Kitayama v The Queen

[2002] HCATrans 489

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B100 of 2001

B e t w e e n -

AKIKO KITAYAMA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 10.29 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   If the Court pleases, I appear with my learned friend, MR A.W. MOYNIHAN, of counsel, for the applicant.  (instructed by Legal Aid Queensland)

MS L.J. CLARE:   If the Court pleases, I appear for the respondent.  (instructed by Director of Prosecutions (Queensland))

GAUDRON J:   Thank you.  Yes.

MR BYRNE:   Your Honours, in this case the applicant was convicted of murder on what was a circumstantial case.  Lies alleged to have been told by ‑ ‑ ‑

KIRBY J:   Was it circumstantial?  I mean, there were those noises upstairs for hour after hour.  Was that really circumstantial evidence?

MR BYRNE:   In our submission, yes, your Honour.

KIRBY J:   Mrs McCullough was kept awake night after night as the sawing went on from midnight to 3 am.

MR BYRNE:   That is quite so.

KIRBY J:   What was happening?  What do you think was being sawed at those hours?  What is the explanation?  What is a possible explanation for all that sawing and the putrid smelling containers that was 50 to 60 kilograms?

MR BYRNE:   Your Honour, we accept those matters but they must be balanced in the evidence as this was a diminutive Japanese woman.  No trace was ever found of whatever it was, if the sawing was coming from her unit, nor was there any evidence of excessive amounts of blood found in the unit, nor was there any direct evidence of how this woman would have moved whatever she was alleged to have been sawing from the high rise unit to a place where it was never subsequently discovered.

So, in the circumstances, whilst we accept what your Honour puts to us, that there still was a circumstantial case which led the jury to convict on murder, and it was the thrust, or a major thrust, of the Crown at trial that lies allegedly told by the applicant were a substantial part of the circumstantial case against her.  Importantly, in our submission, the primary lie was that Mr Kitayama had said to the applicant that he was going to Japan to visit his sick sister.

GAUDRON J:   It was not simply that, was it?  It was that she persisted in an account which said he had gone to Japan.  He had caught a taxi and so forth and so on.  It was not just what he said to her, was it?

MR BYRNE:   Your Honour, that is why we categorised it as the primary lie.  That is the lie which gave the explanation of what she said he said to her as to his reasons for leaving.  It was that lie which the jury could have considered as the one which went to premeditation to establish a reason as to why he was not going to be around, or seen around, the premises.  I say it is the primary lie because the others lies to which your Honour Justice Gaudron adverts were ones which were subsequently admitted by the applicant to be lies, albeit with an explanation.

May we take your Honours to the application book at page 90, particularly paragraph [40] of the judgment of the Chief Justice in the Court of Appeal where his Honour notes that the applicant had ultimately told police:

when asked by the police, “why … she told people that he is in Japan when she knows that he wasn’t”, the appellant said: “That’s because I don’t want people to worry.”

Now, the significance of that, in our submission, is that we come back to the primary lie and if that lie which goes to what we say is the premeditation and the reason for her to tell other admitted lies then it is critical to the jury’s consideration as to whether or not that primary lie was or was not properly categorised.

GAUDRON J:   Where do we find the evidence that you say is the primary lie?  Where is the evidence that goes to that?

MR BYRNE:   We have, I believe, attempted to summarise that in our written outline, if that is a convenient summary, at page ‑ ‑ ‑

GAUDRON J:   My problem, though, is that she had said he had left, he had gone.  Did she not say that, even before he was missed?  But, any way, I am sorry, take me to your outline.

MR BYRNE:   Yes, thank you, your Honour.  It is page 107 of the application book.  What we have attempted to do there is set out the thrust of it, firstly through the words of the Crown Prosecutor at trial, namely:

numerous lies about Mr Kitayama’s departure and his intended destination.  The stated reason for his departure is untrue, namely that his sister was sick …”

So, that is the flavour.

GAUDRON J:   Yes.

MR BYRNE:   The trial judge in paragraph 3.1.2 takes that up and that is further expanded in 3.1.3 where:

His Honour emphasised such alleged lies . . . “Most of the alleged lies concern accounts given by the accused in which she said or implied that her husband had returned to Japan or was in Japan.  In some cases the statements relied on by the Crown was coupled with an explanation for the departure –

and that relates, in our submission, to what is said next, that is:

to visit his sick sister.

GAUDRON J:   None of that is true.  It is accepted that none of that is true, is it not?

MR BYRNE:   The Crown led evidence that his sister was not sick but the importance of the fresh evidence which was obtained for the appeal – and we have supplied to your Honours as part of the material, a copy of the affidavit of Melissa Ann Di‑Giovanni – that evidence was not challenged in the Court of Appeal and was held, on its face, to be cogent.

GAUDRON J:   But it was not a statement to the applicant, was it?

MR BYRNE:   No, it was a statement by Mr Kitayama in the presence of the applicant to an independent witness.

GAUDRON J:   So she seized upon it?

MR BYRNE:   No, by repeating it ‑ ‑ ‑

GAUDRON J:   One view is, so she seized upon that to make up the other lies.  I just do not see how this could help your case.  It seems to me that it creates a much more damning case for the applicant than the one that was presented at trial.

MR BYRNE:   No, we put it forward this way, your Honour, if that affidavit and the material contained in it is correct, then what the jury did not hear in the trial was that Mr Kitayama had told a lie.  Specifically, he had told a lie as to the reason for his ultimate departure, namely, to go to Japan:

to visit his sick sister.

GAUDRON J:   Yes, and on the basis of that lie – well, armed with the knowledge that he was lying in that and had lied in that regard, the Crown would contend that the applicant then concocted all of this, that that provided her with the opportunity that was otherwise not there.  It seems to me the case is much worse for the applicant when this evidence is in than without it.

MR BYRNE:   With respect, your Honour, the Crown case against the applicant was that he had never said anything along those lines.  She had made up that he had said that.

GAUDRON J:   Well, there was that – yes.

MR BYRNE:   And that she had also made up the fact that his sister was sick, which is, thinking about it, quite a ridiculous thing for her to make up as it could be easily disproved, but what this evidence goes to show is not that she adopted and carried on with the lie.  It was never the evidence that she knew at that time his sister was not sick.  That was subsequently something proved by the Crown in the course of the murder trial.  The importance of the evidence is that it is not her which is telling or repeating the primary lie, it is the person who ultimately disappears who is telling a lie as to the reason for his imminent departure and the jury, armed with that information which undermines the primary lies, as we have described it, by her, then their process of reasoning could have been quite different.  

Their reasoning could well have been, and would have been, in our respectful submission, that where the person who vanishes is telling lies as to a reason for his departure then we need to look more closely at this evidence.  We can safely disregard the primary lie alleged against the applicant by the Crown and we then come to examine the other evidence in light of that.  What we say, in effect, is that what ‑ ‑ ‑

KIRBY J:   But then there is a great deal of evidence.  There is, according to the Chief Justice – correct this if it is wrong – evidence of blood which matched the husband’s type in the unit in positions suggesting a good deal must have been cleaned up.  There is the ushering in and quickly ushering out of visitors to the unit, the smell of the large packed rubbish bags in the kitchen, the drilling and cutting overnight for very long periods, the purchase of the chainsaw between the time of the disappearance and her departure and the bag smelling of decayed meat.

I mean, you add all of that.  It is a very, very, very powerful Crown case.  I mean, I think that the issues of the lies are peripheral to the central matters which would have been affecting the mind of the jury.

MR BYRNE:   We accept, of course, what your Honour says, but that is not the way – I mean, it was presented as a circumstantial case but it was presented as lies being a central part of that case.  Where the jury has not had the advantage of being able to assess the true basis of the statements made by the applicant then, in our submission, the Crown has arguably obtained a conviction for murder based on a false premise, a premise now shown to be incorrect.

This Court and other ultimate courts of appeal have noted that courts assessing jury verdicts must be cautious because of their lack of understanding of the true process of reasoning adopted by juries in coming to their conclusion.  We would submit that the primary lie here would have been a matter which loomed large in their considerations, together with, of course ‑ ‑ ‑

KIRBY J:   Do you think so?  I mean, I accept what you say about the need for caution and I remind myself of that, but I would have thought that the matters that I mentioned to you would have loomed much larger in the mind of people asking what happened than the fact that people – everyone knows people tell lies when they are in a corner and that being the case, that is icing on the cake, I would have thought, to the Crown’s case, but the central facts are the very, very vivid evidence relating to a mode of disposure of a dead person by this small woman.  “How could she do it?”  Answer, “Chainsaw, cutting up, long hours, bags of rubbish, malodorous smelling meat.”

GAUDRON J:   It was not a chainsaw.

KIRBY J:   Well, there were two saws involved.  Ultimately, one was found to have been purchased which has not been discovered.  I think that is correct, is it not?

MR BYRNE:   That is so, your Honour.  Your Honour, again, trying to avoid the risk of repeating ourselves, we say the jury, accepting all of those things, would have had a different spin to what is a body‑less murder, in effect, where the person said to have been missing is giving false explanations for his own departure prior to it happening.  That is something which the jury was never able, because of the way the evidence fell, to bear in mind in considering all the other matters raised by your Honour.

The final point we seek to make deals with part of the other evidence which your Honour has put against us and that is the evidence going to the purchase of the power ‑ ‑ ‑

KIRBY J:   I did not put it against you.  The Crown put it against your client.  I am just telling you what was going on in mind about this case because, obviously, with a body‑less murder you are very concerned at the risk of a miscarriage of justice and you have to look at it very, very carefully.  I am sorry, I interrupted you.  You go on.

MR BYRNE:   No, and that is quite so, particularly where we now have important knowledge that we did not have before, namely, what I have adverted to.  But, the other aspect in relation to the power tool, we have at page 110 of the application book dealt with the evidence of identification of the person said to have purchased that power tool.

KIRBY J:   This is where the interpreter was identified?

MR BYRNE:   That is quite so.

KIRBY J:   Yes.  That happened to me, once, when I was a young solicitor.  I was identified in Court as the accused and so it does it happen.  People make mistakes in these circumstances.

MR BYRNE:   Hopefully, your Honour was not convicted after that identification.

KIRBY J:   No.

MR BYRNE:   What happened here, though, is that there was this real problem with the evidence, it was not just the picking out at committal of the interpreter, it was the problems with the dates.  The Crown properly makes the concession, in our view, at page 117 of the application book.  It is 3.6 and it is the second point ii) – there seems to be a typographical error there – where the Crown makes the submission, which we accept as correct, that:

mere evidence of similarities between the customer and the applicant, falling short of an identification would still advance the prosecution’s circumstantial case.

We accept that but we note that there is a real difference between leading evidence of similarities and leading evidence of a positive identification by a person on the power tool which, again, is an important part of evidence.  May we just briefly take your Honours to page 106 of the application book, our paragraph 2.8, where we have dealt with the difficulties, to use a neutral word, of the identification evidence.

If the Crown were properly to restrict the evidence of this witness to similarities rather than a positive identification, what there would be is that

she would be able to say there was a person of Asian appearance who had straight hair, and that is the end of it.  The applicant had curly hair.  There would not have been the evidence of identification and the other points of difficulty are there highlighted.  In our submission, when one adds that there was this positive identification, together with ‑ ‑ ‑

KIRBY J:   How long after the encounter was this identification or this description given?

MR BYRNE:   I am relying on memory but I believe it was about two months, your Honour.

KIRBY J:   Is it an unfair thing for me to infer that more relevant than the appearance of the hair was the fact that of all the people who might have purchased it it was a woman of Asian appearance.  Is that not a more relevant matter?

MR BYRNE:   That is a relevant matter, certainly, going to similarities.  It is not a matter to elevate this to positive identification, given the other features that we have referred to.

GAUDRON J:   But what was important was the Bosch brochure which was found in the unit and which the evidence was you got only when you bought the packaged tool.

MR BYRNE:   That was found in the unit, your Honour, yes.  We accept that is clearly admissible corroborative evidence but it should not have been evidence led to corroborate a positive identification, as was the case here.  Unless there is something further ‑ ‑ ‑

GAUDRON J:   I do not know that it is strictly accurate to say “led to corroborate evidence”, was it?  The point of this evidence was to prove that the applicant had the means of disposing of the body.

MR BYRNE:   And part of the proof of that was the evidence of identification of her as the purchaser, together with, as your Honour has pointed out, the brochure.

GAUDRON J:   Yes.

MR BYRNE:   Those are our submissions.

GAUDRON J:   Yes, thank you, Mr Byrne.  We do not need to hear from you, Ms Clare.

The Court of Appeal did not err in principle in its consideration of the evidence upon which the applicant seeks a new trial, nor did it err in principle in its consideration of the evidence relating to the purchase of a saw at Southport.  We are not convinced that there has been a miscarriage of justice in this case and, accordingly, special leave is refused.

AT 10.49 AM THE MATTER WAS CONCLUDED