R v Kotzmann [1999] VSCA 27

[1999] VSCA 27

Court of Appeal (Vic)|1999-03-19|Before: PHILLIPS, C.J., CALLAWAY and BATT, JJ.A.

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Court

Court of Appeal (Vic)

Decision date

1999-03-19

Before

PHILLIPS, C.J., CALLAWAY and BATT, JJ.A.

Source

Original judgment source is linked above.

Judgment (153 paragraphs)

[1]

The applicant, who is now aged 30, pleaded not guilty in the County Court to a presentment containing one count of armed robbery ("the first presentment") and guilty to a presentment containing one count of attempted armed robbery, two counts of armed robbery and two counts of theft ("the second presentment"). After a trial occupying eight days the jury returned a verdict of guilty on the first presentment. The learned trial judge heard a plea for leniency on behalf of the applicant and took time to consider the evidence and counsel's submissions together with a pre-sentence report. On 20th November 1997 his Honour sentenced the applicant to seven years' imprisonment on the first presentment and to terms of imprisonment ranging from five years to one year on the second presentment and gave directions for cumulation that resulted in a total effective sentence of 12 years' imprisonment. A non-parole period of eight years was fixed and a declaration made regarding 759 days' pre-sentence detention. The applicant seeks leave to appeal against his conviction on the first presentment and the sentences that were imposed on both.

[2]

There are eight grounds of appeal against conviction, five in the notice of application for leave to appeal, one added by leave of the Registrar on 31st July 1998 and two added by leave of the Court in the course of the hearing of the application. The conclusion I have reached makes it unnecessary to set them out in full. They all relate to the charge and none of them would result in a judgment and verdict of acquittal. They are in substance that the judge misdirected the jury as to a matter of evidence not before them, failed to give any warning to the jury as to the identification of objects by witnesses, failed to give a warning that one of the witnesses was a "tainted witness" and failed to give any direction as to the proper use of two alleged lies told by the applicant, that the trial miscarried by reason of the charge being unbalanced and that his Honour failed to give proper directions to the jury on inferences, failed to direct the jury about expert evidence and failed to direct the jury that they were entitled to disregard comments by the trial judge. In the course of arguing those grounds Mr. Tehan, Q.C., who appeared with Mr. Grant for the applicant, also submitted that there had been an aggregate of errors leading to a miscarriage of justice: see, for example, at p.42, the cases there cited, ; at p.182 and (unreported, Court of Appeal, 19th December 1997) in the judgment of Phillips, C.J. and Charles, J.A. at p.10.

[37]

"The accused got out, and according to Harry Hasiotis, the accused had the sports bag and two plastic bags. He went to grandma's house and returned to the Mitsubishi Magna empty-handed. It was on that occasion that he was photographed by Borger at 11.19 a.m. and he saw only the Myer bag. The three then went back to Harry Hasiotis, Theo left, and later the accused and Harry Hasiotis left in the Celica and were arrested. The policeman Curnow recovered from the white HiLux a bag, a black and purple Adidas bag and the Myer bag from the yellow Holden. Now the sports bag that held the balaclava and the Myer bag which contained the firearm - the Crown says that whatever else can be said, it is clear, if you accept the evidence of Borger and the other witness that the accused man took the Myer bag which contained the gun, and put it in his vehicle, therefore he had possession of it at that stage, the gun Exhibit D. Now the gun, so the Crown says, is identified as definitely a 77 semi-automatic Winchester rifle, and the gun in the bank photo is identified as a 77 semi-automatic Winchester rifle. The gun which is Exhibit D here in court, had been shortened at both ends. The gun in the bank photographs had been shortened at both ends. Pilkington compared the Exhibit D and the bank photos, in particular the bank photos showing the gun, and could discern no dissimilarity between them. Exhibit D, you will see if you look at it, and the evidence is, has been cut down, and at the butt end has been cut at an angle, and Pringle said that he could see an angle cut in the photos, but he could not establish the angle of the cut. Now Exhibit D has its serial number still on it, and that had been registered in South Australia by the owner. It was in his Pajero when it was stolen and it was not recovered, that is the gun was not recovered, and the Crown says that the evidence is that the accused told Tanarsha Wolters that he had stolen the Pajero and sold the camping gear. Now if you accept that, then you will be satisfied that the very gun in question was in the possession of the accused when he got the Pajero, if you accept that. On the other hand it is said you should not accept that because Tanarsha Wolters said she hated the accused, she did at the time she spoke to the police and she still does, and if that is the case you should not believe what she says; but she says that that is what happened, and you ponder how she could imagine all that, or make it up, if it were not said. It is all a matter for you. So the Crown says that really you know for certain if you accept the experts' evidence, that this was a 77 semi-automatic Winchester, this one in court, the same as the one in the bank, that is to start, and then this gun was cut down and the other gun was cut down, and the gun had earlier, if you accept the evidence, been in the accused's possession and was later in the accused's possession when he put it in his vehicle that morning, the morning of the 23rd. So it is said that you should not have much trouble in concluding either that that is the gun, this gun in court is the gun shown in the pictures, or that it is highly probable that it was, and you should be satisfied; if not satisfied beyond reasonable doubt, satisfied that it was highly probably the gun in question." (Emphasis added.)

[69]

It follows that I must consider other arguments and grounds put forward on behalf of the applicant. Another argument was adduced for him under ground 6, namely, that his Honour at several points in his charge reversed the onus of proof in relation to hypotheses consistent with innocence. It is, I think, true that his Honour did this at three points in his charge. Thus, a little more than halfway through the after-lunch portion of the charge his Honour told the jury to look at the whole of the circumstances of which they were satisfied and to ask themselves the question, "'Is there any reasonable explanation which would explain all of those facts and circumstances, other than he must have been the man in the bank?'" His Honour had earlier, not very long after the luncheon adjournment, made almost the same statement to the jury; and towards the end of his charge he repeated, a little more briefly, what he called "the crucial question". But those directions are to be read in the light of the fact that the applicant had not given evidence which might have been set against the circumstances otherwise proved to the satisfaction of the jury and in the light of the fact that immediately before the luncheon adjournment and immediately after it his Honour had formulated the question for the jury in terms not unfavourable to the applicant. (Mr. Tehan Q.C., senior counsel for the applicant**,** did criticise the use of the word "all" in his Honour's references to "a reasonable explanation for all the facts and circumstances as you find them to be", but I do not think that there is anything in the criticism: his Honour was simply saying that the existence of a reasonable explanation had to be determined in the light of all the facts proved to the satisfaction of the jury.) More importantly, having made it clear more than once that the Crown had to prove each of the elements of the crime, and in particular that the applicant was the robber, his Honour at the very end of his charge, immediately before inviting the jury to retire to consider their verdict, gave the jury directions which made it clear that the onus of excluding all reasonable hypotheses consistent with innocence lay upon the Crown. He told the jury that if, having decided what had been proved to their satisfaction, they concluded that, on what they were satisfied of, it was reasonably open that the applicant was not the robber in the bank, then they were to return a verdict of not guilty. On the other hand, if they were satisfied that there was no other reasonable explanation than that the applicant must have been the robber shown in the photograph, then they could conclude that he was; and if they were satisfied of that beyond reasonable doubt then their verdict would be guilty. It seems to me that the concluding directions, at least, were sufficient to dispel any erroneous impression concerning the incidence of the onus of proof as to innocent hypotheses which the three earlier passages might have created. It is significant that no exception to the charge was taken on this point. Amongst other things, that fact tends to show that the overall effect of the charge upon those hearing it was that the onus lay on the Crown to exclude all reasonable hypotheses consistent with innocence.

[73]

As was accepted by Mr. Just for the respondent and by his Honour in his report to this Court, the facts asserted in this ground are correct. His Honour indeed made the statement twice. The evidence as to the arrest of Hasiotis on 23 October 1995, however, was simply that he was arrested by police that day after his car was stopped, although it was the fact that the applicant and Hasiotis had been arrested on 23 October 1995 when police stopped the Celica car driven by Hasiotis in which the applicant was a passenger. (It will be recalled from Callaway, J.A.'s judgment that earlier on 23 October 1995 the applicant had travelled with Theo Pavlou and Hasiotis in a Mitsubishi Magna sedan to and from the applicant's grandmother's house. The Magna belonged to Pavlou.) Hasiotis had admitted in cross-examination that he had been convicted in the County Court at Melbourne on 30 August 1996 on one count of armed robbery. That was the armed robbery the subject of count 5 of what Callaway, J.A. has called the second presentment, to which the applicant himself pleaded guilty. The facts of the offence are stated in paragraph 37 of his Honour's judgment. After Hasiotis had admitted his conviction there was argument before the trial judge as to questions which it was open to defence counsel and the prosecutor to ask him in further cross-examination and re-examination respectively. His Honour ruled that the question already asked was permissible and that defence counsel could also elicit that the robbery was committed upon a bank. He further ruled, however, that it was not permissible for the prosecutor to re-examine Hasiotis to elicit that the applicant had also taken part in that robbery or to elicit the precise date on which the robbery took place. His Honour did rule that it was permissible for the prosecutor to elicit from Hasiotis that the robbery had been committed in the month of October 1995 and, in an endeavour to re-establish his credit, that he did not enter the bank and was connected with the robbery simply because he drove the car. In the course of his ruling his Honour said that he would rule out anything which made it possible for the jury to conclude that the applicant was involved with Hasiotis in the robbery of which the latter was convicted on 30 August 1996. Questions were then asked in accordance with the ruling and they received affirmative answers.

[93]

In my opinion, the submissions for the respondent, other than the implication concerning identification "as to type", are substantially correct. I accept the argument that, because of his Honour's very strong comments about the windcheater, any Domican warning that might otherwise have been required in relation to it was not necessary. I further accept as a working definition of visual identification evidence that put forward for the respondent. (It is unnecessary to consider identification by other senses.) In my view, statements or opinions expressed by witnesses as to the nature of an object or substance they have examined or seen depicted in a photograph are not evidence of identification. They might help to "identify" it in the sense of revealing what it is, just as a corpse might be identified in a mortuary, but that is a different matter. Nor is identification evidence constituted by evidence given by experts or quasi-experts of the results of comparison of an object with another object or a photograph of an object. Such comparison can in fact be made by a jury, which has the object and the photographic image as exhibits before them. It is in the same category as evidence by handwriting or fingerprint experts, which does not require a Domican warning. Whilst there may be problems in evidence of comparison, resulting, for instance, from the lack of clarity or insufficiency of resolution of a photograph or the inadequacy of remains of an object, they are usually, and were here, obvious to juries, and jurors are well equipped to make allowance for them. (His Honour did deal with a problem of resolution and angle with a photograph in which a sight tang could not be discerned. But more instruction to the jury in this case on that topic might have been helpful, though that is not the subject of the present ground.) Evidence of examination and comparison such as I have been mentioning is largely evidence about static things, though I acknowledge that the comparison might be with images on a cinematographic or video film. The dangers that require Domican warnings occur with evidence given of the recognition of objects (whether or not familiar to the witness) observed either briefly or when moving or under adverse conditions of light, distance or the like. In the present case, if the windcheater is put aside, there was little evidence of recognition of objects in such circumstances. Such evidence was confined to the evidence of the clothing and accoutrements of the robber by persons in the bank at the time of the robbery and did not include the evidence of any of the witnesses listed by counsel for the applicant. That evidence did not, in my view, form a significant part of the Crown case either in terms of its volume or in terms of its importance. I conclude therefore that the warning contended for was not required. Nor, significantly, was it sought below, whether by way of exception or otherwise, though I acknowledge that in the preliminary objection to the reception of lay evidence about the windcheater cases on identification evidence were cited.

[116]

As will appear, ground 8 relates to the failure to direct the jury that they might disregard the judge's comments. The sting of that ground lies in the comments which were said to have been made. Accordingly, there was some overlap in argument between that ground and the ground presently under consideration. Although it was in connection with ground 8 that counsel for the applicant orally and in writing listed a total of six adverse comments complained of, it is, I think, proper that they should be mentioned and taken into account in relation to ground 5 also. One had already been listed by Mr. Tehan in his argument under ground 5. This is the statement that the jury could have confidence that the applicant had possession of the items whose remains were found at Arnold West. Another is one of the statements already mentioned in which the onus of proof was reversed. That does not seem to me to be a comment on the facts, but is in any event comprehended in this ground by the incorporation of ground 6 as I have interpreted it. The third is the statement that the applicant used the property at Arnold West not so much to hide contraband material as to destroy it. In my view, the context clearly shows that that was not a comment by his Honour, but the repetition of a refinement by the Crown of its argument about the property. The fourth relates to a defence argument summarised as being that the firearm was in the green Mazda (presumably Magna) and that Harry Hasiotis was in there too. But, his Honour said, there was no photograph of him in it. (The transcript is not intelligible as to the subject of the photograph. A complaint before us was that his Honour did not say to the jury that there was no photograph of the applicant with the Myer bag.) His Honour then made the statement objected to, namely, "What you have got to do is make the best you can out of the evidence you do have." I do not understand that as being a factual comment, but as being a direction and as being obviously sound when understood in the context of the onus and standard of proof upon the Crown. His Honour was not bound to mention the absence of a photograph of the applicant with the bag, but the omission has to be taken into account. The fifth comment objected to occurred after his Honour had stated the Crown's reliance on Tanarsha Wolters' evidence of the applicant's admission to her of theft and the consequences of that evidence, and then the defence criticism of it on the ground of the hatred which she bore the applicant. His Honour then continued:-

[126]

There remain for consideration three specific matters listed by Mr. Tehan and two comments. I have already pointed out that the criticised passage commencing "... well if you accept all that ..." was merely the repetition of a rhetorical question posed by the prosecutor. It may therefore be put aside. As to the complaint made in connection with that passage that the defence case was put only in relation to the Skorpian bombs and another complaint that only in relation to the shoes did the judge deal with cross-examination, I am quite unpersuaded on a re-reading of the charge that these complaints are made out. It seems to me that his Honour put before the jury numerous criticisms of the evidence made by defence counsel, some at least of which were based on cross-examination. In putting before the jury such criticisms his Honour was putting the defence case in relation to the evidence criticised, for, as I have mentioned, the applicant neither gave nor called evidence. His Honour was entitled to remind the jury of the whole relevant portion of the cross-examination of Evans from which defence counsel had relied on a part only. The statement of the consequence of the finding of the burnt remains at Arnold West which is complained of, namely, "you could have confidence that he had possession of them", appears when read alone to be a comment by the judge; but when read in full context it is seen to be part of the statement of the way the Crown put its case. It is true that the judge did not put to the jury what is said to have been the defence case about this evidence, namely, that there was a body of evidence showing that other persons had access to the property, so that the implication flowing from the word "possession", that the applicant knew of the burnt items and had control over them, should not be accepted. But the evidence referred to was relatively insignificant and hardly justified the description "a body of evidence". For present purposes it comes almost entirely from some answers by Mrs. Neivandt in cross-examination to the effect that a man called Laurie stayed on the property for about two or three weeks when the applicant first moved in, that a few other persons were there on single days and that a group of half a dozen were there for "a short time". But all those persons seem to have been present at the property by invitation. Moreover, the incinerator was quite close to the house, making it unlikely that unauthorised persons would use it. Hasiotis did visit the property between July and October 1995, but denied using the incinerator. Although the trial judge was bound to put the defence case fairly, he was not bound to re-capitulate Mrs. Neivandt's answers and, having regard to the tenuousness of the evidence, I am not persuaded that he was bound to put this particular defence. It may be that, where the complaint is one of balance generally, the failure to put a particular defence is not covered by the ground. (The applicant was allowed three amendments of his grounds before and during the hearing of the appeal.) In any event, the failure to put this defence could readily have been cured had exception been taken. Even if this particular defence should have been put and even if it is open to the applicant to complain about it under this ground, I am not persuaded that any miscarriage of justice occurred through the failure.