PEROMBELOM v The State of Western Australia
[2006] WASCA 168
•18 AUGUST 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PEROMBELOM -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 168
CORAM: WHEELER JA
HEARD: 16 JUNE 2006
DELIVERED : 18 AUGUST 2006
FILE NO/S: CACR 107 of 2005
BETWEEN: SYLVIAN ALLAN PEROMBELOM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
File No :INS 162 of 2004
Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant: Mr M J Aulfrey
Respondent: No appearance
Solicitors:
Appellant: Ian Hope
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Case(s) also cited:
B v The Queen (1992) 175 CLR 599
Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Duncan (1981) 73 Cr App R 359
R v Pavlukoff (1953) 106 CCC 249
RPS v The Queen (2000) 199 CLR 620
WHEELER JA: This is an application for leave to appeal against conviction. On 16 June, I heard argument from the appellant's counsel in relation to the case filed 24 May 2006. In broad terms, my concern about most of the proposed grounds was that they appeared to extract from their context portions of what was overall a very careful and fair direction by the learned trial Judge. I advised the appellant's counsel that, while it did not seem to me at that stage that a ground complaining that the direction was biased and unfair and/or usurped the jury's role was unarguable, it would be necessary for the appellant's case to make that complaint directly and to identify the way in which the direction was said to be unfair, rather than attempting to criticise small portions of it out of context. There was also an issue in relation to the proposed ground 2, arising from the then relatively recent decision of the High Court in Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573. I granted the appellant leave to file a substituted case.
The substituted case which has been filed is, it seems to me, almost identical with the case previously filed. It suffers from the same defects. Having had the benefit of argument on the previous occasion, I did not call the matter on again, but refused leave on the papers. I now publish reasons, indicating why I did so.
Background facts
The appellant was charged with burglary in company, unlawful detention, and two counts of armed robbery in company. There was no real dispute about whether the offences had occurred, the single live issue in the trial being that of identification. The offences occurred in 2000, when a young woman in a unit in Tuart Hill was at home with her baby, her husband being out at the time. It was alleged that two men, one described as tall and Caucasian in appearance, and the other shorter and of Asian appearance, committed the offences. The taller man was the first to enter the complainant's unit, armed with scissors and a hypodermic syringe. He asked for money. He let the shorter Asian man in. The shorter man saw some keys on the kitchen table and asked the complainant where her car was. They all went outside, the complainant holding her baby. Although the complainant denied having a car, the shorter man used the remote control to locate and unlock the car. He got into the driver's seat and the taller man got into the back. They told the complainant to get into the car. She got into the front passenger seat, still holding her baby.
The two men drove to an ATM and forced the complainant to withdraw money. They then drove to a BP petrol station. The shorter man got out and filled a petrol can with petrol from the pump. They obtained the complainant's PIN from her and wrote it down. The shorter man used some tissues to wipe the steering wheel of the car and both warned the complainant not to tell the police. She drove the car home and immediately told her husband. Police were called. They located a clear thumb print on the outside of the driver's door, near the door lock.
The complainant was only able to describe the two offenders in very general terms. The State's case was that the appellant was the shorter Asian man. It was not until 2004 that a match was obtained for the thumb print. It was the appellant's thumb print. Once police had obtained the thumb print, they showed the complainant a photoboard, in which it is assumed that the appellant's photograph was included. She said, "I don't think he is in here". Police also had earlier obtained and retained the videotape from the service station. It was the prosecution case that that videotape depicted the appellant. The appellant was interviewed by police. He agreed that the person shown in the videotape "looks like me", but denied that it was him and denied that he had committed the offences. He was invited, on the video, to explain how his thumb print had found its way onto the complainant's vehicle, and he made a suggestion.
Trial Judge's direction
Having directed the jury in relation to the elements of the offence, his Honour then dealt in some detail, as one would expect, with the question of identification. He began by noting that the nature of the description given by the complainant in general terms matched that of the appellant, but invited the jury to consider whether that description might not have described any number of other people, and went on to comment strongly that it was his Honour's own view that it was "awfully dangerous territory" to regard that material as being in any way probative of identity.
His Honour then dealt with the photoboard. He reminded the jury that they did not have the photoboard. He warned them against speculation as to what it may have contained. In a passage complained about by ground 1 of the proposed grounds, his Honour said:
"Her observation was - she agreed - 'I don't think he is in here.'
It's hardly, you might think, an observation 'He's not here'. Does it say any more to you than, 'He may or may not be here. I don't think he is. I can't say he is.' What she is saying is perhaps an important thing for you to consider as to whether or not there is any - what may be described as a process of negative identification, a process of any evidence which would tend to exclude the accused person as one of the offenders.
For myself, and again it's a matter of comment by me, I would have thought not but it's a matter entirely for you to evaluate and consider that piece of evidence. It's open to you to have regard to it and I am just indicating to you the care with which I think you should approach the drawing of any conclusion about whether or not he was the offender from that process, what you know of that process and what she said three and a half years after the event when she participated in the process."
His Honour then turned to the evidence from the surveillance cameras at the service station. He caused that videotape to be replayed for the jury on a machine which was able to enlarge it. He encouraged the jury to replay it and consider it as much as they needed, but went on to comment that, so far as he was concerned, it was "difficult to actually pick up readily what was happening, let alone who was involved in what was happening". His Honour also reminded the jury that there was a difficulty in comparing the appearance of the person on the video with that of the appellant before them in court, since the videotape was made some four years previously.
Turning to what the appellant said in his videotaped record of interview, his Honour also encouraged the jury to play that, and to analyse it calmly. His Honour noted that the appellant both admitted that the person in the videotape looked like him, and went on to say, "No way I'd do anything like that". He advised the jury that whether there was an element of admission which the jury was able to accept was a matter for them.
In a direction the subject of complaint in proposed ground 2, his Honour went on to say:
"I should say this to you in relation to that material: the video interview process has produced what lawyers very often call a mixed statement, a statement which contains admissions against interest. They are particularly concerned with his knowledge or familiarity with the area and when after the location of the service station opposite a hotel is mentioned to him, he says, 'Yes, I have been to that particular service station at least twice when I have run out of petrol. I have probably pushed my car there but would have bought petrol and paid cash for it.'
So there is a familiarity with the area which is admitted and all of the events of the night in question you might think seemed, from Ms Phung's evidence, to have happened within a relatively confined area of perhaps a few blocks either way from her place of residence, so there are admissions of that kind. They are declarations against interest. The fact that they are against his interest would leave you more inclined to rely upon them as being true. It's a simple proposition of human nature that one does not ordinarily make admissions against one's interests when one is the subject of an investigation of the commission of such serious offences unless the admission is likely to be true.
The other aspect, the thing that makes the thing mixed, is that there are repeated denials of any implication in the commission of any of these offences and that also is evidence to which you should have regard, the way in which he makes those denials, what he says, the nature of his reaction, is all material to which you have regard when considering whether you accept that that might be true, or might not be true, but the point is that these are self‑serving statements and one would be inclined to pay less weight to them as being true statements, but whether or not they are or may be true is a matter for your attention, not for me to give you any directions about."
Immediately before that passage, his Honour had invited the jury to consider with care the appellant's reaction when the allegations were put to him during the course of the interview, particularly when there was mention made in that interview of the baby being in the complainant's arms. It is clear from his Honour's direction that he was drawing to the jury's attention the apparent horror displayed by the appellant at the notion that he would be involved in an offence of that kind, and his Honour advised the jury that, while it was for the jury to consider whether he was acting or whether he was genuinely displaying horror, his reaction did have evidentiary value.
His Honour reminded the jury that the appellant was, of course, interviewed some years after the time of the alleged offences. He then turned to the thumb print. In relation to that matter, his Honour said:
"There's the door. Is that when the fingerprint got there? Are you satisfied of that beyond reasonable doubt? If you were it would be enormously powerful evidence of his implication in the commission of all the offences because he was the person described by Ms Phung throughout as being the person of Asian appearance. But that's a crucial question. You see it's the sort of door handle that one lifts or opens the door by lifting towards you and pulling out. One might readily imagine it's a very natural process of placing a thumb on the body of the door and using one's fingers to bring the door handle open, but was it done at that time. That would seem to be the crucial question, and it's the one I would suggest you would need to be satisfied about beyond reasonable doubt before you would find it safe to convict.
The other observation I wanted to make about that then is this. When it is put to the accused at interview that this was the case, he first displays a view that he cannot now remember how his print might have got on the vehicle, and there is an important point to be considered when you are examining this evidence in that regard. Three and a half years later down the track what forensic opportunity, what opportunity could he possibly have to recall if he, innocently of these offences at least, placed his fingerprint on a vehicle parked in the position that was described to him without being implicated in these offences. How would he possibly remember? How could he provide detail?
What he says first is, 'It might have happened when I got a lift.' There are two things about that. There was no questioning of her, of course, as to whether or not she or her husband had ever given the accused person or a person answering that description a lift in the motor vehicle, so the evidence is quite neutral about that, but there was just no discussion in the evidence about if it was possible that it got there by that means. It would seem a bit odd that it's the driver's side door in those circumstances that would receive a thumb print from a person who was receiving a lift, but that would be a matter for you to have regard to and consider."
Against that rather lengthy background, I turn to the grounds of appeal.
Ground 1: Misdirection in relation to identification
This ground complains that the passage which I have quoted relating to the photoboard contained a number of errors. First, there is a suggestion in the grounds that his Honour erred in expressing an opinion on a contentious and crucial issue within the trial. That is plainly based on a mistaken view of a trial Judge's function. It is open to a Judge to comment on the facts, provided that the comment is not unfair and does not overawe the jury. Further, as I understand it, it was suggested that the comment was in some way unfair, in suggesting to the jury that the negative identification process should be regarded as having virtually no probative effect. However, it seems to me that, fairly read, his Honour is plainly suggesting to the jury that it is important for them to consider whether there had been a "negative identification", in the sense of a positive exclusion of the appellant by the complainant. It was inherent in what his Honour said to the jury that such an exclusion would be of importance. It was also inherent in what his Honour said to the jury that if they considered that the complainant was really saying no more than that she did not know whether, some years after the event, a person in the photoboard was the offender, then that would be of relatively limited significance. It seems to me that that is a reasonable assessment of the effect of that evidence. It was in the context of a direction in relation to identification, some portions of which were very clearly in favour of the appellant and other portions of which were clearly less favourable. It cannot be said that, seen in that context, his Honour's direction lacked balance.
Ground 2: Misdirection in relation to admissions
This ground suggests that it was improper for his Honour to suggest what weight should be placed upon the appellant's assertions of innocence in the videotaped record of interview. It is suggested that his Honour's observation that it was a simple proposition of human nature that one does not ordinarily make admissions against interest unless the admission is likely to be true was a comment which the High Court had recently suggested should not be made: Mule v The Queen (supra) at [23].
So far as the greater part of his Honour's direction is concerned, it is entirely consistent with the views expressed in Mule v The Queen, the most important aspect of which is that juries should not be given general or a priori directions as to what weight should be accorded to different parts of a statement. As I have noted, his Honour specifically left the issue of weight and assessment of all the portions of the videotaped interview as "a matter for your attention, not for me to give you any directions about".
I accept that it was, in the light of Mule, undesirable for his Honour to suggest to the jury that there was any general rule, derived from human nature, or otherwise, which might be capable of applying to admissions against interest. However, while the High Court in Mule observed that it was undesirable to direct juries in that way, it did not go so far as to suggest that a direction of that kind would always be an error; on the contrary, the Court was at pains to note that the circumstances of each case, and therefore the appropriate directions which should be given, would vary.
It seems to me that, looked at overall, his Honour's direction was one which left to the jury the question of whether admissions had been made at all and, if so, what weight should be given to them. It also left to the jury the question of the way in which it should consider the appellant's denials.
This ground of appeal also complains about the way in which his Honour directed the jury concerning the appellant's reaction, and the context in which he denied the offending. However, that portion of the direction seems to me to have been favourable to the appellant, his Honour suggesting in it that the appellant appeared on the videotape to be horrified at the suggestion that he would offend in those circumstances, and his Honour further suggesting that if the jury considered that that reaction may be genuine, then it would be a relevant consideration.
Ground 3: Misdirection concerning fingerprint
There are two aspects of this ground. First, it is asserted that his Honour's observation that the fingerprint was "enormously powerful" evidence, was "tantamount to a direction to convict the appellant if the jury believed that the fingerprint was that of the appellant and was placed there at the time of the commission of the offences". The problem with this aspect of the ground is that if the fingerprint was that of the appellant and was placed on the car at the time of the commission of the offences, it is difficult to see any conclusion other than that the appellant was the offender described by the complainant as being of Asian appearance, so that he would, of course, be convicted.
His Honour's description of the thumb print as "enormously powerful" evidence, provided only that the jury was satisfied as to when it had been placed on the vehicle seems to me to have been no more than a recognition of the blindingly obvious, and a prelude to his Honour's direction that the jury would need to consider with care the evidence relating to that issue and would need to be satisfied beyond reasonable doubt that it was placed on the vehicle during the commission of the offences. Such a direction in the context of this case was entirely proper.
This ground also complains that his Honour wrongly suggested to the jury that the appellant had provided a positive explanation that the thumb print came to be where it was because he had obtained a lift, when he was really simply speculating. However, again this seems to me to misunderstand his Honour's direction. The thrust of it is that three and a half years later, the appellant really had little, if any, opportunity to recall if he had in any way innocently come to place his thumb print on the vehicle.
Ground 4: Bias and appearance of appellant at trial
This ground contains two strands. The first is that his Honour's direction was biased and that "it could not have escaped the jury's attention that the most powerful figure in the court held a particular view as to the appellant's culpability in the charges". My own view of the direction, read as a whole, is quite the contrary. At a number of points, his Honour comments in a way which would suggest to the jury that certain aspects of the State case are not matters upon which the jury should place much weight. At other points, his Honour certainly does suggest to the jury that there are aspects of the State case which are clearly capable of implicating the appellant. However, when his Honour turns to those latter aspects, it is in the context of drawing the jury's attention to the need to consider them with care, and to be satisfied about them beyond reasonable doubt before convicting.
There is a further complaint raised in this ground that the appellant appeared during the course of the trial in shackles, that the shackles were not unobtrusive, and that the appellant's appearance in shackles could easily have left the jury with the impression that he had offended on previous occasions and/or was dangerous. I accept that the appellant was shackled during the trial, since counsel for the appellant advised me from the bar table that he had this information from the appellant's trial counsel. There is no evidence whatever as to whether the shackles were obtrusive or unobtrusive.
The appellant's counsel concedes that there is no reference to the question of the shackles in the transcript. Had trial counsel held any concerns about the appellant being presented to the jury in some possibly prejudicial way, it was, of course, open for him to raise that with the trial Judge. That did not occur. There is no reason for considering, retrospectively, that simply because the appellant was shackled, there was some inevitable prejudice. Even if that were the case, it does not necessarily follow, as this ground of appeal suggests, that his Honour should have given the jury some direction about the appearance of the appellant in shackles. It is by no means clear that jurors are aware that it is not the normal practice of accused persons to be shackled in this Court. A direction would run the risk of drawing the jury's attention to the unusual nature of the proceeding, and inviting speculation where none might otherwise have existed.
Finally, there is a complaint about the words "innocently of these offences at least" in the context of ground 4, those appearing in the passage I have quoted earlier relating to his Honour's direction concerning the videotaped record of interview. It is submitted that those words could well have left the jury with the impression that the appellant had offended on a previous occasion. It is not clear to me how they could have done so. It is not suggested that his Honour placed any particular emphasis on these words. However, it was plainly a further possible explanation for the way in which the appellant's thumb print had appeared on the vehicle that he may have tried the door for some unlawful purpose on some other occasion. That possibility, it appears from the transcript, had occurred independently to both his Honour and the appellant's counsel, although it was not suggested to the jury. While discreditable to the appellant, it would have resulted in his acquittal of these offences if the jury had thought of it and considered it a reasonable possibility.
For these reasons, I would refuse leave in relation to all grounds.
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