Kizildag v R [2013] NSWCCA 125 | Case summary

Court of Criminal Appeal (NSW)|2013-05-10|Before: Macfarlan JA, Fullerton J, Adamson J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with Adamson J. 2FULLERTON J: I agree with Adamson J.

Introduction 3ADAMSON J: The appellant appeals against his conviction in respect of the following two counts following a trial by jury before Payne DCJ in the District Court at Parramatta: (1)Aggravated taking with assault and driving a motor car contrary to s 154C(2) of the Crimes Act 1900 (NSW); and (2)Armed robbery contrary to s 97(1) of the Crimes Act. 4The notice of appeal filed on 27 September 2012 sets out nine grounds of appeal. None of these grounds was pressed. The appellant's amended final submissions filed on 1 November 2012 contain a single ground: a miscarriage of justice was occasioned by the incompetence of counsel. 5The alleged incompetence was said to arise from the failure by trial counsel to cross-examine an eyewitness to the second count about her identification of the appellant in an identification parade.

The Crown case at trial 6The Crown case was that at about 7.00 am on 4 May 2010 the appellant assaulted a woman, Rebecca Lenhard, who had parked her Commodore station wagon in the car park outside Woolworths in the suburb of Miller where she worked. She had just put a club lock on the steering wheel when the appellant approached her and threatened her with a knife which he pointed towards her stomach. In response to his demands she unlocked the club lock and handed over the keys. He then drove the car away at high speed. The appellant lived opposite the car park. 7Ms Lenhard and another employee who had seen the car departing rang the police. Ms Lenhard described the knife as silver, about 30 cms long with holes in the top half. She described the offender as white, with no distinguishing marks on his face, and wearing a sloppy joe, long pants and a baseball cap. She estimated him to be 30-35 years old. Ms Lenhard did not select the appellant from a photograph identification array. 8At about 7.20 am, when Jenny Dang arrived at the Bureddo Bakery at Canley Heights to start work, she put her handbag on the counter. The bag was red with octagonal shapes and contained her laptop, camera, wallet and keys. At about 7.55 am the appellant came into the bakery, ordered a drink and handed over a ten-dollar note. When Ms Dang gave him the change she observed that his hand was dirty. She also saw that, on one of the three middle fingers of his left hand, there was a cut which had dirt in it. She did not, however, notice anything else about his hand. After she had given him the change, Ms Dang moved her bag to a chair behind the counter before starting to put out more bread. 9While Ms Dang was arranging the loaves, the appellant grabbed her handbag. Another employee, Jenny Ly, saw him and came to Ms Dang's aid. A struggle ensued between the two women and the appellant in the course of which he pulled a knife out of his pocket which caused the women to let go of the bag. Another employee, Ellen Tung, had heard Ms Dang scream. She looked in the direction of the scream and saw Ms Dang, Ms Ly and a man struggling and holding up a knife with his right hand. Ms Tung joined Ms Ly in chasing the appellant out of the shop. The appellant ran to the car and drove away. 10CCTV footage taken from the bank across the road from the bakery showed that the car in which the appellant arrived and departed had been parked for about ten minutes before the appellant entered the bakery and that he was in the bakery for about 79 seconds before driving away. 11Ms Dang described the knife as straight, not serrated, about 20-25 cms long, with a silver blade with circular indents on it. She described the offender as having short dark brown hair with skin colour that was lighter than Mediterranean. She described him as being of medium build, about 175 cms tall and about 40 years old. She took part in a photograph identification array but did not select any photograph. 12Ms Tung estimated the man to be about 40 years old. She recalled him as Caucasian with greyish brown, longish hair which was shorter than shoulder-length and curly on top. Ms Tung did not select anyone in a photo identification array. Ms Tung recalled the knife as an ordinary kitchen knife, about 30 cms long, with a black handle. She wrote down the number plate, which identified the car as Ms Lenhard's. 13Ms Ly identified the appellant in a photo identification array. The video of the identification records the following exchange: Police: You've indicated photograph number 3. How confident are you? Ly: Well, confident, this part there [points to forehead]. And his eyes. And maybe the shape of his face is a bit longer, that's why I'm confident. Police: How confident would you say? Ly: Maybe 95%, 90-95%. Police: Where have you seen this person? Ly: When he pulled out his knife. Police: This is the person that attended the bakery? Ly: Yes, yes. Police: And what did this person do? Ly: He robbed the bag. Police: Are you happy to select this person? Ly: Yes, I'm very happy...definitely him. 14At midday, Ms Lenhard's missing Commodore station wagon was involved in a car accident. It was abandoned by its driver at the scene. 15A black and silver Sunman knife, 28 cms long, was found under the front driver's seat of the car. Ms Dang's handbag was also found in the car, as was a jumper and a drinking straw both of which tested positive for the appellant's DNA. An appointment slip with the appellant's name on it was also found. The handle of the knife, the steering wheel and the handbag strap all tested positive for the appellant's DNA. Ms Lenhard identified certain items in it that did not belong to her.

The appellant's case at trial 16The appellant gave evidence and was cross-examined. His case was that on 4 May 2010 he left home between about 9 am and 9.30 am and travelled by bus to Liverpool Hospital where he had an appointment. He arrived at 10.00 am, had a short consultation and was given another appointment slip. He travelled by bus to Liverpool for lunch and arrived no later than 11.30 am. 17The following day, 5 May 2010, he left home at 5 am as he had a doctor's appointment at Auburn. As he was walking to the appointment he saw a Commodore station wagon. It appeared that someone was sitting in the back seat. When he investigated he found that there was a tyre and a bumper bar in the back seat. He also noticed that the glove box was open. The driver's door was locked but the passenger's window was half-open which permitted him to open the door. When he noticed that the keys were in the ignition he got into the car and drove straight to his doctor's surgery at Auburn. 18The appellant arrived at the doctor's surgery before 7 am and waited for ten minutes until the surgery opened at 7 am. He went in and was given the first appointment, which was not until 9 am, when the doctor was due to arrive. Having secured the first appointment, the appellant returned to the car and started investigating the contents of the glove box and the middle console. He noticed a bag on the floor and went through its contents. He did not, however, look under the driver's seat and accordingly neither saw nor touched the knife located there. 19The appellant saw the doctor, filled the prescription at a chemist across the road, returned to the car and drove away. He drove towards the city and stopped at McDonalds where he purchased food and drink. He discarded a drinking straw in the car. He decided to leave the car at Warwick Farm station. On the way it started to rain and he was involved in a car accident. A man, who said that his wife had also been involved in the accident, asked the appellant not to leave the scene. Another driver, who happened to be a police officer, asked him if he was all right. The appellant told him that he had to get out of there before the police arrived. The driver, who identified himself as a police officer, went to park his car. A bus pulled up and the appellant alighted. He left his jumper in the car. He lied to the bus driver when he said that he had not been involved in the accident. 20The appellant had lost a finger on his left hand when he was young.

The conduct of the trial by the appellant's counsel 21The appellant's trial counsel, in his cross-examination of Ms Ly, elicited the following: a. She had first observed the offender only for a moment when he was at the fridge. She then resumed her own work at a nearby oven and heard the offender ask Ms Dang about a pudding. She thought nothing of it at that stage. b. She was working at her oven and did not look at the offender again until Ms Dang yelled out that he had her bag, at which time she approached and tried to assist Ms Dang retrieve her bag. c. She saw the offender produce the knife from his pocket and brandish it with his right hand. d. The offender was not wearing gloves which made it more likely that the witnesses would notice if his left hand was missing one of the middle fingers. e. The offender was wearing a grey zippered jacket and jeans. f. The offender was pulling the bag with his left hand only and brandished the knife with his right hand. g. When the knife was produced Ms Ly released the bag, the offender fled and Ms Ly and Ms Tung chased him outside and saw him get into the car which was parked immediately out the front of the bakery. 22The effect of this cross-examination was that Ms Ly accepted that she did not pay any particular attention to the offender until the struggle for the bag began. Given that the CCTV footage showed that the offender was on the bakery premises for only 79 seconds, her opportunity to observe the offender was, at best, transitory. Her observation lasted a considerably shorter time and took place in very stressful, dynamic and potentially violent circumstances. Her view of the offender was predominantly either of the rear of his head or his profile, whereas the photo in the identification array was front-on. 23The appellant's trial counsel cross-examined Ms Dang to the effect that the man she recalled in the bakery had a small, healed cut on the tip of one of the middle fingers of his left hand. 24In closing address the appellant's trial counsel relied on the facts that neither Ms Tung nor Ms Dang was able to identify any picture at all from the array and that Ms Lenhard identified someone other than the appellant. He sought to undermine the effect of Ms Ly's positive identification by emphasising that Ms Ly had sworn that the offender had brown eyes, whereas as a matter of objective fact, his eyes were green. He also submitted that her evidence was tainted because the police had informed her before she was shown the photographic array that they had a suspect in custody. Trial counsel submitted that, had the man Ms Dang observed been the appellant, she would have noticed that part of a middle finger of his left hand was missing. 25The appellant's trial counsel also relied on the absence of any DNA or fingerprint evidence in the bakery that matched that of the appellant.

The parties' submissions 26The appellant's primary submission was that there has been a miscarriage of justice because his trial counsel did not challenge Ms Ly's identification of the appellant in the photo array. He submitted that this failure resulted in her identification of him being "totally unchallenged" and thereby deprived him of a real chance of acquittal. 27The appellant submitted that it was necessary for his counsel at trial, in order to challenge her identification of him in the photograph array to explore the following: (1)her level of confidence, which she expressed in chief as being "90-95%" and "definitely" the appellant; (2)the circumstances in which she had seen the appellant at the time of the offence, such as lighting, duration and her state of mind and the extent to which those circumstances could have undermined the reliability of her photo identification; and (3)differences between the photograph she identified and the description given by her, including features that she had described, such as grey hair, which were absent on the photograph selected. 28The appellant made no criticism of the extensive warnings given by the trial judge regarding picture identification but submitted that such warnings: ". . . were necessarily [given] in a vacuum because there was no evidence that [h]er Honour could actually refer to so as to illustrate the potential weakness of the evidence- length of time observation, lighting, the differences between the description in the photograph, state of mind at the time of the incident, or any questions as to the level of certainty that it was the same person." 29The appellant invited this Court to proceed on the basis that the appellant had given no instructions relevant to this ground but submitted, in the alternative, that any such instructions would not have bound his trial counsel in any event. 30The appellant's trial counsel was required to attend the hearing of this appellant in case evidence from him was required. However, the appellant did not seek to lead evidence from him on any matter pertinent to the determination of this application.

Reasons 31This Court will intervene on the ground of incompetence of trial counsel only if such incompetence must have resulted in a miscarriage of justice. The principal issue is, accordingly, whether there has been a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912, although a related issue also arises for determination: whether any incompetence has been shown. 32There will have been a miscarriage of justice if this Court considers that the alleged incompetence of counsel deprived the appellant of a chance of acquittal that was fairly open: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 (TKWJ). 33The content of the appellant's instructions at trial arises as a preliminary matter. The appellant chose at the hearing of his application not to adduce evidence as to his instructions, if any, on the question of picture identification. Accordingly, there is no basis on which this Court could conclude that the appellant had not instructed his counsel to take the course which was in fact taken. Indeed the absence of evidence leaves open the possibility that the appellant seeks to adopt a different approach to the issue of picture identification than that which he authorised at trial. 34The question whether there has been a miscarriage of justice is to be answered objectively: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [27] per Gummow and Hayne JJ, citing TKWJ. Hayne J said in TKWJ, in the context of an alleged failure, to call evidence: [107] . . . [W]hen it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence? [108] If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently, even though the conclusion that there could be no reasonable explanation for the course followed at trial would seem to entail the conclusion that counsel did not act competently. 35It follows that the first question is whether there could be a reasonable explanation for trial counsel not directly cross-examining Ms Ly about the following matters: (1)her level of confidence, which she expressed in chief as being "90-95%" and "definitely" the appellant; (2)the circumstances in which she had seen the appellant at the time of the offence, such as lighting, duration and her state of mind and the extent to which those circumstances could have undermined the reliability of her photo identification; and (3)differences between the photograph she identified and the description given by her, including features that she had described, such as grey hair, which were absent on the photograph selected. 36The answer with respect to the first matter relied upon is self-evident. A cross-examiner who explored Ms Ly's level of certainty would inevitably run the risk that she would not only adhere to her evidence in chief but also that she would fortify it with further plausible reasons, which the jury might find compelling, as to why she was so sure that the photograph she selected was that of the accused. I do not consider there to be any basis for the assumption that underpins the appellant's submission: namely, that the evidence elicited or such a cross-examination would have been advantageous to him. I am accordingly satisfied that there could be a reasonable and obvious explanation for trial counsel's not cross-examining directly about this topic. 37As to the second matter, I consider that trial counsel laid sufficient groundwork in his cross-examination of Ms Ly, Ms Tung and Ms Dang. The matters elicited from Ms Ly that are set out in [19] above formed the basis of the submission that Ms Ly's identification of the appellant was unreliable. I am unable to detect any incompetence in trial counsel's approach. There could have been reasonable explanations for his approach, which was not in any way unorthodox. 38As to the third matter, it was not necessary for trial counsel to put the matter of the appellant's hair colour to Ms Ly in cross-examination. The discrepancy between the appellant's hair colour, as apparent to the jury in Court and as shown in the photograph Ms Ly selected on the one hand, and her description of its being grey on the other, would have been obvious to the jury. What the appellant's trial counsel did in closing address was to highlight the discrepancy in eye colour in the following passage: You've seen the accused in the witness box. What colour are his eyes? "They're green, they're green eyes, yet when Jenny Ly was asked about the description, page 39, line 5: 'Q His eye colour? A Eye colour is brown eye colour.' Can't even get the eyes right. The man's sitting across in the dock, still can't get the eyes right." 39The art of advocacy, including jury advocacy, involves the art of selection. The force of a powerful point, such as "she can't even get the eyes right", can be undermined by a litany of lesser but similar instances. The fact that the grey hair was not mentioned in final address could be explained either by its being a lesser point to that of the eye colour; or, by its obviousness, which meant that trial counsel could safely leave the jury to draw its own conclusion about the weight to be given to Ms Ly's photo identification of the appellant. Either of these explanations could be a reasonable explanation for the trial counsel's conduct of the trial. 40In summary, I consider there could be reasonable explanations for each aspect the conduct of trial counsel said to amount to incompetence. In these circumstances, as Hayne J observed in the passage cited above from TKWJ at [108], that is the end of the matter. 41It follows that there is no prospect of there having been a miscarriage of justice such as would warrant this Court's intervention.

Proposed orders 42The order I propose is: (1)Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2013

Kizildag v R

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