Festa v The Queen B30/2000 [2001] HCATrans 182 (4 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B30 of 2000

B e t w e e n -

BRUNETTA FESTA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MAY 2001, AT 12.40 PM

Copyright in the High Court of Australia

MR A.J. KIMMINS: If it pleases the Court, I appear on behalf of the applicant. (instructed by Ryan & Bosscher, Lawyers)

MR M.J BYRNE, QC: If it pleases the Court, I appear on behalf of the respondent. (instructed by the Office of the Director of Public Prosecutions (Queensland))

KIRBY J: I think we might be advantaged in this case by hearing Mr Byrne first.

MR KIMMINS: Thank you, your Honour.

MR BYRNE: May your Honours please.

KIRBY J: Mr Byrne, there are a couple of matters that are of concern, that appear on the face of things subject to what you say to warrant the grant of special leave. One is the question of the conformity with the identification procedures that are safe and fair, not only by the standards of this Court in Domican but also as it is said in the supplementary submission by the police instructions in Queensland and secondly, the question of whether the possession of the accoutrements of the armed robber were admissible against the applicant.

MR BYRNE: May I deal with those, your Honours, in the reverse order that your Honour Justice Kirby has mentioned them?

KIRBY J: Yes.

MR BYRNE: In respect to, what were, in effect, the firearms found at the unit when police executed the search warrant, the Court of Appeal dealt with - - -

KIRBY J: That was not the applicant's unit, was it?

MR BYRNE: No, it was a unit rented under what was said to be an assumed name by the male companion of the applicant.

KIRBY J: "Companion" covers a lot of sins, and not only sins but it is not very clear what the relationship between the applicant and her companion were.

MR BYRNE: I think it is far from clear, in effect. On the facts the applicant was residing with a male at a different address and had access to that male's car, whereas she seemed to be - - -

KIRBY J: Yes, all the more reason for caution in attributing to her matter found in the home of her companion, as you put it.

MR BYRNE: The significance of that particular evidence differed, your Honours, so far as the two cases against the applicant and the male with which she was charged. In respect to the male, it being, as your Honour has identified, his unit, then that, perhaps, raised the issue which is the subject of the, as I understand the challenge made by my learned friend, namely, whether that evidence was admissible or simply went to propensity of the person to commit offences.

So far as the appeal of the present applicant to the Court of Appeal was concerned, their Honours recognised that different considerations applied in the case against this present applicant than to those in respect of the male accused. In respect to her, that is the present applicant, it was an important part of the Crown case to show, not only that she was associating with the male, but that that association had annexed to it a knowledge by her of his activities which included - - -

HAYNE J: Well now, there is the difficulty, is there not, Mr Byrne? These tools of the trade that are found are tools that were acquired after the robberies with which this applicant was charged, are they not?

MR BYRNE: That is correct, your Honour.

HAYNE J: So the Crown case is, is it, or was at trial, was it, that because she knew a man who after these robberies had tools of the trade that were suitable to armed robbery this was evidence that demonstrated her guilt?

MR BYRNE: No. It was a little more subtle than that, your Honour, in the sense that the Crown case - - -

HAYNE J: It would need to be a lot more subtle than that, I think, Mr Byrne.

MR BYRNE: I will try and persuade your Honour as to that or convince you, at least. The Crown case was one of, and I digress into a few of the facts - - -

KIRBY J: Just before you go into that, can I interrupt you to say that the cases of Johns and Maggbury will not be taken before 2 pm. Yes, go ahead.

MR BYRNE: Thank you, your Honour. The Crown case centred on events which occurred over a relatively short time frame. The male person was released from prison. He moved north of the Gold Coast where he was involved to the extent of his fingerprints being on a car used in an armed robbery. He then rented the unit, to which your Honours have made reference, under an assumed name.

He was then, on various parts of the Crown case, seen to be associating with the present applicant and that association involved, inter alia, on her admissions, uncontested, driving him around, seeing him every day and the purpose of the driving of him around was to steal cars. She also told police that he did not know any other female down there and the significance of that was that in respect of the two robberies, with which they were jointly charged, a male and a female were said to be the persons carrying out the robbery and using two cars, one to effect the robbery and one as, if you like, a getaway vehicle.

Now, it was against that background that it was important, as part of the Crown case, to show, not simply that she could have been involved with him in a car-stealing operation, but to link her as the female involved in the robberies. The use that was made of the finding of the weapons at the unit, albeit that was after the carrying out of the robberies and albeit they were weapons other than those used in the robberies, was simply that with that background she was a person who was visiting that unit on a regular basis.

The guns were not, as it were, concealed in cupboards. They were lying over tables, over lounge chairs. There was a good deal of ammunition, again displayed openly in the unit, some of the ammunition being relevant not simply to the weapons found but capable of being used with the weapons, such as the descriptions permitted, were used in the actual armed robberies.

So the use to which that evidence was put against the present applicant was not simply that because that was found afterwards, therefore she was a robber. It was, if I can repeat the phrase, a subtle way of circumstantial evidence to say that her association with him was (a) continuous, (b) criminal in the sense that there were these takings of cars and (c) an involvement with weapons and ammunition such as was used by a male and a female in the course of armed robberies carried out in a short time frame.

HAYNE J: The proposition therefore was she associated with a man who, after the robberies, had weapons, albeit weapons of a kind used in the robbery. This was a fact which the jury might use in deciding whether she had participated in the robbery. Is that it?

MR BYRNE: Whether she was, firstly the female involved in the robberies and (b) had knowledge of the goings on involving the robberies as distinct from the theft of cars.

HAYNE J: And what is the best authority you would have for saying that the jury might use this evidence in this way against her?

MR BYRNE: Your Honour, the authorities which are referred to against us refer to propensity evidence and the proposition is whether this was properly propensity evidence against her. If it was, then one would have to go to Pfennig v The Queen as the proper authority, but the argument firstly is that it was not used as propensity evidence. It was used more as evidence of her knowledge of the activities of this person. I say also, before leaving that point, that her - - -

KIRBY J: It is very damning evidence, is it not? It sort of labels her as being involved whereas, when on the possibilities, the possibility is that her friend was involved, very deeply involved but she just had a relationship which was not involved.

MR BYRNE: The difficulty with that proposition is when one looks at all of the evidence because found in the unit, apart from the weapons, were wigs, spray cans involving affixing wigs, wigs and disguises.

KIRBY J: Were they on display, like the guns, or not?

MR BYRNE: They, as I recall it, your Honour, were in one of the bedrooms of the unit.

KIRBY J: Yes.

MR BYRNE: Disguises such as that were used by the female involved in the robberies and, importantly, the applicant's fingerprints were found on relevant items of that type within the unit.

KIRBY J: On the spray can, I think.

MR BYRNE: That is as I recall it, your Honour, yes.

KIRBY J: Yes. That is my recollection.

HAYNE J: And by all means lead that at a trial. It is the question of what you do about the guns.

MR BYRNE: I do not believe I can take that point further.

KIRBY J: What do you say about the identity evidence? It was pretty loose, by modern standards.

MR BYRNE: That is accepted as well, but the issue before this Court, in my respectful submission, is whether it was properly dealt with by the trial judge and the Court of Appeal in instructing the jury as to what use they could make of it and in paragraph 6 of my written outline I have extracted the description by the Court of Appeal of their perception of the way it was left to the jury by the trial judge and it is quite a useful, in my respectful submission, way of doing it.

The evidence was not so much left as identification evidence, albeit directions in accordance with Domican were given. It was left more as circumstantial evidence, namely, that a person similar to the applicant was seen by various persons in the course of the robberies and the associated use of the vehicles involved in the robberies.

KIRBY J: Yes, but the Crown builds up a case against an accused and unfortunately, in the last 20 years, we have become much more aware - perhaps fortunately we have become aware of the unfortunate mistakes that can happen in identification evidence and if you simply go up to a person with the police and say, "Do you know this person?", then the problem is you contaminate the identity evidence. You plant the idea. There was one description of the applicant as "olive" and one as "pale".

When you actually get to the objective material it does cause some anxiety that because police procedures and procedures laid down by this Court have not been observed, that you have contaminated very important evidence. Now, I realise you say all of that was cured by the trial judge's directions to the jury but it still leaves a sense of disquiet, to me, given the miscarriages of justice that have happened over identity evidence.

MR BYRNE: Yes, and I would readily accept that if it stood alone or even near to alone, then those misgivings would be shared and would have been shared by the Court of Appeal. The difference in the present circumstances, in our submission, is that even putting that to one side - and I say that being fully aware of what this Court has said in Domican in relation to identification evidence, but putting it to one side for the purposes of argument, the case against the applicant was an overwhelming one.

There were a number of strands to the circumstantial evidence. There was no contradiction by her. There was flight in the course of the trial and, in those circumstances and given the manner in which the identification evidence, if I may call it that, was dealt with by the trial judge, then as identified by the Court of Appeal it was sufficient in the unusual circumstances here.

You see, I do not understand it to be submitted that the evidence was not admissible because evidence of the type whereby descriptions are given or persons are said to be of a description or of a likeness to a person is part of a circumstantial case. The real complaint, as I understand it, is the treatment of the evidence by the trial judge in the Court of Appeal and my answer to that is simply that in the context of the trial it was not such as to give cause to misgivings as to a miscarriage of justice.

KIRBY J: There is no ground of appeal proposed before us in relation to the continuance of the trial in the absence of the applicant.

MR BYRNE: No, there is not.

KIRBY J: She absconded on the 12th day of the trial, did she not?

MR BYRNE: There was no point taken as to that in the Court of Appeal, either, your Honour.

KIRBY J: Yes, is there anything else you wish to say other than to rely on your written submissions.

MR BYRNE: No, thank you, your Honour.

HAYNE J: Can I just raise one matter with you, Mr Byrne?

MR BYRNE: Yes, your Honour.

HAYNE J: If we were minded to give leave on grounds 1, 2 and 3, what would you say about a grant of leave on the remaining grounds at application book 103, that is grounds 4 to 7? Are they bound up so much in the matters raised in grounds 1 to 3 that they should not be segmented or are they properly segmented. Do you have any submission about that?

MR BYRNE: Your Honour, as I understand the complaint, all the grounds are capable of standing on their own. There is no submission, as I understand it, your Honour, to have identified that there has been such a miscarriage that there would be no fresh trial of the matter.

KIRBY J: Ground 4 is bound up in the hearsay question, is it not, because it is the similar facts evidence?

HAYNE J: It seemed to be directed in the argument to whether the robberies were sufficiently similar, which seemed to be a rather separate point which provoked my question and, at least at first blush, it did not seem to me that the robberies were all that terribly different.

KIRBY J: Perhaps we might hear what Mr Kimmins has to say about those other grounds. Thank you very much, Mr Byrne.

MR BYRNE: Thank you, your Honours.

KIRBY J: If need be we will come back to you. What do you say, Mr Byrne? If the Court were minded to grant special leave on grounds 1, 2 and 3, not considering that the remaining grounds are matters which, standing alone, would warrant a grant of special leave, is that going to put you at a disadvantage in arguing the appeal?

MR KIMMINS: I cannot say that it will put me at a great disadvantage, except this: grounds 4, 5 and 6 specifically deal with aspects of circumstantial evidence that were left to the jury as well and, in our suggestion as to why special leave should be granted, we say that all of the factors, grounds 1 to 6, basically touch in some way upon circumstantial evidence. Ground No 7 stands by itself.

KIRBY J: Yes, but we are not a court of super criminal appeal.

MR KIMMINS: Yes, I understand that.

KIRBY J: We have to look to whether there are special leave points. Now, what about 4? Is the "similar fact evidence" that you would be referring to on that ground only the similar fact relating to the modus operandi of the robberies, or not?

MR KIMMINS: It relates to the cars as well, because both were left to the jury.

KIRBY J: But does it relate to the guns found in the - - -

MR KIMMINS: No, your Honour.

KIRBY J: It does not.

MR KIMMINS: No, your Honour.

KIRBY J: Very well. Well, that seems to be separate. What about ground 5 relating to the "association between the Applicant and Renton"? Is that connected with the hearsay point or with the point concerning identity evidence in any way, or not?

MR KIMMINS: It possibly is in relation to the identification evidence, having regard to what Mr Byrne has indicated today when he took the Court through the facts suggesting that there was a close association between the applicant and the man, Renton, as such and that she was at his place for a deal of the time.

The complaint made at the Court of Appeal was that the learned trial judge indicated to the jury that if, based on the evidence, they were satisfied that Renton was seen with a woman that they could come to a conclusion that that woman was the present applicant.

KIRBY J: Yes, very well, thank you very much. Anything else that you wish to say on the limitation on the grant to exclude 4, 6 and 7?

MR KIMMINS: No, your Honour.

KIRBY J: There will be a grant of special leave in this application, but limited to grounds 1, 2, 3 and 5.

What would your estimate be for the appeal, Mr Kimmins?

MR KIMMINS: Possibly two or three hours, your Honour.

KIRBY J: Yes. Do you agree with that estimate, Mr Byrne?

MR BYRNE: Yes, about half a day, your Honour.

KIRBY J: Very well. We will note half a day.

AT 1.00 PM THE MATTER WAS CONCLUDED