R v Matthew Massey

[2009] ACTCA 12

HUMAN RIGHTS ACT

R v MATTHEW MASSEY
[2009] ACTCA 12 (27 August 2009)

APPEAL – application for leave to appeal against pre-trial ruling – application for leave to appeal against stay of proceedings – exclusion of photo-board evidence – DNA evidence –relevant material not forensically tested – application for leave dismissed

Human Rights Act 2004 (ACT), s 21

Evidence Act 1995 (Cth), s 115

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 2 - 2009
No. SCC 76 of 2008

Judge:           Higgins CJ
Court of Appeal of the Australian Capital Territory
Date:            27 August 2009

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 - 2009
  )          No. SCC 76 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE QUEEN

v

MATTHEW MASSEY

ORDER

Judge:  Higgins CJ
Date:  27 August 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 - 2009
  )          No. SCC 76 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE QUEEN

v

MATTHEW MASSEY

Judge:  Higgins CJ
Date:  27 August 2009
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The applicant seeks leave to appeal against pre-trial rulings made by Gray J on 23 and 24 February 2009.

1. By way of background, the respondent was arraigned on 2 September 2008 upon an indictment containing three counts alleging that:

… on the 24^th day of August 2007 … [he] entered a building, namely Exquisite Jewellers, Shop 28 Kippax Fair, Hardwick Crescent Holt, as a trespasser with intent to commit theft …

… [he] assaulted Nick Papanicolaou.

… [he] attempted to dishonestly appropriate property, … belonging to Anthony Peters with the intention of permanently depriving him of the property.

1. The respondent pleaded not guilty. On 23 February 2009, the matter being listed for trial on that day for three days, defence counsel, Mr Archer applied to have proposed evidence of a photoboard identification rejected. His Honour also expressed concerns as to whether a fair trial, as required by s 21 of the Human Rights Act 2004 (ACT), was possible when a back-pack and contents found at the scene of the burglary had not been tested for fingerprints or DNA material.

1. The context in which those issues arose was that at about 6.15 am on 24 August 2007 an alarm was activated at Kippax Fair indicating a break-in.  Messrs Papanicolaou and Peters, the latter being the jewellery shop proprietor, attended.  A person, alleged to be the respondent, was observed in the rear of the shop.  On being disturbed, the person fled, barging at Mr Papanicolaou and knocking him to the ground.

1. A shopping bag containing the items referred to in count 3 was located in the shop.

1. Also found was a “Rusty” baseball cap, a sneaker and a back-pack containing various tools that could be used for burglary.  Those items were apparently left behind by the offender.

1. The cap was tested for DNA.  It contained a profile consistent with the respondent but also a profile consistent with another person.  The back-pack and contents were not tested for forensic material.  It left open the hypothesis that the back-pack would yield evidence identifying the person with the second profile rather than the accused.

1. The identification evidence was from Mr Papanicolaou who picked the respondent from a photoboard array of images.  The initial identification was in terms that image number 2, that of the accused, “looks similar”. However on reflection, he said, “I think it is [the offender]”.

1. The defence objected that s 115 of the Evidence Act 1995 (Cth) had not been complied with to render identification evidence by photoboard rather than by identification parade admissible.

1. Section 115(5) provides:

Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless:

(a)the defendant refused to take part in an identification parade; or

(b)the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or

(c)it would not have been reasonable to have held an identification parade that included the defendant.

1. That second point can be briefly disposed of. Section 115(5)(a) was relied upon.

1. The evidence to support that proposition was that of Senior Constable Paul Hutcheson who stated:

I intended to offer the [Respondent] the opportunity to participate in a taped record of interview, to participate in an identification parade, and to voluntarily provide a sample of his DNA.  I was advised by Corrective Service Officers that the [Respondent] did not wish to see me.

1. It is not even asserted in this statement that the Corrective Service Officer(s) who gave the advice was informed by Senior Constable Hutcheson of the purpose for which he wished to speak to the respondent.  Nor, even if that was conveyed, of the terms of the request to the respondent conveyed by that officer to the respondent.

1. The finding by Gray J that s 115(5) was not complied with is therefore manifestly correct. It would be pure speculation to suppose that the request, even if accurately and fully conveyed would have been refused.

The Stay Order

1. There is no doubt that the failure of the prosecution to procure evidence from the back-pack or, at least, to explain its unavailability, is prejudicial to the respondent.

1. His Honour did not stay the proceedings simply on the basis that evidence had gone missing or had not been gathered by investigating police.  It was, rather, a case where evidence was gathered but not examined to determine whether it might yield information exculpatory of the respondent.  If, on examination it yielded nothing of note then that could be taken into account.

1. His Honour did not stay proceedings permanently.  The applicant does not seem to have understood this. His Honour simply stayed the proceedings until the prosecution availed themselves of an opportunity to correct a glaring omission in the evidence they could well address and should have addressed from the outset.

1. The application for leave to appeal is both without merit and in the case of the stay, premature.  It is dismissed accordingly.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:     27 August 2009

Counsel for the Applicant:  Mr J Lundy
Solicitor for the Applicant:  Director of Public Prosecutions for the ACT
Counsel for the Respondent:  Mr K Archer
Solicitor for the Respondent:  Ben Aulich and Associates
Date of hearing:  2 July 2009
Date of judgment:  27 August 2009