R v Kajackas[2012] QCA 328

SUPREME COURT OF QUEENSLAND

[1] THE COURT: The appellant appealed against his conviction after a trial in May 2012 that he unlawfully did grievous bodily harm.  After hearing argument in the appeal on 22 November 2012, the Court ordered that the appeal be allowed and that a verdict of acquittal be entered.  These are the reasons of the Court for those orders.

[2] The Crown case at the trial was that in the early hours of 19 December 2010 the appellant and the complainant, who were previously unknown to each other, had a disagreement in a nightclub in Wickham Street, Fortitude Valley, during which the complainant fell to the floor; they then left the nightclub and wrestled with each other on the footpath in front of the nightclub; after moving further down the street, the appellant felled the complainant with a punch; and the appellant then kicked the complainant in the face.  There was no challenge to the evidence of the Crown witnesses who described a man kicking the complainant in the face.  Nor was it in issue that the kick caused the complainant serious injuries amounting to grievous bodily harm.  The only real issue at trial was whether the appellant was the offender who caused the complainant’s serious injuries.

[3] The first ground of appeal contended that the jury’s verdict was unreasonable because “no jury, following proper instructions, could reasonably conclude, to the requisite standard, that the appellant was the person who caused grievous bodily harm to the complainant.”  The issue under this ground of appeal was whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the offender; if, upon review of the whole record of the trial, the Court was not persuaded beyond reasonable doubt that the appellant was the offender, the conviction must be set aside unless the doubt is capable of being resolved by reference to the jury’s advantage in seeing and hearing the evidence as it was given.[1]  The contention for the appellant, who did not give or call evidence, was that, having regard to inconsistencies and inadequacies in the evidence in the Crown case, the Court should have a reasonable doubt that the appellant was the offender.  The respondent contended that the prosecution’s circumstantial case was sufficient to exclude any reasonable doubt that the appellant was the offender.  Accordingly it was necessary to examine the sufficiency and quality of the evidence in the Crown case in so far as it concerned the identification of the appellant as the offender.

[4] The complainant’s wife, Mrs Olsson, gave evidence that when she and the complainant were close to the nightclub exit a man, who she subsequently identified as the offender, behaved aggressively towards the complainant.  The man was of “[a]verage build, average height, short hair, dark jeans and a light-coloured top.”  The complainant was shoved to the ground.  After Mrs Olsson helped the complainant to his feet they walked outside.  The man who had assaulted the complainant “kept talking”.  Consistently with that evidence, in cross-examination Mrs Olsson agreed that when she gave a statement to police in January 2011 she told police that she thought that this man “…led [the complainant] out of the club with his arm behind his back”.  Mrs Olsson denied that she relayed to the police that the person inside the nightclub was different to the person who ended up in the struggle with the complainant down the footpath and confirmed that it was the same person.  She also said that in the nightclub the other man was “yelling about his girlfriend”, and that is what she had told police when she gave her statement.

[5] In evidence-in-chief, Mrs Olsson said that things were “getting heated”, and she became involved in the conversation at the front of the nightclub.  This part of the events can be seen on the CCTV footage (exhibit 1) and in some respects in still images from that footage (exhibit 2).  Mrs Olsson identified images of a woman as herself and images of a man as the man who subsequently kicked the complainant.  Consistently with Mrs Olsson’s account, the footage shows the woman grabbing the man and speaking to him.  The images of these events in front of the nightclub are the clearest of the images available in exhibit 1 and exhibit 2.  However, the images of the man identified by Mrs Olsson as the offender do not clearly show his facial features and, inconsistently with Mrs Olsson’s account, the CCTV footage clearly shows that the man whom Mrs Olsson identified as the offender left the nightclub some minutes before the complainant left the nightclub. 

[6] Consistently with some of the CCTV footage, Mrs Olsson gave evidence that the complainant and the offender moved down the footpath.  Mrs Olsson gave evidence that whilst she was standing about five metres away from the complainant and the offender she saw them grappling, the complainant falling to the ground, and the offender running in and kicking the complainant in the face.  The complainant was knocked out by the kick.  Mrs Olsson said that there were “people everywhere” and the crowd became thicker with people watching.  After the complainant was knocked out and Mrs Olsson told people to ring police and an ambulance, she followed in the direction that the offender had walked.  She gave evidence that she “…went to follow the direction of where they went to see where they had gone”.  When asked, “who is they?”, she answered that it was “[t]he one that kicked him.  I couldn’t find them …”.  She went to the end of the block, asked some security guards if they had seen anyone matching her description of the offender, and they said that they had not seen anyone go past. 

[7] Hardie gave evidence that whilst he was sitting on a ledge some distance from the nightclub he saw two men wrestling.  He saw one of the men kick the other man in the face whilst the other man was on the ground.  Hardie said that the man who did the kicking was wearing dark blue jeans, black dress shoes and a white button-up shirt.  Hardie did not think that he had a beard and he had quite short hair, “maybe number one or two”.  Hardie asked the offender why he kicked the other man, and the offender told him to “fuck off”.  Hardie gave evidence that the person who had done the kicking walked off with two other men.  Hardie followed the three men as they walked towards a hotel further away from the city.  After Hardie spoke to the offender he went back to the complainant.  Hardie told his friend to stop touching the complainant and asked someone else to call an ambulance.  The ambulance arrived and Hardie saw a police car drive past.  He chased the police car and caught up with it about 80 metres further down the road.  Hardie’s evidence and CCTV footage suggests that there was a not insignificant period between when the offender walked off after kicking the complainant and when Hardie waved down the police car.  Hardie gave evidence that he pointed out to the police officers in the car “the three men that were in the fight”, who were still on the footpath but a lot further down the street.  Hardie said that he was sure that they were the same people that he had spoken to before.  After giving his name and telephone number to the police, Hardie did not watch where they went. 

[8] Knottenbeld gave evidence that she and a girlfriend were sitting on a ledge about 50 to 100 metres away from the nightclub.  There were a lot of people around.  She saw a man fall to the ground and she saw a kick to his head.  She described the man who kicked him as having a round face (she did not see any facial features), wearing a white button-up shirt (“I think it had a bit of a patterned light stripe to it …”), and “mid to dark blue” denim jeans.  He had short hair which was quite dark.  Knottenbeld gave evidence that she checked the victim’s pulse and rolled him over to one side because he had blood coming out of his nose.  She saw the man who had kicked the victim heading towards a hotel (further down the same street).  She was not sure if that man was with anyone else.  Knottenbeld gave evidence that she saw the victim’s wife speaking to the attacker shortly after the victim was on the ground.  (A police officer, Bachmann, gave evidence that the description which Knottenbeld gave to him at the scene included reference to a white collared shirt with brown checks.) 

[9] Jacobs gave evidence that he was with Hardie about 30 or 35 metres away from the entrance of the nightclub when he saw two men having a fight.  He saw one man fall to the ground and the other man take two steps forward and kick a man in the face.  Jacobs said that after the man on the ground was kicked, the man who did the kicking stood over the man on the ground and said, “Did you have enough cunt?”.  Jacobs pushed the man away and said that was enough and to let it go.  The man walked off and Jacobs tended to the man on the ground.  In evidence-in-chief Jacobs described the man who did the kicking as “[s]hort hair, sort of bit muscular, tanned sort of skin.  That’s all I can remember of him.”  Jacobs could not remember what that man was wearing.  In cross-examination Jacobs agreed that when the police arrived at the scene he described the offender as 185 centimetres tall, a solid/muscular build, olive/tanned skin, and short black hair which was curly.  He could not recall telling the police officers that the offender wore a white skinny‑fitted shirt, or a t‑shirt, with no pattern, or that the offender was wearing dark pants.  He agreed that he told the police officer that the offender sounded Australian. 

[10] Police officers, Bachmann and Saxton, gave evidence that at about 3.40 am on 19 December 2010 they were driving down Wickham Street when a man then unknown to them hailed them.  Bachmann gave evidence that as a result of what that man said they continued driving along Wickham Street and intercepted two men.  There were no other people in the vicinity at that time.  Saxton gave evidence that, as a result of what the unknown man said, he (Saxton) observed two men walking further up on Wickham Street on the left hand side of the road and Saxton then drove the police car up to where the men were. 

[11] Bachmann gave evidence that when he got out of the car he introduced himself and asked the men where they had come from.  One of the men, who subsequently identified himself as the appellant, spoke directly to Bachmann.  The appellant said that they had come from the nightclub.  Bachmann described the appellant as “178 centimetres roughly tall, proportionate build, tanned skin, short brown hair, and I recall he was wearing black dress pants, black leather shoes and a white-collared shirt with thin vertical black stripes.”  Bachmann made a note that the appellant had an accent.  The appellant said that he had a Lithuanian accent.  Bachmann described the appellant’s shoes as black leather dress shoes of a kind that pointed in towards the end.  In cross-examination Bachmann agreed that he told the appellant that he was investigating an assault that occurred outside the nightclub, he asked whether the appellant and the other man were involved in or saw a fight, and the appellant responded that they did not see any fight. 

[12] Saxton gave evidence that, after Bachmann had a short conversation with both men, Saxton spoke to a man who gave his name as Budrovic or something similar.  Saxton did not take any description but both men were wearing light coloured shirts.  Saxton said that Budrovic was wearing “an off-white long-sleeve shirt on which had the sleeves rolled up.  He was wearing blue jeans that had the faded white patches on the front of them.  A pair of black shoes with white soles … He was unshaven.  Had short hair and was of a European extraction, olive-sort of extraction.”  Budrovic stated that he was Lithuanian.  With reference to his notes, Saxton said that Budrovic was “…roughly 186 centimetres tall, tanned olive complexion, short light brown hair, unshaven …”. 

[13] The investigating police officer, Coleman, gave evidence that he prepared photo boards in an attempt to have the offender identified by witnesses.  Each photo board included a photograph of the appellant.  None of Mrs Olsson, Knottenbeld, Hardie and Sims (a witness who did not give evidence of having seen the complainant being kicked or any description of the offender) identified the appellant as the offender.  Mrs Olsson, Knottenbeld and Hardie each identified different persons, other than the appellant as the offender. (This occurred about five weeks after the complainant was assaulted.)

[14] In summing up to the jury the trial judge reminded the jury that the prosecution relied upon the jury assessing the images to compare them with what they saw of the defendant in court and upon other evidence.  The trial judge reminded the jury that no witness identified the appellant as the offender to the police and that four witnesses failed to pick the appellant’s photo out of a photo gallery of 12.  The trial judge directed the jury that the case was a circumstantial one, and that:

“It may be – it’s a matter for you whether you are – it may be difficult, and I’m saying it’s a matter for you whether you are able, just by viewing the images, to decide that the offender is the defendant. You must take into account the quality of the images and the fact that the events occurred about 18 months ago, so you have to be very careful trying to make a comparison today in Court given the quality and variety  of images with the person some of which you see in Court given that the images you are looking at were created 18 months ago.

Serious miscarriages of justice can occur when witnesses confidently but mistakenly identify a person as the offender. This isn’t that kind of case, where a witness has purported to do that, but nonetheless I use that analogy to remind you that you must be very careful of falling into a trap of confidently but mistakenly concluding from your observation of the images that it’s the defendant. It is a matter for you entirely.”

[15] After summarising the evidence about identification, the trial judge referred to the prosecutor’s contention that different parts of the video evidence demonstrated that the complainant and Mrs Olsson and the person talking to them at the start (the person whom Mrs Olsson had identified as the offender) stayed together and if the jury accepted that the group of three stayed together the jury would “…more readily accept that the person you see clearly – well, on the Crown case at the start is the person who did the kick and so the prosecution argues you’ll be satisfied that that was the defendant.” 

[16] Those directions were the subject of the second ground of appeal, that the trial judge erred in not properly directing the jury of the dangers of relying on evidence of identification.  The argument for the appellant was that the trial judge’s directions did not meet the requirements expressed in the plurality reasons in Domican v The Queen:[2]

“Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.  The terms of the warning need not follow any particular formula.  But it must be cogent and effective.  It must be appropriate to the circumstances of the case.  Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’.  A warning in general terms is insufficient.  The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’.  Reference to counsel’s arguments is insufficient.  The jury must have the benefit of a direction which has the authority of the judge’s office behind it.  It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.”

[17] The appellant’s senior counsel referred to a number of factors which were submitted to amount to weaknesses in the identification evidence to which the trial judge should have referred in directions to the jury and to the absence of an explicit reference to the dangerousness of convicting on this identification evidence.  The same weaknesses were submitted to require the conclusion that the verdict was unreasonable.  The respondent submitted that the trial judge’s directions as to identification were sufficient for the particular circumstances of this case, in which no witness gave direct evidence identifying the appellant as the offender.  It was submitted that, insofar as Mrs Olsson identified images of herself and the offender at the front of the nightclub on the CCTV footage, there was no danger in the jury relying upon the continuity shown in the footage between those images and the images further down the street; that the jury could safely compare the clearer images of the person identified by Mrs Olsson as the offender outside the front of the nightclub with the appellant in the dock.  It was submitted that it was reasonably open to conclude from a combination of the evidence of Mrs Olsson, Hardie, and the two police officers that the appellant was the offender.  For the respondent emphasis was placed upon the police officers’ evidence that the appellant and his companion were the only persons in the area when the police approached them and that the appellant generally matched the descriptions of the offender.  The respondent’s counsel submitted that the weaknesses identified by the appellant’s senior counsel were not surprising in these sorts of circumstances and did not require the Court to harbour a doubt about the guilt of the appellant. 

[18] The issue might perhaps be regarded as fairly finely balanced, but the combination of weaknesses and discrepancies in the identification evidence persuaded the Court that the conviction involved the risk of a miscarriage of justice.  Mrs Olsson’s evidence that the man shown in the CCTV image at the front of the nightclub was the offender was thrown into doubt by her evidence, contradicted by the CCTV footage, that this same man had led the complainant out of the nightclub.  As was submitted for the respondent, the jury might have regarded Mrs Olsson as having been mistaken in this aspect of her evidence, but her unequivocal but apparently incorrect evidence on this point is concerning.  Furthermore, neither Mrs Olsson nor any other eyewitness identified the appellant as the offender when shown a photograph of him about five weeks later.

[19] Another point made for the appellant was that the appellant was found by the police officers with only one other man whereas Hardie’s evidence was that the offender was one of three men involved who had walked further down the street and Mrs Olsson’s evidence was that the offender walked away alone.  The submission for the respondent that Mrs Olsson and Hardie might have been mistaken on this point might be correct, but it does throw some further doubt over the identification of the appellant as the offender.  The doubt is increased by the fact that there was apparently sufficient time before the attention of the police was directed to the appellant and his companion for a man to have turned off the street and disappeared from view.  As was submitted for the appellant, there might also have been sufficient time for the offender to have moved much further away from the scene of the offence than the two blocks where the police officers found the appellant and his companion.  The respondent relied upon the police officers’ evidence that there were no other people near the appellant and his companion, but vagueness of that evidence and the opportunity for the offender to have decamped deprive the submission of force.

[20] The various witnesses’ descriptions of the offender’s clothing and appearance which matched the clothing and the appearance of the appellant as described by Bachmann supplied some support for the Crown case, but there were some inconsistencies in those descriptions and there does not seem to have been anything particularly distinctive or unusual in those general descriptions.

[21] Mrs Olsson also gave evidence that the offender was yelling inside the nightclub about his girlfriend, but the CCTV images did not show the person identified by Mrs Olsson as the offender with anyone who might be his girlfriend and nor did the police officers find the appellant with a woman.  Jacobs’ evidence that the offender sounded Australian (in the few words Jacobs heard) may be contrasted with Bachmann’s evidence that he noted the appellant spoke with an accent.  These are weaker points, but they are relevant.

[22] The jury had the advantage of being able to compare images of the man identified by Mrs Olsson as the offender with the appellant in the dock.  For reasons already given, and having regard to the relatively poor quality of those images, the Court was not persuaded that this advantage was sufficient to overcome the reasonable doubt created by the weaknesses in the identification evidence in the Crown case.  The identification evidence “…upon the record itself, contains discrepancies, displays inadequacies, [and] …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 …”.[3]

[23] The criminal standard of proof is “designedly exacting”.[4]  In the absence of convincing evidence that the appellant was the man who kicked the complainant, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.  The Court’s duty in those circumstances was to set aside the verdict and order the entry of a verdict of acquittal.  It was therefore not necessary to adjudicate upon the second ground of appeal or upon the application for leave to appeal against sentence.