R v Kotzmann

R v Kotzmann - [2002] VSCA 21 - VSCA 2002 case summary — Zoe

[4]

On 2 October 2000 the applicant was again arraigned before a County Court jury on the count of armed robbery of the Balwyn branch of the Bank of Melbourne on 29 July 1995 - that is the count alleged on the first presentment. On 18 October 2000 the jury again convicted the applicant of that offence. By the time that that conviction was recorded, the non-parole period and all but about six months of the head term set by the Court of Appeal in respect of the offences on the second presentment had expired. The applicant was apparently released on parole (on bail) on 27 October 1999. The parole was breached because (so it was asserted) of an "unclean" drug test, and he was taken back into custody on 25 May 2000. The applicant admitted some 29 prior convictions, including 2 armed robberies, from 10 court appearances, most of which had been committed between 1986 and 1991. In respect of the offence of which he had been convicted, the learned judge on 27 October 2000 sentenced the applicant to a term of 5½ years and directed that he serve a period of 2½ years before becoming eligible for parole. He directed that the sentence be served concurrently with the sentence which the applicant was then serving. The effect of his Honour's sentence, as was conceded, is that the total effective head sentence to be served for the offences charged on both presentments is some 10 years and the sum of the non-parole periods fixed is about 6¼ years. In fixing the sentence which he did, his Honour recognised that credit had already been given for time served by the Court of Appeal which had re-sentenced the applicant on 19 March 1999 and that such credit was not available to again be taken into account (s.18(2)(d) of the Sentencing Act 1991). The Court was told that 43 days had been served pursuant to the sentence which his Honour had imposed and that period was declared. All other things being equal, that would mean that the applicant now has to serve a little more than 12 months before he becomes eligible for parole. Indeed the applicant informed us during the hearing of the appeal that he understood that his "earliest release date" was at some time in March 2003. Nevertheless, counsel for the respondent informed us that "all other matters were not equal" because he understood that, whilst the applicant had been "on parole" between October 1999 and May 2000, he and his "de-facto wife" had committed further offences in April and May 2000, in respect of which he had stood for sentence before the County Court on 19 September 2001 - that is, approximately one month before we entertained this appeal. This Court, accordingly, called for further information about those matters and that was forwarded to us on 28 November 2001. It is now apparent that the County Court, on 19 September 2001, sentenced the applicant in respect of the offences with which it was concerned to a "straight sentence" of 11 months imprisonment and directed that such sentence be served in compliance with s.15(1)(a) and s.15(2) of the Sentencing Act 1991. As I would understand the effect of those provisions, the service of the sentence for the armed robbery is suspended until the "straight sentence" imposed in September 2001 has been served. If that is correct, the applicant's "earliest release date" under the sentence with which we are concerned will not arrive until approximately February 2004.

[11]

It is apparent from what I have already said that the Crown was able to lead evidence seeking to demonstrate that the "sawn off Winchester .22 rifle" was found in the possession of the applicant (namely concealed in his car at the Deepdene premises) on 23 October 1995 following the robbery at the ANZ Bank premises on that day. Nevertheless, the Crown sought to prove that the applicant had exercised dominion over this rifle from 1992 when a Mitsubishi "Pajero" motor vehicle, in which the rifle had been stored, was stolen from the car park of hotel premises in Adelaide. That motor vehicle had, at all material times, been owned by one Christopher Carlisle who was the registered owner not only of the motor vehicle but also of the rifle. The motor vehicle had been driven to Melbourne where it was located in the suburb of Hawthorn in September 1992 - some two weeks after its theft in Adelaide. When the car was recovered in Hawthorn the rifle was no longer in it. However when the rifle was recovered from the possession of the applicant in October 1995 the serial number which it bore was that registered in the name of Carlisle in the South Australian records. Carlisle made a statement to investigating police in which he said that the rifle had been in the Pajero motor vehicle when it was stolen in 1992. That statement was part of the police brief served upon the applicant (or his legal advisors) prior to the committal proceedings. However, during the course of the committal proceedings, Carlisle was not required to attend as a witness for cross-examination. The material contained in the statement of Carlisle was made relevant because of the evidence of one Tanarsha Wolters, a resident of Adelaide, who in 1992 and 1993 had been living with the applicant in that city. She gave evidence, inter alia, that the applicant had told her that, during 1992, he had stolen a Pajero motor vehicle and driven it back to Melbourne. It was the coincidence of the evidence of Carlisle and Wolters upon which the Crown relied to demonstrate that the applicant had been in possession of the rifle since 1992. By the time of the trial Carlisle had died but the contents of his statement concerning the provenance of the rifle became admissible pursuant to s.55AB of the Evidence Act 1958 subject to the judge's discretion to exclude it.

[12]

At the outset of the trial, counsel for the applicant (who is not the counsel who appeared on this application), submitted to the judge that he ought to exclude both the evidence of Wolters and the statement of Carlisle. The application was founded generally upon the ground of unfairness, said to be constituted by an inability to cross-examine Carlisle and on the basis that Wolters was a thoroughly unreliable witness because of a conceded hatred which she bore towards the applicant. The trial judge declined to exclude the evidence of Wolters and the statement of Carlisle. As he said, the facts set out in Carlisle's depositions were "non contentious" and appeared to have been so treated in the three earlier trials of the applicant. His Honour declined to exclude the evidence of Wolters on the basis that she was, or was alleged to be, "unreliable". Counsel had contended that her "unreliability" was such that no jury could believe anything she said and therefore the Crown should not be permitted to call her as a witness on the ground that to do so would be highly prejudicial to the accused and would impair "the fairness" of his trial. Counsel further submitted that, quite apart from her "hatred" for the accused, there were additional matters which should lead the trial judge to exercise his discretion to exclude her evidence. Those matters included the fact that she was or had been an "addicted user of prescription drugs and heroin"; the fact that she had given evidence on at least four occasions in South Australia against the accused, on each of which occasions the accused had been acquitted; that she had admitted in the course of a previous trial that she had "told lies" in other proceedings and was therefore "an admitted perjurer". Counsel submitted to the trial judge that he ought to be entitled to further cross-examine Miss Wolters "on a voir dire" before she was called to give evidence against the applicant. His Honour, in the exercise of his discretion, declined to exclude the evidence of Miss Wolters; and further ruled that it was unnecessary to further examine her on a voir dire before giving her evidence.

[13]

In support of Grounds 2 and 3 of this application, Mr. Boyce, who appeared for the applicant in this Court, submitted that his Honour was in error in failing to exclude the statement of Carlisle and the evidence of Wolters. He contended that his Honour should have exercised his discretion to exclude such evidence on the grounds that its probative value was outweighed by its prejudicial content. In my opinion, there is no substance in these submissions. It was not contended by counsel at the trial that the facts contained in Carlisle's statement were contentious. Indeed they had been treated as "non contentious" from the date of the committal proceedings. Mr. Boyce contended, that in the context in which the trial was fought, it was not "highly probative" for the Crown to satisfy the jury that the rifle had come into the possession of the applicant in 1992 when it already had evidence demonstrating that the rifle was in the possession of the applicant some three months after the robbery which was the subject of the charge. This was not a submission made by trial counsel to the judge. On the contrary, trial counsel conceded that evidence tending to place the rifle in the possession of the applicant some three years prior to the robbery was highly probative. Its probative value, so the Crown contended, was all the greater because of allegations made at the previous trial that the gun had been in the possession of Hasiotis. Furthermore, I am unable to accept the submission of Mr. Boyce that the evidence contained in Carlisle's statement was prejudicial because counsel had been unable, as a result of Carlisle's death, to test the accuracy of his statement that the rifle was in the car when it was stolen. That argument, for the reasons which I have already stated, was not strongly pressed before the trial judge. No-one suggested that Carlisle's statement that the gun was in the car at the time when it was stolen was a figment of his imagination or was otherwise unreliable.

[22]

Each of these grounds relates to the evidence given of the circumstances in which the applicant had leased the premises in Arnold West from which the police had recovered the charred remains of a tracksuit, of running shoes, and of two Skorpian "dye-bombs" upon which the Crown relied to implicate the applicant in the robbery of the Bank of Melbourne. As I have previously stated, evidence was led from the owner of this property (one Smith) who said that he had leased the property to the applicant for a 12 month period and that the applicant had identified himself by the pseudonym "Thomas Johnstone", saying that he was a "criminology student" who wanted peace and quiet whilst completing a thesis on criminology. Smith had leased the property to the applicant on 19 June 1995, about a month before the alleged robbery occurred. Trial counsel for the applicant had submitted that his Honour ought to exclude the evidence of Smith on the basis of "unfairness" - such "unfairness" said to arise from the fact that the applicant had good reasons for concealing his true identity from Smith; namely his antecedents and the difficulties which they would cause in seeking to rent suitable accommodation if his true identity were revealed. It was contended further by counsel that the evidence had no probative value in respect of a robbery which occurred a month later and that the only real relevance of the evidence could be the applicant's occupation of the property on 24 October 1995 when the charred remains of the alleged incriminating material were found in the incinerator. It was further contended that the admission of the evidence would be "unfair" because the applicant would not be in a position to realistically explain in his evidence before the jury why he had lied without causing prejudice to his case. The trial judge declined to exclude the evidence in the exercise of his discretion on the basis that the circumstances in which the applicant had leased the property had a probative value above and beyond that asserted on his behalf. His Honour accepted the Crown contention that the real value of the evidence lay in the fact that it would be open to the jury to accept that the applicant had leased the premises in a remote location at which he could dispose of incriminating material - that is as a "robber's hideaway"; and that he could do so without attracting unnecessary attention. Furthermore his Honour was of the view that it would not be "unfair" for the Crown to lead this evidence because it would be open to the accused to explain that he had reasons other than the ones given for renting the property. In the event that any such explanation might lead to prejudice, his Honour concluded that that could be countered by an appropriate direction.

[28]

Quite apart from the fact that this Court (sitting as a bench of three judges) would be reluctant to disturb one of its own decisions so recently given upon the very point now in issue[9], I have for my own part no doubt that the directions given by the judge to the jury as to how they should approach the evidence before them were accurate and in accordance with the authorities referred to in R. v. Kotzmann (No. 1). It is true, as Mr. Boyce points out, that his Honour did not tell the jury that they had to be satisfied of any particular circumstance beyond reasonable doubt before using that circumstance in determining the applicant's guilt. What he did tell the jury was that they could only convict the applicant if they were satisfied beyond reasonable doubt, upon the combined force of such circumstances as were established to their satisfaction, that the applicant was the robber. Consistently with those instructions he also told the jury that it was the Crown's burden to exclude beyond reasonable doubt any hypothesis reasonably consistent with innocence arising from the circumstances so accepted. As I understood his arguments, Mr. Boyce did not take issue with the judge's directions save and accept to the extent to which I have previously alluded. However, it seems to me that a direction to the jury that one or more of the circumstances relied upon by the Crown should be proved to their satisfaction beyond reasonable doubt before they could use it in determining the guilt of the prisoner would be inconsistent with the jury's task of determining guilt from the combined force of the circumstances proved, as distinct from looking at those circumstances in isolation. In a circumstantial case such as this one it is the accumulation of circumstances, each perhaps lending weight to the other, which must be looked at by the jury for the purposes of determining whether the Crown has satisfied them, to the requisite standard, of the guilt of the accused; and whether the Crown has excluded to their satisfaction beyond reasonable doubt all hypotheses reasonably consistent with innocence. No doubt the identification of the weapon used in the robbery as the weapon which the Crown alleged to be in the possession of the applicant was a significant circumstance; as was the provenance of the dye bombs, the remnants of which were found in the incinerator at the premises leased by the applicant. But so too was the obvious height and build of the robber depicted in the bank security photographs and attested to by the bank staff, which clearly showed a person of similar characteristics to the applicant - a fact which may well have been regarded by the jury as a significant one. Indeed, it had been noted by the prosecution that some of the security photographs displayed a bulge under the back of the balaclava worn by the robber which the jury might have considered to be consistent with the containment of the "pony-tail" which is part of the applicant's hairstyle. Then there was evidence of the similarity of the apparel, particularly the track suit pants and the running shoes worn by the robber, with the charred remains of fabric and shoe soles recovered from the applicant's incinerator. There were other circumstances as well including the recovery of the balaclava from the bag said to be in the possession of the applicant, the "Balance" windcheater which was handed to the police by Mrs. Hasiotis and said to be similar to the garment being worn by the robber; and there were the circumstances in which the applicant had secured for himself the premises in the remote locality of Arnold West. In such a circumstantial case, where none of the circumstances relied upon to prove guilt was (as this Court said in Kotzmann (No.1)) an indispensable link in a chain of sequential reasoning, it is the function of the jury to determine the weight which should be given to the circumstances relied upon by the Crown and whether, at the end of the day, the combination of circumstances which they accept are of sufficient strength to prove the guilt of the accused beyond reasonable doubt. Nevertheless Mr. Boyce contended that in this trial, where the accused had led evidence from an expert suggesting that there were dissimilarities between the gun wielded by the robber (as shown in the photographs) and the gun recovered from the applicant's possession (Exhibit D), it was incumbent upon the judge to, at least, direct the jury that they should be satisfied on the balance of probabilities that exhibit D was in fact the gun wielded by the robber before they could use that circumstance in determining guilt (my emphasis). Likewise, as I understood him, he submitted that because material from the Bureau of Meteorology suggested that there had been rain in the vicinity of Arnold West shortly before the material in the incinerator was recovered, and that the dye recovered from the incinerator was inconsistent with the condition in which it would have been found if it had been penetrated by water, the jury should have been instructed that they could only use the circumstance of the applicant's possession of the remnants of the dye bombs if they were satisfied on the balance of probabilities (my emphasis) that such remnants came from the "bombs" in the possession of the Bank of Melbourne on the 29 July 1995. Those submissions, in my view, cannot be accepted. The applicant's purpose in leading such evidence (which had not been led at the previous trial) was to cast doubt on the circumstances relied upon by the Crown. No doubt it was evidence which the jury could take into account (as they were directed here to do) in determining the strength of the Crown's circumstantial case and whether, at the end of the day, the Crown had excluded to their satisfaction beyond reasonable doubt all hypotheses reasonably consistent with innocence. But the mere fact that the accused leads such evidence before the jury does not alter the nature of the case being made by the Crown or make it incumbent upon the judge to direct the jury that one or more of the particular circumstances relied upon by the Crown has to be given separate consideration and proved to a particular standard before it can be taken into account by the jury[10].

[32]

In the course of this application counsel for the applicant contended that the comparison of the apparel worn by the robber with that tendered in evidence was a jury question and not a question for expert evidence. It was said that, whilst the witnesses may have been qualified to express an opinion as to the make and style of the garments they were shown, it was not within their field of expertise to make a comparison between those garments and the garments revealed as being worn by the robber in the photographs. This was not a basis upon which the judge had been asked to exclude the evidence. In my view this argument lacks substance. It is also my view that his Honour was correct in allowing the evidence of these witnesses to go before the jury. Only people who are expert in the manufacture of the "Balance" windcheaters could express an opinion (as was in fact expressed) that the windcheater demonstrated to have been worn by the robber was in fact the same model of windcheater represented by Exhibit C. Furthermore, without the evidence of those expert in Adidas fabrics and the models of Asics shoes, the jury would have been in no position to come to a conclusion that the model of tracksuit pants worn by the robber and the type of shoes in which he was clad were comparable to the remnants of fabric and shoes found in the incinerator. Of course it is true that the evidence, by itself, could not lead the jury to a conclusion that the apparel worn by the robber was in fact the apparel or remnants thereof contained in the exhibits. However, as his Honour noted, the fact that the robber was wearing a windcheater of the same make and style as that found by Mrs. Hasiotis shortly after the applicant had stayed in her premises, and the fact that the robber was wearing track suit pants and shoes of the same make and style as the remnants found in the applicant's incinerator, was evidence which the jury was entitled to take into account with other circumstances in determining the ultimate question of the true identity of the robber. The evidence was led not to identify any particular item of apparel, but to identify the types of apparel worn by the armed robber and, as is apparent, the expertise to give such evidence is not "an expertise" shared by members of the general community. Thus it was necessary "background evidence" to the forensic and other evidence from which the jury could infer that the apparel worn by the robber was similar to that found in the possession of the applicant, some of which he had attempted to destroy.

[35]

In the circumstances which confronted his Honour at the time of the application for exclusion, there was a basis upon which it might have been open to the jury to conclude that the windcheater being worn by the applicant on 23 October 1995 was the same windcheater as that comprising Exhibit C. As the evidence subsequently unfolded, it seems to me that the probative value of any comparison between Exhibit C and the windcheater being worn by the applicant on 23 October became minimal. The better view of the whole of the evidence - as I understand it - is that the applicant could not have been wearing Exhibit C on the day upon which he was arrested. Indeed that was the view which his Honour ultimately suggested to the jury in the course of his directions. But that is not to say that the exercise of his Honour's discretion to permit the Crown to lead the evidence of the surveillance photographs for this purpose was erroneous. His Honour was correct in my view to conclude that no prejudice flowed to the applicant from the admission of these photographs because it must have been obvious to the jury in any event that, by 23 October 1995, the police suspected the applicant of being involved in the robbery of the Bank of Melbourne. Because prejudice was the only basis upon which his Honour was asked to exclude the evidence and because - at the time when the application was made - there was a basis upon which the jury might conclude that the windcheater then being worn by the applicant was the same windcheater as Exhibit C, it is understandable why his Honour ruled against trial counsel's application to exclude those photographs. In the long run, any basis for such a comparison had disappeared and that fact must have been well apparent to the jury. Indeed towards the conclusion of the trial the photographs, which had been initially tendered for identification only, were, with the consent of the applicant's counsel, admitted into evidence absolutely. I am accordingly not persuaded that a miscarriage of justice flowed to the applicant as a consequence of the admission of the photographs and I would reject this ground of appeal and refuse the leave sought to amend the grounds to include it.

[59]

A further application was made by the trial counsel for the accused to discharge the jury by reason of events which occurred at the very end of the Crown case. It had become apparent by that time that the plastic Myer bag, which had been seized on the 23 October 1995, had been mislaid and the Crown was confronted with the task of identifying the "continuity of exhibits" which had been taken from the motor vehicles at the house of the applicant's grandmother in Burke Road. For this purpose the prosecutor sought to put before the jury certain entries recorded in the police "Property Book" identifying the receipt of the relevant items of property seized in the course of executing the search warrant and their subsequent movements. In the course of doing that, certain pages of the Property Book had been marked with "tags" and passed to the jury during the course of the examination of the police witness, Grainger. The Property Book was then recovered by the prosecutor and the "tagged" pages photocopied in order that they could be exhibited. After that had been done counsel for the applicant drew attention to the fact that, on a page of the property book unrelated to the "tagged" pages, was an entry of property which had been seized from the applicant's premises at Arnold West; an entry which demonstrated that two shotguns and a quantity of shotgun cartridges had been seized from that property. Counsel had submitted that those entries, if seen by the jury, would be highly prejudicial, particularly in the light of the fact that another police witness had given evidence that one of the bags recovered by police from the applicant's cars in Burke Road had included a "blue balaclava" and a "shotgun shell". His Honour, whilst expressing the view that little prejudice could flow from the fact that shotguns had been recovered from a farm property, said that he was prepared to ask the jury whether they had looked at any pages in the property book other than the ones which were "tagged". Although Counsel had tentatively asked for a discharge of the jury, it would seem from a reading of the transcript that he was prepared to acquiesce in this proposal. Accordingly, on the following morning, his Honour addressed the jury as follows:-

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