Malbunka v Court
[2022] NTSC 65
•16 August 2022
CITATION:Malbunka v Court [2022] NTSC 65
PARTIES:MALBUNKA, Kielow
v
COURT, Michael
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 2 of 2021 (21759172)
DELIVERED: 16 August 2022
HEARING DATE: 18 May 2021
JUDGMENT OF: Barr J
CATCHWORDS:
EVIDENCE – IDENTIFICATION – Appeal against conviction – driving whilst disqualified – reliability of identification evidence – ‘recognition evidence’ – whether Local Court judge failed to direct himself in accordance with s 116 and s 165 Evidence (National Uniform Legislation) Act (NT) – held s 116 and s 165 did not apply to judge-alone trials in the Local Court – appeal dismissed.
Evidence (National Uniform Legislation) Act 2011 (NT) s 116, s 165
Criminal Procedure Act 1986 (NSW) s 133(3)
Criminal Procedure Act 2004 (WA) s 120(2).
Davies and Cody v The King [1937] 57 CLR 170; Filippou v The Queen [2015] HCA 29; 256 CLR 47, referred to
Fleming v The Queen (1998) 197 CLR 250 at 263; AK v Western Australia [2008] HCA 8; 232 CLR 438, distinguished
REPRESENTATION:
Counsel:
Appellant:M J O Wall
Respondent: S Lapinski
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bar2210
Number of pages: 18
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSMalbunka v Court [2022] NTSC 65
No. LCA 2 of 2021 (21759172)
BETWEEN:
KIELOW MALBUNKA
Appellant
AND:
MICHAEL COURT
Respondent
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 16 August 2022)
The appellant appeared before the Local Court in Alice Springs on 13 January 2021, charged with (inter alia) driving disqualified on 27 October 2017. He entered a plea of not guilty. After a summary hearing, he was found guilty. He appeals the guilty finding on a number of grounds.
The prosecution case was as follows. At the material time, the appellant was disqualified from driving a motor vehicle. At approximately 8:20am on 27 October 2017, the appellant was driving a Holden Commodore around the north side of Alice Springs. Solomon George was seated in the front passenger seat of the Commodore, and Cameron Ross and Eli Rubuntja were seated in the rear passenger seats. A Police officer, Remote Sergeant Jason Canning (“Canning”) saw the Commodore approaching from the opposite direction. He activated his police vehicle’s emergency lights and sirens. He also extended his hand out of the driver’s window, with the palm raised, in a gesture directing the driver of the vehicle to stop.[1]
Although Canning had been looking for a person named ‘Kielow Malbunka’, who had been identified as the driver of a Holden Commodore involved in an earlier incident, he did not recognise the appellant as the driver of the approaching Commodore vehicle.
The driver of the Commodore vehicle did not stop, and drove past Canning’s police vehicle. As the vehicles passed, they were less than one metre apart. The driver’s window of Canning’s vehicle was open, as was the driver’s window of the Commodore. Canning described the driver of the Commodore as a “stocky-set, Aboriginal male, with short hair and a dark T-shirt”.
Canning turned his vehicle around and pursued the Commodore. He managed to catch up to the vehicle after it had stopped. Three persons had emerged from the vehicle. As Canning’s vehicle got closer, the Commodore sped off in a westerly direction.
Although Cameron Ross and Eli Rabuntja were two of the three persons who had been travelling as passengers in the vehicle, Canning referred in giving evidence to Cameron Ross as ‘Cameron Rabuntja’ and (based on the transcript) the prosecutor referred to Eli Rabuntja as ‘Eli Malbunka’. The evidence was in this respect somewhat confusing.[2] Canning spoke to all three passengers. The man who identified himself as ‘Eli’ told Canning that the appellant was driving the vehicle; when asked, he said, “Kielow Malbunka”. Cameron Ross identified the driver of the vehicle by a skin name, ‘Jebidiah’,[3] or something similar. Eli Rubuntja and Solomon George then told Canning that the skin name was that of the appellant.[4] It may be noted that, although Solomon George joined with Eli Rubuntja to inform Canning that the skin name mentioned by Cameron Ross was a reference to the appellant, Solomon George did not expressly identify the appellant as the driver of the Commodore.
The single issue at the hearing was whether the appellant was the driver of the Holden Commodore at the relevant time. In addition to the evidence of Canning, summarized in [2] – [6] above, the prosecution called Cameron Ross and Eli Rabuntja. I summarize their evidence below.
Cameron Ross gave evidence as to how he came to get in the Holden Commodore. He said that he had been drinking at his cousin’s place at Morris Soak. The transcript reads, “That’s when Matthew (inaudible) picked us up and Eli.” [5] He said that he had been “too intoxicated”. He remembered hitting speed bumps and cruising down Larapinta Drive. When asked who was in the car, he replied:
--- So, there was me, Eli, Solomon – Solomon George and young fella (inaudible).
And so, you’re pointing? ---Jora.
That’s Jora, okay? ---Jora
What’s Eli’s other name? ---Rabuntja.
And Solomon? --- Solomon George.
Do you remember … Were they in the car when you got picked up or where did they get in, do you remember? --- Solomon, I think he was already in the car, and me and Eli jumped in the car.
And that was from Morris Soak? --- That was from Morris Soak.
What type of car was it, do you remember? --- It’s a while back now. I’ve just got memory, I think, might have been Commodore or something.
And when you said, “and nephew, Jora”, you were pointing at the man sitting over there, is that right? --- (inaudible)
Okay. You said nephew. Is he true nephew or Aboriginal way --- Aboriginal way, nephew.
And … before this happened, how long had you known him for? --- Not that much, young fella (inaudible) but (inaudible) Hermannsburg and since (inaudible) he came to know us at (inaudible).
Yes? --- So, yeah, I know him a bit so.
I infer from the transcript that Mr Ross spontaneously identified the appellant in court by using what was probably a skin name and pointing at him. Moreover, in spite of inadequacies in the transcription, I infer that Mr Ross had known the appellant both as a young person and more recently, so much so that he was able to say that he knew him “a bit”. That understatement suggests Mr Ross knew the appellant reasonably well.
Mr Ross said that he was so drunk that he fell asleep in the back seat of the vehicle. At some stage, Eli got [woke] him up, and said “Get up, Cameron, we getting chased by the police”. At that stage the vehicle was “going towards Larapinta, Larapinta Drive”. Mr Ross asked to be let out of the car; he told the driver that he “needed to stop, get off”, because he had children and he didn’t want to be involved in an accident. He thought that there might be an accident because they were going too fast. He could hear the sirens coming behind. He then said:
Eventually nephew stopped and we got off. That’s when the paddy wagon came and took Solomon away and that’s when me and Eli walked back.
Mr Ross said that his nephew “took off” after he and the other two passengers had got out of the vehicle.
In cross examination, Mr Ross conceded he was “full drunk, really intoxicated”. He agreed that his memory was not very good because of the lapse of time and because he was full drunk on the night.
Defence counsel suggested to Mr Ross that the driver might have been the appellant’s brother, Rodney Malbunka. The cross examination proceeded as follows:
Now, you were pointing to this young fella over here. Do you know his brother?---No.
Do you know Rodney Malbunka?---By face, but I don’t know the name.
Okay?---By face.
Does Rodney Malbunka kind of look like this fellow here?---A little bit the same, Yep.
Okay. Could it actually be Rodney who was driving the car on that night?---No, it was yeah, my nephew Jora.
Okay. Can you be sure of that?---I’m sure.
Counsel for the appellant submits that Mr Ross “disagreed” with the suggestion that Rodney Malbunka could have been driving the vehicle. In fact, as appears from the last line of the cross examination extracted in [13], he was sure that it was the appellant who was driving.
Eli Rabuntja gave evidence after Cameron Ross. Mr Rabuntja said he was the appellant’s uncle in the Aboriginal way. In relation to identification, he was asked in evidence in chief how long he had known the appellant. His evidence was as follows:[6]
And how well do you know him? How long have you known him for?---Just from, like some time when we see him drunk – when we sometime went to creek.
Yes, okay, and before this driving thing happened, did you know his real name or you just call him nephew, or what did you know him as?--- No, I just called him nephew.
Okay?--- Like but – like we didn’t know him, like (inaudible). Just from skin name and all that.
It is unclear from the first part of Mr Rabuntja’s evidence extracted in [15] whether the appellant had been drunk, or whether he (Mr Rabuntja) had been drunk when he had previously been with the appellant. The more logical interpretation of the evidence is that Mr Rabuntja and the appellant had consumed alcohol together, by a creek, and that the appellant was drunk. However, defence counsel asked the following questions, in answer to which the witness made the apparent concession that he had been drunk:
And you were saying that that nephew in the car, you’d only seen him sometimes when you were drunk?---Yeah.
How many times do you reckon you’d seen him before?--- I guess it must be once or twice.
The evidence given by Mr Rabuntja thus indicated that his previous acquaintance with the appellant had been limited to one or two drinking sessions. However, he knew him by his skin name.
In relation to the events of 27 October 2017, the evidence of Mr Rabuntja was, relevantly, as follows:[7]
Can you tell us what you remember – for a start, maybe, where did you get in that car?--- I jumped [in] from my nephew at Charles Creek.
Okay?--- And I was too intoxicated and drunk, and I just went in the back seat and sleep, went to sleep, and the next minute, I woke up and we were chasing by police to Larapinta and we told – I told my nephew to slow down and we didn’t want to lose a young lad, that’s why we told him, “pull up, we don’t want to lose” – when I jumped out from the car. …
And who else was in the car with you?--- Cameron, Solomon and me and the nephew.
Okay. Now, you’re saying nephew and you’re indicating over there to that guy sitting behind there?---Yeah.
……….
And you said that – you’re in the car and the cops were chasing you?---Yep.
And who was driving then?--- My nephew was driving.
Okay. How do you know that?--- Because we was in the back seat.
Okay. And how far did the car go – where did it go at Larapinta? What happened out there?--- No, we jumped out, just on the side of (inaudible) Oval?
Yes. Why did you get out?--- Because we was too scared and frightened.
So, you said you jumped out. Was the car moving or stopped?--- No, stopped.
And how did it stop? Why did it stop?--- We told him to slow down and we jumped out from the car.
Okay. So, who got out?--- Cameron, Solomon and me.
……….
And what about nephew, what happened to him?--- We told him to – we told nephew to slow down and give up himself, but he was too frightened to get locked up.
… What did nephew do?--- He just kept driving.
Mr Rabuntja, like Mr Ross, spontaneously pointed to the appellant when speaking about him.
Defence counsel cross examined Mr Rabuntja on similar topics as those raised with Mr Ross, but arguably more successfully for the defence case. Mr Rabuntja was “not too sure” whether his nephew had a brother, Rodney Malbunka, but when asked if it were possible that his nephew was not the driver and that it was someone else he answered, “I’m not too sure. I was too drunk”. In re-examination, however, he was more definite:[8]
So, just to clarify that Mr Rabuntja, you have just said now you weren’t too sure who was driving. When I was asking questions, you said it [was] nephew. Do you know what the right – what you remember?---Sorry, yeah, the nephew was driving and we’ve jumped out from the car at Larapinta.
Solomon George did not give evidence. There was an outstanding warrant for his arrest in relation to an unrelated matter. Sergeant Canning had been unable to locate him and had served a witness summons for his attendance on his father. Canning had seen the witness at the scene of a flooding emergency in late December 2020 and had spoken to him briefly, to remind him that he had to go to court in January and that he needed to “sort [his] warrant out”. Canning did not arrest Mr George on the outstanding warrant at that stage because of the circumstances. In any event, when Solomon George was called, he did not appear.[9]
The appellant did not give evidence.
In her closing address, the prosecutor acknowledged that the two civilian witnesses were intoxicated at the time, but emphasised their credibility: their evidence given in court as to the appellant being the driver was confirmatory of the information which they had provided to Sergeant Canning at the scene within minutes of the rapid departure of the Commodore vehicle. Judge Bamber remarked:
“You’re saying, you know, even drunk people generally know who they’re with, if they’re with people who are known to them.”
In his closing address, defence counsel submitted that Mr Ross and Mr Rabuntja had “participated in some form of in-dock identification”, and that in-dock identification evidence was “notoriously unreliable, especially in the absence of any other independent identification evidence”. Judge Bamber, correctly, pointed out that it was not a “normal in-dock identification” situation, such as where a witness may have briefly observed an incident occurring in the street and then purports to identify the participant in the incident in circumstances where the alleged participant is standing in the dock. With reference to evidence given in the case before him, his Honour characterised the two witnesses’ spontaneously pointing towards the appellant as “just acknowledging [that] the person they’re talking about is that person”.
Defence counsel then referred the judge to evidence “that they’ve met once or twice when they were drinking” and submitted that “this did not form the basis of a relationship whereby one could be said to be on long-standing and very good terms with an individual”. He submitted that Mr Ross had not explicitly named the appellant other than by a skin name, and that Mr Rabuntja had simply referred to the appellant as “nephew”. Those submissions were hardly persuasive. Counsel then submitted that the evidence of the two witnesses was vague, affected both by intoxication and the passage of time. More than three years had passed since the events giving rise to the charge. Counsel’s submissions appeared not to acknowledge or take into account the level of certainty on the part of Cameron Ross, elicited in the passage of cross examination extracted in [13] above, or the contemporaneous identification provided to Canning.
Judge Bamber found the charge proven, for reasons stated briefly as follows:[10]
This is a matter where the [prosecution] relies on the evidence of two witnesses who both stated they knew the defendant who they identified through pointing to him in the dock, and referred to him as their nephew Aboriginal way. They were in a small group of four people. Clearly, they identified he was within the group consistently and they consistently stated the driver the vehicle was the person they referred to as their nephew and who they pointed to as the person sitting in the dock.
I really don’t think it is a really great matter of names, but the persons being familiar with each other; persons who readily admitted that the driver was the person in the dock who is the defendant. There is no alternative being put. There is no suggestion that there was anyone else there and there is really nothing, in my view, that undermines the fact that the defendant is known to the two witnesses. He is certainly known well enough to them to say they can identify him.
It was put – a mention of a brother, but there is no evidence of a brother. There is nothing to suggest that a brother exists or could be mistaken or whatever. It’s just a suggestion that it that’s been put and left hanging. So that doesn’t help the defence case.
So, I find the charge proven.
Grounds of appeal
The appellant advances four grounds of appeal:
1. The learned judge erred in characterising the in-dock identifications as recognition evidence.
2. The learned judge erred in failing to direct himself as to the prejudicial nature of in-dock identification evidence.
3. The learned judge erred in failing to direct himself as to the dangers of accepting identification evidence generally.
4. The learned judge erred in drawing inferences against the defendant for failing to put forward a positive case in his defence.
In relation to grounds 1 and 2, defence counsel relies on the decision of the High Court in Davies & Cody v The King, in particular the following passage from the unanimous judgment of the Court:[11]
…. if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. The tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question.
The principle which the High Court endorsed in Davies & Cody v The King was then stated as follows:
…. if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect or has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.
In my opinion, the appellant’s characterisation of the identification of the appellant made by Cameron Ross and Eli Rabuntja as “in-dock identification” is wrong. The appellant was ‘family’ in the Aboriginal way to both men. Both knew the appellant by his skin name. Both shared a drinking relationship the appellant, that is, they had consumed alcohol together on social occasions. Both had got into a vehicle driven by him. Both had spoken to him in the vehicle. Both had heard him reject advice to give himself up and had heard his reason, namely, that he did not want to be locked up. Given evidence of such communication, their identification was not simply visual identification. Both identified the appellant as the driver to Canning, based on their previous relationship with him. They were not seeing the appellant for the first time ‘in the dock’. The appellant has not established that the judge was incorrect in the way he characterised the witnesses’ pointing towards the appellant when they were speaking about him. His Honour assessed the situation as one where the witnesses were acknowledging that the relative they were talking about was the person to whom they pointed in court.
Even if the actions of Cameron Ross and Eli Rabuntja (in pointing to the appellant when speaking about him) could be correctly characterised as “in-dock identification”, such evidence would have been permissible as confirmatory of an earlier contemporaneous out-of-court identification, made by each of them to Canning on 27 October 2017.[12]
Grounds 1 and 2 are not made out.
I turn to consider ground 3: that the judge failed to direct himself as to the dangers of accepting identification evidence.
Identification evidence – statutory provisions
Counsel for the appellant refers to two statutory provisions: s 116 and s 165 Evidence (National Uniform Legislation) Act 2011. I set out below the section or those parts which may be relevant:
116Directions to jury
(1)If identification evidence has been admitted, the judge is to inform the jury:
(a)that there is a special need for caution before accepting identification evidence; and
(b)of the reasons for that need for caution, both generally and in the circumstances of the case.
(2)It is not necessary that a particular form of words be used in so informing the jury.
165Unreliable evidence
(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a)not reproduced
(b)identification evidence;
(c) – (g) not reproduced
(2)If there is a jury and a party so requests, the judge is to:
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)It is not necessary that a particular form of words be used in giving the warning or information.
Counsel for the appellant submits that both s 116 and s 165 are relevant.[13] However, I doubt whether s 165 applies to judge-alone trials in the Local Court, because s 165(2) commences with the words, “If there is a jury …”, which suggests that the judge’s obligation to warn is engaged only if there is a jury. Moreover, even if s 165 applied to judge-alone trials, the judge’s obligation to warn is triggered by a request made by a party. On my reading of the submissions made by defence counsel in the Local Court, no request was made for the Judge to direct himself as to the dangers of accepting identification evidence generally. Defence counsel’s request was for the judge to direct himself “that in-dock identification is notoriously unreliable, especially in the absence of any other independent identification evidence”.[14] The response of the judge was as set out in [24] above. In my opinion, there was no requirement for the judge to give the direction sought. In any event, defence counsel then appeared to acknowledge that the evidence was not “in-dock identification evidence”, and made submissions as to the need for the judge to consider “the basis for that recognition evidence”. Defence counsel made this submission:[15]
So, it perhaps does not actually meet that higher threshold of recognition evidence … and your Honour should take that into account in also considering that identification evidence, in general, not just in the dock, is unreliable. I am at a loss, your Honour, to give yourself a direction as to that.
Although the definition of ‘identification evidence’ in the Evidence (National Uniform Legislation) Act 2011 is sufficiently broad to include both identification and recognition evidence,[16] I am not satisfied that defence counsel at trial sought a direction from the judge as to the dangers of accepting identification evidence generally. Defence counsel did make submissions in relation to the asserted inadequacy of the identification evidence, immediately before the judge gave reasons, but appeared not to request a direction. There is no reason to doubt that his Honour, a very experienced magistrate and Local Court judge, was mindful of the need to be careful in relation to that evidence.
As mentioned above, the appellant also relies on s 116 Evidence (National Uniform Legislation) Act 2011. Here also, I doubt that the provision applies to judge-alone trials in the Local Court. The section heading and the two subsections clearly relate to information which a trial judge is required to provide to a jury. Judges are required to give particular warnings to juries, including a Domican warning, “for the purpose of alerting juries to particular difficulties with particular classes of evidence with which they are unlikely to be familiar”.[17] Interstate statutory provisions require the same warnings in trials by judge alone.[18] However, there is no similar statutory requirement applicable to judge-alone trials in the Local Court in the Northern Territory.[19] I accept the respondent’s submission that s 116 did not require the judge to give himself a ‘special need for caution’ direction, such that a failure to do so would result in appealable error.
Ground 3 is not made out.
Ground 4 – adverse inferences improperly drawn
I now turn to consider ground 4, which asserts that the judge erred in “drawing inferences against the defendant for failing to put forward a positive case in his defence”.
The complaint is based on the following part of the judge’s reasons:[20]
…. There is no alternative being put. There is no suggestion that there was anyone else there, and there is really nothing … which undermines the fact that the defendant is known to the two witnesses. ….
It was put – a mention of a brother, but there is no evidence of a brother. There is nothing to suggest that a brother exists or could be mistaken or whatever. It’s just a suggestion that’s been put and left hanging. So that doesn’t help the defence case.
The issue had been raised in the cross examination of Mr Ross, where defence counsel had suggested that the driver might have been the appellant’s brother, Rodney Malbunka. Mr Ross was sure that the appellant was the driver. [21] When Mr Rabuntja was cross-examined, he said that he did not know Rodney Malbunka, but when asked if it were possible that the appellant was not the driver, he said that he was “not too sure “and that he was “too drunk”.[22] In re-examination, he apologised and said that the appellant (“nephew”) was driving.
As I interpret the extract in [40], his Honour’s remarks reflected his consideration as to whether there was any evidence that the driver was someone other than the appellant: whether the appellant’s brother or someone else. If there were any such evidence, it would have been necessary for the judge to consider whether there was a reasonable possibility that the appellant had not been the driver of the vehicle. If that were a reasonable possibility, which the prosecution had not disproven, then the appellant would have been entitled to the benefit of a reasonable doubt and a verdict of ‘not guilty’.
In my opinion, it was quite appropriate for his Honour to consider whether there was any evidence that the appellant’s brother (or someone else) was the driver and, if so, whether one or both witnesses had mistaken the appellant’s brother for the appellant. His Honour decided, correctly in my view, that there was no such evidence. In all the circumstances, it would be a significant misinterpretation of the judge’s reasons to conclude that his Honour had drawn inferences adverse to the appellant for failing to put forward a positive case.
Ground 4 is not made out.
The appeal is dismissed.
----------
[1]Transcript 13/01/2021, p. 9.5.
[2]Transcript p. 10.6, 10.9.
[3]That appears to be an approximate phonetic spelling. The transcript reads “Jebidiah(?)”.
[4]Transcript p. 10.9.
[5]The reference to “Matthew” appears to be a mis-transcription. The witness probably said “nephew”.
[6]Transcript p. 6.3.
[7] Transcript p. 5.8 – 7.2.
[8] Transcript p. 8.5.
[9] Transcript, 13/01/2021, p. 12.
[10] Transcript, 13/01/221, p 16.
[11] Davies & Cody v The King (1937) 57 CLR 170 at 182.
[12]See, for example, Murdoch v The Queen [2007] NTCCA 1; 167 A Crim R 329 [68] and the authorities there cited..
[13]Appellant's submissions, par 40.
[14] Transcript p 15.1.
[15] Transcript p 15.6
[16] Evidence (National Uniform Legislation) Act, Dictionary, Part I. In Trudgett v R (2007) 70 NSWLR 696 at [31], per Spigelman CJ (Hulme J and Lathan J agreeing) rejected a submission made by the Crown at [19] that recognition evidence does not fall within the definition of “identification evidence”.
[17] Filippou v The Queen [2015] HCA 29; 256 CLR 47, at [52]. The reference to ‘a Domican warning’ is to Domican v The Queen (1992) 173 CLR 555.
[18] See Criminal Procedure Act 1986 (NSW), s 133(3); Criminal Procedure Act 2004 (WA), s 120(2). Relevant cases include Fleming v The Queen (1998) 197 CLR 250 at 263 [32], per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ; AK v Western Australia [2008] HCA 8; 232 CLR 438, at 478 [104], per Heydon J.
[19] This does not necessarily present as an issue for law reform: a Local Court judge (unlike a jury) is likely to be familiar with identification evidence and would appreciate the factors which may cause such evidence to be unreliable.
[20] The reasons are extract in full in [26] above.
[21] See the transcript extract in [13] above.
[22] Transcript p. 8.
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