Raumakita v The Queen

[2013] HCATrans 83

[2013] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S344 of 2012

B e t w e e n -

LIVAI RAUMAKITA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 APRIL 2013, AT 10.55 AM

Copyright in the High Court of Australia

MR P.R. WHITFORD, SC:   May it please the Court, I appear with my learned friend, MS G.A. BASHIR, for the applicant.  (instructed by Legal Aid Commission of NSW)

MR J.H. PICKERING, SC:   I appear for the respondent.  (instructed by Director of Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Whitford.

MR WHITFORD:   Thank you, your Honours.  Your Honours, before I come to the substantive application I should remind your Honours ‑ ‑ ‑

FRENCH CJ:   There is an extension of time necessary.  Is there any objection?

MR PICKERING:   No, your Honours.

FRENCH CJ:   Your time is extended.

MR WHITFORD:   Thank you, your Honour.  Your Honours, before briefly outlining what was done by the Court of Criminal Appeal in this case, which we submit - in an erroneous way - we will shortly identify the passages of the judgment below which we say reflect the error in the judgment and outline the point of principle for which we contend and the questions, both of general importance and in the circumstances of this case, which we submit justify the grant of special leave. 

Before doing those things, may I make a couple of observations to put those things in a proper context and to identify that the point which arises in this case is a narrow and confined one and, in our submission, makes it an appropriate vehicle for the grant of special leave in respect to the point of principle we rely upon.  Your Honours, the starting point for those observations appears at page 18 of the application book in the context of the trial judge’s directions to the jury.  Commencing at the top of that page his Honour observed that:

There is no dispute in this trial that the evidence establishes beyond reasonable doubt that the armed robberies the subject of counts 1, 2 and 3 in the indictment were committed. 

The only issue in this trial in respect of each of the three charges of armed robbery is whether the Crown is able to prove beyond reasonable doubt in respect of the particular armed robbery charge you are considering, that the accused was a participant in the commission of that armed robbery, that is, one of the persons who committed that armed robbery.

So the sole issue at trial, relevantly, was one of identification.

FRENCH CJ:   Now, in respect of counts 1 and 2, there was CCTV evidence.

MR WHITFORD:   That is so.

FRENCH CJ:   In respect of counts 3 and 4 there was no such evidence and those are the counts on which he was acquitted.

MR WHITFORD:   They are the counts on which he was acquitted and there was no CCTV footage.  Your Honours, the Crown case in respect of that sole issue of identification can be shortly stated.  It was, in respect of count 2, there was circumstantial evidence in the nature of DNA evidence and fingerprint evidence that identified the applicant as a participant in the second robbery. 

The Crown case went, if the jury was satisfied as to the participation of the applicant in the second robbery then by reference to six identified features of the three robberies, then the jury would be satisfied beyond reasonable doubt that the applicant was a participant in robberies, the subject of counts 1 and 3.  

The jury were satisfied in respect of count 2 as to the applicant’s participation in that robbery but clearly were not persuaded beyond a reasonable doubt in respect of the robbery, the subject of count 3.  The features, the similarities of ‑ ‑ ‑

FRENCH CJ:   There were distinguishing features with respect to count 3, were there not, that were found to be explicable of the jury’s verdict including the reference to so‑called Middle Eastern accents and fair coloured skin and so forth and only two participants, I think, in that case, were there not?

MR WHITFORD:   There were two participants in the third robbery, two participants in the second robbery and three in the first robbery.  The points of distinction that your Honour refers to, and your Honour is correct, were matters relied upon by the Court of Criminal Appeal.  They were the reference to both participants in the third robbery apparently having Middle Eastern accents and referring to one another as “Mohammed”. 

The process of reasoning employed by – we will come to it, but the process of reasoning employed by the Court of Criminal Appeal was, in a sense, the conventional approach that one might take in an appeal on an unreasonable verdict ground where one is considering a count of guilty on the one hand and ‑ ‑ ‑

FRENCH CJ:   Well, you are rather saying that there is a mistaken focus on inconsistency when that was not really what the debate was about.

MR WHITFORD:   The debate is about unreasonableness.  The appeal arises under section 6(1) of the Criminal Appeal Act and the first limb of that section, and that deals with unreasonableness.  It does not raise inconsistency per se.  We submit that this case raises, or exposes a gap in the law in this area in the sense that much of the law, so far as it has been expounded in this Court and followed in intermediate Courts of Appeal, arises in the context of sexual offence cases and, in particular, where one is considering verdicts that are said to be inconsistent by reason of a jury apparently not being satisfied as to the credibility of the complainant in respect of one count but, nonetheless, finding someone guilty in respect of other counts where there are multiple counts in the trial.

The process of reasoning that is conventionally applied in those cases is that one looks at each of the counts, the jury considers them separately and asks, well, is there evidence in respect of those separate counts which gives rise to a rational basis for the verdict of guilty and the acquittal to stand together.  That is, in a sense, the process of reasoning that was employed by the Court of Criminal Appeal in this case but, in our respectful submission, it is not an apt process of reasoning where what one is considering is the sufficiency and adequacy, to employ the words from the M and MFA test, of the duty of an intermediate Court of Criminal Appeal in these circumstances.

They need to ask themselves what is the effect, if any, upon the Crown case of the acquittal, and in this case the sole issue was one of identification.  The only evidence relied upon for identification is the coincidence evidence, the six features:  the balaclavas, the red tomahawk, the knife, the sudden and violent entry ‑ I forget just at the moment what the other two are but they are set out at page 99 of the application book in paragraph 24 of the judgment – but those features are the sole features relied upon in the Crown case for identification, for placing the applicant at the robberies the subjects of counts 1 and 3.

Plainly, the jury had in their collective mind a reasonable doubt about the ability of those features to satisfactorily identify the applicant as a participant in the third robbery.  As soon as one has that doubt it gives rise to the possibility of there being a reasonable hypothesis which has not been excluded by the Crown, and the cogency of that coincidence evidence, the similarities of the three trials, is substantially undermined to the point where one cannot, we submit with respect, rely upon it reasonably to found identification for count 1.

So it is a quite different situation that arises in this case dealing with coincidence evidence than arises in the sexual offence cases where one is concerned with a jury being not convinced, or having doubts about the credibility of a complainant in respect of one count perhaps but, nonetheless ‑ ‑ ‑

FRENCH CJ:   The jury has no CCTV evidence in respect of the third count, as I understand it, so the jury is told there are people committing an armed robbery with these particular features, plus a witness says fair skin, they hear Middle Eastern accents and they hear the name Mohammed being used.  So a jury looking at the other two might say, well, we have not seen the commission of the offence the subject of the third count, we are not satisfied beyond reasonable doubt that he was there because of these factors, the differentiating factors.  I do not quite understand how that necessarily undermines a verdict of guilt in respect of the first count where there is the additional visual evidence, plus all the other features of similarity.

MR WHITFORD:   If I could answer your Honour’s question this way?  If your Honours go to page 152 of the application book and, in particular, to paragraph – firstly, 3.10 of my learned friend’s submissions?  It is put, we submit, correctly:

The CCTV footage was not used as identification evidence nor did it purport to be evidence capable of identifying the applicant.  The offenders were wearing balaclavas and there was no question of identifying anyone from the footage.

Then at paragraph 3.13 on the next page:

The identification of the applicant came not from the CCTV footage but from the DNA and fingerprint evidence.  The CCTV footage was important evidence and the jury, and the CCA, were entitled to have regard to it as direct evidence to assist in determining the participants in the two robberies.

FRENCH CJ:   Is that saying anything more than that the CCTV evidence on the first count did not show the face of any of the offenders or identifying characteristics of any particular offender?

MR WHITFORD:   We would read it as saying, your Honour, correctly, that the evidence and the photographs are in the application book – I will take your Honours to them if necessary – but our submission ‑ ‑ ‑

FRENCH CJ:   I have seen those.

MR WHITFORD:   ‑ ‑ ‑ about them is one cannot from those photographs make any identification and the sole issue in the trial was ‑ ‑ ‑

KIEFEL J:   Not facially, but that it would be relevant to questions of build and shape and similarities between the participants in the robberies, would it not?

MR WHITFORD:   Well, we submit, no, as a matter of identification.  The mere fact that someone commits a robbery and is of a particular shape and build to somebody who is seen, but without being identified, to commit another robbery ‑ ‑ ‑

KIEFEL J:   With particular weapons.

MR WHITFORD:   ‑ ‑ ‑ albeit with similar features is not probative in the sense of determining the sole issue at the trial.  It remained the case that the only identification evidence that was before the jury in respect of count 1 was the similar features, what was admitted as coincidence evidence, and at the point of admission the trial judge is confronted with three robberies that are said to contain similar features. 

Looking at section 98 of the Evidence Act, the trial judge is obliged to ask him or herself – in this case himself – whether there was significant probative value in that commonality of features such as to permit the admission of the evidence to allow identification, there being an improbability that having regard to the features of the two acts ‑ ‑ ‑

KIEFEL J:   What is the vice of the evidence once admitted if you say there is no probative value?  I mean, I know that that is a threshold question a trial judge has to determine, but what impact does it have, potentially?

MR WHITFORD:   At the point of admission, the trial judge has to ask do these features alone or possibly with additional evidence will they have significant probative value in respect of discounting coincidence as a basis for participation of the one person in two separate acts.

KIEFEL J:   I appreciate that, but what is the harm in the evidence from the accused’s point of view once it is in, from the jury’s perspective?

MR WHITFORD:   From the accused’s point of view, the harm perhaps – if I am answering your Honour’s question correctly – lies in the fact that the jury are directed they can rely on those features, the coincidence evidence, as the sole basis for identification.  What has occurred in this case and what becomes relevant at the point of consideration of unreasonable verdicts by an intermediate Court of Appeal is what is the effect or the consequence of the acquittal on the probative value of that evidence.  The probabilities shift necessarily, in our submission, by virtue of the fact that the jury have not accepted those features as a basis for identification in respect of the third robbery.

KIEFEL J:   I still cannot quite follow your submission on that.  I could if there was not the additional evidence, to which the Chief Justice has referred, about the Middle Eastern accents and people being called by name and different colour skin being evident.

MR WHITFORD:   May I try and explain that?

KIEFEL J:   Yes.

MR WHITFORD:   What you have is counts 1 and 3.  For the purposes of identification the jury are told, you may rely upon and rely solely upon the features of these two trials that are similar to the second robbery.  There emerges in respect of count 3 some additional evidence which goes to questions of accent and names that raises, quite reasonably, in the minds of the jury a reasonable doubt about those features as forming a proper basis for identification.  There is by virtue of the names, by virtue of the accents, introduced a reasonable hypothesis which gives rise to reasonable doubt in the mind of the jury.

The mere fact that there is no additional evidence, and there is none about accents or about names in respect of the first trial, there is left nothing additional in respect of the first trial but the CCTV footage in terms of a basis for identification, for placing the applicant as a participant at the first robbery.  We have submitted – and I will not repeat it – why the CCTV footage is not apt for an identification purpose where the sole issue is identification, and we submit it has been conceded, so one is left with the fact that because of the acquittal, because of the evidence which appears to give rise to the acquittal ‑ ‑ ‑

KIEFEL J:   What it really comes down to is you say that the coincidence evidence was insufficient.  That is it, that is really it?

MR WHITFORD:   The probabilities shift by virtue of the acquittal, and we say it is incumbent on an intermediate Court of Appeal when assessing not just the whole of the evidence but the nature and circumstances of the case, which is the obligation under the M and MFA tests, to consider, well, while we are sitting here looking at what the jury did and the reasonableness of the verdict of guilty what is the effect on the cogency of the coincidence evidence as a foundation for identification? 

The mere fact of the acquittal is enough, we submit, to enable the intermediate Court of Appeal to say the identification by reference to those coincidence features in count 1 is unreasonable because, notwithstanding there is no additional evidence in respect of count 1, the additional evidence that emerged in respect of count 3 demonstrates that there are hypotheses available that cannot be excluded and which give rise to a basis for reasonable doubt about those features being adequately or sufficiently – again, to adopt the words in the M and MFA tests – a basis for identifying and placing the applicant at the scene of the first robbery.

I have been slightly diverted from where I was going.  I did intend to identify for your Honours the passages we submit contain the errors of the Court of Criminal Appeal.  Your Honours, they appear commencing at page 102 of the application book.  At paragraph 37 Justice Johnson said:

The written submissions for the Appellant asserted that this Court was required to give “full weight” to the acquittals on the third and fourth counts, citing Storey v The Queen [1978] HCA 39; 140 CLR 364. This assertion is of no real assistance to the Appellant. As Gleeson CJ and Hayne J observed in The Queen v Carroll [2002] HCA 55; 213 CLR635 at 646 [31], seldom, if ever, “can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial.”

We say that is an error.  The fact of the verdict per se perhaps is not of any consequence, but what the Court of Criminal Appeal needed to do and, in our submission, did not was to address the effect that the acquittal had from the M and MFA perspective as to the sufficiency and quality of the identification evidence on count 1.  A quote from the Chief Justice and Justice Hayne in Carroll is not to the point, in our submission.  It says nothing about where coincidence evidence has been admitted, and an acquittal demonstrates or undermines that coincidence evidence as a basis for identification. 

The other errors that we identify are at paragraph 42 on page 104 of the application book.  This seemed to be pivotal in the reasoning of the Court of Criminal Appeal, that:

Having had an opportunity to consider the still photographs taken from the CCTV footage . . . it is easy to see how this evidence could have been of considerable assistance to the jury (as it is to this Court) in a direct comparison of features of the offenders, including the axe, as being the same persons and things.

In our respectful submission, that is an error.  It is conceded to be so.  The evidence is not apt to identify any particular participant in the first robbery, and the error is continued in paragraph 44 where the court says – and this in a sense harks back to paragraph 37 where the Court of Criminal Appeal says the acquittal:

provides no assistance to the Appellant in support of his unreasonable verdict ground.

For the reasons we have articulated, we would submit that is an error.  Then there is an error in paragraph 45 which, in a sense, is the conclusory paragraph of their Honours’ judgment. 

Your Honours, in terms of a point of principle that we contend emerges, we have articulated the special leave questions at page 118 of the application book but doing our best, in a sense, to summarise those and to encapsulate them in a point of principle which we submit is a suitable one to attract a grant of special leave.  It is this.  In a case involving multiple counts where coincidence evidence is the only circumstantial evidence of identity, the cogency of that evidence must be assessed by an intermediate Court of Appeal considering the reasonableness of the verdict in light of its rejection as evidence of identity on other counts in the indictment. 

In our respectful submission, that was not done by the Court of Criminal Appeal and they were in error as a consequence.  That principle is, in our submission, an appropriate one for the grant of special leave, it being of sufficient public importance and, in our submission, also the interests of justice, both in the particular case and generally, warrant the grant of special leave in this case where, in our submission, someone has been convicted on the basis of identification evidence which, in our submission, is utterly inapt to form a foundation for identification.  If it please the Court.

FRENCH CJ:   Thank you, Mr Whitford.  We will not need to trouble you, Mr Pickering.

The applicant for special leave was convicted in the District Court of Parramatta on two counts of armed robbery.  He was acquitted of a third count and an associated charge of assault occasioning bodily harm.  He seeks special leave to appeal against the decision of the Court of Criminal Appeal, Supreme Court of New South Wales, dismissing his appeal against his conviction on the first count.  He does so on the basis that the Court of Criminal Appeal erred in concluding that it was open to the jury to conclude beyond reasonable doubt that he was guilty of the offence.  The careful argument advanced on his behalf by Mr Whitford focuses upon the asserted inadequacy of the evidence relating to the first count to establish his participation in the armed robbery, the subject of that count.  

As the Court of Criminal Appeal observed, there was a strong case against the applicant on the second count.  There were a number of features of the CCTV evidence of the first offence which were similar to those of the second offence and features otherwise suggestive of common participants in both.  The Court of Criminal Appeal applied the correct test as enunciated by this Court in M v The Queen (1994) 181 CLR 487 and subsequent decisions. Its conclusions did not turn, as the applicant submitted, on its rejection of a contention that the acquittal of the applicant on the third and fourth counts was inconsistent with his conviction on the first. It referred directly to the significance of the CCTV footage concerning both the first and second counts. The verdicts of acquittal on the third and fourth counts did not logically undermine the verdict of guilt on the first count. Special leave will be refused.

MR WHITFORD:   May it please the Court.

FRENCH CJ:   The Court will now adjourn.

AT 11.19 AM THE MATTER WAS CONCLUDED