Klink v the Queen
[2014] VSCA 325
•12 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0139
| ABDULGINI KLINK |
| v |
| THE QUEEN |
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| JUDGES: | NEAVE, REDLICH and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 November 2014 |
| DATE OF JUDGMENT: | 12 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 325 |
| JUDGMENT APPEALED FROM: | [2014] VCC 775 (Judge Parrish) |
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CRIMINAL LAW – Conviction – Unsafe and unsatisfactory – Sufficiency of evidence – Innocent hypothesis of mistaken identity – Whether evidence led called for explanation from appellant – Weissensteiner v The Queen (1993) 178 CLR 217, RPS v The Queen (2001) 199 CLR 620, Azzopardi v The Queen (2001) 205 CLR 50 considered but not applied – No evidentiary foundation supporting innocent hypothesis there was another person of same name as appellant who committed the crime – Appellant’s name and address linked him to crime – Open to jury to be satisfied of guilt beyond reasonable doubt – Farquharson v The Queen (2012) 36 VR 538 applied – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P G Nash QC with Mr J J Lavery | Chester Metcalfe & Co |
| For the Respondent | Mr D A Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I agree with Whelan JA.
REDLICH JA:
I also agree with Whelan JA.
WHELAN JA:
After a two week trial by jury in the County Court the appellant, Abdulgini Klink, was convicted of two offences of reckless conduct endangering life. Following a plea hearing on 21 May 2014, he was sentenced on 6 June 2014 to a term of imprisonment.
On 8 October 2014 I granted Mr Klink leave to appeal both his conviction and sentence. The sentence appeal was withdrawn during the hearing of the conviction appeal.
The grounds upon which the appellant was given leave to appeal his conviction were the following:
1. The convictions are unsafe and unsatisfactory.
2. The convictions are not supported by the evidence.
3. The direction given in the judge’s charge on the issue of the jury needing to be satisfied that the accused in the dock was the same man as the man who subscribed to the telephone service 0415 208 595 and travelled on Qantas and Virgin flights were [sic] likely to lead to speculation.
In substance, the issue raised by all of the grounds comes down to this. The appellant submits that whilst the Crown’s evidence was sufficient to enable a conclusion to be drawn that a man named Abdulgini Klink, or using the name
Abdulgini Klink, was the offender, there was no evidence that the accused in the dock, who does have that name, was that offender.
Matters proved and not proved
Whilst there were many factual issues in controversy in the trial, it was accepted on the appeal that the Crown had led evidence by virtue of which the jury could properly conclude that:
1.A group of men, two of whom were Hamed Ajaj and Omar Ajaj, fired 12 shots at a house in Meadow Heights, a suburb of Melbourne, on Sunday 25 May 2008 as an act of intimidation directed towards the collection of a drug debt. There were people present in the house at the time. Two of the group were approximately the accused’s age and height. Hamed Ajaj was tried at the same time as the appellant.
2.A phone with the number 0415 208 595 (which I will refer to as the ‘595 phone’ and ‘595 number’) was used by one or more of that group of offenders.
3.A person recorded in the records of the airline Virgin Blue as having the name ‘Klink, Abdulgini’ flew to Melbourne from Sydney on Friday 23 May 2008 in company with Hamed Ajaj and Omar Ajaj.
4.The records of the telephone company Vodafone contain the following entry in relation to the 595 phone:
Billing name: Mr Abdul Klink
D.O.B.: 7/6/1989
Billing address: 41 Stanley Road Lidcombe NSW 2141
Activated: 28/6/2007
5.A person recorded in the records of the airline Qantas as having the name ‘A Klink’ flew from Melbourne to Sydney on Monday 26 May 2008.
6.According to the records of Vodafone the 595 phone was in Melbourne and in Sydney at times and places consistent with it being in the possession of the person who flew from Sydney to Melbourne and back on the flights referred to.
7.On 8 September 2008 a person named Abdulgini Klink gave the 595 number to a police officer named Senior Constable James D’Morais in New South Wales as being his phone number, after that person had been involved in a motor vehicle accident. Senior Constable D’Morais, who attended the accident, confirmed the identity of that person by comparing his appearance with a photograph on the driver’s licence given to him by that person.
8.‘Abdulgini’ is a name comprised of the words ‘Abd’, of which ‘Abdul’ is a Westernised version, meaning servant or worshipper; and ‘ulgini’ which is the definite article (‘ul’) and one of the 99 names of God. The diminutives or ‘pet names’ which might be applied to a person named Abdul include ‘Aboud’, ‘Aboudy’ and ‘Aboudeh’. These names were used in relevant telephone intercepts.
The appellant’s birth date is 7 June 1989, the same date of birth as appears in the Vodafone record. The appellant’s address is 41 Stanley Road, Lidcombe, New South Wales, the same billing address as appears in the Vodafone record. The fact that the appellant had travelled from Sydney to Melbourne and then returned on the specified dates was not disputed at the commencement of the trial. Indeed, as will be seen, the fact that he had done so was relied upon for the purpose of having certain prejudicial evidence excluded.
There was evidence available to the prosecutor to prove at least those three connections between the offender and the accused. On the appeal it was submitted that none of those matters had been proved before the jury. In order to understand how that position arose, it is necessary to review the progress of the proceeding and the trial in certain respects.
Review of the progress of the proceeding and the trial
The Crown case was that the conduct which was the subject of the relevant charges was undertaken at the direction of a person named Bassam Hamzy. A document entitled ‘Response of Accused to Prosecution Statement for Initial Directions Hearing’, dated 12 February 2013 and sent to the Office of Public Prosecutions by the appellant’s solicitor, contained the following statements:
The accused admits he travelled [sic] to Melbourne from Sydney around this time period as he was to transport money from Melbourne to Sydney for Bassam Hamzy. This was his only involvement with Bassam Hamzy. The accused has been dealt with in NSW for this offence having entered pleas of guilty to charges relating to the money he transported to Sydney and has been sentenced for same.
…
[Reference is made to a number of telephone intercepts, particularly one at 7.45pm on 25 May 2008.]
That conversation if it can be said to be relating to the accused is a conversation about the accused returning to Sydney with the money for Hamzy, as he did return with the money on the 26 May 2008 on his own.
The document stated that Mr Klink denied any involvement in the incident at Meadow Heights.
Counsel for the appellant in the trial[1] prepared a document entitled ‘Defence Response to Prosecution Opening’. The document is undated. It reads as follows:
[1]Junior counsel on the appeal. Senior counsel on the appeal did not appear at the trial.
1.The Accused denies being part of any joint criminal enterprise to use firearms during May 2008.
2.The Accused denies being present at [address] Meadow Heights on 25 May 2008.
3.The Accused does not admit that he took part in any telephone calls as asserted by the Prosecution.
4. The Accused intends to seek a separate Trial.
5.The Accused objects to the Prosecution leading any evidence of his travel between Sydney and Melbourne between 23rd and 26th May 2008, and he objects to evidence of him conveying cash between those two cities.
On 26 February 2014 pre-empanelment argument began. There were many issues raised for the judge’s pre-empanelment determination.
One of the issues raised by counsel for Mr Klink was the matter foreshadowed in his response concerning the prosecution’s intention to lead evidence of Mr Klink’s travel between Sydney and Melbourne on 23 and 26 May 2008. It was submitted to the trial judge that this evidence was irrelevant. That was the first basis of the objection. In the course of argument counsel for Mr Klink confirmed to his Honour that his ‘normal address’ was in Sydney. Counsel then went on:
There’s a second issue with all of that Your Honour. And that is as I understand, the prosecution say that those movements can connect him in a common purpose in collecting debts and that this charged offending is part of that debt collection. Now, what will ultimately be argued Your Honour is this. This trial was not concerned whether he was part of a common purpose in collecting debts. He’s been, I might say, convicted in New South Wales of events that relate to the collection of debts. This trial, in my submission, is concerned [with] whether he’s involved in a common purpose in firing shots at a house, not collecting debts. Whether he travels from Sydney to Melbourne, Melbourne to Sydney, yes that would be relevant to debt collection. That’s what he’s here for. He might be collecting debts that have nothing to do with the shooting.
In the course of the argument counsel for Mr Klink told the judge that Mr Klink had been in Melbourne from Sydney ‘that weekend’ and that his purpose in travelling between Melbourne and Sydney was to transport money but not money relating to the shooting. Counsel for Mr Klink submitted that there should be no evidence led of any of these matters because of the potential prejudice to his client.
The pre-empanelment submissions on various issues continued over a number of days.
On 4 March 2014 the issue of evidence about Mr Klink’s travel between Melbourne and Sydney arose again. After having dealt with a number of matters, the judge asked whether there was anything else and counsel for Mr Klink raised the issue of the evidence about his client’s travel movements. The judge referred to the fact that the evidence concerning his movements had been used in relation to another offence in Sydney and the following interchange then occurred:
[COUNSEL FOR THE APPELLANT]: Yes, Your Honour, because he was convicted in Sydney of knowingly possessing proceeds of crime – sorry, recklessly possessing proceeds of crime being $31,000 being money that he brought back from Melbourne to Sydney on that return trip to Sydney.
HIS HONOUR: From Melbourne back on the return trip?
[COUNSEL]: Yes.
HIS HONOUR: So just assume that the evidence was given, so the B date when he returns from Melbourne to Sydney he was alleged to have taken proceeds of crime back and he’s subsequently been convicted of that.
[COUNSEL]: He’s been convicted of that and as I understand, Your Honour, the case was that he travelled down to Melbourne to collect debts and this $31,000 that he took back for which he has been convicted, but that was the reason for him being here. It is important in this case because there’s been a number of times that the learned trial prosecutor has referred to the agreement being one to collect money. Well, he’s not charged with that and if he was charged with that there would be arguments about autrefois convict. The charge that he faces is one of being involved in the shooting, or charges I should say are reckless conduct charges. The agreement in question in my submission is an agreement to engage in that, not an agreement to collect money or to collect debts or anything of that sort because if that’s what he’s been charged with, there will be an argument about autrefois. The agreement that’s in issue here is whether he was involved in that agreement to do that drive-by shooting.
In response to a suggestion from the trial judge that whilst his movements were relevant to the charge of which he had been convicted they were also relevant to these charges, counsel for the appellant said:
No, but it’s hard to argue that there’s any probative value in the travel in this case save to put him in the area and if that’s the probative value of it – and when I say ‘the area’, I mean Melbourne – if that’s the probative value of it, we’ll sign a concession that he was in Melbourne on that weekend and that does away with the need for that evidence.
The objection made by counsel for Mr Klink to the leading of evidence about his conveying cash between Melbourne and Sydney was referred to in a ruling on 18 March 2014,[2] but the issue does not seem to have been ruled upon either before empanelment or afterwards. Rather, the arguments appear to have been subsumed within more extensive and detailed arguments made concerning the admissibility of telephone intercepts.
[2]DPP v Ajaj [2014] VCC 262 [13].
As matters transpired, counsel for the prosecution did not seek to lead evidence in the trial of the uncontroversial fact that Mr Klink, the accused, had travelled between Melbourne and Sydney on the dates referred to, albeit that he maintained that that was for the purpose of moving cash for Mr Hamzy and that he had already been dealt with for that offence. The issue did not arise again until it arose during a no case submission at the conclusion of the Crown case.
I turn then to the trial before the jury. I do not intend to comprehensively review what occurred during the trial before the jury. Rather, I am only concerned to identify those matters relevant to the specific issue now raised. There were many other issues in contention during the trial.
When Mr Klink’s counsel responded to the prosecution opening before the jury he relevantly identified the issues in the trial as being as follows:
I don’t expect there’s going to be any great argument that there was some people inside when it happened. The real question is, though, the prosecution is saying that Mr Klink was either present with the people who fired the shots or one of the people who fired the shots, but he was there. The first issue that I raise, and this is the (indistinct) point of the case, really, he wasn’t there. The prosecution say, ‘Well, I’ll prove he was there’, and the defence say, ‘Well, you won’t because he wasn’t’.
The second thing that the prosecution say is that there was a joint criminal enterprise involving Mr Klink to fire those shots. The defence say the second issue is this; there might have been some joint criminal enterprise but he wasn’t part of it. They’re going to prove that he was and we say that they’re not because he wasn’t part of it.
…
[I]t’s not for him to prove that he wasn’t there. It’s for the prosecution to prove that he was there. It would be a terribly unfair system if he had to prove, somehow, that he didn’t commit this crime. They have to prove he was there and they have to prove that he was part of it. As I say, the issue in this case is that he wasn’t.
…
If you got to this point, and I’m not suggesting that you would, but if you got to the point of saying, ‘Look, I think that that man, Klink, did have something to do with Hamzi, Hasam Hamzi. I think he did.’ So what? If you really analyse it, that still wouldn’t get you anywhere near what the prosecution were seeking to prove in this case, so I’d simply raise the issue of bias and sympathy and prejudice at this stage.
On 6 May 2014 (the 17th day of the trial including pre-empanelment argument) evidence was called from Detective Sergeant Ian Wright, a police officer from New South Wales who was one of the lead investigators into offences committed by Bassam Hamzy.
Before Detective Sergeant Wright was called an issue arose as to evidence he proposed to give which had not been previously notified to the defence. It was proposed that he would give evidence that an analysis of a SIM card in a phone taken from Hamed Ajaj’s house in December 2008 had, amongst other things, revealed that one of the listed contacts was ‘Abdul Klink’ at the 595 number. Objection was taken to the leading of this evidence on the basis that it was insufficiently relevant, that the defence could not properly deal with it as they had not been notified of it before, and that it was hearsay since the analysis had not been undertaken by the witness but had been undertaken by other police. After a short voir dire on that subject matter the trial judge ruled the evidence inadmissible insofar as Mr Klink was concerned.
In the course of making submissions about that issue counsel for Mr Klink said:
My application is – my position is this, Your Honour. I object to evidence of my client’s name and phone number being linked with this witness and the basis of the objection, Your Honour, is that the evidence of the witness is hearsay evidence. That is the first part of it. And the second part is that it is without adequate notice.
A little later he added:
[T]here’s another one which is just relevance, Your Honour, and that is what is the real relevance of this six months later?
The trial judge did permit some evidence to be given by Detective Sergeant Wright in relation to the SIM card against the co-defendant Ajaj.
Detective Sergeant Wright then began his evidence before the jury. He dealt with a number of matters, one of which was the identification of Hamed Ajaj’s address as being 14 Cambridge Street, Lidcombe. Detective Sergeant Wright was asked whether he had been to the address at 14 Cambridge Street, Lidcombe, and he said that he had. He also said that he had been to the address at 41 Stanley Road, Lidcombe. A map was produced, but before it was tendered counsel for Mr Klink objected.
The map, which was eventually tendered as Exhibit 10, is a map of the area of Sydney showing the suburbs Auburn and Lidcombe. Marked on the map are two arrows which point at the suburbs and two arrows which point at particular starred addresses. There are notations on the map in relation to the two addresses. They read:
Address of Hamed AJAJ
14 Cambridge Street, Lidcombe
Address of Abdulgini KLINK
41 Stanley Road, Lidcombe
The map purported to show the respective addresses of the two accused and their proximity to each other. Before objection the police officer had given evidence that he had personally attended at both addresses.
In the absence of the jury counsel for Mr Klink made submissions on his objection to the tender of this map. The submissions began as follows:
Your Honour, this has got my client’s address written on it. It is not part of this witness’ statement. I don’t know where it comes from.
There was then an interchange about whether the address had already been proved. The prosecutor maintained that what was being tendered was merely a map. Counsel for Mr Klink said that the objection was not to the map itself. He said:
It is not the map itself, it is the endorsement on it, Your Honour. The address of Abdulgini Klink.
In response to that submission the trial judge turned to Detective Sergeant Wright (still in the absence of the jury), who had remained in the witness box, and the following interchange occurred:
Did you have any direct knowledge of where a man known as Abdulgini Klink lived at that time? – – – Your Honour I went to the address. Excuse me, I will tell you the date that I went to the address. 8 December 2009 I attended that address and spoke with Mr Klink.
You went to that address listed? – – – Yes, 41 Stanley Street, Lidcombe.
There was an interchange about the Vodafone records. Counsel for Mr Klink then indicated that he did not pursue the objection to the tender of the map. The reason for that was that he realised, upon checking, that he had received notice of the proposed evidence. The judge observed, after counsel for Mr Klink had indicated he did not pursue the objection, that the Vodafone evidence, which was yet to be called, would be ‘of someone called Mr Abdul Klink living at 41 Stanley Road, Lidcombe’ and that this witness could at least highlight where that was.
Upon the jury returning to court, the map (Exhibit 10) was tendered. The jury had not heard Mr Klink’s counsel describe the address as ‘my client’s address’, and had not heard Detective Sergeant Wright say he had visited the address and had spoken to Mr Klink.
Counsel for Mr Klink asked Detective Sergeant Wright no questions in cross-examination.
Senior Constable James D’Morais gave evidence about attending an accident in New South Wales on 8 September 2008 and about being given the name and phone number and inspecting the licence as previously referred to. He was not asked to identify the accused in the dock. In cross-examination he agreed that his independent recollection of the events was ‘pretty minimal’.
The last witness in the Crown case was one of the investigating officers from Victoria Police, Sergeant Glen Cruse. He produced two maps of Melbourne, and call records for a number of mobile phones including the 595 phone. He also produced the discs which were the telephone intercepts. All of these documents were tendered through him.
There was little cross-examination by counsel for Mr Ajaj.
When cross-examined by counsel on behalf of Mr Klink he agreed that he was the lead investigator and manager of the case. The following interchange then occurred:
What I was going to say is this: Obviously, as an investigator you have got access to various databases and I think one of them is sometimes referred to as a LEAP database, is that right? – – – That’s right.
And that gives you the ability to check up on prior convictions and that nature for any particular individual? – – – That’s right.
You’ve made an enquiry in respect of the accused man, Mr Abdulgini Klink and there’s no basis to say that he had any such history at the time that that phone call was taking place? – – – That is right.
The phone call referred to in that passage was a phone call in which the participants had referred to those involved in the incident as all having been in gaol before.
Sergeant Cruse was also asked in cross-examination about various phone numbers which existed in the names of subscribers who either could not be located or were persons who could not have subscribed to the phone.
At the conclusion of Sergeant Cruse’s evidence the Crown closed its case.
Counsel on behalf of both defendants then made no case submissions. These submissions canvassed a number of issues. The last matter raised by counsel on behalf of Mr Klink was the following:
The final issue for me, Your Honour, is this, there’ll be the argument that the Crown need – that they conceded, obviously, that they need to prove my client’s presence. They seek to do that by a process of inferential reasoning, and my submission is that that inferential process is not open in this case …
The nature of that foreshadowed submission clearly emerged later in the argument. It was submitted on behalf of Mr Klink, in substance, that the evidence led by the Crown might establish that an Abdulgini Klink had travelled to Melbourne and back on the Virgin and Qantas flights on the relevant dates and had used the 595 phone but that there was no evidence that ‘that Abdulgini Klink is that Abdulgini Klink’ (contrasting the offender with the accused). In that context it was submitted that no evidence had been led of the accused’s date of birth or of his address.
I think it is fair to say that it took some time before the prosecutor appreciated the point that was being made. His initial submissions did not seem to address the substance of what was being put by counsel on behalf of Mr Klink on this issue.
The next day the no case submissions continued and counsel on behalf of Mr Klink repeated his earlier submission emphasising that ‘there is no evidence as to my client’s address’. The Court adjourned on Friday 9 May 2014 with the no case submissions incomplete.
On Monday 12 May 2014 counsel for the prosecution applied to reopen the Crown case to lead the evidence which had been the subject of the objection made at the very outset of the trial. That is, the evidence that Mr Klink had pleaded guilty to the offence of transporting money from Melbourne to Sydney on 26 May on the flight which had been the subject of evidence already given in the trial. The prosecutor explained why he was now applying to reopen as follows:
Up until Friday, although there was an application to exclude the evidence of flight, that is Klink’s flight from Sydney to Melbourne originally, two days before the shooting and then back again, it was put on the basis, as I understand it, of lack of relevance. I remember [counsel] saying [counsel] was in Melbourne, too. Never was it identified that this issue particularly, the man in the dock was not the man who flew down from Sydney to Melbourne.
The prosecutor continued:
But to now say that the Abdulgini Klink that travelled from Sydney to Melbourne and back from Melbourne to Sydney is not the man in the dock was news to me in those terms and not something I expected and something that is easily combatable because he has pleaded guilty to travelling down from Melbourne to Sydney and the very next day with the money – Hamzy’s money knowing it to be the proceeds of crime.[3]
[3]The sequence of travel recorded at the end of this portion of the transcript is incorrect as the relevant movement ‘the very next day with the money’ was from Sydney to Melbourne.
The prosecutor had an interchange with the judge about the issue in the course of which the judge emphasised to the prosecutor the inconvenience that would be caused by any delay involved in obtaining additional evidence. Amongst other things, in the course of that interchange, the prosecutor referred to the defence responses, which I have previously set out.
Eventually, the prosecutor said that he would make enquiries and if the evidence could not be obtained quickly he would withdraw the application.
After a short adjournment the prosecutor withdrew the application.
The judge gave a short oral ruling on the no case applications finding that each accused did have a case to answer. He subsequently published written reasons for that ruling.[4] Relevantly, for present purposes, those reasons read as follows:
[4]DPP v Ajaj(Ruling No 4) (Unreported, County Court of Victoria, Judge Parrish, 12 May 2014).
In relation to the submission by counsel for Klink that there was no evidence effectively linking the man standing in the dock with the man identified as Abdulgini Klink who travelled from Melbourne to Sydney with Omar Ajaj and Ajaj, and who held the telephone number 0415 208 595, I refer to the following evidence:
(a)Exhibit 4 is a document compiled by an officer of Vodafone indicating that there was a Mr Abdul Klink, born on 7 June 1989, and living at 41 Stanley Road, Lidcombe in New South Wales 2141 to whom the number 0415 208 595 was listed;
(b)The evidence of Constable D’Morais, who attended a motor vehicle accident on 8 September 2009[[5]] which involved at least one blue Honda Civic. On making enquiries of the driver of that car, he obtained the drivers licence and on checking the photograph in the drivers [sic] licence, it was the same person to whom he was speaking. The driver identified himself as Abdulgini Klink and gave his contact number as 0415 208 595;
(c)The evidence of Detective Sergeant Ian Wright of the New South Wales police, who was shown a map of suburban Sydney and in particular the areas of Auburn and Lidcombe, and referred to, in particular, the addresses of 14 Cambridge Street Lidcombe (being the address of Hamed Ajaj) and the address of 41 Stanley Road Lidcombe (being the address of Abdulgini Klink), and he accepted that the map fairly represented those areas. A directory map of Auburn and Lidcombe was tendered, together with a map showing suburbs of Sydney and the location of the airport;
(d)I again refer to telephone intercept 11510, at which time Omar Ajaj gives Hamzy the telephone number of Klink, and Hamzy queries who that person is, and Omar Ajaj answers ‘No, it’s Abdul from the area’.
Again, I came to the view that a jury could form a reasonable inference that the Abdulgini Klink in the dock was the one and the same person who travelled from Sydney to Melbourne with Omar Ajaj and Ajaj and was one of the ‘boys’ called on by Hamzy.[6]
[5]The reference to 2009 is a mistake.
[6]DPP v Ajaj(Ruling No 4) (Unreported, County Court of Victoria, Judge Parrish, 12 May 2014) [30]–[31] (citations omitted).
Grounds 1 and 2 – Submissions on the appeal
On behalf of the appellant it was submitted that the prosecution had established that: the 595 phone had a subscriber who used the name Abdul Klink; a person using the name Abdulgini Klink and using the 595 phone had been involved in an accident on 8 September 2008 and gave that name and number to Senior Constable D’Morais; a person using that name had travelled from Sydney to Melbourne just before the offence and from Melbourne to Sydney just after it; the 595 phone had been used at points consistent with it being in the possession of the person who travelled from Sydney to Melbourne and then from Melbourne to Sydney and was also used at or near the scene of the crime; and that of the two, three or four offenders who were at the Meadow Heights house two were about 5 foot 9 inches tall and in their mid-20s. It was submitted that the only connection between the appellant and the person or persons using the name Abdul Klink or Abdulgini Klink in the various activities referred to is the fact that the appellant’s name is also Abdulgini Klink.
On behalf of the prosecution it was submitted that there was a sufficient connection established because the jury could use their own ‘knowledge of the world’ in relation to the name, and that the jury would have been able to observe Mr Klink in the dock with the co-accused Ajaj and observe that he was of approximately the right age and dimensions as the persons who had been described at the scene and would also have been able to observe his interaction with Ajaj. The prosecution also relied upon the evidence elicited in cross-examination of Sergeant Cruse about the LEAP database, submitting that the jury was entitled to assume that he had ensured that he had checked the records of the right person. It was also submitted on behalf of the prosecution that this was a case in which the principle in Weissensteiner v The Queen[7] applied. It was submitted that the evidence which was led called for an explanation and no explanation had been given.
[7](1993) 178 CLR 217 (‘Weissensteiner’).
It was also submitted on behalf of the prosecution that, given the way in which the trial had been conducted, the prosecutor ought to have been permitted to re-open and that this Court should, if the appeal is allowed, order a retrial rather than entering an acquittal.
In the course of the submissions on the appeal it was suggested that there were three hypotheses theoretically open, being:
1. That the offender ‘Abdulgini Klink’ was the man in the dock.
2.That there were two ‘Abdulgini Klinks’ and the man in the dock was the wrong one.
3.That a person who was not named ‘Abdulgini Klink’ was the offender and he had used that name.
As was put to counsel during argument, the third hypothesis was, upon analysis, clearly open to be rejected on the basis of the evidence of Senior Constable D’Morais. His evidence enabled a conclusion to be drawn that the person using the 595 phone was truly named Abdulgini Klink. Thus, the hypothesis to which attention is to be directed is the hypothesis that there were two Abdulgini Klinks and that the man in the dock was the wrong one, or more correctly, had not been proved to be the right one beyond reasonable doubt.
Grounds 1 and 2 – Weissensteiner
The reliance placed upon the High Court decision in Weissensteiner by the prosecution was, in my view, misplaced. The decision in Weissensteiner must be read, of course, in the light of the High Court’s subsequent decisions in RPS v The Queen[8] and in Azzopardi v The Queen.[9]
[8](2001) 199 CLR 620 (‘RPS’).
[9](2001) 205 CLR 50 (‘Azzopardi’).
The reasoning in Weissensteiner, RPS and Azzopardi has been considered and applied by this Court on a number of occasions when considering the unsafe and unsatisfactory ground.[10]
[10]See, eg, Butler v The Queen (2011) 34 VR 165, 172–6 [24]-[37] (Maxwell P, in dissent), 189-92 [141]-[154] (Ashley JA, with whom Ross AJA agreed); M A v The Queen [2012] VSCA 214 [46]-[49] (Neave JA, with whom Bongiorno JA and Whelan AJA agreed).
Weissensteiner, RPS and Azzopardi address two related, but different, issues. One is the issue of what use may properly be made of an accused’s failure to give an explanation or make a denial, whether by evidence or otherwise. The second is, insofar as that failure is a failure by the accused to give evidence, what direction or comment may a trial judge legitimately make in relation to that matter.[11]
[11]The fact that the issues are distinct was articulated by Gleeson CJ (when Chief Justice of New South Wales) in R v OGD (1997) 45 NSWLR 744, 750 quoted in Azzopardi (2001) 205 CLR 50, 114–15 [187] (Callinan J).
In RPS the majority confined the circumstances in which the absence of an explanation might be relied upon, as set out in Weissensteiner, to the analysis of what inferences or conclusions ought to be drawn from proven facts. Reliance upon the absence of an explanation could not be used in order to evaluate direct evidence, such as that given by a complainant in a case where sexual offences were charged.[12] That particular limitation would not preclude reliance on the absence of an explanation here as the relevant issue in this case was what conclusions or inferences should be drawn from the proven facts. The principle is not applicable here for other reasons.
[12]RPS (2001) 199 CLR 620, 631 [23], 634 [34] (Gaudron A-CJ, Gummow, Kirby and Hayne JJ).
The two majority judgments in Weissensteiner suggested that a failure to explain might be properly taken into account by the jury in a broad range of circumstances, and, in particular, may be taken into account so as to weaken an attempt to suggest possible hypotheses consistent with innocence.[13] The dissenting judgment in Weissensteiner of Gaudron and McHugh JJ did not take a clear position on the issue of the breadth of circumstances where absence of an explanation might be taken into account, and subsequently they adopted divergent positions. In RPS McHugh J adopted, it seems to me, broadly the same position on this issue as had been adopted by the two majority judgments in Weissensteiner.[14] In Azzopardi Gaudron J joined the majority in adopting a narrower view of Weissensteiner’s application.
[13](1993) 178 CLR 217, 224–5, 226, 227, 229 (Mason CJ, Deane and Dawson JJ), 233–5, 237–8 (Brennan and Toohey JJ), in particular the quotation cited and approved in both majority judgments from Windeyer J in Bridge v The Queen (1964) 118 CLR 600, 615 (‘Bridge’) .
[14](2001) 199 CLR 620, 639–40, 642–4 (McHugh J), in particular the quotation and approval of the passage from Windeyer J’s judgment in Bridge (1964) 118 CLR 600.
In Azzopardi what I might call the broad approach to the potential use which might be made of a failure to explain was not the view which prevailed. Gleeson CJ and McHugh J adopted a broad approach, consistently (it seems to me) with the two majority judgments in Weissensteiner.[15] The majority conclusion in Azzopardi was that the principle in Weissensteiner is to be more narrowly confined. On this approach a failure to offer an explanation can only be relied upon where the explanation is called for because there are matters ‘peculiarly within the knowledge of the accused’ in the sense that they are ‘facts known only to the accused’.[16] The majority said Weissensteiner itself had been such a case.
[15](2001) 205 CLR 50, 56–7 [2]–[4], 61–3 [18]–[23], [27] (Gleeson CJ), 87–90 [108]-[109], [111]-[117], 107–8 [167] (McHugh J).
[16](2001) 205 CLR 50, 75 [68], 70 [52], 73–5 [61]-[62], [64]-[68] (Gaudron, Gummow, Kirby and Hayne JJ), 123 [210] (Callinan J).
Applying the majority judgment in Azzopardi, the Weissensteiner principle could not be said to apply here. None of the relevant facts were peculiarly within the knowledge of the accused or were facts known only to him. That is obviously the case in relation to his date of birth, his address, and whether he was on the specified flights. It seems to me that there is no reason to conclude the appellant would have knowledge peculiar to him as to whether there was another Abdulgini Klink. As to whether he was the person who had the accident attended by Senior Constable D’Morais on 8 September 2008, these are not facts known only to him.
The majority in Azzopardi intended to confine the principles discussed in Weissensteiner to the very unusual circumstance, as did arise in Weissensteiner, where it is only the accused who knows of the relevant circumstances. It does not seem to me that this is such a case.
Grounds 1 and 2 – Analysis
On the appeal, and in the course of the no case submission, it was submitted that the prosecution had failed to prove ‘identity’. Putting the matter that way obscures the issue. What was really being suggested was that the prosecution had failed to prove, as Mr Klink’s trial counsel put it, that the offender Abdulgini Klink was the accused Abdulgini Klink. A reasonable doubt could only exist on this basis if there were a possibility that, in the circumstances, there were two Abdulgini Klinks, one who had committed the offence, and one who had been wrongly identified in the investigation as the offender. The hypothesis consistent with innocence which it is suggested that the prosecution in this case had failed to disprove beyond reasonable doubt is that there were two Abdulgini Klinks and that the man in the dock was the wrong one.
This issue had not been raised by counsel for Mr Klink in his response to the prosecution opening. What he had said indicated that there was an issue as to whether his client had been in Meadow Heights at the time of the shooting and as to whether he was part of the joint criminal enterprise alleged by the prosecution. It was not suggested that there existed the reasonable possibility that what had occurred was a case of mistaken identity between two people both named Abdulgini Klink. If such a suggestion had been made, the Crown could have led evidence eliminating that possibility beyond reasonable doubt.
The first point to be made about the appellant’s contention is that there was no evidence supporting the innocent hypothesis of two Abdulgini Klinks. If it exists, it arises solely from an assumption that it is always a possibility that there is more than one person with the same name. No witness suggested that there was another Abdulgini Klink, or a possibility that there was another. No such proposition was put to any witness by counsel on behalf of the appellant.
The evidence of Detective Sergeant Wright and Sergeant Cruse is particularly important in this context.
Detective Sergeant Wright tendered the map which had the address of Mr Abdulgini Klink on it. On my reading of the transcript, that map purported to show the accused’s address. That is the way the trial judge interpreted it when he came to write his reasons on the no case submission. It is also the way counsel for Mr Klink interpreted it when he objected. In my view they were correct to interpret it that way. It was also open to the jury to interpret it that way. Thus, there was evidence that the accused’s address and the address of the subscriber registered for the 595 phone were the same.
When Sergeant Cruse gave evidence he was asked about the prior record of ‘the accused man, Mr Abdulgini Klink‘. That question was asked so as to support an argument that the accused could not have been one of the people referred to in the telephone call to which Sergeant Cruse’s attention had been directed because he had never been in gaol. It was also relied upon as establishing that the accused had no prior convictions. The existence of a second Abdulgini Klink is, it seems to me, implicitly inconsistent with this cross-examination. If it were possible there were two, how was this evidence to be understood?
Finally, if the hypothesis of two Abdulgini Klinks were to be given any credence, the investigators who gave evidence must have ignored or overlooked facts which could not have failed to come to their attention, or it was open to proceed on the presumption that that was the case. This was perhaps most obviously evident when Sergeant Cruse was asked about the prior record, but it was also evident when Detective Sergeant Wright gave evidence about the addresses. In the absence of an evidentiary foundation for doubt, it was open to the jury to proceed on the basis that no such facts existed.
Grounds 1 and 2 – Conclusion
Grounds 1 and 2 contend that the convictions are unsafe and unsatisfactory and not supported by the evidence. In Farquharson v The Queen this Court summarised the principles which apply in relation to such grounds.[17] The relevant issue was perhaps most succinctly stated by Hayne J in Libke v The Queen when he said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[18]
[17](2012) 36 VR 538, 540–1 [5]–[6].
[18](2007) 230 CLR 559, 596–7 [113] (emphasis in original) (citation omitted).
In my view, it was open to this jury to be satisfied of guilt beyond reasonable doubt. They were entitled to reject the hypothesis that there were two Abdulgini Klinks and that the wrong one was in the dock because there was no evidentiary basis for that innocent hypothesis, and because such evidence as there was which bore upon the issue indicated the contrary.
Ground 3 – Submissions, analysis, and conclusion
Ground 3 concerns the direction given by the trial judge in relation to counsel for the appellant’s submission to the jury that they should not be satisfied beyond reasonable doubt ‘that the man sitting in the dock whose name is Abdulgini Klink is on the evidence in any way connected with the subject offences, even if you thought that someone called Abdulgini Klink may have been involved in those offences.’ Relevantly what the judge said, after reviewing some of the evidence, was:
Now, it is a matter for you, ladies and gentlemen, to use your common sense and experience of life as to whether or not you are satisfied beyond reasonable doubt that the person sitting in the dock, Abdulgini Klink, is the person associated with, for argument’s sake, the plane reservations. So that is a matter for you, that is a matter which you have to apply again, as I say, look at all the evidence, come to a view using your common sense as to whether or not you consider that has been proved by the Crown. Because I put it the other way, ladies and gentlemen, if you are not so satisfied, as [counsel] said, and quite rightly, if you are not so satisfied, that is the end of the matter in relation to Mr Klink in the sense that you would be bound to find him not guilty of any of the offences, because there is no connection. But on the other hand, subject to other considerations which I have raised throughout the course of this charge, it is a matter for you whether or not you accept that submission.
The submission which was made on behalf of the appellant was that, given that there was ‘no evidence’, the references to ‘common sense’ effectively invited the jury to speculate and to use ‘common sense’ as a substitute for evidence. For the reasons I have explained, I do not accept that the premise there was in the relevant sense ‘no evidence’. This ground should be rejected.
Disposition if appeal had been allowed
If I had concluded that the appeal should be allowed, this would have been an appropriate case to order a re-trial. The prosecutor was clearly taken entirely by surprise when the issue was raised during the no case submissions. The way the case was put during the no case submissions, and then to the jury, was inconsistent with the manner in which the trial had been conducted to that point. The prosecutor ought to have been permitted to re-open in order to address the issue.
There would have been no relevant unfairness to the appellant in ordering a re-trial had the appeal succeeded.[19]
[19]DPP (Nauru) v Fowler (1984) 154 CLR 627; Parker v The Queen (1997) 186 CLR 494; R v Thomas (No 3) (2006) 14 VR 512; Latorre v The Queen [2012] VSCA 280.
Further appellant affidavit
After the hearing of the appeal the solicitor for the appellant swore an affidavit on 24 November 2014 deposing to the service by the Crown on the appellant’s solicitor six days before the commencement of the trial of a list of proposed admissions of fact and deposing to the fact that the appellant did not execute that document. Two of the proposed admissions (proposed admissions 4 and 5) stated that the appellant had travelled on the specified flights.
The appellant was advised by the Registry that the affidavit would be considered. The respondent was given the opportunity to respond but it did not do so.
The affidavit deposed that the appellant sought to counter any suggestion that the appellant and his legal advisors had deliberately misled the prosecution into thinking that the trial was to proceed on the basis that the appellant did not contest that he was the Abdulgini Klink who took the specified flights. The appellant’s solicitor relies on the fact that the appellant did not execute the proposed admissions document to contend that it was ‘clearly’ left in issue whether the appellant was the Abdulgini Klink who took the flights.
I have reviewed what was said on behalf of the appellant in the defence responses and during the trial. The matters deposed to in the new affidavit do not relevantly alter that analysis. Counsel for Mr Klink objected to the flight evidence for the very reason that Mr Klink had indeed been on the return flight with the money and had already been convicted of an offence in relation to that conduct. It is not suggested the Crown was ‘deliberately’ misled. But in my view it was accepted that Mr Klink had been on the relevant flight. If that fact had not been accepted, the objection was meaningless.
Conclusion
The appeal should be dismissed.
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