R v Girardo[2012] QCA 166

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree that the appeals against conviction should be dismissed and the applications for leave to appeal against sentence should be refused for the reasons given by Peter Lyons J.

[2] PETER LYONS J: Each appellant was convicted on two counts of demanding property, benefit or the performance of services by oral threats under s 415 of the Criminal Code 1899 (Qld).  Mr Girardo was convicted on the basis that he procured the offences, and Mr Michaelides on the basis that he (with another) made the demands and threats of injury constituting the offences.  For Mr Michaelides, the convictions extended in each case to an aggravating circumstance, namely, that the threat, if carried out, would be likely to cause loss of life; whereas Mr Girardo was convicted of the offences without that circumstance.

[3] Each appellant has appealed against conviction on the basis that it was unreasonable for the jury to have concluded the guilt of the appellants beyond reasonable doubt.  Success in Mr Girardo’s appeal is dependent upon the success of Mr Michaelides’ appeal.  The latter focuses on the quality of the identification evidence at trial.

[4] Each appellant also applied for leave to appeal against sentence.  Mr Michaelides did not pursue that application.  Mr Girardo’s application for leave to appeal contends that the sentences imposed on him were excessive. 

Evidence implicating Mr Michaelides

[5] The person to whom the threats were made was Mr Ian Anderson.  He gave evidence that an arrangement had been made for him to attend at a remotely located property in Tallebudgera Valley, in the Gold Coast hinterland, at 11 am on 24 January 2006.  When he arrived, two men were there, one of Caucasian extraction, and one of Polynesian extraction.  The Caucasian person produced a gun.  Threats were then made to Mr Anderson, including threats against his children.  The Caucasian person said he was “here for Mario” and made reference to “Mario’s money”.  Mr Anderson was then shown documents on which, although he was not wearing glasses, he could see in bold print the names “Mario Girardo”, and “Knight Corporation” as well as his own name.  Mr Anderson was told that he had to sign these documents, which he did.  The other two men also produced a document which Mr Anderson said he could see had been signed by both Mr Girardo and himself.  The men then told Mr Anderson he would have to pay money to a solicitor to be nominated by Mario.  He was then told to walk further up the property, away from the road, at which time the other two men left the property. 

[6] Some minutes later, Mr Anderson made his way to the front gate of the property, some distance from where these events had occurred.  There he met some council workers, who gave him his car keys and phone, which they said had been thrown out of a car window.  They also pointed out a green can, which had also been thrown out of the window of the same car.

[7] After making contact with members of his family, Mr Anderson spoke to the police.  He gave a description of each of the men who had threatened him.  He also assisted in the preparation of Com-Fit pictures of each of the men.  Mr Anderson was also shown a board with a number of photographs on it.  Photograph number 6 was a photograph of Mr Michaelides.  Of photograph number 1, Mr Anderson said that it “looks pretty close but there is something different, like the colour of the hair”.  He also said of photograph number 6 that it “very, looks very like the guy who was the shooter”.  However, he said that he could not be definitive in his identification of the person in either of those photographs, and that while “both have aspects … I couldn’t say that absolutely”.  The Com-Fit photographs and the photo board were in evidence before the jury.

[8] There was also evidence that Mr Michaelides had been introduced to Mr Girardo about the end of 2005, as a debt collector.

[9] On the night of 17 June 2006, Mr Anderson was in James Street, Burleigh Heads, on the occasion of the winter solstice festival.  He estimated there were between 400 and 500 people in James Street.  He gave evidence that he recognised Mr Michaelides as the Caucasian person who had threatened him at Tallebudgera Valley.  His wife took a photograph of Mr Michaelides on her mobile phone.  Mr Anderson contacted the police.  Mr Michaelides was subsequently arrested.  A photograph was taken of him that evening at the Southport Watchhouse. 

Submissions relating to Mr Michaelides’ conviction

[10] It was submitted that there were detailed and objective flaws in the identification evidence, such as to cause a reasonable jury to have a reasonable doubt that Mr Michaelides was involved in the commission of the offences.

[11] The submissions commenced with a reference to the fact that Mr Michaelides was exactly 49 years of age at the date of the offences.  Senior Constable Phillis, the investigating police officer, took a description from Mr Anderson of the Caucasian offender, on 24 January 2006.  His written record was that the Caucasian person was said to be “about 30 years old”.  In cross-examination, Mr Anderson stated that he did not believe that he made that statement about the age of the Caucasian person, and that he could not remember saying it. 

[12] Mr Anderson gave various descriptions of the Caucasian person.  In his evidence-in-chief he said that he was “six feet plus tall” and of a “fairly slim build”, with “mousy hair”.  Senior Constable Phillis gave evidence that Mr Anderson, in a statement he provided to the police, described the Caucasian person as “around six foot tall” with thin, medium length, unkept light brown hair; and that in another statement Mr Anderson had described the Caucasian person as being of light build, with light brown hair, and 177 centimetres tall.  Under cross-examination about the descriptions he gave, Mr Anderson said that he thought he had said that the colour of the Caucasian person’s hair was mousy brown; and that it was more likely that he said the Caucasian person’s height was 187 centimetres, not 177 centimetres.

[13] Mr Anderson gave evidence that when he identified the appellant some months later, he was (by comparison with the time of the offences) “much bulkier and heavier” and had “put on weight”.  He also said that the weight of the Caucasian person, at the time of the offending, was not “in excess of 100 to 120 kilos”, and that his build was not that of a body builder.  Nor was he, at the time of the offending, “enormous in the face”.

[14] On the other hand, another witness, Mr Weber, who had known Mr Michaelides for about a year prior to the date of the offences, thought that his height was “around six foot”, his weight to be “about 100 kilos”, and that he had a “fairly big” face.  Mr Weber accepted that he was “not slim looking”.  Mr Weber also said that the colour of the appellant’s hair was at that time sandy, and accepted that it was “closer to blonde”.  Mr Weber also accepted the suggestion in cross-examination that a description of the applicant as “gaunt or slim looking” would be “almost laughable”. 

[15] Acting Detective Senior Sergeant Percival arrested the appellant in relation to the present charge on 17 June 2006.  He had seen him on occasion before that date.  He accepted that he had a rather large face and solid build, and with reference to the six months before the arrest, thought “he was bigger then than he is now, just looking at him”.  He also thought that he would “stand out”. 

[16] There was evidence that the appellant had the word “JESUS” tattooed on his right arm, between his elbow and his wrist.  The tattoo was some 30 centimetres in length, with the letters being some four to five centimetres in height.  Mr Anderson did not see a tattoo on the Caucasian person at the time of the offences.

[17] Mr Anderson accepted, on the assumption that the two men arrived at Tallebudgera Creek Road at 11.10 am on 24 January 2006, that they departed (probably) about 11.50 am.  He also gave varying evidence of the period for which they had been with him, from “30 to 40 minutes” to “almost an hour, probably 45 minutes”.  There was evidence of a telephone call from Mr Michaelides’ mobile phone at 11.56 am which was channelled through a mobile telephone tower at Surfers Paradise.

[18] One of the council employees who provided Mr Anderson with his keys gave evidence that he observed a man with blonde hair throw a can from the car as it drove away.  The can was tested for fingerprints and DNA.  The quality of the fingerprints found on the can was such that an identification could not be made from them.  DNA on the can was sufficient to enable an identification of the person from whom the DNA came, but it did not match the appellant’s DNA.

Consideration

[19] The statutory provisions on which Mr Michaelides relies were not specifically identified in the submissions made on his behalf.  Section 668E of the Criminal Code authorises this Court to allow an appeal against a conviction if it is satisfied that a verdict “is unreasonable” or “can not be supported having regard to the evidence” (other circumstances identified in this section add nothing, for the purposes of the present case).

[20] Against the background of the principle that a person is not to be convicted unless the jury is satisfied of the person’s guilt beyond reasonable doubt, the effect of these expressions is reasonably clear.  However, some assistance in their application may be found in formulations adopted by courts on other occasions.  A number of these were collected by Brennan J in Carr v The Queen.[1]

[21] One of those formulations is that of Dawson J in Whitehorn v The Queen.[2]His Honour described the question as being:

“… whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

[22] In Chamberlain v The Queen [No 2][3] Gibbs CJ and Mason J formulated the test as being:

“… whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused.”[4]

[23] These formulations emphasise the distinction between the task of the jury on the one hand, and the task of an appellate court reviewing a conviction on the other.  Nevertheless, bearing in mind that distinction, the appellate court must make an independent assessment of the evidence.[5]  In deciding whether there is such a doubt, recognition is to be given to the advantage which the jury had because the jury saw and heard the witnesses giving evidence.[6]

[24] Differences in the description of a person provided by two other people will often not be sufficient to support a reasonable doubt about the identification by either of them of the person first mentioned.  That is because a description involves an attempt to convert a visual impression into words, sometimes using units of measurement.  Nevertheless, the differences in the descriptions may be so marked to raise a doubt about one of them, and if that is provided by a witness who identifies an accused, then it may give rise to doubt about that identification.

[25] In the present case, it was open to the jury to determine whether it accepted Mr Anderson’s evidence that he had not said that the appellant was 177 centimetres tall.  That depended upon its assessment of Mr Anderson; and of the evidence as to the recording of the description provided by him which was said to include the statement that the Caucasian person at Tallebudgera Creek Road was 177 centimetres tall.  Moreover, it was entitled to take into account in doing so that on the day of the offence, for the purpose of the Com-Fit, Mr Anderson identified the Caucasian person’s height as six feet. 

[26] The appellant’s submissions make reference to the hair colour attributed to the Caucasian person.  Mr Anderson said that the Caucasian person had light brown hair.  Mr King, the council employee, said that one of the persons in the car from which Mr Anderson’s car keys were thrown had blonde hair (in fact, “light-coloured hair or blonde hair”).  On the assumption that both descriptions were of the same person, the differences simply reflect the fact that different people may use different descriptions for the same thing.

[27] Mr Anderson did not accept that he said that the Caucasian person was about 30 years old.  It was for the jury to determine whether they accepted the contrary; and in deciding that question they were entitled to have regard to the fact that on 24 January 2006, he had identified the age of the Caucasian person as being 45.  The fact that the appellant had turned 49 on that day does not, in my view, mean that a reasonable jury would inevitably have had a reasonable doubt about the identification.

[28] Mr Anderson’s identification of the Caucasian person in the course of the preparation of the Com-Fit image as a person with a “thinner face” and a “more drawn face” provided a basis for some doubt about his identification of the appellant.  So did the images which appear in the second draft produced by the Com-Fit process.  Other photographs of the appellant (the watchhouse photograph, and that in the photo board identification) show someone with a larger face, reflected in some of the evidence previously referred to.  To some extent, the same might be said about Mr Anderson’s reference to the Caucasian person as a person of light build, having regard to the evidence of Mr Weber; and Mr Anderson’s own evidence that when he saw the appellant in June 2006, he was much bulkier and heavier than the Caucasian person (Mr Anderson also made reference to the fact that in June, the appellant was wearing a large bulky winter top). 

[29] The photographs of the appellant which are in evidence, show a face which might be described differently by different persons.  The bone structure is rather prominent.  Some, focusing on that, might describe the face as large.  On the other hand, that used in the photo board would indicate a person whose face was not fleshy.  Plainly, the jury had to consider Mr Anderson’s evidence that the appellant was the Caucasian person at Tallebudgera Creek Road on 24 January 2006, in light of the totality of this evidence.

[30] The jury also had to consider the identification evidence in light of Mr Anderson’s description of the build of the Caucasian person, and other evidence of the build and weight of the appellant.

[31] A significant feature of Mr Anderson’s evidence was his evidence that the Caucasian person’s forearm was not covered by a shirt sleeve; but that he did not observe a tattoo like that on the appellant’s forearm.  As has been mentioned, Mr Anderson’s evidence was that he was in the presence of his assailants for a period of more than 30 minutes, but less than an hour.  On two occasions in this period, the Caucasian person stood holding a gun in his right-hand, with the gun pointed at Mr Anderson’s head.  The evidence indicates that the Caucasian person was only a couple of metres from Mr Anderson.  There were, however, factors which the jury was entitled to take into account in deciding whether this feature of Mr Anderson’s evidence was such as to give rise to doubt about his identification of the appellant.  One was that the Caucasian person was, on these two occasions, standing to Mr Anderson’s left.  Another was that for some of the period, Mr Anderson had been forced into the back of his own car, with his head down, by the Polynesian person.  Subsequently, that person pushed Mr Anderson over to the car in which the assailants had arrived.  Mr Anderson also said with respect to the Caucasian person,

“I certainly saw the gunman, particularly his eyes and his face; very much so.  I focused in on that because I was trying to read what was going on.”

[32] There was other evidence to which the jury was required to have regard, in deciding whether there was reasonable doubt about Mr Anderson’s identification of the appellant.  Mr Anderson had, on 24 January 2006, identified the Caucasian person as having a broken nose (displaced to the right).  That was true of the appellant.  The height which he attributed to the Caucasian person was the same as the height which Mr Weber gave for the appellant.  Although in the course of the photo board identification, Mr Anderson did not positively identify the appellant, nevertheless, he said that the photograph of the appellant “looks very like” the Caucasian person, the only identified difference being the colour of the hair as it appeared in the photograph.  In my view, in considering the evidence of Mr Anderson’s description of the face of the Caucasian person, his comments about the appellant’s photograph are of considerable significance.

[33] In addition, there is the fact that Mr Anderson’s identification of the appellant on 17 June 2006 was spontaneous, and accordingly not affected by the expectations which might be subconsciously engendered on the occasion of an identification parade, or when a photo board is presented to a witness.[7]  Moreover, it occurred when a large number of people were in the vicinity.

[34] The most troubling feature of the case is that Mr Anderson did not see a tattoo on the arm of the Caucasian person.  However, it does not seem to me to follow that a jury, acting reasonably, must have had a reasonable doubt about Mr Anderson’s identification of Mr Michaelides.  When the Caucasian person was pointing the gun at Mr Anderson, he was standing to Mr Anderson’s left.  The extent to which a tattoo on that person’s arm would have been visible, or obvious, to Mr Anderson would have been affected by where the person stood, and how he held his arm.  While it is likely that for the balance of the time when Mr Anderson was with his assailants, Mr Anderson would have had some opportunity to observe a tattoo like that on the appellant’s arm, the fact that he did not do so might be explicable by the events that occurred in that time.  It does not seem to me to compel the conclusion that the jury must, for that reason, have had a reasonable doubt about Mr Anderson’s identification of the appellant, when viewed in the context of the evidence as a whole.

[35] Mr Anderson’s description of the build of the Caucasian person might have justified a jury in not accepting his evidence.  That, however, is not the same as saying the jury was bound to have a reasonable doubt about the identification. 

[36] The absence of fingerprints and DNA on the soft drink can are not, in my view, of great significance on the appeal.  While they are a factor the jury was entitled to take into account in reaching its conclusion, they are explicable.  There was no evidence to show that the Caucasian person dealt with the can in such a way that he must have left DNA on it.  It is obvious that whoever touched the soft drink can, did not leave identifiable fingerprints on it.

[37] The evidence relating to the telephone call made from the appellant’s mobile phone is in a similar category.  It was evidence which the jury was entitled to take into account.  However, the estimates of time given by Mr Anderson for the period during which his assailants were with him varied between more than 30 minutes and less than an hour.  His identification of a time when they departed, therefore, cannot be regarded as necessarily correct.  Mr King’s evidence was that he was near the driveway to the property at Tallebudgera Creek Road between 11.30 am and midday.  It is not clear how this estimate of time relates to the time when the offenders left the property, but on one view it is subsequent.  The imprecision of the evidence about time at which events occurred, and the absence of any evidence about the reception range for the Surfers Paradise mobile tower, mean that the evidence about the telephone call did not require the jury to have a reasonable doubt about the appellant’s involvement in the offences.

[38] In light of the positive features supporting Mr Anderson’s identification evidence, it seems to me, notwithstanding all of the matters raised, that this is not a case where a jury, acting reasonably, must have had sufficient doubt about Mr Anderson’s evidence to warrant the acquittal of the appellant.  It follows that both Mr Michaelides’ and Mr Girardo’s appeals against conviction fail.

Applications for leave to appeal against sentence

[39] Mr Girardo was convicted on two counts of orally demanding without reasonable or probable cause that Mr Anderson take an action (sign a document, and pay $100,000), with threats of injury to be caused to him and others if the demands were not complied with.  As mentioned, he was not convicted in either case of the aggravating circumstance that the threat, if carried out, would be likely to cause loss of life.

[40] On each count, Mr Girardo was sentenced to a term of imprisonment of four and a half years, the terms to be served concurrently.  The learned primary judge found that Mr Girardo personally caused another person to make the arrangement to lure Mr Anderson to the vacant block of land at Tallebudgera Creek Road.  He also found that Mr Girardo had not exhausted legitimate attempts to recover the money which he claimed Mr Anderson owed him, and noted the need to discourage self-help of this kind.  He referred to Mr Girardo’s criminal history.  Mr Girardo had been convicted in Victoria of two offences of forging documents with intention to defraud in 1995.  In Queensland, he had been convicted in 2001 of attempting to obtain property dishonestly, resulting in a sentence of 18 months imprisonment, wholly suspended for an operational period of two years.  The learned primary judge noted Mr Girardo’s personal circumstances.  He noted that the offences had taken a heavy emotional toll on Mr Anderson and on his family; and that Mr Girardo had shown no remorse.  He considered both personal and general deterrence were relevant factors in his sentencing.

[41] It was submitted for Mr Girardo that the decision in R v Cifuentes[8] demonstrated that a range not exceeding four years was appropriate.

[42] The respondent submitted that the sentence was appropriate, having regard to Mr Girardo’s previous criminal history.  Further, the threats of violence were made not only to Mr Anderson, but in relation to his children; and the photographs of the children must have been supplied to Mr Michaelides by Mr Girardo.  Mr Girardo must have also identified the location where the offence occurred.  Cifuentesinvolved a “very timely plea of guilty”; whereas the sentences in the present case were imposed after a trial.  Reliance was also placed on R v Stratton[9] and R v Stokes.[10]

[43] Mr Cifuentes pleaded guilty to two counts of demanding property with threats, and for each was sentenced to a term of three and a half years imprisonment.  The application for leave to appeal against those sentences was refused.  The case was quite different to the present case.  Mr Cifuentes had been a police officer.  The amounts involved were relatively modest, by comparison to the present case; but there was no claim of an entitlement to them.  No violence was threatened. 

[44] A number of the other cases considered in Cifuentes involved extortion by police officers.  Reference was also made to Stratton, and a number of other cases not involving police officers.  One of those cases was R v Campbell,[11] where the appellant was convicted after trial of two offences, one of which was the same offence as that for which Mr Girardo was convicted.  Mr Campbell appealed against a sentence of three years imposed consequent on his conviction after a trial.  He was unsuccessful.  It might be noted that there was evidence that the person to whom the threat was made owed to an accomplice of Mr Campbell’s, some of the money the subject of the demand; and that Mr Campbell thought the accomplice was “very” entitled to the money.  The court did not identify a range of sentences.  The failure of Mr Campbell’s application meant that the sentence was not manifestly excessive; but otherwise is of little assistance.  It might be noted that the threat was made in a letter; and was for an amount substantially smaller than the amount claimed from Mr Anderson.  It is not clear whether Mr Campbell had a relevant criminal history.

[45] The decision in Campbell might have provided a basis for a submission in the sentencing proceedings, for a sentence lower than that which was imposed.  However, there are features of the present case, mentioned later in these reasons, which make it more serious; and in any event, Mr Girardo’s criminal history provides, in part, support for the sentence imposed.

[46] In Stratten, a plan had been made to lure the complainant into a situation where a video recording could be made of him having sex with a woman, so that demands for money might be made of him.  Demands were made for substantial sums of money, commencing at $500,000 and ultimately reducing to $250,000, over a number of weeks.  The benefit of Mr Stratten’s plea of guilty was considerably diluted by his attempt to mislead the court when being sentenced.  Nevertheless, the original sentence of nine years was reduced on appeal to one of seven years, without recommendation for early release on parole, substantially by reference to the sentence imposed on an accomplice.  The court noted offences of extortion are committed in ways that vary widely.

[47] In Stokes, the appellant was sentenced after a trial to five years imprisonment, without recommendation for early release.  The appellant had telephoned a bank manager, saying that a bomb had been planted behind the bank, which would be detonated unless money was put in a bag and thrown into an area of long grass not far away.  This followed some earlier threatening phone calls.  There was in fact no bomb, but a box had been placed in a vehicle near the bank, the contents of which were designed to look like a bomb.  The threat resulted in a shopping centre being evacuated for a number of hours.  The bank manager suffered a nervous breakdown, and resigned from the bank.  The appellant had an extensive criminal history.  He was described as “gullible and susceptible of being easily led”.  He was not the planner of the offence.  The court held the sentence was not manifestly excessive.

[48] In my view, these cases do not demonstrate the sentences imposed on Mr Girardo were manifestly excessive.  There are some significant features of his case which support that conclusion.  Although not convicted of the circumstance of aggravation, nevertheless the offences of which he was convicted involved the making of threats of injury both to Mr Anderson and others.  Those others were Mr Anderson’s children.  Mr Girardo was convicted as the person who instigated the making of the threats.  The verdicts involve the acceptance of Mr Anderson’s evidence.  It follows that Mr Girardo was to be sentenced on the basis that he was responsible for the presence of both Mr Michaelides and the Polynesian man at Tallebudgera Creek Road.  Reference has previously been made to Mr Michaelides’ physique:  the Polynesian person was, on Mr Anderson’s evidence, more powerfully built.  The sentencing judge’s findings as to the role of Mr Girardo in the offences are of some significance, particularly in view of the isolated nature of the location to which Mr Anderson was lured.  So was the fact that the threats involved violence.  Finally, his previous criminal history, particularly the conviction of an attempt to dishonestly obtain property, resulting in the imposition of a term of imprisonment, was of some significance.

Conclusion

[49] I would dismiss the appeals against conviction, and refuse the applications for leave to appeal against sentence.

[50] DALTON J:  I agree with the reasons of Peter Lyons J and the orders he proposes.