Director of Public Prosecutions v Chizoba (a pseudonym)

[2022] VCC 2340

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
FARAI CHIZOBA (a pseudonym)	Defence

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November – 22 November 2022
DATE OF JUDGMENT:	30 November 2022
CASE MAY BE CITED AS:	DPP v Chizoba (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2340

REASONS FOR JUDGMENT
---

Subject:  CRIMINAL LAW – Judge Alone Trial Judgment
Catchwords:             Alleged Armed Robbery – Alleged Aggravated Carjacking – Trial by   Judge Alone – Identification – Circumstantial Evidence.
Legislation Cited:     Crimes Act 1958 (Vic); Crimes (Amendment) Act 2000 (Vic); Criminal   Procedure Act 2009 (Vic); Jury Directions Act 2015 (Vic).
Cases Cited:            Douglass v R (2012) 290 ALR 699, 711; Smith v The Queen [2001] HCA 50; 206 CLR 650.
Judgment:                Charge 1 – Armed Robbery – Not Guilty.
  Charge 2 – Aggravated Carjacking – Not Guilty.

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr Z. Menon	Office of Public Prosecutions
For the Defence	Mr T. McCulloch	Papa Hughes Lawyers

HIS HONOUR:

Introduction

1The accused, Farai Chizoba,[1] is charged on Indictment M12231839 with one charge of armed robbery contrary to s 75A of the Crimes Act 1958 (Vic) and one charge of aggravated carjacking contrary to s 79A of the Crimes Act 1958 (Vic).

[1] A pseudonym.

2The charges arise from an event that occurred on 15 September 2021.

3I will elaborate on the evidence shortly, but in order to introduce various aspects of this judge alone trial, I will very briefly outline what the case is about. The prosecution case is that on 15 September 2021 the complainant was walking from her workplace to her car when she was approached by a young male riding a bike. The complainant was on her phone to her partner. The young man on the bike said to her that he needed help, his friend had been stabbed and he needed to use the complainant’s phone to call for emergency help. When the complainant said she would call for help, the man on the bike pulled a machete from his clothing and threatened to stab the complainant if she did not give him the phone. The complainant gave the man her phone. The man then demanded the keys to her car. He again threatened to stab her if she did not. The complainant ultimately gave the man the key to the car, but as it turned out he could not start the car. After trying to do so, he got out of the car and ran.

4The complainant moved away to seek help from a man in a nearby parked car. The police were called and an investigation began. CCTV footage was obtained which showed the man on the bike wearing a red hoodie, dark pants, white socks and dark shoes. This is a very general description that, for present purposes, accords with the CCTV footage and the descriptions of the witnesses.

5Later, approximately four hours after the crime, the accused man was spoken to by police about two kilometres away. The conversation was recorded by way of body camera footage. The accused was wearing a red jacket that had a hood, dark pants and dark shoes.

6A principal issue in dispute was whether the prosecution could establish that the accused was the offender, that is, the man on the bike. The secondary issue was whether the aggravated carjacking was a completed offence or whether it was merely an attempt.

Trial by Judge Alone

7The accused made an application to be tried by judge alone pursuant to s 420E of the Criminal Procedure Act 2009 (Vic) (‘CPA’). The accused’s application was granted on 6 September 2022.

8The accused’s judge alone trial commenced on 21 November 2022 with the arraignment, in which the accused pleaded not guilty to the charges. What then followed was a prosecution opening and a reply from the defence. The prosecution called 5 witnesses being: the complainant; her partner; the person the complainant ran to for help, Carlos Taylor;[2] Mr Taylor’s partner, Kathy James;[3] and finally the informant, a Detective Cable. Various photographs, CCTV footage, calls to triple zero and maps were tendered almost all through the informant. Given the issue was one of identity there was a very considerable amount of agreement between the parties as to the evidence.

[2] A pseudonym.

[3] A pseudonym.

9The prosecution case closed on the day it opened, 21 November 2022. The defence called no evidence. Addresses of counsel proceeded on 22 November 2022.

10I reserved my decision indicating that I would deliver verdicts and give reasons on 30 November 2022. These are my reasons for the verdict I will announce.

Preliminary Matters

11The legislation creating the capacity to hold a judge alone trial makes clear that the directions set out in the Jury Directions Act 2015 (Vic) (‘JDA’) that would be given to a jury in a trial by jury must be given in a trial by judge alone.[4]

[4] JDA s 4A(2).

12In hearing this matter without a jury, I may make any decision that could have been made by a jury. My decision will have, for all purposes, the same effect as the verdict of a jury.[5]

[5] CPA s 420F.

13A judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the facts on which the judge relied.[6]

[6] CPA s 420G. See also Douglass v R (2012) 290 ALR 699, 702; AK v Western Australia (2008) 232 CLR 438 at [107] per Heydon J.

14As the judge of the facts and law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must then deliver a verdict according to the evidence and nothing but the evidence.

15I turn now to what directions I have given and followed. What I set out initially are those general directions applicable in every trial. There are directions that are specific to this trial, that I will list, and refer to them in the appropriate place by reference to the evidence that gives rise to the directions.

General directions

16According to Part 7 of the JDA I am required to direct myself, and I have so directed myself, in accordance with the fundamental, general directions that apply in all criminal trials.

17Accordingly, first and foremost, I have applied the principle that the accused comes before this Court presumed to be innocent. The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of a charge has been proved beyond reasonable doubt.

18Next, I have kept well in mind that the prosecution bears the onus at all times of proving the guilt of the accused. The accused does not have to prove that he did not commit any of the offences.

19I have directed myself that the standard of proof is proof beyond reasonable doubt. This is the highest standard of proof known to the law. It is, as the High Court said, an ‘exacting standard’.[7] Anything short of proof beyond reasonable doubt must lead to the accused being found not guilty. The prosecution do not have to prove every fact to this standard. All that must be proved beyond reasonable doubt is the elements that go to make up the charges.

[7] Douglass v R (2012) 290 ALR 699, 711.

20I must decide the case solely on the evidence I have seen and heard in this trial; that is, what the witnesses have said under oath or affirmation in answer to questions, the exhibits that have been produced and the agreements between the parties. What counsel have said during the trial is, of course, not evidence.

21I must decide the case by the application of a rigorous, intellectual, open-minded analysis of all the evidence. There is no place for sympathy or bias or prejudice. That is important in this case. I have been vigilant to ensure there has been no emotional reaction or prejudice against the accused.

22I must assess the witnesses who gave the evidence and determine whether a witness was honest and credible, accurate and reliable. I may accept all, some or none of the evidence of any witness.

23Connected to and as a practical expression of the fundamental principles of the prosecution having the onus of proof and the standard being beyond reasonable doubt and that the accused is presumed innocent, I must approach any inference that I am ask draw or that I do draw on the basis that any inference adverse to the accused must be the only rational inference. In other words, in this case, if there is a scenario that is reasonably open and such a scenario allows for a possibility that the allegation is not true, then I must not find that the allegation is true beyond reasonable doubt. The case put by the prosecution must be such that any and all alternative scenarios consistent with innocence are not merely rebutted by the prosecution’s case, but are rendered unreasonable or fanciful alternatives.

24This latter direction governing circumstantial reasoning is very important in this case as it loomed large as a pathway that the prosecution said enabled me to be satisfied beyond reasonable doubt that the accused was the offender.

25There were some, but few, directions that were sought by the parties pursuant to various provisions of the JDA that relate to the particular circumstances of this case.

Directions of Law Specific to this Case

26The directions specific to this case sought by counsel in submissions made pursuant to s 12 of the JDA were the following.

27The directions are:

(a) Identification evidence – s 36 JDA; and

(b) The accused did not give evidence – s 42 JDA.

28I will deal with these directions, in particular the direction relating to identification evidence later when I have outlined the evidence and the arguments of the parties about the identification evidence and the inferences to be drawn.

Issues in the trial what was disputed and what was not disputed

29There is much in this trial that is not in dispute. I will endeavour to summarise what is in dispute and what is not, commencing with the significant amount of evidence that is not in dispute.

30From the witnesses called at the trial, being the complainant and the two witnesses who were nearby – Mr Taylor and Ms James – it was not in dispute that around 7:25pm approximately on 15 September 2021 a man confronted the complainant as she was just getting to her car about to head home after work. Broadly speaking the man was described as young and of black African ethnicity.  He was wearing a red hoodie and dark pants. Most notably he was riding a push bike. This man confronted the complainant demanding first her mobile phone and slightly later, the keys to her car. To reinforce his demands, he displayed or wielded a machete. He took the phone but was unable to start the car. He ran from the scene down Sandown Road. The phone was later recovered, using GPS tracking technology, in the driveway of a house on Sandown Road.

31CCTV footage from the nearby area captured the man on the bike at various points leading up to the carpark where the offending occurred. The most important sections of the CCTV footage came from the Metro Service Station in Ascot Vale. At that service station there were 3 cameras or camera angles. Again, the best view of the man on the bike is from camera 3, in particular when the man on the bike stops, pauses and rides off slowly from an area near a mobile kebab van. The prosecution produced a still photograph taken from that portion of the camera 3 CCTV footage.

32By tracking the movements of the man on the bike as seen on other CCTV footage, and most importantly because he left the bike at the scene of the crimes, there is no dispute and no doubt, that the man on the bike, as seen most clearly on the Metro Service Station camera 3 footage, is the offender.

33What is in dispute is whether the prosecution can prove to the standard of beyond reasonable doubt that the man on the bike is the accused man.

34The prosecution contends that the man on the bike is the accused, and I should have no reasonable doubt about that. The prosecution submits that there are two connected pathways to lead me to the conclusion that the man on the bike is the accused.

35The prosecution submits that firstly I can come to the conclusion that the man on the bike is the accused by undertaking myself, as the finder of fact, the direct comparison of the CCTV footage and in particular the still photograph taken from the Metro Service Station camera 3. This is an A4 size photograph, and it can be compared with footage and extracted photographs taken by a police officer’s body worn camera when he spoke to the accused later on 15 September around four hours after the offending and some two kilometres away.

36This direct comparison is what the High Court in Smith v R,[8] authorised finders of fact to undertake in cases were identification is in issue and comparison of footage and an image of the accused is part of the evidence.

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

37The second pathway put forward by the prosecution is that if I am not satisfied beyond a reasonable doubt the man on the bike is the accused, by direct comparison of the CCTV footage and stills, and the body worn camera and stills, then I should consider all the circumstantial evidence that flows from the evidence of the description of the offender, the CCTV footage, and the general proximity of the accused to the scene some four hours later.

38The defence contended that the evidence does not establish beyond reasonable doubt that the accused is the man on the bike or the offender. A direct comparison of the Metro Service Station camera 3 footage and stills, with the body worn camera footage and stills, is fraught with imprecision and put simply, there is not enough to enable a conclusion that the man on the bike is the accused, given all the risks inherent in identifications of this kind.

39Further, the defence contend that the circumstantial evidence does not remedy the flawed identification evidence, but rather when all the circumstances of what the police discovered on the night is considered, there remains a reasonable and rational hypothesis that the man on the bike is not, or might not be, the accused.

Evidence

40Turning to the evidence, given the issues in the dispute, and the array of matters not in dispute, I can be brief and hopefully succinct, as to the evidence from the complainant and those other witness who came to her assistance.

The complainant

41After describing that she was walking to her car, a Subaru Outback, and talking on her phone to her partner, the complainant then described the circumstances of the man on the bike confronting her and ultimately demanding her phone and threatening her with his knife.[9]

[9] Trial Transcript dated 21 November 2022, page 9.

42She said that the closest the man got to her was half a metre.[10] And she went on, describing the man’s ethnicity and the knife:

In terms of the evidence that you've given about the knife, where was the object?‑‑‑So, he was wearing a zipped-up hoodie that was open, and so he was - what I could see was that the knife was in the sheaf, and it was underneath the hoodie and above a dark t-shirt. 

What colour was the hoodie?‑‑‑It was a red colour.

Now, you've given some evidence about the hoodie or the top, could you see any other parts of the man's clothing? ‑‑‑Just a dark t-shirt, and - well, what looked like t-shirt material underneath, and some dark baggy trousers.[11]

[10] Trial Transcript dated 21 November 2022, page 9, line 18.

[11] Trial Transcript dated 21 November 2022, page 9, lines 20-25; page 10, line 28-31.

43In answer to questions as to his age and build she said:

Were you able to get a sense of how old the person was?‑‑‑Um, I thought he was around 20, give or take a few years

What about in terms of his build?‑‑‑Um, so, slightly taller than me, so 5 foot 9 inches, and slim build.  Yep.[12]

[12] Trial Transcript dated 21 November 2022, page 10, lines 9-10; page 10, 13 and 14.

44Importantly, the complainant said she could not fully see the man’s face as he was wearing a surgical blue mask as was required and common at that point in the pandemic.

45The complainant spoke of the man’s hair:

Were you able to see the person's hair or head?‑‑‑The hood was up; I didn't think that the hair was long.  So, it was a relatively short style.  Um, dark hair.[13] 

[13] Trial Transcript dated 21 November 2022, page 10, lines 25-27.

46She was asked about ethnicity and gave the following answer to this question:

Were you able to see what ethnicity or racial background the person was?‑‑‑He did look like dark-skinned African appearance.[14]

[14] Trial Transcript dated 21 November 2022, page 11, lines 24-28.,

47Although what confronted the complainant was frightening and she was anxious, she was able to make clear decisions – such as asking for and getting her food as she is a diabetic, and she also took her garage remote off the key to the car. She gave evidence that her training and skills as a doctor in de-escalating stressful situations enabled her to remain focused. To a degree this impacts on her capacity to make observations. The usual concern or caution as to a witness in an unfamiliar stressful situation was not as acute for the complainant as might ordinarily be the situation. That said the complainant did not get much opportunity to observe the man on the bike save from the broad descriptions I have just outlined. Because the man on the bike was wearing a mask, the complainant could not see all of his face. Understandably, the complainant was not later shown any photographs of young men who could potentially be the man on the bike. Thus, and critically, the witness, the complainant, does not identify the accused as the offender.

Carlos Taylor

48Once the man on the bike got the complainant’s car key and got in her car, she ran to another car in the carpark. Mr Taylor was in that car. His wife, Ms James, was inside a nearby restaurant picking up a takeaway meal. Mr Taylor gave assistance and called triple zero. I listened to that call. In terms of the issue in dispute – the triple zero call is of limited value, if any. Mr Taylor said, in terms of his capacity to describe the offender, that he was never closer than 30 metres away. Mr Taylor was without his glasses, though his need for glasses seems marginal. He can still see without his glasses.

49Mr Taylor saw and followed the man on the bike down Sandown Road as he escaped. His evidence as to describing the man was as follows:

Did you make any observations of the person as they were going down Sandown Road?‑‑‑Ah, not so much, because when they jumped out of the car they had a hoodie on, um, they had a backpack.

From that period of time where you are observing the person.  Are you able to say anything about the person's clothing?‑‑‑Yeah, there was, um, dark pants, red hoodie, but the hoodie was on the head at the time.  So, um, yeah, it was, yeah, dark pants and a red hoodie.[15]

[15] Transcript dated 21 November 22, page 27, lines 6-9, 14-18.

50Mr Taylor as he followed the man escaping down Sandown Street, was able to see the man divert into a driveway and, as it turned out, that was an accurate observation as the complainant’s phone was found dumped by the offender in a driveway on Sandown Road.

Kathy James

51Ms James came back to where her husband Mr Taylor was with the takeaway meal at a time after the triple zero call was underway. Her observations were of the offender trying to start the car and then running off. She said:

So once the car door was open, what could you see in terms of the description of the person in the vehicle?‑‑‑Yeah.  Um, I could see, um, the person was wearing a - a red - ah, a red-hooded sweatshirt, um, and some - and some black jeans.  Um, but it wasn't until, um, the - the driver got out of the car, um, that I got a - a really good picture.  But because the - the - the light came on, when the - when the - when the door was open, that's what I could see at that stage, when he was still in the car.

Could you get a sense of the height of the person?‑‑‑Ah, quite - quite short I    would say, probably around - roughly around my height.  I'm about 165 centimetres or so, um, so probably around, yeah, that 5 foot 5-ish height, would be my gut instinct from where I was seated, or where I was seated in the car.

What about the build of the person or the - yes, the physical build of the person?‑‑‑Yeah.  Physical build I would say pretty slight.

And in terms of his clothing, what could you see he was wearing on his top half?‑‑‑Yeah.  What I could see was a - ah, a red-hooded, um, ah, sweatshirt, um, and, ah, black - black jeans and black and red, was what I could see.

Was the hood up or down?‑‑‑I don't think I can recall that far back, being, ah, September last year.  I don't, um - I - oh, yeah, I - I don't think I can - I can recall, I'm sorry.

Did you see the man have anything with him in his hands?‑‑‑Ah, yes, he did.  He had, um, a couple of things in his hands.  He had a, um - well, he had a - a backpack, um, as he was leaving the car.[16]

[16] Trial Transcript dated 21 November 22, page 33, lines 3; page 34, line 10.

52Ms James also confirmed her observation of the backpack was that it was over the offender’s shoulder.

Informant

53The evidence in chief of the informant professionally set out the CCTV footage and stills that were gathered leading to it being clearly established that the man on the bike was the offender. The informant provided a clear map of the movements of the man on the bike and the adjusted times, given not all CCTV footage time stamps were accurate.

54The CCTV footage especially from the Metro Service Station, camera 3, makes it clear the man on the bike is a young, dark-skinned man, wearing a red hoodie, a dark under garment, dark pants, white socks, dark shoes, and a surgical mask pulled down so it was around the man’s neck. The upper clothing, as shown on the CCTV and still photograph, was a bit complicated as it appears some clothing is tied across the man shoulders or torso.

55The informant produced the body worn camera footage and stills. The map tendered as to where the accused was when captured on body worn camera, shows a distance of two kilometres as the crow flies from the scene of the offence to the place where the accused was when he was filmed by the body worn camera. The street that the man on the bike ran – that is Sandown Road – is generally in the area heading to where the accused was filmed and spoken to some four hours later. The accused’s address given and heard on body worn camera footage is in Sydenham some considerable distance from both relevant scenes.

56Also tendered through the informant was a photograph of a red jacket seized from the accused’s bedroom at his address. The photo is of a hooded, rain or waterproof jacket. It appears clear enough that it was the same jacket the accused was wearing on 15 September, when he was filmed by the body worn camera. It is not made from a sort of material that would be described, as Ms James did, as sweat shirt material. It is a waterproof or rain jacket. It is Hilfiger brand. No one referred to any branding on the hoodie worn by the man on the bike. I will return to this later as the prosecution argument is that the man on the bike had a red hoodie on as well as this jacket, perhaps tied up across his shoulders.

57The informant gave evidence that other than the phone, nothing else of evidentiary value was located, such as a backpack bag, if it existed, or the machete knife, which plainly the offender did have. The informant also gave evidence that the only forensic evidence secured was the swabs of the complainant’s car steering wheel, which revealed 2 contributors, and the accused man was excluded as one of the contributors.

58I will return back to the evidence of the informant as well as probative value, if any, of the absence of any forensic evidence supportive of identifying the accused as the offender.

The Complainant’s Partner

59For completeness, the prosecution called the partner of the complainant who was on the phone to the complainant when the offender first approached her. His evidence illuminated how the complainant’s phones was tracked down to a property in Sandown Road. He had downloaded, and produced in evidence, dashcam footage from the Subaru Outback of the offender trying to start the car but ultimately failing.

The Identity of the Man on the Bike

60Turning to the identity of the man on the bike.  As noted above, the prosecution submitted that as the finder of fact, I could come to a conclusion beyond reasonable doubt that the accused was the man on the bike, by comparing the CCTV footage and stills from the Metro Service Station with the footage and stills from the body worn camera. In order to undertake such a direct identification by comparison I would need to give full weight to the direction and warning that is required to be given to juries as to the dangers inherent in identification evidence.

61What would be said to a jury are the warnings regarding identification evidence, which I have adapted to the particular circumstances of this case. Importantly, it is necessary to understand that the evidence in this case is not of any witness identifying the offender. No one who observed the man on the bike can identify who that man is by reference to any photograph or the like. The evidence of the witnesses is of features of the offender, such as age, ethnicity, build and height, and most importantly clothing. This being the case, much of the direction as set out in the Judicial College of Victoria Charge book is not relevant or to the point, given the identification is to be undertaken by me, as the finder of fact, comparing the CCTV footage and stills of the man on the bike with the body worn camera footage and stills of the accused. I will set out the relevant parts and important warnings adapted from the Charge Book.

62Identification is an important issue in this case. The case against the accused depends wholly upon evidence which is to be used to identify the accused as the offender. The prosecution case is that the evidence from the Metro Service Station CCTV cameras, taken with the evidence of the complainant and those in the carpark where the offending occurred, establishes that the man on the bike is the offender. The prosecution says by comparing that evidence to the images of the accused from the body worn camera, the accused can be identified as the man on the bike.

63Identification evidence is potentially unreliable. For that reason, I must exercise caution in determining whether to accept the propositions put forward by the prosecution based on the evidence. Experience of the law has shown that witnesses have given mistaken identification evidence, which has resulted in innocent people being convicted. Importantly for this case, the experience of the law is that the prosecution can put forward inferences that lead to mistaken identifications or conclusions by finder of fact.

64The specific difficulties in making the identification are that the Metro Service Station footage and stills show a relatively small figure, certainly as to the face of the man on the bike. That is because the camera is some distance from where the man on the bike is, even at the point that he moves slowly past the kebab van. The images are taken at night. The man has his red hood up. Also, the images are of a young African man. Cross cultural identifications are particularly fraught with risk. The footage is a moving image, though the figure does stop from time to time, though not for any lengthy time. The photographs are not of high quality, given they are taken from video footage, they are at night, and of moving figures. They are two dimensional and limited by the lack of focus, clarity and size.

65Importantly, I am asked to make a comparison between the offender, the man on the bike, with just one other set of footage and stills depicting the accused. A single comparison is a methodology that is well recognised as dangerous or risky and prone to produce a mistaken scenario.

66I have had the luxury of watching and re-watching the footage and scrutinising over and over the still photographs. I am not making a brief observation in a stressful situation, and then retaining the images to compare to another image of an alleged accused. The observational circumstances are different, but I cannot overlook or ignore that there are, or remain, seductive aspects of identifications and people are prone to jump to conclusions on the basis of what they see or think they see.

67I must be alert that if I consider that the man on the bike is similar to the accused that what I am saying is no more than the two figures are similar, or have some similar qualities or characteristics. A conclusion that the man on the bike and the accused are similar, does not show that the accused is the offender. I must not jump from a conclusion of similarity alone without more, to a finding that the accused is the offender. Of course, I can use my conclusion of similarity, to combine with other evidence in determining whether the man on the bike is the accused. This is the second pathway that the prosecution puts forward. However, if I conclude that by comparing the two sets of images, that there is some similarities, then I cannot conclude from that alone, that the accused is the offender. This would not be an identification of the accused as the offender to the standard beyond reasonable doubt.

68To summarise, it is important that I take care in determining whether I accept the contention of the prosecution that the two sets of images reveal that the accused is in fact the man on the bike, or that I accept the inferences regarding identification evidence proposed by the prosecution. Only if, after careful examination of the identification evidence, and in light of all of the circumstances and other evidence given in the case, I find that the accused can be correctly identified, only then can I use the evidence in reaching my verdict.

69I have watched the CCTV of the man on the bike, in particular from, the Metro Service Station, multiple times on a screen that allowed me to get close and to pause, play and rewind. I have examined in fine details the still photographs taken from the camera 3 footage. In other words, I have given very close and careful analysis to the visual evidence of the man on the bike. I can appreciate what is there to be seen in terms of his features, and clothing, including the garment tied across his chest and the surgical mask across his neck. I also appreciate the significant inherent problems with making an observation from CCTV footage and an extracted still photograph. I am acutely aware of the difficulties of this particular video and still in the depiction of the offender.

70The CCTV footage and the extracted stills of the man on the bike has a number of significant problems. The camera – even camera 3 – is at some distance from the man on the bike. Though he does stop and turn briefly so he is facing the camera, by and large, he is side on to the camera. The still photograph is the only real moment where he is facing the camera. However, it still is at a distance and the photograph expands the image only by a relatively small margin. On an A4 page his face is barely a centimetre in diameter, on reflection it is probably not even half that, though of course his face and head are not a perfect circle. His whole body is still relatively small.

71Further the scene is at night or in darkness, illuminated by artificial light. It is not a steady light and the offender moves in and out of greater brightness, then back to darker spots.

72The man on the bike does have a red hoodie which is up and covers his head. This limits observations that can be made of the man’s hair, the style and length. I will return to this as the body worn camera footage is of the accused without a hood up and there are particular of aspects of his hair style.

73A very significant issue is, I am asked to observe and then compare and make a cross cultural identification. This I accept has significant added difficulties of identifying someone from a different ethnicity. I am well aware how mistakes can be made because the observer coming from one ethnic origin, does not appreciate the subtilties and nuances involved in identifying someone from different ethnic origins.

74The comparison footage and stills from the body worn camera are also at night, and the accused is moving around, though there are several stills tendered as well. The distances from the camera are less than the Metro Service Station cameras, but they are far from a close up. I have looked very carefully at the body worn camera footage and stills, and moved from that to the service station footage and stills, and back to them a number of times. I can see in both, a young black skin man of broadly African ethnicity who is wearing dark pants and a red top. Beyond that, I cannot say what features in this young man are so plainly the same, or even very similar, such that that I am left without reasonable doubt, that the man on the bike is the man shown on the body worn camera. In the end I am left with the dilemma that it might be one and the same man or it might not be. I have reasonable doubts when I properly apply the warnings as to the seductive mature of the identification evidence and how wrongful identifications have been made. I have given practical implementation rather than just stating the words of these directions in assessing what is in the end limited evidence, or evidence of limited cogency, as to the identity of the offender. All this does not allow me to say or conclude safely and confidently, based solely on my identification from the visual evidence, that the man on the bike is the accused man.

75However, the prosecution argues that there is an array of circumstantial evidence, that when taken together removed any doubt that the man on the bike is the man in the body worn camera footage, that is they are the same person, that person being the accused.

76The prosecution argued that the man on the bike and the man on the body worn camera footage share a commonality of features, being a male of African background, of similar age, similar height, similar build, similar coloured pants, being dark, similar top, being a dark t-shirt under a similar jacket, being a red hoodie. The man on the body worn camera – the accused – was within two kilometres of the scene of the crime as the crow flies, and within four hours of the same incident. Most importantly, the man on the service station footage, has an upper garment tied around his upper body, and a hoodie up over his head and the body worn camera footage shows the accused with two upper garments each with a hood.

77This evidence from the body worn camera of the accused wearing clothes with two hoods, is unusual and fits with the garments on the service station footage, albeit that the two distinct hoods cannot be fully seen in that footage. The prosecution says the tied up garment fits that unusual circumstances of the accused having two hooded garments that can be seen on the body worn camera. The prosecution says when all these circumstances are pulled together, and added to the visual or facial similarity as can be seen on the photos from the two scenes, that all this combined means that the identification of the accused as the man on the bike becomes inevitable.

78The prosecution argued that absence of other forensic or objective evidence is in the end intractably neutral. By that the prosecution say the fact the accused was not a contributor of the DNA extracted from the steering wheel, does not diminish the evidence of the pure identification by comparison or by the combination of all the circumstances. The absence of any DNA evidence connecting the accused to the car, would in my view require speculation for it take on a probative force that acts against the prosecution case that the accused is the man on the bike.

79In discussions and questions during his final address, the prosecutor accepted that if the scenario that the young African man in a red hooded jacket riding a bike and committing the offences at around 7:25pm in the carpark in Ascot Vale, was a different young African man to the accused who was in a red hooded jacket spoken to four hours later two kilometres away in Flemington – if that was a scenario that was rational, feasible or open – then the prosecution could not succeed. In short, if the prosecution could not by the force of all the evidence render that scenario as fanciful one, then by the operation of the circumstantial reasoning in a criminal trial I would have to find that a reasonable doubt existed or had not been eliminated.

80The scenario that there was a possibility of another young African man in a red hooded top riding a bike at 7:25pm, and that man was different to the accused in his red hooded top as seen four hours later two kilometres away, is a scenario that, on the combination of all the evidence, cannot in my view be eliminated. The odds of there being two different young African men in red hooded clothing is not at all extreme or a fanciful proposition in all the circumstances. It is a scenario that is perfectly possible. The area is one where there are young African men. The evidence from the informant as to who was located that night makes it clear that young African men other than the accused were in the general area that night.

81To make this point – which is clear enough already – one does not need to consider all manner of other hypothetical circumstances of young African men dressed in similar hoodies in the general area of Ascot Vale and Flemington. The point can be decisively understood by considering the evidence of the informant as to what unfolded within a short time of the offending.

82The police had the descriptions from the complainant, Mr Taylor and Ms James as to a young African male with a red jacket and with a machete. The informant’s evidence in cross examination was that police intercepted a red car on Sandown Road at 7:36pm. The two males in the car were both young African men. One had a red vest as an upper garment. In the car was a machete. The men were arrested and the police had a firm view based on the description evidence and the presence of a machete, that these men were involved in the offending. At a later point, the CCTV footage and the timing of seeing the car made it crystal clear that the men in the car, including the young African man in the red top, were not involved.

83As defence counsel made clear in his address, this evidence is a cautionary tale. It makes clear within the circumstances of the case, that there were two young African men in red tops with a machete within minutes of each other at the same location.

84Accordingly, it is far from fanciful that there were two young African men of broadly the same slight build, wearing a red hooded top, who were not quite in the same general area at the same time, but within two kilometres and four hours later. All the surrounding evidence that the prosecution argued made the identification of the accused as the offender inevitable, does not have that effect. In my view it is, or remains a plausible, reasonable, and far from fanciful scenario, that there were two different African men in red hooded tops with dark pants and dark under garments, one was the offender and the other the accused. Thus, the alternative hypothesis, that the man on the bike might be a different person to the accused remains open.  As the prosecutor very properly conceded, if it remained the case that the alternative hypothesis consistent with innocence was reasonable and not eliminated, then I had no other option but to find the accused not guilty.

85All the evidence having been carefully scrutinised leaves me with a firm view that a rational alternative hypothesis, consistent with innocence, has not been eliminated and it remains a reasonable conclusion to be drawn.

86Before formally announcing the verdict, I do say that in assessing all the evidence, I did not find the absence of the accused’s DNA on the steering wheel assisted me in determining whether the accused was the offender. It was neutral and no more.

87Likewise, I gave full effect to the direction that would be given to a jury in the circumstances of the accused not giving evidence. It added nothing to the evidence.

88I hope it is obvious I have given full effect to the directions concerning circumstantial evidence and the need for the prosecution to eliminate any rational alternative hypothesis consistent with innocence. I have also given full effect to the warning as to the problems with identification evidence. In doing so I am left with conclusion that the accused, as seen on the body worn camera, may not be the offender or it might well be that the man on the bike is a different young African man from the accused.

89Finally, the prosecution went to some lengths with considerable skill to establish that the crime was a completed aggravated carjacking and not the alternative of attempted aggravated carjacking. As I find that the prosecution cannot establish to the requisite standard that it was the accused who confronted the complainant, then it is not necessary to determine the issue of a completed offence or an attempt.

90These conclusions which establish there is a reasonable doubt leaving me no option but to find the accused not guilty.

91I announce the following verdicts:

Charge 1  Armed Robbery – Not Guilty.

Charge 2  Aggravated Carjacking – Not Guilty