Noble v State of Western Australia

[2008] HCATrans 160

[2008] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P32 of 2007

B e t w e e n -

BRADLEY IAN NOBLE

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 APRIL 2008, AT 2.30 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Michael Tudori & Associates)

MR R.E. COCK, QC:   If the Court pleases, I appear with MS E. ABOU‑MERHI on behalf of the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

KIRBY J:   Yes, thank you, Mr Grace.  Now, this is the life imprisonment case?

MR GRACE:   Yes, but the application is solely to do with the conviction.

KIRBY J:   I realise that.  You have two cases before us.  The other case is the cannabis case.

MR GRACE:   Three.

KIRBY J:   I am just sending a signal to my mind as to which of your two apparitions I am dealing with.

MR GRACE:   I have three, your Honour.  There is another one later.  In relation to Mr Noble, the case against him was purely circumstantial and this was acknowledged by the Court of Appeal.  There were no admissions, there was no forensic evidence, there was no identification ‑ ‑ ‑

KIRBY J:   There was forensic evidence if you call a video film at the petrol station with him curiously making two visits to the petrol station with a jerry can to fill up presumably a motor vehicle’s petrol tank, which was very empty, and that just happened to be the state of the petrol tank of the vehicle that was seized and stolen for the purpose it was alleged of conducting the armed robbery.

MR GRACE:   Yes, I will come to that, but what I was directing attention to was the usual form of forensic evidence such as fingerprints, DNA evidence – I will come to the rope in a moment – and the like.

KIRBY J:   There was DNA evidence of your client on the rope which was found in the jeweller’s shop which was the subject of the armed robbery.

MR GRACE:   Yes, but no DNA or fingerprints in the motor vehicles that were the subject of the getaway and robbery, and there were no acts relied upon a prosecution on the part of Mr Noble as evidencing consciousness of guilt.  There were no telephone intercepts, there was no evidence of conversations between the accused and the contents of those conversations.

KIRBY J:   There were no telephone intercepts but there was a tracing of the mobile phone which linked your client to the co‑accused, who was convicted, to the use of the same mobile phone which by inference was in the possession of whoever it was, and it found that the co‑accused was one who was in the getaway car.

MR GRACE:   There were two mobile phones I think your Honour is talking about; one had a suffix 199 and the other 200.  There was no evidence that the applicant, Noble, ever communicated on those phones.

KIRBY J:   But somebody communicated to him.

MR GRACE:   Somebody did, but there was no evidence directly that it was Noble.  Could I take you to page 112 in the application book to paragraph 157, and the crux of his Honour Justice Miller’s conclusion was that it would put an “incredible strain on human experience” to accept the matters that he lists as doing anything other than satisfying “a jury beyond reasonable doubt of Noble’s guilt”.

However, the prosecution, when you analyse its case very carefully and the factors it relied upon, could not put Noble at the scene of the crime, could not put Noble as discussing anything relevant to the crimes on the telephones and could not in any other way link Noble except for four pieces of evidence, which I will address immediately.

The first is the rope that your Honour has already mentioned.  The rope containing the applicant’s DNA was found at the crime scene of the jewellery shop.  There was no allegation on the part of the prosecution that Mr Noble was at the jewellery shop.  The allegation was that he was the getaway driver ‑ ‑ ‑

KIRBY J:   We start, do we not, though, with the fact that there is the established fact that this is a group of friends?

MR GRACE:   Yes.

KIRBY J:   And that, therefore, you have got that fact and then it just happens to be that this rope was found in a bag at the jewellery shop?

MR GRACE:   Yes.

KIRBY J:   Rather negligent to leave the bag behind.

MR GRACE:   Well, that may be, but the prosecution witness, Melissa Noble, who was the applicant’s sister, gave evidence about the fact that a large quantity of rope was located in the garage of the house that she resided in with her brother and that garage and the house was regularly used by the co‑accused, Hintz, who frequented the garage at will.  He used a key that was under the front doormat to come and go as he pleased and he stored items there of his own.

That was the explanation given in relation to how it could be that this rope, which Melissa Noble identified as being the type of rope that the applicant used to tie down items on his motorbike when he rode it, it was one of those tie ropes that has hooks on the end, and was used by him for other purposes from time to time.

The second item was the purchase of the jerry cans of petrol and that was a course of conduct that he had engaged in many times.  Melissa Noble again gave evidence of that, and also a former girlfriend of the applicant.

KIRBY J:   But as the petrol station owner pointed out, it is a very unusual, very unusual, thing for a person to come twice with a jerry can.  Normally they will come once, get enough petrol, and then come up and fill up the car.

MR GRACE:   Yes, I accept that.

KIRBY J:   So that is a suspicious element in the evidence.

MR GRACE:   But even taking the prosecution case at its highest in relation to the jerry can incident, and accepting for the purpose of this discussion that the applicant was involved in some capacity in the theft of the motor vehicle at around about 2.30 or 3.00 am on the morning of the robbery, that does not give rise to a safe conclusion by itself that he was involved in the robbery that occurred six or seven hours later.

KIRBY J:   It does though suggest that he had a reason, namely, the well‑known presence of video cameras at petrol stations, not to drive up there with the vehicle.

MR GRACE:   He did drive up in a vehicle.  He drove up in a hire vehicle.

KIRBY J:   Not to drive up with the empty of petrol vehicle.

MR GRACE:   Yes.  No, not the stolen vehicle.

KIRBY J:   Yes.

MR GRACE:   Yes, he did not drive up with the stolen vehicle.

KIRBY J:   He did not want to appear with that, but the inference is inescapable that he is filling up the stolen vehicle, is it not?

MR GRACE:   But even if he was, your Honours ‑ ‑ ‑

KIRBY J:   I realise you say even if – we are looking at a mosaic.  That is what one does in cases of circumstantial evidence.

MR GRACE:   Yes.

KIRBY J:   That is a distinctly inculpating fact.

MR GRACE:   Yes, it is, but it does not lead inexorably to commission of the robbery on his part.  The third item were the telephone calls, and your Honour has already touched upon that.  But in the absence of knowledge of the identity of the persons who were talking on the phones, whether they in fact spoke, what they were speaking about, it is pure speculation to reach the conclusion that Justice Miller reached at paragraph 146 on page 108 where he says:

In my view, the fact that Noble was in contact with Hintz in the early hours of the morning of 11 May (at 1.45.40), and then, later on the day of 11 May after 11 am, made numerous telephone calls to Piccolo’s mobile phone and Piccolo’s home phone is consistent with his involvement in the robbery with Hintz and Piccolo.

Well, I ask rhetorically, how?  The fact that he has made phone calls, one phone call before the robbery and a number of phone calls after, does not lead to the conclusion that he was involved in the robbery.

KIRBY J:   Not on its own, but we are talking about putting all these little elements of the evidence together.  The question is, is that sufficient to lead to a safe conclusion?

MR GRACE:   Yes.

KIRBY J:   After all, the jury did accept it.  There was the evidence of Mr James which exonerated your client, but the jury’s verdict must be taken to have rejected Mr James’ evidence.  He also exonerated another co‑accused, I think.

MR GRACE:   Yes, but the applicant did not call James.  The co‑accused called James.

KIRBY J:   Yes.

MR GRACE:   Could I take you to paragraph 147, your Honours, on page 108 where his Honour Justice Miller says:

Noble did not testify in his defence at the trial.  He gave no explanation for the telephone calls.  On one view of it, it could have been purely coincidental that he was in contact with or endeavouring to contact Hintz and/or Piccolo in the early hours of the morning of 11 May and then later during the day of 11 May.

So his Honour has made that concession in relation to the phone calls.  The fourth item was – and this is on page 109 of the application book at paragraph 149 – and there his Honour says:

Mere association between Noble, Piccolo and Hintz could not, of itself, implicate him in the robbery which occurred on the morning of 11 May 2004.  Even “close association” would be insufficient in itself.  It is the involvement of Noble in telephone calls to Hintz and/or Piccolo beginning in the early hours of the morning –

with that caveat that his Honour has mentioned at the top of the page –

that is the telling evidence against him.

How could it be, I ask rhetorically?  Moreover, there was contrary evidence that was before the jury, including the undisputed evidence of Melissa Noble, that she spoke to the applicant on his phone, that she rang his phone, at 8.41 am, 8.42 am, 8.47 am and then four calls in quick succession approximately an hour later to Mr Phun, who was in the company of the applicant, at 9.56, 9.58, 10.01 and 10.04 am.  The robbery commenced at 9.40 am and proceeded over a short period of time, and then there was the getaway.

The defence proposition was that in light of that prosecution evidence, how could the applicant have been involved in the actual robbery?  Although Justice Miller referred to the defence argument, he did not analyse it.  Could I just take your Honours, for instance, to paragraph 161?  There his Honour sets out the case advanced for Noble by his counsel at trial and refers to the summing‑up of the learned trial judge.  At paragraph 164 on page 115 his Honour says:

For the reasons that I have given, I am satisfied that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Noble was guilty.

But he has not analysed the exculpatory evidence, the propositions put forward by Noble through his counsel which are set out in that paragraph that I have referred you to.  Then his Honour goes on to say:

Further, it is obvious that this was a case in which the jury had, at trial, the benefit of having seen and heard various witnesses, all of whom, in the case of Noble, were called by the prosecution.  It was for the jury to decide what portions, if any, of the evidence of those witnesses to accept and what portions, if any, not to accept.  The evidence of Ms Noble is very much in point.  Although some of her evidence may, on one view, have been favourable to the case of Noble, much of it was not.  It was for the jury to determine what aspects of her evidence it accepted and which, if any, it rejected.

Now, that is a statement of summary but not a statement which derives from detailed analysis that this Court in M v The Queen and Jones v The Queen and MFA v The Queen have said is incumbent upon a Court of Appeal in conducting its own independent assessment of the evidence.

KIRBY J:   Yes, well, steady on, this is a 52‑page reasons for judgment and that is a significant examination in detail of the case.

MR GRACE:   Yes, but the error in the approach of Justice Miller is encompassed really in that last sentence in paragraph 164 when he said:

It was for the jury to determine what aspects of her evidence it accepted and which, if any, it rejected. 

In the analysis that his Honour was conducting it was for the Court of Appeal to be satisfied that guilt was proved beyond reasonable doubt.

KIRBY J:   But he referred to the well‑known authorities of M v The Queen and Jones v The Queen and MFA v The Queen, all of which explain the way intermediate courts have to examine the evidence and their own independent duty to do so.  So there could be no doubt he knew what he was supposed to be about because there is an extensive passage from M v The Queen, which is the most important case on this, at paragraph 162.

MR GRACE:   Yes, it is, but there is no evidence that the analysis that M v The Queen dictates ought to occur in fact occurred.

KIRBY J:   Well, I am not sure about that because earlier there was the statement of the evidence which put together Justice Miller thought was enough to remove unsafety or doubts about the safety of the conviction.

MR GRACE:   Yes.

KIRBY J:   You say there ought to have been more detailed examination of the evidence and it ought to have included exculpatory evidence and an indication that his Honour turned his mind expressly to the countervailing considerations that had been urged on him.  That is your case?

MR GRACE:   Yes, and if he had done so on the whole of the evidence, he would have come to the conclusion, in my submission, that it was not open to the jury to be satisfied of guilt beyond reasonable doubt.

KIRBY J:   Yes.

MR GRACE:   In the circumstances of this case, with the defects that I have outlined earlier, there is a significant possibility that an innocent man has been convicted of the armed robbery.

KIRBY J:   Yes.  Thank you, Mr Grace.  Mr Cock, what do you say about that last point that when the chips are down and it gets to the critical passage Justice Miller does not really go into detail in the exculpatory evidence and throw that into the balance and show that he has addressed his mind to that evidence?

MR COCK:   We would submit, your Honour, that Justice Miller had in mind the exculpatory evidence throughout his examination of the prosecution case.  The exculpatory evidence was really to suggest that there was either no opportunity or an inadequate opportunity to commit the offence or that there are other reasonable explanations for the pieces of circumstantial evidence which pieced together justified the prosecution case.

KIRBY J:   Could you just explain to me a little bit more the mobile phone evidence and how that helped the prosecution case?

MR COCK:   The mobile phone evidence is examined by Justice Miller commencing at page 105.  He refers to a document being exhibited in the proceedings, which we do not have in our papers, and it is apparent that his Honour Justice Miller has looked at some but not all entries in that document.  But just looking at his Honour’s analysis, the position is that there was evidence to establish that a particular mobile phone was used by the offender, Piccolo, and that phone apparently had been purchased by Piccolo’s then fiancée’s sister and given to Piccolo.  In any event, Piccolo testified at trial that that particular mobile number was his.

Then there was evidence to establish the applicant’s telephone number, and your Honour will see at paragraph 134 of the judgment at page 160 of the book that it was:

The first relevant telephone call from Noble on 11 May 2004 –

which was the early hours of the morning on which the robbery occurred.  Your Honours will remember the robbery occurred at 9.40 am on 11 May.  At 1.45 am there was a phone call from Noble, the applicant, to Hintz, and:

An SMS message was left.  Thereafter, between 2.05.06 and 7.18.22 there were numerous telephone calls between mobile phones ending with the numerals 199 and 200.

They were the ones, it is apparent, must have been purchased for the purpose of being used in the robbery.  Now, there were no phone calls ‑ ‑ ‑

KIRBY J:   But how does the fact that friends with mobile phones keep in touch with each other inculpate Mr Noble in the offences charged given that common experience shows that young people spend most of their lives on mobile phones sending messages to each other?  I mean, how does that inculpate him?  How does that add to the weight of proof against him?

MR COCK:   It is the silence in a context of a very furious activity of telephone communication between the applicant and the co‑offenders during a period in which the other mobiles were in active use.  In other words, it is the void, it is the occurrence of the void between the applicant and the use of his phone both prior to and between the time leading up to the robbery and the commission of the robbery and then the use again of the phones which leads one to have the inference that there was an agreement between the group that there would be some period of mobile phone silence where they would use the robbery phones, if I can so describe them.

There was no telephone communication between the applicant and the co‑offenders between 1.45 am on the 11th and 9.56 am on the 11the.  Now, of course, 9.56 was 16 minutes after the robbery had happened.  So, it is the starkness of the gap between the silence, the stealing of the motor vehicle which was established to have been utilised in the theft, the occurrence of the robbery ‑ ‑ ‑

KIRBY J:   These were prepaid mobile phones acquired with a false name?

MR COCK:   False name, that is correct, your Honour, yes.  So, about 15 minutes before the car was stolen the applicant, who had until then been using the phone often, ceased using his telephone to communicate with the

co‑offenders and telephone communication was reinstated 16 minutes after the offence.  It is remarkable in itself and, we say, would fit into the pattern of what the proposition advanced by the prosecution, that there was this period of agreed silence between them from using their normal telephones.  That is how we say this is so important, and the timing is so critical.

KIRBY J:   Yes, we do not need further assistance, Mr Cock.

MR COCK:   I am obliged, your Honour.

KIRBY J:   Yes, Mr Grace.

MR GRACE:   Just two matters in relation to the phone calls.  The argument of Mr Cock assumes that the use of the other phones numbered 199 or 200 was a use by Noble; there is no evidence to that.  The second matter is that there is no evidence that the phone calls mentioned at paragraph 137 on page 107 of the application book were phone calls made by Piccolo to the exclusion of his girlfriend, Measures, who gave evidence as to her use of that phone.

KIRBY J:   Yes.  The applicant was found guilty and convicted at his trial on one count of attempted murder, two counts of armed robbery in company and one count of stealing a motor vehicle.  He was sentenced to life imprisonment.

The evidence against the applicant and his co‑accused was circumstantial.  The applicant did not give evidence in his defence at the trial.  There was powerful evidence linking the applicant to the criminal enterprise that gave rise to the several charges.  This evidence included a rope found at the jewellery store, which was the subject of the armed robbery.  That rope contained the applicant’s DNA.  There was also video footage that showed the applicant twice, in a short space of time, purchasing petrol in a jerry can earlier in the morning of the offence; evidence that the stolen car was almost empty of fuel when it was stolen; prepaid mobile telephones activated in false names shown to have been used, as it was put, “furiously” between the applicant and his co‑accused before and after the robbery; and evidence of the close relationship between all of the accused.

Justice Miller, who gave the leading reasons in the Court of Appeal of Western Australia, acknowledged that mere association between the co‑offenders was insufficient to establish the guilt of the applicant,  He  had that fact clearly in mind as he approached the question that was before him. 

Although the evidence of one offender, Mr James, expressly exculpated the applicant of being involved in the offences and also exculpated another co‑accused, it is inherent in the jury’s verdicts that they rejected the evidence of Mr James.

It was suggested during argument that Justice Miller had not applied his own mind independently to the entirety of the evidence in the case and specifically to the exculpating evidence.  However, it is clear from the reasons of the Court of Appeal that his Honour had in mind the applicable authorities which he quoted and which he set out to apply.  These were M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606.

We are not convinced that the Court of Appeal erred either in its approach to the applicant’s appeal or in its conclusion that the applicant’s conviction was neither unsafe nor unsupported by the evidence.  An appeal to this Court would not enjoy reasonable prospects of success.  Nor are we convinced that the applicant has suffered a miscarriage of justice.  Special leave is therefore refused.

AT 2.56 PM THE MATTER WAS CONCLUDED