Toki v The State of Western Australia
[2013] WASCA 214
•17 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TOKI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 214
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 24 JULY 2013
DELIVERED : 17 SEPTEMBER 2013
FILE NO/S: CACR 102 of 2013
BETWEEN: JAKE TOKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BOWDEN DCJ
File No :IND 1236 of 2012
Catchwords:
Criminal law - Appeal against conviction - Detaining with intent to gain a benefit - Direction to jury on recognition and identification of accused
Legislation:
Crminal Code (WA), s 332(2)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Frederick Butafa Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against conviction.
The appellant and two others, Christopher Tumatanui Raharuhi and John William Tarre Raharuhi, were charged on indictment in the District Court with one count of detaining Dane Alfred Daniel with intent to gain a benefit contrary to s 332(2)(a) of the Criminal Code (WA) (count 1) and one count of unlawfully assaulting Mr Daniel and doing him bodily harm contrary to s 317 of the Criminal Code (count 2). The appellant and his co‑offenders were each convicted after trial of count 1 and acquitted of count 2. The co‑offenders were convicted of the alternate offence of common assault.
The proposed ground of appeal is in these terms:
There was a miscarriage of justice when the learned trial judge failed to adequately direct the jury concerning evidence as to recognition and identification;
Particulars:
1.1His Honour failed to adequately isolate and identify for the jury, as he was required to, the weaknesses in the evidence of Dane Alfred Daniel relating to evidence of his identification of the appellant as the offender.
1.2His Honour failed to adequately isolate and identify for the jury, as he was required to, the weaknesses in the evidence of Dane Alfred Daniel relating to evidence of his recognition of the appellant as the offender.
For the reasons that follow, the proposed ground has no reasonable prospects of succeeding. Accordingly, the appeal must be taken to be dismissed: s 27(1), s 27(2) and s 27(3) of the Criminal Appeals Act2004 (WA).
The State's case
The complainant was a user of illicit drugs and from time to time sold drugs to others. The complainant became involved in a conflict with a person referred to in the trial as Alex. Alex sought money from the
complainant in recompense for the complainant 'talking about him' (ts 60) and threatened the complainant that his contacts at the Rebels (an outlaw motorcycle gang) would seek out the complainant.
On 3 April 2012, the complainant was at the residence of Mr Marshall Ka Ke. He was under the influence of drugs. The State's case was that the appellant and Christopher Raharuhi entered those premises. Upon doing so, Christopher Raharuhi aggressively demanded money from the complainant. A short time later, John Raharuhi entered the premises by kicking the door open. He was carrying a baseball bat. Very soon after this, the complainant left Mr Ka Ke's premises, against his will, in the company of the appellant and the two co‑accused. After the complainant left the premises, he was assaulted by both Christopher and John Raharuhi. The complainant was then driven to a nearby automatic teller machine. The intention was for the complainant to withdraw money from the machine, but this proved impossible as he did not have his wallet. The complainant was then taken to a dead‑end street where he was further assaulted and a demand was made for the payment of $2,000. The complainant was then returned to Mr Ka Ke's house.
The complainant testified that he had some knowledge of the appellant. He said he knew who the appellant was and what he looked like, although he had never really spoken to him. The complainant described the person he recognised as the appellant as being of Caucasian background and that he had tattoos on his neck and hands. There was no issue at trial that the appellant had these features and that the tattoo on his neck was distinctive.
Although defence counsel, in cross‑examination of the complainant, referred to the appellant as 'the person that you describe as Jake Toki' and 'this person that you call Jake Toki', it was never put to the complainant that he had wrongly identified the appellant, or that the circumstances were such that he could not have identified the appellant, or that his state of intoxication was such as to have impaired his ability to identify the appellant. Instead, it was put to the complainant that the appellant had not said anything or touched or threatened the complainant. The complainant accepted these propositions, although he added that he was scared of him (ts 81).
Mr Ka Ke testified that he and the appellant were friends. He testified that the appellant was one of the offenders.
Defence counsel commenced his cross‑examination of Mr Ka Ke with the following exchange:
Mr Butafa: Mr Ka Ke, you know [the appellant] really well, don't you?
Mr Ka Ke: Yes.
Mr Butafa: He is your good mate, isn't he?
Mr Ka Ke: Yes (ts 142).
It was not suggested that his recognition of the appellant as one of the three men who took the complainant on the night was untruthful, mistaken or somehow wrong. To the contrary, the basis of the cross‑examination was that the appellant was present. Defence counsel's cross‑examination was directed to two themes. First, that the appellant had gone to Mr Ka Ke's house simply to smoke cannabis. Second, that the appellant had not verbally threatened the complainant or physically assaulted him.
The video surveillance evidence
As it turned out, a video surveillance camera captured a good deal of what occurred inside Mr Ka Ke's house. A recording of the relevant events was tendered as part of the State's case and played to the jury (exhibit 2). The footage shows three men entering the house, the third a short time after the first two. The first man who entered the house was a Caucasian man with a distinctive tattoo on the left side of his neck. Both the complainant and Mr Ka Ke, when shown the recording, recognised that person as the appellant. Some of the action occurred off camera, but what can be clearly heard are voices, in a very aggressive and threatening tone, demanding money from the complainant. The complainant is then seen to leave the house in the company of the three men, including the appellant.
The competing cases
Neither the appellant nor his co‑accused gave or adduced any evidence in their defence. Further, the appellant did not participate in an interview with the investigating police officers.
It is evident from the way the co‑accused ran their cases that there was a real issue in respect of identity. However, there was no such issue so far as the appellant was concerned.
The State's case was that the appellant was either a principal offender or an accessory. The prosecutor addressed the jury on the question of identity in respect of all three accused. He submitted that the question of identity in respect of the appellant was easy to resolve having regard to, amongst other things, the surveillance footage, the appellant's distinctive neck tattoo (which was visible to the jury during the course of the trial), and the evidence of both the complainant and Mr Ka Ke.
In his closing address, defence counsel made no submission or suggestion that the appellant had been incorrectly identified or recognised by either the complainant or Mr Ka Ke. Consistently with the way that he had cross‑examined those witnesses, the defence case was that the appellant, while present, had not detained or assaulted the complainant. Defence counsel gave particular emphasis to his cross‑examination of the complainant to this effect.
The trial judge's summing up
As the appellant's co‑accused had put the element of identity in issue, it was necessary for his Honour to give directions, in their cases, in accordance with Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. It is unnecessary to set out his Honour's direction in detail. It is sufficient to observe that his Honour's directions were careful and detailed and in accordance with Domican. Those directions included warnings about mistaken identification from the surveillance footage and mistaken recognition.
No direction as to identification or recognition was required in the appellant's case because there was no dispute as to his identity. Nevertheless, his Honour did not restrict his directions on these subjects to the appellant's co‑accused. His Honour's directions applied to the appellant's case. The appellant's trial counsel understandably took no exception to the summing up.
It is impossible to see how any miscarriage of justice could have been caused to the appellant by his Honour's directions as to identification or recognition, when neither matter was in issue in the appellant's case. The directions that were given were, in any event, correct.
Conclusions and orders
The proposed ground of appeal is completely misconceived. It ignores the fact that the appellant's case was run on the basis that he was present at Mr Ka Ke's house. The ground is without merit and has no reasonable prospect of succeeding. The appeal must be dismissed.
The orders that I would make are:
1.Leave to appeal is refused.
2.The appeal is dismissed.
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