Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Guo v R [2020] NSWCCA 40 Hearing dates: 24 February 2020 Decision date: 13 March 2020 Before: Meagher JA, Johnson and Hamill JJ Decision: (1) Grant leave to appeal against conviction. (2) Dismiss appeal against conviction. Catchwords: CRIME – appeals – appeal against conviction – unsafe and unreasonable verdict having regard to the evidence – attempted armed robbery – offender turned himself in and confessed in ERISP, was bailed, then failed to appear – applicant arrested over twenty years later when all evidence except for partial ERISP lost or destroyed – applicant denied he was the person in ERISP – whether open to the jury to be satisfied beyond reasonable doubt that the applicant was that person – circumstantial evidence – inference of identity – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), s 97 Criminal Appeal Act 1912 (NSW), s 5 Cases Cited: Blyth v Carter [1933] VLR 433 Griffith (1995) 79 A Crim R 125 Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23 Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Smith v The Queen (1990) 64 ALJR 588 Texts Cited: J D Heydon, Cross on Evidence (11th Ed, 2017, LexisNexis Butterworths) J H Wigmore, Evidence in Trials at Common Law (Chadbourn rev, 1979, Little, Brown & Co) Vol 2 Category: Principal judgment Parties: Jia Ping Guo (applicant) Regina (respondent) Representation: Counsel: G Smith SC and A Parsons (applicant) D Patch (respondent) Solicitors: R Zhou (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2018/18439 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 March 2019 Before: Maiden SC DCJ File Number(s): 2018/18439 Judgment 1. THE COURT: On 20 March 2019, following a trial before Maiden SC DCJ and a jury of twelve the applicant, Mr Guo, was found guilty of the following offence contrary to Crimes Act 1900 (NSW), s 97(1): On 7 December 1996 at Sydney in the State of New South Wales, being armed with an offensive weapon, namely a knife, did assault Thi Thu Hoa Le with intent to rob her of property, namely Australian currency the property of Edinburgh Castle Hotel. 1. Mr Guo seeks leave to appeal against that conviction pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(b) on the ground that the jury's verdict was "unsafe and unreasonable having regard to the evidence". Mr Guo's notice of application for leave to appeal was filed within time, that time having been extended to 25 October 2019 by an order made on 13 September 2019. 2. The question we must ask ourselves is whether we think "that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. This is more than a question of the sufficiency of the evidence. The Court is required to "make its own independent assessment of the evidence": M v The Queen at 492 and SKA v The Queen (2011) 243 CLR 400 at 408; [2011] HCA 13. In doing so, the Court must bear in mind "that the jury is the body entrusted with the primary responsibility of determining guilt or innocence": M v The Queen at 493. A reasonable doubt experienced by this Court will, in most cases, be a doubt that the jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt: M v The Queen at 494. 3. At the trial it was not contested that the charged offence was committed by the male person interviewed by police on 17 December 1996. That interview was conducted at the Surry Hills police station by Detective Sergeant Kassis, in the presence of Constable Hunt and a certified Mandarin interpreter. It was recorded in two parts, each part on a separate video tape. 4. The man in the interview (we will refer to him as the interviewee) produced a black bag, a blue shirt which he said he had worn on the day of the offence, as well as a knife and Westpac Handycard. At the commencement of the interview he gave his name as Jia Ping Guo and his date of birth as 4 February 1967, described his nationality of origin as Chinese and said that he had been in Australia for seven years. The Westpac Handycard which he produced was issued in the name "Jia P Guo". Before the attempted robbery the interviewee sought unsuccessfully to withdraw money using that card at the hotel's EFTPOS machine. To do so he had handed the card to Ms Le so that she could run it through that machine. 5. At the conclusion of the interview that man was charged and fingerprinted, before being released on bail. On 14 January 1997 he failed to appear at Court, and a warrant for his arrest was issued. 6. Over twenty years later, on 10 August 2017, the applicant was arrested following police inquiries, including as to whether any Roads and Maritime Services (RMS) driver licence had been issued to a person with the name Jia Ping Guo and date of birth, 4 February 1967. Those inquiries identified the applicant as holder of current provisional driver licence number ****9568 which was first issued on 6 November 2014, and as the holder of earlier learner licences with the same number issued on 11 December 1992, 17 June 1998 and 17 June 2011. 7. The applicant was subsequently charged with the offence of which he was found guilty. By the time he was arrested, with the exception of the first video tape, all of the evidence gathered by the police in 1996 and early 1997 had been destroyed or lost. That evidence included fingerprints of the interviewee, which might have been compared with those of the applicant. 8. Mr Guo's counsel described the single issue for the jury: Well members of the jury as you know in my brief opening, I said this. There is no dispute about this robbery, no dispute whatsoever. The real issue is, is this man over here, is he the man that you've been looking at in that video, that's the issue. 1. The video of the interview conducted in December 1996 was played to the jury, who were also provided with a transcript of that interview. The jury also had the DVD exhibit and access to a DVD player in the jury room and were invited to view the DVD again if they wanted to do so. 2. The video shows a young man of Asian appearance with dark hair covering his ears, and parted on the left. That man is seated at the far end of a rectangular shaped table, which appears to be about two metres long, in a chair which permitted him to lean back. The interpreter is seated on his right side. The (unseen) video camera is at the other end of that table, facing the interviewee and interpreter. The interviewing officers are seated opposite (and facing) each other on either side of the table towards the end where the video camera is located. The screen view thus shows the two police officers in the foreground – Constable Hunt to the left side and Detective Sergeant Kassis to the right, each making or glancing at notes and looking away from the camera and towards the interpreter, on the left, and interviewee on the right, at the far end of the table. During much of the interview the interviewee is leaning back in his chair, often with his head down. Defence counsel's submissions to the jury in relation to that video included: It's a very poor quality. You don't have any close-ups of his face. 1. Before the arrest of the applicant the police had made inquiries of the Australian Border Force (ABF), with respect to movement records concerning any person having the name Jia Ping Guo and date of birth 4 February 1967. Those movement records showed that there was one person with that name and date of birth who had first arrived in Australia on 1 January 1990, departed Australia on 10 October 2011 and returned on 3 December 2011. No other person of that name having that date of birth entered or left Australia during or after that period. That left open the possibility that there was someone with that name and date of birth who had been born in Australia (and not thereafter left Australia) or someone who had been born overseas and entered Australia without that fact being recorded. 2. Constable Hunt gave evidence that driver licence ****9568 had been issued to the applicant and was used by him as evidence of his identity in his dealings with Star Casino in Sydney. The ABF movement records were wholly consistent with the records relating to that or earlier licences in the sense that the person to whom those movement records referred was in Australia at the time each of those learner and provisional licences was applied for and issued. 3. Finally, the RMS records in evidence included head shot photographs of the applicant taken on 17 June 2011, 6 November 2014 and 10 December 2015, at the times each of the licences was applied for. The earliest photograph shows the applicant with darkish hair cut neatly to his ears and parted on the left. In the remaining two of those photographs the applicant's head is shaven or closely shaven. There were two further photographs of the applicant in evidence, each taken at the time of his arrest in 2017. 4. The jury had no photographic or video evidence from which they could clearly and unambiguously identify the 1996 interviewee as the applicant. To make that assessment (which was for them to make, see Smith v The Queen (1990) 64 ALJR 588; Griffith (1995) 79 A Crim R 125 at 128) the jury had the video recording of the first part of the interview, the three RMS photographs of the applicant and the two photographs taken at the time of his arrest. They were also able to observe the applicant during the course of the trial. However there were obvious limitations with using the video evidence to identify the applicant as the offender. Apart from the period of fourteen and a half years which had elapsed between the time of the interview and the taking of the first of the RMS photographs of the applicant, there is no well-lit and close-up head shot of the interviewee in the video. Rather he is about two metres from the camera, not sitting upright or looking directly at the camera, and his face is not well lit. 5. Ms Le did not give any evidence identifying the applicant as the offender. She described that man as being of Asian appearance with black curly hair down to the level of his ears. In cross examination she was asked whether she had told the police that man had a "goatee beard with a moustache". She could not recall having done so, and her description of that man did not include either of those obvious features. Constable Hunt was cross examined about the description of the offender in two entries in the New South Wales Police database (COPS), which apparently described the interviewee as having a "goatee beard and moustache" and showed his date of birth as 4 February 1963. He was unable to explain how either of those entries came to be made. The first was not supported by Ms Le's evidence, or the appearance of the interviewee in the video. The second was inconsistent with the interviewee's clear and unprompted answer that his date of birth was 4 February 1967. The applicant did not give or call evidence at the trial. 6. Where, as here, it is necessary for the jury to reach a conclusion of fact – that the applicant was the man interviewed in 1996 – as an indispensable, intermediate step in the reasoning process towards a finding of guilt, that conclusion must be established beyond reasonable doubt. But where that fact was to be proved by circumstantial evidence, each of the matters from which that conclusion was said to follow as a rational inference need not, considered separately, be established beyond reasonable doubt. Rather, the jury could conclude that fact was established beyond reasonable doubt from a combination of facts, none of which viewed alone would support that position: Shepherd v The Queen (1990) 170 CLR 573 at 581, 585 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing). 7. The question for the jury was whether having regard to the circumstantial evidence relied on by the Crown they were satisfied beyond reasonable doubt that the interviewee and applicant were one and the same person. The usual process of reasoning for constructing an inference of identity is described by Wigmore in Evidence in Trials at Common Law (Chadbourn rev, 1979, Little, Brown & Co) Vol 2 at [411]: [That process] usually consists in adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together make it more probable that they coexist in a single object only. Each additional circumstance reduces the chances of there being more than one object so associated. 1. Wigmore had earlier said of that reasoning process: …it operates by comparing common marks, found to exist in the two separate objects of thought with reference to the possibility of their being the same. It follows that its force depends on the necessariness of association between the mark and a single object. Where a certain circumstance, feature, or mark, may commonly be found associated with a large number of objects, the presence of that feature or mark in two supposed objects is little indication of their identity, because of the general principle of relevancy, the other conceivable hypotheses are so numerous, i.e., the objects that possess that mark are numerous and therefore any two of them possessing it may well be different. But where the objects possessing the mark are only one or a few, and the mark is found in two supposed instances, the chances of the two being different are nil or comparatively small. See also J D Heydon, Cross on Evidence (11th Ed, 2017, LexisNexis Butterworths) at [1455]. 1. In Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23 at 375 Dixon J (as his Honour then was) described the exercise which must be employed in a criminal trial where the onus of proof is beyond reasonable doubt and remains upon the prosecution: In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. 1. Later, as Chief Justice, his Honour said in Plomp v The Queen (1963) 110 CLR 234 at 243; [1963] HCA 44: … The ordinary rule relating to circumstantial evidence… [is] that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. (emphasis added) 1. In this context in our view a bare comparison of the video evidence with the photographic evidence of the applicant, and the benefit of his presence in the courtroom, did not enable the jury applying its human experience and common sense, to be satisfied beyond reasonable doubt that the interviewee and applicant were one and the same person. 2. However that evidence remained relevant to the resolution of the question of identity having regard to all the other circumstantial evidence. There was nothing in the video and photographic evidence which meant that the jury could not reasonably suppose that the interviewee and the applicant were the same person. Most significantly what that evidence showed was that there were resemblances in the appearance of the younger man in the video and the older man in the photographs of the applicant taken at least fourteen and a half years later. Those resemblances included prominent lips and a broad nasal bridge. In addition, in the first RMS photograph the applicant had dark hair, parted on the left, as did the man in the video. 3. As the Crown submitted in its closing address to the jury the circumstantial evidence gave rise to three possibilities. They were that the man in the video and the applicant were the same person; that they were different people, the man in the video having assumed the identity of the applicant for the purpose of confessing that he had committed the charged offence; or that they were different people, although they had the same name and date of birth and were both of Asian origin. 4. As the Crown put it: If the accused is not the Asian male in the interview with police then who is the Asian male in the interview. A different Asian male with the same name, the same date of birth, the same year arriving in Australia. Ladies and gentlemen, you are allowed to use your common sense when you consider your verdict and the Crown submits that when you use your common sense, you would find that any suggestion that the accused is not the same man in the interview is just beyond belief when you consider all the details in this case. … nobody would confess to a serious offence, using the name and date of birth of another person and take the risk that the police could bail refuse them for their confessions. The only person who would take a risk such as that to confessing to a serious offence, using the name and date of birth of Jia Ping Guo is in fact Jia Ping Guo, the accused. To put it bluntly, the Crown submits that people do not confess to serious crimes and bring the items that they used in those crimes, if they are not the ones that committed the crimes. (emphasis added) 1. As to the second of these possibilities, it requires that the man in the video knew of the applicant, his date of birth, and the time of arrival in Australia of a person with that name and date of birth, and that he had possession of and attempted to use a Westpac Handycard in the applicant's name. However, in this scenario, where the purpose of the interviewee assuming the applicant's identity was to point to him as having committed the crime, it would not have been necessary in order to do so for the interviewee to give himself up to the police and make a confession using the applicant's name. The Westpac Handycard, issued in the name of the applicant, had been used on the night of the crime and the interviewee believed that use was sufficient to point to a person with his name as having been the perpetrator. At ERISP Q+A 52 the interviewee said: Q: Could you tell me, what do you want to tell me about [the robbery]? A: Before the robbery, uh, I took, got the Westpac bank card, I was going to withdraw money at a counter. 'Cause at the machine maybe the, the account might, the account number on my bank card, maybe left there. So I thought while we're up there, it was better for me to confess in a police station. 1. Furthermore, as the Crown submitted to the jury, in turning himself in to make that confession, the interviewee took the risk that the police would refuse him bail so that he would remain in custody for the offence. In the light of these considerations it was plainly open to the jury to reject this second possibility as not reasonably compatible with the evidence. 2. The only remaining explanation consistent with the applicant's innocence is that the interviewee and the applicant were different persons albeit that each was of Asian origin and had the same name and date of birth. As the interviewee claimed to have arrived in Australia from China at the end of 1989, which corresponded with the entry in the ABF movement records, this possibility depends on it being reasonable to suppose that the applicant either was born in Australia, or had in an undetected way first entered the country sometime before 1992 when the first learner licence was applied for. The latter possibility might be thought unlikely given that the applicant had been able to successfully obtain that licence in December 1992. 3. The jury had a number of circumstances from which to construct an inference that the interviewee and applicant were the same person. They were both of Asian origin and had the same given names and surname and date of birth. Because the interviewee had the Westpac card and the applicant a learner driver licence, each was demonstrated to have been publicly using the same name at the time of the offence: as to which see Blyth v Carter [1933] VLR 433 at 435 (Mann ACJ). There were also resemblances between the younger man in the video and the older man in the photographic evidence, which the jury could regard as distinctive. Finally, the ABF movement records were consistent with both the information given by the interviewee and with the applicant being in Australia at the time each learner or driver licence was issued. 4. Considering all of those circumstances the jury were entitled to conclude that the interviewee and the applicant were the same person. Whilst it remained a conceivable possibility that the applicant had been born in Australia in February 1967 and not left this country in the following 52 years, it was open to the jury to reject that possibility as not reasonably to be supposed, particularly in the light of the photographic evidence. Accordingly it was not a possibility as to which they must, as distinct from might, have entertained a reasonable doubt: see Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J). 5. This is not a case where the jury enjoyed any particular advantage over this Court in assessing the question of whether the prosecution proved the case beyond reasonable doubt. Nor was it submitted that the fact the jury saw the accused in the dock over the period of the trial gave them any particular advantage in assessing the evidence. On our independent assessment of the whole of the evidence presented against Mr Guo, we are each satisfied that the prosecution proved its case beyond reasonable doubt. The only reasonable inference on the whole of the evidence was that the applicant was the man interviewed by the police, and thus the man who committed the attempted robbery. 6. For these reasons we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that Mr Guo was guilty of the offence charged. The applicant should be given leave to appeal against that conviction. However, that appeal must 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: 13 March 2020