Regina v Michael Filitis - [2004] NSWCCA 68

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CITATION: Regina v Michael Filitis [2004] NSWCCA 68

HEARING DATE(S): 11 February 2004

JUDGMENT DATE:
11 February 2004

JUDGMENT OF: Sully J at 1; James J at 26; Hulme J at 27

DECISION: Appeal allowed; Ruling of trial Judge vacated; Matter remitted to District Court

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

CASES CITED: Domican v The Queen (1992) 160 CLR 583
Festa v The Queen [2001] HCA 72

PARTIES :
Regina
Michael Filitis

FILE NUMBER(S): CCA 60041/04

COUNSEL: B.J. Knox SC - Crown
S.J. Odgers SC - Respondent

SOLICITORS: S. Kavanagh - Crown
Murphys Lawyers - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3122

LOWER COURT
JUDICIAL OFFICER : Bellear DCJ

- 9 -

60041/04

SULLY J
JAMES J
HULME J

11 February 2004

REGINA v MICHAEL FILITIS

Judgment

1 SULLY J: Before the Court there is an appeal brought pursuant to s 5A of the Criminal Appeal Act, 1912 (NSW). The appeal derives from a ruling upon evidence given by Bellear DCJ sitting with a jury in the District Court at Campbelltown. His Honour is currently presiding over the trial by jury of Mr Michael Filitis, the respondent to the present appeal.

2 Mr Filitis stands charged upon indictment: first, with having assaulted one Daniel Karan on 13 July 2002 at Bankstown; secondly, with having wounded Daniel Karan at the same time and place and with intent to murder him; thirdly, and in the alternative to the second charge, with having maliciously wounded Daniel Karan at the same time and place and with intent to do grievous bodily harm to him.

3 The trial commenced on 2 February instant; and on the following day Mr Karan was called by the Crown to give evidence. The evidence led in chief from Mr Karan described a number of related incidents, of which it is sufficient to say they comprehended among other things his prolonged and serious assault with a wooden baton, the severity of the assault having been such as to have caused the baton not so much to break as to splinter. At the height of the incidents Mr Karan was stabbed in a way of which it is sufficient to say that it was both serious in its incidence, and life-threatening in its consequences. All of these matters are uncontroversial in the trial; and, indeed, are uncontroversial in the present proceedings.

4 In the course of taking that evidence in chief from Mr Karan the Crown produced two video recordings of identifications made by Mr Karan variously on 12 and 15 October 2002. Of particular importance for present purposes is the identification made by Mr Karan and recorded by video recording on 15 October 2002, for it is in that procedure that Mr Karan purportedly identifies the present respondent as the assailant who stabbed him.

5 The respondent was represented, and indeed, so far as we can see, continues to be represented at trial by counsel.

6 Counsel did not raise any objection to the leading of the evidence until after it had actually been taken and the video recordings marked for identification and placed in front of the jury. Counsel then applied to the Judge to withdraw the identification evidence from the jury before he embarked upon cross examination of Mr Karan. That touched off a lengthy exchange, the end result of which was that the learned presiding Judge decided that his Honour would not deal with any such objection until the cross examination had concluded; and indeed, the matter was not revisited until, essentially, the entirety of the balance of the Crown case had been completed.

7 A substantive application was then made to withdraw from the jury the material which they had variously seen and heard. His Honour heard an application on 5 February 2002 and had time over-night to consider what he would do in connection with it. What his Honour in fact did was to publish a ruling, the conclusion of which is expressed by his Honour in this fashion:

“I am satisfied that the probative value is outweighed by its prejudicial effect and, exercising the discretion pursuant to ss 135 and 137, propose to withdraw the evidence of identification procedure. conducted by Detective Senior Constable Scott on 15 October 2002 where the complainant identified the photograph numbered 3 from the jury”.

8 It is that ruling which has given rise to the present s 5F appeal.

9 The course of the identification, as one can see and hear it on the video recording, is most conveniently described and summarised simply by quoting the various portions of the transcript which was made available as part of the evidence in the District Court, and has been made available as part of the evidence in this Court.

10 The relevant parts of the transcript read as follows:

MRS KARAM

PLAINCLOTHES CONSTABLE SCOTT

MRS KARAM

……………………………

PLAINCLOTHES CONSTABLE SCOTT.

11 Insofar as his Honour saw himself as deciding an issue to which s 137 of the Evidence Act was applicable, it seems to be clear that his Honour was required to carry out three comparatively straightforward exercises in fact finding.

12 His Honour was required to find, first, the probative value of the identification evidence. That much at least his Honour clearly did, coming to the conclusion that in his Honour’s opinion the evidence was weak identification evidence of low probative value.

13 Of course, it did not follow that, thereupon and without further consideration, the proper course to be taken as to the evidence was to exclude it before the jury heard it, or to withdraw it after the jury had heard it. For his Honour was required, even given that finding of fact, to make a distinct finding of fact on the question, then posited by section 137, of the danger that the challenged evidence, if admitted would cause unfair prejudice to the accused. That seems to me to have required his Honour to have made a careful and precise analysis of what danger might be thought to be contingent upon the admission into evidence of this particular material.

14 It seems to me that the only danger of unfair prejudice, given the facts and circumstances of this case, was that the jury might be tempted to give to the identification evidence a weight and a significance which, on a proper view, it did not deserve to have. His Honour was not assisted, as it seems to me, by the making of submissions, on either side of the record at trial, such as would bring his Honour’s attention to the need to be careful to deal in a precise and reasoned way with that discrete question.

15 Be that as it may, the statute itself cast upon his Honour an obligation to attend with that degree of particularity to that aspect of the requirements of section 137. It seems to me, with all due respect to his Honour, that his Honour did not do that, either sufficiently or at all.

16 Had his Honour been assisted by submissions which brought his attention to that question in the way that I have suggested, then it must have followed that his Honour’s attention would have been taken, as well, to a thoughtful and considered analysis of all the directions he was either required or permitted to give to the jury in aid of ensuring that the jury would not make any such inappropriate use of this material were it to be left to them for their ultimate consideration.

17 That matter, also, his Honour does not seem to have considered, except in the sense of considering in a loose and general way a proposition expressed by his Honour in his ruling in terms of a conclusion that the weakness of the evidence could not be adequately cured by direction.

18 It has been put, and fairly put, that a ruling of this kind is not to be submitted to a microscopic examination in order to see whether there can be teased out of it here or there some elegant debating point. Nonetheless, given how fundamental the evidence was to the Crown, it was, I think with respect, incumbent upon his Honour to expose a clear and logical process of reasoning from which it could be seen that his Honour had attended in a real way to each of the separate matters raised by s 137 for his Honour’s consideration.

19 It seems to me that his Honour did not do any of those things; and, in that respect, and going no further, I would be well satisfied that his Honour’s ruling is based upon an erroneous approach.

20 It is, I think, appropriate and useful to make some additional observations as follows. This Court has seen, with the consent of both parties to the appeal, both of the video recordings of which I have spoken. The Court has had the benefit, as well, of agreed transcripts of what is to be seen and heard upon those recordings. I do not myself accept for a moment that what one can see and hear on the video recordings, in particular that of 15 October, is so imprecise, so inexact, so tentative, so shaky otherwise, as to justify a conclusion that a reasonable mind could come to one, and one only, assessment of it: namely, an assessment that it had little, if any, real probative weight.

21 It seems to me that a jury acting reasonably, and properly directed, would be entitled to take, and may very well take, the view that what is seen and heard in that identification procedure, so far from showing something that is tentative and unreliable, shows something that is, overall, careful and considered, and worthy at least of being considered by the ultimate tribunal of fact, that is to say the jury, in conjunction with such other evidence as might be put before them either by the Crown, or in a separate case for the accused.

22 I would add for myself this further comment. In a case of the present kind it is not apparent to me why proper directions given to a reasonable jury would not be adequate to deal justly with any real risk that the jury might use inappropriately the material which is the subject of the present challenge. The decision of the High Court in Domican v The Queen (1992) 160 CLR 583, after all, entails an obligation, - not a discretion, an obligation, - to give directions which bring home in very clear and vivid terms the dangers which the experience of the Courts sees as being inherent in all identification evidence. Domican imposes concurrently an obligation on the trial Judge to bring in appropriate terms the attention of the jury to particular weaknesses which the jury ought to have in mind when considering what the jury will make ultimately of the particular identifying evidence.

23 Superimposed upon these obligations is the general obligation of the Judge at the trial to see that justice is done according to the circumstances of the particular case; and to that end, to add such other directions and observations as the Judge may think appropriate over and above the bare things that are required of the Judge, in part by the Evidence Act, and in part by the line of authority of which Domican is the keystone.

24 Having regard to the whole of those considerations, it seems to me that, looking at the questioned ruling, simply in the context of s 137 and without the need to have an extended analysis of s 135, it has been well established by the appellant that the ruling is wrong and ought not be allowed to stand. I would therefore favour orders allowing the appeal of the Crown, vacating the ruling of the trial Judge, and remitting the matter to the District Court to be dealt with according to law and in conformity with the principles expressed in this judgment.

25 I propose orders accordingly.

26 JAMES J: I agree with the orders proposed by the presiding Judge for the reasons which have been given by his Honour.

27 HULME J: I also agree with the orders proposed and with the reasons given by his Honour for those orders.

28 I would make a couple of additional observations. In the course of his reasons for the decisions presently the subject of appeal his Honour quoted Kirby J in Festa v The Queen [2001] HCA 72 and a little earlier in his reasons had said, in determining the obligation:

“I find the identification must stand on its own and be looked at in the context of the circumstances and particulars which the complainant had to view the accused.”

29 If his Honour was speaking solely of the quality of the identification evidence itself as tending towards proof of the guilt of the accused, no objection to be taken to what he said. If, on the other hand, he was intending to go further, then I would disagree. The probative value of weak identification evidence in the context of a trial must in many cases be looked at in the light of other evidence. While weak identification evidence on its own might in some circumstances not be sufficient to place before a jury, if there is other evidence which tends to establish the guilt of the accused then the totality of the evidence should be looked at in many cases before one concluded that the identification evidence should be excluded.

30 I have spoken generally and now is not the occasion for a wholesale dissertation on the topic. But circumstances in which the identification occurs so as to cause doubt on its reliability will often fall into an entirely different situation from occasions where no complaint could be made about the subsequent identification in terms of its reliability or manner or fairness but any weakness is just because of expressions of reservation by the person making the identification.

31 There is one further matter to which I should refer, although it is not strictly necessary for me to do so, as it does not arise directly on the appeal. At pages 5 and 6 of the transcript of 4 February 2002 his Honour indicated he was not going to allow the Crown to adduce evidence of the identity of two persons who were seen apparently with the accused at the relevant time, a time when there was evidence that one of those persons had a knife. Those two persons were identified by the victim as not those who stabbed him.

32 If there is evidence that an offence was committed by A, B or C, and other evidence from a victim that he thinks the person was A but it was certainly not B or C, then it seems to me that evidence is admissible. I say this because it is not clear what course the prosecution may follow having regard to the very unsatisfactory situation where the jury seems to have heard over a period of four days something considerably less than four days evidence and then had the trial adjourned for something of the order of a week so these proceedings could be brought. I would not wish, if the matter is retried before some other judge, that the other judge should think that he should follow the ruling of Bellear DCJ at the pages I have indicated.

33 SULLY J: The orders of the Court will be the orders I have proposed.

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Last Modified: 03/23/2004

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Regina v Michael Filitis [2004] NSWCCA 68

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CITATION:	Regina v Michael Filitis [2004] NSWCCA 68
HEARING DATE(S):	11 February 2004
JUDGMENT DATE:	11 February 2004
JUDGMENT OF:	Sully J at 1; James J at 26; Hulme J at 27
DECISION:	Appeal allowed; Ruling of trial Judge vacated; Matter remitted to District Court
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW)
CASES CITED:	Domican v The Queen (1992) 160 CLR 583 Festa v The Queen [2001] HCA 72
PARTIES :	Regina Michael Filitis
FILE NUMBER(S):	CCA 60041/04
COUNSEL:	B.J. Knox SC - Crown S.J. Odgers SC - Respondent
SOLICITORS:	S. Kavanagh - Crown Murphys Lawyers - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3122
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ