Janissen v The Queen

[2014] HCATrans 194

[2014] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B61 of 2013

B e t w e e n -

CHRISTOPHER JANISSEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 4 SEPTEMBER 2014, AT 11.33 AM

Copyright in the High Court of Australia

MR M.J. FOLEY:   May it please the Court, I appear on behalf of the applicant, together with my learned friend, MR R.W. TAYLOR.  (instructed by Hefford Price Law)

MR M.R. BYRNE, QC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Foley.

MR FOLEY:   May it please the Court.  A grant of special leave in this case would afford a convenient vehicle for the High Court to provide guidance on the law on the administration of justice affecting identification evidence in this post‑Facebook era of burgeoning social media in which police investigation, at least in Queensland, relies almost solely on photo boards rather than identification parades in blithe disregard of the warnings of this High Court, going back to Alexander’s Case (1981) 145 CLR 395 at 401, that, and I quote:

it is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade.

Those are the words of Chief Justice Sir Harry Gibbs, after whom this building is known.  We respectfully ask this Court for special leave to appeal to remedy a miscarriage of justice arising from the Queensland Court of Appeal’s error in failing to find on the whole of the evidence that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 

Such error arose from having undue regard to inherently unsafe eyewitness evidence riddled with discrepancies in appropriate reliance on police photo board identification and the wrongful allowing into evidence of so‑called admissions by the applicant that were doubly ambiguous and lacked probative value.

Your Honours, on a summer’s night in 2012 in the Brisbane suburb of Mitchelton, a young couple were the victims of a brutal home invasion, armed robbery and assault by three offenders.  The principal offender, Rosco Amato, pleaded guilty.  The third offender wore a hoodie and has not been apprehended.  The appellant was convicted on the alleged basis that he was the second offender. 

This case has the classic hallmarks of mistaken identity, including limited opportunity for eyewitnesses to view the offender, poor lighting, the shocking circumstances of a home invasion, armed robbery and assault by an offender unknown to the complainants, discrepancies between eyewitnesses’ prior descriptions of the offender and subsequent photo board identifications, the failure by police to have an identification parade despite height being a live issue in disregard of the High Court’s exhortations, and the tainting of eyewitness evidence by a Facebook search with resultant displacement effects.

Let me deal with grounds 1 and 2 of the appeal so far as they are relevant to the special leave application relating to the admissibility of ambiguous evidence.  It is our submission that irrelevant evidence of a taped prison conversation was wrongly admitted on the misconceived basis that it could amount to an admission of attempting to secrete the proceeds of robbery when such evidence was logically incapable, either alone or with other evidence, of proving such a fact, but was poisonously prejudicial to the defence. 

It is unnecessary to go through the authorities with respect to the broad test of unreasonableness and, indeed, your Honour Justice Hayne was in the celebrated case of MFA v The Queen with Chief Justice Gleeson and Justice Callinan where that was further explained. 

It is important, in my respectful submission, to put this in historical context and in my written outline of submissions together with my learned friend, Mr Taylor, reference has been made to historical miscarriages of justice such as Beck’s Case, which led to the establishment of the English Court of Appeal in 1908, and the case of Oscar Slater, which led to the establishment of the counterpart of the Court of Criminal Appeal.  These are also discussed in Heydon’s Cross on Evidence at 1345. 

Let me deal briefly with the error in the admission of that.  It involved two assumptions, not facts and, indeed, if I could take your Honours to application book page 91, at paragraph [24] your Honours will observe the discussion of it by the Court of Appeal where the Court of Appeal refers to these two assumptions referring back to the submissions by the appellant at trial and on appeal at paragraph [21] of the Court’s judgment - firstly, that the applicant’s reference, if I might use the term, which is set out in the schedule to the written submissions - it involves two assumptions, firstly that the reference to the term “shit” by the applicant is a response to one and the same as the question “your boxing gear” put to the applicant.

The second assumption is that that boxing gear is one and the same as the boxing gear of the complainant’s which was taken from the premises during the course of the armed robbery and home invasion.  It is important to note that that involves, in my respectful submission, not matters of proof, but matters of speculation and I rely upon the proposition in Cross on Evidence that I have included in the material at ‑ ‑ ‑

HAYNE J:   I take it the jury had the tape.

MR FOLEY:   Yes, your Honour.

HAYNE J:   They could therefore understand whether or what connection may or may not have been drawn between what appears at page 90 of the application book in the first speaker and the accused’s response.

MR FOLEY:   They had it but, in my respectful submission, your Honour, they did not have the whole context, and it is conceded by both the Court of Appeal and in the submissions of the respondent that that term was used in different contexts in the different parts of the conversation.

KEANE J:   Well, Justice Gotterson dealt with this in paragraphs [23] and [24] on page 91.

MR FOLEY:   Yes, your Honour.

KEANE J:   Is there an error that you can identify for us in those two paragraphs?

MR FOLEY:   Yes, your Honour.  The conclusion at paragraph [23] about just over halfway through is:

That the word was used alter in the conversation with different meanings does not confer ambiguity on the meaning it apparently has in the first exchange.

Just prior to that his Honour Justice Gotterson refers to it as being “something physical and moveable” and that arises out of the latter part of the tape.  Now, they are properly clues or hints or matters of suspicion, but they fall very far short of that which is capable of amounting to proof and, in my respectful submission, it is an error for the court to have made a finding that that was a basis upon which they could have made that first assumption.

Even if I am wrong on that then the leap of faith required to move from that boxing gear, to which reference was made, to the boxing gear which was stolen from the premises is mere speculation and, indeed, it gives rise to the problem that is adverted to in ground 2, namely the possibility that it was a reference to some other material that the accused did not wish to have discovered in his premises.  Hence, that was an element of unfairness in addition to the overall ambiguity. 

So my first submission is that it is properly ambiguous and that his Honour Justice Gotterson in those two paragraphs erred.  Take, for example, paragraph [24], the reference in the third sentence to:

The urgency with which the appellant discussed the “shit” evident in the first exchange –

absolutely fails to have regard to the emotional outburst which precedes it.  What precedes it is his having used that very term thrice describing a very distressing state of affairs arising out of the fact that he had been arrested at gunpoint by police in the presence of his child. 

Now, it is said, well, it follows, the words “boxing gear” therefore it is part of dialogue.  It is equally open to construction that it is a continuation of a monologue, but when one reads the various contexts of the use of that term one sees that they range across everything from a reference to a car or a cousin to a reference to giving love and “S-H-I-T” and so on, so that is an ambiguity.

But even if it were to be said, well, that was a suspicion, there is absolutely no probative basis upon which it could be construed that that was one and the same as the boxing gear that was taken from the premises, particularly as such boxing gear was never produced, certainly not found in the accused’s possession. 

May I turn to the issues to do with identification evidence and the – and if I could take your Honours to application book 113 where one sees a series of explanations in the – I am sorry, application book 91.  I beg your pardon, your Honours, yes, at paragraph 29 of 113.  Sorry, it is 93, your Honours.

One sees the explanation given with respect to the hair.  It was said by Justice Gotterson that the difference in hair between that which was described and that which was revealed two days later in the photograph could have come about as a result of his head being shaved.  Well, there was absolutely no evidence of that.  Similarly, with respect to the evidence at page 95 of the application book in Justice Gotterson’s judgment, the explanation, with respect, about halfway down the page, Justice Gotterson gives a set of reasons as to why – at paragraph [44] – he is:

unpersuaded that they diminished to any significant extent the cogency of the evidence –

With respect to height, it is at paragraph [46] his Honour makes the observation in the second sentence:

Each witness had, at best, limited opportunity to study their heights for any length of time.

What one finds in the reasoning of the Court of Appeal is a set of explanations as to the discrepancies, but what must logically follow is that those discrepancies, the explanation of them relied upon the very problems and weaknesses that were at the base of the identification evidence itself.

HAYNE J:   But you do not seek to make good, do you, as a general proposition, that a jury, properly instructed about the dangers of identification evidence, cannot convict on the basis of a photo board identification?  You do not go so far as to advance that general proposition, do you?

MR FOLEY:   I do not, your Honour.  I do not.  However, I make this observation that where height is an issue, as it was in this case, it is particularly dangerous - that is the first proposition.  The second proposition is that in assessing – in a court of appeal assessing the weight to be given to identification evidence it should be very cautious with respect to using that photo board identification.

HAYNE J:   But the question for the Court of Appeal is must the jury have entertained a doubt?  Could the jury be satisfied beyond reasonable doubt from this evidence and that is do these circumstances entail the conclusion that they must have had a doubt?

MR FOLEY:   That is, with respect, the question, your Honour, and, in my respectful submission, the answer must be that they must have had a doubt and there is a distinction drawn, indeed, as to the difference between the appellate court satisfying itself that it was open to the jury to make that finding beyond reasonable doubt and merely making an assessment as a question of law as to whether or not it was available. 

That very distinction is made in the passage in M v The Queen and reference is made to it again in the decision of SKA v The Queen, so that the mere recitation of the formula, with respect, your Honour, begs the underlying question as to whether or not the Court of Appeal exercised assumption properly in assessing the evidence to consider truly whether there was a basis on which there was a significant possibility that an innocent person was convicted.

What one sees, with great respect, is a set of explanations which tend to explain away discrepancies without making the necessary inference that they, taken together, weaken the foundation upon which the jury could have been satisfied.  Indeed, throughout the course of Justice Gotterson’s

judgment on behalf of the Court of Appeal, one finds no scepticism or no caution with respect to the dangers inherent in photo board identification.  That is patent with respect to the issue of the exposure of one of the identifying witnesses to the Facebook page and to the displacement effect.

The very fact that that witness had not expressly identified the accused gives rise to a danger of identification of displacement, such as was referred to in Festa’s Case, whereas that was simply explained away by the reasoning in the Court of Appeal as an instance of, well, that is put to one side by the satisfactory identification by two parties. 

In those earlier cases - Beck’s Case and so on, one saw numerous persons, honest witnesses making identifications in circumstances which led to serious miscarriages of justice.  In our respectful submission, that is precisely what is occurred in this case.  The evidence of the photo board identification should have been approached with much greater caution and it is evident that explanations advanced were implausible, including removal, for example, of the scarring after two days, with no evidence as to that being the case.

HAYNE J:   Yes, thank you, Mr Foley.

MR FOLEY:   May it please the Court.

HAYNE J:   We will not trouble you, Mr Byrne.

We see no reason to doubt the correctness of the conclusions reached by the Court of Appeal in this matter.  Special leave is refused. 

The Court will adjourn to reconstitute.

AT 11.55 AM THE MATTER WAS CONCLUDED