant was, it seems to me, a person who stood out at the party by his size, appearance and dress.  It would seem a little improbable that a mistake would be made, although of course people have been mis‑identified otherwise by mistake.

The appellant admitted to the police that he had attended the party, he admitted he was wearing a black T-shirt and jeans.  He says he went home after the party, to a caravan park.  It should be mentioned that (although the onus was of course at all times on the Crown) there was no evidence to support the appellant's version of what he did after the party.  There was evidence of a police suggestion of a line-up, that came to nothing.  It appears that Mr Thomson, as he was quite entitled to do, ultimately refused a line-up and refused to answer police questions "on tape".  Forensic examination of the clothing produced no results, nor were there any fingerprints of the appellant found in the car. There was some mention in the course of argument today of a ponytail which the appellant had.  It does not appear to me, however, that there is a matter of any great significance.

In the end, although there may have been some points to assist one way or another, the contest was essentially one of word against word.  The jury it appears, believed the complainant who was adamant that his assailant was the appellant.  The appellant equally firmly denied he had nothing to do with the matter.  The appellant has not complained of the summing up.  The Judge's directions (which I have read) relating to identification appears to me to be perfectly adequate and to accord with the views which the high Court has recently expressed in Domican v. The Queen (unreported, 6 May 1992).

The circumstances are such that if the jury had not been convinced by the complainant's story and had acquitted instead of convicting the Crown could hardily have felt aggrieved.  It was entirely a matter for the jury.  It is my opinion that the jury were entitled to convict if they believed the complainant.  It seems to me they were entitled, on the evidence, to take the view that the complainant had ample opportunity to see the appellant at the party and a reasonable opportunity to see him later, if he were the attacker. The Judge described the verdict as a sound one based upon the evidence.  While not professing to be able to say, simply from reading the record, whether that is an accurate description of it, I am of opinion that the verdict could not be described as unsafe.  The only issue being identification, it is my opinion that there was a reasonable evidence of identification which the jury was entitled to accept and I would dismiss the appeal.

DAVIES JA:  I agree.

DEMACK J: I agree.

PINCUS JA:  The order of the court is: appeal dismissed.

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