R v Contin
[2004] VSCA 210
•24 November 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 72 of 2003
| THE QUEEN |
| v. |
| MARK CONTIN |
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JUDGES: | ORMISTON, CALLAWAY and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 November 2004 | |
DATE OF JUDGMENT: | 9 November 2004 | |
REASONS FOR JUDGMENT: | 24 November 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 210 | |
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CRIMINAL LAW – Application for leave to appeal against conviction – Application to substitute grounds – Ground concerning directions as to evidence of identification – Relevant part of charge not transcribed – No exception taken – DNA evidence – Whether potential for contamination – Proposed grounds not supported by evidence – Leave to substitute grounds refused – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Dr I.R.L. Freckleton | Victoria Legal Aid |
ORMISTON, J.A.:
On this application the Court announced on 9 November this year that the application to substitute some four additional grounds of appeal was refused. It followed, because the applicant did not seek to persist with the existing grounds of his application, that the application for leave to appeal against conviction was dismissed, for reasons which would be published thereafter. The reasons for taking that course which appear in the judgment to be given by Callaway, J.A. sufficiently express my reasons for coming to those conclusions.
CALLAWAY, J.A.:
The applicant, who is now aged 24, was presented in the County Court on one count of aggravated burglary (count 1), one count of armed robbery (count 2), one count of making a threat to kill (count 3) and one count of kidnapping (count 4). After a trial occupying eight days he was found guilty on counts 1, 2 and 4. The jury were directed to find him not guilty on count 3. The applicant admitted 124 previous convictions and 62 findings of guilt from 22 court appearances between March 1996 and July 2001. Following a plea for leniency on his behalf, the learned trial judge sentenced the applicant to a total effective sentence of seven years' imprisonment with a non-parole period of four-and-a-half years. He sought leave to appeal against conviction only.
The original grounds of appeal in the notice of application filed on 25th March 2003 were, first, that the judge erred in the exercise of his discretion in admitting into evidence evidence of the applicant’s DNA; and, secondly, that his Honour erred in the exercise of his discretion in admitting into evidence the discovery of a knife bearing the applicant’s DNA. On 5th November 2004 counsel for the applicant notified the Court that he would abandon those grounds and seek leave to substitute the following grounds:
“1.The learned trial judge erred in failing to direct the jury specifically that they should not find the applicant guilty unless satisfied beyond reasonable doubt that the knife tested for DNA
was the knife found in the presence of Mr Pilioussis and the sample tested was that of the applicant.
2.The learned trial judge erred in failing to direct the jury that they needed to be satisfied beyond reasonable doubt that the results obtained from the DNA testing of the knife were not the consequence of accidental contamination.
3.The learned trial judge erred in failing to direct the jury how they should construe the multiple failures on the part of the police to adhere to proper continuity procedures.
4.The learned trial judge erred in failing to direct the jury as to how they should interpret the very limited identification evidence.”
Having regard to the course of the hearing, the facts may be stated with brevity. On 15th September 2000 the applicant broke into a house in North Fitzroy intending to steal. The occupiers of the house were Mr and Mrs Pilioussis. Mrs Pilioussis returned home while the applicant was still there. At first she did not realize he was present and proceeded to make a cup of tea but, when she heard a noise towards the front of the house, she went to investigate. She saw a figure in the doorway of her daughter’s room and turned to run, but the applicant pursued her to where she fell in a corridor. She noticed that he was holding a knife. The applicant told Mrs Pilioussis not to scream and demanded money from her. She asked him not to hurt her, got up and retrieved some money from her handbag and gave it to him. The applicant then demanded that she take off the rings on her fingers and give them to him. They were difficult to remove and Mrs Pilioussis had to go to the bathroom to do so. The applicant threatened that, if she did not get the rings off, he would cut off her fingers. He then asked for more money and took Mrs Pilioussis to her bedroom, where she gave him a necklace and a bracelet from a jewellery box. The applicant rendered the telephone inoperable and instructed Mrs Pilioussis to drive him away from the house.
Up to that time the applicant had been wearing a balaclava or the like. When they were in the car he removed his disguise but told Mrs Pilioussis not to look at him. She was not able to give a description but did observe that he had a black eye. She drove the applicant to a taxi rank in Reservoir, where he took her car keys and made a telephone call. Later a taxi arrived, in which the applicant fled with the necklace and bracelet, two rings, a watch, a chain, a pair of binoculars and $150 in cash, all of which had been taken from Mr and Mrs Pilioussis’s house. The applicant instructed the taxi driver to take him to Russell Street in the city, where he stopped in Russell Street and Little Collins Street, asking the driver to wait while he went inside. They then drove back to Reservoir.
The applicant was taken into custody on 16th September 2000 but released shortly thereafter. He was taken back into custody on 4th October 2000 and interviewed at the Fitzroy Criminal Investigation Unit. Later that day he was taken to Dr Barclay’s rooms, where a buccal swab was taken. The swab was later stored at the Fitzroy Police Station. The next day Mr Pilioussis gave the police a knife, which his cleaner had discovered in his presence. It did not belong to the Pilioussis household. Subsequent tests revealed that traces of DNA found on the knife were consistent with DNA taken from the buccal swab. There were irregularities in the way in which both the buccal swab and the knife were stored and recorded.
Defence counsel at the trial accepted that events occurred as Mrs Pilioussis described them. The sole issue was whether the applicant was the offender. As the judge said in the course of his charge:
“As I indicated before lunch the issue in this trial you might think is rather confined and it simply is this: has the Crown satisfied you beyond reasonable doubt that the person who was the intruder into Mrs Pilioussis’ home on 15 September 2000, who produced a knife to her and robbed her of the various items that she referred to and then took her away or directed her to drive him to the address in Reservoir, was the accused man.”
That was one of several occasions on which his Honour explained and emphasized the standard of proof. He directed the jury, among other things, that they must not draw any inference as to the existence of an element of an offence unless they were satisfied beyond reasonable doubt of the facts that were necessary or essential to their process of reasoning.
There were a number of obstacles to counsel’s application to substitute the four grounds of appeal for the two grounds that had, rightly, been abandoned. I shall refer to some of them in a moment. After hearing argument, we ruled, on 9th November 2004, that the substitution would not be permitted and ordered that the application for leave to appeal against conviction be dismissed. These are my reasons for joining in that ruling and order.
The proposed ground 4 was quickly dispatched. There had been a tape malfunction at the very point in the charge where the judge had given directions on identification evidence. In a letter to the Registrar dated 22nd July 2004 his Honour said that he no longer had his notes of the charge but that his practice was to follow the directions in the charge book and to give a Domican warning.[1] No exception was taken to that or any other part of the charge. In those circumstances the Court could not be satisfied of a ground that asserted that the judge erred in failing to direct the jury as to how they should interpret the identification evidence.
[1]Domican v. R. (1992) 173 C.L.R. 555.
Counsel argued proposed grounds 1 to 3 together. The critical piece of evidence identifying the applicant with the offender was the presence of DNA consistent with his on the knife. The real issue, counsel said, was whether there was potential for the applicant’s DNA to have found its way on to the knife in a manner consistent with innocence. He submitted that the trial miscarried because the judge had not directed the jury adequately on that point. As I understood the submission, it was contended that his Honour should have referred to the potential for contamination, related that potential to the standard of proof and, as part and parcel thereof, given the jury more assistance with respect to the failure of the police to adhere to proper continuity procedures.
When the submission was examined, a number of points emerged. The first was that, taking the evidence at the trial on its face, there was nothing to show that the applicant’s DNA had found its way on to the knife in an innocent fashion. That could be so only if the knife had come into contact with the applicant’s clothing or there had been deliberate misconduct on the part of the police, in the sense of what counsel described as “malign contamination”. The police witnesses’ evidence was extensively challenged at the trial but it was not put to the relevant witness, or to anyone else, that there had been deliberate contamination. In those circumstances we indicated to counsel that that part of the submission would not be entertained.[2]
[2]It may also be doubted whether it was consistent with the word “accidental” in the proposed ground 2.
All that was left was the possibility of innocent contamination by contact with the applicant’s clothing. Some of the applicant’s clothing was in the possession of the police but there was no evidence that it came in contact with the knife.
For what it is worth, defence counsel had included this argument in his final address at the trial. The judge had also referred, right at the beginning of the charge, to the failures on the part of the police to adhere to proper continuity procedures. His Honour had said:
“It is clear as a pikestaff that police procedures relating to the proper custody of items were not followed and you might think the reasons for that are inexcusable, but the question that you have to decide is whether you are satisfied beyond reasonable doubt it was the accused man who was the intruder at Mrs Pilioussis’ home on 15 September 2000. You might think that sloppy police procedures are not inconsistent with that finding, or you may on the other hand take the view that those procedures are such that you could not be satisfied beyond reasonable doubt that the accused man was the intruder.’
Taking into account the directions that were given concerning the standard of proof, including the standard of proof for inferences, the way in which issues as to continuity and contamination were fully ventilated at the trial, the absence of a relevant portion of the charge and the absence of exceptions, I was satisfied that none of the proposed substituted grounds had sufficient prospects of success to warrant our granting the application to substitute them. The other grounds were, as I have said, abandoned. It followed that the application for leave to appeal against conviction should be dismissed.
VINCENT, J.A.:
It was essentially for the reasons advanced by Callaway, J.A. that I also formed the view that none of the grounds that the applicant proposed to substitute for those in his Notice of Application, and which were abandoned, possessed sufficient prospects of success to warrant a grant of leave to add them.
No arguable grounds then remaining, the application for leave to appeal against conviction was dismissed.
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