Dastagir v The Queen [2014] HCATrans 130 (20 June 2014)

Last Updated: 23 June 2014

[2014] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A32 of 2013

B e t w e e n -

HAMEED ULLAH DASTAGIR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 20 JUNE 2014, AT 10.59 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the applicant. (instructed by Patsouris & Associates)

MR A.P. KIMBER, SC: May it please the Court, I appear with my learned friend, MS K. ORR, for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Yes, thank you.

MS SHAW: If the Court pleases, this is a circumstantial case of identity in which the primary issue at trial was whether the person of interest shown in stills extracted from service station footage was the applicant.

FRENCH CJ: Now, you have two complaints, as I understand it. The first relates to the judge’s direction to the jury about the use they could make of the CCTV footage taken at the service station of the person getting out of the passenger seat of the vehicle. We have just lost the link. Sorry, Ms Shaw, we seem to have had an interruption with the link. Can you hear me now?

MS SHAW: I can, thank you, your Honour.

FRENCH CJ: Please proceed.

MS SHAW: If the Court pleases, there are two points. The first point relates to the trial judge having left to the jury, as an independent route to guilt, a comparison of the stills and the photographs of the applicant taken three months after the event when there was no evidence of his appearance as at the time of the offending and, secondly, looking at the appearance of the applicant in the dock, as the learned trial judge acknowledged his appearance had changed, and the applicant complains that leading to the jury an independent route to guilt based on a comparison of stills which were acknowledged to have a considerable number of defects as in the quality of the footage as well as the distortions that arise. The applicant says that that gives rise to a risk of a miscarriage of justice.

The second point that the applicant raises is that here the Court of Appeal held that the black windcheater with a logo that said the word “Notorious”, found in the garage of the applicant, the Court of Appeal held that the learned trial judge did not err in admitting that windcheater was a - - -

FRENCH CJ: I am sorry, can I just make sure I have my understanding of the facts correct. I think the person seen getting out of the vehicle at the service station on the CCTV footage was wearing a black windcheater with the word “Notorious” on it - - -

MS SHAW: Yes.

FRENCH CJ: - - - the garment found at the appellant’s mother’s home, or the garments were a red windcheater with the word “Notorious” on it and a black T-shirt with the word “Notorious”. Is that correct?

MS SHAW: It is, your Honour. I apologise, your Honour; that is correct. The court held that the learned trial judge did not err in admitting the evidence of the red windcheater and the black T-shirt in relation to the question of identity. The question, we say, that gives rise to special leave is the Court of Criminal Appeal’s holding at application book 129, paragraph 78 that the admissibility of the evidence:

was not affected by the fact that the prosecution did not contend that –

the clothing -

was used in the crime.

In essence, the two ways in which the learned trial judge identified for the jury routes to a finding of guilt were firstly, as I have said, solely by comparison of the service station material with the later arrest photographs of the accused and the jury’s inspection of the accused in the dock, and the alternative route to conclude that there was sufficient similarity in appearance such that the accused could not be excluded and then to consider the various items of circumstantial evidence. We submit, as our first special leave point, that the first route should not have been left.

The Crown in their submissions at application book 162, paragraph 32 - and on one view, the Court of Criminal Appeal at application book 120, paragraph 31 of their reasons - suggest it unlikely that the jury adopted the first route, therefore, the Crown says that this is not a case to consider the issue that arises in relation to the first route whether the photos were of sufficient quality to be left as a potentially sufficient independent route to guilt.

FRENCH CJ: The judge did direct the jury – and I am looking at pages 48 and 49 and around about there - to be pretty cautious in any comparison exercise involving the photographs and the accused and the CCTV footage.

MS SHAW: We agree with that, your Honour, in relation to that first point. But, in our respectful submission, when the evidence which accompanied that direction was, as his Honour pointed out in the application book at page 52, the quality of the CCTV footage was to the “lower end of quality” because of the risks of “pixelation” and “fish-eye effect” and the like and, secondly, pointed out the expert evidence as to the grainy quality and obvious distortions. We say that evidence of stills of that quality to support a verdict of guilt beyond reasonable doubt must give rise to a risk of a miscarriage of justice.

In other words, where the accepted infirmities of the comparative material is such that of the order that are described here and simply looking at the photographs at application book 174 with the arrest photographs of the accused – or the applicant – we say could not satisfy or prove the guilt of the applicant beyond a reasonable doubt.

But, your Honours, what we say is that the second special leave point therefore is important because if, as the Crown said in their outline, it is unlikely that the jury took that first route, then the question of the admissibility of the clothing as one of the items of circumstantial evidence pointing to the applicant as the perpetrator becomes even more significant.

FRENCH CJ: Now, this is a question – the question is one of relevance, and there may be debates about whether the logical connection between the brand of the clothing found at the appellant’s mother’s home and the appellant’s identity with the person seen getting out of the vehicle may be tenuous – is that really a debate which exposes a question of general principle, or is it really a debate at the margins of whether or not something has such a tenuous connection that it should not have been admitted – a matter of degree, in a sense.

MS SHAW: Your Honour, in our respectful submission, it does give rise to a point of principle. In the context of this case, the real issue was all of the other circumstantial evidence pointed to the brother or an associate of the brother, and it was only the stills and that comparison together with this clothing that pointed to the applicant. The point of principle that arises is where clothing is found – which is an ordinary everyday clothing – is it entitled to be relied on to prove identity when there is no evidence of ownership or possession, it is possible only, and the question of whether or not it gives rise to a propensity to own another item of clothing, in our submission, is rank speculation.

So the point of principle that arises is that although this Court has considered propensity reasoning in the context of discreditable conduct, it has not considered whether or not it is proper to reason from the position of an item of clothing that the person has a propensity, or an interest in that clothing, that puts them in a subgroup which therefore means that that can be used to identify you as the offender. The statement of the Court of Appeal – let me just take your Honours to the statements of the Court of Appeal as to the basis upon which evidence of clothing of this kind, assuming ownership was proved, could be applied to prove identity. In effect, they are at paragraph 79, at page 130, line 15:

However, in our view the evidence was relevant, both as a fact bearing on the failure of the police to locate a black “Notorious” windcheater such as the one worn by the passenger at the Liberty Service Station – and inferentially, by the stabber –

In our respectful submission, as a point of principle, a real question arises whether finding an item of clothing which in this case was accepted – was street wear, and was available and used by others, could be used, assuming possession for the moment, as a fact bearing on the failure of the police to locate a different coloured item that has the same brand.

In our respectful submission, that reasoning is incorrect and must only assume guilt in order to have any validity. The second reason given was that the item could be used to show that the appellant had an interest in or a taste for such clothing. In our respectful submission, as a point of principle, it is not open, and ought not to be open, or it ought to be made clear as to what basis it can occur that just because you own an item of clothing and the circumstances in which you own it are unknown that that possession or ownership can be relied on to infer that you have a particular interest or taste for such clothing which can then be used to show a propensity to own the clothing that was the subject of the offending.

Thirdly, the reason the court gave was that the appellant and the offender - it showed that the appellant and the offender were members of a subgroup of the community. In our respectful submission, that does give rise to a point of principle as to whether or not possession of an item of clothing does put you into a subgroup - - -

FRENCH CJ: Whatever that subgroup is, the possibility of it being the bikie gang known as Notorious was excluded in directions to the jury by the judge, was it not:?

MS SHAW: Well, your Honour, it is - - -

FRENCH CJ: The subgroup must be some subgroup of people who like wearing clothes with the label “Notorious”.

MS SHAW: Yes, that is so, your Honour, except that, of course, that direction arose and became necessary because of the prejudice that was potentially engendered because of the existence of the bike gang which was called “Notorious”. The applicant objected to the evidence but once it was admitted this was an effort to meet the prejudice that might arise because of the existence of this Notorious bike gang.

So we say that in this case that there was not only the tenuous basis for admission and the inappropriate reasoning route, namely, on the basis of an access to or interest in, but there was the risk of prejudice because of the need to introduce the evidence about the Notorious bike gang and, in addition, of course, the victim, Mr Focarelli, was himself connected to bike gangs and said that when he was stabbed, he said, “Notorious got me.”

FRENCH CJ: Now, in terms of the judge’s direction to the jury and the judge’s explanation to the jury of the relevance of that evidence, I think that appears at – and I am not sure whether I am meant to look at the numbering at the top or the bottom of the appeal book, but looking at - the application book – but looking at the top of page 40 - - -

MS SHAW: Yes.

FRENCH CJ: - - - and then he – the trial judge excludes any suggestion that the clothing was that shown in the footage and allows for the possibility that it may have been that the clothing found at the appellant’s mother’s home “may have been in storage for someone else”, and then says:

you are not required to consider any such conclusion that the accused may have had an interest or access to this type of clothing in isolation. It is a strand to be added to, and assessed, in conjunction with all of the other circumstantial evidence in the case.

Now, is that the extent of the explanation of the relevance of that material to the jury?

MS SHAW: Your Honour, we agree with what your Honour has said but the complaint of the applicant is that there was no other evidence, apart from the stills and the footage, that differentiated this applicant from the brother or his associates. In other words, the other strands in the circumstantial evidence list that his Honour provided to the jury pointed only to the brother or his associates. This was the only item in the various strands that distinguished the brother from his associates.

So the premise, effectively, that the jury were faced with was that the issue identity turned on, given that the vehicle shown clearly belonged to the applicant’s brother, and given that the brother was excluded because there was no tattoo shown on the neck of the person at the service station,

the only issue was which of the associates of the brother were, in fact, responsible for the offending.

The first item – circumstantial item, was the car. The second one was the number plates missing from the car. The third one was the presence of the applicant’s palm print on the outside of the car. The fourth one related to the applicant’s presence with his brother at the car the following night, and the sixth one was that it was not the brother and the seventh one was a Nike bumbag that the applicant was found with but the brother had a Nike bumbag in his car as well.

So, in our respectful submission, this was the sole item of circumstantial evidence that separated the brother - the applicant, from any of the brother’s associates. So we say this vehicle, bearing in mind those items that we point to, is the only distinguishing items of the applicant against the associates of the brother. If the Court pleases.

FRENCH CJ: Thank you. Yes, Mr Kimber.

MR KIMBER: If the Court pleases, in the respondent’s submission - - -

FRENCH CJ: Just a minute, Mr Kimber. Mr Kimber, we will not need to hear you on the question of the photographic comparison but we would be assisted by your observations – your submissions in relation to the second ground relating to the “Notorious” windcheater.

MR KIMBER: Yes, your Honour. In my respectful submission, the admissibility of that evidence was simply governed by the fundamental principle, or the fundamental criterion, for admissibility of relevance. To answer the question posed by your Honour the Chief Justice, there is no relevant principle other than was the evidence probative. Of course, evidence that is probative might not be admitted because it is more prejudicial than probative.

FRENCH CJ: Well, can you cut to the chase and expose the chain of logical reasoning that is open to a jury in relation to the clothing that is bearing the logo “Notorious” that makes that evidence relevant?

MR KIMBER: The man whom everyone accepts for the purpose of this application was the offender was wearing a “Notorious” top of a black colour on the night. As part of an overall circumstantial case, the finding of a “Notorious” top, albeit of a different colour, was relevant, because it was capable of showing that the appellant had – or the applicant had – an interest in clothing of that type. Now that is the - - -

FRENCH CJ: Now, the circumstances of the finding were – it was at the appellant’s mother’s home, is that correct?

MR KIMBER: Yes, your Honour.

FRENCH CJ: The applicant’s mother’s home?

MR KIMBER: Yes.

FRENCH CJ: And that he had been staying there, is that right?

MR KIMBER: There was some evidence about that, yes, your Honour. And so it was open to infer, in all of the circumstances, that it was his top. Now, of course, that was not to be governed solely by the fact that he stayed at his mother’s house, and the clothing was found there, there was also the other circumstantial evidence which was capable of implicating him in the offence. The brother’s car was used, and as set out by the respondent in its written submissions, the brother was excluded as being the person who got out of the car at the service station, because he had a very distinctive tattoo on his neck, which could not be seen in the footage.

So the appropriate approach to the evidence was that approach that is set out by the learned trial judge in the summing-up, in the pages to which your Honour referred. In my respectful submission, careful directions were given about the approach to be taken to that evidence. In my respectful submission as well, the approach of the learned judge - - -

FRENCH CJ: What positive use did the judge – apart from excluding inappropriate use, what positive use did the judge tell the jury they could make of that evidence apart from the statement at 41, looking at the number of the top, “It is a strand to be added to” et cetera?

MR KIMBER: That was the extent of the direction that was given, other than the direction that was given at application book 6 about guarding against prejudice and, indeed, there was no prejudice associated with this evidence because evidence was led that this was not Notorious gang clothing. Evidence was led that this man had no association with that gang, and so there was no potential prejudice in the evidence, the only question was whether or not it had any probative weight at all. It did not have - - -

FRENCH CJ: I suppose one should look also at what the trial judge said at the bottom of page 39 in which he refers to:

The next and fifth proposition or piece of evidence . . . if you were to think that the clothing worn by the person of interest in the Liberty CCTV pictures was of the Notorious streetwear brand, the

fact that clothing of the same or similar type was found in the accused’s carport three months later may carry some weight for you -

and then he goes on and gives the various cautionary observations.

MR KIMBER: Indeed. That was the only – in the summing-up – the only purpose for which the evidence was left to the jury. Now, the prosecutor had raised, in his closing address, inviting the jury to compare the motif – the style of it – on the black top, to the red top, because there was no concession at that stage that both were “Notorious” brand clothing. By the time of the summing-up, that had fallen to one side because of the applicant’s closing address and so there was simply this one issue of whether it had any weight as demonstrating an interest in the appellant in that type of clothing.

As was observed in the court below, it was not a matter of substantial weight but it cannot be said, in my respectful submission, that it was a matter of no weight, and if it had some weight, as part of the overall circumstantial case, then it was proper for the evidence to be led and to be left to the jury. Arguments might have arisen about prejudice in certain circumstances but they did not arise in the balancing process in this case because there was positive evidence that it was not gang clothing. So either the evidence had probative weight or the jury were to disregard it altogether.

FRENCH CJ: Incidentally, did the Crown in the Court of Criminal Appeal run a proviso argument?

MR KIMBER: No, your Honour.

FRENCH CJ: Yes.

MR KIMBER: If the Court pleases, they are my submissions.

FRENCH CJ: Thank you. Yes, Ms Shaw.

MS SHAW: Two matters in reply, your Honours. We submit that this was a case where the clothing had no weight, for the same reason as the guns that were not used in the crime of murder in Driscoll v The Queen were found to be not relevant and we have set that passage out at application book 152 - [1977] HCA 43; (1977) 137 CLR 517 - where his Honour the former Chief Justice Gibbs said:

Those other weapons were not used in the crime charged and the fact that they had belonged to the applicant did not tend to show that he had committed the crime. ... The fact that the applicant had a

number of weapons which were not used in the crime was not probative of the fact that he was the person who had committed the murder with which he was charged.

The second point we make, your Honours, is that his Honour Justice Nicholson actually directed the jury that there was no evidence that the accused owned or used the clothing, and that was at application book 44, so we submit that it was not open to infer and use the evidence in the capacity that my learned friend has suggested.

So, in our respectful submission, the significance of clothing, bearing in mind its discriminatory nature as compared to other associates, is such that it might well have been a significant factor in the jury’s deliberations to discriminate between the applicant and any other associates of the brother and, therefore, in a circumstantial case where the key issue is identity, in our respectful submission, there is a risk of a miscarriage of justice and it is worthy of special leave. If the Court pleases.

FRENCH CJ: Thank you.

The applicant seeks special leave to appeal against a judgment of the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal on two grounds. One relates to a direction given to the jury of the sufficiency of CCTV footage to support a conclusion that the applicant was the person shown in that footage. The other concerned the relevance of evidence relating to an item of clothing found at the home of the applicant’s mother. The first question was a matter of weight which could be left to the jury. The second involved a judgment of degree about relevance, which may have been contestable but, in our opinion, does not warrant the grant of special leave. Neither ground discloses a ground warranting the grant of special leave, which will be refused.

The Court will now adjourn to reconstitute.

AT 11.27 AM THE MATTER WAS CONCLUDED