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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] HCATrans 194
Decision Date

CaseChat Overview and Summary

In *Janissen v The Queen*, the appellant, Janissen, appealed to the High Court of Australia against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police investigation and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge had erred in admitting evidence that Janissen had made a prior inconsistent statement. Further, the Court had to consider whether the jury had been adequately directed on the issue of self-defence, particularly in relation to the appellant's subjective belief as to the necessity of using force.

The Court held that the prior inconsistent statement was improperly admitted because the prosecution had failed to establish the necessary foundation for its admission under the rules of evidence. Regarding self-defence, their Honours found that the jury directions were deficient. They explained that the defence of self-defence requires the accused to have a subjective belief that the use of force was necessary, and that this belief must be based on reasonable grounds. The jury must be instructed that if they find the accused held such a belief, even if mistaken, they must acquit.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders