Alfred (a pseudonym) v Eiffert

[2023] ACTSC 403

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Alfred (a pseudonym) v Eiffert

Citation: 

[2023] ACTSC 403

Hearing Date: 

15 November 2023

Decision Date: 

21 December 2023

Before:

Baker J

Decision: 

Appeal dismissed

Catchwords: 

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against conviction for aggravated burglary and attempted theft – appeal by rehearing – standard of review - circumstantial case – whether Magistrate erred in making intermediate factual findings – evidence established guilt beyond reasonable doubt – appeal dismissed.

Legislation Cited: 

Criminal Code 2002 (ACT), ss 44, 308, 312

Evidence Act 2011 (ACT), ss 65, 118, 144

Magistrates Court Act 1930 (ACT), ss 207, 208, 214

Cases Cited: 

Alexander v Bakes [2023] ACTCA 49

Allesch v Maunz [2000] HCA 40; 203 CLR 172

Amante v R [2020] NSWCCA 34

Carroll v The Queen [2009] HCA 13; 254 CLR 259

De Gruchy v The Owners - Units Plan No 3989 [2020] ACTSC 65

DPP v Holder [2022] ACTSC 336; 103 MVR 30

Edwards v The Queen [1993] HCA 63; 178 CLR 193

EE v R [2023] NSWCCA 188

Festa v The Queen[2001] HCA 72; 208 CLR 593

Fox v Percy [2003] HCA 22; 214 CLR 118

Garay v the Queen (No 3) [2023] ACTCA 2

Ji v Stone [2023] ACTSC 54

KA v Linden [2021] ACTCA 22

Lukatelav Birch [2008] ACTSC 99; 164 ACTR 24

M v the Queen [1994] HCA 63; 181 CLR 487

McFarlane v Van Eyle [2022] ACTCA 68

Muench v McCue [2020] ACTCA 17

R v Dawson [2022] NSWSC 1131

R v DM [2010] ACTSC 137

R v Ralston [2020] ACTCA 47; 285 A Crim R 159

Roberts v Rhodes [2014] ACTCA 20

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550

Smith v The Queen [2001] HCA 50; 206 CLR 650

Warren v Coombes [1979] HCA 9; 142 CLR 531

Parties: 

Braiden Alfred (a pseudonym) ( Appellant)

Jacob Eiffert ( Informant)

Representation: 

Counsel

E Wallis ( Appellant)

T Hickey ( Informant)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions ( Informant)

File Number:

CA 35 of 2023

Decision Under Appeal: 

Court/Tribunal:           ACT Childrens Court

Before:   Special Magistrate Christensen

Date of Decision:       10 May 2023

Case Title:                  Jacob Eiffert v Braiden Alfred (a pseudonym)

Court File Number:     812836

BAKER J:      

Introduction

1․On 10 May 2023, the appellant was found guilty by a Special Magistrate (the Magistrate) of the following two charges following a hearing in the Childrens Court:

(a)Count 1 (CH2023/219) – aggravated burglary with intention to commit theft, contrary to s 312 of the Criminal Code 2002 (ACT).

(b)Count 2 (CH2023/218) – attempted theft by virtue of s 44 of the Criminal Code, contrary to s 308 of the Criminal Code.

2․The appellant appeals against these findings of guilt on the following grounds:

(i)The findings of guilt on each charge are unreasonable and cannot be supported having regard to the evidence; and

(ii)The Magistrate erred by taking into account evidence that was not before the Court.

3․The appeal is dismissed for the reasons outlined below.

Background

The alleged offences

4․On 31 January 2023 at about 5:43pm, two offenders broke into the Apple Store located in the Canberra Centre in Civic, Canberra. The first offender (Offender 1) was wearing long black clothing, a black face mask, two black sneakers, and a white glove on his right hand, and was carrying an Aldi-branded shopping bag. The second offender (Offender 2) was wearing long black clothing, a white face covering, one white sneaker and one black sneaker, and a white glove on his right hand, and was carrying a black bag.

5․The two offenders entered the Canberra Centre, took the escalator to the upper floor, and approached the locked glass doors of the Apple Store. The staff members and security officers in the store retreated to the secure storeroom, located at the back of the store, which also housed most of the products sold in the store. The offenders forced the doors open and ran toward the storeroom. The offenders unsuccessfully attempted to gain entry to the storeroom, before exiting the store though a rear exit and leaving the Canberra Centre through the Bunda Street doors at 5:43pm. This course of conduct was captured on CCTV footage.

6․Police attended the area at approximately 5:45pm. Several officers searched Glebe Park, located next to the Canberra Centre. At this time the appellant was walking on the edge of the park near Cooyong Street. When the appellant saw one of the officers, he immediately hid in a small bush. The appellant then fled when the officer called out to him. The police officers pursued the appellant on foot. One of the officers located the appellant in a paved area of a hotel near the edge of the park, where he was apprehended and arrested at about 5:53pm. At the time of his arrest, the appellant was wearing a black t-shirt and colourful striped shorts. He was not wearing shoes.

7․At about the same time, other officers observed another young male (the co-offender) exiting Glebe Park. After a brief chase, police arrested the co-offender, who was wearing a black jumper and black tracksuit pants.

8․Police also conducted a search of the surrounding area of Glebe Park. During the search, police located and seized a black duffel bag, an Aldi shopping bag containing an orange baseball bat, a white shirt tied in a knot, a set of blue gloves, a single black sneaker with a red ankle rim, and a single white sneaker.

The proceedings before the Childrens’ Court

9․On 27 February 2023, the co-offender pleaded guilty to charges of aggravated burglary with intention to commit theft and attempted theft. The co-offender was sentenced on 17 April 2023.

10․On 6 March 2023, the appellant pleaded not guilty to both charges. The matter was heard in the Childrens’ Court before the Magistrate on 10 May 2023.

11․The prosecution case alleged that the appellant was Offender 2 (the offender depicted in the CCTV footage wearing different coloured shoes) and that the co-offender was Offender 1 (the offender carrying the Aldi bag). The evidence in the prosecution case included the following:

(i)CCTV footage of the escalators inside the Canberra Centre, the entrance to the Apple Store, the “back of house” view of the Apple Store, the Apple Store storeroom, and the Bunda Street exit, depicting the events outlined at paragraph [5] above.

(ii)Body-worn camera footage taken by Officer Samantha Cooper, which depicts police’s first sighting of the appellant. This footage shows the appellant walking along the edge of Glebe Park, then hiding behind a bush in Glebe Park as the officers approached. When the appellant emerged from the bush, Officer Cooper pursued the appellant across Glebe Park, but lost sight of him. Officer Cooper next saw the appellant during his arrest after his apprehension by Officer Jack Hale.

(iii)Body-worn camera footage taken by Officer Hale, depicting the appellant running away from other police officers through a hedge line in Glebe Park; Officer Hale’s pursuit of the appellant into a paved area of a hotel abutting Glebe Park; and Officer Hale’s apprehension of the appellant, who was behind a pillar in the paved area.

(iv)Body-worn camera footage and five photographs taken by Officer Alejandra Cares Henriquez, depicting the location and seizure of the items located in Glebe Park referred to at paragraph [8] above, along with a Google Maps image with a red pin identifying where the items were located by police.

(v)Body-worn camera footage and sixteen photographs taken by Officer Mark Gale, depicting the location and seizure of the items located in Glebe Park referred to at paragraph [8] above. The bundle of photographs also included photographs of a black jumper, a pair of black track pants, and a single black and white glove. As discussed further below, none of the police statements indicated where the black track pants, the jumper and the single black and white glove were located.

(vi)Photographs taken by police of the entrance to the Apple Store.

(vii)Evidence of an employee of the Apple Store who was present at the time of the break in. The employee gave evidence consistent with the events described at paragraph [5] above. The employee noted that he had seen the offenders “for a few seconds”, and described the offenders as two people with a “slimmer build”, wearing black clothing.

(viii)Evidence of the co-offender (who was, after initial examination, declared an unfavourable witness and cross-examined by the prosecutor) to the effect that:

(i)He was Offender 1, depicted carrying an Aldi bag in the CCTV footage;

(ii)He had “known of” the appellant for about a year;

(iii)His intention had been to steal from the Apple Store. He purported to be unable to confirm the intention of Offender 2, nor that they were working together; and

(iv)Offender 2 was not the appellant; however, other than acknowledging that Offender 2 was male, the co-offender refused to otherwise identify Offender 2.

(ix)Police statements of Officer Jacob Eiffert, Officer Cooper, Officer Hale, Officer Gale, and Officer Henriquez.

(x)Property Seizure Record 557662, listing the items identified at paragraph [8] above and identifying their seizure location as “Glebe Park Bush”; and

(xi)Property Seizure Record 557663, listing one pair of coloured shorts, one black and white glove, and one black t-shirt. The Record identified the seizure location as a garden in Glebe Park, but also lists the ‘specific location’ of each item as “Watch house”.

12․The appellant consented to the tender of each of the police statements and the Property Seizure Records.

13․The prosecution asked the Magistrate to make an inference of consciousness of guilt from the appellant’s behaviour in running away from police, and in allegedly “hiding” behind bushes and later behind a pillar. The appellant submitted that in light of his asserted background as a refugee and African appearance, consciousness of guilt was not the only inference available – in particular, the appellant may simply have had a general fear of police. (As noted below, there was no evidence before the Magistrates Court that the appellant had a refugee background.)

14․The prosecution also sought to link the appellant to the items located by police in the bushes in Glebe Park by virtue of his proximity to the clothing; and the fact that he was located wearing no shoes, a t-shirt and shorts (which, the prosecutor submitted, accorded with the appellant having abandoned the items used in the robbery, his shoes, and his outer clothing before being apprehended). The appellant’s counsel submitted in response that the appellant’s clothing was appropriate for January weather, and that his lack of footwear may be the result of him abandoning thongs or sandals in order to run from police.

15․Counsel for the appellant submitted that, in any event, the appellant’s intention to steal could not be established beyond reasonable doubt, noting that the offenders ran past several valuable items in the Apple Store when heading toward the storeroom.

The Magistrate’s decision

16․In a judgment delivered on 10 May 2023, the Magistrate commenced by noting that the primary issues that arose in the trial were identification of the offender, and whether the relevant intent had been established by the prosecution.

17․The Magistrate then properly directed herself as to the onus and standard of proof. Later in the judgment, she directed herself appropriately in respect of consciousness of guilt, identification and circumstantial evidence.

18․Her Honour briefly summarised the eyewitness evidence of the Apple Store employee before commencing with an identification of the “unknown offender” in the CCTV footage as follows (emphasis added):

… the CCTV footage, having regard to both the Apple Store footage and the Canberra Centre footage, establishes that the unknown offender can be described as follows: wearing long black clothing including black pants and black top with a black hood, wearing a black face mask, black coloured sneakers that have a white mark on the side, black and white gloves and carrying an Aldi shopping bag.

I also observe that, on my observation from 16 seconds in the footage from the Canberra Centre escalator footage, the skin colour of the unknown can be seen with an appearance of dark skin above the mask or face covering and on the right wrist. There is sufficient footage to also make an observation of the manner of movement of the alleged offender. I would describe it as a gangly awkward movement with a build consistent with being a young male.

19․After identifying the “unknown offender”, the Magistrate then turned to a consideration of the co-offender’s evidence. The Magistrate found that the co-offender was not a credible witness. In particular, her Honour considered that the co-offender’s reluctance to describe the actions, intentions, or identity of the other offender was “entirely implausible”. Her Honour rejected the co-offender’s denial that the appellant was the other offender. Her Honour concluded that this rejection meant his evidence was “essentially neutral” and that it “neither implicated [the appellant] nor exculpated him”. Her Honour did, however, later take into account the co-offender’s acknowledgment that he was an associate of the appellant when considering the circumstantial case as a whole, noting that “if they were strangers … that would detract from the only available inferences”.

20․The Magistrate next summarised the evidence in relation to the clothing and items seized by police, and made various findings as to the inferences which could be drawn as to the location of several items (as outlined below).

21․The Magistrate then turned to the evidence of spatial and temporal proximity. Her Honour briefly outlined the evidence as to the timing of the offence and the arrival of police. Her Honour held that she would not take into account evidence given by police that a member of the public had said that two people had “run out toward Glebe Park”, finding it was inadmissible hearsay under s 65 of the Evidence Act 2011 (ACT).

22․However, the Magistrate found that the evidence established the appellant was located in Glebe Park, within “walking distance” of the location of the offending, at around 5:50pm, shortly after the commission of the offences. After making these findings, her Honour later concluded that the evidence of the timing and location of the offences and the appellant’s arrest would have allowed him “sufficient time” to travel from the Apple Store to the Glebe Park, change his clothing, and discard his clothing, shoes, and other items.

23․The Magistrate next considered whether the evidence that the appellant ran from police, was found in a position “[consistent] with attempting to hide from police”, and was unresponsive to questions as to his name could be relied on as evidence of consciousness of guilt.

24․The Magistrate rejected the submission that the appellant’s alleged refugee background or African appearance would lead to a fear of police which would otherwise explain these actions, noting that there was no evidence upon which such an inference could be drawn. However, her Honour accepted that it is “not uncommon” for young people to see police as a threat, and that this attitude provided another explanation for the appellant’s behaviour.  Accordingly, her Honour did not take into account the evidence of flight as evidencing a consciousness of guilt. Her Honour further held that:

… relying on other aspects of the evidence to consider identification, the mere apparent hiding of clothing, the apparent hiding by the young person himself in the bushes and the absence of shoes being worn by the young person are not taken into account on a consciousness of guilt basis.

25․The Magistrate found “the conclusion that the clothing and items located in Glebe Park [were] the clothing worn and items carried by the offenders [was] so fundamental that it must be proved beyond reasonable doubt”. After a comparison of the CCTV footage with the located items, her Honour was so satisfied. Her Honour noted that the appellant was found “at a location very proximate to the clothing and the alleged offending” “within a very short time of the alleged offences”.

26․Her Honour also concluded that the appellant’s gender, height, build and skin colour were consistent with the appearance and movement of Offender 1 in the CCTV; and further, that the movement of the appellant in the body-worn camera footage of the pursuit was consistent with Offender 1’s movement in the CCTV footage, which she described as being “like a tall slim teenage boy”.

27․The Magistrate had earlier found that the “clothing other than the sneakers” located in Glebe Park – and in particular, the “black and white gloves and … the Aldi shopping bag” – was entirely consistent with the clothing worn and the bag carried by Offender 1. Her Honour observed that Property Seizure Record M557663 identified a single black and white glove located at the Watch house; however, noting there were deficiencies in this Property Seizure Record (in particular, as detailed at paragraph [11](xi) above, the item location is listed both as “Watch house” and a garden in Glebe Park), her Honour did not consider that she could conclude that the glove was located on the appellant. Her Honour noted that no other items connected with the offending were found on the appellant.

28․The Magistrate was of the view that the clothing the appellant was wearing when apprehended was “not inconsistent” with his identification as Offender 1, noting that a tracksuit and jumper could readily be worn over a t-shirt and shorts. Her Honour found the appellant’s lack of shoes at the time of his arrest to be “neutral evidence”, noting that although the shoes located in Glebe Park did not appear to be the shoes worn by Offender 1, his absence of shoes similarly “[did] not exclude him” as being that offender.

29․Taking all the evidence as a whole, including the appellant’s temporal and spatial proximity to the offending, and that his appearance was “entirely consistent” with the depiction of Offender 1 on the CCTV footage, her Honour was satisfied beyond reasonable doubt that the appellant was Offender 1.

30․Having established the offender’s identity, her Honour then considered each element of the charged offences. Her Honour rejected the submission that the offenders’ failure to take unsecured accessory items from the Apple Store was inconsistent with an intent to steal, noting that the “clear target” of the attempted burglary was the valuable items located at the rear of the store. Her Honour did not, however, find that the potential presence of the baseball bat during the break in would necessarily lead to the inference that the offenders held an aggravating intention to cause harm to a staff member during the theft.

The grounds of appeal

31․In the first ground of appeal, the appellant contends that the Magistrate’s findings of guilt on each charge was unreasonable and cannot be supported having regard to the evidence.

32․In the second ground of appeal, the appellant contends that the Magistrate erred by taking into account evidence that was not properly before the Court.

33․The appellant relies on the following alleged errors in support of these two grounds of appeal:

(i)First, the Magistrate concluded that the appellant could be identified as the offender seen on the CCTV footage wearing a black mask and black shoes (Offender 1).

Specifically, the appellant contended that it was never in dispute that Offender 1, wearing the black mask and the black shoes, was the co-offender and not the appellant.

(ii)Second, the Magistrate used material not in evidence to make a finding that an indispensable intermediate fact was proved beyond a reasonable doubt.

Specifically, the appellant contended that there was no evidence that the black track pants and black jumper (as photographed by Officer Gale) were found at Glebe Park. The appellant contended that in context, the Magistrate’s references to “clothing and other items” and “clothing other than the sneakers” found in Glebe Park (as noted above at [25], [27] – [28]) demonstrate her Honour’s belief that the track pants and jumper had been located in Glebe Park, and consequently erred in her reasoning in relation to the clothing found in the park.

(iii)Third, the CCTV footage is unable to sustain the inferences and findings about identity that her Honour drew from it.

(iv)Fourth, a mistaken conclusion about evidence (arising from error two) infected her Honour’s reasoning about the significance of certain aspects of the circumstantial case: namely, the appellant’s location at the time of his arrest and his conduct prior to arrest.

34․The appellant submitted that errors (i), (iii) and (iv) above fell within the scope of the first ground of appeal (namely, that the Magistrate’s finding of guilt was unreasonable) and that the error alleged in (ii) above fell within the second ground of appeal.

Determination

The standard of review

35․The present appeal is brought under ss 207 and 208 of the Magistrates Court Act1930 (ACT), which confer jurisdiction on this Court to hear an appeal by a person who has been convicted of a summary offence in the Magistrates Court. Section 214 of the Magistrates Court Act further provides that, in such an appeal, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”. On an appeal under s 208, the Court may:

(a)confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or

(b)give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or

(c)set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate.

Section 218 of the Magistrates Court Act.

36․There are two distinct, and arguably contradictory, lines of authority in this Territory concerning the standard of review to be applied to a conviction appeal under s 208 of the Magistrates Court Act. The first line of authority establishes that an appeal under s 214 is in the nature of a rehearing: see for example, Roberts v Rhodes [2014] ACTCA 20 at [10]. The second line of authority appears to proceed on the basis that in order to succeed in an appeal under s 208 of the Magistrates Court Act, the appellant must demonstrate that the conviction was “unreasonable”: see, for example, Muench v McCue [2020] ACTCA 17 at [109]–[110]; KA v Linden [2021] ACTCA 22 at [65]–[70]. See further McFarlane v Van Eyle [2022] ACTCA 68 at [2] (McCallum CJ), at [90] (Mossop J), and at [97] – [98], per Kennett J.

37․Where an appeal is by way of rehearing, an appellant may succeed by demonstrating material error in the decision below, whether legal, factual or discretionary: Fox v Percy [2003] HCA 22; 214 CLR 118 and Warren v Coombes [1979] HCA 9; 142 CLR 531. In contrast, when considering a verdict is unreasonable, the Court must “ask itself whether it thinks that upon the whole of the evidence it was open to [the Tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; 181 CLR 487 at 493. In most cases, there may be little difference in the practical outcome that will result under each formulation: Ji v Stone [2023] ACTSC 54 at [153]–[154]. However, where there is a specific challenge to an intermediate finding of fact, the distinction may become significant: see for example, EE v R [2023] NSWCCA 188 at [40].

38․The Court of Appeal recently resolved this issue in Alexander v Bakes [2023] ACTCA 49 at [18], clarifying that:

… an appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the Magistrate’s decision.

39․If the Court concludes that the Magistrate so erred, it is required to make its own findings and to formulate its own reasoning based on those findings: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43].

40․The following further observations of the Court in Alexander v Bakes should be borne in mind when assessing whether there is a material legal, factual or discretionary error in a Magistrate’s decision:

(i)The onus is on the appellant to demonstrate that there is error in the Magistrate’s decision: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172 at 180 [23] and Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [19].

(ii)It is incumbent on the appellant to identify the alleged error in the Magistrate’s decision in their grounds of appeal: Alexander v Bakes at [22], citing Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [127].

(iii)The appellate court must observe the ‘natural limitations’ of proceeding on the record, noting the disadvantages of an appellate court in comparison to the trial judge, both in evaluating witness credibility, and in being deprived of the “feeling” of a case: Alexander v Bakes at [20], citing Fox v Percy at 125 [23]. See also Garay v The Queen (No 3) [2023] ACTCA 2 at [31].

(iv)Where an appellant identifies the ground of appeal as being that the verdict is unreasonable, the Court will proceed on the basis that the appellant challenges the Magistrate’s ultimate factual finding: Alexander v Bakes at [23]. Where an appellant wishes to challenge an intermediate finding, such a challenge should be pleaded as a specific ground of appeal: Alexander v Bakes at [23].

41․As noted at [33] above, the appellant in the present case expressly challenged two factual findings made by the Magistrate: first, that the appellant was the offender on the CCTV footage wearing a black mask and black shoes and carrying the Aldi bag; and second, that the Magistrate erred in finding that the black track pants and jumper photographed by Officer Gale had been found in Glebe Park.

42․The first of these alleged factual errors was pleaded as a particular of the unreasonable verdict ground of appeal. The second of these alleged factual errors was encompassed within the second ground of appeal.

43․In accordance with the decision in Alexander v Bakes, these factual errors should have pleaded as separate grounds of appeal. However, the written and oral submissions in this appeal predated the decision in Alexander v Bakes, and the alleged factual errors were clearly enunciated in the appellant’s submissions and were addressed by the respondent’s counsel in his written and oral submissions. In these circumstances, I will consider these alleged errors as if they had been separately pleaded.

Whether the Magistrate erred in finding that the appellant was the offender with the Aldi Bag (Offender 1)

44․With respect to her Honour, I am of the view that the Magistrate erred in finding that the appellant was the offender with the Aldi Bag (Offender 1).

45․As outlined at paragraph [11] above, the co-offender gave evidence that he was the offender with the Aldi Bag. This aspect of the co-offender’s evidence was not challenged by either the prosecution or counsel for the appellant. The prosecution had opened on the basis that the co-offender was Offender 1, carrying the Aldi bag, and that the appellant was Offender 2, wearing different coloured shoes. At no stage in the proceedings did the Magistrate indicate to either party that the prosecution case would be considered on any other basis.

46․As counsel for the respondent submitted, the Magistrate was not bound to accept the co-offender’s evidence that he was the offender with the Aldi bag. It is necessary to carefully bear in mind the Magistrate’s advantage of having seen and heard the co-offender give evidence when reviewing the Magistrate’s findings on appeal.

47․The Magistrate did not accept all of the co-offender’s evidence – critically, the Magistrate did not accept the co-offender’s evidence that the appellant was not involved in the offending. However, it is also clear that the Magistrate did not reject all of the co-offender’s evidence. The Magistrate accepted the co-offender’s unchallenged evidence that he (that is, the co-offender) was one of the offenders who had broken into the Apple Store. Having accepted this aspect of the co-offender’s evidence, it is unclear why the Magistrate did not accept the co-offender’s evidence that he was the offender who was carrying the Aldi bag.

48․The Magistrate did not give any reasons for rejecting this aspect of the co-offender’s evidence. Nor did her Honour make any reference to having found guilt on a basis other than the basis which had been opened by the prosecution. Rather, at the commencement of her reasons, and prior to considering the co-offender’s evidence, the Magistrate identified the “unknown offender” as the offender who was carrying the Aldi shopping bag.

49․In these circumstances, it seems to me that it is likely that the Magistrate overlooked the co-offender’s evidence when finding that the appellant was the offender with the Aldi Bag (that is, Offender 1).

50․In my view, there was no basis to reject the co-offender’s evidence that he was the offender with the Aldi bag. In light of this, the finding that the appellant was Offender 1 was not supported by the evidence.

51․However, it does not follow that the appellant should be acquitted. For the reasons outlined below, the prosecution case that the appellant was Offender 2 (the offender with the different coloured shoes) was a stronger case than the case that he was Offender 1. As this is an appeal by way of rehearing, it is necessary for me to consider that case. In doing so, I will also address the second of the alleged errors made by the Magistrate, namely whether an inference should be drawn that the black pants and the black jumper were also found in Glebe Park (see at [58] – [59] below).

Whether the appellant’s guilt has been proved beyond reasonable doubt

Directions

52․In considering whether the appellant’s guilt has been proved beyond reasonable doubt, I have, like the Magistrate, directed myself as to the onus and standard of proof, including in a case where the accused has not given evidence: see R v DM [2010] ACTSC 137 at [8]. As outlined further below, I have also directed myself as to the principles to be applied in a circumstantial case: see DPP v Holder [2022] ACTSC 336; 103 MVR 30 at [61] – [66].

53․As the Magistrate property recognised, this is not a case involving identification or recognition evidence in the usual sense; cf Smith v The Queen [2001] HCA 50; 206 CLR 650 and s 118 of the Evidence Act. However, like the Magistrate, I have warned myself of the special need for caution when comparing the CCTV footage depicting the offenders and the body-worn footage depicting the appellant. As outlined below, I have taken into account the shortcomings of the CCTV and body worn footage. I have also borne in mind the risk that arises from comparison of limited footage, one of which depicts the appellant: see, by analogy: Festa v The Queen[2001] HCA 72; 208 CLR 593 at 601 [18].

The co-offender’s evidence

54․I accept the co-offender’s evidence that he (the co-offender) was one of the offenders, and that he (the co-offender) was the offender who was carrying the Aldi bag. I also accept the evidence of the co-offender that the other offender was male.

55․The co-offender gave evidence that the appellant was not involved in the break in of the Apple Store. The Magistrate did not accept this aspect of the co-offender’s evidence. Like the Magistrate, I considered the co-offender’s evidence that he did not know who the other offender was to be implausible. It is clear from the CCTV footage that the offenders were acting together. On the basis of the transcript, I have reached identical findings to the Magistrate as to the co-offender’s credibility in respect of the identity of the other offender. Like the Magistrate, I have concluded that the co-offender’s evidence on this issue was “essentially neutral” – it neither implicated the appellant, nor exculpated him.

The items found in the park

56․In her statement, Constable Henriquez described having seized a number of items from the bushes in Glebe Park, including a plastic Aldi bag, a baseball bat, a black and red coloured Nike shoe and a white Nike shoe, and a black coloured duffle bag with a white horizontal line, which contained two blue coloured gardening gloves. Constable Henriquez annexed photos of these items to her statement, including photographs of where the items were found in the park, as well as close-up photos of the items apparently taken at the police station. The photograph of the black shoe discovered in the park has a distinctive red rim.

57․Constable Mark Gale also provided a statement which described the location and seizure of these items, along with a bundle of sixteen photographs. These sixteen photographs included photographs of the items which Constable Henriquez and Constable Gale described locating in Glebe Park, listed above, but also included photos of a black jumper and black track pants. All of the photographs appear to have been taken at the police station. Constable Gale’s statement did not describe where the black jumper and the black track pants had been located, nor were any details of the location of the black jumper and track pants contained in any of the other police statements that were admitted into evidence before the Magistrate. The property seizure record made no reference to either of these items.

58․Counsel for the respondent noted that the photographs of the black track pants and the black jumper were apparently taken at the same time as the other items found in the park (such as the t-shirt, the shoes and the Aldi bag): namely, at the City Police Station on 31 January 2023, as recorded on the photograph cover sheet. He submitted that because the items appear to have been photographed at the same time, the Court should infer that the black track pants and jumper were also found by police at Glebe Park in the vicinity of the other items.

59․I am not prepared to draw this inference. If police officers located the black track pants and the jumper in the park, it was incumbent on those officers to record that fact in the property seizure form and in their statements. It is regrettable that the police evidence on this issue was not clear. In this respect, I also note that the co-offender was wearing a black jumper and black track pants when he was arrested by police. As the photograph cover sheet refers to both the appellant and the co-offender, there is a reasonable possibility that the pants and jumper depicted in the photographs were those that were worn by the co-offender, and that they were not located by police in Glebe park.

60․However, I am satisfied beyond reasonable doubt that the shoes found by police in the bushes of Glebe Park were the shoes worn by Offender 2 during the break in of the Apple Store for the following reasons:

(i)The mismatched shoes are striking. One is black and the other is white. The black shoe has distinctive red markings on the upper rim of the shoe, which are identical to the markings which can be seen on the shoe of Offender 2 in the CCTV footage as he exits the escalator immediately before the break in occurs.

(ii)The condition of the shoes (particularly the white shoe) is consistent with the shoes having been recently deposited in the bushes at Glebe Park. Specifically, whilst the shoes were not new and had clearly been worn, they were not weathered, as might be expected if the shoes had been in the park for some time.

(iii)Immediately after the offending, the offenders are depicted on CCTV turning right from the Bunda Street exit of the Canberra Centre, in the direction of Glebe Park.

61․I am also satisfied beyond reasonable doubt that the white t-shirt found in Glebe Park was used by Offender 2 during the break in. The white t-shirt had the sleeves tied together in a manner that would not have allowed the t-shirt to be worn on a person’s body. The face covering worn by Offender 2 as seen in the CCTV footage appears to be a large piece of white fabric, consistent with a white t-shirt that has been tied around the offender’s head. The use of a make-shift face covering fits with the apparently unplanned nature of the offending, in which no real consideration appears to have been given to the method by which the offenders would escape detection. The white t-shirt was found in close proximity to the shoes.

62․The black duffle bag was also found in the bushes in Glebe Park. It is consistent in appearance with the black bag that was carried by Offender 2 during the break in. By reason of its proximity with the shoes and the t-shirt, I am satisfied beyond reasonable doubt that this bag was the bag used by Offender 2 in the break in.

63․I consider that it is likely that the Aldi bag containing the baseball bat was carried by the co-offender (Offender 1) in the break in. The Aldi bag appears identical to the bag carried by Offender 1 on the CCTV footage. I do not accept the submission of the respondent’s counsel that the baseball bat could not fit in the Aldi bag. Although I could not see the bat in the footage, the Aldi bag is carried by Offender 1 in a fashion (by its opening, rather than by the plastic handles) which would have concealed the bat in the bag and under the offender’s arm. However, the conclusions reached below do not depend upon this finding. Rather, for the purpose of determining the allegations against the appellant, it is sufficient for me to conclude that the different coloured shoes, white t-shirt and duffle bag found in the park were used by Offender 2 in the break in.

Proximity in space and time

64․Having concluded that the shoes, t-shirt and black duffle bag found in Glebe Park were the shoes and mask used by Offender 2 in the break in, I am also satisfied beyond reasonable doubt that Offender 2 ran to Glebe Park immediately after the break in. I note that the co-offender (Offender 1) was also found in the vicinity of the park shortly after the appellant was arrested.

65․Counsel for the appellant and the respondent agreed that I should take judicial notice of the proximity of Glebe Park to the Bunda Street exit of the Canberra Centre: s 144 of the Evidence Act 2011 (ACT), see Amante v R [2020] NSWCCA 34 at [66] – [71].

66․I am satisfied that the proximity of Glebe Park to the Bunda Street exit of the Canberra Centre is not reasonably open to question and is common knowledge in Canberra, the place in which the proceeding is being held. These streets are located in the centre of the city and are one of the most commonly frequented areas in the region: see similarly De Gruchy v The Owners - Units Plan No 3989 [2020] ACTSC 65 at [44]. Further, the verification of the approximate proximity of these locations is possible by reference to publicly available maps of Canberra, “the authority of which cannot reasonably be questioned”: s 144(1)(b) of the Evidence Act.

67․As noted above, and as required by s 144(4) of the Evidence Act, both parties had an opportunity to make submissions on this issue. The parties both agreed that I could take judicial notice of the location of the Canberra Center and Glebe Park.

68․I take judicial notice of the fact that there is a short distance between the Canberra Centre and Glebe Park. In particular, Glebe Park is located less than one block from the Bunda Street exit of the Canberra Centre. Running on foot, the distance between the Bunda Street exit of the Canberra Centre and Glebe Park would be a matter of minutes. The hotel in which the appellant was eventually apprehended directly abuts Glebe Park, and is located less than two blocks from the Bunda Street exit of the Canberra Centre.

69․The appellant was first seen by police in a position that was close to the area in which the shoes and t-shirt were found, within minutes of the offending. The CCTV footage includes time stamps which show the offenders leaving the Canberra Centre at 5:43pm. The time stamps on the body-worn camera footage of Officer Cooper and Officer Hale record the time that the appellant was first seen by officers as 6:51pm and record the time he was arrested as 6:53pm. The time stamps on the bodyworn footage appear to be inaccurate by one hour.

70․This timing is consistent with the statements of the arresting officers, which stated that the officers arrived at the Canberra Centre at 5:45pm, briefly attended the Apple Store, exited the Canberra Centre, briefly spoke to a member of the public, and proceeded to walk from Bunda Street to Glebe Park before sighting the appellant and beginning the pursuit leading to his arrest. Statements of other officers also indicate that a police radio transmission announcing the arrest of the appellant was made shortly after 5:50pm. On the basis of this evidence, I am satisfied that the appellant was first seen by police at approximately 5:50pm.

71․The appellant’s counsel noted that there was evidence that there was a police radio transmission at 5:49pm which indicated that two members of the public told police that they had seen two men running from the Canberra Centre to Glebe Park. The appellant’s counsel contended that this timing was inconsistent with the appellant having been one of the offenders.

72․I do not agree. The evidence is that two members of the public reported having seen two men running in the direction of Glebe Park to police at some point shortly after 5:45pm, and that police conveyed this via radio transmission at 5:49pm. The evidence is not that the members of the public saw this occur at 5:49pm.

73․In this respect, I also observe that the co-offender, who has acknowledged his role in the offending, was found near the area where the appellant was first seen by police, within minutes of the appellant’s arrest.

74․In my view, the timing of the events set out above is consistent with the appellant having been one of the offenders involved in the burglary.

Consistency in appearance and movement

75․The appellant’s appearance in the body-worn footage at the time of his arrest is consistent with the appearance of the offenders in the CCTV footage. In particular:

(i)The appellant’s dark skin colour as pictured in the body-worn footage is consistent with the skin colour of Offender 2’s hand as seen in the CCTV footage within the Canberra Centre.

(ii)It is apparent from the body-worn footage, which depicts the appellant standing next to several police officers and a police vehicle, that the appellant is relatively tall. Although acknowledging that care needs to be taken in circumstances where there may be some distortion arising from the positioning of the CCTV cameras in the roof of the Canberra Centre, I am satisfied that both offenders also appear to be tall. The offenders are considerably taller than a woman whom they pass as they leave the Bunda Street exit. That woman was wearing high heels. The offenders also appear to be taller than each of the other persons on the escalators and in the Apple Store that can be seen on the CCTV footage within the Canberra Centre. Whilst I have no evidence as to the height of each of the people that can be seen on the CCTV footage, it would be unlikely that every one of them were unusually short.

(iii)It is also apparent from the body-worn footage that the appellant is slender. Whilst again acknowledging the possibility of some distortion by reason of the placement of the CCTV cameras, I also consider it to be apparent from the CCTV footage that both offenders were slender.

76․However, contrary to the submissions of counsel for the respondent, I would not be prepared to conclude that the movements of the appellant as seen when running in the body-worn footage are consistent with the manner of movement of the offenders in the CCTV. The body-worn footage is taken by an officer who is pursuing the appellant. The screen is jerky, and the offender is only visible in brief bursts. During the CCTV footage, the offenders are moving quickly, but are not running.

Consciousness of guilt

77․The body-worn footage shows that appellant attempted to hide in some bushes from police. When approached by police, he immediately fled on foot.

78․In the proceedings before the Magistrate, the prosecution relied on this evidence as consciousness of guilt. After properly directing herself concerning consciousness of guilt principles, the Magistrate declined to use this evidence of consciousness of guilt. As noted above, her Honour concluded that there was another reasonable explanation for the appellant having fled police – namely, a reluctance of a young person to engage with police. Her Honour also declined to rely on other aspects of the evidence as evidencing a consciousness of guilt. Specifically, her Honour concluded that the hiding of the clothing, the appellant’s hiding from police in the bushes, and the fact that the appellant was not wearing shoes should not be taken into account as consciousness of guilt reasoning, as to do so would “require impermissibly circular reasoning”.

79․Like the Magistrate, I have also warned myself of the caution to be applied when considering evidence of consciousness of guilt: Edwards v The Queen [1993] HCA 63; 178 CLR 193.

80․I agree with the Magistrate that the reluctance of a young person to engage with police is a reasonable explanation for the appellant’s decision to flee from police. In these circumstances, I agree that considered alone, the evidence of the appellant’s flight from police should not be used as evidence of consciousness of guilt.

81․I also agree that the hiding of the clothing and the absence of shoes being worn should not be used as evidence of the appellant’s consciousness of guilt. It may be readily concluded that the offender who was wearing the different coloured shoes and the t-shirt disposed of those items out of a consciousness of guilt. However, that process of reasoning says nothing about whether it was the appellant who disposed of the clothes and the shoes. The location of the clothes and the absence of footwear are aspects of the circumstantial case against the appellant, but reference to consciousness of guilt does not assist.

82․With respect to the Magistrate, however, I am of the view that the evidence that the appellant hid from the police in the bushes is evidence of consciousness of guilt. I have carefully watched the CCTV footage. That footage shows, consistently with Constable Cooper’s statement, that the appellant moved rapidly toward some bushes and attempted to hide in the bushes when he saw Constable Cooper walking towards the area of the park that he was in. Constable Cooper’s unchallenged statement was that the appellant hid before any officer had said anything to the appellant.

83․Whilst I readily accept that a young person may instinctively flee from an officer who is pursuing them, and whilst I also accept that a young person may run from an officer who is asking questions of them, I do not accept that a young person would ordinarily hide in bushes simply because a police officer was walking towards the area in which they were walking. I am satisfied beyond reasonable doubt that the conduct of the appellant in hiding was conduct which is inconsistent with his innocence, and is evidence of consciousness of guilt.

Conclusion

84․The prosecution case against the appellant is circumstantial. I cannot find the appellant guilty of either offence unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than his guilt.

85․In deciding whether there is a hypothesis reasonably open on the evidence that is consistent with the appellant’s innocence, it is necessary to consider all of the circumstances established by the evidence. The evidence is not to be looked at in a piecemeal fashion, but must be considered as a whole. The probative value of the evidence may be cumulative:

… each fact [in the circumstantial case] can inform an understanding of the significance of other facts. It is the understanding of the combined significance of all of the facts which informs the issue of whether the [prosecution] has proved [the appellant’s] guilt beyond reasonable doubt in respect of the charges that he faces.

R v Dawson [2022] NSWSC 1131 at [245].

86․For the reasons outlined above, I am satisfied of the following matters:

(i)There is no dispute that the co-offender was involved in the burglary. I have accepted his evidence that he was Offender 1 (that is, the offender carrying the Aldi Bag).

(ii)I am satisfied beyond reasonable doubt that the different coloured shoes, the white t-shirt and the black duffle bag found by police in the Glebe Park were those worn by Offender 2.

(iii)The appellant was found in an area of Glebe Park which was proximate to the t-shirt and the shoes within eight minutes of the offenders having left the Canberra Centre. This period was ample for the appellant to have fled from the Canberra Centre to Glebe Park, to have shed his shoes, face covering, bag, track pants and jumper, and to have then proceeded to the area in which he was first seen by police.

(iv)The appellant was not wearing any footwear at the time that he was apprehended. This is consistent with the appellant having disposed of his shoes in the bushes of Glebe Park after the break in, prior to his apprehension.

(v)The clothing that the appellant was wearing (shorts and a t-shirt) could have been worn under the black track pants and black jumper pictured in the CCTV footage. I have borne in mind that there is no evidence that the track pants or jumper were found in Glebe Park, and that there is no evidence of any other clothing being found in the vicinity of the offending.

(vi)The area in which the appellant was first seen by police was physically proximate to the area in which the co-offender was apprehended.

(vii)The appellant was an acquaintance of the co-offender.

(viii)The appellant’s appearance in the body-worn footage and as described by the officers (specifically, his height, build and skin colour) is consistent with the appearance of both offenders in the CCTV footage from the Canberra Centre.

(ix)I am satisfied beyond reasonable doubt that the appellant’s act in hiding from police in the bushes prior to police approaching him is evidence of consciousness of guilt.

87․As the Magistrate observed, considered in isolation, these matters could not establish the appellant’s guilt beyond reasonable doubt. However, considering the evidence in its totality, I am satisfied beyond reasonable doubt that the appellant was Offender 2 (the offender with the different coloured shoes). Specifically, I am satisfied that the evidence does not give rise to any other reasonable explanation of the facts other than that the appellant participated in the offences with the co-offender.

88․The sole issue advanced on the appeal was identity. The appellant did not submit that the Magistrate erred in finding that each of the elements of the offences were established consequent upon her finding that the appellant was one of the offenders. I am satisfied that each element of each of the offences was established beyond reasonable doubt. Accordingly, the appeal must be dismissed.

Orders

89․The appeal is dismissed.

I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

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