Jason Craig Finn v The Queen
[2018] VSCA 228
•7 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0256
| JASON CRAIG FINN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | PRIEST, BEACH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 August 2018 |
| DATE OF JUDGMENT | 7 September 2018 |
| MEDIUM NEUTRAL CITATION | [2018] VSCA 228 |
| JUDGMENT APPEALED FROM | R v Finn (Unreported, County Court of Victoria, Judge Quin, 1 September 2017) |
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CRIMINAL LAW – Appeal – Conviction – Armed robbery and intentionally causing injury – Three offenders – Shop proprietor struck with dumbbell by one offender – Applicant’s fingerprints and DNA subsequently detected on dumbbell – Whether evidence sufficient to establish that applicant was one of the offenders – Whether verdicts are unsafe and unsatisfactory – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Prosecutor’s closing address – Comments tending to reverse the onus of proof – Reflections based on prosecutor’s personal experience – References to matters not the subject of evidence – Statements which were allegedly inflammatory or prejudicial – Comments which belittled or ridiculed the applicant’s case – No substantial miscarriage of justice – Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Ms F Gerry QC with Ms J Kretzenbacher | Sullivan Braham |
| For the Respondent | Mr B Sonnet | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
WEINBERG JA:
Overview
At about 6.00 pm on 1 May 2015, three men entered the Perry Street Foodstore at 278 Wellington Street, Collingwood, then operated by Ramazan Ozcagli, a 66 year old male. The first man to enter produced a small black pistol and demanded money. Mr Ozcagli struggled with him. A second man pulled out a long knife and attempted to stab Mr Ozcagli. The first man then picked up a ten kilogram dumbbell, and hit Mr Ozcagli twice to the head. About $800 or $850 was then taken from Mr Ozcagli’s pockets. Money was also removed from the cash register and cigarettes were stolen. Two of the men — including the first man who had hit Mr Ozcagli with the dumbbell — then exited the shop from the rear door, whilst a third went out the front.
On 15 March 2016, police arrested the applicant, Jason Finn. He had been linked by fingerprints and DNA to the dumbbell.
Between 24 August and 1 September 2017, the applicant stood trial in the County Court on charges of armed robbery[1] (charge 1) and intentionally causing injury[2] (charge 2).[3] The only live issue at trial was whether the applicant was the first man who entered the store, produced the pistol and struck Mr Ozcagli to the head with the dumbbell. He gave evidence that he did none of those things.
[1]Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]The jury were not required to consider an alternative charge of recklessly causing injury (charge 3).
On 1 September 2017, the jury convicted the applicant of both charges.[4]
[4]On 13 November 2017, the trial judge sentenced the applicant to be imprisoned for six years on the first charge and two years on the second. An order for cumulation produced a total effective sentence of six years and six months’ imprisonment, upon which the judge fixed a non-parole period of four years and six months.
Grounds of appeal
The applicant seeks leave to appeal against his conviction upon two grounds, formulated as follows:
1. Both verdicts are unreasonable or cannot be supported having regard to the evidence. The prosecution could not exclude a reasonable hypothesis consistent with innocence; that the Applicant was the ‘third man’ who entered the Foodstore and not the man who produced the gun.
2. There was a substantial miscarriage of justice caused by the prosecutor’s closing address in the trial.
Particulars
In the closing address, the prosecutor (a) tended to reverse the onus of proof; (b) made submissions to the jury based upon material which was not in evidence; (c) made intemperate and inflammatory comments, tending to arouse prejudice or emotion in the jury; (d) made comments which belittled or ridiculed part of the Applicant’s case; and (e) conveyed to the jury the prosecutor’s personal opinions.
In our opinion, leave to appeal should be refused. Our reasons follow.
Ground 1 — Unsafe and unsatisfactory verdict?
As we have said, three men entered Mr Ozcagli’s store. The prosecution case was that the applicant was the first man to enter, producing the pistol and striking Mr Ozcagli with the dumbbell. It was not disputed at trial that the second man with the knife was an associate of the applicant’s, Peter East. The third man was not identified.
A curious feature of the prosecution case is that complicity was not relied upon as an alternative path to conviction.[5] The prosecution case unequivocally was that the applicant was the first man through the door, had the gun and used the dumbbell to strike Mr Ozcagli. Hence, in her charge to the jury, the judge summarised the issue on the charge of armed robbery as follows:
To summarise, you have only one issue to decide in respect of this count. That issue is, have the prosecution proved beyond reasonable doubt that Jason Finn was the person who had the gun, and tussled with Mr Ozcagli, and hit him with the dumbbell.
If you are satisfied that they have, then you should have no difficulty finding all elements of the offence proven. In such circumstances, you should find Jason Finn guilty of armed robbery. However, if you are not satisfied beyond reasonable doubt that it was him who did those things, you must find him not guilty of armed robbery.
[5]Crimes Act 1958, ss 323 to 324C.
And on the charge of intentionally causing injury, the judge put the principal issue to the jury as follows:
So, to summarise, before you can find Jason Finn guilty of intentionally causing injury the prosecution must prove to you beyond reasonable doubt that Mr Ozcagli was injured; well, you should not have any difficulty with that. That Jason Finn caused in the injury; again, that is the real issue for you to determine. ...
In support of the contention that the verdicts were unsafe and unsatisfactory, the applicant’s counsel submitted that the evidence was not capable of excluding the reasonable hypothesis that the applicant was the third man. We disagree. Nothing in the trial dictated that the jury must have entertained a reasonable doubt about the applicant’s guilt.[6] Whilst we are baffled by the prosecution’s decision not to rely on complicity as an alternative basis for conviction, an examination of the evidence amply demonstrates that it was well-open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt based on the case which was left to them; that is, that the applicant was the first man who entered the store, produced the gun and struck Mr Ozcagli with the dumbbell.
[6]M v The Queen (1994) 181 CLR 487, 492–3; Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J).
To understand our reasons for that conclusion, it is necessary to canvass the evidence in a little detail.
Ramazan Ozcagli gave evidence that in 2015 he was the owner of the Perry Street Foodstore, which was located on the corner of Perry Street and Wellington Street, close to the Wellington Street Ministry of Housing flats, situated at 240 Wellington Street. At about 6.00 pm on 1 May 2015, he was sitting in his chair at the back of the store when three men entered. He had served the first man — who was ‘a little taller’ than he is — on prior occasions. This first man was of normal build — not overweight and not skinny — with ‘blondish’ hair. Mr Ozcagli did not remember exactly what the man was wearing, but he ‘had pants on of some sort’ (although Mr Ozcagli did not know the colour). The first man had ‘something like a rubbish bag’ in his hand.
Mr Ozcagli told the jury that a second man — ‘a short person … dressed all in black’ — also entered. The second man was ‘around 1.7 metres or a little bit shorter’, and had ‘short hair’. He wore a ‘black jumper’, and Mr Ozcagli thought his pants were also black. That second man had a box. (As we have said, it was not disputed that this man was Peter East.)
The third man, Mr Ozcagli said, ‘was tall, and he was dressed in white … something like a track suit, top and bottom, both white’.
Mr Ozcagli’s evidence was that the men said: ‘We want to talk to you about something. We’re going to show you something’. They put the box that the second man was carrying on the floor — there were ‘three, four empty bottles in the box’ — and they shut the door. After the door was closed, the first man ‘pulled out a gun, and he said to give him the money’. The gun was being pointing at Mr Ozcagli’s torso ‘with both hands’. Mr Ozcagli then grabbed the first man’s hand and chest, prompting the first man to say to the second man: ‘Take out the knife and knife him’.
The second man ‘wearing black’ then ‘pulled out the knife’. He swung the knife at Mr Ozcagli who threw himself on the floor. The knife — which was ‘a long, thin knife’ about 30 to 40 centimetres in length — missed. When the Mr Ozcagli fell, the first man ‘jumped’ on him, picked up his son’s ten kilogram dumbbell from the floor and hit him ‘hard on the head twice with it’. One man was holding Mr Ozcagli’s feet when this occurred. After being hit, Mr Ozcagli was ‘feeling rather faint’. The men put their hands in his pockets and took between $800 and $850.
Mr Ozcagli said that he saw neither the first man nor the second man leave. His upstairs lodger, Matthew Eaton, arrived, and picked him up. There was still one man — ‘wearing black’ — behind the counter where the cigarettes were kept. That man pulled up a chair and jumped over the counter. Mr Eaton chased after him.
In cross-examination, Mr Ozcagli said he could not remember the third man saying or doing anything. The first man was wearing ‘long pants’, not shorts; and the second man, all in black, could have been wearing tracksuit pants.
Matthew Eaton was a lodger who lived upstairs from the shop. He gave evidence that, at about 5.55 pm on 1 May 2015, he heard ‘strange noises’ from downstairs. He went down and tried opening the door into the room behind the shop but was unable to do so completely. He could only get the door open by some four to five centimetres. Nevertheless, he had ‘a clear view’ of a man inside the room with ‘a knife in his hand’. The man was standing near the corner of the table and had a ‘general kitchen sharp knife’ approximately ‘30 centimetres long’ in his right hand. The man said to Mr Eaton that if he did not shut the door he would ‘stab [him] too’. Mr Eaton described that man: ‘Approximately 160 centimetres in height, scruffy dark hair, white t-shirt [and] blue shorts … to the knee’. The man looked ‘rather drawn, just scruffy looking’. His complexion was white and he had brown eyes.
Mr Eaton ‘ran upstairs’ and called ‘000’. He then ran downstairs and heard Mr Ozcagli groaning. Mr Eaton helped Mr Ozcagli stand and pointed him in the direction of a seat. As Mr Eaton did this he turned and saw another man — a different man to the man that had seen earlier with the knife — at the cigarette counter of the shop. Mr Eaton then ‘took chase’ after this man, who was Caucasian; aged between 25 and 35 years; about 170 centimetres tall; with ‘short, dark hair … dark brown to black’, which was ‘scruffy and messy’; was clean shaven; and had ‘dark eyes’ and a ‘normal’ nose. The man ‘had a long sleeve black top on, black tracksuit pants with two white stripes, and sneakers’. Whilst calling ‘000’, Mr Eaton chased the man out of the shop.
Ashley Pendrick, the informant, arrived at the scene just before 6.30 pm. He located the 10 kilogram dumbbell in a bin behind the Wellington Street flats, and a sealed cigarette packet at the same location. Detective Pendrick also produced CCTV footage of the surrounding area (Exhibit J). Further, he gave evidence that he had viewed other CCTV footage obtained from the security office responsible for maintaining the CCTV cameras for the Wellington Street flats. That footage depicted three males walking in the direction of Perry Street at 5.44 pm. At 5.57 pm the three males could be seen running back from the direction of Perry Street.
Significantly, Lillie Nikitina, a fingerprint expert, located two fingerprints of value on the dumbbell found in the rubbish bin, and she found three fingerprints on the box that the second man had been holding. Another expert, Matthew Fisher, matched the two fingerprints found on the dumbbell to fingerprints from the applicant’s left ring finger and left middle finger.
Also significantly, Dr Mariya Goray, a forensic scientist who ‘hold a PhD in Forensic Genetics and Bachelor of Biomedical Science majoring in genetics’, gave evidence from which it could be inferred that the applicant’s DNA was on the handle of the dumbbell found in the rubbish bin behind the flats. One sample taken from the left handle of the dumbbell, sample 1-1, produced ‘a four person mixture’ of DNA. The applicant, Dr Goray said, ‘was not excluded as a contributor, and the likelihood ratio again was a hundred billion, which means that it is a hundred billion times more likely if he is a contributor, than if he isn’t’. There was also ‘extremely strong support’ for Mr Ozcagli being a contributor to sample 1-1. A second sample, from ‘the middle of the dumbbell’, also produced four contributors. Mr Ozcagli was ‘not excluded as a contributor, and the DNA evidence is 43 million times more likely if he is a contributor than if he isn’t’. The applicant was also a contributor to the second sample, and Dr Goray’s opinion was that he was ‘not excluded as a contributor to the mixture, and [it is] a hundred billion times more likely if he is a contributor than if he isn’t’. There was no DNA evidence to support Peter East having been a contributor.
We pause to note that, prior to Dr Goray’s statistical analysis being elicited, counsel for the applicant had told the judge in the absence of the jury that ‘it is not in contention obviously that Mr Finn is a contributor to the DNA’. Furthermore, in his final address to the jury, he accepted that the applicant’s DNA was on the dumbbell.[7]
[7]See [29] below.
The applicant gave evidence in his own defence, endeavouring to explain how his fingerprints and DNA came to be on the dumbbell. He said that on 1 May 2015 he went for a ride with Peter East, travelling from Maffra to Traralgon, and from Traralgon to Melbourne. East, the applicant said, was going to Melbourne to see about some car parts. Another man, ‘Allan’, who was a mate of East’s, travelled in the car with them. The applicant identified a blue Commodore motor car depicted in CCTV footage arriving at the car park at 240 Wellington Street shortly before the robbery. He agreed that he is seen getting out of the front passenger seat; East from the driver’s seat; and Allan — who is wearing a cap and carrying a box — from the rear seat. (The time stamp on the footage shows the men getting out of the car at about 5.21 pm.) At one point, the applicant said, Peter East took off for five to ten minutes to get car parts from the flats (or so the applicant thought). The applicant stayed with Allan.
When East returned after five or ten minutes, so the applicant testified, East was carrying a box and was with another man whom the applicant had not seen before. That other man had dark hair, and had a white, long-sleeved thermal top on. He had a dumbbell in his hand. The applicant then saw ‘the person Peter was with put a dumbbell in the bin’ and walk off. At that stage, the applicant ‘grabbed the dumbbell’. (It was not disputed that this was the dumbbell with which Mr Ozcagli was struck.) East saw him grab the dumbbell, and ‘snapped’ at him ‘to put it back’, saying that he had a weights set at his home if the applicant wanted weights. East, Allan and the applicant then got back into the car and drove to Dandenong to pick up Allan’s girlfriend.
The applicant said that he did not rob Mr Ozcagli; did not hit him with a dumbbell; did not have a gun or a knife; and knew nothing about any armed robbery.
When cross-examined by the prosecutor, the applicant denied that he had ‘concocted’ a story. He denied ever being to Mr Ozcagli’s shop and being one of the three men who attacked him, and he denied hitting Mr Ozcagli with the dumbbell.
We pause once more to note how counsel for the applicant addressed the jury on the subject of the applicant’s DNA being on the dumbbell. He said:
… Does the DNA get us any further than the fingerprint evidence? No. What does it prove? Proves he touched it.
We know that [from the] fingerprint evidence, we know that from Mr Finn’s evidence. What else does the DNA evidence tell us? It tells us that there is at least, at least three other people’s DNA on that dumbbell. Whose? Don’t know. Absolutely no idea. The science tells us nothing about whether it was Mr Finn who used the dumbbell against Mr Ozcagli; all it tells us is that Mr Finn came into contact with the dumbbell, and in the course of picking the dumbbell out of the bin, of course Mr Finn may have touched it in the places where the DNA was found.
It might’ve been that his thumb was on the bell, while his fingers were on the handle, where he might’ve grabbed it in two places, and he lifted it out of the bin. Who knows? The DNA evidence proves nothing more than what we already know. It’s consistent with Mr Finn’s evidence. So there are three unknown persons’ DNA on that dumbbell. One of those unknown people may in fact have been the person who did strike Mr Ozcagli to the head.
In support of the first ground — which asserts that the prosecution could not exclude the reasonable hypothesis that the applicant was the ‘third man’ in the store — the applicant’s counsel argued that the evidence of the applicant’s fingerprints and DNA being on the dumbbell does not prove that he went to Mr Ozcagli’s store. There was DNA from a number of unknown persons on the dumbbell. The evidence is thus consistent with the applicant only ‘having held the dumbbell at some time after the armed robbery’, the person who struck Mr Ozcagli with the dumbbell having passed it to the applicant by some means. Moreover, so it was submitted, the description given by Mr Ozcagli of the man with the gun is incompatible with the applicant’s appearance.
The general thrust of these submissions cannot be accepted.
The contention now advanced — that the prosecution could not exclude a reasonable hypothesis consistent with innocence, that hypothesis being that the applicant was the ‘third man’ who entered the Foodstore and was not the man who produced the gun — stands in stark contrast to the applicant’s case at trial. At no stage in the course of the trial was it ever suggested by the applicant in his evidence, or in the arguments of his counsel on his behalf, that he may have been the ‘third man’. Indeed, in his evidence the applicant maintained that he remained in the car park with Allan for five or ten minutes, whilst East presumably committed the armed robbery with the other man (who was the fourth man who returned to the car park with East holding the dumbbell). In oral argument in this Court, senior counsel for the applicant submitted that the fact that the applicant’s case was put differently at trial is no obstacle to success on the first ground.[8] In our view, however, the applicant’s newly advanced hypothesis must be evaluated in light of the way his trial was conducted. Certainly, the new hypothesis was never advanced for the jury’s evaluation.
[8]Counsel cited R v Lewis [2017] EWCA Crim 1734. See also R v Bech [2018] EWCA Crim 448.
Importantly, the CCTV footage introduced at trial depicts the three men who exited the blue Commodore at 5.21 pm, permitting comparisons to be made with the descriptions given by Mr Ozcagli. East, the driver, is shown in the footage dressed all in black with a white stripe down what appear to be black tracksuit pants. Mr Ozcagli described the second man with the knife as ‘dressed all in black’. The man who exits the car from the rear driver’s side — ‘Allan’, identity otherwise unknown — is seen wearing a white top with black sleeves and light-coloured shorts.[9] Mr Ozcagli described the third man as being ‘dressed in white … something like a track suit, top and bottom, both white’. And the man who gets out of the front passenger seat — the applicant — appears to be wearing a black jumper and black pants, not shorts, Mr Ozcagli making it clear in cross-examination that the first man who hit him with the dumbbell was wearing ‘long pants’, not shorts .
[9]In her final address, the prosecutor referred to the unidentified third male as ‘Boston’. Review of the CCTV footage, Exhibit J, shows that the word ‘BOSTON’ is emblazoned in black against a white background across the chest the unidentified male’s top.
The three occupants of the blue Commodore — the applicant, East and ‘Allan’ — are depicted in the CCTV footage, Exhibit J, walking away from the car and out of the car park at about 5.43 pm. It was not disputed at trial that, shortly afterwards, East entered Mr Ozcagli’s store in the company of two other men. And although the available footage does not show the passage of the three men who got out of the car — the applicant, East and the unidentified male — as they walked away from the car park, the three had arrived together and were walking together in the general direction of where the store was located.
Significantly, the informant’s evidence was that he had viewed some CCTV footage taken from the flats, which revealed three men heading in the direction of the Perry Street Foodstore at 5.44 pm and then running back away from the store fewer than 15 minutes later, at 5.57 pm. A minute or two later, at 5.59 pm, three men — the applicant, East and the unidentified male — could be seen at the blue Commodore. East, who had been involved in the robbery, can then be seen — in the applicant’s company — to place a cardboard box into the back seat of the car. The applicant, East and the unidentified man (who, as we have said, was wearing a white top with black sleeves and light-coloured shorts) all then got into the blue Commodore and drove away, also at 5.59 pm. An unopened cigarette packet was later found close by where the car had been parked, cigarettes in unopened packets having been stolen in the course of the robbery.
Plainly, in our view, it was open to the jury to conclude from the movements of the three men captured on the CCTV footage that they were the same three men who robbed Mr Ozcagli. As we have said, the applicant, East and the unidentified male are seen to arrive at the car park together. They walked away from the car park together. It may readily be inferred that they were the three men seen to walk in the direction of Perry Street at 5.44 pm and run back at 5.57 pm. And in the CCTV footage they are then seen within a minute or two at the rear of the blue Commodore, close to where an unopened cigarette packet was found, East holding a box.
Moreover, it clearly was open to the jury to conclude that the applicant was the male who struck Mr Ozcagli with the dumbbell. His fingerprints and DNA connected him to it. Quite plainly, in our view, it was open to the jury to reject his explanation as to how they got to be there. Indeed, in light of the evidence showing his, East’s and the other male’s movements closely contemporaneous to the robbery, we regard the applicant’s explanation for his fingerprints and DNA being on the makeshift weapon as preposterous. No doubt the jury did also.
Apart from the fingerprint and DNA evidence, the inference that the applicant wielded the dumbbell — and was not the ‘third man’ — is supported by other aspects of the evidence. Mr Ozcagli was clear that it was the second man dressed in black who produced the knife. That this second man was East was undisputed at trial. Further, although he could not remember the third man doing anything, Mr Ozcagli was also clear that the third man was dressed in white. The CCTV footage irrefutably shows the unidentified male accompanying the applicant and East to be dressed in a white top (with black sleeves) and light coloured shorts. And as the footage also conclusively demonstrates, neither was the applicant’s top white, nor was he dressed in shorts.
Although the foregoing is sufficient to dispose of the first ground, we remain at a loss to understand why the prosecution at trial did not rely on complicity as an alternative route to conviction. Counsel for the respondent in this Court — who had signed the indictment — was unable to explain why the trial prosecutor had put the prosecution case on the narrow basis that she did. We consider that on any reasonable view of the evidence, the ‘third man’ in the shop was acting pursuant to agreement, arrangement or understanding with the other two men to commit the offence of armed robbery, and was aware that it was probable that injury would be caused intentionally to the proprietor of the store if the putative armed robbers met resistance. The fact that two of the three men were armed puts that proposition beyond any reasonable doubt.[10] Hence, even were there substance in the contention that the jury could not have excluded the reasonable hypothesis that the applicant was the third man in the store, no substantial miscarriage of justice can have been occasioned. Whether considered in light of the way that the prosecution put its case at trial, or on the alternative basis of complicity, the applicant’s conviction was, in our view, inevitable.[11]
[10]See Crimes Act 1958, s 323(1)(d).
[11]Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659, 677–8 [85] (Maxwell P, Weinberg and Priest JJA); Dailakis v The Queen [2018] VSCA 101, [38] (Kaye, Niall and Hargrave JJA).
Before leaving this ground, there is one final matter that we should mention. In an able argument, senior counsel for the applicant drew attention to the fact that charge 1 on the indictment alleged that the applicant ‘at Collingwood in Victoria on the 1st day of May 2015 robbed RAMAZAN OZCAGLI of certain property namely certain money and cigarettes and at that time had with him an offensive weapon namely a firearm, knife and a 10kg dumbbell’, but that the first man through the door did not have the knife; the second man did not have the firearm or dumbbell; and the third man had none of those articles. Hence, the case put against the applicant at trial was at variance to the charge as pleaded in the indictment.
With respect to that submission it is enough to observe that s 75A of the Crimes Act 1958 provides that ‘a person is guilty of armed robbery if he commits any robbery and at the time has with him a firearm, imitation firearm, offensive weapon, explosive or imitation explosive’. By virtue of s 77(1A), an ‘offensive weapon’ is ‘any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with him or her intends or threatens to use for such a purpose’. Clearly, it is an element of the offence of armed robbery that the offender ‘has with him’ an offensive weapon (or other proscribed article) at the time he (or she) commits a robbery.[12] In our view, however, the nature of the offensive weapon is a mere particular. Thus, although the prosecution must prove beyond reasonable doubt that the offender has with him an offensive weapon (or other article) at the time of committing the robbery, it generally will be of little moment that the actual offensive weapon that the offender is shown by the evidence to have with him varies from the description in the indictment.
[12]See R v Nguyen [1997] 1 VR 551.
Ground 1 cannot succeed.
Ground 2 — An improper address?
Under cover of the second ground, complaint is made about a number of unsatisfactory aspects of the prosecutor’s final address. It is submitted that, when those unsatisfactory aspects are viewed in combination, it may be seen that a substantial miscarriage of justice has been occasioned.
In support of this submission, the applicant’s counsel first contended that the prosecutor’s arguments in part tended to reverse the onus of proof. We think there is substance in that contention.
The prosecutor commenced her address by telling the jury that: ‘The only issue in relation to Charges 1 and 2 or 3 in the trial is, was Mr Finn the first man that entered the Perry Street Food Store on 1 May 2015 and committed an armed robbery in the company of two other men?’. Although to commence that way was uncontroversial, the prosecutor almost immediately thereafter advanced an argument which seemed to endorse the notion that it was valid for the jury to adopt a process of reasoning that involved assumption. Thus, she referred to the evidence that the three men were seen to get out of the blue Commodore at 5.21 pm and ‘wander around for 27 minutes’, and she then said:[13]
Let’s look at this assumption that those three men committed that armed robbery.
The starting point of course is it’s an assumption. That, by itself, is never going to be anything other than an assumption, that these three men were the ones involved in an armed robbery. It’s not enough at law to make Mr Finn guilty of anything. Maybe Mr East can be fined for parking too long, or parking without a permit at the housing commission, but it doesn’t mean anything to Mr Finn.
However, in this trial there’s other evidence that you have that you can look at, that you can use to draw what's known as an inference. Each of those inferences I’m about to take you through will point to the only logical outcome in this case, namely, that you can only be left without a reasonable doubt that it was Mr Finn that was the first offender in the armed robbery that was committed that day. In fact, on the evidence you may well think it was his idea to commit the armed robbery that day.
[13]Emphasis added to this and following passages.
It was implicit in what the prosecutor told the jury that it was an acceptable ‘starting point’ for them to assume — that is, accept as true without proof — that the three men who exited the Commodore were involved in the armed robbery.[14] She was wrong to have done so. Plainly, the prosecutor should never have insinuated — even inadvertently — that it was legitimate for the jury to employ a decision-making process which revolved (even partially) around the assumption that the three men were involved in an armed robbery. That they were so involved was a matter for the prosecution to prove. Had the matter been left there, and had that insinuation been left uncorrected, we may well have concluded that justice had miscarried.
[14]See Smith v The Queen [2018] VSCA 139, [15] (Whelan, Beach and McLeish JJA) (‘Smith’). The prosecutor in the present case is the same prosecutor whose final address was the subject of criticism in Smith. It will be noted, however, that the present trial took place before the judgment in Smith was delivered.
But the matter was not left uncorrected. The prosecutor’s insinuation, which we consider was apt to reverse the onus of proof, was remedied. Thus, during a break in the prosecutor’s address, the judge of her own motion observed:
I’m just a little bit concerned that some of your remarks might suggest to the jury that the accused has some kind of onus in relation to this matter. I just hope that you will emphasise that in fact that's not the case, that you bear the onus. Thank you.
The judge having expressed her concern, the prosecutor told the jury shortly afterwards that
as I said at the outset, it is the prosecution that bear the onus. We bring the charge so we have to prove it. At no time does that onus shift. At no time does Mr Finn have to prove anything. [Defence counsel] will tell you that no more, no less could be asked of an accused person than to come and give evidence in court. The defence or Mr Finn is not required to look for evidence of any sort … He remains innocent before you until you have finished your deliberations.
Thus, even though the prosecutor put arguments that tended to reverse the onus of proof, by the comments extracted immediately above she corrected any erroneous impression that her earlier remarks might have created.[15] In any event, the trial judge directed the jury in unimpeachable terms on the onus of proof. The jury having heard the judge’s directions, it is unrealistic to think that they could have been misled as to where the onus of proof lay, or continued to have been influenced by the prosecutor’s invitation to make assumptions.
[15]Compare R v Russo (2004) 11 VR 1, 5 [9] (Winneke P); 6 [13] (Charles JA); 13 [38]–[40], 16–17 [46]–[47] (Nettle JA).
Another contention made under cover of the second ground is that the prosecutor expressed personal opinions. We consider that the following passage from the prosecutor’s address demonstrates that there is substance in that contention.
Hence, in the course of her address, the prosecutor told the jury a personal anecdote:
I’ve been thinking about this inability of Mr Ozcagli to recall what his attackers looked like, and I was in Coles the other night, it was Friday night after court, and I was leaving Coles and I was musing about Mr Ozcagli. And I was thinking to myself, hold on, I’ve been going to the same Coles for 15 years. I must be there three times a week. Of my attendances there, or if anyone asked me if I recognised any of the staff, I recognise two. One, because she’s a brunette, dark brunette, and she dyed her hair back to white, and then dyed it hot pink. I’m never going to forget that. So I recognise her. I recognise another one because he’s Indian, handsome and very camp, so every time he talks I nearly start laughing because it’s so over the top. But they’re the only two I recognise. I’m served by others all the time, of course I am. They don’t recognise me.
The prosecutor should not have advanced arguments on the evidence viewed through the prism of her own experience. In our opinion, however, this ‘supermarket’ submission can have done no real harm. Notwithstanding that the anecdote was unnecessary and unhelpful,[16] the jury would have understood that the prosecutor’s submissions were an appeal to them to apply their own experience and common sense when assessing the eye-witness testimony. No prejudice could have flown to the defence from resort to the personal supermarket anecdote. That this is so draws support from the fact that, although he complained about other aspects of the prosecutor’s address, the applicant’s trial counsel did not object to the prosecutor’s personal musings.
[16]See Smith [42], [66] and [83], where the same prosecutor had addressed an ‘unnecessary and unhelpful’ anecdote about her mother. As we have indicated, however, the present trial was conducted after the judgment in Smith was delivered.
Complaint is also made under cover of ground 2 about certain of the prosecutor’s remarks which are said to be intemperate and inflammatory; which tended to arouse prejudice or emotion in the jury; or which in part belittled or ridiculed the applicant’s case. So that the flavour of the impugned remarks may properly be appreciated, it is necessary to set them out in context. The impugned comments are:[17]
[17]Emphasis added.
So the notes of the investigator from that day were in relation to these two cameras, the rear and the playground. Imagine if the investigator had taken notes of what he’d seen on this camera that’s not available to you and it didn’t fit in with all these other cameras. There would have been a song and a dance from [defence counsel]. But it does fit. Detective Pendrick’s observations fit into all of that film footage.
…
I have no doubt that [defence counsel] is going to rise to his feet after I’ve finished and say to you that there’s a lack of direct evidence in this matter, and that without CCTV or fingerprints or DNA from inside that food store identifying Mr Finn you cannot be convinced beyond reasonable doubt that Mr Finn was actually in the food store that day, much let alone be the first man in that food store.
It’s quite preposterous, really, when you stop and you think about: what forensic evidence is [defence counsel] going to postulate that there should be to prove that Finn was that first armed robber in the food store that day? …
…
So what we are asking you to look at is the time stamps on the CCTV so that you become familiar with the movements of those three men that evening. And it’s especially important because you will have to try and place Mr Finn’s inarticulate account against it to understand just how ridiculous his story is when he told you about this stranger that appeared with a dumbbell at the dumpster dressed in white.
…
Do I need to go through again what Mr Finn told you about him being at the dumpster with Mr East? So you’ll recall here's the dumpster, it’s enclosed. Had this event occur and Mr East somehow by magic managed to be in two places at once, he wouldn’t have even been able to see anything. So if that fairy tale that he told you yesterday carries any weight with you, how’s Mr Finn going to explain why his DNA – 100 billion statistical evaluation – is on one end of that dumbbell, as well as the handle, which he claims he grabbed to put away?
…
That the man that Mr East met, committed this armed robbery, is the man in this car at the Emerald Street at 5:23 and leaves at 6.01, the very car that Mr East is seen walking past on that CCTV … who he doesn't stop and speak to and doesn’t acknowledge. In fact, he’s looking in the other direction.
That somehow, by magic, all the planets align, and Mr East knows exactly where he’s got to meet this man and where, and what they’re going to do. I mean, let’s look at Mr East’s day.
…
… Why are they seen walking through here together. He’s going to tell you that Mr East magically disappeared into thin air for five minutes. He doesn’t know where he went, but somehow, magically, Mr East appeared before him again at the dumpster, in the company of a stranger.
In our view, there was nothing improper in these comments. We do not consider that they were unacceptably intemperate or inflammatory, or that they were calculated illegitimately to arouse emotion or prejudice in the jury. True it is that they in part ridiculed the defence case, but the terms in which the satirical comments were made did not, in our view, exceed the bounds of legitimate advocacy. Certainly, they were not in the same category as the rhetorical ‘amazing coincidence’ questions impugned in Wood[18]— which had the effect of reversing the onus of proof — with respect to which the applicant’s counsel sought to draw parallels. Those observations having been made, it is worth reminding prosecutors of the accepted wisdom expressed by Young CJ in Bazley:[19]
The long tradition of prosecutors is that they should perform their task as ministers of justice rather than as advocates seeking a particular result. It is, of course, clearly their task to present the Crown case fairly and fearlessly but to present it in a detached way and not to appear to urge a conviction. Moreover, experience suggests that the fairer the prosecutor the more devastating so far as the defence is concerned. Juries have been known before now to react against overzealous prosecutors.
[18]Wood v The Queen (2012) 84 NSWLR 581, 613–4 [616].
[19]R v Bazley (1986) 21 A Crim R 19, 29. See also Bugeja v The Queen (2010) 30 VR 493, 503–4 [58]–[63] (Weinberg JA); De Vries v The Queen [2013] VSCA 210, [21] (Osborn JA); Basic v The Queen (2015) 251 A Crim R 91, 102-3 [64] (Priest JA); Smith, [73]–[79].
Of more moment, perhaps, is the prosecutor’s apparent reference to matters not in evidence. The applicant relied on five purported instances. Thus, it was submitted that the prosecutor:
· first, referred to evidence that security guards advised the informant that three men had been identified arriving and leaving the flats at 240 Wellington Street, that evidence not having been adduced following a successful objection by the defence;
· secondly, put to the jury that they might well think it was the applicant’s idea to commit the armed robbery, in circumstances in which there was no evidence from which this inference could be drawn, and where this proposition was not put to the applicant in cross-examination;
· thirdly, stated that there was no photoboard done, and asked rhetorically at what stage that could that have been done, when there was no evidence at trial about photoboards (including what they were, and why they were not conducted);
· fourthly, addressed the jury in an ‘irrelevant and confusing’ way on the ‘four main areas’ of identification evidence — positive identification, recognition, similarity and comparison — when it had already been determined by the parties and the trial judge that the present case was not an identification case; and
· fifthly, showed a photograph to the jury which was not an exhibit.
Counsel for the respondent conceded that the first, third and fifth matters were transgressions, but submitted that they were of no moment.
As to the first matter, counsel for the respondent submitted that whilst it is true that the applicant’s counsel had successfully had excluded from evidence any reference to what the police had been told by the flats’ security personnel, the point now made is without substance because the jury ultimately saw the CCTV footage which depicted what the police had been told. Moreover, it was submitted, this part of the closing address prompted no objection.
We agree with the respondent’s submissions on this first aspect. Although the prosecutor should have been more careful, in circumstances where the relevant CCTV footage was before them, the prosecutor’s reference to the excluded hearsay could have had no influence whatsoever on the jury’s decision-making. The consequences of the prosecutor’s mistake are trivial.
With respect to the third matter, counsel for the respondent accepted that there was no evidence one way or the other of any line-up or photoboard identification, and additionally accepted that defence counsel initially had objected to the prosecutor’s comments. Counsel contended, however, that no miscarriage of justice had flown from these comments.
We agree with the respondent’s submission that no miscarriage of justice was occasioned by the prosecutor’s reference to line-ups and photoboards. Indeed, it is plain that defence counsel sought to attain a forensic advantage for his client based on the absence of a line-up or photoboard array. Thus, in his address to the jury, defence counsel argued:
Now, the prosecutor told you that there was no line-up [or] photoboard conducted in this matter. Line-up is when you get a group of people together, one of whom is the offender, and ask a person if they can pick out the accused from the line-up. A photo board is when you show someone a series of photographs, one of which is the accused, and see if the person can pick them out.
You’ve been told that in the prosecutor’s closing, but there’s actually no evidence as to whether a photo board was or wasn’t conducted, or a line-up was or wasn’t conducted. But it was suggested – it was suggested that it would have been a pointless exercise. Well, why? Why would it have been pointless when Mr Ozcagli says that he saw the man five or six times and then he recognised the man?
… I think this actually might have been the learned prosecutor asking him, ‘Did you take notice of his facial features?’ ‘Yes.’ This is Mr Ozcagli describing the gunman. ‘Are you able to describe those to the jury?’ ‘It’s been over two years now, but when I see him, I recognise him.’
Why would you think that it would be a useless exercise to actually conduct some of these things with Mr Ozcagli? Have you heard any evidence of it being done? Why hasn’t it been done? Mr Ozcagli’s evidence points to a person other than Mr Finn being the gunman, simple as that. It’s inconsistent with the prosecution theory; it’s consistent with his evidence.
As to the fifth matter, the respondent’s counsel agreed that the prosecutor showed the jury a photograph that was not in evidence. We accept the further submission, however, that this error was of no consequence, given that the photograph shown to the jury was not materially different to photographs that were in evidence, and was, in any event, consistent with what had been seen on an earlier view conducted with the jury. Once more, although the prosecutor should have exercised greater care, the prosecutor’s error could not have made any difference to the jury’s consideration of the case.
Counsel for the respondent did not accept that the second matter amounted to an error. In circumstances in which the prosecution case attributed the leading role to the applicant — he was, it was contended, the first through the door armed with a gun, struck the victim and directed East to stab him — counsel submitted that it was reasonable for the prosecutor to suggest that the armed robbery might have been the applicant’s idea. But in any event, what the prosecutor put was merely an argument that the jury were free to reject.
We accept that the prosecutor’s argument, attributing the idea for the armed robbery to the applicant, could not have set the jury on an incorrect path. In this regard, it is noteworthy that the impugned argument attracted no objection from defence counsel, who was imbued with the atmosphere of the trial (and who had objected to other aspects of the prosecutor’s address). Moreover, we note that in her charge to the jury, the judge gave the conventional direction that the jury were free to reject the comments and arguments of counsel.
Finally, we consider that the fourth aspect of the prosecutor’s address impugned under cover of this ground cannot have been the source of any miscarriage of justice. Self-evidently, in a case where identification was not in issue, submissions on the subject of identification evidence were pointless. Given the manner in which the judge isolated the central issue in the case for the jury’s determination, however, the jury would have understood the prosecutor’s comments concerning identification evidence to be irrelevant. It is unlikely that the comments infected the jury’s reasoning.
There is one further matter that we wish to mention, although it was not the subject of any ground of appeal. In the present case, the prosecutor — as she had in a previous trial[20] — put the prosecution case to the jury as a ‘puzzle’, involving six puzzle pieces, described as ‘puzzle piece No 1’ through to ‘puzzle piece No 6’. Those six supposed puzzle pieces were, one, identification (notwithstanding that the present was not an identification case); two, the evidence of Mr Eaton; three, the CCTV footage; four, the fingerprint evidence; five, the DNA evidence; and, six, the applicant’s record of interview. In our view, the puzzle analogy was entirely inapt. The present case did not require any pieces to be arranged in a particular way in order to arrive at the solution to a problem. Nor was it necessary to put together every piece of the puzzle in order to have a complete picture. In the circumstances of this case, the puzzle analogy was, at best, unhelpful, and, at worst, potentially misleading.[21]
[20]See Smith, [16], [17], [23], [25], [29], [31] and [39].
[21]Compare R v O’Neill [2001] VSCA 227, [110] (O’Bryan AJA). See also Judicial College of Victoria, Criminal Charge Book, [3.5.2]; Jury Directions Act 2015, s 61.
As we have indicated, the prosecutor launched her address on an erroneous footing, and made a number of errors of varying degrees of seriousness from that point on. Most, if not all, of the infelicities in the prosecutor’s address could have been avoided with the exercise of greater care and more circumspection. Whether viewed alone, or in combination, however, we consider that the identified errors could not have occasioned a substantial miscarriage of justice. The applicant’s conviction was, as we have said, inevitable.
Ground 2 cannot be upheld.
Conclusion
For the foregoing reasons, leave to appeal against conviction must be refused.
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