Judgment Suppressed [2007] WASCA 259 (13 November 2007)

Court of Appeal (WA)|2007-11-23|Before: Martin CJ

1 JUDGMENT OF THE COURT: The State of Western Australia appeals from a decision of the trial judge acquitting Johnny Montani of the charge of wilfully murdering Michael McKrill, also known as Kevin Ashley Woodhouse, on the ground that Mr Montani had no case to answer (see The State of Western Australia v Montani [2007] WASC 110). The state is given a right of appeal (subject to the grant of leave) from such a judgment by way of s 24(2)(e) of the Criminal Appeals Act 2004 (WA).

2 After hearing argument, the court announced its unanimous decision that the appeal should be allowed, and indicated that we would publish our reasons for that view later. These are those reasons.

4 The trial judge observed that there was an abundance of evidence that Mr Woodhouse had been shot four times in rapid succession at around 4.50 am at the premises of the Bayswater Waves Recreation Centre in Embleton (at [2]). He also observed that there was evidence that the weapon used to murder Mr Woodhouse was a revolver capable of firing .357 ammunition.

5 His Honour then reviewed the authorities dealing with the principles to be applied to determine whether an accused person has a case to answer. His Honour referred to the decision in Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 103 A Crim R 312; (1998) 19 WAR 482 which is often cited in this jurisdiction as a convenient source of the principles to be applied. His Honour extracted the following passage from the judgment in that case (at 489 ‑ 490):

[W]here a no case to answer submission is made by an accused in reply to a prosecution case, the trial judge is required to ask whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused.

6 As the case against Mr Montani was a circumstantial case, his Honour cited the decision of King CJ in R v Bilick & Starke (1984) 36 SASR 321; (1984) 11 A Crim R 452 at 467, for the proposition that in such a case, the test to be applied to determine whether there is a case to answer is:

On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?

7 The trial judge then referred to observations recently made by the High Court with respect to circumstantial evidence in The Queen v Hillier [2007] HCA 13; (2007) 233 ALR 634. He extracted passages from that judgment which emphasise the need to consider the circumstantial evidence in its entirety, rather than piecemeal, looking at evidence of matters in isolation from other evidence.

The focus of enquiry is the capability of the evidence producing satisfaction beyond reasonable doubt. It is important to recognise the role of the jury as fact‑finders in criminal trials. A Judge is not a finder of fact on a no case submission. A Judge assumes that all the evidence of primary facts is accurate. A Judge does not assess the quality of evidence: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 where the High Court said at 214:

'... if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.'

9 The trial judge then went on to distinguish between the drawing of an inference, which he described as the application of deductive reasoning from proved facts leading to a conclusion, from speculation, which he described as conjecture or surmise (at [11]).

10 His Honour then summarised the principles which he extracted from the authorities he had cited in the following terms (at [14] ‑ [16]):

Distilling the principles derived from the cases I have cited, a Judge's role when considering if there is a case to answer is to assume the existence of all facts upon which there is evidence. The Judge then draws all reasonable inferences from those facts adverse to the accused and in favour of the prosecution. If, having undertaken the exercise, the inference of guilt is reasonably capable of being drawn to a standard beyond reasonable doubt, it is the duty of the Judge to allow the case to proceed.

If a reasonable inference of guilt cannot be drawn because there is a defect in the evidence preventing the drawing of a reasonable inference of guilt to the criminal standard of proof, it is the duty of the Judge to find the accused not guilty.

In the drawing of an inference, only reasoned and logical deductions are permissible; speculation and conjecture are not.

11 His Honour's formulation of the principles in these terms is unexceptional and undoubtedly correct. However, the question posed by the appeal is whether he applied those principles in his review of the evidence which had been adduced for the prosecution.

12 Under the heading 'Opportunity', his Honour made the following observations of the evidence on that topic (at [24] ‑ [25]):

The accused lived a short distance from Bayswater Waves and there is evidence that he was familiar with the deceased's habit of arriving very early (sometimes before Bayswater Waves normally opened) in order to carry out his morning exercise. There is evidence that others knew of this habit of the deceased. In fact, a security officer had attended, it would seem, to deal with the deceased's insistence of entering the building at an early hour. The shooting occurred outside Bayswater Waves in a public, but, at that time, deserted place.

The opportunity of the accused was no greater or less than others. It leads to the possibility of his involvement.

13 In these observations, the trial judge departed from the obligation to take the prosecution case at its highest. His observation that '[t]he opportunity of the accused was no greater or less than others' ignores the fact that there is no suggestion that any of those 'others', including the security officer, had any motive to kill the accused. Further, the terminology used by his Honour strongly suggests that he was viewing this evidence piecemeal, and in isolation from the other evidence. That conclusion is reinforced by the observation that his Honour does not refer to this evidence again, at any point, when attempting to summarise the prosecution case.

14 Under the heading 'Motive', the trial judge observed (at [26]):

There is some evidence that the accused and the deceased had been close friends but had a falling out in the weeks prior to the shooting. There is evidence that the accused had written a letter of apology to the deceased and also evidence that the deceased had declined to accept the apology although the evidence does not establish whether the deceased communicated that to the accused. Ms Hurley was of the view that, as at 12 May 2007, there was no friendship between the two men while Mr Baldini considered at the time of death the accused and deceased were close friends. The exact nature of the relationship is a question for the jury. There is evidence from which an inference could be drawn that the two men had had an argument. Whether it provided a motive for the killing is a jury question.

15 This passage reveals two departures from the principles enunciated by the trial judge at the commencement of his reasons. First, by referring to the conflicting evidence given by Ms Hurley and Mr Baldini as to the relationship between Mr Montani and Mr Woodhouse, his Honour appears to have been weighing and contrasting that evidence. However, as he had earlier observed, when assessing whether Mr Montani had a case to answer, he was obliged to take the prosecution case at its highest, which required him to assume that the jury would accept the evidence of Ms Hurley.

16 The second error of principle is evident from his Honour's reference to it being a jury question as to whether the evidence which enabled an inference to be drawn to the effect that the two men had had an argument provided a motive for the killing. The principles his Honour had earlier enunciated required him to assume that any inference reasonably open and adverse to the accused would be drawn. Accordingly, his Honour was required to bring to account an assumption that the jury would find that the argument between the two men, which it was open to them to find had occurred, provided a motive for the murder.

17 The third error made by his Honour with respect to the evidence of motive is apparent from his reasons as a whole, in that, as with the evidence of opportunity, he has viewed that evidence piecemeal, and in isolation, and failed to bring it to account when assessing the totality of the prosecution case against Mr Montani.

18 His Honour then referred to the evidence relating to Mr Montani's conduct following the shooting, in the following terms (at [27] ‑ [28]):

The accused's conduct following the shooting is suspicious. He drove in a circuitous route, including an unexplained stop into Whiteman Park, before disposing of a number of items in the Bayswater Cleanaway Transfer Station. Those items included a pair of black trousers (moist), a black jacket, a black full‑faced helmet, a pair of gloves with gunshot residue attached, four spent cartridge cases of a .357 calibre ...

There is evidence from which the jury might conclude that the accused told lies when asked by the police to account for his movements, not revealing his visits to Whiteman Park and particularly to the Cleanaway Transfer Station.

19 It must be observed that the description of Mr Montani's conduct as 'suspicious' is perhaps the most benign characterisation that could be given to it. It suggests a perspective of the evidence which is most favourable to the accused, rather than a perspective which puts the prosecution case at its highest, consistent with the principles his Honour had earlier enunciated.

20 His Honour then referred to the evidence relating to the clothing worn by the person who shot Mr Woodhouse. There were inconsistencies in that evidence. In that regard, his Honour observed (at [35]):

The prosecution cannot simply select evidence that suits it and ignore other evidence by saying that it's a matter of weight for the jury. In one sense, of course, that is true. However, in circumstances where the prosecution has not put in issue the credit or reliability of a witness, a Judge on a no case submission must have regard to all of the evidence on a point.

21 Those observations are, with respect, fundamentally inconsistent with the principles his Honour had earlier enunciated. It was no part of his Honour's function to weigh or assess the competing evidence. His obligation, compelled by authority, was to have regard to the evidence which put the prosecution case at its highest. In respect to the clothing worn by the person who shot Mr Woodhouse, having regard to the circumstances in which that clothing was observed by the eyewitnesses, including, in particular, the quality of the lighting and the brevity of the period of observation, the most favourable view of the prosecution case was to the effect that the clothing observed was broadly consistent with the clothing dumped by Mr Montani at the Cleanaway Transfer Station later that day.

22 His Honour next observed that the description of the motorbike ridden by the person who shot Mr Woodhouse given by a witness who saw that motorbike, 'was broadly consistent with the motorbike purchased by [Mr Montani]' very shortly prior to the shooting (at [39]).

23 Under the heading 'The cartridge cases', the trial judge reviewed the evidence given in relation to the cartridge cases found amongst the materials dumped by Mr Montani at the Cleanaway Waste Transfer Station, and the evidence of the gunshot residue found in the course of police investigation. After reviewing that evidence, and observing that there was an unexplained failure to test the cartridges for gunshot residue or fingerprints, his Honour observed (at [42]):

There is evidence that the accused disposed of the cartridges in a suspicious manner. However, there is simply no evidence that definitely links the cartridges with the bullets recovered from the Bayswater Waves Centre. The most that can be said is that there are consistencies between the cartridges and bullets.

24 Again, it must observed that this is perhaps the most benign characterisation that could be put upon the evidence. On the evidence it was open to find that later on the day Mr Woodhouse had been shot four times, Mr Montani dumped four cartridges of the kind that were used to shoot Mr Woodhouse, along with clothing which was broadly consistent with that observed on the shooter clothing, some of which had gunshot residue on it, at the Cleanaway Waste Transfer Station, and then lied to the police about whether he had been to that transfer station. His Honour's characterisation of the evidence leads to the conclusion that he has failed to take the prosecution case at its highest.

There were particles consistent with gunshot residue found on swabs taken from the left and right hand control grips of the motorcycle. One of the plastic bags deposited at Cleanaway Transfer Station contained two navy blue gloves which, when swabbed, disclosed particles consistent with gunshot residue.

26 However, nowhere in his reasons does his Honour refer to the statement made by Mr Montani to the police in which he denied riding the motorbike during the time between its purchase and its examination by police, taken with the evidence of the previous owner of that motorbike, which excluded the possibility that the previous owner had been the source of the gunshot residue on the hand control grips. As will be seen, later in his reasons the trial judge refers to there being 'a possibility' that the gunshot residue on the hand controls of the motorbike came from the shooting. But characterising the conclusion to be drawn from the evidence in that way fails to evaluate the prosecution case at its highest, or to draw the inferences most favourable to the prosecution which are open from the evidence, and fails to evaluate that evidence in the context of the totality of the circumstantial evidence.

27 The trial judge next referred to the evidence of documents linked to Mr Montani which included a draft letter introducing himself to an underworld figure in Victoria, as a contract killer. Apparently contrary to his earlier ruling that the documents were admissible as providing evidence that Mr Montani had identified himself as a person with the means and preparedness to effect an intentional killing, in his reasons for decision his Honour suggests that the letters went only to the character of Mr Montani, and were therefore inadmissible. His Honour observed that 'the letters do not even show a propensity to commit criminal acts' (at [46]).

However, it must again be observed that such a characterisation of the letters is unduly favourable to Mr Montani, given that they appear to introduce Mr Montani as a person willing and able to undertake contract killing. His Honour's characterisation of the letters again suggests a departure from the obligation to take the prosecution case at its highest.

28 Under the heading 'Dying declaration', his Honour set out the evidence of a statement made by Mr Woodhouse after he had been shot, when, in answer to a question which asked his name, he replied 'Johnny Montoya', later correcting Montoya to Montoyo. The trial judge also refers to the evidence that before saying that name, Mr Woodhouse said 'I'm a gonna. They've got me.'

29 His Honour made the following observations in relation to that evidence (at [48] ‑ [50]):

It is argued that it is open for the jury to draw the conclusion that the deceased was making reference to the person who shot him.

That conclusion can certainly not be drawn from the words alone. Read literally they are a non‑responsive answer to a question as to the deceased's name. Moreover, they are a mispronunciation of 'Montani' if that is what the deceased sought to be [conveyed], despite an opportunity for correction.

In order to use the statement in combination with other evidence the jury would have to be satisfied:

That the deceased in fact recognised the accused in the dark and was not mistaken. (The shooting apparently caught the deceased off guard sitting on a bench).
That the deceased intended to convey the accused's name as his killer, despite the mispronunciation of a name he knew well.

30 Those observations reveal that his Honour was weighing and evaluating the quality and weight of the evidence. But as he had earlier observed, that was not his function, but rather, the function of the jury. His function was to take the prosecution case as its highest.

31 Further, the observation that before the jury could use the evidence of the dying declaration made by Mr Woodhouse there would have to be other evidence in the case from which Mr Montani's involvement could be inferred is wrong, as a matter of law. And his Honour's evaluation of the evidence in isolation is contrary to the principles he had earlier enunciated, because, of course, he was required to place that evidence in the totality of the circumstantial evidence adduced in support of the prosecution case.

32 Under the heading 'The accused's conduct in disposing of items', his Honour observed (at [52] ‑ [54]):

If the accused was disposing of items that were linked to the shooting, then his conduct is capable of an adverse inference. There is nothing to link the pants, the jacket or the helmet with the shooting. There is nothing to link the four cartridges with the shooting apart from the coincidence that there are four cartridges and that they, along with hundreds and thousands of other cartridges, might have contained the bullets that were fired.

The accused being a known shooter, there is nothing to link the gunshot residue found on the gloves and scarf with any particular shot fired, it being not possible to date the age of the gunshot residue or to remove the possibility of transference.

The lies told by the accused may buttress the prosecution case if there is other evidence but cannot of themselves sustain it.

33 It must again be observed that his Honour's characterisation of the evidence relating to Mr Montani's disposal of clothing broadly similar to the clothing worn by the person who shot Mr Woodhouse, together with four cartridges of the kind used to shoot Mr Woodhouse, later on the day Mr Woodhouse was shot as 'coincidence' is exceptionally benign. It is a clear departure from his Honour's obligation to evaluate the prosecution case at its highest. And his Honour's assertion that lies capable of evidencing consciousness of guilt could only 'buttress' a prosecution case but could not sustain it, is not supported by authority and is wrong in law (see Martinez v The State of Western Australia [2007] WASCA 143; R v Ciantar [2006] VSCA 263; (2006) 16 VR 26; (2006) 167 A Crim R 504).

34 Under the heading 'Conclusion', his Honour observed (at [55]):

In the end there are a number of possibilities arising on the evidence and a number of consistencies:

The bike so briefly observed at the scene is consistent with the accused's newly acquired bike. It is therefore possibly his bike but this evidence does not stand alone. The description of the rider's helmet is integral and does not match those of the accused.
The bike had swabs of gunshot residue on the controls. A possibility is that it came from the shooting but the residue is not linked to the cartridges by analysis and so there is also the possibility of transference from a source other than the cartridges.
The deceased was shot four times. The four cartridges suspiciously disposed of by the accused could possibly have been the four cartridges that fired the bullets but apart from the suspicious nature of their disposal, there is nothing whatsoever to link them to the shooting.
The deceased may have been referring to the accused when he responded to the question of his own name but without other proof that the accused was involved in the shooting this possibility cannot be converted into proof beyond reasonable doubt.
The lies told by the accused could possibly be told in the consciousness of guilt but, without other evidence linking him to the crime, that inference is legally insufficient to sustain proof.
The piece of glass linking the accused to Bayswater Waves no longer has probative value as counsel for the prosecution now concedes. This was different in the first trial.

35 In this characterisation of the prosecution case, the trial judge departed in three significant respects from the principles he had earlier enunciated. First, he weighed and evaluated the quality and calibre of the evidence given, rather than assuming that it is correct, as he was required to do. Secondly, he has not drawn the inferences most favourable to the prosecution from that evidence - on the contrary, he appears to have taken the perspective most favourable to the accused. Thirdly, his Honour has viewed each of the strands of evidence in isolation and piecemeal, rather than accumulating the totality of the circumstantial evidence and evaluating it accordingly.

36 Accordingly, when regard is had to the manner in which his Honour has analysed and evaluated the evidence, it is not correct to say, as his Honour later did, that he had drawn all reasonable inferences from the facts adverse to the accused and in favour of the prosecution (at [64]).

37 The state advanced eight grounds of appeal. Leave has been granted in respect of six of those grounds, and reserved in relation to two. During the course of argument, counsel for the state accepted that those grounds could be coalesced in one central proposition to the effect that notwithstanding his Honour's correct enunciation of legal principle, he had in fact departed from those principles by weighing and evaluating the evidence, rather than taking it as correct, not taking the inference most favourable to the prosecution open on the evidence and not evaluating all the circumstances established by the evidence in combination, but rather viewing it in piecemeal.

38 It will be apparent from what we have already said in relation to his Honour's decisions that we accept that basic proposition. It is therefore unnecessary to evaluate the eight detailed grounds which support that basic proposition.

39 The issue which the trial judge had to decide was not an issue of fact but an issue of law (Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51; (2006) 159 A Crim R 513 at [15]). As Gleeson CJ observed in Antoun (at [16]):

The question whether there is evidence capable of supporting a verdict at a civil or criminal trial by jury is a question of law. As was explained in Doney, this is a different question from whether a jury ought to be warned about the probative value of evidence. It is different from the question whether a trial judge might properly inform a jury, at any time after the close of the prosecution case, of its power to acquit. And it is different from the question which confronts an appellate court when it has to decide whether a conviction is unreasonable. There is no advantage to be gained by blurring these differences. Keeping them in mind helps to avoid confusion. (footnotes omitted)

40 In this case, as a matter of law, if the evidence adduced by the prosecution is taken to be correct, and is taken at its highest, and if all inferences open on that evidence adverse to Mr Montani are drawn and if the prosecution's circumstantial case is viewed accumulatively, and not piecemeal, with strands of evidence viewed in isolation from each other, it would be open to a jury to convict Mr Montani. That conclusion is sufficient to dispose of this appeal, and because the allowance of the appeal will result in a re‑trial, it is inappropriate for this court to undertake any characterisation of the strength or weakness of the prosecution case.

41 However, we would conclude with some observations in relation to the course taken by the trial judge in this case, of entering a judgment of acquittal on the ground that there was no case to answer, despite having been advised by competent and experienced counsel for the accused that no submission to that effect was made. While that course was plainly open to his Honour as a matter of law, in our opinion, it is a course which should be followed with caution, and only in rare cases.

42 The justification for that cautious approach is revealed by this case. Mr Montani, having received the advice of competent and experienced counsel, elected not to avail himself of the opportunity to put a submission that he had no case to answer. No doubt one of the factors he would have taken into account in making that election was the prospect that if the submission was upheld, but later set aside on appeal, he would face the prospect of a re‑trial. In that context, he elected to proceed with the trial and obtain the verdict of the jury, which would have had a greater degree of finality than the verdict entered by the trial judge.

43 Despite Mr Montani's election, the course of events which he presumably was endeavouring to avoid has now come to pass, with its attendant prejudice to Mr Montani. In our opinion, a trial judge should be slow to expose an accused person to this outcome against his apparent wishes, and should only do so in a rare case.

44 For these reasons, we allowed the appeal of the state, quashed the verdict of acquittal and directed that Mr Montani reappear at the next status conference to be held in the Supreme Court, so that appropriate directions can be made for his retrial.

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