R v Clapson[2004] QCA 488

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I agree with Jones J.

[2]  JERRARD JA:  In this appeal I have read the reasons for judgment and orders proposed by Jones J, and respectfully agree with those.

[3]  JONES J:  On 17 March 2004 the appellant was convicted of one count of burglary with circumstances of aggravation and one count of assault occasioning bodily harm whilst in company.  Both convictions related to events occurring on 25 March 2002 at Airlie Beach in the State of Queensland.

[4] The appellant appeals against these convictions raising only two issues.  Firstly, he contends that the learned trial judge erred in his instructions to the jury on the use to be made of circumstantial evidence to overcome any weaknesses in the complainant’s evidence positively identifying the appellant as the assailant. (grounds (e) and (g)).  Secondly, he contends that the learned trial judge erred in allowing into evidence a conversation between a Ms Blewitt and a co-accused, John Raiteri, to be admitted on the appellant’s trial. (ground (f))

Background facts

[5] The complainant lived in an apartment in Airlie Beach.  Sometime before the offence he shared that apartment with Ms Blewitt for a period of a couple of months.  She ceased to live at the premises on 30 January 2000 but in circumstances of a dispute between her and the appellant about the payment of rent and other bills.  The complainant had threatened to institute court proceedings. 

[6] On 25 March 2002 whilst at a nightclub and apparently affected by liquor, Ms Blewitt spoke to Raiteri (not in the presence of the appellant) and said to him, “I wanted [the complainant] to stop hassling me”[1].  The appellant was at the nightclub and after that conversation was seen to be near to, and socialising with, Raiteri.  She did not see the appellant or Raiteri at the club when she left at 5.00 am.

[7] The complainant, after finishing work at 10.00 pm on the evening before, retired to bed at about 2.30 am.  Before doing so he had secured the premises.  He was awakened by persons entering his apartment and then his bedroom where he was assaulted by two men.  In the darkened state of the room he could not make out the features of either man but he recognised the voice of one John Raiteri.  He was being punched in the face by both men who were speaking to each other whilst doing so.  During the attack Raiteri said to the complainant, “This is for you.  This is from Ian Blewitt, keep your hands off his daughter”.[2]

[8] In conversation during the assault, Raiteri giving directions to the other assailant called him by the name “Angel”.[3]

[9] During the course of the assault the light was turned on. In his evidence the complainant said he then saw that one assailant was indeed Raiteri and the other person as being of “medium height and solid build”.[4]  The complainant was, at the time, in some difficulty because his right eye was closed and bruised and his left eye had blood in it.[5]

[10]  After the lights were on the assault by way of kicking continued but because of the position the complainant adopted to defend himself there was not much opportunity for further observation of the person called “Angel”.

[11]  The complainant reported the incident to the police and a statement was taken from him the next day.  In that statement the complainant described the height and build of “the Angel fellow”.  The police officers prior to taking the statement had informed the complainant that Angel’s proper name was that of the appellant.  Some two months later after the appellant had been charged and the complainant was well aware of Angel’s proper name, he identified a photograph of the appellant on a photo-board display.  In a statement taken on 11 March 2004 shortly before the trial the complainant gave details of earlier contact with the person he knew as Angel including the fact that Angel had attended his 40th birthday party some two years earlier.  He claimed in that statement and again at trial that he positively identified the assailant as the person who had previously been known to him only by the nickname Angel.  He did not at that time know his proper name.  That direct identification would have rendered unnecessary the need for identification via photo-board display. 

[12]  The complainant’s direct identification was challenged as being inconsistent with his earlier statements to police and as being tainted by the fact that the police officers provided information as to the appellant’s proper name.

[13]  As part of the police investigation a pair of jeans seized from the appellant’s washing line on the evening after the attack was subjected to DNA analysis.  The jury could readily infer these jeans belonged to the appellant.  The jeans gave a positive response to presumptive blood testing and samples taken from that test area matched the complainant’s DNA profile.  The prosecution relied on this fact as a circumstance also going to the identification of the attacker.  Other circumstances relied on as going to identification included the fact that the appellant had been in the company of Raiteri a short time before the assault, that Raiteri in the course of the assault identified his co-attacker by the name “Angel” and there was no suggestion of there being any other person with such a nickname in the small community of Airlie Beach.  Another circumstance was the physical description of the assailant given by the complainant which description matched that of the appellant.

[14]  The inconsistencies in the complainant’s statements to police were explored in some detail in cross-examination.  In his summing-up the learned trial judge in accordance with the obligation imposed by Domican v The Queen[6] drew the jury’s attention to these inconsistencies as weaknesses in the complainant’s evidence directly identifying the appellant as one of the assailants.  His Honour warned, in conventional terms, of the danger of convicting on disputed identification evidence.  No challenge is made to this aspect of his Honour’s instruction to the jury.  The appellant however argues that the learned trial judge fell into error because of his direction that the DNA evidence could be used to overcome deficiencies in the evidence of positive identification.  The appellant points to three passages in the summing-up where he claims this occurred.  They are –

“Now, it is submitted here that there is other supporting evidence, other evidence supporting the identification evidence of Mr Stilwell, namely the DNA evidence of Mr Park, but should you not be satisfied, for example, about the DNA evidence and the extent to which, if at all, it implicates the accused, you would be left then with only the evidence of Mr Stilwell identifying him and that evidence would have to be approached cautiously.  So what matters is the quality of the visual identification.[7]

And

“Now, there are those weaknesses in his evidence that I have referred to.  The weaknesses would be of less significance were you accepting the DNA evidence of Dr Park.  If you were not able to accept that evidence, then they become of greater significance.”[8]

And

“Now, as I said, ladies and gentlemen, if you accept the evidence of the DNA match, that would establish that – and you accept that the jeans were the jeans of the accused, that would tend to establish that Mr Stilwell’s blood or other bodily fluid was deposited on the jeans and that the Crown suggests could only have happened at the time of the home invasion, at the time these people came into his house.  If you accept that evidence, that is capable of supporting the identification evidence.  If you don’t accept the DNA evidence, you have to look carefully then at the identification evidence, bearing in mind the warnings I have given you about it.”[9]

[15]  Counsel for the appellant in addition to referring to Domican relied upon statements in R v Coxon[10] a decision of the Court of Criminal Appeal in South Australia, to support a submission that it is erroneous to direct a jury that circumstantial evidence may be used to conclude that evidence of positive identification was correct. 

[16]  Properly considered the judgments in Coxon do not support that proposition.  In that case it was accepted that the relevant circumstantial evidence on its own would not sustain a guilty verdict.  The question was whether the circumstantial evidence could be taken into account by the jury in conjunction with the direct identification evidence.  Prior J held that such evidence could be taken into account but only after the jury had been properly alerted to the dangers associated with evidence of identification.  See para [24].  To like effect are the findings of Lander J at para [68] and Gray J at para [81].

[17]  Counsel for the respondent directed our attention to the High Court decision of Festa v The Queen[11] where the respective judgments drew a distinction between direct identification evidence which required a Domican warning and circumstantial evidence going to identification which did not, though of course subject to the need to warn of the limitations of circumstantial evidence.  Per McHugh J at para [57].

[18]  There was no basis in the present case for the complainant’s direct identification evidence to be excluded.  There was some confusion in the way in which the initial police statement was drawn but the question for the jury was whether there was any confusion in the complainant’s mind or any shortcomings in his direct identification evidence generally.  The unchallenged facts were that the complainant had for some time known the appellant by the name Angel.  He had seen him at various times in the small community where they both lived.  It was for the jury to determine whether the complainant’s identification was reliable.

[19]  The Domican requirement that warnings must “isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence”[12] does not equate to a need for the assessment of the reliability of the evidence to be considered in isolation.  The assessment of such evidence is also a matter for the jury.  The assessment of the reliability of identification evidence ought, like any other part of the evidence, be considered having regard to the whole of the evidence which was open to the jury to accept.  In this case the matching of the complainant’s DNA with fluid on the appellant’s jeans was robust support for the complainant’s identification.

[20]  In my view the learned trial judge’s instructions to the jury were correct and I would dismiss grounds (e) and (g) of appeal.

[21]  The remaining ground of appeal (which was only faintly pursued) concerned the admissibility of the terms of the conversation between Ms Blewitt and Raiteri referred to in para [4] above.  The conversation was led by the prosecution as evidence, not of the truth of what was said, but to place in context the actions of the assailants.  The evidence of that conversation gave meaning to the remarks made by Raiteri during the assault and explained why the attack was undertaken.  The conversation was relevant to these matters and was part of the factual matrix which needed to be placed before the jury.  In my view, the evidence was admissible and was properly admitted on the trial.  This ground of appeal also fails.

[22]  I would therefore dismiss the appeal.