Micallef v The Queen

[2004] HCATrans 138

[2004] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S97 of 2003

B e t w e e n -

ALAN GEORGE MICALLEF

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 2004, AT 9.29 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   If the Court pleases, I appear for the appellant.  (instructed by Neil J. O’Connor & Associates)

MR G.E. SMITH:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions, (New South Wales))

McHUGH J:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, this application raises an important question of principle in the criminal law, namely, the proper approach to be taken by a Court of Criminal Appeal to the task of assessing whether a body of circumstantial evidence is sufficient to prove the guilt of an accused person, whether a verdict of guilty based on circumstantial evidence can be said to be unreasonable.

Your Honours, the essence of the argument for the applicant is effectively contained, in my submission, in the dissenting judgment of Justice Bell.  Your Honours, in many senses the result of this appeal to the Court of Criminal Appeal could be said to have turned on the decision made by Justice Sully.  He dealt, in the course of his judgment, with the question of whether the evidence was capable of proving that the applicant was in possession, either on his own or jointly, with another of the firearms that were found in the roof of the premises that he was renting.  Justice Sully reached the firm conclusion that there was evidence from which it was legitimate to infer beyond reasonable doubt that the applicant was in possession of the firearms in question.

There was a starkly contrasting finding by her Honour, Justice Bell, in the course of her judgment.  If I can take your Honours to page 90 of the application book, what her Honour said there alongside line 5, was this:

There was no evidence to connect the appellant to the firearms, save for the circumstance that he was the lessee of the premises.

Might I contrast that finding by her Honour as to the state of the evidence with what Justice Sully said, and that is at paragraph 5 of his judgment, which is at page 73 of the application book.  What his Honour said was:

I agree with Dunford J that the circumstantial case summarised by his Honour in paragraph [35] of his Honour’s judgment, constituted a strong circumstantial Crown case at trial.  In my opinion it was well open to the jury to find, on the evidence available at trial, that the appellant had been, at material times, in joint possession at the very least, of the weapons that were found secreted in the ceiling of his home.

Your Honours, the strong circumstantial case that was said to have been brought by the Crown in this matter is summarised in the judgment of Justice Dunford at paragraph 35, which is on page 80 of the application book.  In that paragraph, his Honour lists a series of matters which he contends are matters which establish that strong circumstantial case.  When they are examined there are 14 of them in total.  In my submission, five of those individual circumstances relate exclusively to the person who was unquestionably proved by the evidence - indeed, he pleaded guilty, as your Honours are aware, to the offence of armed robbery.  He was conclusively proved by the evidence to have been involved in the armed robbery.

Six of the matters that are referred to by Justice Dunford amongst the 14 heads upon which the Crown case is based can, in my submission, be reasonably said to be neutral matters.  There are, when the case is properly identified against the applicant, three matters alone which could be said to point to his guilt in the sense that they establish that he was the other person involved in the robbery.  The first of those matters is the fact of the finding of the guns.  The second of the matters is the finding of various papers that were related to a motor vehicle which was used in the course of the robbery.  The final matter is what was said to be descriptions of the two robbers which were broadly consistent, certainly not identification evidence, but broadly consistent with the appearance of the applicant.

Each of those matters was in turn dealt with by Justice Bell in her judgment.  She found, as I have said, in that material that I quoted earlier from her, in strong terms that there was no evidence in her opinion to connect the appellant to the firearms.  The identification evidence, or the resemblance evidence, was evidence which did not take the case beyond proving merely that the people who were involved in the robbery were similar in appearance to the man Vincent who pleaded guilty and the applicant.  The evidence that related to the papers that were found that were clearly papers that had been taken from the stolen car, again, in her Honour’s assessment, could not be said to have been material that could be relied on to draw an inference of guilt beyond reasonable doubt.

Your Honours, in assessing the strength of the case brought by the Crown, there is one matter to which I wish to make specific reference.  In page 111 of the application book, in the Crown’s submissions, the contention is made by the Crown on two separate occasions, firstly, alongside line 25 and then alongside line 42, that the applicant had a thick dark moustache.  The evidence was that the person who was seen to commit the offence had a thick dark moustache, but there was no evidence, as I read the materials, that the applicant had a thick dark moustache.

That proposition that is made in the Crown submissions, firstly, in paragraph 3.16 and then in paragraph 3.18, that the applicant was a person who had been shown by the evidence to have a particular characteristic that matched that of one of the people who committed the offence, is simply not there in the evidence.  I was unable to find it.  I have raised it with my friend this morning and I am not sure what his position is.  He was not able to refer me to the specific part of the transcript where that material appears.

Your Honours, the outline of argument that has been included in the application book makes specific reference to both the judgment of Justice Dunford and the judgment of Justice Sully and identifies what are contended to be errors in the manner in which each of their Honours respectively dealt with the issues that fell for determination on the appeal to the Court of Criminal Appeal.  Those issues are equally dealt with by Justice Bell in her dissenting judgment and it is essentially the submission on this application that the approach that was taken by each of their Honours in the majority was an erroneous approach.  On the other hand, the approach taken by Justice Bell, it is submitted, was the correct approach to take.

HEYDON J:   Can I just ask this?  These guns were not left there presumably by anyone other than someone who resided in the house.  That would be a fanciful possibility, would it not?

MR BYRNE:   Yes, I accept that.

HEYDON J:   The three people who resided in the house, the appellant lived there - apart from being the lessee in a technical sense - lived there permanently.  Correct?

MR BYRNE:   Yes.

HEYDON J:   Vincent and Danielle Bonello only stayed there occasionally.

MR BYRNE:   Yes, they stayed there from time to time ‑ ‑ ‑

HEYDON J:   Vincent had another address, he had another residence.

MR BYRNE:   Yes, in Glebe.

HEYDON J:   Does that not link the appellant much more closely with the guns than it links Vincent?

MR BYRNE:   Not in my submission, your Honour, because ‑ ‑ ‑

HEYDON J:   Perhaps may we also leave Danielle Bonello out of it, she was not going to be the bank robber.

MR BYRNE:   Yes, I do not contend that she is a potential owner of the guns.

HEYDON J:   Justice Bell, perhaps, with respect, and perhaps the majority as well, becomes a little over‑obsessed with technicality in terms of possession and lessee and all that sort of thing.  It is just he has a closer connection with the real property than any other human being had.

MR BYRNE:   There is no necessary inference that a person is aware of every single thing that is secreted in their house.  Indeed, the inference could more naturally be drawn that a person would be more likely to hide an incriminating item in a place where they did not live, but to which they had ready access than a place where they did live.  So the location of the guns was more likely, particularly when it is combined with evidence that unquestionably the man Vincent used the guns so that he having used the guns, the inference was comfortably available that he had put them in the place where they were found.

McHUGH J:   That he had used the guns or had used one of the guns?

MR BYRNE:   Well, he had used the guns in company with another where they had jointly committed an offence.  There was no evidence that the applicant was the other person who committed that offence.  In particular, there was no evidence that the applicant knew of the presence of the gun in the place where it was located.  The general circumstances in which it was found - and there was clearly evidence to establish that Vincent had access to this place; he used it quite regularly; he had a bedroom there; his girlfriend stayed there with him; he had been seen by police in and around the place when they were observing movements and he was unquestionably the person who had used the gun.

McHUGH J:   Well, Mr Byrne, the problem that you have to face up to is that it is not merely a question of the guns being found in the roof, but the fact that papers belonging to the owner of the stolen getaway vehicle were found in another part of the applicant’s house, namely in the kitchen, on the kitchen table.

MR BYRNE:   Well, it was on a table in the kitchen, I think, but in an envelope which did not have any ‑ ‑ ‑

McHUGH J:   So it would be an extraordinary coincidence.  Here he is, he is the lessee of the house; he is the person who is there most of the time.  A vehicle stolen three months earlier, it is the getaway car, and the papers from that getaway car stolen three months earlier were found in the kitchen, together with the guns, together with the DNA, his DNA being on the Nike cap which was left at the scene of the robbery - some evidence of resemblance.  Why could not the jury take the view that he was the other person?

MR BYRNE:   Because, your Honour, the extraordinary coincidence, as was put, is explained by the fact that it is uncontroversial that the man Vincent did commit the robbery with another person and he did have access to the house, as he did have access to the getaway car.  All of the findings in the house were entirely consistent with Vincent having put the items in the place where they were found without the applicant necessarily knowing of their presence, even if ‑ ‑ ‑

McHUGH J:   Well, that is what you have to say.  You have to say that occasions when Vincent was there he put the guns in the roof, the other person and Vincent put the papers from the stolen getaway car in the applicant’s kitchen on a table, that he took the applicant’s Nike cap without the applicant’s consent, and that he was responsible for those registration plates that were found in the house as well.

MR BYRNE:   The registration plates did not have anything to do with this offence, however.  They were just evidence of other wrongdoing or other misconduct in which these people might have been involved.  They really did not have any probative value at all.  There was certainly no connection between the ‑ ‑ ‑

McHUGH J:   Well, was there not another Eco-van being seen in the yard at some stage?

MR BYRNE:   No, there was a Mitsubishi van.  That was actually wrongly described by his Honour as an Econovan, I think the proprietary name is.  But again that was not the getaway car.  The getaway car was found ‑ ‑ ‑

McHUGH J:   Would it not suggest that those plates being there may have been used to disguise a vehicle at some stage or other?

MR BYRNE:   They may have been, but there was evidence from an eyewitness to the robbery who said that the motor vehicle used in the robbery had particular plates and he gave the letters and the numbers and none of those plates were ever linked to the applicant.  The getaway car, even though it was stolen some months earlier, was not linked to the applicant other than by the finding in a brown paper bag which had no writing on it in a place where this companion of the applicant, the person he from time to time lived with, clearly had access.

The concession was made in the Court of Criminal Appeal.  It was a case where there was clearly suspicion and it might even be said grave suspicion about whether the applicant was involved in the robbery, but that grave suspicion was not, in the circumstances of this case, enough to prove guilt beyond reasonable doubt, in my submission.

CALLINAN J:   Mr Byrne, you would say that even if the applicant knew of the presence of these things, that does not necessarily inculpate him.

MR BYRNE:   I was about to say that, your Honour and that is a point, with respect, that Justice Bell made, that even if it had been established that the guns were known by the applicant to be in the roof, that did not establish that he was the other man who committed the robbery.  It was stronger circumstantial evidence.  I readily concede that, but where the evidence does not even get to the stage of entitling a jury to infer at the necessary standard that knowledge has been established, then it is a very large leap from there to conclude not merely that knowledge has been established, that possession has been established.  Both the judges in the majority make that ‑ ‑ ‑

McHUGH J:   Knowledge, possession and use?

MR BYRNE:   Certainly.  In my submission, none of those things were established and whilst their Honours found that it was open to a jury to reach that conclusion, they did not give any reasons how a jury could rationally come to that conclusion.  It was simply a bald assertion, “Well, it was open to them”, but no reasons given.  On the other hand, Justice Bell’s conclusions which, as I say, were expressed in strong terms, excluded those conclusions as being reasonable on all material available.  Those are my submissions.  May it please, your Honours.

McHUGH J:   Thank you.  Yes Mr Smith.

MR SMITH:   If the Court pleases, just on this question of the black moustaches or dark moustaches; there does not appear to be in the actual evidence of the police, a description of the man they arrested or saw at the house as having a black moustache.  However, certainly Mr Haddad gave that description and in the argument on whether or not the case should be taken away from the jury - it is not in the application books - at page 214 of the transcript, 27 May 2002, Mr Connelly for the applicant, criticising the various pieces of description evidence said this about Mr Haddad:

Mr Haddad, your Honour, is the only one who gives evidence that would even approximate Mr Micallef.  He says, “He’s about 45 years old of age, very thick moustache.  What colour was it?  I don’t know, I mean, it’s not black but it’s lighter than black.  Is it lighter than your hair?  Well with the colour I’ve got it’s probably similar to it.”

That is a quote from Mr Haddad’s evidence.  Mr Connelly says - your Honour, again he has not said Mr Micallef has a brown moustache, which would appear to be quite plain – so it appears that at the trial he had a brown moustache.  It would be one of the features of a person’s face that would stick out if he had indeed seen Mr Micallef.  However, he does concede that, in fact, he only had Mr Micallef or the first offender’s features under observation for two seconds.  That would be a relevant consideration for your Honour to be directing the jury.

Now, his Honour, when directing the jury at page 229 which is in the application book - they may have changed the pagination for the summing up ‑ ‑ ‑

McHUGH J:   Was it 51?

MR SMITH:   He certainly refers to Mr Haddad’s evidence there, at this passage ‑ ‑ ‑

HEYDON J:   Page 51 of the application book, page 48 of the summing up, is it?

MR SMITH:   I am sorry ‑ ‑ ‑

HEYDON J:   “He had the same thick moustache”.  Is that Vincent or Micallef, the very bottom of page 51?

MR SMITH:   Yes, it is really starting at about line 11 talking about the nose.  His Honour is describing:

what you make of Mr El-Haddad’s nose is for you –

and there was some talk about his nose and how far away he was, and then, as your Honour Justice Heydon said, at 44 approximately:

He had similar features to the first one, thick moustache, Caucasian look.  He saw his face and he had a beanie –

That seems to be his Honour describing what Mr Haddad said he saw.  But, at this passage that I have here at 229 on 28 May 2002, that must be ‑ ‑ ‑

HEYDON J:   There is something on page 50, line 25, about a moustache which:

it’s not black but it’s lighter than black ‑ ‑ ‑

MR SMITH:   Yes, that is the evidence of Mr Haddad, again, and it is just trying to link that with the accused or the applicant once discovered.  I am just going to refer you to 229 of the transcript, and see if we can find where this in the application book.  It is on 28 May and it is, I think ‑ ‑ ‑

HEYDON J:   Is it page 8 of the application book?  You will see there is a discussion in which Mr Connelly participates, about the “very thick moustache” at about line 37?

MR SMITH:   Well, there is certainly reference by Mr Connelly there:

If your Honour is to refer to the description of the moustache by
Mr Haddad, page 8, 116 of the transcript line 43.  If your Honour said previously that there was something distinctive about the moustache, in fact what was said was:  Q.  Of the first man is there anything distinctive about the moustache that you recall?  A.  Nothing beside the very thick moustache, nothing beside that that I can recall.

That is not, unfortunately, the passage, but I may be able to get to that now.  What he says at 229, his Honour said:

The descriptions the Crown puts are, while not the same as sufficient to identify this accused as being one of the robbers, the description of the moustaches that each of them had.  The description of the build of the two people.  Evidence of Mr El Haddad and Mr Panella as to who drove the vehicle.

The evidence that the first man off the roof was the one who was not bleeding, and that is the passage, that is just a little bit more.  It does not actually specifically refer to it.  I will see if we can find that in the transcript, or in the application book.

At page 140 of the evidence on 23 May, again, which is not in the application book, the detective, Karras, was being questioned in‑chief.  He was not cross-examined.  He was asked about the descriptions of the men when arrested.  At page 139 he gave a description of Mr Vincent and he does not mention any moustache.  I will just read that:

Q.       Are you aware of how tall Mr Vincent was at the time you arrested him?
A.       Mr Vincent would be round about 152 centimetres . . . 

A.       172.

He corrects himself.

Q.       What about his hair, what colour and length was it?
A.       Dark brown and at the time of his arrest it was tied back to a bit of a plait at the back.

Q.       How long was the plait?  If you can’t remember please say so.
A.       I don’t know, just down to the bottom of his neck I suppose, I can’t remember exactly how long.

Q.       What was his general build like when he was arrested on 2 May of last year?
A.       Skinny.

Q.       When you saw Mr Micallef on 27 April last year what was his hair like?

and this was only some days after the robbery –

A.       About the same as what it is now.

Q.       And what was his build when you first interviewed him?
A.       Pretty much the same, nothing has changed—

Q.       Can you put it into words please?
A.       Well his build is I’d say skinny to medium build, in comparison to Mr Vincent he was a little bit more solid than Mr Vincent, not much, a little bit taller, say a couple of inches taller than Mr Vincent.

Q.       How tall is he, do you know?
A.       I don’t know exactly but if Mr Vincent was about 172 I’d say  he’d be 175, 176, just by judging them both together sort of thing.

Q.       How old is Mr Micallef?
A.       I think he is about 43, I am not – I know they were both born in 1958 but I am not quite sure of the dates -

Again, he does not actually mention the moustache.  It was Mr Connelly that mentioned it and I submit that the fact that his Honour has left that as a factor in the identification, the fact that evidence has been given about it, that was certainly one of the circumstantial factors that the jury was entitled to take into account.

We would submit that the fact that he is the lessee of the premises - as far as I understand there is no evidence of how long - and something is hidden in the ceiling is a lot different from, say, something being under a lounge pillow or under the lounge at all and other people are there.  To get to the ceiling - your Honours, I do not know if there is evidence of this – but applying usual experience it takes some effort to get up into the ceiling of any house and he is the regular occupant of the house.

Admittedly, in recent years there has been some change in emphasis in the possession laws compared to what - I remember his Honour Justice McHugh arguing Rawcliffe many years ago and Teh’s Case did what probably Rawcliffe should have done, but special leave was refused then, but the question of knowledge, up until Teh, if you could prove actual possession or de facto possession, you did not have to prove knowledge.  That is as I understand the law as Bush - there was a case Williams v Douglas, which was a case of gold bars ‑ ‑ ‑

McHUGH J:   Yes, 78 CLR.

MR SMITH:   Gold bars in a bathroom in a hotel and the evidence was that the accused, who lived in one of the bedrooms of the hotel, had exclusive de facto possession of those gold bars because there was some evidence linking him with going to that bathroom.  Now, I do not remember anything further, but I submit that the fact that something is hidden in your house in a secretive place that is difficult to get to is a circumstantial factor that the jury is entitled to place some emphasis on when looked at the fact that there are identification documents for the getaway vehicle in the kitchen, there is a van in the driveway - it may not be the same, but it has no registration plates on it, and the two men are walking together.  The fact that the cap that the co‑accused had on had this applicant’s DNA in it again shows a close association, and the various other factors listed by Mr Justice Dunford in paragraph 35, I submit, was enough to leave to the jury sufficient evidence to rebut any ‑ ‑ ‑

CALLINAN J:   Mr Smith, somebody saw Vincent and the appellant on the day together.  Is that right, or am I wrong about that?

MR SMITH:   No, it is 10 days later when the police go to the house.  They knock on the door.  After a while, I think, the woman came out, no sign of the men.  Then after a while, they are waiting, obviously watching the premises and the two men wander out together going down the street.  That is how they identify the fact that those men were at those premises on that day.  Then they obtained the search warrant and searched the premises.

CALLINAN J:   This is 10 days later.

MR SMITH:   Yes, 10 days later, but it is close in time and some of the material - my friend said that Vincent had the two guns.  Well, the evidence was that each of the assailants had one gun and the gun Vincent apparently had has been identified as the gun that shot the man in the leg.  The ballistics evidence was very convincing in that regard.  The fact is that Vincent was somehow cut and his DNA appears on the bloodstains that are found around.

So you still have a second gun; two guns fitting the description, one of which is positively identified as one of the guns found in the ceiling, the other gun looking like the gun, and the jury would be entitled to infer, I would submit, that that was the other gun.  The two men there and the moustache evidence, or the inference that can be drawn that it sounds like Mr Micallef still had a moustache by the time of the trial, but he had a moustache.  So that on all that material as articulated by his Honour Justice Dunford at, I think, paragraph 35 of his appeal book.  Of course, that is the appeal summation of the evidence.  We submit that his Honour the trial judge in his instructions to the jury on how to deal with circumstantial evidence gave an accurate and quite correct summation of what the law was.  At application book 20 point 30, an example as his first reference to circumstantial evidence ‑ ‑ ‑

HEYDON J:   As I understand it, there was no complaint about the summing up.

MR SMITH:   No.

HEYDON J:   There are complaints about the language used by the majority, but the real problem is whether, looking at Justice Bell’s words:

upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

MR SMITH:   That is right.  In our submission, the evidence is strong enough for them to find the accused, the applicant, guilty as they did.  Unless your Honours have any further questions, those are our submissions.

McHUGH J:   Thank you, Mr Smith.  Yes, Mr Byrne.

MR BYRNE:   Just a couple of matters, your Honours.  This question of the appearance of the applicant at the time, approximately, that the robbery occurred, it was said that he may have had a moustache at the time of the trial, although that does not seem to be absolutely clear.  The police officer, Karras, was called exclusively to give descriptions of the applicant at the time of his arrest 10 days after this robbery was committed when it might have been apparent that the question whether or not he had a moustache was a question of real significance.  His evidence took a page and a half of the summing up to summarise, and there is no mention of the applicant having a moustache at the time he was observed by Detective Karras so that when my learned friend used the expression that “he still had a moustache at the time of the trial”, that is not something supported by the evidence.

In terms of the developments in the law of possession, this case is in stark contrast to Rawcliffe and cases such as Bush, which preceded it where ‑ ‑ ‑

McHUGH J:   Succeeded it.

MR BYRNE:   I apologise, I thought Bush was before ‑ ‑ ‑

McHUGH J:   You are, you are right.  I am thinking of He Kaw Teh.

MR BYRNE:   That was case where people are walking around with the drugs in their backpacks, or in their containers that they are actually carrying.  The association between them in terms of possession was a totally different concept to what we are talking about here.  My learned friend says it is difficult to get into the roof of the house.  There is no evidence of that at all. The evidence was that there was a manhole cover.  All you need is a ladder, it is not that hard.

The other matter that my learned friend did refer to obliquely, if I can just take up a point that your Honour Justice Heydon mentioned, where you referred to Justice Bell’s judgment at page 93 of the application book ‑ ‑ ‑

HEYDON J:   Page 92, I think.

MR BYRNE:   I am sorry, the particular issue that Justice Bell posed as the one which fell for determination in the Court of Criminal Appeal was that, in my submission, set out just below line 45:

the Crown failed to eliminated the reasonable possibility that –

the man –

Vincent -

who unquestionably committed the robbery with somebody –

carried out the robbery in company with another man and that he, Vincent, concealed the weapons used in the robbery in the premises at which he was residing.

That was left as a reasonable possibility on all of the evidence at the end of the case and in those circumstances guilt could not be established.  May it please, your Honours.

McHUGH J:   Thank you, Mr Byrne.

In this matter the Court is of the view that the application for special leave must be refused.  The case involves no point of principle.  The claim of the applicant is that the evidence was insufficient to enable the jury to be satisfied beyond reasonable doubt that we was guilty of the crimes with which he was charged.  The trial judge and the majority in the Court of Criminal Appeal held that there was sufficient evidence.  In the circumstances the case is not one for the grant of special leave.  Accordingly, special leave is refused.

The Court will now adjourn to reconstitute.

AT 10.09 AM THE MATTER WAS CONCLUDED