Michaelides v The Queen

[2013] HCATrans 22

[2013] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B42 of 2012

B e t w e e n -

NICHOLAAS PAUL MICHAELIDES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 11.36 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   If the Court please, I appear with my friend, MS S.DI CARLO, counsel for the applicant.  (instructed by Hannay Lawyers)

MR A.W. MOYNIHAN, SC:   If the Court please, I appear with MS S.L. DENNIS, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Thank you.

MR BYRNE:   Your Honours, we raise two points.  This is a matter where there was a quite respectable case that the applicant could not have been the offender.  To illustrate that point there was, of course, what has been described in the judgment as the 30 centimetre long and 4 to 5 centimetres high coloured tattoo spelling out “Jesus” on the applicant’s right arm, which was not seen on the offender by the complainant despite being in close contact with that person for some 45 minutes in broad daylight.

FRENCH CJ:   There were a number of factual matters which were referred to, I think, to identify or indicate if you like discrepancies in the testimony as to identification. 

MR BYRNE:   There were indeed and I do not intend taking your Honours to all of them.  There are just three I, for present purposes, will take you to.  There was a tattoo.  There was in addition the evidence of two senior police officers called as part of the Crown case whose assessment of the complainant’s contemporary description of the offender can be summarised this way:  one, the most neutral is that it was completely inconsistent with the physical appearance of the applicant at the time of the offence and the second is it was almost “laughable” that the applicant could be so described as he was by the complainant if he was the offender.

As your Honour the Chief Justice has pointed out, there were other matters, albeit of less substance, that were troubling in the identification.  They included the fact that a soft drink can which was seen by an independent witness to be discarded by the offender was found subsequently to have DNA on it but that DNA was consistent with a person other than the applicant.  Your Honours, against that brief overview of the factual background, on appeal to the Court of Appeal Queensland, the applicant relied upon the ground the verdict was unreasonable.

FRENCH CJ:   Your complaint is about the use of the criterion or the formulation from Chamberlain, is it not?

MR BYRNE:   That is so, and can we take your Honours immediately to that point?  We have referred to the case of this Court of MFA v The Queen (2002) 213 CLR 606. May we take your Honours to page 264 of that case, and this is the joint judgment of Justices McHugh, Gummow and Kirby.

FRENCH CJ:   Can you give us the paragraph number, Mr Byrne?

MR BYRNE:   Paragraphs 60 and 61, your Honour.  In 60 it set out the test applied in that case in the Court of Criminal Appeal below.  In paragraph 61 this is said:

There is no error in this formulation.  Indeed, it involved the accurate transcription of the test expressed by this Court in M and in Jones rather than the “stronger” or more stringent test obliging an appellant to establish that the jury were “bound to” or “must” have entertained a reasonable doubt.

FRENCH CJ:   Is there a logical equivalence between the proposition that the jury must have entertained a sufficient doubt and the proposition that it was not reasonably open to the jury to be satisfied beyond reasonable doubt?

MR BYRNE:   I can put it no higher than the fact that where the ground of appeal invokes the unreasonable ground then the onus upon the appellant, or in this case the applicant, is not to convince the Court of Appeal on the more stringent test, but rather on the fact whether or not it was reasonably open to the jury.

FRENCH CJ:   What I am really asking you is whether the test is, in truth, the formulations are different or whether they are simply reflections of the same logical proposition.  A case can only be reasonably open to the jury to be satisfied beyond reasonable doubt if it is not the case that the jury should have had a reasonable doubt.

MR BYRNE:   That is correct, certainly, your Honour the Chief Justice.  But when the Court of Appeal ‑ ‑ ‑

FRENCH CJ:   Must have entertained a reasonable doubt.

MR BYRNE:   That is so; must have or were bound to.  But when approaching the evidence the court is to assess it in the reasonably open to the jury to be satisfied beyond reasonable doubt.  To express it at the higher test, as the court did here, we say ‑ ‑ ‑

FRENCH CJ:   You are not accepting the proposing that I am putting to you that it is not in fact a higher test?

CRENNAN J:   That it is just an interchangeable – two verbal formulations.

MR BYRNE:   No, our submission is we do not, with respect, accept that there is a complete compatibility between those two tests.  If that were so, then there would be no need for the distinction which is drawn in paragraph 61 of MFA v The Queen.

FRENCH CJ:   What about your own logical analysis?

MR BYRNE:   I am sorry, your Honour?

CRENNAN J:   That is done by three of the Justices out of the six Justices.  I think this is a point that is discussed in M, is it not, that over time there have been the two different formulations – nothing to choose between them semantically – and in M, which remains authoritative, the open was, if you like, put forward as an authoritative test to be followed without in any way suggesting that the other formulation must have had a reasonable doubt meant something different.  It was argued that the test was more stringent in MFA but, on one view, that has not necessarily been accepted.

MR BYRNE:   We have referred, your Honours, in our written outline to the passage in M v The Queen 181 CLR 487 at 493. That is the joint judgment of Chief Justice Mason and Justices Deane, Dawson and Toohey. At about point 5 on that page, it is set out ‑ ‑ ‑

CRENNAN J:   What page are you on, sorry?

MR BYRNE:   Page 493, your Honour.

CRENNAN J:   What paragraph?

MR BYRNE:   It is about point 5.  There are unfortunately no paragraphs.  It begins:

Where, notwithstanding, that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty –

That, in our submission, is the less stringent test as it was described ‑ ‑ ‑

FRENCH CJ:   It footnotes a reference to Chamberlain, does it not?

MR BYRNE:   It does.

CRENNAN J:   You have to bear in mind, I think, the passage that commences at the bottom of the page:

It was with those considerations in mind that some members of this Court . . . have thought it necessary to qualify the statement –

Then it goes on, at the bottom of that page, top of page 493 – I have found the passage I am looking for –

Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression –

So if you read those pages, their Honours are recognising that there are differences of expression without any indication that one is more stringent, or one is a softer test than the other.

MR BYRNE:   What occurred in the present case is that the matter seems to have been dealt with by the Court of Appeal by, if you like, reversing the standard or the onus which is put.  We take your Honours, to demonstrate that point, to page 91 of the application book, where in the leading judgment, that of his Honour Justice Peter Lyons, his Honour addresses the two particular points of evidence that we refer to and generally, starting at paragraph [34] at the top of that page, where his Honour states:

The most troubling feature of the case is that Mr Anderson did not see a tattoo on the arm of the Caucasian person.  However, it does not seem to me to follow that a jury, acting reasonably, must have had a reasonable doubt about Mr Anderson’s identification . . . It does not seem to me to compel the conclusion that the jury must, for that reason, have had a reasonable doubt –

Paragraph [35] deals with the build or description of the offender, and again, the formulation adopted by his Honour is that –

That, however, is not the same as saying the jury was bound to have a reasonable doubt about the identification.

Finally, at paragraph [38], his Honour concludes that –

this is not a case where a jury, acting reasonably, must have had sufficient doubt about Mr Anderson’s evidence to warrant the acquittal –

Our submissions are necessarily based on the proposition that that is a too stringent test to apply in these circumstances and that, coupled with the factual background here, which we have outlined in summary form to your Honours, was such that on proper analysis the Court of Appeal, allowing for the advantages that the jury had, should have concluded that the verdict was unreasonable in all of the circumstances.  Unless we can assist further, those are our submissions.

FRENCH CJ:   Yes.  Thank you, Mr Byrne.  Mr Moynihan.

MR MOYNIHAN:   Your Honours, there is no error in principle in this case because when one looks carefully at what the Court of Appeal said in relation to the correct principle to be applied in determining whether the verdict was unreasonable that is found at paragraph [23] of the Court’s reasons.  There the Court said that the formulations above – that is in paragraphs [21] and [22]:

emphasise the distinction between the task of the jury on the one hand, and the task of an appellate court reviewing a conviction on the other.

Your Honour the Chief Justice has already noted that when one goes to M v The Queen at the passage footnoted in paragraph [23], relied on by the Court of Appeal, that the footnotes to the relevant passage on page 493 of this Court’s reasons in M refer to both Whitehorn at the page referred to by the Court in paragraph [21], which his Honour sets out as the function of the Court, and footnote (37) refers to Chamberlain, so does footnote (36) in relation to the function of the jury. 

So his Honour was just setting out those two passages before picking up the application of the test and the functions to be performed, both by the Court and the jury, and this Court made very clear in M v The Queen as well that when the Court of Appeal is determining whether it was open on the whole of the evidence to be satisfied beyond reasonable doubt of guilt it must give weight to the primary function of the jury.

So there is no wrong application of principle in this case.  It would then just turn on the facts of the case.  My learned friend relies particularly on the statement in paragraph [35] as demonstrating an incorrect approach, but when one looks at what the court said at paragraph [30] they noted that the evidence in relation to the build of the offender had to be looked at the in context of the whole of the evidence.  There can be no doubt about that.  At [35] the court was saying no more than the fact that the jury might not accept a piece of evidence does not mean it is not open to be satisfied beyond reasonable doubt on the whole of the evidence. 

That, too, is a correct statement of principle and it points to the error in the applicant’s submission on that point, given the function of the Court of Appeal when determining such a ground of appeal.  The Court of Appeal of course went on correctly to apply the test in paragraph [38] where Justice Lyons makes it clear that he has made an independent assessment, he has weighed the evidence, including the positive features, against the matters raised, and he has determined as a fact - so he has not made it the error or the fundamental error of deciding whether as a question of law there was sufficient evidence - but he determined as a fact that it was open to a jury, not the jury, to be satisfied beyond reasonable doubt, that is, that it is not dangerous to let the verdict stand.

In relation to the complaints about the evidence made in my learned friend’s outline, it is important to keep in mind that the description evidence had to be viewed in the context of the whole of the evidence which in this case included the Com‑Fit photo that he compiled with the notes that attended that, and the comment he made about the alleged offender in the photo board and the fact that he had his wife take a photo of the applicant at a street festival where there are numerous people present.  The jury had the benefit of comparing each of those photos and it was in the context of the whole of that evidence, including his original description, that the offender had a very distinct break to his nose which was evident throughout the whole process and it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt.  Those are my submissions, your Honours.

FRENCH CJ:   Yes, thank you.  Yes, Mr Byrne.

MR BYRNE:   Simply in respect to the point made about the strengthening of the identification evidence, we point your Honours to paragraph [28] on application book 89 where it is said there that the Com‑Fit image was a basis for some doubt about the identification, as was, it said later in that paragraph, the same might be said of the complainant’s reference to the person being of light build, having regard to the evidence of other persons.

FRENCH CJ:   Yes, thank you.  The Court will retire briefly just to consider what course it should take.

AT 11.53 SHORT ADJOURMENT

UPON RESUMING AT 11.55 AM:

FRENCH CJ:   I invite Justice Crennan to deliver the Court’s decision.

CRENNAN J: The applicant, who was convicted on two counts of extortion, seeks special leave to appeal against a unanimous decision of the Court of Appeal of the Supreme Court of Queensland dismissing his appeal against conviction, which had been brought under s 668E of the Criminal Code (Q) on the ground that the verdict of the jury was unreasonable and could not be supported having regard to the evidence.

The applicant complains that the Court of Appeal adopted an erroneous formulation of the test for the application of s 668E.  A formulation which the Court of Appeal applied was that the jury, acting reasonably, “must have had sufficient doubt about [the evidence] to warrant the acquittal of the [applicant]”.  The applicant contends that as a matter of law that formulation of the test has been overtaken by the judgments of this Court in MFA v The Queen and SKA v The Queen.  It is said that the correct formulation of the test now is whether it was “open to the jury” to be satisfied beyond reasonable doubt of the accused’s guilt:  MFA v The Queen (2002) 213 CLR 606 AT 623 [55] per McHugh, Gummow and Kirby JJ.

As explained by Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 AT 443:

“In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused . . . Or, to put it another way, it is for the court to decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt . . . ” 

That passage was referred to in M v The Queen (1994) 181 CLR 487 at 495 per Mason CJ, Deane, Dawson and Toohey JJ. In M v The Queen it was recognised that differences in formulation of this kind are best put aside in order to have one authoritative formulation.  M v The Queen continues to be authoritative, as recognised in SKA v The Queen.  In any event, there is no error in the Court of Appeal’s conclusion that s 668E of the Criminal Code was not enlivened because of the factual circumstances of this case. The prospects of ultimate success do not warrant the grant of special leave. Special leave is refused.

FRENCH CJ:   The Court will now adjourn to reconstitute.

AT 11.57 AM THE MATTER WAS CONCLUDED