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PUNCH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 260

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 260
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:114/2010	Heard:	18 APRIL 2011 AND ON THE PAPERS
Coram:	MARTIN CJ BUSS JA MAZZA J	Delivered:	29/11/11
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction and sentence set aside New trial ordered
Category:	B
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Parties:	BEAU JAMES PUNCH THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Robbery Identification evidence Relative identification Whether verdict unreasonable or cannot be supported Admissible evidence excluded at trial New trial or acquittal
Legislation:	Criminal Appeals Act 2004 (WA), s 30(3)(a) Criminal Procedure Act 2004 (WA), s 98
Case References:	Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 JRNT v The State of Western Australia [2011] WASCA 183 Murray v The State of Western Australia [2009] WASCA 18 R v Arden [2004] VSCA 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PUNCH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 260 CORAM : MARTIN CJ

BUSS JA

MAZZA J

HEARD : 18 APRIL 2011 AND ON THE PAPERS DELIVERED : 29 NOVEMBER 2011 FILE NO/S : CACR 114 of 2010 BETWEEN : BEAU JAMES PUNCH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : KEEN DCJ

File No : IND 745 of 2009

Catchwords:

Criminal law - Appeal against conviction - Robbery - Identification evidence - Relative identification - Whether verdict unreasonable or cannot be supported - Admissible evidence excluded at trial - New trial or acquittal

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Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)

Criminal Procedure Act 2004 (WA), s 98

Result:

Appeal allowed

Conviction and sentence set aside
New trial ordered

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : Mr R G Wilson

Solicitors:

Appellant : Ian Hope

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
JRNT v The State of Western Australia [2011] WASCA 183
Murray v The State of Western Australia [2009] WASCA 18
R v Arden [2004] VSCA 131

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1 MARTIN CJ: This appeal should be upheld, the appellant's conviction quashed, and a new trial ordered for the reasons given by Mazza J with which I agree.

2 BUSS JA: I agree with Mazza J.

MAZZA J

:

Introduction

3 This is an appeal against conviction.

4 The appellant was tried before his Honour Keen DCJ and a jury in the District Court on the following charge:

On 27 May 2008 at Perth [the appellant] stole from [KF], with violence, a sum of money the property of [KF]

And that [the appellant] did bodily harm to [KF]

5 On 12 May 2010, he was convicted as charged. Subsequently, the appellant was sentenced to 9 months' imprisonment cumulative upon other sentences which had been imposed upon him by another court.

6 The critical issue at trial was identification.

7 Leave to appeal has been granted in respect of two grounds. They are:

Ground 1

The verdict of guilty should be set aside because, having regard to the evidence, it was unreasonable and/or cannot be supported;

Particulars:

1.1 The evidence adduced by the prosecution was not sufficient to sustain a conviction.

Ground 2

The learned trial Judge erred in both law and fact, and there was a miscarriage of justice when, contrary to the decision of the High Court in Pitkin v The Queen (1995) 130 ALR 35, he left the testimony of the complainant to the jury as evidence capable of amounting to an identification of the Appellant as the offender.

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The undisputed facts

8 Later, I will provide a more detailed account of the evidence relating to the question of identity. That evidence needs to be seen against the background of what were the essentially undisputed facts at trial, which I summarise as follows.

9 KF, the complainant, lived in an apartment on Wellington Street, Perth. At about 3 am on 27 May 2008, she walked to an automatic teller machine (ATM) situated just past the corner of King and Wellington Streets, Perth. There she withdrew $230. Prior to withdrawing the money, she had noticed an Aboriginal man in the vicinity. Immediately after the complainant took her money from the ATM, the man attempted to snatch it from her. A short struggle ensued, during the course of which the complainant fell to the ground and sustained minor injuries amounting to bodily harm. Eventually, the man forced the money from the complainant's hand. He then ran up King Street to a waiting vehicle. The complainant pursued him. The man got into the front passenger side of the vehicle, which then drove off in the direction of Murray Street. The complainant managed to take down most of the details of its registration number.

10 The complainant ran straight home and rang triple zero. Police then attended the complainant's home and the scene of the incident.

11 Later on 27 May 2008, at about 5.11 pm, police officers located the vehicle which had been used in the robbery in the carpark of a high rise block of units situated in McMaster Street, Victoria Park. There was no evidence that the appellant had any connection with this address. Nor was there any evidence about what had happened to the vehicle after the robbery and before it was found by police.

12 On 28 May 2008, Senior Constable Harrison undertook a forensic examination of the vehicle. He was able to lift three fingerprints from it. Of those, only one could be matched to a person. That person was not the appellant, but a woman named Ms M: ts 225, 241. Among the items found in the vehicle were two cigarette butts. One of these was discovered behind the driver's seat, while the other was found behind the front passenger seat: ts 225 - 226. Senior Constable Harrison also found an empty bourbon and cola pre-mix can in the footwell of the front passenger seat of the vehicle (exhibit 11, photograph 4), which is, of course, on the same side of the vehicle as the offender was seen by the

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complainant to enter. The cigarette butts and bourbon and cola can were secured and later conveyed to PathWest for DNA analysis.

13 On 17 June 2008, the complainant was shown two digiboards in an attempt to identify the offender. Each digiboard contained 12 photographs. At the time, the person of interest to the police was not the appellant, but rather a man named Mr R. Mr R's photo, but not the appellant's, appeared on the digiboards. The complainant did not identify the offender from either digiboard.

14 In due course, the police obtained the results of the DNA analysis. DNA recovered from the cigarette butt found behind the driver's seat matched the appellant's DNA profile. Ms Anna-Marie Ashley, a senior forensic scientist at PathWest, testified that the probability of this DNA material coming from someone other than the appellant was less than one in 6.1 billion: ts 269. The swab taken from the bourbon and cola can revealed a mixed DNA profile with major and minor components. Ms Ashley testified that two people contributed to the major component, and that the appellant could not be excluded as one of those contributors. She said that it was approximately 30,000 times more likely that the mixed major component DNA profile had originated from the appellant and an unknown individual than if it had originated from two unknown individuals: ts 274.

15 During her evidence, Ms Ashley said that DNA cannot be aged, and she was not able to say how long DNA had been on an object: ts 266.

16 After the police obtained the results of the DNA analysis, on 10 February 2009, approximately 8 1/2 months after the robbery, the complainant participated in another digiboard identification procedure. As before, the digiboard contained 12 photographs. This time the appellant's photograph was included and marked as number 9: exhibit 9. The procedure took place in the presence of Detective Kukura, an officer independent of the investigation into the robbery. The procedure was video-recorded, and a DVD of what occurred was tendered in evidence and shown to the jury: exhibit 6. I will refer to what occurred in that procedure when I set out in detail the evidence relating to identification.

17 The appellant did not give or adduce any evidence in his defence.

The detailed identification evidence

18 In examination-in-chief, the complainant testified that at about 3 am on 27 May 2008 she walked to the ATM. She said that when she was at

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the ATM, she became aware of an Aboriginal man 'hanging around' the set of traffic lights at the intersection of King and Wellington Streets, Perth: ts 106. She said that he was wearing a cap and had his head down so that she could not see his face: ts 107. She said that he was walking around the lights, but in her direction for between 20 to 30 seconds, in which time she recalled looking at him '[p]robably two to three times': ts 107. She said she saw his face from his nose to his chin when she looked at him.

19 The complainant said that the man then positioned himself 'not even a metre' behind her. He muttered something to the effect of '[g]ive me your money'. The complainant said that she looked behind her and got a glimpse of his whole face before he put his head down: ts 108.

20 She said that after she took the $230 she had withdrawn from the ATM, the man grabbed her right hand and wrist in which she was holding the money: ts 108. The complainant testified that when he grabbed her hand he pulled her over, causing her to fall head first to the ground. She said at this point, she still had the money in her hand, and the man was trying to take it from her. She said the man stood over her while she was lying on her back, so that his head was almost directly above hers: ts 109 - 110. She said that struggle took place no more than two metres from the ATM (ts 126) with the man trying to force the money from the complainant's hand. She said she was 'very scared': ts 110. During the struggle, the complainant said that she saw the man's face. She said that there were times in the struggle when she closed her eyes, but she said that she saw his face during the struggle '[p]robably … four times': ts 111. She estimated the struggle took about 30 seconds: ts 110. In cross-examination, she said it took 'about 20 seconds': ts 144.

21 Eventually, she said, the man took the money. The complainant said that he ran up King Street and she pursued him. She said that the man jumped into the front left-hand passenger seat of a car. The vehicle then took off towards Murray Street: ts 111 - 112.

22 The complainant wrote down a partial registration number of the car: CUX-720. She then ran straight home and rang triple zero: ts 112.

23 A recording of the triple zero call was admitted into evidence and played to the jury: exhibit 2. During the call, the complainant was asked whether she was able to give a description of the offender. She replied, 'Not a very good one, no. He was wearing a hat'.

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24 The complainant was able to describe the offender in general terms as being an Aboriginal male in his late twenties. She described the clothing he wore as denim shorts, a grey T-shirt and 'shoes, I suppose'.

25 The complainant described in examination-in-chief that the area around the ATM was lit by light coming directly from the ATM as well as a nearby streetlight: ts 116 - 117. The State prosecutor asked her what she remembered of the offender's appearance. She said, 'Because it was so long ago, there's not much that I remember': ts 118. She said that the offender was Aboriginal, in his mid-twenties and was of a stocky, medium build. She said that he was wearing shorts to his knee, a short-sleeved shirt and a baseball-style cap. She did not recall the colour of the cap or the shirt. She said that she did not see any hair underneath the cap. She said that the man's eyes were brown in colour: ts 119.

26 The complainant gave evidence about being shown the digiboards on 17 June 2008 and 10 February 2009. The complainant viewed, in the presence of the jury, the DVD which recorded the digiboard procedure on 10 February 2009.

27 The entire digiboard procedure took approximately 9 minutes. After some preliminary instructions from Detective Kukura, he handed the complainant the folder containing the digiboard. After viewing the digiboard for approximately a minute, the complainant said:

Number 2 and number 9 look - I couldn't say for sure, you know, if it was them but it looked similar to the man I recall. As I said I couldn't say for sure.

28 A viewing of the DVD shows that the complainant then used her thumb to cover the upper part of the face shown in photograph number 9. After studying that photograph for about 2 minutes, she said, 'I don't - not at all to, you know, because it was a, you know, fairly, you know, while ago'.

29 The complainant continued to study photograph number 9. She said, 'Number 9 looks familiar but I don't know whether (indistinct) whether it's him or not'.

30 The complainant then covered photograph number 2, and apparently kept looking at photograph number 9. Eventually she said, 'Yeah, I don't know - it's the best I can - can do'.

31 Detective Kukura then said:

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You reckon number 9 but you couldn't be completely sure. Is that right?---Yeah, yeah.

32 A short time later Detective Kukura said:

Okay, so you've identified number 9 as being the person involved in the matter and under investigation …

33 This statement is not confirmed by the complainant and appears to be Detective Kukura's wishful interpretation of what the complainant said.

34 The complainant said, after she was asked to sign the digiboard, 'Just it [photograph number 9] might be him'.

35 After exhibit 6 was played to the jury, the following exchange took place between the State prosecutor and the complainant:

WILSON, MR: Now, [KF], I'm going to ask you some questions about your state of mind, if you like, at the time that procedure was done with Detective Kukura. So that's the very last DVD we've just seen, okay---Mm hm.

Now, when you were sitting there looking at that group of photographs you agree there were 12---Mm hm.

Now, the picture you had in your mind of the man who you say took money from you. What parts of the incident formed that picture in your mind---From what I remember of---

Yes---It was like a collaboration of - from when I saw him at the lights to the struggle and at the ATM all I remember's like his bone structure and his age and colourings.

When you say 'colouring'--------- this and that.

- - - colouring of what---Colouring of his skin and it's [sic] shade and his mouth.

WILSON, MR: What about his mouth---The shape of his mouth.

Now, in that DVD the ladies and gentlemen perhaps noticed you using your hands in a certain way. What was happening there---I was - well, in the first bit I was covering the number two so that I could see number nine and then I was putting my thumb over number nine's - the - the top of his head so that I could get a picture of what he looked like with a cap on.

Right. So in the group of 12 photos you were shown by Detective Kukura did any of the pictures have headwear on------No.

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- - - of any kind? And it's just their face and neck at most, is that correct---Yes.

Now, at the time you looked at photograph number nine in that procedure with Detective Kukura what - what were you thinking---I was thinking I didn't want to get - you know I didn't want to pick the wrong person and because of the length of time it had been since the incident and I was nervous and probably like - like my self confidence isn't that high so I just wanted to be a hundred per cent sure the person I was picking, you know, is - was the right person. Cos I don't want the wrong person to go to - to gaol or to suffer anything.

Right---They shouldn't have to if it's - if I pick the wrong person.

Right. So at the time that you referred to number nine, why did you go to number nine---Because that's what I - that's what the man that robbed me looked like and that's what I remember of him.

Now, I think you've touched on this. I'll just ask you some more about it. In the digi - in - sorry, in the procedure there when you're looking at that group of photographs you used at one point the phrase: Best I can. - - ----Mm hm.

And then right at the end in fact your last words were as you were about to sign paperwork: Just it might be him. Do you remember that------Yes.

WILSON, MR: - - - on there? Now, how is that you're saying words like: Best I can. And: Just it might be him. At that time---Probably best that I can remember.

How were you feeling at that time---Best that I can remember and---

How were you feeling at that time---Nervous and not under pressure but just nervous and I wanted to pick the right person.

Okay. Now, you mentioned earlier self confidence. What did you say about that again---That I don't have very high self confidence so I want to be sure when I'm picking something as important as this (ts 133 - 135).

36 In cross-examination, the complainant accepted that she was unable to recall whether the man who attacked her was clean-shaven or otherwise: ts 137.

37 Defence counsel took her to her deposition made on 24 February 2009. She agreed that in the statement she said that when she was waiting for her money, the man said something, but she did not hear what he said. She agreed that she did not tell the police that the man had demanded money from her: ts 142.

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38 She was cross-examined about how long she struggled with the man. She said about 20 seconds: ts 144.

39 Defence counsel asked her if, while she was on the ground, struggling with the man, she was 'crawling around'. She denied this, and maintained that she was on her back: ts 145. Defence counsel drew her attention to her statement of 24 February 2009, and to the part where she said, 'I was crawling around and struggling to keep hold of the money'. The complainant agreed that that was what she recalled when she made the statement: ts 145.

40 With respect to the digiboard identification process which took place on 10 February 2009, the complainant denied that she participated in it with the expectation of making an identification: ts 152 - 153.

41 The cross-examination of the complainant concluded with the following exchange:

HOPE, MR: All right. Now, when you spoke with the prosecutor - I beg your pardon, when you spoke with the police on 10 February about the photoboard, you made several comments about - I think you said you covered photograph 2 to begin with. Is that correct---Yes.

Was that because photograph 2 had a resemblance to photograph 9---Yes, they - bit similar.

So those two - either one of those did look similar to the person who was at the ATM---Yes, but number 9 - - -

I'll just come to that. Just hold on, please. And you recall, just moments ago, having seen the footage of the digiboard procedure on 10 February, where you remain saying, 'Just - it might be him.' Do you remember saying an expression like that---Yes.

'Best I can'---Yes.

Recall saying that? Nodding; does that mean yes, with respect---Yes. I said yes, sorry. Speaking too soft.

'Couldn't say for sure.' Yes, I think you said that twice. Do you agree with that---Yes.

'Looks familiar', an expression to that end, correct---Yes.

'Might be him', correct---Yes.

And when you made those utterances to the police, you weren't lying were you---No.

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That was your meaning, wasn't it---Yes (ts 153 - 154).

42 In re-examination, prosecuting counsel referred the complainant to the answer she gave in cross-examination to the effect that photograph number 2 looked similar to photograph number 9. As to this the complainant said:

[H]e looks similar but when I looked at number 9, like I basically put my hand over number 2 because number 9 looked like the man above me (ts 170).

43 The prosecutor asked how the man in photograph number 9 looked compared to the man in photograph number 2. The complainant's response was:

Different, but similar. I can't recall exactly what differences now cos it was a good nine months ago (ts 170).

Section 98 proceedings

44 Prior to trial, at a hearing pursuant to s 98 of the Criminal Procedure Act 2004 (WA), the State indicated an intention to lead evidence that the car used in the robbery was owned by a car dealership and had been stolen from a service station in Osborne Park at approximately 2.45 pm on 25 May 2008, some 36 hours before the commission of the robbery. The appellant objected to this evidence, arguing that it was irrelevant or, alternatively, that its probative value was outweighed by its prejudicial effect and should be excluded in the exercise of the trial judge's discretion. The State argued that the evidence was relevant for a number of reasons including that it was relevant to negativing an innocent association between the appellant and the car used in the robbery.

45 His Honour excluded the evidence on the basis that it was irrelevant. Alternatively, his Honour held that if the evidence was relevant, the risk of prejudice outweighed its probative value: 6 May 2010, ts 69.

46 As a result of this ruling, there was no evidence before the jury that the vehicle had been stolen, or when or from where it was stolen. This meant that there was no evidence as to the time frame in which the items that contained the appellant's DNA could have been placed in the vehicle.

47 I will say more about the s 98 hearing later in these reasons.

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The State's case at trial

48 The State prosecutor, in his opening and closing addresses, spoke of the 'united force' of the DNA evidence and the complainant's reference to the appellant's photograph in the digiboard procedure on 10 February 2009: ts 104, 360.

49 The State's case was put to the jury on two alternative bases. First, it was submitted that the complainant had, when regard is had to exhibit 6 and her oral testimony, positively identified the appellant as the offender in the digiboard procedure on 10 February 2009. This evidence was, according to the State, further reinforced by the DNA evidence.

50 Alternatively, if the jury did not think that the complainant had made a positive identification of the appellant in the digiboard procedure, the jury could conclude, at least, the appellant might be the offender. When combined with the DNA evidence, the jury might infer that the appellant was the offender.

51 It seems to me that it is in each of these senses that the State prosecutor used the words 'united force' in his addresses to the jury.

The defence case at trial

52 The defence case was that the complainant was not a reliable witness. Defence counsel submitted that the complainant had insufficient opportunity at the time of the robbery to properly identify the offender: ts 375. With respect to the digiboard procedure, defence counsel emphasised that it took place approximately 8 1/2 months after the robbery. He submitted that the complainant did not, in effect, positively identify the appellant as the offender. At best, the complainant chose photograph number 9 as a photograph of someone who 'looked familiar; that it might be him': ts 378.

53 As to the DNA evidence, defence counsel conceded, with respect to the cigarette butt, that the DNA found on that object was the appellant's: ts 384. Defence counsel reminded the jury of Ms Ashley's evidence to submit to the jury that there was nothing which enabled it to know when the appellant's DNA was deposited: ts 384. The clear implication of this submission was that while it might well be inferred that the appellant had been in the vehicle used in the robbery, the DNA evidence was incapable of demonstrating he had been in the car when the robbery took place.

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54 Defence counsel's ultimate submission was that the evidence presented by the State did not establish, beyond reasonable doubt, that the appellant was the offender: ts 386.

55 I observe that the appellant (rightly, in my view) did not argue at trial or in this court that the complainant's evidence, if viewed as falling short of positive identification, was inadmissible or that its admission should have been excluded on discretionary grounds. As was explained by McHugh J in Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, such evidence, sometimes called 'circumstantial identification evidence', is admissible and may nevertheless be of significance having regard to the whole of the evidence. His Honour said:

Unfortunately, another class of evidence is sometimes called 'circumstantial identification evidence'. It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence [56]. (footnotes omitted)

Punch v The State of Western Australia

[2011] WASCA 260

29 NOVEMBER 2011

PUNCH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 260