The Queen v C[1999] QCA 166

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 476 of 1998

Brisbane

THE QUEEN

v.

C

(Applicant)

McPherson JA

Davies JA

Fryberg J

Judgment delivered 14 May 1999

Joint reasons for judgment of Davies JA and Fryberg J; separate reasons of McPherson JA concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTIONS REFUSED.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 14 May 1999

1. [1]
   I agree with the joint reasons of Davies JA and Fryberg J for dismissing this appeal. In addition to other matters discussed by their Honours, the movements of the appellant at about the relevant time can be traced back from the time of his arrival in the unit at 20 X Street. A boy like the appellant was seen by Mr Morris going up the stairs to that unit at about or shortly after the time of the offence. Mr Morris said he was moving "pretty fast ... at a fair pace almost at a jog". The complainant herself, in a passage in the videotape set out in the joint reasons of Davies JA and Fryberg J, identified the place where the boy jumped over the fence after the offence was committed. It was within a relatively short distance of the rear of the units at 20 X Street. Taken with the other evidence, I agree that there is no reasonable doubt that the appellant was the boy who committed the offence.

JOINT REASONS FOR JUDGMENT - DAVIES JA AND FRYBERG J

Judgment delivered 14 May 1999

1. [1]
   The applicant was convicted in the District Court at Ipswich of rape and doing grievous bodily harm to a five year old girl.  At the time of the offence, he was fourteen years of age.  He now seeks leave to appeal against the convictions.  The sole ground of the application is that the convictions were unsafe and unsatisfactory, a ground which, as argued, raised only questions of fact.^[1]

1. [2]
   The only live issue at the trial and on the application before us was the identification of the applicant as the offender.  The victim was unable to identify the applicant as her attacker; indeed, she identified another person from a photo board.  The applicant did not give evidence and he made no admissions to the police.^[2]  There was no forensic evidence tending to link the applicant or any other person with the offence.  Consequently, the evidence in the case against the applicant was entirely circumstantial.

1. [3]
   The circumstances of the rape were undisputed.  The victim lived with her mother and brother Jordan, aged four, in a Housing Commission unit at 18 X Street, Booval.  At about 8.30am on Friday 16 January 1998 she was playing on her bike in the common area outside the units when a male person took her to the back of the units and raped her.  Penetration of her vagina caused a tear that went through to the rectal wall, a tear which, if untreated, was likely to cause rectal prolapse, severe laxity and loss of sensation.  There was no doubt that these injuries constituted grievous bodily harm.  The place where the offence took place was relatively secluded, although it can hardly be described as isolated.  The jury had the benefit of a view; but a reasonable impression of the area can be gained from the photographs and a videotape which were put into evidence.  After the attack, the offender escaped over a paling fence into 20 X Street, where another block of units was constructed.  The victim was found by her mother in the common area of 18 X Street, crying and with blood on her underpants.

1. [4]
   The victim subsequently described her attacker variously as a “black man”, a “big boy”, and a “boy”.  She described his skin as “like the colour of an aboriginal”.  She said his hair was like her brother Jordan’s, “all shaved off,” and he had a tattoo on his shoulder, indicating her right shoulder.  She said that he was wearing green shorts, a green shirt and green running shoes.

1. [5]
   The applicant is an aboriginal youth who turned 14 nine days before the offences.  He was large for his age and he had a tattoo, but it was on his left forearm, not his right shoulder.  The victim’s mother described the hair of the victim’s brother Jordan.  It is plain that the applicant’s hair was not as short as that description, although it was not long.  At the time of the offences the applicant was staying temporarily with his cousin Cassandra, a 26 year old art student, and a number of other aboriginal people in an upstairs unit at 20 X Street.  He was the only teenager living in the unit and, indeed, the only aboriginal teenager in either block of units.  The night before the offences were committed, he went with his cousin and the others to a party a few blocks away.  The applicant was still at that party when his cousin left with her boyfriend at about 2.30am.  She returned to her unit and slept until 5.00am or 6.00am.  Two others and their children returned some time after 7.00am.  The adults started drinking again.  Cassandra Currie gave evidence that at about 8.45am, the applicant returned to the unit.  He was seen by Mr Morris (the occupant of another unit at 20 X Street) moving quickly up the external stairs giving access to the unit. When he entered the unit, he had both hands under the front of his shirt.  He was wearing green army shorts and a black shirt with “MIB” on it, the clothes he was wearing the night before.  He walked straight past those in the unit.  When they tried to talk to him, he ignored them and went straight into the shower.  He changed his clothes after the shower and later that day left the shirt soaking in the washtub.

1. [6]
   After the applicant had showered, police were observed outside the block of units.  The applicant said, “Looks like there may be a raid going on today”.  Police came to the door of the unit and the applicant hid in a cupboard, where he remained until the police left.  He was aware at that time that a warrant had issued for his arrest in relation to other matters.

1. [7]
   Two days later, police approached the applicant when he was on a train.  He attempted to evade them.  He was it seems taken into custody.  In one of the two backpacks he was carrying, police found a pair of green shorts, a black shirt with “MIB” on it and a pair of socks which were all damp, along with other clothes and personal possessions.

1. [8]
   The videotape referred to above was tendered without objection under s.93A of the Evidence Act 1977. It was made two days after the attack. It records the victim showing an investigating police woman around the outside of the units at 18 X Street, pointing out where relevant events occurred. The victim appears to be intelligent and articulate. Her evidence about the escape of the offender was as follows:

“Q:After he hurt you where did you go then?

A:Went home.

Q:OK where did he go?

A:He went that way and that way and jumped over the fence.

Q:Can you show us where he jumped over the fence?

A:Mmm. Here

Q:This is where he jumped over the fence?

A: Uh huh.

Q: How come you saw him jump the fence? Where were you?

A:Over there.

Q:You were here again?

A:Uh huh.

Q:And you saw him jump the fence. Where did he go after he jumped the fence? Do you know?

A:Down here.

Q:Down there where we can see through? Nods.

A:OK.”

1. [9]
   As the video shows, the point identified by the victim as the place where the offender jumped over the fence was towards the rear of 18 X Street at a point approximately level with the rear of the nearest block of units at 20 X Street. From there to the staircase where the applicant was seen by Mr Morris was a relatively short walk, around the end of the block of units. It plainly could be covered by a person moving smartly in a matter of seconds.

1. [10]
   The principal circumstances relied on by the Crown can be summarised:

1. Although the victim was unable to identify the applicant, she described her attacker as an aboriginal boy/man, with a tattoo, wearing green.

2. The applicant was the only aboriginal youth living in either of the blocks of units at 18 and 20 X Street at the time and he answered the description except for some matters of minor detail.

3. The offender escaped into 20 X Street; the applicant was seen at about the same time walking quickly or running up an external flight of stairs to the unit at 20 X Street where he was staying. 

4. The applicant had a lengthy shower immediately on his return to his unit, within minutes of the attack on the girl, and changed his clothes.

5. The applicant was hiding his hands inside his shirt on his return to the unit, and later left it to soak.

6. When police made their initial inquiries, the applicant hid in a cupboard; but he displayed no such reticence to police the following day.

7. The applicant ran away from police when they boarded the train on which he was travelling.  When his bags were searched, he was found to be carrying a damp pair of green shorts, damp boxer shorts, a damp black shirt with “MIB” on it and a pair of damp socks.  The other clothes were dry.

1. [11]
   There are a number of criticisms which can, and mostly were, made of individual items of evidence.  First, the applicant’s tattoo did not match that in the victim’s description; he was not a man; and he did not have hair as short as that of the victim’s brother.  Moreover, the victim was unable to identify him from a photo board.  Second, although there was evidence of the applicant hurrying upstairs to the unit where he was staying, there was no evidence of the direction he came from.  Third, washing his clothes was a perfectly innocent thing for a 14 year old to do after he had been wearing them all night.  Having a shower in such circumstances was understandable and consistent with an innocent explanation.  Fourth, having damp clothes in his possession was of very limited significance as a circumstance suggesting guilt.  Fifth, hiding in a cupboard on the day of the offence and running away from police two days later was perfectly explicable by the applicant’s awareness of the warrant for his arrest.

1. [12]
   There is one other circumstance asserted and relied upon by the Crown which requires some comment.  Counsel for the Crown submitted, “Workmen in X Street, at the time, saw no one even remotely answering the description of the appellant [sic; semble attacker] run into the street.” The Crown sought to rely upon this evidence not only to negate the possibility of another aboriginal person departing from the front of 18 X Street, but also to rebut the hypothesis that the applicant innocently returned from the party to 20 X Street at about 8.45am.  However the evidence shows that the two workmen were working in front of a unit, about the fourth one in from X Street, not in front of the block at 18 X Street.  If they stopped outside 18 X Street at all (it is unclear on the evidence whether they did), they were there only transiently.  The could not have seen the people entering and leaving either 18 or 20 X Street.  For most of the time, all they could have observed was people using the side path at 18 X Street.  Their evidence is relevant, but in my view, of little assistance.

1. [13]
   It is not necessary for the Crown to prove beyond reasonable doubt each individual primary fact upon which it relies for proof of the circumstantial case.^[3]  It is not the correct approach for the jury or this Court to consider whether any one fact by itself proves the Crown case to the requisite standard.  All the circumstances must be examined, with their various strengths and weaknesses.  It is not necessary for the jury to be unanimous in their assessment of the weight to be given to any one fact, nor in the reasoning adopted for their conclusion.  We are obliged by authority^[4] to consider whether we experience a reasonable doubt as to the applicant’s guilt.  At least at appellate level, it seems that a reasonable doubt exists when “there is a significant possibility that an innocent person has been convicted”.^[5]  In judging this, an appellate court is obliged to make full allowance for the advantages enjoyed by the jury.  That view was affirmed by the majority in Jones v R.^[6]  That majority did not adopt the dissenting view of Kirby J:

“The debate seems to arise from the phrasing of the majority approach [in M v The Queen].  To be properly understood and applied, the question which the appellate court must actually ask is whether it was not open to the jury to convict the accused.  Implicit in such an enquiry would seem to be the issue of whether the jury were bound to have a reasonable doubt as to the guilt of the accused.”^[7]

1. [14]
   In the present case the applicant submitted that the jury did not enjoy any significant advantage over the Court of Appeal in assessing the sufficiency of the evidence because there was no substantial issue as to the credibility or reliability of the witnesses.  That submission was not controverted on the part of the Crown.  It was pointed out that the jury had the advantage of a view, but it seems that for the purposes of the matters raised on appeal, this Court is adequately equipped to deal with the case by reference to the photographs and videotape tendered.  The question for us is whether the facts proved were sufficient.

1. [15]
   We have considered whether on the whole of the evidence we entertain any reasonable doubt as to the applicant’s guilt.  We have considered whether we think there is a significant possibility that an innocent person has been convicted.  We have concluded both issues in the negative.  It is true that there is force in some of the criticisms which may be levelled at aspects of the Crown case.  They show that the Crown has not achieved absolute certainty in proving its case.  However it has in our view proved it beyond reasonable doubt.  When all the circumstances are weighed together, the state of the evidence does not permit any reasonable hypothesis to be drawn consistent with innocence.

1. [15]
   We have considered whether on the whole of the evidence we entertain any reasonable doubt as to the applicant’s guilt.  We have considered whether we think there is a significant possibility that an innocent person has been convicted.  We have concluded both issues in the negative.  It is true that there is force in some of the criticisms which may be levelled at aspects of the Crown case.  They show that the Crown has not achieved absolute certainty in proving its case.  However it has in our view proved it beyond reasonable doubt.  When all the circumstances are weighed together, the state of the evidence does not permit any reasonable hypothesis to be drawn consistent with innocence.

1. [16]
   We would refuse the application.