Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bourke v R [2013] NSWCCA 293 Hearing dates: 20 November 2013 Decision date: 26 November 2013 Before: Hoeben CJ at CL at [1] Blanch J at [2] R A Hulme J at [39] Decision: Appeal dismissed Catchwords: CRIMINAL LAW - conviction appeal - convictions for armed robbery - unreasonable verdict - admission of resemblance evidence - s 137 Evidence Act 1995 - circumstantial evidence - DNA evidence - fresh evidence Legislation Cited: Evidence Act 1995 Criminal Appeal Act 1912 Cases Cited: Dupas v The Queen [2012] VSCA 320 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 Shepherd v The Queen (1990) HCA 56; 170 CLR 573 Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Morris v The Queen [1987] HCA 50; 163 CLR 454 SKA v The Queen [2011] HCA 13; 85 ALJR 571 The Queen v Hillier [2007] HCA 13; 228 CLR 618 The Queen v Keenan [2009] HCA 1; 236 CLR 397 Rasic v R [2009] NSWCCA 202 The Queen v Nguyen [2010] HCA 38l 85 ALJR 8 Mickelberg v The Queen (1989) 167 CLR 259 Texts Cited: Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par 2497; pp. 412-414 Category: Principal judgment Parties: Jamie Lee Bourke (Appellant) Crown (Respondent) Representation: Counsel: M Ramage QC (Appellant) S Herbert (Respondent) Solicitors: Bannisters Lawyers & Attorneys (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/260760 Publication restriction: No Decision under appeal Jurisdiction: 9101 Citation: R v Jamie Lee Bourke Date of Decision: 2012-07-17 00:00:00 Before: His Honour Judge Charteris SC File Number(s): 2011/260760 Judgment 1HOEBEN CJ at CL: I agree with Blanch J. 2BLANCH J: On 11 July 2012 the appellant was arraigned before a jury in respect of the following four counts: (1)On 15 February 2011 at Lane Cove in the State of New South Wales, being armed with an offensive weapon, namely, a baseball bat, and being in company with another man, did assault Glenys ATACK with intent to rob the Westpac Banking Corporation. (2)On 15 February 2011 at Lane Cove in the State of New South Wales, being armed with an offensive weapon, namely a baseball bat, and being in company with another man, did rob Glenys ATACK of a wallet, driver's licence, three bankcards, a Medicare card, SIM card, shopping receipts and money in the sum of $40.00, the property of the said Glenys ATACK. (3)On 15 February 2011 at Lane Cove in the State of New South Wales, being armed with an offensive weapon, namely, a baseball bat, and being in company with another man, did rob Rohini SRINIVAS of a driver's licence, the property of the said Rohini SRINIVAS. (4)On 15 February 2011 at Lane Cove in the State of New South Wales, did allow himself to be carried in a conveyance, namely, a Mitsubishi car, registered No. BNR-92D, knowing it had been taken without the consent of Todd O'CONNELL, its owner, or Francis ZEIDAN, the person in lawful possession of it. 3On 17 July 2012 he was convicted on all counts and sentenced to a total term of 7 and a half years imprisonment with a non-parole period of 4 years and 3 months to date from 1 October 2011. 4He appeals against those convictions on the following grounds: (1) The trial miscarried; (2) The trial judge erred in admitting evidence; (3) The trial judge erred in failing to reconsider the admissibility of the resemblance evidence concerning the sunglasses; (4) The trial judge erred in failing to warn the jury on the dangers of similarity or resemblance evidence in respect to the sunglasses; (5)The trial judge erred in failing to direct the jury that they had to be satisfied beyond reasonable doubt that the sunglasses located in the vehicle were worn by the accused in the robbery; (6)The trial judge erred in giving inadequate directions regarding the use that the jury might make of the evidence of the fluoro jacket and gloves; (7)The trial judge erred in failing to appropriately deal with a jury question; (8)The accused was incompetently represented; (9)The verdict was unreasonable; (10)Fresh evidence. Facts 5On the morning of 15 February 2011 two men, one of them in possession of a baseball bat, attempted to rob the Westpac Bank at Lane Cove but instead robbed two employees of the bank of possessions, the subject of the charges. There was no dispute that this had occurred nor that the robbers made their escape in a Mitsubishi car, the subject of the fourth count. That car was identified by a witness and found two days later. The issue in the trial was whether the appellant was one of those two men. 6The case brought by the Crown was a circumstantial case consisting of the following elements: (1) A pair of sunglasses was found in the getaway car two days after the offences. The appellant gave evidence those glasses belonged to him and expert evidence called at the trial identified his DNA on the glasses. That evidence was that the appellant's profile on the DNA would occur in fewer than one in ten billion individuals. The appellant said that he lost those glasses when he was working casually some time in 2010. Ms Atack said the glasses depicted in a photograph taken by the police were very similar to glasses worn by the robbers. (2) Police found a long sleeved fluoro style work shirt similar in style to a short sleeved shirt worn by one of the robbers when police searched the appellant's house. (3) The police also found fingerless gloves at the appellant's house although it was accepted those gloves did not have markings on them similar to markings on fingerless gloves worn by one of the robbers. (4) Tracksuit pants found in the appellant's house had a label on them similar to a mark visible on tracksuit pants worn by one of the robbers. (5) Shoes seized from the appellant's house were similar to shoes worn by one of the robbers. (6) One of the victims of the robbery, Ms Srinivas, took part in a photographic identification exercise. She was shown 20 photographs and when asked had she seen any of them she said "None of them except maybe 3 or 17". Photograph 17 was a photograph of the appellant. Ground 1: The trial miscarried 7This ground relates to an assertion that as a result of the other grounds of appeal there was no fair trial. Ground 2: The trial judge erred in admitting evidence (1)This submission asserts error in admitting the photo identification evidence of the victim Rohini Srinivas. 8Objection was taken to this evidence firstly on the basis that only two of the persons in the photo array had facial hair which could be described as light brown and also on the basis that the prejudice outweighed the probative value because of the vagueness of the evidence of the witness. 9When asked had she seen any of the persons before she said "None of them except maybe 3 or 17". She said "The two men had their face mostly covered. They were wearing sunglasses and hats. I am only going by the face structure so I can't be 100 per cent sure." She also said "I can't really say for sure because um most of the face was covered" and "I am not really sure but it is just a possibility" and she also said "Just from the face structure because it was a thin face so I know it is not one of those filled out faces definitely." 10That evidence does not amount to identification of the appellant but the prosecution made it plain it was not relied upon as identification evidence and in summing up to the jury the judge dealt with this issue by saying "She was saying maybe he resembles that person; this was very different from an identification." The judge went on then to give a clear direction that "Judges know that resemblance evidence can be unreliable". He then went on to warn of the special caution needed when considering such evidence and gave appropriate directions to the jury that they should be satisfied the witness was both honest and reliable and warned the jury to consider the circumstances under which the observations were made including that the witness was under stress, the person was a stranger, the opportunity to observe, the lighting and the fact that she was not shown the photographs until six months after the event. 11A submission is made that the trial judge failed to carry out a balancing exercise in making a decision as to the admissibility of the evidence and that he failed to take account of the unreliability of the evidence and it is suggested he did not follow the decision in Dupas v The Queen [2012] VSCA 320 because the judge was called on to determine whether the prejudice outweighed the probative value. Any evidence led by the Crown tending to prove the guilt of an accused is necessarily prejudicial. In this case the judge was dealing with a number of pieces of evidence which considered together might be capable of proving the guilt of the accused beyond a reasonable doubt. It was not suggested that this evidence by itself could prove guilt. The decision made by the judge on this objection was only one of a number of decisions made by the judge on objections to evidence and he did disallow some evidence on the basis that the prejudice outweighed probative value. It is clear he was carrying out a balancing exercise in respect of all the objections including this one. The judge's decision to admit it cannot be criticised. Moreover the debate arising from the decisions of Dupas v The Queen supra and R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 does not arise here because the value of the evidence by itself was never suggested as being capable or proving guilt and the strength of the evidence was always apparent. (2)This submission asserts error in admitting evidence of the finding of two pairs of fingerless gloves in the accused's premises on 10 August 2011. 12Again it was never suggested that this evidence by itself could prove guilt. The only basis for the admission of this evidence was that it demonstrated the appellant was a person who had fingerless gloves. It was never suggested these fingerless gloves were worn by one of the robbers. 13In my view the judge did not err in allowing this evidence to be admitted, particularly when the evidence was admitted for a very limited purpose. (3)This submission asserts error in admitting evidence of the finding of a long sleeved fluoro top in the accused's premises on 10 August 2011. 14Again this evidence was admitted for a very limited purpose, that being to demonstrate that the appellant was someone who wore fluoro type work jackets. It was never suggested the jacket found was actually worn by one of the robbers. For the same reasons as given above, there was no error in admitting this evidence. (4)This submission asserts error in admitting evidence of similarity between a pair of sunglasses located in the getaway car and those worn by the robbers. 15These were sunglasses found in the car which was identified as the getaway car used by the robbers. The evidence of the witness Glenys Atack about the glasses was "It is very very similar, very very similar to what I saw and they were definitely blue, they were definitely blue." 16This evidence was clearly admissible because the glasses were found in the getaway car and the witness's evidence given on the voir dire strengthened the conclusion the glasses were worn by a robber. These were the glasses which contained the DNA of the appellant. There was no failure by the trial judge to assess questions of prejudice or probative value. The only other matter which arose was the fact that the glasses had been lost and could not be available as an exhibit although photographs of them were. The judge ultimately drew this to the attention of the jury. Ground 3: The trial judge erred in failing to reconsider the admissibility of the resemblance evidence concerning the sunglasses 17During the trial the witness Glenys Atack said of the police "... they asked me whether they were very very similar to the ones that you know the particular people were wearing that morning." It is submitted that the judge took into account in admitting the evidence that the witness had not been told where the glasses were found. The point raised by the appellant is that this evidence shows the police suggested the glasses were "very very similar" and that made the evidence of the witness unreliable. That was an argument open to the defence but the witness was available to give evidence, she did give evidence and it was a matter for the jury to determine if that evidence was reliable. Her evidence remained clear about the similarity of the glasses found with glasses worn in the robbery. Ground 4: The trial judge erred in failing to warn the jury on the dangers of similarity or resemblance evidence in respect to the sunglasses 18The jury was given very clear directions about the danger of resemblance evidence relating to the photo identification by the witness. There is no reason to believe the jury did not understand that direction. The judge reminded the jury in the summing up that the evidence relating to the sunglasses was that they did "fit the description ... of the glasses as given by one of the victims on the day of the alleged robbery." He also repeated the submission of defence counsel to the jury that because the glasses were lost they could not be shown to the witness when the witness was giving evidence. It is also the fact that no submission was made to the judge that he should give a separate warning about resemblance evidence in respect of the sunglasses. For that reason it would be appropriate to refuse leave to raise this ground under Rule 4. Otherwise the evidence in this case about the sunglasses was an acceptance by the appellant that the glasses were his. There was scientific evidence his DNA was found on them and they were found in the getaway car. In my view there was no need for a separate warning to be given about the evidence of the witness that they were "similar" to glasses worn by one of the robbers. The jury also had access to video of the robbery and a photograph of the glasses worn. Ground 5: The trial judge erred in failing to direct the jury that they had to be satisfied beyond reasonable doubt that the sunglasses located in the vehicle were worn by the accused in the robbery 19Again no specific request was made for such a direction and I would refuse leave for it to be argued under Rule 4. Moreover, no such direction was needed in addition to the warnings given by the judge of the need to be satisfied beyond reasonable doubt. Not only did the judge give clear directions about the onus and burden of proof but he also gave clear directions repeating defence counsel's submission that "All these points on circumstantial evidence could never persuade you beyond reasonable doubt that it was the accused who involved himself in this robbery". He went on to say: "As I have said to you though, before you draw any inference or conclusion as to an essential ingredient, in this case the identity of the man in the white hat, you must be satisfied as to the existence of the facts and circumstances from which you are asked to draw that conclusion. You must, members of the jury, in that exercise avoid speculation; you must avoid conjecture in arriving at any such conclusion." He went on to say: "If you draw an inference adverse to the accused and in favour of the prosecution in respect of circumstantial evidence, it must be the only inference which in your view can be drawn beyond reasonable doubt; that follows from the directions I have given you." He also said: "But if at the end of that weighing process there is more than one conclusion than the conclusion urged upon you by the prosecution, then obviously the prosecution has failed to prove its case beyond reasonable doubt and you would be obliged to acquit." 20In Shepherd v The Queen (1990) HCA 56; 170 CLR 573 Dawson J said that where dealing with a circumstantial case based on links in a chain it may be necessary to direct that a particular fact must be found beyond a reasonable doubt before the ultimate inference is drawn. He went on to say: "But where - to use the metaphor referred to in Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par 2497; pp. 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." 21In my view the directions given by the trial judge were appropriate and this ground of appeal must fail. Ground 6: The trial judge erred in giving inadequate directions regarding the use that the jury might make of the evidence of the fluoro jacket and gloves 22The argument advanced here is that the judge should have given a warning to the jury "about drawing conclusions in respect of items of common possession within the community and warned against tendency reasoning." The trial judge drew the attention of the jury to the fact that the prosecution case relied on circumstantial evidence and then went on to enumerate what the circumstances were. Those circumstances included amongst others that the appellant wore fluoro shirts and also fingerless gloves. The judge did draw attention to the question "How many fluoro shirts are owned by people in Sydney" and "How rare is it for people to have fingerless gloves" and in respect of the tracksuit pants "How many hundreds of thousands of tracksuit pants are there to be bought at markets and worn so frequently in the city? And similarly the shoes ... The police officer conceded they are available to be purchased". The judge then went on to warn the jury that it was essential for them to "... examine the circumstantial evidence with care and consider whether it is reliable before you could draw the conclusion sought to be drawn in the submission from the Crown." 23Again this matter was not one raised at the trial and I would refuse to allow the ground to be raised under Rule 4. I would do so because the direction suggested in this ground was not necessary or even appropriate in the context of the warnings and directions given by the trial judge. Ground 7: The trial judge erred in failing to appropriately deal with a jury question 24The jury asked the question "How long does DNA last for?" The judge told the jury that there had been no evidence led on the issue. 25The question was asked during the summing up and at a stage when all the evidence had been completed. 26There was no obligation to call any further evidence. Neither the prosecution nor defence asked for further evidence to be called. The judge told the jury they must consider the evidence as it was given. This was not an issue in the trial. The prosecution did not suggest or submit DNA evidence could not last even though the defence case was that the DNA must have been there since some time in 2010. Perhaps a matter of some significance was the finding of the glasses on the floor of the car in front of the passenger's seat and readily visible in the photos tendered. The judge had earlier told the jury not to speculate. In those circumstances the answer given by the judge to the jury was the appropriate answer and I would refuse leave to raise this ground. Ground 8: The accused was incompetently represented (1) Failing to adequately deal with the DNA issue. 27It is suggested counsel at trial should have asked Ms Friedman, the scientific expert, how long DNA would remain to dispel the notion that it must have been recent. There was no evidence on this point. The jury was told not to speculate. The state of the evidence was left to the jury on the basis therefore that the version given by the appellant that he left the glasses somewhere in 2010 was not impossible. That left the appellant in the best position he could have been in and there is no incompetence of defence counsel demonstrated. (2) Failing to establish the witness Atack had made a positive identification of a person not the appellant. 28The witness did not identify anyone at first but then identified the second robber as the one who made her open the bank. This was not a matter of significance in the case against the appellant. She did, however, give her evidence about the similarity of the sunglasses. (3) Failing to make a fresh application for exclusion of the evidence - relates to Ground 3. 29This issue raises the same argument advanced in Ground 3. Because the evidence was admissible and should have been admitted there was no incompetence in counsel not raising it again. (4) Failure to draw attention to the ambiguity of the identification evidence of the witness Srinivas. 30The failure of Srinivas to say which of the two robbers she was saying the accused's photo resembled was not of any consequence in the trial bearing in mind it was quite obvious the two robbers were acting in concert. No incompetence of counsel is shown. (5) Failing to object to a chart. 31Pursuant to s 29(3) of the Evidence Act 1995 the chart was admissible and failure to object to it does not demonstrate incompetence. Ground 9: The verdict was unreasonable 32In Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at 332-333 [31-34] Johnson J said: "[31] In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22]. [32] In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29]. [33] In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen, Mason CJ, Deane, Dawson, Toohey JJ said at 494-495: "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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above." [34] The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38l 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13]." 33There was no dispute in this case that the Mitsubishi car found two days after the robbery was the getaway car used by the robbers on 15 February 2011. That car had been in the possession of Mr Zeidan who worked for a car sales company. In his statement tendered at the trial he said the car was extremely clean and had no personal items in it when he drove it home on 24 May 2010. He discovered it had been stolen the next day. 34There was no contest at the trial that the sunglasses found in the car belonged to the appellant. He said so himself. His DNA was found on the glasses and no other person's DNA was found on them. They were found on the floor in front of the front passenger's seat in full view. They were found next to a number of receipts stolen from Ms Atack during the robbery. The evidence of the appellant was that he may have had a ride in that car and left his glasses behind some time in 2010. On the face of it that story is unlikely and the jury had the opportunity of seeing him give evidence and evaluate him as a witness. The evidence that the glasses were "very very similar" to those worn by one of the robbers does add to the strength of the Crown case. The other evidence that his appearance was similar to that of one of the robbers and that items worn by one of the robbers were similar to items of clothing found at his home do add to the circumstantial evidence implicating him although by themselves they do not have great significance. 35A pair of two-tone blue and white shoes worn by one of the robbers bore substantial similarities to shoes found in the appellant's possession. Even the appellant acknowledged they were very similar. 36Having independently reviewed the evidence both as to its sufficiency and its quality, I am satisfied beyond reasonable doubt the appellant was guilty of the offences charged. I agree with the verdict of the jury and it has not been demonstrated that the verdict of the jury was unreasonable. Ground 10: Fresh evidence 37In order to establish this ground it is necessary to demonstrate that the absence of the evidence gave rise to a miscarriage of justice, see Mickelberg v The Queen (1989) 167 CLR 259 per Toohey and Gaudron JJ at 301. In this case the evidence could have been obtained. However, as new evidence it does not establish any better basis for determining whether the DNA evidence was fresh or not. It does no more than establish that given appropriate conditions DNA can last for a long time in cool, dry, dark, alkaline and sterile conditions. It is less likely to last in warmth and moisture. This is not material which could have been of any assistance to the jury on the assumption which must be made that the jury made a decision based on the directions given them by the judge. Indeed, had the evidence been given it may well have been to the detriment of the appellant bearing in mind where the glasses were found. The trial miscarried 38For the above reasons, I do not believe the trial miscarried and I would dismiss the appeal. 39R A HULME J: Some of the matters relied upon by the Crown in this circumstantial case were not particularly compelling. I refer in particular to the finding in the appellant's possession of fingerless gloves and a fluoro style work shirt of similar styles, but not the same as, those worn by a robber. But this case exemplifies the need for assessment of the overall force of all of the matters relied upon in a circumstantial case, rather than a piecemeal evaluation of individual matters. Having carried out that assessment myself, I am satisfied that the evidence established the guilt of the appellant beyond reasonable doubt. 40As to the grounds that give rise to the application of Rule 4 of the Criminal Appeal Rules, this is yet another case of an "armchair appeal": Bin Sulaeman v R [2013] NSWCCA 283, R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340, R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 at [38], R v Button and Griffin [2002] NSWCCA 159; (2002) 54 NSWLR 455 per Heydon JA at [30]-[37], R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310 at [40] and R v King [2000] NSWCCA 507. 41As I indicated to Mr Ramage QC during the course of the hearing, this Court is always alive to the possibility of a miscarriage of justice and will readily intervene when it is detected, notwithstanding a point might not have been taken previously. However, where such grounds are completely devoid of merit and unrealistically ignore the real contest at trial, as in this case, such appeals are to be deprecated. That is for various reasons, not the least because they consume the time and energy of the Court and its judges that could be better spent on cases posing more realistic and meritorious grounds for consideration. And a baseless claim that there was a miscarriage of justice because trial counsel was incompetent, in an attempt to avoid the operation of r 4 should be adamantly deprecated. 42The reasons of Blanch J encapsulate my own consideration of this case. I agree with his Honour's conclusions in relation to each ground and his proposal that the appeal be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2013