REGINA v MMK [2005] NSWCCA 273

New South Wales Court of Criminal Appeal

REGINA v MMK [2005] NSWCCA 273 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 June 2005

JUDGMENT DATE: 4 August 2005

JUDGMENT OF: Spigelman CJ at 1; Grove J at 2; Hall J at 53

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal - Against Conviction - s61JA of the Crimes Act 1900 - Aggravated Sexual Assault in Company - Whether verdict unreasonable - Identification Evidence - Alibi Evidence - Whether jury properly instructed

Crimes Act 1900: s61JA LEGISLATION CITED: Criminal Appeal Act 1912: s6

Domican v The Queen (1992) 173 CLR 555 Dyers v The Queen (2002) 210 CLR 285 Festa v The Queen (2001) 208 CLR 593 Jones v Dunkel (1959) 101 CLR 298 CASES CITED: Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v Marshall (2000) 113 A Crim R 190

MMK (Appellant) PARTIES: Regina (Respondent)

FILE NUMBER(S): CCA 2005/3

A Haesler SC (Appellant) COUNSEL: R Cogswell SC, A Michelmore, C Morris (Respondent)

A L Wunderlich & Co (Appellant) SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70203/03

LOWER COURT JUDICIAL OFFICER: Sully J

IN THE COURT OF CRIMINAL APPEAL 2005/3

SPIGELMAN CJ GROVE J HALL J

Thursday 4 August 2005 REGINA v MMK

Judgment

1 SPIGELMAN CJ: I agree with Grove J. 2 GROVE J: This is an appeal against conviction following trial before Sully J and a jury. An alternative application for leave to appeal against sentence has been adjourned to be listed, if necessary, with similar applications by co-offenders. 3 The appellant was convicted on nine counts of sexual intercourse in company without consent, including charges in the category of special aggravation contrary to the provisions of s 61JA (1) of the Crimes Act 1900. Two victims were involved whom I will refer to as LS and HG. 4 Having regard to the issues at trial and on appeal, a brief statement of background facts as asserted in the Crown case should be sketched. 5 On 13 July 2002, LS and HG were in George Street, Sydney when they encountered the appellant who was in the company of his brothers MRK and MAK. At the time, LS and HG were aged about seventeen and sixteen years respectively. It was about 2 am and they had missed railway transport which would have taken them home. They accepted a ride in the car with these men. A stop was made in a journey to collect a fourth brother (MSK), a further stop to buy food at a McDonalds outlet and ultimately they arrived at the men's home in Thomas Street, Ashfield. 6 The group of six people conversed, listened to music and watched video and DVD displays. Eventually they slept. Three of the brothers retired to their rooms and LS and HG slept on the lounge room floor with MRK lying between them. There was no suggestion of any sexual activity on this occasion. On this night a video was taken of the group in the premises and it became an exhibit at trial viewed by the jury. 7 At about 10 am, MRK drove them to Ashfield Railway Station and they proceeded home. Before parting, he entered his telephone number into LS's mobile phone. 8 Contact was made on 27 July, as a result of which, late in the evening LS and HG were collected from East Hills Railway Station. In the car which collected them were the appellant, MAK, MSK and another man, RS. 9 The group returned to the Thomas Street premises. After about an hour, during which activity was much the same as on the previous occasion, a proposition to LS suggesting sexual intercourse was made by the appellant. She declined. This was followed by a series of violent sexual assaults upon both LS and HG. All of the males, with the exception of MRK, were engaged in the physical perpetration of offences. In the course of them being committed, threats of violence were made, and, at times, knives produced. 10 At the conclusion of what the learned trial judge described as "two simultaneous series of rapes", LS and HG were taken in a car to Campsie where they were left in a street. LS had her mobile phone and she made an emergency call, as a result of which police and ambulance came to the aid of the victims. 11 The response of the appellant to the charges was denial of participation in any offence, whether as an actual perpetrator or by being engaged in a joint criminal enterprise. Although he had met LS and HG on 13 July and been with them on that occasion, he claimed that on 27 July he was not at the premises in Thomas Street but at the residence of another brother (MTK) in Frederick Street, Ashfield. He contended that LS and HG had erred when they each identified him as a participant in the crimes committed upon them at the Thomas Street residence. 12 Three grounds of appeal were advanced: Ground 1: The verdict of the jury was unreasonable and cannot be supported having regard to the evidence. Ground 2: His Honour failed to properly instruct the jury in relation to the dangers inherent in identification evidence. Ground 3: His Honour erred in his instructions to the jury in relation to alibi evidence. 13 It is convenient to deal first with grounds 2 and 3. 14 It was submitted that, of the three accused who stood joint trial (the appellant, MRK and RS), only the appellant seriously raised the issue of identification. The appellant and MRK gave evidence that the appellant was not at the Thomas Street property when the offences occurred. In support of what amounted to the claim of mistaken identity it was acknowledged in a written submission that "at least two of the appellant's brothers MSK and MAK, who had similar names and superficially similar appearance, had in fact sexually assaulted the girls in traumatic and terrible circumstances". All of the brothers had the same forename and family name and they were distinguishable from each other in that regard only by their middle names. 15 His Honour's relevant directions to the jury commenced with a reminder that the appellant contended that HG and LS were wrong when they identified him as someone who had been present. He proceeded to give the jury a series of cautions. He directed them that it was for the Crown to prove beyond reasonable doubt that the appellant had been correctly identified. He expanded in these terms: "It is for the Crown to refute the challenges made and to prove beyond reasonable doubt that the identifications are reliable. In considering that question, you should consider these matters. They are directions of law which you must take into account. First, the experience of the courts over many years and in many cases has shown that any alleged identification is always something to be considered with special care and caution. The reason for that is that experience has taught that it is not at all unusual for a person to be honestly mistaken, but mistaken nonetheless, in the making of a particular identification." 16 His Honour continued to emphasize that questions of identification must be approached with great care and he specifically drew attention to the evidence that the complainants did not know the appellant prior to 13 July. He instructed them to consider the circumstances and the duration of contact and what opportunity the complainants had to reliably recognize and thereby identify the appellant. The jury should bear in mind, he added, the terrifying circumstances described by them as having been undergone, and whether on that account they saw something or somebody which in fact they did not see. 17 In due course his Honour returned to repeat his initial caution: "Be mindful throughout of the point on which I started, that experience teaches there is scope for honest mistakes in the way people identify other people, particularly in situations of stress." 18 Those directions, expressed with his Honour's authority, adequately fulfilled the requirements to be included in a charge to the jury in accordance with what was laid down in Domican v The Queen 1992 173 CLR 555. 19 At trial, counsel sought amplification in two respects. His Honour refused both applications. The first adverted to his Honour's reference, when directing the jury that it was not unusual for a person to be honestly mistaken, to the circumstance that "examples of a general kind were put to you yesterday", obviously a reference to address by counsel. The specifics sought were references to clothing, physical similarities or expectations on the part of HG and LS. These were matters for argument and obviously had been advanced. His Honour was obliged to caution the jury adequately, which he had done. It was not obligatory to reproduce every detail of argument advanced on behalf of the appellant. 20 The second matter was raised with reference to R v Marshall 2000 113 A Crim R 190. That was a case, tried by a judge sitting without a jury, in which the prosecution was entirely dependent upon identification by a single witness, who had been the victim of a robbery in a liquor store which he owned. In a ruling on an application to exclude evidence of identification, the judge found "the accused was not prejudiced in any way other than in the respect that all evidence that might lead to conviction is prejudicial". Spigelman CJ (Heydon JA and James J agreeing) commented: "The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. These are matters about which witnesses frequently refuse to admit the possibility that they might have erred and accordingly, give evidence in a particularly definitive form. It appears that his Honour was impressed by the way the (witness) gave evidence of identification and indeed made reference to (the witness's) demeanour. However, it is the experience of the court with respect to identification, that demeanour can be misleading." 21 Those comments did not establish, as counsel's submission contended, a particular component of warning which, if omitted from a charge to a jury, would constitute error. The obligation, which his Honour fulfilled, was to instruct the jury as to the factors which may affect their consideration of identification evidence in the particular case. 22 In the course of exchange with counsel, Sully J made some observations, during which he referred to a perceived distinction between Domican an "identification" case and Festa v The Queen 2001 208 CLR 593 which he described as a "recognition" case. It was submitted that his Honour erred in commenting that the former case could be read down in the light of the latter. As the submission notes, this was no more than a comment made in the course of exchange with counsel. The issue is whether his Honour's direction, which he in fact gave the jury, was inadequate. For the reasons given, in my opinion they were not inadequate and this ground should not be sustained. 23 I turn to ground 3. The essence of argument in support of this ground was assertion of a combination of two errors, that the jury were invited to take into account a failure to call evidence by the appellant when deciding whether the Crown case was proved and that, in making that invitation, his Honour had reversed the onus of proof. 24 The complaint focussed upon a passage in the summing up commencing with the words "it was put to you yesterday", however it is desirable to consider what was said in the context of what immediately preceded it: "I remind you of the direction given earlier about the need for care in connection with any disputed question of identification. I remind you again of the obvious question mark hanging over the evidence of Miss Therrien; and I remind you of the DNA point which was made, may I say with complete clarity, yesterday." 25 I interpolate that no complaint is made of the downplaying of the possible value of the evidence of Miss Therrien nor the reference to the "DNA point" which was an argument advanced on behalf of the appellant. His Honour continued: "And I remind you of this. There is no independent evidence with one exception, supportive of the alibi. The exception is that MRK himself in his evidence, however hard he was pushed and he was pushed very hard on a number of occasions, adhered to the proposition that so far as he is concerned his brother MMK had not been there. Of course if you set that aside for the moment – not rejected but set it aside for the moment – nobody else comes forward from Frederick Street to say: 'I can support the alibi because I was there and I saw him and I can say that he came at such and such a time, left at such a time and went to sleep at such a time', or as the case might be. It was put to you yesterday in submission that all MMK could do in connection with his alibi was to stand to it himself by giving evidence as he had done and point to those other matters, the DNA inconsistency and so forth that I have just now mentioned to you as tending to support what he was saying. You would be entitled to take into account in deciding whether or not you accept that he was not there; or to put that more precisely whether you are satisfied that the Crown has proved beyond reasonable doubt that he was there, you would be entitled to take into account, not to the exclusion of the other matters but as well as the other matters, that there is, MRK apart, nobody who comes forward to say that he or she or they can vouch for MMK having been at Frederick Street when, according to the Crown case, he was at Thomas Street." 26 As the introductory words in the final paragraph of that citation disclosed, his Honour's remarks to the jury were made in response to a matter raised by counsel's address. This should be traced in order to examine the complaint. 27 Counsel had addressed the jury in these terms: "If you have significant doubt about what a witness says in relation to an important matter in this case, then those doubts must flow on to some of the other things that they say because all we can really do in a case such as this is test the evidence, and call evidence, the only evidence really available to us we say, that is from MMK. And that is what we have done." 28 Later in the absence of the jury his Honour raised the issue of the accuracy of this, having regard particularly to accounts of persons being at or passing through the Frederick Street premises. Counsel acknowledged his fault and his Honour responded that it was not a matter of fault, but a matter which in fairness to the Crown required correction. Counsel stated that there was evidence that MTK and his wife were there (at Frederick Street) but there was also evidence that MTK had been arrested "for perverting the course of justice offences". His Honour indicated his alertness to the error which would occur if a direction were given along the lines of Jones v Dunkel 1959 101 CLR 298 (see Dyers v The Queen 2002 210 CLR 285) and he expressed his intention: "I don't want to do anything more than say to the jury as I am going to say in connection with some of the general directions that if you strike a gap in the evidence you can not fill it in yourself. If there is a gap in the evidence well there is a gap in the evidence and you have just go to make the best you can of the evidence that you have. Now the evidence that you in fact have is that the propounder of the alibi is not supported by anybody else coming forward and saying I was there at (the) time and I saw him curled up in the rug asleep and I watched the clock and I can tell you that he went to sleep at such and such a time and didn't wake up until such and such a time on the following morning. I wouldn't put it as flamboyant (sic) as that. That is the sort of thing that I think they are entitled to have." 29 To this counsel responded: "That is final (sic - fine) apart from MRK." 30 After the charge to the jury in the terms set out above, there was an adjournment and, in the absence of the jury, the issue was finally canvassed: "Counsel: …… Your Honour put me on notice that your Honour would give the last direction. I ask your Honour to tell the jury that the Crown likewise could have called a witness to say he was not at Frederick Street. His Honour: I deliberately didn't say MMK could have called – I deliberately didn't say that. I said they were entitled to take into account that in fact nobody else had been called to vouch the other way…." 31 Whilst it can be inferred that counsel would have been quite conscious of the absence of testimony from MTK and his wife who had been at Frederick Street at relevant times, the perception that his Honour may have implied that MMK could have called either of them (or anybody else) is not reasonably to be drawn from his Honour's articulations which drew the jury's attention to what might (if MRK's evidence was not relied upon) appear to be a gap in the evidence. The application to "even things up" by telling the jury that the Crown "likewise" could have called a witness, would provoke the very error that his Honour set out deliberately to avoid. 32 At the hearing of the appeal the Crown Advocate, who did not prosecute at trial, pointed out that no impression that his Honour had inadvertently reversed the onus of proof seemed to strike counsel and that the submission was made for the first time on appeal. Although his examples were not related to what has become the issue argued, it is apt to recapitulate that when his Honour turned to these matters he had reminded the jury in these terms: "If one is to present the cases in any sensible kind of way at all it is inevitable that there will be such references as: 'The accused answers the case in this way'; 'The accused did this'; 'The accused said that'; 'The accused submits this or that', expressions of that kind. I have lost count of the number of times in which I have had applications based upon the proposition that expressions of that kind somehow reverse the onus of proof. Please let us be clear: nothing I say in the course of this summing up should be understood as in any way detracting from what I have earlier said to you about the burden of proof and the standard of proof." 33 I would reject ground 3. 34 I return to ground 1. Each of the appellant and MRK testified that the appellant was not at Thomas Street on the night of 27 July when, as stated in a written submission on behalf of the appellant, "there is no disputing that HG and LS were sexually assaulted this night by a number of men including MSK, MAK and RS". The jury disbelieved the evidence of the appellant and MRK. They accepted the evidence of HG and LS. 35 The test for determination when a ground such as ground 1 is advanced has been authoritatively examined in the context of s 6(1) of the Criminal Appeal Act 1912. In Jones v The Queen 1997 191 CLR 439, in a joint judgment (Gaudron, McHugh and Gummow JJ) their Honours reminded: "In M ( M v The Queen 1994 181 CLR 487) Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that: 'in answering the question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.' The majority judges explained the applications of the test as follows: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'. " 36 To similar effect is the more recent judgment in MFA v The Queen 2002 213 CLR 606. 37 The appellant pointed to specific aspects of the evidence in support of his contention and the ground can be dealt with in their context. 38 The first focussed upon the reference by HG and LS to "Mohammed". This was the common forename of all five brothers (including MTK). Both complainants gave evidence that "Mohammed", whom they met at East Hills on the night of 27 July was the same person whom they had met and knew by that name on 13 July. They each identified the appellant from a photo array and his appearance on the video which had been made on 13 July. 39 There was evidence which supported the absence of error by HG and LS in identifying the appellant as "Mohammed". Marissa Germana, who knew the K family and was of approximately similar age to the appellant and MRK, said that she called the appellant "Mohammed" but that she called MRK by his middle name. Vanda Blakeway (who received a phone call from MRK seeking directions to East Hills Station) also gave evidence that she called MRK by his middle name but called the appellant "Mohammed". In address to the jury on behalf of the appellant, counsel referred to his client's evidence: "(the appellant) said – yes, I did meet the girls on the 18th (an apparent transcription error which should read the 13th). I did introduce myself as Mohammed. I did often introduce myself as Mohammed." 40 Counsel went on to refer to evidence that at times the appellant was called by his middle name or by a nickname. The integrity of the jury verdict is not affected by the evidence of HG and LS identifying the appellant as being known as "Mohammed". 41 The Crown case, inter alia, alleged physical sexual assault upon HG by the appellant. These occurred in a bedroom. She was also physically attacked there by RS. She referred to one assailant as "Mohammed" and the Crown case was that this was the appellant. Two incidents in her description of ordeal included references to "Mohammed" ejaculating on her and her clothing and to the use of a condom. 42 Semen and DNA were recovered from HG's clothing. It was analysed by Ms Burger, a forensic biologist. She also analysed swabs contained in "sexual assault kits" which had been taken from HG. 43 The DNA on the clothing produced a match with the DNA of the assailant RS. This analysis did not incriminate the appellant. It should be observed, however, that HG's evidence in relation to the appellant did not assert spillage of his seminal fluid upon her in terms any higher than possibility. 44 A blue condom, evidenced as used in a penetration upon HG, was tested. Ms Burger was able to match the DNA profile of RS inside and outside the condom. The test results were "too complicated for me to work out whether (HG) was there or not" but she did establish that at least two persons were represented on the condom apart from HG and that the third person may or may not (by test result) have been her. 45 The high vaginal swab from the "kit" established DNA from HG and RS and a third person. 46 None of this evidence incriminated the appellant and neither did it exclude him. Although it was directly incriminating of RS, it was consistent with HG having been the victim of sexual assault by another apart from RS, and was therefore consistent with the Crown case of penetration by the appellant, whose identification was the subject of other evidence. 47 It is true that the description of attacks by HG included her testimony that it was "Mohammed" who used a condom. As indicated, there was positive evidence that RS used one. That the victim of assaults such as were perpetrated upon HG on this night might be mistaken in her recollection as to which assailant used a condom, is something which a reasonable jury might well find understandable and not regard as diminishing her credibility. As I have pointed out, what the analysis does show is that there was more than one attacker upon HG, and an isolated possible error of the nature under consideration would not reasonably cause discomfort about accepting other evidence identifying the appellant as that second attacker. 48 There was evidence in the nature of an admission which had been made to JT, who had been, for about two and half years, the girlfriend of MAK and had resided in the household with him and his brothers. Arising out of conduct in the aftermath of the attacks on HG and LS, JT was charged with attempting to pervert the course of justice in connection with the making of a false declaration. His Honour gave the jury strong direction about her dubious credibility and it was acknowledged in a written submission by counsel that, "it is highly likely that the jury put her evidence to one side." Although this might be accepted, it can also be noted that the evidence was not withdrawn from the jury, nor was it required to be. 49 The proof by the Crown of the appellant's presence at Thomas Street is claimed to be undermined by some records of telephone calls. The compilation shows approximately fifty calls made from telephone services held in the names of various K brothers, together with three calls from a service held in the name of RS, between shortly after 2 pm and up to midnight on 27 July. None of the calls is from a service in respect of which the appellant is recorded as the subscriber. There are three calls logged as having been made to a service of which he is recorded as the subscriber. At 4.05 pm a call of thirty two seconds duration was made from a service designated to MAK; at 9.03 pm a text message was sent from a service designated to MRK and at 11.50 pm a call was made from that service extending for twenty eight seconds. 50 The existence of these records was argued to support the appellant's assertion that he was not at Thomas Street. Whilst the argument can be recognized, the evidence falls far short of undermining the evidence otherwise of the identification of the appellant. The despatch of a text message does not demonstrate that the subscriber to the receiving service was present at the time to read it, nor do the voice call records show between whom conversation, if any, may have taken place. 51 The matters raised on behalf of the appellant, individually or in combination do not, to my mind, impair the jury's verdicts. An examination of the Crown case does not lead to any conclusion that it lacks credibility and I do not conclude that in the circumstances, a reasonable jury ought to have experienced doubt about the appellant's guilt: M @ 494. 52 I would dismiss the appeal against conviction. 53 HALL J: I agree with Grove J. **********

09/08/2005 - Incorrect spelling of Counsel (Mitchelmore) - Paragraph(s) Front sheet

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