THE STATE OF WESTERN AUSTRALIA -v- MONTANI [No 2] [2007] WASC 110 (16 May 2007)

Supreme Court of WA|2007-05-16|Before: Kechnie J

1 McKECHNIE J: The accused is charged that on 12 May 2004 at Embleton he wilfully murdered Michael McKrill also known as Kevin Ashley Woodhouse. He has pleaded not guilty. Under the Criminal Procedure Act 2004 (WA) by s 108 if I am satisfied that the accused has no case to answer I may find the accused not guilty of the charge without requiring the jury to give its verdict and I exercise this power whether or not the accused has submitted there is no case to answer on the charge.

2 There is an abundance of evidence that the deceased was shot at around about 4.50 am at the premises of the Bayswater Waves Recreation Centre in Embleton. He was shot four times in rapid succession and there is clearly evidence from which a jury may conclude that he was wilfully murdered. There is also evidence that the weapon was a revolver capable of firing .357 ammunition. So much is conceded by defence in the opening statement of counsel. The issue in the case is the identity of the killer and, particularly, whether there is at present evidence from which an inference is capable of being drawn by a jury that the accused is that person.

3 The test for a submission of no case to answer was settled in Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482. Counsel sought to suggest that the High Court in Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51 may have laid down a different principle. I do not consider that the judgment of Gleeson CJ at [16] ‑ [19] lays down a different principle. The principle is to be extracted from the judgment in Morrison at 489 ‑ 490:

"...where 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."

4 Morrison v Kiwi Electrix adopted, with approval, the test stated by King CJ in R v Bilick & Starke (1984) 36 SASR 321 at 337:

"The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt ... Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: 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?"

5 The question of circumstantial evidence has received recent attention by the High Court in The Queen v Hillier [2007] HCA 13; (2007) 233 ALR 634 particularly from [46] to [48]:

"46 The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

...

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:

'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence: cf Weeder v The Queen.

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage, cited in Reg v Van Beelen; and see Thomas v The Queen and cases there cited.'

'All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.' (emphasis added)"

6 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."

7 The Court further noted that a Judge "had no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory".

8 This is a case where the prosecution relies on proving facts so that the jury will draw inferences and ultimately draw, as the only available inference, an inference of the accused's guilt.

9 An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle: G v H [1994] HCA 48; (1994) 181 CLR 387 per Brennan and McHugh JJ at 390.

10 The drawing of an inference is the application of deductive reasoning from proved facts leading to a conclusion. Juries are entitled to draw inferences.

11 "Speculation" is relevantly defined by the Macquarie Dictionary as "4. conjectural consideration of a matter; conjecture or surmise". "Conjecture" is "3. the formation or expression of an opinion without sufficient evidence for proof to conclude or suppose from grounds or evidence insufficient to ensure reliability."

12 A jury cannot speculate. It is confined to matters of evidence and rational conclusions from the evidence.

13 In Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 Barton J said at 651:

"Whether the fact, or that body of facts which is called the 'case' is capable of bearing a particular inference, is for the Court, and unless it is so capable, the Court's duty is to withhold it from the jury, as a single fact or as a case. But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds."

14 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.

15 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.

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

17 It is sometimes said that a no case to answer submission in a circumstantial evidence case is very difficult to make good because the drawing of inferences, including the ultimate inference of guilt, is pre‑eminently a jury function. This is so but two things must nevertheless be established. First, there must be facts capable of being established from which an inference may be drawn. Secondly, the facts must support, either singly or in combination, a logical inference, not a guess or a speculation. It is sometimes difficult to identify precisely the difference between a rational inference and a speculation but there is a difference. The difference is acute in the present case to which I now turn.

18 There is evidence from which the jury could conclude that the accused lied to police about his movements on 12 May 2004 shortly after noon. On that day he took a circuitous route, including a visit to Whiteman Park, before stopping at the Cleanaway Transfer Station in Collier Road, Bayswater. In his video record of interview he gave a different account of his movements until confronted by police with the truth when he thereupon immediately exercised his right to silence. These were lies that were left to the jury by the prosecutor in opening at TS 2260 this way:

"On the state's case he shot him by reason of the argument or for whatever reason quite deliberately at close range, causing his death shortly afterwards, his tragic death, and on the state's case he was seen red-handed disposing of the evidence, if you like, that implicated him in the shooting, and when questioned about it later he lied about it, arising out of a consciousness of guilt."

19 In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 the majority (Deane, Dawson, Gaudron JJ) said at 209:

"When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' or as corroborative evidence."

21 In R v Dupas [2001] VSCA 109 Winneke P at [26] said:

"The circumstances in which the trial judge, in the interests of fairness, should give a direction in accordance with Edwards v The Queen cannot be confined within, or prescribed by, rigid formulae. ... In a case such as this one, where the Crown was seeking to establish the applicant's involvement in the crime through the combined force of a series of circumstances which, in the Crown submission, excluded any hypothesis reasonably consistent with innocence, it will not often be the case that any one particular evidential circumstance will, by itself, amount to an implied admission of guilt by the accused of the crime with which he is charged. Whether the evidential circumstance comprises a statement made to the police or some other conduct of the accused, its probative strength will ultimately depend upon the combined force of all the circumstances of which it forms part."

22 It should be noted that in Dupas the Crown was not relying upon lies as implied admissions of guilt:

"Rather ... their probative strength depended upon the view formed by the jury of the combined force of all the circumstances upon which the Crown was relying in the light of the explanations given by the accused for those circumstances."

23 The position of the Crown in Dupas may be contrasted with the position of the prosecution in this case which does rely on the lie as evidencing a consciousness of guilt, although I also consider the lie as a circumstance.

24 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.

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

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.

27 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. Included in the items was a small fragment of glass. However, in light of evidence from Detective Sergeant Wilde, the glass has no significance.

28 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.

29 The State points to a number of other circumstances from which it says inferences can be drawn:

The person who Shot the Deceased was a male person wearing dark clothing

"The person was wearing dark clothes, dark trousers or jeans with a dark shirt - a shirt or jumper. I don't recall if it was a shirt or jumper, black motorbike helmet, open face. It did not have a visor. I don't recall if he was wearing gloves or not."

32 At TS 2423 in cross‑examination he said he could no longer recall but it was either a jumper or a shirt.

33 The State also refers to the evidence of Mr Tetaur at TS 2302 who describes the person as wearing dark clothing.

34 Mr I J McCracken saw the motorbike for a brief second and was asked about the clothing and said: "Just everything looked dark except for the helmet.

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. The police recovered a dark closed‑face helmet which had been dumped at the Cleanaway Transfer Station by the accused. They also recovered a silver and red closed‑face helmet at the accused's house in Rodda Street, Morley. No witness identified either helmet as one the same as or similar to that observed on the morning. In fact, Mr I J McCracken described the helmet at TS 2331: "Just a light coloured helmet. It stood out more than everything else". Mr Drew McCracken agreed that his statement overheard on the 000 number that the helmet was white was a better recollection. He described the helmet he had seen the rider wearing, to the best of his recollection, as an open‑faced helmet.

36 Mr Badani described the helmet as a black motorbike helmet, open‑faced with no visor. Mr Tetaur described the helmet as light coloured. In short, no prosecution witness has described either the man, who must have been the shooter, or the man on the motorcycle, who was highly likely to have been the shooter, to have been wearing a motor cycle helmet of the type owned by the accused.

37 The only, albeit brief, description of clothing on the upper part of the body was a shirt or jumper. No shirt or jumper has been tendered into evidence. The accused disposed of a black jacket.

The person who shot the deceased immediately left the Bayswater Waves complex riding a motorcycle that turned right from the carpark on to Broadway, a street running adjacent to the Bayswater Waves complex

38 There is evidence from which a jury could infer that.

The motorcycle that the shooter rode from Bayswater Waves was an older style motorcycle with a headlight, the flaring and visor all in one built into it

39 The description of the motorbike given by Mr D E McCracken at TS 2344 was broadly consistent with the motorbike purchased by the accused very shortly before the shooting.

40 The four bullets found at Bayswater Waves were consistent with being .357 magnum calibre bullets described as semi‑wad cutter or target ammunition and were a type not commercially available or sold since 1998.

41 The prosecution further asserts that the bullets located were those fired by the shooter at the deceased from a revolver. So much may be accepted. However, the evidence in the trial establishes that the .357 ammunition is manufactured by a number of companies. Moreover, many revolvers fire .357 ammunition. Expert evidence was given to that effect by Sergeant Burnham. At one stage he narrowed the number of firearms with the rifling characteristics of the bullets found at Bayswater Waves. In cross‑examination he considered that he had made 27 errors in Exhibit 31. He produced a further amended list (Exhibit 92). This list is also deficient. The fact that he chose not to advise anyone of his errors until cross‑examination brought them to light is astonishing but for present purposes his evidence is that many firearms could have fired the bullets. No revolver has been found in the accused's possession. The evidence is that he reported a theft of a Smith & Wesson revolver on 23 March 2001. There is some evidence from Mr De Rosa that at a time much earlier the accused had possession of handguns. No revolver is specified by Mr De Rosa. There was an opportunity for the accused to have disposed of a firearm on 12 May 2004, especially when he entered Whiteman Park even though a comprehensive search by over 100 FESA personnel failed to find any trace of it. But the accused's opportunity to possess a firearm cannot convert a negative into a positive and it remains the case there is no evidence that he possessed a firearm as at 12 May 2004. There is evidence that the accused has owned a firearm in the past, as I have said, and also evidence that he has shot a firearm as a member of a pistol club. Moreover, he has shot .357 ammunition. There is, however, still no evidence that he possessed a firearm of any sort on 12 May except by reasoning that he shot the deceased and therefore must have possessed a firearm on that day. Accordingly, there must be facts capable of giving rise to that inference.

42 The deceased was shot four times. Four cartridges were found in a bag disposed of by the accused. The cartridges were capable of firing .357 ammunition. No tests were performed on the cartridges for gunshot residue or indeed for fingerprints although it is a reasonable inference that the cartridges had been placed in the bag by the accused due to the presence of other items linked to him. The absence of any analysis of gunshot residue from the cartridges - a rich source of gunshot residue - means that there is no evidence of any link between the gunshot residue found on swabs and clothing and the cartridges. No explanation was given for the absence of testing. There is no evidence as to when the cartridges were fired, bearing in mind that the accused is a person who has discharged firearms in the past. A firearm is also a rich source of gunshot residue. 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.

43 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.

44 A pair of motorcycle gloves seized from the premises of the accused at 43 Rodda Street also disclosed traces consistent with gunshot residue. Gunshot residue particles could have been deposited on clothing on different occasions (P A Collins at TS 2913). Every conceivable type of ammunition will produce gunshot residue. Mr Collins cannot determine the precise source of a gunshot residue particle, although he had little doubt that the items he examined were gunshot residue.

45 Gunshot residue was also found on a black scarf. However, no witness has described any person as wearing a scarf.

46 The group of papers comprising Exhibit 55, is a set of documents including a draft letter introducing the writer as a contract killer to an underworld identity in Victoria. There is evidence which could link the accused to the letters. The prosecution asserts this as relevant to the jury's assessment of the character of the accused. If that is its only relevance then the letters are inadmissible. The draft letters are admissible if logical inferences can be drawn, in combination with other circumstances, leading to the guilt of the accused on the crime charged. The letters do not even show a propensity to commit criminal acts. They are an inchoate expression of possible future conduct. They do not mention the deceased. They do not evince any state of mind regarding the deceased.

"... And after your base called and asked for his name did you say something to the person?---I said, "What's your name, mate?" and - - -

What did the person say?---I took it as Johnny Montoya.

Yes?---I believe I'd said something wrong because he corrected me.

... he shot back with - "an O" - "an O" and I took it as I'd put the Montoya, the A at the end wrong, so I called it back through as Montoyo.

Yes, and what were the exact words, though, that the person said to you?---"Johnny Montoyo".

How many times did the person say the name Johnny Montoyo?---Once.

...

Before he said those words he said "I'm a gonna. They've got me."

48 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.

49 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 convey, despite an opportunity for correction.

50 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.

51 To be so satisfied there must be other evidence in the case from which the accused's involvement can be inferred. This evidence standing alone is insufficient to sustain the inference. Counsel for the prosecution conceded (TS 2222) that the jury would have to be satisfied beyond reasonable doubt that the deceased was referring to the accused before it could use this evidence.

52 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.

53 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.

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

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.

56 There is an intriguing circularity to the prosecution case so that at first sight it appears to disclose a strong case to answer. On analysis, however, a different picture emerges. There are evidential gaps that prevent the drawing of rational inferences, as opposed to speculation and rhetoric.

57 There is not a skerrick of physical evidence that directly links the accused with the crime.

58 There are a number of possibilities and consistencies in the gunshot residue, type of motorcycle and disposal of four cartridges. However, even taken together, they still do not amount to facts from which more than the possibility of the accused's guilt in the crime can be inferred.

59 The letters do not advance the prosecution case beyond the possibility that the accused may be willing to entertain the thought of killing for money somewhere else and someone else.

60 In all the reported cases referred to by the prosecution where the past offence conduct and/or lies told by an accused have been taken to be part of the circumstances leading to guilt, there has been other evidence linking the accused with the crime directly or by inevitable inference: R v Loader [2004] SASC 234; (2004) 89 SASR 204; Banks v The Queen [2003] WASCA 198; Hillier, Dupas.

61 In the present case, there is no such evidence. In fact, there is credible evidence to the contrary. The descriptions of the helmet are inconsistent with the helmets tendered in evidence and belonging to the accused.

62 A jury could not rationally reject this evidence unless there was positive evidence linking the accused to the crime so as to displace the observations of the witnesses as to the colour of the helmet and the description as "open‑face".

63 As against this evidence there is a series of possibilities that when added together remain just that - possibilities. An inference that the accused is possibly guilty is insufficient to displace the presumption of innocence.

64 Having drawn all reasonable inferences from the facts adverse to the accused and in favour of the prosecution, I conclude that the evidence is not capable of producing, in the mind of a reasonable person, satisfaction beyond reasonable doubt as to the guilt of the accused.

65 I therefore direct that a judgment of acquittal be entered and the accused is discharged from further proceedings on the indictment.

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