R v Tapatu
[2005] VSCA 256
•4 November 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 249 of 2004 |
| v. | |
| STEVEN TAPATU |
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JUDGES: | EAMES, NETTLE and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 October 2005 | |
DATE OF JUDGMENT: | 4 November 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 256 | |
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CRIMINAL LAW – Opening an account in a false name – Forgery – Using a forged document – Possession, making and using a false document – Attempting to obtain financial advantage by deception – Unrepresented accused – Whether reasonable apprehension of bias or prejudice on part of trial judge – Whether charge unbalanced – Adequacy of directions- Joinder and severance of counts – Directions as to identification – Dock identification – Whether conduct of prosecutor unfair – Whether verdicts unreasonable and not supported by evidence – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S.C. Hillman, S.C. | Mr S. Carisbrooke, |
| Applicant appeared in person |
EAMES, J.A.:
On 21 September 2004 the applicant was convicted in the County Court, upon verdicts of a jury, for a series of Commonwealth and State offences. The Commonwealth offences were two counts of opening an account in a false name, one count of forgery, one count of using a forged document and one count of possessing a forged document. He was convicted of a further four offences under State law, being two counts of making a false document and two counts of attempting to obtain a financial advantage by deception.
The learned sentencing judge imposed a total effective sentence on the Commonwealth offences of six months’ imprisonment, but ordered that the applicant be released on a recognisance release order in the sum of $1,000 on the condition he be of good behaviour for two years. He was sentenced to a total effective sentence of six months’ imprisonment on the State offences that sentence being wholly suspended for two years. No application for leave to appeal has been filed with respect to sentence.
The applicant first stood trial on a presentment containing 24 counts. His first trial was aborted after it was discovered that the informant knew one of the jurors. A second trial was aborted after the judge formed the conclusion that the presentment should be severed, the trial proceeding on only nine counts. A third trial commenced on 9 July 2004 and verdicts of guilty were returned on 14 July 2004.
The applicant, who was born in New Zealand but became an Australian citizen, is now in his fourth year of study towards a law/arts degree. He represented himself on the trials and on the application for leave to appeal against conviction.
The Crown case was that the applicant opened two accounts in a false name – “Seuena Wayne Stevens” - with the ANZ Bank at Airport West branch on 15 July 2002 and with the Commonwealth Bank at Gladstone Park on 18 July 2002. The purpose for opening these accounts was to deposit in them counterfeit cheques which the applicant had created using his home computer and scanning devices to alter details on genuine cheques.
The ANZ Bank account was opened with supporting identification provided by way of a Victorian driver’s licence and an Australian birth certificate. The Commonwealth Bank account was opened with supporting identification comprising the same Victorian driver’s licence and a certificate of Australian citizenship. In both cases the same postal address was given, namely, a post office box in Greenvale, Victoria. The post office box number which was given on the two applications to open a bank account was one which had been opened by a male customer to whom two keys had been allocated by Australia Post. The same residential address, in Cranbourne, was given for each account. An identical mobile telephone number was also given. Internet banking facilities were then opened with the Commonwealth Bank on the account with that bank.
On the Crown case the applicant, by means of computer imaging, altered a genuine cheque payable to him from Crown Ltd. in the sum of $2,360 so as to become a cheque in the sum of $2 million payable to Seuena Stevens. A cheque in that sum was then deposited with the Commonwealth Bank. A second forged cheque, a Reserve Bank cheque, drawn on the account of the Australian Taxation Office in the sum of $888,282.05, and payable to Seuena Stevens, was deposited into the Commonwealth Bank account. That cheque had been deposited in a quick deposit box in Queensland at a time when bank records disclosed that a Mastercard to which the applicant was one of the signatories had been used in Queensland.
Investigating police attended at the home of the applicant and pursuant to a search warrant seized compact discs, a computer and a range of highly incriminating material. The computer was capable of scanning documents and, with the correct software, could make alterations to documents so as to produce a passable copy of documents which had been scanned. Among the items seized at the home were five cheques in the name of Seuena Stevens, a certificate of Australian citizenship in the applicant’s name, two envelopes in the name of S.W. Stevens and addressed to the relevant post office box, laminating pouches and date stamps, assorted packets of computer paper and laminating paper and digital cameras. Also found were two keys, which were the keys to the post office box at Greenvale. The computer itself was unable to be accessed without a password. The three CDs which were seized contained images, which were downloaded, of an Australian Taxation Office cheque, copies of a Crown Casino cheque for $2 million, copies of driver’s licences, one in the name of Seuena Stevens and also a driver’s licence in the name of the accused. The driver’s licence of Seuena Stevens showed the face of the applicant. Also found were Australian Taxation Office cheques for $888,282, certificates of citizenship in the name of Seuena Stevens which were identical to those used to open the two bank accounts, additional copies of the ATO cheque, additional copies of cheques in the name of Crown, other copies of drivers’ licences in the names of Seuena Stevens, the number of which coincided with those used to open the bank accounts, further copies of ATO cheques, additional cheques in the name of Stevens, certificates of citizenship, and envelopes in the name of Seuena Stevens.
The Crown submitted that this material indicated that there had been a number of “dummy runs”, in which attempts had been made to fabricate documents - in particular cheques - for the applicant’s scheme.
When interviewed by the police the applicant was unable to say what the two keys related to. He denied committing any offences but conceded that the computer could be accessed only by himself and his wife and three children. He declined to give the password to enable access to the computer. Although denying committing any offence he was unable to provide any explanation for the material on the CDs. He denied having any knowledge of Seuena Stevens.
In addition to the other powerful evidence pointing to the applicant the two bank officers with whom the accounts were opened at the ANZ and Commonwealth Banks gave identification evidence. Ms Robyn Steenbuck recalled a conversation with the person opening the ANZ account on 15 July 2002. She remarked to him at the time that he was opening the account at Airport West when he lived on the other side of town, at Cranbourne. Ms Steenbuck gave a description of the person to the police as being a person with “a large biggish head and being either a New Zealander or Chinese”. That description was apt to describe the applicant. On 21 November 2002 she examined a photo-board from which she picked a photograph of the applicant as the person who opened the account on 15 July 2002. In cross-examination Ms Steenbuck agreed that she had not made a statement to police until about four months after the events. She said she had made a diary note of the opening of the account a week or two after that had taken place.
Mr Vincenzo Camuglia was the bank officer who assisted to open the Commonwealth Bank account when he worked at the Gladstone Park branch. The male who opened the account was an extremely friendly person and Mr Camuglia asked him why he was opening an account at Gladstone Park when he lived in Cranbourne. The account was opened on 18 July 2002 and on 26 July 2002 Mr Camuglia provided a computer photofit image of the person whom he described as being a person of medium build, fair complexion and of Asian or Maori background. On 2 December 2002 he viewed a police photo-board and picked out the applicant from those photos.
The grounds for the application for leave to appeal against conviction were wide ranging.
Ground 1
“The Learned Judge . . . failed to disqualify Himself by reason of prejudice and anticipated prejudice towards the Appellant.”
This case presents a very stark illustration of the difference in the perception of events in the conduct of a trial from the viewpoint of an unrepresented accused, on the one hand, and from the viewpoint of an informed objective bystander, on the other hand. The applicant saw bias at every turn.
At the outset of the first trial the judge, who said he had only been assigned the case a half hour before, sought the assistance of the prosecutor as to how the Crown case would be presented and discussed both with the prosecutor and the applicant a number of evidentiary matters, including whether he ought hold a voir dire to explore how the photo board evidence had been obtained. On the following morning the judge said that he had decided against holding a voir dire but then raised with the applicant the wisdom of contesting the Crown case. He said that quite apart from the identification evidence there was a considerable body of circumstantial evidence and the Crown case was very strong. He pointed out that a plea of guilty would be relevant to sentence. He invited the applicant to speak to the prosecutor, and the applicant expressed willingness to do so, later thanking the judge for giving him that opportunity.
The discussions did not, however, resolve the case. Upon being so informed the judge, without any articulated expression of displeasure at that outcome, proceeded to deal with a number of preliminary matters and the trial then commenced. The case was adjourned for the day after the prosecutor’s address. On the following morning the trial aborted when it was discovered that a juror knew the informant. Before empanelling a new jury the judge discussed a range of evidentiary matters with the prosecutor and the applicant and, in particular, raised the prospect that he might order severance of some of the counts, as the presentment was “overloaded”. The prosecutor opposed that course. A fair reading of the transcript shows that throughout those discussions the judge was at pains to assist the applicant.
A second jury was empanelled. The prosecutor concluded his opening address. The applicant’s opening address followed and was interrupted a number of times by the judge. Each time, the judge pointed out that an opening address was confined to the identification of the issues in the trial, and the judge endeavoured to assist the applicant to identify the issues. He said that the applicant could take all the time he needed but he could not engage in what amounted to a final address, and was obliged to confine his remarks to stating the issues. The court adjourned for the day. On the following morning the applicant applied to the judge to disqualify himself on grounds of apprehended bias.
The judge did not immediately rule on that application but invited the applicant to take a seat while he raised a matter with the prosecutor. The applicant was seated in the dock. The judge said that he had re-considered, overnight, the question of severance and had concluded that he ought sever the presentment, and discharge the jury and empanel a new one. The prosecutor sought an opportunity to take instructions and the judge agreed to allow him that opportunity and he made suggestions as to the appropriate manner that the presentment might be severed in order to avoid duplicity in the counts. The ruling of the judge as to severance was entirely to the benefit of the applicant, something which he did not understand. During the discussion the applicant called out “Objection”, and the judge said that he would get his chance to speak.
The judge did not expressly invite the applicant to comment on the severance issue but then called on the applicant to make his application for disqualification.
The applicant said that there had been a noticeable change in the judge’s demeanour and attitude towards him after he had declined to plead guilty to the counts proposed by the prosecutor. His primary complaint was that the judge had interrupted his address to the jury. The judge sought a response by the prosecutor, in the course of which the judge said, “If he has apprehended some irritation that he’s planning [not] to plead, he’s wrong”.
The applicant complained that during the discussions with the prosecutor about severance “I was left in the dock unable to say anything, I wasn’t here at the table to be able to enter into dialogue about what was being discussed. I was on the outer.” He complained that the judge had received representations from the prosecutor behind the applicant’s back, which the judge described as “humbug”, an abrupt but not inaccurate observation.
His Honour rejected the application, saying that the applicant’s apprehension that he would not be tried fairly was not soundly based. He said that interrupting an opening address is a practice which judges are obliged to engage in when parties making the address stray beyond stating the issues in the trial. He said that a number of extraneous matters had been raised in the opening address. The judge said that he had suggested that there be discussions with the Crown about a plea because the applicant was unrepresented and might not have understood that he could do so. He noted that the applicant expressed willingness to accept the opportunity to do so.
In the course of his oral submissions to this Court the applicant repeated his complaints of bias by reference to the same matters raised with the judge. He also referred to passages in the transcript about which he made complaint. It is to be observed that, with few exceptions, all of the complaints about bias on the part of the judge related to events that occurred before the third trial commenced.
Upon close examination it is very plain that none of the matters raised by the applicant demonstrated any evidence of bias, at all. Indeed, in many of the instances in the transcript about which complaint was made it is quite clear that the judge was seeking to assist the applicant, being very conscious that he was disadvantaged by being unrepresented. In other instances, the judge was merely performing the duties required of a trial judge to ensure the fair and orderly conduct of a trial. A few illustrations will suffice to demonstrate that point. For example, the applicant complained about the fact that the judge addressed his family members who had been listed as witnesses and advised them that they were entitled to decline to give evidence, and yet, in so doing the judge was merely complying with the requirements of s.400 of the Crimes Act 1958.
A further complaint of bias related to the fact that after addresses had finished in the third trial - and after the jury had been discharged for the day following some brief opening remarks in the charge by the judge - the prosecutor suggested that his Honour might be assisted by submissions as to the law concerning the Commonwealth offences. In particular, he noted that the definition of dishonesty was not simple, as his Honour apparently thought, but was complex. After refusing to hear him, initially, the judge then invited counsel to say what it was that he thought should be said in the charge. A very brief discussion of only a few paragraphs then followed in which the prosecutor made his suggestions. On the following morning the prosecutor renewed his suggestion that he assist the judge as to the appropriate directions to be given. He said that he had material prepared by the Commonwealth D.P.P. for use in charging a jury on Commonwealth offences. His Honour declined that assistance and upon the return of the jury the charge then resumed. The applicant complained to us that the judge should not have permitted the prosecutor to offer such assistance.
In the circumstances, it is plain that the prosecutor was merely endeavouring to prevent his Honour falling into appealable error in an area of law that is indeed complicated. As it happened, the judge knew the law and did not need the assistance. Such exchanges might, of course, be regarded by an uninformed bystander, and in particular by an accused person, as inappropriate, but an informed bystander would not have any concern. A barrister, whether prosecutor or defence counsel, is an officer of the Court and has well-recognised obligations to assist the Court in the way the prosecutor was endeavouring to do.
Further complaint of bias relates to the fact that after the applicant had been convicted the judge adjourned the case for two weeks for submissions on sentence. He urged the applicant to obtain legal representation on the plea, stressing that he had been convicted of serious offences which would likely carry custodial sentences. The applicant complained of bias because the judge “imposed stricter reporting conditions without any application by the Crown”. It is, indeed, plain from a reading of the transcript that it was his Honour who decided to place a reporting condition as a further condition of bail, requiring the applicant to report to the nearest police station each day prior to the plea hearing. Although the applicant makes complaint about that, he was, in fact, gaining a very considerable indulgence from the Court. Normally a person convicted on charges such as these would have been remanded in custody. Far from there being any justification for complaint of bias an objective bystander would see that the judge had acted with extreme benevolence towards the applicant in taking the course that he did.
Following discussion with the members of the bench of this Court the applicant conceded that, upon reconsideration, many of the matters that he had thought demonstrated bias bore an entirely innocent explanation. Indeed, as to the third trial the applicant expressly conceded before us that upon consideration of the matters raised during his submissions he had, in fact, received a fair trial, and he accepted that nothing done by the judge during that trial exhibited bias.
The applicant maintained his complaint, however, that the judge displayed bias in encouraging him, before the first trial, to consider pleading guilty. In doing so the judge made it very clear that it was entirely a matter for the applicant to decide what was in his best interest. The judge emphasised that it was the jury, not he, who would decide the facts.
I can well understand why the judge made the suggestion he did. The case against the applicant was not merely “very strong”, as the judge said, it was absolutely overwhelming, something which the applicant, without the benefit of independent legal advice, plainly failed to appreciate.
The question for us is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to his conduct of the trial: see Ebner v. Official Trustee in Bankruptcy[1]; Re Watson; Ex parte Armstrong[2]; Livesey v. NSW Bar Association[3] In my opinion, on a careful reading of the transcript of all three trials the judge’s approach was one of scrupulous fairness towards the applicant.
[1](2000) 205 C.L.R. 337 at [6].
[2](1976) 136 C.L.R. 248 at 263. See, too, Webb v. The Queen (1994) 181 C.L.R. 41.
[3](1983) 151 C.L.R. 288, at 294.
In my view the complaint of bias is entirely without substance, and ground 1 fails.
Ground 2
“The Learned Judge . . . erred in not giving a balanced summary of the evidence during His Honour’s Charge to the Jury.”
The applicant contended that the charge was unbalanced with respect to the analysis of the evidence, but with the exception of a single exhibit tendered by the applicant the whole of the evidence in the case was that led by the Crown. The applicant himself did not give evidence nor call any witnesses. In those circumstances any imbalance in the summary of evidence was a natural outcome of the course taken on both sides. His Honour did, however, fairly summarise the way in which the applicant challenged the evidence on the Crown case.
One specific complaint of lack of balance was that the jury were not told why the applicant’s family did not give evidence. Members of the applicant’s family had been listed as witnesses on the presentment and, in the absence of the jury, the prosecutor indicated his willingness to have them called, in order that they be cross-examined by the applicant. The applicant however advised the Court that his family members were reluctant to give evidence and that he himself had concluded that they had nothing to say which would advance his case. The Crown therefore did not call them, that being the course required by the applicant.
In my opinion, there was no need for any warning or advice to be given to the jury as to the reason for not calling them. Had the judge attempted any explanation it could only have prejudiced the applicant’s position. To highlight that the applicant had declined to call the only other persons who had access to his computer must inevitably have harmed his cause. The judge could not have misled the jury as to where the decision lay, as it would have been unfair to the prosecution to leave an impression that it was the prosecutor who had resisted calling the witnesses.
The applicant complained that the sole exhibit tendered by him, a computer image of the signature “S. Tapatu” was not referred to by the judge in his charge. That document was tendered by the applicant during the cross-examination of the witness Peter Johnston, a sergeant of police at Sunbury police station, who executed the search warrant of the applicant’s house. During the course of his cross-examination the applicant produced to Johnston a document downloaded from the CDs, which contained the signature. The applicant asked whether it was plausible that some person had tried to forge the applicant’s signature. The judge intervened to suggest that it might be best that the applicant not press that question. He insisted, however, and got the answer that it was not a plausible explanation. He then tendered the exhibit. The fact that the judge did not draw that evidence to the attention of the jury can only have been beneficial to the applicant.
The evidence in this case occupied only three days and, in my view, the summing up more than adequately addressed all issues of fact and law which were relevant to the jury’s consideration.
This ground is not made out.
Ground 3
“The Learned Judge . . . erred in advising and or directing the Jury, in response to a question, during their deliberations.”
The jury retired at 10.48 a.m. on 14 July 2003 and returned at 2.14 p.m. with a question:
“Your Honour re circumstantial evidence, the jury would like clarification as to, must a not guilty verdict be returned if there is any possibility of another person having committed an act? What constitutes reasonable doubt? Must a not guilty verdict be returned if there is any possibility of another person having committed an act?”
The judge responded to the question with detailed directions, in the course of which he told the jury that if there was any reasonable hypothesis consistent with innocence they must acquit. The complaint made is that his Honour failed to direct the jury that there was an alternative hypothesis, namely, that the opening of the bank accounts may have been by someone other than the applicant and that that might explain the absence of direct evidence of it being the applicant.
There is nothing in this contention. The jury knew that the question of identity was the issue. The question which was asked was really directed to the standard of proof and the drawing of inferences and the judge gave perfectly correct responses on those issues.
Ground 4
“The Learned Judge erred in not allowing severance of counts 10, 11, 12, 13, 14, 15 and 16, from counts 6 and 9.”
The applicant contended that he was prejudiced by having counts 6 and 9 on the presentment because those counts required eyewitness identification whereas the other counts involved the use of fraudulent documents.
Section 371 of the Crimes Act provides that, subject to the rules, charges for more than one indictable offence may be joined in the same presentment. The rules as to joinder of counts are to be interpreted with flexibility[4]. The presentment rules[5] permit the joinder of charges where they are founded on the same facts or form part of a series of offences of the same or a similar character.
[4]R. v. Renzella [1997] 2 V.R. 88.
[5]Rule 2, 6th Schedule, Crimes Act 1958.
In my view, the similarity and connectedness of the counts in this case justified joinder. Although identity was the issue for counts 6 and 9 as to the opening of the bank accounts, identity was also an issue as to who it was who made use of the false documents in dealing with financial institutions. On the Crown’s case it was the same person involved in both sets of transactions. Severance is a matter for the exercise of discretion by the trial judge and in this case the judge exercised his discretion in favour of the applicant when severing a number of the counts on the original presentment. The remaining counts were inextricably linked, the evidence on all counts being cross-admissible as part of the circumstantial case of the Crown. No error has been shown in the exercise of his Honour’s discretion in refusing the application for severance.
Mr Tapatu did not, in fact, press his complaint about severance of the charges but instead sought to add a new ground, 4(b), as follows”:
“The trial judge erred in failing to give a direction as to propensity”.
We reserved our decision as to whether this and a later proposed amendment to the grounds would be permitted, but allowed the applicant to argue this ground. The applicant cited a passage in the judgment of Callaway, J.A. in R. v. DCC[6], but as the immediately following passage in the judgment makes clear, where there are multiple counts on a presentment but only one complainant – which, in reality, was the case here - then a propensity direction is not required, merely a separate consideration direction, which the judge gave.
[6](2004) 151 A.Crim.R 403, at 405.
In any event, as Gleeson, C.J. pointed out in Doggett v. The Queen[7], what directions are required in a trial is determined by the manner in which the trial is conducted and the way the issues are shaped. In this case, on both sides, it was agreed that the issue was identity. If the applicant was proved to have opened the two bank accounts then he would inevitably have been found guilty on the other counts. A propensity direction was completely irrelevant to the case as it was conducted.
[7](2001) 208 C.L.R. 343, at 346 [2].
The existing ground is not made out and the application to add the additional ground has no prospect of success and should be refused.
Ground 5
“Eyewitness identification of the Defendant by two Witnesses was flawed and unreliable.”
The applicant complained that the evidence of the two bank tellers should not have been admitted, but under this ground also complained that even if the evidence was admissible it ought to have been the subject of strong direction by his Honour as to its unreliability.
Under this ground the applicant complained about the “dock identification” of the applicant by the witnesses Ms Steenbuck of the ANZ Bank and (although the term was not strictly applicable to this witness) Mr Camuglia of the Commonwealth Bank. Dock identifications are indeed notoriously unreliable and dangerous, although there is no absolute rule that the evidence must be rejected[8]. In the case of the witness Steenbuck the applicant commenced his cross-examination by asking her, as to the person who opened the account, “Are you sure it was the same person you are looking at now?”, to which he got the predictable answer. Camuglia was not asked a similar question, but was cross-examined in a way that came close to doing so.
[8]See Festa v. The Queen (2001) 208 C.L.R. 593, at 601 [18]; Alexander v. The Queen (1981) 145 C.L.R. 395, at 427 per Mason, J. and at 399 per Gibbs, C.J. See, too, R. v.Clune [1982] V.R. 1, at 12.
In this case no identification parade was conducted, because the applicant refused to take part in one. In those circumstances he was extremely fortunate that the prosecutor agreed not to place that information before the jury, as he was entitled to do[9]. The mere fact that a selection of photographs was used is not justification for exclusion of the evidence: see R. v. Clune[10]. In this case, however, the dock identification was not the first occasion on which the witnesses purported to identify the person who proved to be the applicant. In those circumstances a dock identification carries less danger than in circumstances where it was being made for the first time: see R. v. Britten[11] and R. v. Clark[12].
[9]See R. v. Clune [1982] V.R. 1; McCarthy and Ryan v. R. (1993) 71 A.Crim.R 395; R. v. Davies [2005] VSCA 90, at [7].
[10][1982] V.R. 1 at 12.
[11](1988) 51 S.A.S.R. 567 at 572.
[12](1996) 91 A.Crim.R. 46 at 52.
Camuglia had made a photo identikit identification of the applicant seven days after the account had opened and that had been produced to the prosecutor by police only at the commencement of the second trial. The prosecutor said that he would not lead the identikit in evidence unless the applicant agreed to that course and the applicant said he did not agree to it being admitted, but later changed his mind and asked for it to be admitted, and it was.
Camuglia said he had given police a description of the man as having a medium build, fair complexion and of Asian or Maori background. A photofit picture was prepared on 26 July 2002 and then on 2 December 2002 he was shown a photo-folder out of which he picked one photograph, that of the applicant. Camuglia was not asked to make a dock identification, but the applicant asked him to “look at me” and then describe the applicant’s build. The witness asked if the question referred to “right now?”, and when that was confirmed said, “in between medium and large”.
The applicant cross-examined the witness to suggest, and submitted to us, that there were significant differences between the description given by Camuglia to police and his own appearance. Camuglia had described the person as having a full hairline, although the applicant said he had a prominent receding hairline. He had described the man as having medium frame whereas the applicant had a large frame and, so he said, also had missing top and bottom teeth and a wart-like impediment on his skin. He had a scar to the left eyebrow, he said.[13]
[13]On the application for leave to appeal the applicant had a fully shaven head. To my observation none of the suggested features of his appearance as he put them to Camuglia were particularly evident. Camuglia’s original description as given to police seemed to be very consistent with the appearance of the applicant.
As to the witness Steenbuck, she gave no description to police in her statement of 21 November 2002 and in her evidence merely described the person as having been Asian, Chinese, or Maori, with a biggish head.
The applicant placed emphasis before the jury, and this Court, on evidence of Steenbuck that while she had been waiting to give evidence she had been talking to Camuglia and had said words to the effect, “that’s him”, when the applicant approached in the hallway. Camuglia denied hearing that said. The applicant said that reflected on the credibility of the evidence of both. In my view, that was a matter for the jury to assess.
When his Honour turned to “the vital issues in the case” he commenced with identification. He gave emphatic warning to the jury, which he obliged them to accept as directions of law, concerning the dangers of identification evidence. His Honour related his directions to the evidence of Steenbuck and Camuglia, raising the question as to whether they had opportunity or special reason for remembering a person they dealt with, and querying whether the person had distinctive features. He noted Ms Steenbuck’s uncertainty as to whether the person had “a bit of Chinese in him” and he noted Camuglia’s description, given eight days after the account was opened, when he provided the identikit. His Honour highlighted the limited amount of time the witnesses had to make their observations, stating that although Steenbuck made a diary note of the encounter a week or two later, her identification with the photo-board was not for some four months. Camuglia made an identikit eight days later and the photo-board identification was five months later. His Honour noted how both witnesses would have come face to face with hundreds of people in that period. He asked the jury to consider whether the witnesses’ recollection had been adequately tested at an early time by police. He invited the jury to compare the descriptions given at the time with the person later identified.
His Honour, in a careful direction, noted that there had been no identification parade. Instead, there was only the use of the photographs which were “at most” a second-best way of doing it but said that if it was fairly done then they could use that evidence but he warned them as to the use[14]. His Honour’s directions concerning identification and the dangers thereof posed a series of questions as to whether the witnesses had been shown enough photographs, whether their attention had been drawn to any particular photograph, whether there was anything distinctive about the accused’s photograph in comparison to others, whether it was a situation where he was bound to be picked because he looked different to the others shown in the photographs, and so forth. He warned the jury of the danger of displacement effect, in particular the danger of in-court identification, and he noted, too, the danger that appearances might have changed over time. As to Ms Steenbuck’s in-court identification, by the applicant himself, his Honour said that the jury “ must consider that as a potentially unreliable identification” and told the jury why that would be so. He told the jury it was of very little value. He warned the jury about two poor identifications not supporting each other. He told the jury he was giving them a strong warning, and so his Honour did. The question of identification was addressed over some ten pages in the charge. His Honour then turned to the circumstantial evidence on which the Crown also relied.
[14]See the cases referred to fn 9.
In my opinion the identification evidence was properly admitted and the lengthy and comprehensive direction on identification was more than adequate.
This ground fails.
Ground 6
“The Crown Prosecutor exceeded the mandate of his Office to prosecute with justice and fairness to the Accused and to the Court, and proceeded with excess zeal and indifference to secure a conviction and sentence.”
The applicant contended that the prosecutor acted unfairly in the conduct of the trial, by seeking “to influence” the judge by making submissions to him as to how he should charge the jury. There is no doubt that the prosecutor sought to influence the judge as to how he should charge the jury. As I said earlier, not only has he a right to do so it is perfectly appropriate where there is a risk of the judge making an error of law. In this case there is no basis for complaint about the prosecutor’s conduct of the trials and there are many instances to be found in the transcript where the prosecutor adopted a very generous approach to the position of the applicant in the conduct of the case. There was no unfairness in the prosecutor’s conduct of the case.
This ground has no substance.
Ground 7
The Applicant has suffered a miscarriage of Justice due to all the above grounds which have prevented him from receiving a fair trial.
The ground has no substance. The trial was fair; none of the suggested deficiencies identified in the grounds have been established. There was no miscarriage of justice either individually or collectively established under those grounds.
Proposed Ground 8
The applicant applied to add a new ground, as follows:
“The verdicts of the jury were unsafe having regard to the evidence”.
The question whether a verdict is unreasonable and cannot be supported by the evidence turns on whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty[15].
[15]MFA v. The Queen (2002) 213 C.L.R. 606, at 614-5; M v. The Queen (1994) 181 C.L.R. 487, at 493-4.
Under this ground the applicant highlighted the absence of forensic evidence by way of fingerprints, writing analysis or DNA evidence which linked the applicant to the material found at his home or to the fraudulent cheques and/or the opening of the account cards at CBA and ANZ. In my view, the prosecution case did not need to be supported by any additional evidence. Having reviewed the evidence in this case, I agree entirely with the submission of Mr Hillman that the Crown case against the accused was overwhelming. My confidence that the verdicts are not unsafe and that the finding of guilt was the only conclusion that the jury could have reached is further strengthened by the fact that the applicant, as the one person in a position to know who else could have been the offender, chose not to give evidence[16].
[16]As to the entitlement of the appeal court to have regard to that factor, particularly in a circumstantial case, see R. v. Doherty (2003) 6 V.R. 393, at 409-410 [27]; R. v. Neilan [1992} 1 V.R. 57.
I would refuse the application to amend the ground of appeal to add this ground, as it has no prospect of success.
Conclusion
No ground of appeal has any merit. The application for leave to appeal against conviction should be dismissed.
NETTLE, J.A.:
I have had the advantage of reading in draft the reasons for judgment of Eames, J.A.
I agree with his Honour for the reasons that he gives that the application for leave to appeal should be dismissed.
ASHLEY, J.A.:
I agree with Eames, J.A., for the reasons which his Honour gives, that the application for leave to appeal should be dismissed.
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