Knuckey v The Queen - [2004] WASCA 199

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: KNUCKEY -v- THE QUEEN [2004] WASCA 199

CORAM: MURRAY J
STEYTLER J
TEMPLEMAN J

HEARD: 5 AUGUST 2004

DELIVERED : 27 AUGUST 2004

FILE NO/S: CCA 156 of 2003

BETWEEN: PHILIP FREE KNUCKEY
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :HEALY DCJ
File Number             :  IND 20 of 2003

Catchwords:

Criminal law - Appeal against conviction - Applicant convicted of stealing a motor vehicle and wilfully driving it in a reckless manner - Identification in issue - Conviction based wholly on circumstantial evidence - Whether verdict of jury was unsafe and unsatisfactory where there was no direct identification of the applicant - Evidence established applicant had some connection with stolen car - Applicant gave no explanation for presence of palm print on stolen car - Jury in best position to evaluate witness's reaction to questioning about identity of the applicant - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr S B Watters
Respondent: Mr B Fiannaca & Mr L M Fox

Solicitors:

Applicant: Paul Roth & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Plomp v The Queen (1963) 110 CLR 234
Weissensteiner v The Queen (1993) 178 CLR 217

Case(s) also cited:

Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Davis v The Queen (1990) 5 WAR 269
Doney v The Queen (1990) 171 CLR 207
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Marinovich (1990) 46 A Crim R 282
R v Shippey [1988] Crim LR 767
Shepherd v The Queen (No 5) (1990) 170 CLR 573

MURRAY J: I have read in draft the judgment of Steytler J. I agree with it and that, for those reasons, leave to appeal should be refused.
STEYTLER J: On 5 September 2003 the applicant was convicted, after a trial by jury, on one count of aggravated burglary and another of stealing a motor vehicle and wilfully driving it in a reckless manner. He has applied for leave to appeal only against his conviction on the count of motor vehicle theft and reckless driving. His sole ground of appeal, after amendment, is that the verdict of the jury is unsafe and unsatisfactory.
The prosecution case, in a nutshell, was as follows. The applicant and a co‑offender, Cathy Harris, hired a BMW coupe on 13 March 2002 from a car hire firm known as Executive Hire Cars. They did so in false names. Notwithstanding that the hire was for a term of only 24 hours, they kept the BMW and continued to drive it after that time. In the early hours of 15 March 2002 the BMW, driven by the applicant with Harris as his passenger, was involved in a high‑speed car chase during the course of which the applicant drove the car recklessly.
The material evidence at the trial was given by Mr Raymond Igloi, the owner of the car hire firm, Ms Jessica Obee, a hotel receptionist who had been employed at the Sunmoon Resort in Scarborough (where the applicant and Harris were said to have stayed), two police officers, Detective Sergeant Wayne Deany and Detective Senior Constable Grant Forbes, Mr Steven Morris, a fingerprint technician, and Harris.
Mr Igloi's evidence was that arrangements had been made with his car hire firm on 13 March 2002 for the BMW to be hired for a period of 24 hours. The driver was to be a Meghan Fraser and the booking was made in the name of Mark Bartlett. The car was to be dropped off at the Sunmoon Resort, where the two were staying. Mr Igloi made his way to the hotel and asked for Meghan Fraser. A woman answering to that name came into the reception area and showed him a driver's licence, without photo identification, in that name.
Mr Igloi was not satisfied by what he saw. He asked to see Mr Bartlett so that he could obtain additional details from him. A man answering to that name came down to the reception area. He had a fair complexion and dark hair and was about 5 feet 10 inches tall, with a slim build. He had a tattoo which, Mr Igloi said, was on his hand between the thumb and forefinger. Mr Igloi recalled that the tattoo was green in colour and said that it was in a small, circular shape. He did not recall the circle as having been "filled in". The man provided Mr Igloi with an

expired credit card (which later turned out to have been stolen) bearing the name Mark Bartlett. Mr Igloi proceeded with the booking and handed over the BMW. He was subsequently unable to identify the applicant (or anyone else) from a photoboard.

Ms Jessica Obee, the hotel receptionist to whom I have earlier referred, remembered the two people who had hired the BMW but could not remember what the male had looked like.
The two detectives, Deany and Forbes, had been involved in the high‑speed chase which took place in the early hours of 15 March 2002. At one time during the chase, their car had stopped one and a half metres in front of the BMW, allowing Deany to have a reasonably good view of the driver of the BMW and also of the female passenger. However, Deany said, he was not able to make any positive identification. Instead, he relied on "information" as to who it was who might have been in the BMW that night. In a report which he prepared, he nominated two people as persons of interest in respect of the offence, neither of whom was the applicant.
Detective Forbes did not get as good a look at the two occupants of the BMW as did Detective Sergeant Deany. He was able to say no more than that the driver had been male and the passenger female. Two other police officers who had pursued the BMW were unable to make any identification of the offenders at all.
Mr Morris' evidence related primarily to a right palm print which had been found on the driver's side rear fender of the BMW. The palm print was that of the applicant. However, Mr Morris also said that a fingerprint had been found on the inside of the driver's side window of the BMW. The fingerprint matched that of a man by the name of Peter James Milberry. No fingerprints matching those of the applicant were found anywhere on the inside of the car, although, Mr Morris said, fingerprints are not always left on surfaces which are touched, particularly those which are not smooth. He mentioned that a person with very clean hands might not leave a print even on a smooth surface. Obviously, the same would be true of a person wearing gloves. Finger marks were found on some interior surfaces of the car. However, Mr Morris said that these had been left on rougher surfaces than the window, leaving insufficient ridge detail for any identification to be made.
That leaves Harris. She admitted her part in the car theft and high‑speed chase and said that the driver's licence shown by her to Mr Igloi had been stolen. She also said, in the course of her evidence at the applicant's trial, that her co‑offender had been her then boyfriend, a person named Phil (the applicant's first name is Philip). She could not remember this person's surname. When asked if she knew the man seated in the dock (the applicant), she said, "I'm not sure. He looks different." The following exchange then took place:
"He looks different to what?---To who I remember.
Who do you remember?--- I don't know."
She said that she had last gone out with "Phil" a few years ago and that, while she had then seen him nearly every day, she had only gone out with him for about a month or two. She gave a description of how he had looked then. She also said that, after she and Phil had hired the BMW, they had visited friends and that Phil "might have taken them for a quick spin". She said that she did not know exactly "who went for each ride" but that she knew that some of the persons they had visited had done so. She explained her difficulty in providing details by saying that she had trouble "remembering the beginning of the day half the time". She said that she had lost contact with Phil shortly after the offences had been committed and that she had seen him since only on one occasion when he was with a friend of hers. Her evidence at the trial was given some 18 months after the offences had been committed. She was not cross‑examined by counsel for the applicant.
The applicant did not give evidence. However, it was common cause at the trial that he has a tattoo at the base of his thumb. The tattoo takes the form of a small disc with a star inside it.
Against this background, the applicant raises only one ground of appeal. It is that the verdict of the jury was unsafe and unsatisfactory because:
"i)the girlfriend of the alleged offender was unable to identify the Appellant/Applicant in the dock as being the person present when the offences were committed;
ii)the witnesses Mr Igloi and Ms Obee both met the alleged offender, yet were subsequently unable to identify the Appellant/Applicant from a police photoboard;
iii)there was no direct evidence from any of the police officers involved in the car chase that the person driving the car they were pursuing was the Appellant/Applicant;
iv)Mr Igloi identified the alleged offender as having a tattoo smaller than a 5‑cent piece on his hand in the crescent between the thumb and forefinger, but could not recall what hand that was on, other than to state it was 'a circle and it seemed to be green'. However, the Appellant/Applicant's tattoo is not in the crescent area of the hand, but is on the back of the thumb and is a disk with a star inside it;
v)The Appellant/Applicant's sole fingerprint (in the form of a palm-print) was found on the exterior of the motor vehicle, on the rear driver's side fender. However, several other prints were lifted from both inside and outside the vehicle and one, from inside the vehicle, was matched to another male, Mr Milberry. There was no evidence that any prints of the Appellant/Applicant were found inside the motor vehicle."
It is true that there was no direct identification of the applicant. However, each of the witnesses who saw the male offender at relevant times (leaving Harris to one side, for the moment), while unable to identify the applicant, was also unable to say that he had not been the male offender. Moreover, as I have said, Mr Igloi was able to remember the tattoo which he had seen on the person calling himself Mark Bartlett, and that tattoo was in a very similar place and of a broadly similar description to that found on the applicant. A photograph of the applicant tendered at the trial, exhibit 12.1, shows that it was at the base of the thumb, very close to the webbing between thumb and forefinger. As has been said in the grounds of appeal, the tattoo takes the form of a small disc with a star inside it.
Also, while Harris was unsure whether or not the applicant was her ex‑boyfriend and said that he looked different to the man that she remembered, she was not prepared to say that he was not her ex‑boyfriend.
Consequently, the jury was left with evidence in the form of the tattoo on the applicant's thumb which was similar to that described by Mr Igloi, the finding of the applicant's palm print on the rear driver's side fender of the BMW and the fact that the applicant had the same first name as the offender identified by Harris. The jury was also able to take into account the fact that the applicant offered no explanation for the existence of his palm print on the stolen car.
Counsel for the applicant submitted that this was an insufficient foundation for a finding of guilt, more particularly in the light of Harris' evidence to the effect that others looked at, and even sat in, the stolen vehicle and in the light of the fact that the fingerprint of another person was found inside the stolen car.
I am unable to accept that submission.
There could be no doubt, given the finding of the palm print, that the applicant had some connection with the stolen car. That others, including Milberry, may at some time have been inside the car is of no great significance. Harris' evidence was that the offender was her then boyfriend, "Phil", and not Milberry. The fact of the applicant's connection with the car, taken with the fact that his tattoo was very similar to that observed by Mr Igloi, undoubtedly strongly supported an inference that he had committed the offence charged. Moreover, it was reasonable to expect that, if the truth were consistent with his innocence, some explanation for the existence of the palm print would have been forthcoming from the applicant. The fact that none emerged further strengthened an inference of guilt (see Weissensteiner v The Queen (1993) 178 CLR 217).
While it may be so that, if the applicant had, in truth, been Harris' boyfriend at the time, she should have had no difficulty in identifying him, this must be seen in the light of her own description of her memory and in the light of the fact that all those who had seen the male offender at the relevant time said that he had then had long hair. The applicant, who had long hair at the time of his arrest (as appears from exhibit 12.1), seemingly did not have long hair at the time of the trial. Also, and perhaps more pertinently, the jury was in the best position to evaluate the genuineness of Harris' reaction at the time at which she was asked whether or not she knew the man in the dock, having been able to see her and to hear her evidence.
It is important to bear in mind, when considering an appeal against a conviction based wholly on circumstantial evidence, that the question is still that of whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt: Plomp v The Queen (1963) 110 CLR 234 at 247, per Menzies J. In all of the circumstances to which I have referred, it seems to me that it was so open to the jury in this case.
I would consequently dismiss the application for leave to appeal.

TEMPLEMAN J: I agree, for the reasons published by Steytler J, which I have read in draft form, that this application should be dismissed.