R v Johnston

[2012] QDC 72

[2012] QDC 72

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE R JONES

Indictment No 1993 of 2011
Indictment No  288 of 2012

THE QUEEN

v.

JACOB PREBBLE JOHNSTON

BRISBANE

..DATE 30/04/2012

ORDER

HIS HONOUR:  This is an application pursuant to section 590AA of the Queensland Criminal Code.  The applicant is a
co-accused in respect of a number of offences which arose out of what have become to be known as "home invasions".  Three co-accused's have been charged with a number of offences.  The three co‑accused are Kylie McLean, Laken Kaukau, and the applicant, Jacob Johnston.  McLean and Kaukau have pled guilty to a number of offences arising out of the incident. 

At the trial of the applicant the Crown intends to adduce evidence of the following facts:  first, that Laken Kaukau was involved in the offences charged; second, that Kylie McLean was involved in the offences charged; third, evidence that the applicant and Laken Kaukau were in a relationship at the time of the offence, and, fourth, evidence that the applicant and Kaukau were located together at the time of the search warrant at McLean's residence on 28 February 2011.  That occurred some six weeks after the offences were committed.  The applicant seeks to have the evidence concerning the last two of those matters excluded. 

The evidence against McLean was that he was identified during a photoboard procedure by one of the occupants of the house.  His DNA was also located on footwear located in the house. 
The evidence against Kaukau was a positive photoboard identification.  The Crown intends to lead that evidence during the trial against the applicant but not that they have pled guilty to the associated charges. 

The Crown asserts in its written outline of submissions: 

"In addition, the respondent intends to lead evidence of the relationship and association between the applicant and Kaukau not as evidence which could be considered as guilt by association but as evidence to support the photoboard identification evidence.  

The respondent submits that the circumstantial fact that the applicant and Kaukau were in a relationship at the time of the offence is relevant and admissible. 

The fact that the applicant was in a relationship with Kaukau is a circumstantial fact and is a matter for the jury as to what weight they place on it when assessing the strength of the circumstantial case. 

The respondent also submits that the circumstantial fact that the applicant and Kaukau were located together at the time of the search warrant at McLean's residence, as admitted by those present during the search warrant is admissible and relevant.  Again, it is a circumstantial fact and it is a matter for the jury as to what weight they place on it when assessing the case." 

Mr Glenday, for the respondent, accepts that the relationship evidence is no higher than the applicant and Kaukau were in a relationship as "boyfriend and girlfriend".  This relationship was referred to by the applicant in his interview with the police on 28 February 2011.  The Crown also intends to call another witness to give evidence that the applicant and Kaukau were in a relationship at the time. 

On behalf of the applicant it was submitted in particular that: 

"The applicant seeks such exclusion on the basis that the evidence is prejudicial without any probative value and it would be unfair to admit it and/or the probative value of it is outweighed by its prejudicial effect. 

Section 98(1) of the Evidence Act 1977 provides a discretion to reject any statement or representation because it appears to the Court to be inexpedient in the interests of justice that the statement should be admitted, and that the applicant seeks the exclusion of the relationship evidence on the basis that it carries no probative value whatsoever and cannot be used to support the accuracy of the purported identification relied on by the Crown. The evidence is inflammatory and prejudicial."

Section 130 of the Evidence Act was also relied on. It is submitted on behalf of the applicant that the admission of the relationship evidence raises the real risk of the jury working backwards and reasoning to the effect that because the applicant's girlfriend was involved, it was more likely than not that he would have also been involved.

Mr Glenday contends that any prejudicial elements raised by the admission of the evidence can be dealt with by way of appropriate directions. 

Mr Harrison, for the applicant, referred, in his written submissions to the well known authority of R v. Christie [1914] AC 545.

The essential issue here is not whether the evidence is likely to damage the applicant's case, but whether it is likely to damage or prejudice the applicant's prospects of a fair trial. 

All of the offenders wore clothing to disguise their appearances on the night in question.  The applicant was identified by one of the householders as the offender who was armed with a shovel.  According to the householder, he was
110 per cent sure of his identification. 

Mr Glenday referred me to the High Court decision of
R v. Festa [2001] HCA 72. There the High Court was concerned with, among various other matters, certain directions given by the trial Judge.

In Festa evidence was led concerning the extent of her relationship with the co‑accused.  The trial Judge as part of his summing‑up to the jury said: 

"that they were seen together or where a man and a woman were seen together and one of them was identified to some extent, the other person may well have been ‑ well, for example, Renton was identified as being with a woman.  You may well come to the conclusion that the woman was [Ms Festa] and vice versa.  That's just a minor piece of evidence but it does show the association between the two."

Ms Festa argued that the evidence and the direction effectively permitted the jury to override any dissatisfaction they might have had about the strength of the identification evidence against her. 

In paragraph 109 his Honour Justice McHugh referred to the appeal in the Court of Appeal and said: 

"In view of the evidence, the Court of Appeal held that the trial Judge did not err in directing the jury that it was open to them to conclude that where one of the accused was identified to their satisfaction, it was open for them to conclude that it was the other accused who was seen with him or her." 

Now, the circumstantial evidence in that case is much stronger than it is in this case.  At paragraph 104 Justice McHugh observed: 

"As the Court of Appeal pointed out the evidence suggested a line of reasoning from which the jury could conclude that Ms Festa was involved in the robberies: 

(1) Renton committed the robberies at Biggera Waters and           Paradise Point, as well as the unlawful use offences,        of which he was found guilty; 

(2)  In doing so he was assisted or accompanied by a woman. 

(3)  'Every day' during the period May/June 1996 he was in the     company of Miss Festa and perhaps with no other woman       'down here'. 

(4)  Miss Festa was directly linked with Renton through (a)    her access to and presence in the Pine Ridge Road unit to which she had a set of keys; (b) the yellow Toyota in       which the accused were both found on 19 June 1996; and (c) various motor vehicles, including those that were          unlawfully taken and used; 

(5)  Those vehicles were views used by Renton and a woman in committing the robberies; 

(6) That woman was Miss Festa and could not have been anyone else."

As that passage makes clear, the evidence of the association between Festa and the co‑accused was, in the opinion of the Court of Appeal, and not disagreed with by Justice McHugh, such as to leave open to the jury that it could not have been anyone else other than Festa who was in the company of the co‑accused. 

That Kaukau was in a relationship with the applicant and that six weeks later she and McLean, together with the applicant, were found in McLean's residence does not go anywhere near as far as that. 

In this case, Kaukau and McLean and the applicant have all been positively identified.  The relationship evidence and the evidence that the applicant and Kaukau were found with McLean when the police executed the search warrant on McLean's residence is, however, in my view, relevant admissible circumstantial evidence.  That the three co‑accused were not strangers to each other but knew and associated with each other to varying degrees is relevant evidence, and in that sense it is evidence capable of supporting the identification evidence which placed the applicant at the scene. 

The admission of that evidence should not deny the applicant a fair trial.  At trial appropriate directions and warnings can be given concerning the risks associated with identification evidence and how the relationship evidence and the evidence of the three being located in McLean's residence six weeks later, can be used, and, in particular, that the jury should not use that evidence to infer guilt by association. 

For the reasons given the application is refused.

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