R v Kitayama
[2001] QCA 511
•23 November 2001
SUPREME COURT OF QUEENSLAND
CITATION: R v Kitayama [2001] QCA 511 PARTIES: R
v
KITAYAMA, Akiko
(appellant)FILE NO/S: CA No 59 of 2001
SC No 103 of 2000DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 23 November 2001 DELIVERED AT: Brisbane HEARING DATE: 5 November 2001 JUDGES: de Jersey CJ, Mackenzie and Chesterman JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER: Appeal against conviction dismissed. CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PROOF AND EVIDENCE – OTHER CASES – appeal against murder conviction on grounds of unsafe and unsatisfactory verdict and unfair trial
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – whether evidence referent to specific dates should have been excluded or accompanied by strong judicial warning where the dates did not accord with other, objective evidence – consideration of the prejudicial and probative value of that evidence and the reference made to it in summing-up – whether identification evidence based on photo board was properly left for the jury’s consideration and the subject of proper instruction to jury – whether selection of photographs fair
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DRECTION – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – consideration of Judge’s direction on alleged lies – whether form disadvantaged appellant’s case – whether imbalanced where Judge failed to point out appellant’s explanation – where no application made for redirection
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – consideration of Crown case – consideration of circumstances argued to support a finding of unsafe and unsatisfactory conviction
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – OTHER CASES – whether miscarriage of justice occurred where certain evidence not heard by jury – whether likely that a jury would reasonably have acquitted the appellant if it had heard that evidence – consideration in context of Crown case
Domican v R (1991-2) 173 CLR 555, applied
Gallagher v R (1986) 160 CLR 392, referred to
Lambert (2000) 111 A Crim R 564, considered
M v R (1994) 181 CLR 487, followed
Mickelberg v R (1989) 167 CLR 259, referred to
R v Brookes CA No 317 of 1991, 13 May 1992, considered
R v Carroll [2001] QCA 394; CA Nos 315 of 2000 and 330 of 2000, 21 September 2001, distinguished
R v Houghton & Roussetty [2000] QCA 341; CA Nos 294 of 1999 and 316 of 1999, 22 August 2000, appliedR v Pearce CA No 49 of 1992, 26 June 1992, referred to
COUNSEL: MJ Byrne QC for the appellant
LJ Clare for the respondentSOLICITORS: Boe & Callaghan for the appellant
Director of Public Prosecutions (Queensland) for the respondent
de JERSEY CJ: The appellant appeals against her conviction on 16 February 2001 for the murder at the Gold Coast of her husband, Hamago Kitayama. Her grounds of appeal are that the verdict is unsafe and unsatisfactory, and, by grounds added by leave at the hearing of the appeal, that the trial was unfair because of the learned judge’s treatment in his summing-up of lies allegedly told by the appellant, and his treatment of the evidence of Maya McCullough, and also the evidence of Oliver Kemm and Robyn Dempsey. At the hearing, the court reserved its decision on whether to grant the appellant leave to add another ground, concerning evidence not led at the trial, from one Melissa Ann Di Giovanni.
As to the last mentioned matter, a miscarriage of justice will have occurred if there was a significant possibility that a jury, acting reasonably, would have acquitted the appellant had the evidence of Ms Di Giovanni been led at the trial (Gallagher v R (1986) 160 CLR 392). To determine whether in this case such a possibility exists, it will be important to reach a view as to the strength of the Crown case which was presented. That will also be important in assessing the contention that the verdict is unsafe and unsatisfactory. In considering that particular ground, the court must carry out its own review of the evidence and the course of the proceedings, in order to determine whether a jury properly instructed should reasonably have convicted the appellant (M v R (1994) 181 CLR 487). It will therefore be convenient to begin with a summary of the Crown case, which was circumstantial in character.
The Crown case
The appellant and her husband lived together in a unit at the Gold Coast, in Surfers Mayfair. They were Japanese nationals on retirement visas. Their daughter, Kimiko Kitayama, lived in Japan. The appellant’s husband owned substantial property and banking deposits, to some of which the appellant was signatory.
The appellant’s husband, a man in his 60s who suffered from ill-health, went missing in mid April 1999. The appellant claimed he had travelled to Japan, yet his current passport was later found still at the unit, together with his wallets and credit cards. There was no sign of his having taken any clothing from the unit. Neither was there trace of his having purchased tickets for travel as at the time of his disappearance. Furthermore, if he did leave the unit, he did so suddenly, and without notice to his long-term good friend Mr Yamada, with whom he played golf at least twice a week. Enquiries instigated by Mr Yamada and Kimiko Kitayama, and by the police, found no trace of the appellant’s husband.
The appellant’s husband did not access his Australian bank accounts from April 1999. On the other hand, in the five week period from 16 April to 24 May 1999, the appellant withdrew approximately $80,000 from those accounts, and proceeded to spend extravagantly: $800 to $1000 per night at a restaurant and bar, $20,000 for a Rolex watch, $13,500 on a car for a Japanese male friend.
On 16 April 1999 the appellant purchased a one-way ticket to Japan, leaving Australia on 24 April. She was met on arrival in Japan by another man, with whom she spent time while there.
On the appellant’s account to the police, she first made enquiries of the Japanese authorities in relation to her husband about ten days after her arrival in Japan. That occurred only after her daughter Kimiko and Mr Yamada had raised concerns and made enquiries of their own.
The evidence disclosed pertinent details about the relationship between the appellant and her husband. In 1998 the appellant had offered a witness $84,000 to kill her husband. She admitted attempting herself to strangle her husband on three separate occasions, the last resulting in his hospitalisation in February 1999.
The Crown contended that having killed her husband, the appellant dismembered his body, packing its parts within plastic bags which she taped up and placed within a large black canvas bag which she put in the communal rubbish room at the unit block for collection and dumping. A number of pieces of evidence tended in that direction.
Blood matching that of the appellant’s husband was found in the unit, in positions suggesting a good deal must have been cleaned up. Also, the appellant took steps to exclude visitors from her unit until the eve of her departure from Australia: on 18 April, five days before her flight, the appellant cancelled her regular cleaner, who was due to attend to the unit the following day. The appellant failed to invite the Yamadas inside, which was unusual. On 20 April, she quickly ushered out the Odanakas who had brought her home.
There was evidence possibly bearing upon the disposal of a body. Maya McCullough heard sounds at around the relevant time period, such as those emitted by an electric knife being used, coming from the appellant’s unit, over two nights from midnight to 3am (although there was an issue about dates, to which I will come).
On 23 April, Ms Oshima, the only other person who entered the unit after 15 April, saw large packed rubbish bags in the kitchen. She noticed a smell of rotten rubbish. The appellant had a shopping trolley in the unit, used to convey heavy loads to the basement. The appellant admitted taking rubbish bags on the trolley to the basement on the night of 23 April.
That night, a very long, new, black canvas bag was for the first time seen in the rubbish room at the units. It remained there until placed into the dumpster for collection on 27 April.
The bag smelt of decaying meat. While the bag remained there, the smell became progressively more pungent. Inside were garbage bags, full and neatly taped. The large bag weighed more than 50 or 60 kilograms.
It was accepted that the appellant had purchased a chainsaw in April, after the disappearance of her husband and before she left the country. The chainsaw was later found in the unit, but in unused condition. Her explanation for the purchase was that she had wanted to cut down a tree at the unit. But perhaps strangely in that regard, she had not at any stage approached the maintenance manager to have that done. The Crown contention was that the appellant had intended to use the chain saw to dismember the body, but resorted to other means.
There was other evidence bearing on that, of the appellant’s purchase of a Bosch power saw from Mitre 10 at Australia Fair in April. There was none found in the unit subsequently. But there was a spare parts brochure, available only within the box containing the Bosch saw. Two witnesses gave evidence relevant to the identification of the appellant as the purchaser of such a tool, by reference to a police photo board.
A large part of the Crown case concerned lies allegedly told by the appellant, it was suggested in order to conceal the disappearance of her husband. The alleged lies related to the detail of her husband’s departure from Australia (by taxi from the units to the airport, and who called the taxi, and when and from whom her husband had purchased the ticket); the reason why he went to Japan (to see his sister who was dying of cancer); and his movements while in Japan (telephoning to say he was fine, travelling to Okayama, etc); why the appellant purchased the chainsaw (to cut down a tree); that the appellant purchased no other power tool in the period preceding her departure for Japan; that the purpose of the appellant’s withdrawing approximately $80,000 in May 1999 was for “drinking money”. There were others.
Broadly speaking, to establish the falsity of the statements concerning the appellant’s husband’s travel to and within Japan, the Crown relied on the absence of evidence of his travel, and the fact that his passport and financial documents remained at the unit. It was accepted that the appellant’s husband’s sister was not ill at the relevant time.
Counsel for the respondent submitted that those circumstances aggregated to an overwhelming Crown case. It was not a case answered by any sworn evidence from the defence.
An “unsafe and unsatisfactory” verdict?
The appellant first challenges particular components of the Crown case, contending that they should not have been left for consideration by the jury, or not left in the form by which they were presented in the summing-up; and in addition criticises the manner in which the learned judge dealt with the issue of alleged lies. These three matters are the subject of the separate grounds of appeal added by amendment. It is convenient to deal with those three grounds now.
Evidence of Maya McCullough
Ms McCullough gave evidence that she was kept awake over two nights by noises, such as emitted by an electric knife, coming from the appellant’s unit which adjoined her own. About a month later, she was asked to recall the dates of the nights, which she put as 24 and 25 April. Significantly Ms McCullough linked the night time episodes to the presence of the large smelly bag in the rubbish room. Her evidence was that she heard the noises before she saw the bag. Other witnesses established that the bag was in the rubbish room from 23 to 27 April.
The defence emphasises that the appellant left her unit, for Japan, on 23 April. Having referred to Ms McCullough’s evidence in his summing-up, the learned judge reminded the jury of defence counsel’s submission, that “if she is right about those dates – and she was strong in her evidence about them – the noises could not have been coming from the (appellant’s) unit.”
Mr Byrne QC, who appeared for the appellant, submitted that because of the potentially highly prejudicial nature of that evidence, the discrepancy as to the dates should have led to its exclusion (cf. R v Carroll [2001] QCA 394). Alternatively, the evidence, if left before the jury, should have attracted strong warnings from the trial judge “as to the dangers of relying upon it”. I say at once that this piece of circumstantial evidence was not as centrally important to the Crown case as was the confession impugned in Carroll (paras 36,37).
Once one acknowledges that Ms McCullough may have mistaken the dates, the evidence, while prejudicial, was potentially highly probative, as part of the circumstantial case. The jury may well have inferred that she was mistaken about the dates, from her own evidence about hearing the noises before she saw the bag, and the other evidence establishing when the bag was first noticed by others in the rubbish room.
The learned judge, by reminding the jury of the defence position, sufficiently alerted the jury to the need to address the discrepancy as to dates. The judge gave the jury a comprehensive, orthodox instruction as to the way they should proceed in assessing the evidence, including the usual direction that they “may accept all or part only of the evidence of any witness or … reject a witness’s evidence entirely”, and he raised the issue whether discrepancies in dates or sequences should be seen to “undermine confidence in the accuracy of the witness’s overall recollection on a critical matter”.
Simply because the character of this part of the Crown case was macabre did not oblige the trial judge to confine or straiten the jury’s approach. Neither did any prejudicial effect of the evidence. Once the jury resolved the discrepancy as to dates, were they minded to do so, they were entitled to act upon this evidence in the usual way without further hurdle or constriction.
Evidence of Mr Kemm and Mrs Dempsey
Another component of the Crown circumstantial case which the appellant particularly challenged concerns the evidence identifying the appellant as the purchaser of a Bosch power saw – by possible inference, the saw used, instead of the chainsaw, for the dismemberment. These witnesses were employees of Mitre 10 at Australia Fair. The sale occurred on 20 April. Mr Kemm identified the appellant from a police photo board on 24 May 1999, and Mrs Dempsey on 25 May. If accepted as going to establish that the appellant purchased a power saw at about that time, this evidence would bear also potentially on establishing that the appellant lied in denying having made such a purchase.
The appellant submits first that the selection of photographs on the board was unfair to the appellant, with only two of 12 being of a middle-aged Japanese woman (as is the appellant) (cf. R v Brookes CA 317/1991, Lambert (2000) 111 A CrimR 564). It was nevertheless within the Judge’s discretion to allow this evidence to go forward, and he sufficiently raised with the jury the way in which the number of photographs included on such a board, of persons of similar age and race to the appellant, might bear on the reliability of an identification (p 762). It is, furthermore, significant that all 12 photographs were of women of Asian descent.
Mr Byrne pointed out that Mrs Dempsey identified the interpreter as being the appellant in the course of the committal hearing. The judge reminded the jury of that during the summing up. Mr Byrne also mentioned some initial equivocation in Mr Kemm’s identification: “could be number 4. Nothing actually is absolutely positive. I would say it’d be number 3 or 4”. (The appellant’s photograph was number 3.) Mr Kemm went on to nominate photograph number 3.
The learned judge gave the jury a comprehensive direction on the potential danger of relying on identification evidence. He referred sufficiently to the discrepancies and possible weaknesses in the identifications by these two witnesses. I would not quarrel with his summing-up in respect of this matter. Domican (1991-2) 173 CLR 555, 562 requires, as we were reminded, that the relevant direction should in this sensitive area carry the authority of the Judge’s office. These sufficiently did.
It is correct to say that the judge reminded the jury of that equivocation on Mr Kemm’s part only by a reference to counsel’s address: he did not advance it as a weakness which he, as the judge, discerned. He may perhaps not have so regarded it. I note that both judge and jury had the advantage of viewing the videos of the identification process.
If however the view were taken that it may have been preferable for the judge to have referred to that matter as a possible weakness which he himself advanced, then a failure to do so nevertheless could not reasonably be regarded as invalidating the conviction. The judge admonished the jury comprehensively about the need for great care in this area, and it should not be overlooked that this concerned but one strand in an overall, comprehensive, circumstantial case. The Crown case did not stand or fall on the jury’s acceptance of this identification evidence.
Mr Byrne raised also an issue of timing. It was established that a taxi carried a passenger with the name of Kitayama from the units to Southport at 3.25pm on a Tuesday (20 April 1999). Mrs Dempsey put the sale at between 11am and 2pm on a Wednesday. Needless to say, the judge appropriately directed the jury as to the possibility of considering a witness mistaken, and as to the peripheral character of some matters of detail. On the other hand, as Mrs Clare points out, the brochure from a Bosch saw box was subsequently located in the appellant’s unit, and such a brochure would have been available only if such a saw (in a box) had been purchased.
This evidence of identification was properly left for the jury’s consideration, and the jury was properly instructed as to the caution with which it should appropriately assess such evidence.
Judge’s direction on alleged lies
A substantial part of the Crown’s case concerned 22 alleged lies told by the appellant. In his summing-up, the learned judge reminded the jury of the alleged lies on which the Crown relied, and gave a comprehensive direction in appropriate terms as to the way in which the jury might properly approach them. Significantly, there was no application for redirections in relation to this aspect of the summing-up.
Mr Byrne raised first, the manner in which the learned judge presented this issue to the jury, and second, a suggested deficiency in the summing-up.
As to the former aspect, Mr Byrne submitted that it would have been preferable for the judge first to instruct the jury on their approach to the use of this sort of material, and then to enumerate the alleged lies. As it happened, the judge first reminded the jury of the alleged lies, and then instructed the jury on their reliance on the material. In running through the list of alleged lies, which he was obliged by authority to do, the judge did not assign them numbers, but signalled that he was passing from the preceding to the following by saying, “the next ….”. This, it was submitted, may have overwhelmed the jury in favour of the Crown.
This criticism cannot be sustained. Were there a general instruction given first, and the alleged lies recounted second, it could have been suggested that by number 22, the jury should then have been refreshed as to the general advice. If numbers were assigned, instead of his Honour’s saying “the next”, it could have been suggested that the summing-up was unduly emphasising the extent of the appellant’s alleged deceit. The judge’s approach was perfectly appropriate: the criticism was unjustified.
Warranting some separate response is the complaint that the judge failed to point out the appellant’s own explanation for what she said. It was not submitted that as a matter of stringent requirement the judge was obliged to do so: rather, it was submitted that the judge’s failure to do so, in this area of central importance to the Crown case, left the summing-up unbalanced. In relation to that contention, I again observe, as being significant, that there was no application for redirections.
Mr Byrne particularly drew attention to the judge’s failure to remind the jury that, when asked by the police, “why … she told people that he is in Japan when she knows that he wasn’t”, the appellant said: “That’s because I don’t want people to worry.”
Drawing attention to that may well have been disadvantageous to the defence. Although the appellant knew that her husband was “missing”, there was abundant evidence that she actively tried to conceal that fact from her family and friends. She spent lavishly. She quickly left Australia – on a one-way ticket. She at once took up with another man in Japan. She made no attempt to locate her husband or alert the authorities to his disappearance, until pressured by others, some 17 days after he had gone. A claim to have misled people, as she allegedly did, with a view to allaying their anxiety, would, on any rational analysis, have lacked credibility in those circumstances. It may well be that defence counsel at the trial took that view: the defence case could not have been assisted by highlighting that explanation.
The learned judge alerted the jury to possible explanations for the lies, other than a realisation of guilt of committing such an offence. He gave examples, which included the possibility of mistake.
I would not uphold this aspect of the challenge to the summing-up.
“Unsafe and unsatisfactory”?
Counsel for the appellant approached this fundamental question with a primary contention that the evidence of Ms McCullough should have been excluded or subject to serious warning to the jury, that the evidence of Mr Kemm and Mrs Dempsey should likewise have been excluded or similarly subject to further direction, and that the direction on alleged lies left the summing-up unbalanced, in favour of the Crown. He submitted that the end consequence was a trail unfair to the appellant. As I have made clear, I do not accept those submissions.
Counsel for the appellant nevertheless relied on additional circumstances in support of the contention that the verdict is unsafe and unsatisfactory: no body was located, notwithstanding an extensive search of the dump where it must have been left; the killing and disposal involved a substantial task, including conveying a heavy load to the rubbish room, and leaving it there, without the certainty that it would be disposed of before the crime may be detected; although, as alleged, the appellant was capable of killing her husband and disposing of his body – then falsely claiming he had returned to Japan, her deceit perhaps oddly did not extend to removing his passport, wallets and clothing from the unit; and the appellant eventually returned voluntarily to Australia, where she spoke candidly with the police.
There are obvious responses which may be made to those points, either answering them fully or diminishing their suggested significance, in favour of the appellant, as part of the assessment of the overall circumstantial case against her.
This was however an undoubtedly powerful Crown case, embracing proof of aspects of the appellant’s past relationship with her husband which might provide some background explanation for these events; proof of the availability of equipment by which a dead body could be dismembered, equipment obtained, on some evidence, by the appellant, and within the relevant timeframes; evidence as to significant noises coming from the appellant’s unit at a roughly proximate time, in the early hours of the morning; eye witness evidence as to the presence within the rubbish room, at the relevant time, of malodorous decaying matter carefully packed away in sealed bags within the larger container; a course of spurious conduct on the part of the appellant, subsequently to her husband’s disappearance, arguably grossly inconsistent with her innocence in relation to that disappearance; and a series of many lies told by the appellant clearly with a view to dispelling any view that her husband’s disappearance was the result of foul play in which she may have been implicated.
The verdict of guilty of murder flowed almost inevitably from the aggregation of evidence in this case.
The statement of Ms Di Giovanni
Shortly prior to the commencement of the trial, the appellant’s solicitors noticed an article in the Gold Coast Bulletin of 25 May 1999. (The trial commenced on 29 January 2001). The article mentioned a journalist’s having spoken with Ms Di Giovanni, an employee at a Surfers Paradise coffee shop. She reportedly told the journalist that five weeks earlier, the appellant’s husband had said that he was going to travel to Japan to visit his sick sister. The appellant’s solicitors were unable, despite extensive efforts, to locate Ms Di Giovanni, until recently. She has now signed a statement to the effect that approximately five weeks prior to her speaking with the journalist, Mr Kitayama, a regular customer at the coffee shop, said “he was going to go to Japan to visit his sick sister”.
I would formally grant leave to amend the notice of appeal to include a further ground as follows:
“A miscarriage of justice occurred by reason of the fact that evidence of Melissa Ann Di Giovanni was not heard by the jury.”
I would not however uphold the ground. (I would also in that regard refuse the Crown leave to rely on appeal on the affidavit of Jodie Ann Wooldrige – on the ground of its irrelevance.)
Whether the evidence Ms Di Giovanni could apparently give, would warrant the description “fresh”, need not be resolved. (Mrs Clare quite reasonably pointed out in that regard that the defence did not invite Crown assistance in locating Ms Di Giovanni, or seek an adjournment of the trial pending the completion of efforts to find her.)
I acknowledge that the evidence, if given, would plainly be relevant. In relation to the appellant’s alleged lies, that her husband told her he was travelling to Japan to visit his sister who was ill, it was accepted at the trial that the sister was not then ill. But it would nevertheless have been relevant for the jury to hear, from an independent witness, evidence of Mr Kitayama’s having stated such an intention, as bearing on the possibility of the appellant’s having heard and repeated it.
I note that it is not possible in this situation to assess the cogency of such evidence. Mrs Clare has presented a catalogue of evidence given at the trial which would counter the likelihood of the appellant’s husband’s having made such a statement.
But those matters aside, it is sufficient, for present purposes, to focus on the ultimate question whether there is a “significant possibility” or a “likelihood” that the jury, acting reasonably, would have acquitted the appellant had it heard this evidence (R v Houghton & Roussetty [2000] QCA 341 para 15).
In my view, had such evidence been given at the trial, and for the moment assuming its apparent cogency – taken in isolation, it would not have given rise to any significant possibility that the jury would have acquitted the appellant. On my assessment, such evidence would undoubtedly have been overwhelmed by the powerful Crown case which I have previously summarised.
Many of the circumstances established at the trial would have run strongly counter to the appellant’s husband’s having made such a statement. Highly significantly, her husband did not tell any of the witnesses who gave evidence at the trial of his sister’s illness or a need to visit her, and those persons included his long-standing, close friend Mr Yamada, with whom he played golf twice weekly, lastly on the day before his disappearance. On the other hand, and significantly by way of contrast, it was the appellant who told people after her husband’s disappearance that he had gone to Japan to visit his ill sister.
I am satisfied that evidence of the character now proposed could not have diminished the strength of what was an overwhelmingly powerful Crown case.
I would dismiss the appeal.
MACKENZIE J: I have had the advantage of reading the reasons of the Chief Justice in draft form. The structure of the case for the prosecution is succinctly summarised in those reasons. If the elements of that case were accepted and certain matters of detail as to which there are inconsistencies rejected it was a very strong circumstantial case against the accused.
However, certain key aspects of the evidence were challenged in the amended grounds of appeal, added by leave. The way in which the application to add a ground relating to fresh evidence in the form of a statement made to a coffee shop employee by Mr Kitayama about his intention to go to Japan to see his sick sister should be resolved, can conveniently be left aside until other issues have been dealt with.
Evidence of neighbour concerning dismemberment of the body
Evidence was given by Mrs McCullough, who occupied the adjoining unit to Mr and Mrs Kitayama that she heard sounds like an electric knife being used emanating from the Kitayama’s unit in the middle of the night on two consecutive evenings. Two arguments were addressed to this evidence. The first was that the evidence should have been excluded as irrelevant since, if the activities happened on the dates nominated by Mrs McCullough, it could not have related to any activity connected with the accused. The second was that if the evidence was admissible the learned trial judge’s treatment of it in the summing-up was inadequate.
The linch-pin of the argument was that Mrs McCullough had nominated, with definiteness, days upon which she said she heard sounds coming from the Kitayama’s unit which the prosecution alleged were the sounds of Mr Kitayama’s body being dismembered with the electric saw. If the evidence as to those dates was correct, what she had heard could not be linked to Mrs Kitayama since, by then, she had left for Japan.
However, Mrs McCullough gave a sequence of events which had the sounds which kept her awake preceding the appearance of a large bag (which the prosecution alleged contained the dismembered body of Mr Kitayama) in the garbage disposal area of the Surfers Mayfair units in which they lived.
There was independent evidence that the bag was already there prior to the dates upon which Mrs McCullough said she heard the noises. In light of this independent evidence of when the bag arrived in the basement, and having regard to the sequence of events sworn to by her, it would have been open to the jury to treat her recall of the dates upon which she heard the noises in the unit next door as erroneous while accepting the fact that she had heard the sounds at a time before the bag appeared in the basement.
The learned trial judge reminded the jury that her assertion as to the dates upon which she heard the noises was strong and that if she was right in that, the noises could not be coming from the appellant’s unit. Reminding the jury of this defence submission in those terms clearly brought the issue to the jury’s attention. It was for them to decide whether they accepted her evidence in total, or in part or not at all, as to which appropriate directions were given.
Mr Byrne QC submitted that, by analogy with R v Carroll [2001] QCA 394, the evidence should have been excluded in its entirety. The analogy with Carroll cannot be properly drawn. In Carroll the evidence complained of concerned an alleged confession obtained by another prisoner by a process of talking to Carroll over a period of several days. There was conclusive evidence that Carroll had been in the same prison as the other prisoner for a period irreconcilable with his evidence as to the process allegedly used to secure the information. There was no way in which the prisoner’s evidence could be reconciled with irrefutable facts.
In the present case, however, it was open to the jury to resolve the apparent discrepancies by treating Mrs McCullough’s recollection of the dates when she heard the noises as mistaken but to accept, by reference to independent evidence, that she heard them at an earlier time. It was not a case where the evidence should have been excluded. Nor was there any error in the directions concerning it. This ground is therefore not made out.
Evidence concerning purchase of saw
Evidence was given that two Japanese ladies, the older of whom appeared to be in her forties or fifties and who seemed to speak no English, attended the Mitre Ten store at Pacific Fair and purchased a McCulloch 235 electric saw. There was no purported identification of either woman as the accused on this occasion. A similar saw in an inoperable but unused condition was found in the accused’s unit. She admitted purchasing a saw, she thought after her husband had disappeared. She also thought that she had bought it at K Mart.
There was also evidence from two employees of Mitre Ten at Australia Fair, Southport, concerning the purchase of a Bosch saw. Mrs Dempsey said that in late March or early April, on a Wednesday between 11am and 2pm, a Japanese lady of about fifty years of age came to the store. Although the woman could speak virtually no English, she indicated by hand signals that she wanted to buy a saw. Mrs Dempsey got Mr Kemm to show her what was available. After looking at saws, including a McCulloch chain saw, she eventually selected a Bosch saw that she was told was capable of cutting through timber and steel. A passing customer who could speak some Japanese assisted during part of the transaction. Mr Kemm was unable to say on what day this event occurred.
Mrs Dempsey and Mr Kemm differed as to what model the woman was sold. Mr Kemm said it was a PMS400. Mrs Dempsey identified a different saw described as an all purpose saw. However, a spare parts brochure for a PMS400, which would form part of the contents of the box in which such a saw was sold, was found in the Kitayama’s unit when the police searched it.
There was also evidence that a request for a taxi in the name of Kitayama was made from Surfers Mayfair at 3.22pm on 20 April. The meter of the cab which responded to the call was turned on at 3.25pm and turned off at 3.32pm. This was consistent with the stated destination of Southport. That was the only request for a cab in that name in April. Further, Mrs Kitayama conceded in her record of interview that she may have gone to Australia Fair on 20 April.
Both Mrs Dempsey and Mr Kemm were shown photoboards of 12 women of Asian appearance. The appellant’s photo was number 3. Reference to the video of Mrs Dempsey’s identification shows that she picked her without hesitation. Mr Kemm was far more indefinite. After looking at the photos for some time, he said “Could be number 4”. Then after a pause he said “Nothing is just absolutely positive”. Then he said “I’d say it would be either 3 or 4”. Then after another pause he said “I’ve had a good look at them”. He gave evidence that, immediately after the tape was turned off, he then had another look at the photographs and determined that it was number 3. The ground of appeal with respect to identification was that the failure to exclude the purported identifications by Mr Kemm and Mrs Dempsey or to give appropriate directions to the jury as to matters undermining such purported identifications resulted in an unfair trial.
With respect to exclusion of the identifications, it was submitted that the primary precondition to admissibility of identification from a photoboard is whether the selection of photographs is a fair one. In R v Lambert (2000) 111 ACrimR564 at 566-7 the Court of Appeal referred to earlier authority (R v Brookes (CA No 317 of 1991, 13 May 1992) and R v Pearce (CA No 49 of 1992, 26 June 1992)) and said that it was not a dogmatic requirement that most of the photographs in the collection must be of persons who meet the verbal descriptions given by the witness of the offender, although this may be generally true.
It was said in Lambert that although a disconformity between the verbal description and the actual appearance of an offender subsequently selected from a line up or photoboard is a matter for comment to the jury, it is not necessarily fatal to a valid identification. It was stated that, in Brookes, the point was whether there was an unfair disconformity between the appearance of the suspect and that of most other persons whose faces were provided on the photoboard. The photoboard must include photographs of persons sufficiently similar to the suspect and there must be nothing which draws attention to him or her. When issues of this kind arise it is for the court to determine whether the photoboard is unfair in any relevant sense and perusal of it is appropriate. The argument against admission of the evidence was that only two photographs of the 12 (photos 3 and 8) could fit the description of a Japanese woman in her fifties.
Mr Kemm was not asked when giving evidence to give any description of the woman. The description of a Japanese woman in her fifties was given by Mrs Dempsey. Perusal of the photo board shows that all the photographs are of women of apparently Asian extraction of various, though in some cases indeterminate, ages. It is debatable whether only two could conceivably be about fifty. Indeed, the appellant’s argument is somewhat undermined by reason of the fact that Mr Kemm initially hesitated between number 3 and number 4.
In my opinion there is no inherent flaw in the selection of photographs used. By way of comment, I would say, however, that in a couple of cases the photographs are of such poor quality that it is difficult to see the detail of facial features very adequately. If a photo board were to contain a number of such photographs but a life-like photograph of the suspect the kind of question discussed in Lambert, Pearce and Brooks might be enlivened. However, the photoboard does not reach that level in this case.
It was also submitted that additional factors counting against admission of the evidence of identification were the following:
(a)Mr Dempsey, when giving evidence in the committal proceedings, wrongly identified the interpreter, not the accused, when asked for a dock identification;
(b)Mrs Dempsey’s evidence that the sale occurred between 11am and 2pm on a Wednesday negated the evidence of a taxi journey on a Tuesday at about 3.25pm which the Crown said gave the appellant the opportunity to purchase the tool;
(c)Mr Kemm was unsure in his identification from the photo board.
In my opinion, these did not require an exclusion of the evidence but (a) and (c), since they relate to weaknesses of the identification of the accused as the person in the store, were matters which had to be addressed in that part of the summing-up concerning identification.
The other aspect of the ground of appeal addresses that subject. It was submitted that the summing-up did not address the “glaring dangers” of a wrongful identification. The authoritative passage from Domican v The Queen (1991-2) 173 CLR 555 at 561-2 establishes that where identification evidence represents a significant part of the proof of guilt and its reliability is disputed, the trial judge must warn the jury as to the dangers of convicting on such evidence. The terms of the warning need not follow any particular formula, but it must be cogent, effective and appropriate to the circumstances of the case. A warning in general terms is insufficient. The judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. Mere reference to counsel’s arguments is insufficient.
In the present case the learned trial judge directed in general terms about the risk of mistaken identification. He warned the jury of the special need for caution before convicting in reliance on the correctness of identification of the type in this case. He then referred in general terms to the kinds of matters which ought to be taken into account and then came to the question of whether there was any material discrepancy between the description given to the police by the witness and the evidence of the witness. He specifically referred to the fact that photograph number 3 showed a person with curly hair whereas each of the witnesses remembered a person with straight hair although they differed as to whether it was tied back. He referred in general terms to the need to have regard to the nature of the photoboard and specifically referred to Mrs Dempsey’s misidentification in the Magistrates Court. He then specifically referred to “Mr Kemm’s identification processes which Mr Callaghan reminded you of yesterday and I will not go through those again”. He concluded that the evidence of Mr Kemm and Mrs Dempsey was part of the circumstantial evidence and not the only evidence relied on by the Crown in its attempt to prove that the accused had a Bosch power saw.
The sufficiency of the passage quoted above with respect to Mr Kemm was attacked. It was submitted that it was inadequate. In the context of the summing-up the statement immediately follows a reference to Mrs Dempsey’s misidentification. It says to the jury that they will also remember Mr Kemm’s identification processes. In the passage, the trial judge clearly invites the jury to have regard to “Mr Kemm’s identification processes” which they would have been well aware were recorded on the tape, which they had heard and from which his uncertainty was obvious. The jury could have been in no doubt that it was that uncertainty to which the learned trial judge was referring. He endowed the directions with the authority of his office. He was not merely recounting a defence submission. The argument that the requirements of Domican have not been satisfied fails.
Lies
I am in substantial agreement with the reasons given in the judgment of the Chief Justice for holding that the summing-up on the subject of lies was adequate.
Is the conviction unsafe and unsatisfactory?
For the reasons given by the Chief Justice the prosecution case was a strong one. The conviction was not unsafe and unsatisfactory.
“Fresh” evidence
Prior to the trial the existence of a newspaper report that Ms di Giovanni had been told by Mr Kitayama in the coffee shop at which she worked that he was going to Japan to see his sick sister was known. Appropriate inquiries were made by the defence in an attempt to locate her before the trial, without avail. She has now been located and has sworn an affidavit confirming that a conversation in those terms occurred.
As the Director of Public Prosecutions pointed out on behalf of the respondent, no application to adjourn the trial was made because of the absence of the witness and no assistance had been sought in locating her through the resources available to the prosecution. It is unnecessary to finally conclude whether the ordinary, but not necessarily universal, requirement that evidence could not have been produced at the trial even with due diligence has been complied with (Gallagher v The Queen (1985-6) 160 CLR 392, 395).
The conversation was sought to be led as evidence of a possible source of a belief on the part of the appellant that Mr Kitayama intended to go to Japan to see his sick sister and that repetition of it by her was innocent and not the product of deliberate lying. Although Ms di Giovanni has not been cross-examined, there is nothing on the face of the affidavit to lead to any concern that her evidence would be of doubtful cogency. However, an appellate court will conclude that the unavailability of the fresh evidence at the time of the trial involves a miscarriage of justice only if it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the accused of the charge if the evidence had been before it (Gallagher v The Queen; Mickelberg v The Queen (1989) 167 CLR 259, 273).
Applying this test the evidence of Ms di Giovanni would not have raised such a possibility when viewed in the context of the other evidence. Leave should be granted to add the ground of appeal, but a new trial should not be granted on the basis of it. Leave to the respondent to rely on the affidavit of Jodie Ann Wooldridge should be refused on the ground of irrelevance.
The appeal against conviction should be dismissed for the reasons given.
CHESTERMAN J: I have read the reasons for judgment of the Chief Justice and of Mackenzie J. I agree with what their Honours have written and that the appeal should be dismissed.
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