Scriva v The State of Western Australia

[2010] WASCA 89

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SCRIVA -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 89

CORAM:   McLURE P

BUSS JA
JENKINS J

HEARD:   12 MARCH 2010

DELIVERED          :   13 MAY 2010

FILE NO/S:   CACR 117 of 2009

BETWEEN:   ANTONIO SCRIVA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GOETZE DCJ

File No  :IND 253 of 2009

Catchwords:

Criminal law - Appeal against conviction - Unlawfully doing grievous bodily harm - Identification of appellant as the offender - Whether verdict unreasonable, or could not be supported, having regard to the evidence - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr D Grace QC

Respondent:     Mr K M Tavener

Solicitors:

Appellant:     Alana Padmanabham

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

1. McLURE P:  I have had the advantage of reading the reasons for judgment of Buss JA.  I agree with him for the reasons he gives that, having regard to the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the person who struck Mr Donegan.  I agree with the orders proposed by Buss JA.

2. BUSS JA: The appellant was convicted after a trial in the District Court before Goetze DCJ and a jury on one count in an indictment which alleged that on 13 April 2008 he unlawfully did grievous bodily harm to Adam Roger Donegan, contrary to s 297 of the Criminal Code (WA).

3. The trial judge imposed a sentence of 2 years 6 months' immediate imprisonment.  A parole eligibility order was made.

4. The appellant appeals to this court against his conviction.

The ground of appeal

1. The sole ground of appeal alleges that the jury's verdict was unreasonable, or could not be supported, having regard to the evidence adduced at trial.

2. The particulars to the ground read:

   (1)Witness Michael Terranova gave sworn evidence that it was he, and not the Appellant, who hit Adam Donegan, causing him grievous bodily harm;

   (2)Whilst two prosecution witnesses, Kelly Williams and Kristy Deller, positively identified the Appellant as being the person who hit the victim (from a digiboard six months after the incident), three other prosecution witnesses either identified another person from the digiboard as being the assailant (Daniel Bongiorno and Claudia Cirillo), or could not identify positively anyone on the digiboard as being the assailant (Winston Jennings).

3. On 5 November 2009, Wheeler JA ordered that the application for leave to appeal be referred to the hearing of the appeal.

4. The critical issue at the trial was identification; that is, whether the appellant was the person who had assaulted Mr Donegan.

Overview of the prosecution's case

1. The prosecution's case was, in summary, as follows.  On 13 April 2008, Mr Donegan and his friends, Daniel Robert Bongiorno and Kelly Rae Williams, were standing outside the front of the Brisbane Hotel on

Beaufort Street in Highgate.  The hotel had recently closed for the evening.  Earlier, Mr Donegan, Mr Bongiorno, Ms Williams and other friends had been drinking at the Queens Hotel and had then moved to the Brisbane Hotel shortly before closing time.  The appellant had been drinking at the Brisbane Hotel.  Two young women, Claudia Cirillo and Kristy Lee Deller, were at the Brisbane Hotel shortly before closing time.  Two men who were with the appellant followed and made comments to them as they left the hotel.  Ms Cirillo and Ms Deller felt nervous and uncomfortable.  They asked Mr Donegan, Mr Bongiorno and Ms Williams if they could stand with them outside the front of the Brisbane Hotel.  Mr Donegan, Mr Bongiorno and Ms Williams agreed and the two young women stood with them and made casual conversation.  Mr Donegan, Mr Bongiorno and Ms Williams were waiting for Mr Donegan's wife to collect him in her motor vehicle.

1. Soon after the two young women began speaking with Mr Donegan and his friends, the two men who had been harassing the two young women returned with the appellant and some other men.  A scuffle developed.  This was observed by a police officer, Constable Adrian David Kay, who said the appellant was the main aggressor.  Constable Kay, after identifying himself as a police officer (he was in plain clothes), attempted to remove the appellant from the group involved in the scuffle.  The appellant pushed him away and said something to the effect, 'Fuck off copper, I don't care who you are'.  The appellant then returned to the group of men and punched Mr Donegan, who collapsed on the road.  The appellant then left the scene.  He was, however, apprehended soon afterwards by Constable Kay.  Later, the appellant was charged with unlawfully doing grievous bodily harm to Mr Donegan. 

The digiboard

1. Police officers involved with the investigation of the assault on Mr Donegan prepared a digiboard containing 12 images.  The appellant's image was number 11.  The digiboard was shown in October 2008 to various persons who had witnessed the assault.

The prosecution witnesses

1. The prosecutor called evidence from the following witnesses, amongst others:

   (a)Mr Donegan (the complainant);

   (b)Mr Bongiorno (the complainant's friend);

   (c)Ms Williams (the complainant's friend);

   (d)Ms Cirillo (one of the young women who asked to stand with Mr Donegan and his friends);

   (e)Ms Deller (the other young woman who asked to stand with Mr Donegan and his friends);

   (f)Winston Bernard Jennings (a taxi driver);

   (g)Constable Kay (the police officer); and

   (h)Sergeant Brian Richard Beck (the investigating police officer).

The defence witnesses

1. The appellant did not give evidence in his own defence at the trial. 

2. His counsel did, however, call evidence from Filippo Pizzata (who said he witnessed another person, not the appellant, punch Mr Donegan) and Michael Terranova (who claimed that he had punched Mr Donegan).

The substance of the identification evidence

1. I will now examine the substance of the identification evidence given by the witnesses I have mentioned.

Adam Roger Donegan

1. Mr Donegan gave evidence that he arrived at the Queens Hotel in Mount Lawley around 6.00 pm (ts 43).  He was meeting friends for drinks.  Some of them were leaving to travel overseas (ts 42).  Mr Donegan said he drank two beers.  At around 9.30 pm ‑ 10.00 pm the group decided to leave the Queens (ts 44).  Mr Donegan telephoned his wife and asked her to collect him from the Brisbane Hotel.  Two friends, Mr Bongiorno and Ms Williams, stayed with Mr Donegan while he waited for his wife.  Mr Donegan said that while they were waiting outside the Brisbane Hotel they were approached by two girls who said they were being harassed in the car park and asked if they could stand with them (ts 46).  Soon after, a man jumped over a wall and started yelling things in a foreign language that Mr Donegan thought was Italian (ts 46).  Mr Donegan asked one of the girls if this was one of the men who were bothering them, and she confirmed it was.  Mr Donegan said he told the girls 'to stay with us and hopefully he'll move on, pass on' (ts 46).  The man who Mr Donegan described as average height, shaven head and 'sort of Italian … looking' jumped back over the wall (ts 47).  Mr Donegan then noticed what he thought was an unmarked police car pull up next to him, and a man in plain clothes get out and begin scanning the area.  A few minutes later the 'Italian guy', and some other men, jumped over the wall again (ts 47).  The 'Italian guy' approached the group and started yelling.  The men surrounded the group.  Mr Donegan said two men began pushing into him, and grabbing him and Mr Bongiorno.  He identified the two men as the 'Italian guy' who had first confronted him and a 'shorter, stocky, short haired guy' (ts 48).  Mr Donegan gave evidence that he was attempting to defuse the situation and he did not understand what the men were saying.  He said the 'short, stocky' man was being the most physical, grabbing his shirt and pulling him by the collar (ts 48 ‑ 49).  Mr Donegan said the next thing he felt and remembered was a quick whack to the left side of his cheek, and then waking up in hospital (ts 50). He said he '100 per cent didn't see the exact blow', though he saw the short, stocky man with shaven hair come front on to him and pull him down, and that was when the punch happened (ts 50). 

2. Mr Donegan denied in cross‑examination that he had raised his fists to the first man who yelled at him, or pushed anyone.  Mr Bongiorno was attempting to stop the second man from grabbing and pulling Mr Donegan's shirt.  Mr Donegan did not punch the second man (the short, stocky man), and did not see Mr Bongiorno punch him.  He did not raise his fists at all.  His shirt was ripped and his head was pulled down, and he did not see who hit him (ts 64).  When asked in cross‑examination whether he saw a tall, skinnier man with dark or olive skin come running in and punch him, Mr Donegan said 'No' (ts 64).

3. Mr Donegan was not shown the digiboard.

Daniel Robert Bongiorno

1. Mr Bongiorno gave evidence that he arrived at the Queens Hotel at about 3.30 pm and Mr Donegan arrived at about '6-ish' (ts 72).  Mr Bongiorno said that while at the Queens he drank about eight beers and Mr Donegan had about five beers (ts 72).  He said he was unsure why they went from the Queens to the Brisbane Hotel.  At the Brisbane Hotel, he had one drink inside and then went outside and stood with Mr Donegan and Ms Williams (ts 73).  He gave evidence that while they were waiting there, two young girls came and asked to stand with them because they were being harassed by a couple of men (ts 73).  He said two men then came and started abusing them, and saying that 'we didn't know them' and that 'we were full of shit' (ts 73).  He described the two men as Italian or European looking, both 'fairly tall', one with short hair and the other with longer hair (ts 73).  Mr Bongiorno knew the men were speaking Italian because he recognised a few of the words they spoke (ts 74).  The two men walked around a corner and then returned a little later with about five other men (ts 74).  Mr Bongiorno said a taller man and a short, stocky man were 'having a go', particularly at Mr Donegan (ts 74 ‑ 75).  He said he grabbed the short, stocky man and got him off Mr Donegan, and then he grabbed the taller man (ts 74 ‑ 75).  As he did this, he saw the short, stocky man hit Mr Donegan in the side of the face (ts 75).  He said Mr Donegan landed 'sort of flat on his back and his head hit on ‑ hit the road pretty hard' (ts 76). 

2. Mr Bongiorno gave evidence that the group of men 'sort of surrounded them', two of them in front ‑ one taller man and a 'short stocky fella'.  He was uncertain whether the 'short stocky fella' was the same stocky man as during the first interaction, although in his earlier written statement to the police he said they were the same person (ts 82 ‑ 83).  Both of them went to grab Mr Donegan, then Mr Bongiorno went to grab the taller man.  An unmarked police vehicle arrived, and a person alighted from the vehicle, but merely stood there.  According to Mr Bongiorno, 'it just happened real quick from thereon'.  The two men grabbed Mr Donegan by the shirt, Mr Bongiorno grabbed the 'short stocky fella' and got him off Mr Donegan, then he and the 'short stocky fella' had 'a bit of scruff'.  After they let go of each other, Mr Bongiorno went to grab the taller man and then the 'short stocky fella' punched Mr Donegan in the face.  Mr Bongiorno saw the punch connect with Mr Donegan (ts 75 ‑ 76).  During cross‑examination, Mr Bongiorno said that the 'short stocky fella' had very short hair (ts 85).

3. Mr Bongiorno said he was '100% sure' he did not see a taller man with short dark hair come in and punch Mr Donegan (ts 90).

4. Mr Bongiorno was shown the digiboard on 30 October 2008.  He selected image no 4 as the assailant.  This was not the appellant.

Kelly Rae Williams

1. Ms Williams said that she arrived at the Queens Hotel at about 2.30 pm (ts 92).  She had only one beer at about 3.00 pm because she was driving (ts 93).  She gave evidence that she thought Mr Donegan arrived at the Queens Hotel at about 3.00 pm (ts 93).  She said the group decided to go to the Brisbane Hotel for 'something different' (ts 93).  Ms Williams said that when they arrived at the Brisbane, it was 'just about closing' (ts 93).  They went in briefly, for about 20 minutes, and then left again (ts 93).  She did not recall anyone having a drink at the Brisbane (ts 93).  She gave evidence that she was waiting with Mr Donegan and Mr Bongiorno for Mr Donegan's wife to pick him up when two girls approached and asked if they could stand with them because two men were harassing them (ts 94).  Ms Williams said the two men harassing them were standing or walking about two metres behind them (ts 94).  She described one of the men as having dark hair, wearing jeans, a black shirt and about 175 cm ‑ 180 cm tall (ts 94).  The other man had very short hair, was wearing a white long sleeved shirt, that was 'sort of rolled up', and jeans, and was about 170 cm tall (ts 94).  She said the dark‑haired man came up to Mr Bongiorno and said, 'You think we're fools', and commenced talking in what she presumed was Italian (ts 94 ‑ 95).  Ms Williams said that she tried to defuse the situation by saying, 'Look you know, we're not here for any trouble' (ts 95).  She then said the two men walked off and she thought they had gone away (ts 95).  She asked the girls if they needed a lift but they said they would be fine (ts 95).  The two men who had been harassing the girls then came out from a car park behind the Brisbane, with about five other men (ts 95).  Ms Williams said a 'short, stocky man' pushed past her and grabbed Mr Donegan by the scruff of his shirt (ts 96).  She said the 'short, stocky man' started calling Mr Donegan an 'effing racist' (ts 96).  Ms Williams described the 'short, stocky man' as very short, may be 160 cm, very stocky with very short hair, almost shaven, and very olive skin (ts 96).  She said he was wearing jeans with 'a dark black T-shirt' (ts 96).  Ms Williams said that at about this time an unmarked police car arrived.  A police officer got out, 'flashed me his badge', and asked what was going on (ts 98). She saw the policeman try and pull the stocky man out of the group.  The stocky man pushed the policeman into his car and said 'I don't give an eff who you are' (ts 98).  The policeman then pulled his taser out, went to the police car, turned on his emergency lights and called for back up (ts 98).  Ms Williams said the stocky man then walked up to Mr Donegan and punched him in the face (ts 99).  She saw Mr Donegan's eyes roll back into his head, and him fall to the ground (ts 99).  She said the other men ran as soon as the stocky man hit Mr Donegan (ts 99).

2. Ms Williams said she did not see a 'taller, skinnier Italian looking male' come in and punch Mr Donegan.  She said the man who punched Mr Donegan was 'a very short man, very stocky' and that 'you couldn't mistake him' (ts 117).

3. On 24 October 2008, Ms Williams was shown the digiboard.  She selected image no 11, being the appellant, as the person who had assaulted Mr Donegan.

Claudia Cirillo

1. Ms Cirillo was one of the two young women who asked Mr Donegan and his friends if she could stand with them because she was concerned about two men from the Brisbane Hotel who were making them feel uncomfortable by following them.  Ms Cirillo gave evidence that she had met the two men in the Brisbane Hotel very briefly before the incident (ts 124).  The two men were celebrating and gave her and Ms Deller some champagne (ts 124).  The conversation between them lasted only a few minutes, as the hotel was closing and people were being ushered out (ts 124).

2. Ms Cirillo said that the two men made them feel uncomfortable by laughing and talking quite closely behind them (ts 125).  This is when they asked to join Mr Donegan's group.  She said the two men that were following them went up to the men they were standing with (Mr Donegan and Mr Bongiorno), and started swearing and looked really angry (ts 125).  Ms Cirillo said she knew they were speaking Italian, because of her family background.  She can 'slightly understand' Italian (ts 125).  The men left and Ms Cirillo thought they were gone, however they returned a few minutes later with another four or six men (ts 125).  They surrounded her group.  Ms Cirillo said that on this occasion it was a 'short, bald, stocky built man' that was doing most of the yelling (ts 126).  She said it was this man who punched the taller man (Mr Donegan) and it was a 'really loud horrible noise' (ts 126).  She could not recall what the assailant was wearing, apart from a recollection that he was wearing dark jeans (ts128).  She guessed his age at between 35 ‑ 45 years (ts 128).  She also said that he had 'light hair, even though it was really short and bald, it looked either grey or white or fair' (ts 128).

3. On 2 October 2008, Ms Cirillo was shown the digiboard.  She selected image no 12.  This was not the appellant.

Kristy Lee Deller

1. Ms Deller was the other young woman who asked to stand with Mr Donegan and his friends.  She gave evidence that as everyone was being ushered out of the Brisbane Hotel at closing time she became temporarily separated from her friend, Ms Cirillo.  She said that during this time one of the men, with whom she and Ms Cirillo had had a glass of champagne and a brief conversation in the bar, asked for her telephone number.  She refused (ts 142).  She said he asked again and this time a bouncer who was standing next to her asked if she was okay, and she said, 'Yeah, no, I'm fine, I'm fine, I'm just going to get on the phone and call my friend and find out where she is' (ts 142).  She called Ms Cirillo and they arranged to meet between the hotel and the car park (ts 142).  While she was waiting for her friend at the designated meeting place, the man who had asked for her telephone number came over and tried to grab her face to kiss her (ts 142).  She put her hand on his chest 'to say to back off' (ts 142).  Ms Deller became reunited with Ms Cirillo and they began to walk to the lit area at the front of the hotel (ts 143 ‑ 144).  As they did, the men began following them.  She felt nervous (ts 144).  Ms Deller then saw two men and a girl (Mr Donegan, Mr Bongiorno and Ms Williams) standing at the front of the hotel (ts 144).  They seemed pleasant and appeared to be waiting for a taxi (ts 144).  She and Ms Cirillo asked if they could stand with them because the men who had been following them were giving them the 'shivers' (ts 144).  She said that soon after they struck up a casual conversation with Mr Donegan's group, two Italian men (she presumed the two that had been following them) walked up and starting cursing at Mr Donegan and Mr Bongiorno in Italian.  She said the two Italian men were 'getting fired up' and 'getting in the faces' of Mr Donegan and Mr Bongiorno, who were saying, 'We don't know what you're talking about mate' (ts 145).  She said the two Italian men then walked back into the car park.  A few minutes later, six men came out of the car park and surrounded them (ts 145).  Ms Deller said that she particularly remembered a 'short, stocky-looking guy, getting right up close to the taller man' (Mr Donegan) (ts 145).  She said that he frightened her because 'he looked quite strong and I knew he was mad for whatever reason' (ts 145).  Ms Deller said that the smaller one of the two men who had been standing with them (Mr Bongiorno) seemed to be trying to 'break it up a little bit' (ts 146).  Although she could not be 100% sure, she thought the shirt of the taller of the two men who had been standing with them (Mr Donegan) was ripped (ts 147).  She said it was then that she saw a punch come from 'the short, stocky man' (ts 147).  It happened quickly, but 'I felt like the fall was in slow motion, because the crack was really loud, and he looked like he'd passed out before he'd hit the floor' (ts 147).  Ms Deller said the punch landed on his face in the jaw area (ts 148).  She gave a further description of the man who threw the punch.  Ms Deller described him as having a 'shaved, bald head, quite short, very strong looking' and with 'light skin' (ts 149).  She said he looked red on the night because he was angry, and he was probably in his mid‑30s (ts 149).

1. On 2 October 2008, Ms Deller was shown the digiboard.  First, she selected image no 11, being the appellant, as the assailant.  However, while she was looking at the digiboard she mentioned that image no 4 stood out to her and also, possibly, image no 2.  She settled on image no 11.  It was put to Ms Deller in cross‑examination that she could not be 100% sure that the person she had identified at image no 11 was the person who threw the punch.  She responded, 'Yes, I pretty much can be' (ts 155).  She conceded, a little later, however, that in her written statement to the police she said:

   It looked like the short, stocky guy threw the punch but I can't be 100% sure.  There were about four guys in the same area (ts 156).

   She added, however, at the trial that she believed the man she identified at image no 11 was the person who threw the punch (ts 156).

Winston Bernard Jennings

1. Mr Jennings was working as a taxi driver on the night in question.  He gave evidence that while he was outside his taxi at the Brisbane Hotel, waiting for a passenger, his attention was attracted to some pushing and shoving near the front of the hotel (ts 160 ‑ 161).  He said it involved seven to 10 males and females and began on the footpath, but then spilled onto the road (ts 161).  Mr Jennings was about 10 to 12 metres away (ts 162).  He then saw an unmarked police car drive up, and an officer alight from the vehicle on the left hand side (ts 162).  Mr Jennings said he noticed, in particular, a man who was 'bald and short in stature' because he was the most aggressive in the group (ts 162).  He said when the police officer got out of his vehicle, the officer said 'Calm down, calm down' and identified himself as a police officer (ts 163).  Mr Jennings then said that a man (later identified as the same short, stocky, aggressive man) said, 'Fuck off, copper.  Fuck off, copper', and pushed or fended him to the side (ts 163).  He said the push was forceful enough that the police officer fell backwards (ts 164).  The officer retreated and went back to his vehicle (ts 164).  Mr Jennings then saw a man punch another man, face on, with his right hand (ts 164).  He said the man who was punched fell to the ground and did not move.  Mr Jennings was not prepared to identify under the oath the person who threw the punch because he could not be 100% certain of his identity (ts 166).

2. On 3 October 2008, Mr Jennings was shown the digiboard.  He did not select any image.  He explained at the trial that he was unable to make a selection, 'to a positive nature' (ts 168).

Adrian David Kay

1. Constable Kay was conducting patrols on the night in question.  He was working with First Class Constable Adrian Smith, who returned to England before the trial.  Constable Kay gave evidence that his attention was directed to a disturbance at the front of the Brisbane Hotel.  He stopped his unmarked police vehicle and alighted.  Constable Kay said he 'noticed the main instigator ‑ it appeared the main instigator, the person I know to be Antonio Scriva [the appellant], and he was pushing and shoving another male, involved in the incident' (ts 172).  He said the appellant was wearing 'a black shirt with a yellow ‑ yellow striping along the shoulders', and jeans (ts 172).  He said the appellant looked 'quite angry, aggressive.  Just pushing and shoving the other male' (ts 173).  Constable Kay described the appellant on the night in question as bald, quite stocky and shorter than himself (ts 173).  He said that after identifying himself, he grabbed the appellant by his collar.  The appellant then pushed him back into the police vehicle and said, 'I don't give a fuck who you are' (ts 173).  Constable Kay said he put up his left hand to create distance between himself and the appellant.  The appellant slapped his hand away with an open palm (ts 173).  Constable Kay drew his taser and the appellant then retreated back into the altercation (ts 174).  Constable Kay returned to the police vehicle where his partner was calling for urgent back‑up (ts 174).  He said that when he turned away from the altercation to talk to his partner he heard a large cracking sound (ts 174).  He turned back to see the victim, Mr Donegan, fall to the ground and hit his head on the pavement (ts 174).  He did not see what caused Mr Donegan to fall to the ground (ts 174).  Constable Kay said he saw the appellant standing about one to two metres away, and that the appellant was standing in a semi‑fighting stance, looking down at Mr Donegan (ts 174).  He did not, however, have his fists up (ts 174).  Constable Kay said he was then approached by Mr Jennings (the taxi driver) who told him something, and as a result he and his partner went into the rear of the car park at the Brisbane Hotel and arrested the appellant (ts 175).  Constable Kay then took the appellant to the police station and conducted a formal record of interview (GAB 20 ‑ 53).  During the interview the appellant denied hitting Mr Donegan.

Sergeant Brian Richard Beck

1. Sergeant Beck was the investigating officer for the incident.  He gave evidence that he spoke with the appellant after the event.  The appellant told him that Michael Terranova threw the punch (ts 187).  Sergeant Beck spoke with Mr Terranova.  He described Mr Terranova as 170 cm ‑ 175 cm in height, of Italian descent, of medium to stocky build, with short but dark hair, and dark features (ts 186).

2. Sergeant Beck produced the shirt that the appellant was wearing on the evening in question.  It was tendered as exhibit 13 (ts 183 ‑ 185).

Filippo Pizzata

1. Mr Pizzata gave evidence that he was at the Brisbane Hotel on 13 April 2008.  He said the first time he saw the appellant on that evening (who he did not know well, and called Joe) was at the front of the Brisbane Hotel during a scuffle (ts 189‑ 190).  He said it appeared the appellant was trying to defuse the situation (ts 190).  According to Mr Pizzata, an unknown man ran in and hit Mr Donegan (ts 190).  He said the unknown man was tall, but not taller than himself (he is about six foot three inches), shortish hair, Lebanese in appearance, with dark or olive skin (ts 190).  Mr Pizzata could recall very few details from the night.  He gave evidence that he did not hear any Italian being spoken.  He also gave evidence in cross‑examination that he did not see a police car, or a police officer get out of a car.  Mr Pizzata confirmed his prior criminal history for possession of drugs with intent to sell or supply, and possession of a weapon with intent to cause fear (ts 203).  When it was put to him that he was endeavouring to protect the appellant for some reason, Mr Pizzata said that he had 'no obligation to this man' and 'no motive to lie for him' (ts 210).

Michael Terranova

1. Mr Terranova was granted a certificate under s 11 of the Evidence Act 1906 (WA) before giving his evidence in relation to the incident (ts 219). He said that he arrived at the Brisbane Hotel at about 6.00 pm with Enzo Gaudio and the appellant (in the appellant's vehicle) (ts 223). He said he was wearing a white T‑shirt (ts 223). When it was closing time, he went back to the car with Mr Gaudio and waited for the appellant (ts 223). He said Cosimo Petrolo approached their car and said, 'Boys, can you come back inside the Brisbane with me? To ‑ I got to go and find someone' (ts 224). He said they followed Mr Petrolo and saw a scuffle outside the front of the hotel (ts 224). The only person he could identify in the scuffle was the appellant, who was in trouble, getting his throat held (ts 224 ‑ 225). Mr Terranova said he went in to break it up (ts 225). Someone hit him in the back of his neck, so he turned around and hit with a closed right fist the person who he believed was responsible (ts 225). He saw someone stumbling backwards, and he then ran away because he was scared for his safety (ts 225). He could not describe the man who he hit, apart from saying he was not small (ts 225). He said he did not know a man called Filippo Pizzata (ts 226). Mr Terranova said that he spoke to Sergeant Beck 10 months after the incident. He told Sergeant Beck that he had never been in an argument, and that he did not know what he was on about (ts 227). According to Mr Terranova, he did not tell the truth to Sergeant Beck because he was scared and did not want to get into trouble (ts 229). He said that he was telling the truth now because, 'I don't think [the appellant] should take the rap for something that he didn't do. I couldn't live with myself' (ts 230). Mr Terranova admitted in cross‑examination that he had lied to the police repeatedly about material issues in his earlier formal statement (ts 239, 241 ‑ 244). He also said in cross‑examination that he did not hear any Italian being spoken and he did not run up to the scuffle. He said he did not see a police car, flashing lights or a police officer (ts 256). He said he was telling people to relax and was trying to separate people. He said he did not find out until October 2008 that the appellant had been charged with assault. Mr Terranova said he decided to come forward about two weeks before the trial. He went to see a lawyer, Mr Manera (ts 238).

The ground of appeal:  applicable legal principles

1. By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

2. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision:

   Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does  so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

   See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

3. In M, McHugh J held that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction (523).  In Jones, Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just (450).

4. In M, Mason CJ, Deane, Dawson and Toohey JJ held that the test for an unsafe or unsatisfactory verdict was whether the court thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).

   In answering that question, their Honours said:

   [T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations (493).

   Their Honours explained the application of the test:

   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 ‑ 495).  (footnotes omitted)

   See also Jones, 450 ‑ 451. The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory:  Jones, 452; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].

5. In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (with whom Gleeson CJ & Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

   [W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 ‑ 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

   See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

The merits of the ground of appeal

1. My review of the trial record does not require the conclusion that the jury should have entertained a doubt as to whether the appellant was the person who had assaulted Mr Donegan.  This review has not raised a doubt in my mind.  I am satisfied that the jury's verdict was not unreasonable.  The verdict is supported by evidence the jury was entitled to accept. 

2. These opinions are based on the following:

   (a)It was reasonably open to the jury to reject Mr Terranova's evidence to the effect that he punched Mr Donegan.  It is apparent from the jury's verdict that they did not consider Mr Terranova's evidence to be credible or, alternatively, sufficiently cogent to raise a doubt on the critical issue of identification. 

   (b)Mr Terranova's evidence lacked credibility for several reasons.  First, he admitted lying to the police repeatedly about material issues in his earlier formal statement (ts 239, 241 ‑ 244).  Secondly, his account at the trial was materially inconsistent with the observations of other witnesses; for example, he saw the appellant 'in trouble' with his throat held, as three or four men were picking on him (ts 224, 232); he turned around and hit someone (he did not see who) and the person he hit stumbled backwards (ts 225); he fled at once not knowing where the appellant, whom he had sought to assist, was (ts 234); he heard no Italian being spoken (ts 231, 232); he did not see a police vehicle (ts 257); he went to the Brisbane Hotel on the night in question with the appellant and Mr Gaudio, whereas the appellant in his formal record of interview with the police said he went to the hotel with Mr Gaudio alone, and made no mention of Mr Terranova (GAB 26 ‑ 27).

   (c)Ms Williams positively identified the appellant as the offender from the digiboard, and gave evidence consistent with this identification.  Her identification of the appellant was supported by Constable Kay's evidence.  Ms Williams gave evidence that the offender was very short and very stocky (ts 96, 117).  She elaborated that he was very short, perhaps 160 cm, very stocky with very short hair, almost shaven, and very olive skin (ts 96).  She gave evidence that the police officer (who was, without doubt, Constable Kay) tried to grab the stocky man, who pushed the officer into the police car and then punched Mr Donegan (ts 98, 99, 108 ‑ 109, 113, 114, 116).

   (d)Ms Williams said in evidence that she consumed only one beer on the afternoon and evening in question because she was driving (ts 93).  She had the beer at the Queens Hotel at about 3.00 pm (ts 93).  This evidence was unchallenged.  Her powers of observation were therefore unaffected by the consumption of alcohol.

   (e)I have viewed the video record of Ms Williams' positive identification of the appellant as the offender from the digiboard.  This identification was made unequivocally after studying the board for about 40 seconds.

   (f)Ms Deller positively identified the appellant as the offender from the digiboard, even though her identification, as revealed by the video record, was less positive than Ms Williams' identification.  Ms Deller gave evidence consistent with this identification (ts 147, 148).  She described the assailant as having a shaved bald head, quite short, very strong looking and in his mid‑thirties (ts 149).

   (g)Constable Kay saw the appellant, whom he regarded as the main instigator in the scuffle, pushing and shoving another man (ts 172).  Constable Kay dragged the appellant backwards, but the appellant pushed him back into the police vehicle (ts 173).  The appellant returned back into the altercation (ts 174).  Constable Kay then heard a cracking sound and saw Mr Donegan on the ground with the appellant about one to two metres away, in a semi‑fighting stance (although not with his fists up) looking down at Mr Donegan (ts 173 ‑ 174).  Constable Kay did not, however, see the punch being inflicted.  His evidence was, relevantly, uncontradicted.

   (h)The evidence of the taxi driver, Mr Jennings, supported Constable Kay's evidence to a material extent.  Mr Jennings gave a similar description of the offender.  He saw the punch being inflicted, but was not willing to make an identification on oath (ts 170).

   (i)Although Mr Bongiorno and Ms Cirillo positively identified another person from the digiboard (not the appellant) as the offender, each of them gave a description of the assailant in their evidence at the trial which matched the appellant, but did not match Mr Terranova.  The jury had photographs of the appellant taken contemporaneously with the commission of the offence.  Mr Bongiorno described the assailant as 'short, stocky' (ts 75, 76), and Ms Cirillo described the assailant as a 'short, stocky built man' aged 35 ‑ 45 (ts 126, 128).

   (j)It was reasonably open to the jury to reject Mr Pizzata's evidence to the effect that an unknown man ran in and hit Mr Donegan.  It is apparent from the jury's verdict that they did not consider Mr Pizzata's evidence to be credible or, alternatively, sufficiently cogent to raise a doubt on the critical issue of identification.

   (k)Mr Pizzata gave an account that was radically inconsistent with the evidence of the other witnesses.  He asserted that an 'unknown bloke', who was not the appellant, being taller than average, athletic, of Lebanese appearance and with short hair, ran in and hit the victim (ts 190, 206).  He heard no Italian spoken (ts 208), and he did not see a police car (ts 209).

   (l)At the trial, eight photographs of the appellant taken on the evening in question were tendered in evidence (GAB 3 ‑ 10).  They depict, relevantly, a very short, very stocky man who is either bald or has very closely cropped hair.  He appears from the photographs to be aged about 35 years.

(m)The shirt worn by the appellant when the offence was committed was tendered in evidence through Sergeant Beck (ts 183 ‑ 185).  It was not shown to any of the identification witnesses.  I have examined the shirt.  It is a dark blue T-shirt with long sleeves.  On the top of the sleeves and on the shoulders are a broad yellow stripe bordered by two thin white stripes.  On the chest of the T-shirt there is lettering of a modest size which reads, 'West Coast Eagles FC authentic apparel'.  Constable Kay's evidence that the appellant was wearing 'a black shirt with a yellow ‑ yellow striping along the shoulders' (ts 172) broadly approximates the general appearance of the T-shirt tendered in evidence.  The other identification witnesses did not accurately describe the T-shirt, but I think this discrepancy carries little weight.  The apparent focus of the identification witnesses was, understandably, on the offender's distinctive facial appearance and build.  They had a strong recollection that Mr Donegan's assailant was a short, bald, stocky man who was very angry.  Although a photograph of Mr Petrolo taken on the evening in question and tendered in evidence (GAB 14) depicts a man who is short and with a receding hairline, there are obvious contrasts between the appellant and him.  Mr Petrolo has short dark hair and I would not describe him as stocky.  Mr Petrolo did not give evidence at the trial.  There were also obvious contrasts between the appellant and Mr Terranova and between the appellant and the person described by Mr Pizzata.

1. In my opinion, when all of the evidence relating to the critical issue of identification is evaluated and weighed, the only conclusion reasonably open is that the appellant was the offender.  The appellant has not established that the jury should have entertained a doubt as to whether he was the assailant who struck Mr Donegan.  The jury were entitled to convict.

2. The ground of appeal fails.

Conclusion

1. I would refuse leave to appeal and dismiss the appeal.

2. JENKINS J:  I agree with Buss JA.