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	
[1]	MARGARET McMURDO P:  I agree with Philippides JA’s reasons for dismissing this appeal against conviction.
[2]	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.
[3]	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.  The complainant consistently reported that the offender was the man wearing a blue shirt whom she saw next to a white truck in the IGA car park at about 8.30 am shortly before the assault.  Police found clothing in the appellant’s house similar to that described by the complainant as being worn by the offender.  CCTV footage of the IGA car park depicted a man, wearing a blue shirt and carrying groceries, getting into a white truck parked near the complainant’s vehicle at about 8.20 am that day.  The appellant was self-represented in this Court and appeared in person.  The very clear CCTV footage taken inside the IGA at about 8.20 am on the day of the offence depicted a man of remarkably similar appearance to the appellant.  This man was also of similar appearance to the man depicted in the car park CCTV footage getting into the white truck.  The appellant’s son was the owner of a white truck of similar appearance to the one in car park footage with a registration similar (although not identical) to the registration recorded by the complainant.
[4]	In light of all this evidence in combination, the appellant’s unsworn statement to police that he was not the offender was unconvincing.  He told police that over a period encompassing the day of the offence the only vehicles he had driven were a white Landcruiser wagon and another car.  The prosecution relied on this statement as a lie demonstrating a consciousness of guilt.  There was no competing evidence called in the defence case.
[5]	I have reviewed the whole of the evidence at trial.  Even without treating the appellant’s statement to police about the cars he had driven over the relevant period as a lie demonstrating a consciousness of guilt, it was certainly open to the jury to be satisfied beyond reasonable doubt that the complainant correctly identified the appellant as the offender and to convict him of sexually assaulting the complainant.   It was unsurprising that the jury returned with their verdict after less than an hour of deliberating.
[6]	I agree with the orders proposed by Philippides JA.
[7]	MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the orders her Honour proposes.
[8]	PHILIPPIDES JA:  The appellant was convicted on 25 August 2015, after a three day trial, of one count of sexual assault and sentenced on 26 August 2015 to three months imprisonment together with a probation period of 18 months.
[9]	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
[10]	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.
[11]	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.”
[12]	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.
[13]	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.
[14]	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.”
[15]	The complainant’s evidence was that the man then grabbed her breasts, over the top of her clothing.  She told him to “get off”.  The man said, “I’d like to do things to you”.  The complainant accelerated away, then stopped her car near a corner and “tried” to record the registration details of the truck in her phone.  The white truck then drove up beside her and pulled up in front of her.  The complainant quickly drove off to a nearby store where she had previously worked.  She made a complaint to her former employer, Ms McEvoy.
[16]	The complaint was heard by Ms Haddock, a shop assistant, and Mr Swadling, a magazine deliverer, who both observed that the complainant was distressed.  While the complainant was still present in the store, Ms Haddock observed a man enter the shop after the complainant, describing him as “shortish”, “sturdy looking”, “a little bald on the top” with light coloured hair and in his mid-fifties.  Her evidence was that he looked at the complainant, Mr Swadling and Ms McEvoy and “then he just turned around and walked out again.”
[17]	The complainant then went to Rockhampton Police Station and made a complaint.  She spoke to Constable McLennan whose evidence was that the complainant reported the registration details of the vehicle in question as 556 SQT or possibly 566 SQT.
[18]	Later on 21 November 2013, the investigating police obtained CCTV footage from inside the IGA store from the manager, Mr Herd.  Either before or after the police collected the CCTV footage, Mr Herd showed a still image of a man present at the time of the alleged offence to the complainant.  The complainant recognised the man as the offender.
[19]	On 25 November 2013, the police also obtained CCTV footage of the car park and, at trial, the complainant identified a white truck present in the car park when she drove in.  The video evidence was consistent with the complainant’s evidence.  In particular, consistently with her account, it showed a white tray back truck arriving and a man with a blue shirt getting out of the truck.
[20]	The police conducted a search of the appellant’s residence on 30 November 2013 and seized shorts, sandals and sunglasses consistent with those worn by the person the complainant identified in the still image.  The appellant claimed he had a blue t-shirt but “He’d got something on it and [it] had been discarded.”
[21]	The appellant was interviewed by the police on 30 November.  He denied the allegations, and stated he had only driven a white Land Cruiser and a Toyota RAV4 in the previous two weeks.  Photoboards were shown to Mr Chardon and Ms Haddock on 3 December 2013 and 10 April 2014, respectively.  They were unable to identify the appellant, however, the complainant had been able to do so on 1 December 2013.
[22]	The police ascertained that vehicle registration 556 SQT belonged to a Toyota Hiace van.  It was also ascertained that the appellant’s son owned a Ford Trader Pantechnicon van with registration number 554 SQI.  The appearance of the Trader van was consistent with that described by the appellant and seen in the CCTV footage, whereas a Hiace was not.
[23]	The appellant neither gave nor called evidence.  Admissions were made at trial relating to the registration details of the Toyota and Ford vehicles, the absence of DNA evidence on the complainant’s singlet top and the absence of the appellant’s fingerprints on the complainant’s vehicle.
Was the verdict “unreasonable and unfounded”?
[24]	The appellant’s contention that the verdict was unreasonable centred on his argument relating to matters of identification.  In considering whether the appellant has made out his contention that the verdict should be set aside as unreasonable, regard is to be had to the principles set out in R v Agius:
“The principles governing consideration of the ground of appeal raised, that the verdict is unreasonable or cannot be supported having regard to the evidence, were summarised in R v RAU:
‘The ground of appeal against conviction is to be regarded as a contention pursuant to s 668E(1) of the Criminal Code that the jury’s verdicts were “unreasonable, or cannot be supported having regard to the evidence”.  It is, therefore, necessary for this Court to review the appeal record and determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  In MFA v The Queen, McHugh, Gummow and Kirby JJ noted that a review of this kind:
“...  involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.”
In R v SCH, the relevant principles were summarised as follows:
“In such a case, the question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.  In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred.  However, if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
This Court must, therefore, undertake ‘an independent assessment of the evidence, both as to its sufficiency and its quality’ in accordance with the principles to which I have referred.”’”
The appellant’s grounds of appeal
[25]	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
[26]	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.
[27]	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.
[28]	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.
[29]	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.
[30]	The appellant argued that the CCTV footage of the car park showed that there two white trucks in the car park within five minutes of each other with drivers similarly dressed.  In respect of the appellant’s argument that there were two tray back trucks to be seen in the CCTV footage of the car park, the video evidence reveals that a second truck pulled up next to a truck already in the IGA car park.  However the first truck departed prior to the arrival of the complainant’s car, leaving only the second truck in the car park.  It was from that truck that a man in a blue shirt could be seen alighting.
[31]	The inability of Mr Chardon to identify the appellant from a photoboard and the absence of DNA and fingerprint evidence linking the appellant to the offending were all matters left to the jury for consideration.  As the respondent submitted, they were not matters bound to leave the jury with a reasonable doubt about the appellant’s guilt.
[32]	The evidence was such to permit the jury to be satisfied of the appellant’s guilt.  The appeal should be dismissed.