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R v Matauaina[2019] QDCPR 25

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

R v Matauaina [2019] QDCPR 25

PARTIES:

THE QUEEN

v

MATUAINA SONNY MATAUAINA
(Defendant)

FILE NO/S:

2132/18

DIVISION:

Crime

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2019 and 17 June 2019

JUDGE:

Smith DCJA

ORDER:

  1. The applications to exclude the photo board identification evidence are dismissed.
  2. The application to exclude the “tribal tattoo” evidence is dismissed.
  3. The application to exclude the Versace bathrobe evidence is granted.
  4. The application to exclude the shoe box and receipt evidence is granted.
  5. The application to exclude Ms Huni’s evidence is granted.
  6. The application to exclude the phone tower and network evidence is dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – EXCLUSION OF EVIDENCE IN THE EXERCISE OF THE GENERAL DISCRETION – whether identification evidence should be excluded – whether evidence of descriptive tattoos should be excluded – whether other real evidence obtained should be excluded - whether the evidence of a witness should be excluded - whether phone tower and network evidence should be excluded. 

Criminal Code 1899 (Q) S 590AA

Alexander v R (1981) 145 CLR 395; [1981] HCA 17

Domican v R (1992) 173 CLR 555; [1992] HCA 13

Festa v R (2001) 208 CLR 593; [2001] HCA 72

Pitkin v R (1995) 130 ALR 35; [1995] HCA 30

R v Brookes [1992] QCA 103

R v Hasler; Ex parte Attorney-General [1987] 1 Qd R 239

R v Hooker & Solomon [2015] QCA 182

R v Lambert; Ex parte Attorney-General (2000) 111 A Crim R 564; [2000] QCA 141

R v Namie [2011] QCA 304.

R v Reiken [2006] QCA 178

COUNSEL:

Ms J Goldie for the Crown

Mr A Boe for the defence on 1 April 2019

Solicitors for the defendant 17 June 2019

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Nyst Lawyers for the defence on 1 April 2019

A.W. Bale and Sons for the defence on 17 June 2019

Introduction

  1. [1]
    This is an application pursuant to s 590AA of the Criminal Code 1899 (Q) for the exclusion of the following evidence:
  1. (a)
    Photo board identification evidence by Ren Liang;
  1. (b)
    Photo board identification evidence by Summa Palliaer;
  1. (c)
    Evidence by Ren Liang that one of the offenders had tribal tattoos around his thighs;
  1. (d)
    Evidence relating to a Versace bathrobe;
  1. (e)
    Evidence relating to a shoe box and receipt found in the defendant’s car;
  1. (f)
    All evidence given by a witness Ebony Huni;
  1. (g)
    All evidence regarding call charge records and network switch records of the defendant’s telephone.
  1. [2]
    The Crown accepts that the evidence relating to the Versace bathrobe should be excluded. I therefore exclude it.

Charge

  1. [3]
    The defendant is charged conjointly with Talatonu Matauaina with one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence; one count of kidnapping; one count of deprivation of liberty; one count of grievous bodily harm; two counts of assault occasioning bodily harm in company; one count of robbery with personal violence; and one count of arson.
  1. [4]
    The offences are alleged to have occurred on or about 7 and 8 June 2017.

Background

  1. [5]
    On 8 June 2017 it is alleged the complainant, Ren Liang, was forced into a utility by three men. He was stabbed to the ankle with a knife. He was punched and assaulted multiple times and driven to a first house where he was detained against his will for a number of hours bleeding and badly injured. He was then forced into a black Holden Commodore where he was driven to a second house where he was again detained against his will. At around 12:30am on 9 June 2017 the offenders left the complainant near a service station at Sunnybank Hills.

Evidence

  1. [6]
    Ren Liang has provided a statement dated 25 June 2017.[1]  In this statement he says that on 8 June 2017 he was staying at the Summit Apartments in Spring Hill with his girlfriend, Summa Palliaer.  He got there between 2 to 3 pm on 7 June 2017.  On the morning of Thursday 8 June 2017 he and Summa went to get something to eat.  As they got back to the Summit Apartments at about 11am there were three men standing at the front entrance.  He was confronted by one of the men and there was an argument about his nephew being owed some money.  He was a bit blurry about what they were wearing because he later got punched in the head.  Man number three was an Islander, very big, in his twenties or thirties, 163cm tall with a bit of a “tummy”.  At some stage he saw one of the three men had tattoos on his thighs.  They were wrap around tribal style tattoos on both thighs which were black.  This man was very big, looked like an Islander, was about twenty to thirty years of age and about 180cm tall. 
  1. [7]
    Man number three grabbed Ren Liang around his chest with both arms and he was pulled into a utility. Summa tried to help him but was unsuccessful. Male number two pulled out a knife and cut him on the leg with the knife near the ankle area. It felt like the knife hit the bone slashing his leg very deeply. Male number one was in the driver’s seat, did not say much and was an Islander with a lot of facial hair in his late twenties or early thirties. He was very large as well.
  1. [8]
    He was then driven off from the Summit Apartments. He noticed a white four door Mitsubishi Lancer Sedan travelling behind him. He remembered trying to get out of the back seat but man number two pulled his hands away from the door. He later saw there were two Islander men in the Mitsubishi. He recalled they went on the highway from the city towards the Gold Coast. He recalled losing a lot of blood from his leg and felt very dizzy. He recalled male number three punching him a number of times.
  1. [9]
    When they reached the first house, male number three used his hooded jacket to cover Mr Liang’s eyes. He was detained at the first house. He was later carried to a blue ute. He was very tired and in a lot of pain at that stage. He recognised a car park as being near the Lucky Star Tavern. He saw male number two using his telephone.
  1. [10]
    He was then driven to Blue Range Drive and was detained in that house. He was then taken to a black Commodore and dropped off near the Caltex petrol station. An ambulance was called and he was taken to hospital.
  1. [11]
    On 25 June 2017 he undertook a photo board interview with Plain Clothes Senior Constable Andrew Koo at the Brisbane City Police Station. He thought photo number seven looked very much like one of the three males who took him from the Summit Apartments.
  1. [12]
    In the transcript of photo board interview with Ren Liang dated 25 June 2017, Mr Liang was shown the photo board and was told that the people who committed the offence may or may not be in the photographs. He was also told he did not have to select anybody if he did not recognise anybody. He did not recognise anybody from the first photo board. He was then shown a second photo board and did not recognise anybody from that. He then asked to look at the first photo board again and pointed to number seven stating “yeah number 7 is very look like it but, I can’t I don’t know they – the hat is, they got the hat in there, they got the hat in there but that’s why I think it’s this one it’s very look like.”[2]  He said “it’s very look like that person, but I can’t know I’m not really 100%.”[3]  Mr Liang also said “[h]e’s the one that very look like him. This one is very, very look like him.”[4]
  1. [13]
    Summa Palliaer has provided a statement dated 8 June 2017.[5]  She confirms in that statement that she was living with the complainant.  On 7 June 2017 she had come into the city for a court appearance and as a result a room was booked at the Summit Apartments.
  1. [14]
    On the morning of Thursday 8 June 2017 she confirms that when they returned to the Summit Apartments at about 11am she noticed two men get out of a ute which was parked at the bottom of the driveway. The registration was 111VFC or similar. Two of the males walked up the driveway, one of whom was Jay, a male that she and the complainant had met at lunch at Sunnybank. The complainant was placed into the ute with physical force. The male who ran up the driveway with Jay looked like Jay – was of Kiwi appearance, dark skinned, same size, aged in his thirties or forties.
  1. [15]
    Ms Palliaer underwent a photo board interview on 22 June 2017. She was also told that the person who allegedly committed the offence may or may not be in the photographs. She was also told she was not obliged to select anybody. She picked number eight who was the accused. She said “he looks very, very similar – I am not entirely – I am not 100% sure – but he looks similar to the guy that was in the car that day that grabbed Michael. He looks very similar.”[6]
  1. [16]
    Aside from these purported photo board identifications, there is the following evidence:
  • The complainant alleged that one of the offenders had “tribal tattoos” on his thighs.  The defendant has tattoos on his thighs which could be described as “tribal tattoos”.[7] 
  • The defendant drives a black Holden Commodore.  The complainant said he was driven to and from the second house in a black commodore. 
  • The defendant’s physical appearance is similar to one of the offenders who can be seen on the CCTV footage at the time of the abduction. 
  • The complainant’s DNA was located on tan work boots located at the defendant’s house.  The tan work boots look similar to those worn by an offender in the CCTV footage. 
  • A hi-vis jacket similar to clothing worn by the offender on the CCTV footage was located at the defendant’s house.  This jacket had stains which tested positive to TMB and indicated that blood was present. 
  • Call charge records from the defendant’s mobile phone show routes consistent with that described by the complainant in his kidnapping.
  • The defendant’s house contained a number of features which are similar to the features of the second house described by the complainant.  For example: the driveway; a round wooden table; and vertical blinds. 
  • The complainant recalled the second house wasn’t far from Blue Range Drive.  This is consistent with the location of the defendant’s house at Mount Barney Crescent which runs off Blue Range Drive. 

Photo board evidence

Submissions

  1. [17]
    It is submitted by the defence that the identifications here are not positive identifications. It is submitted that the most Mr Liang says is that he thinks photo number 7 looked very like the defendant. It is submitted it is far too equivocal. It is submitted that even if it is relied on as circumstantial evidence, there are dangers associated with it which lead to a great prejudice. Similar arguments are raised concerning the photo board identification evidence by the witness Palliaer.
  1. [18]
    The crown on the other hand submits that the complainant participated in a photo board interview with the police at the hospital on 10 June 2017. The complainant was shown four photo boards but did not recognise anybody. Neither the defendant nor Talatonu were depicted in those photo boards. On 25 June 2017 the complainant participated in the second photo board interview and pointed out number seven. It is submitted that the matters raised by the defendant affect the weight of the evidence rather than its admissibility. It is submitted the case can be distinguished from a case such as Pitkin v R[8] as there is other evidence implicating the defendant.

Discussion

  1. [19]
    Identification by means of photos shown to a witness by police is generally admissible although a trial judge has a discretion to exclude it if the strict rules of admissibility would operate unfairly against the accused person.[9] 
  1. [20]
    In Alexander v R[10] it was said:

“The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible.  However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.”

  1. [21]
    In R v Brookes[11] it was held:

“What matters is whether the collection of photographs is fair.  It must include photographs of persons sufficiently similar to the suspect and there must be nothing which draws attention to him or her.”[12]

  1. [22]
    In Festa v R[13] Gleeson CJ at [65] held:

“In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican[14] directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence.”

  1. [23]
    Further, in R v Reiken[15] it was noted that identification by means of photos shown to a witness by police is generally admissible, although a trial judge has a discretion to exclude it if the strict rules of admissibility would operate unfairly against the accused person.
  1. [24]
    In R v Namie[16] the appeal against conviction was dismissed. In that case the complainant had described the offender as an Aboriginal man in his late 40s with a “slight gut” and a bit of a beard down to his chest. When shown the photo-board she said as to the appellant “I’m not positive I think that’s him.” And “[t]he face is similar and he looked kind of similar with the same weary lines”. Similar evidence was given by a male witness. The court in dismissing the appeal said at [26] that Pitkin was a different case. In the present case, both witnesses had consumed alcohol with the appellant not long before the offences and the male complainant a couple of times before that. The conviction was not unsafe.
  1. [25]
    Finally in terms of authority, in R v Hooker & Solomon[17] it was noted:

“[24] It can be accepted that identification evidence, even of questionable quality, may be sufficient in conjunction with other circumstantial evidence to arrive at a conclusion of guilt, and that a trial judge may properly direct to that effect. The more difficult question is whether the jury can properly be told to consider other evidence in considering whether the identification itself is correct.

[26] I do not think one should be unduly prescriptive about the form of identification directions; what is necessary, in my view, is to consider their adequacy as a whole to establish whether they are such as to produce a fair trial… It would generally be preferable for a trial judge to give the jury the Domican warning in full without reference to other evidence as supporting the accuracy of the identification, to avoid any risk of distracting from the warning. It is certainly permissible, once the Domican direction is given, to identify counsel’s competing contentions as to evidence supporting and detracting from the reliability of the identification. And of course other evidence may supplement, or be supplemented by, the identification evidence in arriving at a conclusion of guilt.”

  1. [26]
    In my respectful opinion this case may be distinguished from Pitkin.  I consider this case is more akin to the one considered in Namie.
  1. [27]
    Even though the effect of the purported identifications is that each witness alleges that the person “looked like” the offender. In this case there is substantial circumstantial evidence which tends to support what the witnesses have said.
  1. [28]
    In my opinion, the evidence is to be regarded as pieces of circumstantial evidence against the defendant rather than positive identification evidence.
  1. [29]
    In my opinion, strong Domican directions may be given in this case concerning these alleged identifications which guarantee the fairness of this trial.  It may be expected that juries comply with directions given by a trial judge.
  1. [30]
    In the circumstances, in the exercise of my discretion I do not exclude the identification evidence.

Evidence concerning the tribal tattoos

Submissions

  1. [31]
    It is submitted by the defence that the evidence concerning the tribal tattoos should be excluded. It is also submitted it is inadmissible. It is submitted there is no detail given as to these tattoos except they are described as “tribal”. It is submitted the recollection lacks probative value and is therefore not admissible.
  1. [32]
    The crown on the other hand submits that when one views the photos of the tattoos which wrap around the defendant’s thighs, it is difficult to see how they could be described in more detail. The description of “tribal tattoos” is an apt description of them.

Discussion

  1. [33]
    In my opinion, the evidence of the “tribal tattoos” is an important piece of circumstantial evidence in this case. It is my opinion that they would appear to be unusual. It is my opinion they are of at least reasonable probative value and the evidence of them is not far outweighed by its prejudicial effect.[18]  I do not exclude the tribal tattoo evidence

Shoe box and receipt

Submissions

  1. [34]
    The defence submits that under a search warrant executed by police at the defendant’s address on 9 June 2017, the Versace bathrobe was located in the ensuite bathroom of the defendant’s room and the pair of tan coloured work boots were located near the entry way of the house in the living area. The police also located an empty shoe box and receipt for work boots in the boot of the defendant’s black Holden commodore. The size on the boots matches the size on the box. But the brands of the two boots are different. It is submitted that the evidence of the shoe box and receipt is irrelevant.
  1. [35]
    The crown submits this is simply another piece of circumstantial evidence.

Discussion

  1. [36]
    It is my opinion the evidence is irrelevant and I exclude it.

Evidence of Ms Ebony Huni

Submissions

  1. [37]
    The defence submits that the conversation concerning Michael owing money is irrelevant. The crown on the other hand submits that this is relevant circumstantial evidence against the defendant.

Discussion

  1. [38]
    Ms Huni gave evidence before me on voir dire. She is now married to the co-accused. In her statement[19] dated 11 September 2017 she said at [15] that she overheard a conversation between her now husband and the defendant talking about Michael owing money. He husband said “Me and the boys have signed up to something but I can’t say.”
  1. [39]
    However she claimed in her evidence that she could not identify the person talking to her husband[20] and could not hear the conversation clearly.[21]
  1. [40]
    I have grave reservations about Ms Huni’s credibility. But the crown did not seek to have the witness declared hostile.
  1. [41]
    As it now stands, her evidence is of slight probative value against the present accused and is far outweighed by its prejudicial effect.
  1. [42]
    I exclude the evidence against this defendant.

Telephone cell tower evidence

Submissions

  1. [43]
    The defence submits that the crown asserts that the number 0410 596 022 was registered in the name of the defendant. It is submitted there was no evidence that the phone was in the physical possession of the defendant at any particular time on 8 June 2017. It is further submitted that the evidence of the locations of calls on 8 June 2017 is equivocal because the reception of calls through a particular tower at a particular time does not necessarily mean the person was in possession of the phone at that precise location. There are some inconsistencies with the records and in the circumstances the evidence is of slight probative value and highly prejudicial.
  1. [44]
    On the other hand the crown submits that the call records and call charge records networks show a general route which is consistent with that described by the complainant in his kidnapping. It is submitted the evidence is highly probative and admissible which adds to the rest of the body of circumstantial evidence against the defendant and is a matter of weight for the jury.

Discussion

  1. [45]
    Exhibit 5 were Optus records, Exhibit 6 were Telstra records and Exhibit 7 was a statement from an officer at Telstra.
  1. [46]
    The Telstra records show that a call was made from the defendant’s phone 0410 596 022 at 10.52.50am on 8 June 2017 to 0418 598 298. The cell tower closest to the defendant was Spring Hill South.[22] The alleged kidnapping occurred at about 11am at Spring Hill. This puts the defendant in the vicinity.
  1. [47]
    The Telstra records show that a call was made from the defendant’s phone at 12.46.47 on 8 June 2017 to 0418 598 298. The cell tower closet to the defendant was Greenbank. This is the near the location of the first house, the complainant was taken to.
  1. [48]
    As to the Optus records,[23] Mr Findlay from Optus gave evidence that the locations relied on by the defence were the locations of 0418 598 298, not the defendant’s phone.[24]  
  1. [49]
    I agree with the crown’s submissions, I think the evidence is of reasonable probative value and is not far outweighed by its prejudicial effect.
  1. [50]
    I do not exclude it.

Orders

  1. [51]
    My formal orders are:
  1. The applications to exclude the photo board identification evidence are dismissed.
  1. The application to exclude the “tribal tattoo” evidence is dismissed.
  1. The application to exclude the Versace bathrobe evidence is granted.
  1. The application to exclude the shoe box and receipt evidence is granted.
  1. The application to exclude Ms Huni’s evidence is granted.
  1. The application to exclude the phone tower and the network evidence is dismissed.

Footnotes

[1]  The statement is contained in exhibit 1.

[2]  Transcript of Photoboard Interview: Liang dated 25 June 2017 at 62.

[3]  Transcript of Photoboard Interview: Liang dated 25 June 2017 at 78.

[4]  Transcript of Photoboard Interview: Liang dated 25 June 2017 at 86.

[5]  Also in exhibit 1.

[6]  Transcript of Photoboard Interview: Palliaer (No 2) dated 22 June 2017 at 44.

[7]  Exhibit 3 are photographs of the defendant’s thigh tattoos.

[8]  (1995) 130 ALR 35; [1995] HCA 30.

[9] Alexander v R (1981) 145 CLR 395 [1981] HCA 17; Festa v R (2001) 208 CLR 593; [2001] HCA 72.

[10]  (1981) 145 CLR 395; [1981] HCA 17 at p 402 per Gibbs CJ.

[11]  [1992] QCA 103.

[12]  See also R v Lambert; Ex parte Attorney-General (2000) 111 A Crim R 564; [2000] QCA 141 at [10].

[13]  (2001) 208 CLR 593; [2001] HCA 72.

[14]  (1992) 173 CLR 555; [1992] HCA 13.

[15]  [2006] QCA 178 at [14].

[16]  [2011] QCA 304.

[17]  [2015] QCA 182 at [24] – [26].

[18] R v Hasler; Ex parte Attorney-General [1987] 1 Qd R 239.

[19]  Exhibit 4.

[20]  Transcript 17 June 2019 page 8.10.

[21]  Transcript 17 June 2019 page 7.35.

[22]  Exhibit 6 page 5.

[23]  Exhibit 5.

[24]  Transcript 17 June 2019 pages 24-25.

Close

Editorial Notes

  • Published Case Name:

    R v Matauaina

  • Shortened Case Name:

    R v Matauaina

  • MNC:

    [2019] QDCPR 25

  • Court:

    QDCPR

  • Judge(s):

    Smith DCJA

  • Date:

    21 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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