Director of Public Prosecutions v Guarini (No 2)
[2023] ACTSC 269
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Guarini (No 2) |
Citation: | [2023] ACTSC 269 |
Hearing Date: | 18 - 20 September 2023 |
Decision Date: | 22 September 2023 |
Before: | Berman AJ |
Decision: | (1) The accused is not guilty on count 1. (2) The accused is guilty on count 2. (3) The accused is guilty on count 3. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge alone verdict – aggravated burglary – obtain property by deception – identification evidence – CCTV footage – circumstantial evidence – reliability of complainant’s identification of the accused |
Legislation Cited: | Criminal Code 2002 (ACT), s 330 |
Case Cited: | DPP v Guarini [2023] ACTSC 263 |
Parties: | Director of Public Prosecutions Kobi Guarini ( Accused) |
Representation: | Counsel L Etheredge ( DPP) J Maher ( Accused) |
| Solicitors ACT Director of Public Prosecutions Fortify Legal ( Accused) | |
File Numbers: | SCC 21, 22 of 2023 |
BERMAN AJ:
Introduction
1․On 18 September 2023 the accused was arraigned on an indictment containing three counts. He pleaded not guilty to each of them.
2․The counts were as follows:
(i)Count 1 – an allegation of aggravated robbery;
(ii)Count 2 – an allegation of dishonestly obtaining property by deception; and
(iii)Count 3 – an allegation of dishonestly obtaining property by deception.
3․He had previously elected to be tried by judge alone. Before the trial started, he produced an election signed by himself, and a certificate signed by his legal practitioner which stated that the practitioner had advised Mr Guarini in relation to his election and that the election was made freely. The election and certificate had been filed in Court before I was allocated the trial and so was within time.
4․Accordingly, the question as to whether he is guilty or not of the counts on the indictment is one that I will answer rather than a jury.
5․In this judgment I will not use the real name of the person alleged to have been the victim of the three offences. This is to protect his privacy. Instead, I will refer to him by the pseudonym “Caleb Reilly”.
6․As will become obvious, there is no dispute that Mr Reilly was the victim of those three offences, the only issue for me to determine being whether this accused was one of the three men who robbed him and the person who later dishonestly obtained his property.
7․My judgment must include the principles of law which I have applied and I must take any relevant warnings, directions, or comments into account in considering my verdict. I will therefore begin this judgment with a statement of basic principles which apply to all trials, whether a jury trial or a trial by judge alone.
Onus and standard of proof
8․The most fundamental direction is that it is for the prosecution to prove the guilt of Mr Guarini if it can. The accused does not have to prove that he is innocent, nor does he have to prove that he is not guilty. The onus of proof is on the prosecution. Further, because what is alleged are criminal offences, the prosecution must prove the accused’s guilt beyond reasonable doubt before I can return a verdict of guilty.
9․Mr Guarini started the trial enjoying a presumption of innocence. He continues to enjoy that presumption even now. The only way in which the presumption of innocence is removed from him is if I am satisfied beyond reasonable doubt that he is guilty. If I have a reasonable doubt about his guilt, I must return a verdict of not guilty.
Rely only on the evidence in Court
10․I have decided my verdict by examining the evidence presented to me in Court. That evidence has consisted of the answers that witnesses gave in the witness box, the exhibits which were tendered, and two forms of evidence given by the Mr Reilly in this matter, namely the playing of a video recorded interview with police as part of his evidence in chief, and the rest of his evidence given remotely. Those two forms of evidence are standard procedure in cases of this kind. I have given his evidence no greater or lesser weight because it was given in the way it was, and I have certainly formed no adverse view of the accused because the evidence was given in that manner.
11․Another witness, Dr Quercini, gave evidence by way of video link too. Once again, I have given her evidence no greater or lesser weight because it was given in the way it was, and I have formed no adverse view of the accused because the evidence was given in that manner.
Right to silence and refusal to participate in identification parade
12․I heard that the accused exercised his right to silence when he was asked whether he wanted to be interviewed by police after he was arrested. All of us in the community have a right to refuse to answer questions put to us by the police if we do not want to. It is a very important right that we all have. It would be quite wrong for me to use the fact that the accused has exercised his right to silence against him in any way.
13․The same goes for the accused’s decision that he would not participate in an identification parade. Once again, the accused had every right to decline to participate in the identification parade and I will not use the fact that he exercised his right in the way he did against him in any way.
Silence in Court
14․There was no evidence given or called by the accused. I will say something about the relevance of that. It would be more accurate to say that I will say something about the irrelevance of the fact that the accused neither gave evidence nor called any evidence in his case. As I have said already, the onus of proof is on the prosecution. It is not for the accused to prove that he is innocent. It is not for the accused to prove that he is not guilty. It is for the prosecution to prove his guilt if it can. Thus, the fact that the accused neither gave nor called evidence is not evidence against him. It cannot be used to make up any deficiencies there are in the prosecution case or to fill any gaps that there may be in it.
Missing evidence
15․That the prosecution bears the onus of proof beyond reasonable doubt has other consequences too. In this case, there is a dispute about some things, the resolution of which would have been aided by evidence which was not sought by police. For example, as will be made clear when I turn to the evidence I heard in this matter, Mr Reilly’s debit card was used by someone other than him to try to make an online purchase, yet no attempts were made to obtain any records of that aborted purchase, information such as an address given by the prospective purchaser when that online purchase was attempted. I must bear in mind that it is harder to be satisfied of the guilt of an accused person beyond reasonable doubt where the police have failed to obtain evidence which might have assisted me in assessing whether the accused is guilty of these three offences.
No sympathy
16․There are a number of other things I have ignored. They include emotions such as sympathy and prejudice. The decision I have reached is based on a cold-hearted unemotional analysis of the evidence presented in this trial. I have made no enquiry about any matter which has come up in the trial, relying solely on the evidence presented to me in Court.
Circumstantial evidence
17․Both the prosecution and the accused referred to the matter before me as being a circumstantial case. Certainly, there are circumstances which support the prosecution case, but this is not a case where there is no direct evidence of the accused having committed the three offences on the indictment. Mr Reilly gives evidence of being robbed (count 1) and later identifies a photo of the accused as one of the robbers. As far as counts 2 and 3 are concerned, the prosecution relies on CCTV footage showing those offences being committed and asks me to conclude beyond reasonable doubt that the person seen committing those offences is the accused.
18․Perhaps it is more accurate to say that the prosecution relies on a number of circumstances to support the direct evidence. It is the prosecution argument that the direct evidence and those circumstances together prove the accused’s guilt on the three counts. What I have to do is to examine all the evidence, whether direct or circumstantial, and decide whether, when put together, they combine to prove that Mr Guarini is guilty of the charges he faces.
19․Because the prosecution has to prove the guilt of the accused beyond reasonable doubt, before I can find the accused guilty, I must not only be satisfied that the evidence shows that the accused is guilty, but that the conclusion of guilt is the only conclusion which can be reached.
Identification warning
20․In this case the prosecution relies on identification evidence. It asks me to accept that Mr Reilly was accurate when he selected a photograph of the accused and said that he was one of three men who robbed him.
21․The prosecution also asked me to conclude that the accused is depicted in some CCTV footage obtained from two shops at Florey, that conclusion, the prosecution submitted, coming from CCTV footage of the accused in the ACT Watchhouse and my observations of the accused during this trial.
22․I must exercise special caution before I accept the prosecution submission that Mr Reilly has correctly identified the accused, and I must also exercise special caution before I draw the conclusion that it is the accused depicted in the Florey shop CCTV footage.
23․Special caution is necessary because of the possibility that Mr Reilly and I might be mistaken. The experience of the law is that mistakes concerning identification are often and easily made.
24․The common experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that conclusions drawn from identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.
25․Identification evidence can appear to be superficially attractive. This is especially the case where the identification evidence is given by a witness who is clearly being honest in the sense that they genuinely believe that they have accurately recognised a photograph as depicting someone they have seen on an earlier occasion.
26․But at issue is not the honesty of Mr Reilly, it is the reliability of the identification evidence he gave. No one suggested that he was being dishonest when he said he recognised the photo of the accused as being one of the three men who robbed him. But that does not necessarily mean that he is accurate. The trouble is that because Mr Reilly honestly and sincerely believes that his evidence is correct, that evidence might seem to be quite impressive, even persuasive.
27․Even though it is common ground that Mr Reilly was being honest when he said he recognised the accused’s photograph, I must still approach the task of assessing the reliability of his evidence with caution.
28․Similarly, I must exercise special caution before I draw the conclusion that it is the accused performing the transactions the subject of counts 2 and 3 which was captured by CCTV footage in the shops at Florey. I have to examine the evidence very carefully, conscious that there have been many occasions on which conclusions about identification reached by judicial officers have been shown to be wrong.
29․The evidence which the prosecution says identifies the accused may be unreliable and there is a need for me to be cautious in deciding whether to accept that evidence and the weight I give to it.
30․Therefore, I give myself the relevant directions and warnings pursuant to ss 116 and 165 of the Evidence Act 2011 (ACT).
31․I will be referring to specific aspects regarding the accuracy of the identification which may cause it to be unreliable evidence later in this judgment.
The robbery
32․On 23 July 2022, Mr Reilly’s day began with him heading out from his flat to get some breakfast. He said that this was very shortly after 12:10 pm because he checked the time on his phone as he was getting ready to leave. When he got to his carport, he saw someone who he believed was acting suspiciously. He called out “hey mate what’s going on?”. When the man turned around, Mr Reilly recognised him as someone from school and his basketball team, someone he knew as Kallani, his full name being Kallani Joliffe-Cole.
33․Another man, who has never been identified, approached Mr Reilly and hit him, causing him to fall to the ground. It was then that a third person came up. It is the prosecution case that this third person was the accused. This person pulled out some sort of weapon with which he threatened Mr Reilly. At the time this occurred, the third person’s face was close to Mr Reilly’s face. He was then struck again which caused him to drift into unconsciousness. As he did so, he felt his pockets being searched and has a recollection of a white car driving off from the visitor’s car parking spot.
34․He regained consciousness to find that his phone was vibrating, and that his wallet and shoes had been stolen. The phone call was from his bank telling him that they had stopped a suspicious transaction on his debit card (this was the attempted purchase I mentioned earlier). When Mr Reilly checked his bank account, he discovered that there were two transactions on his debit card from shops at Florey, one for $63.70 and another for $9.60. Those transactions are the subject of counts 2 and 3 on the indictment. Police obtained CCTV footage of a male person conducting those transactions. I will return to the significance of that footage later.
A mistake regarding the time of the robbery
35․As I mentioned, Mr Reilly gave evidence that he checked the time on his phone before leaving his flat to get breakfast and noted that it was 12:10 pm. The robbery occurred a very short time after this. However, the CCTV footage which shows the use of Mr Reilly’s debit card depicts events which occurred before 12:05 pm.
36․There are two alternative explanations for this. The first is that Mr Reilly’s card was not taken from him during the robbery. The second is that Mr Reilly is mistaken about the time the robbery occurred.
37․I reject the first explanation as being improbable to the point that it was a fanciful explanation for the conundrum. It was suggested that perhaps Mr Reilly had lost his debit card beforehand, perhaps when he was out drinking with friends the night before and that thus the person using the debit card on the CCTV footage would have obtained that card otherwise than as a result of Mr Reilly being robbed.
38․However, the temporal and geographic closeness of the robbery and the use of the debit card satisfy me beyond doubt that Mr Reilly was in possession of that debit card before he was robbed. That of course does not necessarily mean that the person who used the debit card was involved in the robbery, but it does suggest that the debit card came into possession of the person in the CCTV footage either during or shortly after the robbery.
39․I am satisfied that Mr Reilly was wrong about the time that he left his flat, and that the robbery occurred sometime, probably a short time, before midday.
40․Mr Reilly was given many opportunities to reconsider his evidence concerning the time he went downstairs and was robbed. He was adamant that this was at a time it could not have been. Although he was clearly wrong, he was unwilling to concede an error. This certainty despite being incorrect has to be taken into account when I consider his certainty that he has correctly identified the accused as being the third robber.
The identity of the third robber
41․It is to Mr Reilly’s identification of the third robber as being the accused that I will now turn.
42․Because of the nature of the issue I have to resolve, it is of course important to consider two things at this stage, namely the opportunity which Mr Reilly had to observe the third robber and how Mr Reilly described the third person, the person the prosecution said is the accused, when he first spoke to police.
Opportunity to observe the third robber
43․Dealing firstly with the opportunity to observe the features of the third robber:
1.The whole episode occurred over a matter of a few seconds and Mr Reilly did not get a close look at the third person until he came up from behind;
2.Mr Reilly certainly did not have the luxury of a long look at this person who, after all, was committing a violent offence in broad daylight and was thus unlikely to take things slowly;
3.Although it was daylight, the carport in which this took place was relatively enclosed;
4.Mr Reilly was confronted by three people and a weapon. It was not a case where he could focus his attention on the appearance of a single individual;
5.Mr Reilly did not know what the third man looked like before the day of the offence. It is easier to identify someone whose appearance is well known to you than to identify someone who is unfamiliar to you;
6.It cannot be doubted that it was a stressful situation in which Mr Reilly found himself; and
7.By the time he became aware of the third robber he had been struck at least once.
Description of third robber given to police soon after the robbery
44․I next turn to how Mr Reilly described the third person, the person the prosecution say is the accused, when he first spoke to police. Mr Reilly participated in an interview with police on 24 July 2022, the day after the robbery, which became part of his evidence in chief. In that interview he said the following:
1.The third person was wearing a COVID facemask;
2.He had short brown hair;
3.He, and the other two, were caucasian;
4.At least two of the robbers were wearing Nike shoes, one pair were black and he was unsure of the colour of the other pair;
5.The third person was wearing a white t-shirt with hair that was spiked up at the front;
6.He had blue eyes. He particularly remembered the blue eyes because of how close the third person was to him and his was the last face he saw before he lost consciousness;
7.He had a black band across his shoulder as if he was carrying a satchel; and
8.He was probably the same height as Mr Joliffe-Cole with the same sort of build “both shorter, stocky blokes”.
The accused’s photo is selected by Mr Reilly
45․Sometime after he gave those descriptions to police, Mr Reilly picked out a photograph of the accused as being the third robber in somewhat unusual circumstances.
46․On 14 September 2022, he was shown a photo board containing images of twelve men. One of the photos was of this accused, but the remaining eleven were simply randomly selected photos with there being no suggestion that any of the photos were of men involved in the robbery.
47․The procedure was video recorded, and that recording was played to me. After looking at the twelve photos Mr Reilly said about photograph three that “this first individual… immediately grabbed my attention as being the person that I’ve described with the brown curly hair… and the grey sweater”. This was the person who Mr Reilly said was the second person involved in the robbery. After that there were some formalities conducted such as Mr Reilly signing underneath the photograph he had identified, and the photo board process and the videorecording concluded.
48․However, whilst Mr Reilly and the officer were still in the room, he told her that there was someone else on the photo board who could possibly have been there at the time of the incident. Accordingly, a few days later, on 19 September 2022, he participated in the process of looking at the photo board again. This was also video recorded. Before seeing the photo board, he told the officer that he was unsure about whether the photograph was of someone involved in the robbery because during the robbery that person “had a face covering on for the majority of their face”, but “the top half of their facial features do look identifiable to what I remember”.
49․Once he saw the photo board on this occasion, he immediately identified the photograph of the accused. He said the following:
1.“in particular, there is a scar above the right eye”;
2.“the eyes and the nose as well” are other identifying features; and
3.“the nose was slightly misshapen like it had been broken a couple of times”.
50․A perusal of the photograph of the accused which was included on the photo board shows him to have brown eyes, a scar above his right eye and a broad nose.
51․There are a few things to note immediately about this act of identification:
1.On 24 July 2022, the day after the robbery, Mr Reilly told police that the third robber had blue eyes but the photo he selects is clearly of a man with brown eyes. When asked about this in Court, Mr Reilly said that he must have confused the eye colour of the third robber with the eye colour of the other two. This is despite his evidence in chief interview on 24 July 2022 where he said that he remembered that the third robber had blue eyes “because of how close he was. he was the last face I saw before I was lights out”;
2.Mr Reilly does not mention that the third robber had a scar on his face when he spoke to police on 24 July 2022 but says that the scar is important when he picks the photograph of the accused on the photo board;
3.Similarly, Mr Reilly does not mention any misshapen nose in his evidence in chief interview but says that it is important when he selects the photograph of the accused and, in any case, at least some of the nose would have been covered by the face mask worn by the third robber; and
4.Mr Reilly does not pick out the accused’s photo when first shown the photo board, although he makes reference to it immediately after the first photo board identification procedure has concluded.
CCTV footage from Florey shops and ACT Watchhouse
52․Further evidence relevant to the identity of the third robber came when the prosecution tendered CCTV footage from two stores, about a six-minute drive away from where the robbery took place. That footage showed a person using one of the debit cards taken from Mr Reilly in the robbery. That footage showed a person committing counts 2 and 3 on the indictment. I was invited to compare the appearance of the person using that card with the appearance of the accused on CCTV footage recorded when he was being initially processed at the ACT Watchhouse, such footage also being tendered.
53․The footage from the Florey shops showed a man wearing a hoodie with its hood pulled over his head walk down a pedestrian walkway, enter a shop, select an item to purchase, take it to a cash register, ask for some cigarettes, and pay for his purchases before leaving the store. All this is seen from multiple camera angles. At times, the front of his face is clearly visible, as is the manner of his walking and how he stands when still. The footage is of good quality.
54․Other footage from the shops shows this man entering a bakery and purchasing some items. The quality of this footage is poor, and I have paid no regard to it as far as the identification of the person with the card is concerned.
55․Finally, there is further good-quality footage from cameras outside the supermarket, showing the man walking to the car park. Once again, his gait is clearly visible.
Both sets of CCTV footage show the same man
56․Fully cognisant of the warnings which are attached to identification evidence, and the reasons for those warnings, I nevertheless am able to say that based on the CCTV footage from the Florey shops, the person using the card was the accused.
57․The man at the Florey shops looked exactly like the accused in the ACT Watchhouse CCTV and the accused as he sat in Court during his trial. The accused’s facial appearance is distinctive. An anatomist would be able to say what it was about his face that was distinctive, but all I can say is that his facial appearance is such that in the two videos, identical distinctive facial features can be seen. The three images below are two screenshots from the Florey shops CCTV and the accused at the ACT Watchhouse:
58․Although still images taken from the video footage are not nearly as informative as the video footage itself, that the three photographs above, two from the Florey shops CCTV and one from the ACT Watchhouse CCTV, are of the same man is obvious.
59․That these are the same man is even more obvious when the video footage is viewed.
60․In drawing the conclusion that it is the same man depicted in both videos I have taken into account:
1.The angle at which the footage was taken is different from the angle of the CCTV footage in the ACT Watchhouse;
2.The man using the card in the footage was wearing a hoodie which at times covered the sides of his face;
3.The accused is a stranger to me;
4.I am being asked to look at the appearance of one person in one set of videos and compare it with the appearance of a person in another video. This is unlike a photo board identification or an identification parade where I would be confronted with the appearance of a number of people. I have to guard against the perhaps unconscious tendency to regard similarities in the appearance of two people as enough to conclude that two people are the same person; and
5.It is harder to accurately identify someone from two dimensional images on a TV screen that in would be if I was able to see them in three dimensions.
61․It is difficult to explain why it is that I have formed the conclusion that I have. It is difficult to describe what it is which enables us to recognise people we know, beyond saying “that looks like the person I know”, yet we do it many times each day. An inability to describe why we recognise someone does not prevent us accurately recognising them.
62․As far as my opinion as to whether it is the accused depicted in the CCTV footage is concerned, all I can say is that there was nothing that was dissimilar, and as far as I could tell the man in the CCTV footage and the accused looked identical.
63․Not only did they look identical, but the way the man in the CCTV footage from the Florey shops held himself matched the posture of the accused as he appeared in the ACT Watchhouse CCTV. The man who used Mr Reilly’s card at the Florey shops walked and stood with his head bowed and his shoulders stooped. This matched the posture of the accused as he was being processed in the ACT Watchhouse. The way in which the accused stood and walked was quite a striking feature of the accused’s presentation in the ACT Watchhouse CCTV, and strikingly similar was the way the person using Mr Reilly’s card stood and walked at the Florey shops.
The DNA evidence supports my conclusion
64․Next, there is the DNA evidence to consider. When police searched the accused’s home they discovered two items of clothing which were seized and then subject to DNA analysis. Those two items were a Champion brand black hoodie and a pair of Nike shoes. The hoodie is black except for the word “champion” written across the chest. The man in the Florey shops CCTV is wearing an identical garment. The Nike shoes are bluish, lace up shoes with areas of black and white. The pattern and the colours are identical to shoes worn by the man in the Florey shops CCTV.
65․DNA analysis of the items strongly suggests that the accused has contributed to the DNA profile on the shoes and hoodie. Whilst of course there is no way of knowing whether that came about through primary or secondary transfer the fact remains that the finding of the shoes in the accused’s home, together with the DNA analysis, strongly suggests that he is the person wearing the identical clothes on the Florey shops CCTV footage.
66․Having exercised considerable caution, my conclusion is that I am satisfied beyond reasonable doubt that it was the accused shown on the CCTV footage using Mr Reilly’s debit card. The person in that footage looks identical to the person in the ACT Watchhouse CCTV footage. His gait and the way he holds himself are strikingly similar in both videos. My conclusion is also strongly supported by the DNA evidence. The person at Florey shops is wearing an identical hoodie and identical shoes to those found at the accused’s home and which, upon testing, had the accused’s DNA on them.
67․My conclusion that it was this accused who used Mr Reilly’s debit card at the Florey shops enables me to say that he is guilty of counts 2 and 3 on the indictment.
68․The elements of the offences have been established. The accused intentionally and dishonestly obtained property from Mr Reilly by causing an amount of money to be transferred from his bank account to the account of the store holders with the intention of permanently depriving Mr Reilly of that money (see s 330 Criminal Code 2002 (ACT)) by deceiving the store holders that he had the authority to conduct that transaction.
The “admission”
69․I should at this stage refer to some evidence which I have not yet mentioned. It concerns what the prosecution says are admissions made by the accused while he and Mr Joliffe-Cole were being held together in the same cell at the ACT Watchhouse.
70․Their conversations were recorded. There was an objection to the admissibility of that recording. As I explained in my judgment in DPP v Guarini [2023] ACTSC 263, admitting the evidence, in order for the evidence to be admissible, the prosecution had to persuade me that the accused and Mr Joliffe-Cole intended or should have reasonably expected what they said to be heard by a law enforcement officer.
71․For reasons which I explained in that judgment, the admissibility of the evidence depended on the prosecution demonstrating to me that the two men were aware that their conversations were being recorded. There were aspects of their conversation which showed that they were aware that this was happening. These included statements which were in effect taunts to those listening.
72․What the prosecution says is an admission of guilt to these offences made by the accused has to be looked at in that light. It is somewhat ironic that in order to have evidence of the conversation in the cell admitted in evidence, the prosecution has to effectively devalue the forensic advantage it gains from what it says is an admission of guilt by the accused. Things said by a person who does not know they are being listened to carry much more weight than things said by a person who knows that police are listening and recording what he says and who has been taunting the police earlier.
73․At times the audio quality of the recording was poor and it was impossible to understand what was being said. The prosecution tendered the audio-visual recording and assisted me with a transcript of that recording as an aide memoir. There were many things on the transcript which I could not hear on the recording. I ignored those parts of the transcript for the purposes of this judgment.
74․At one stage, Mr Joliffe-Cole is alone in the cell when the accused is brought in. They speak a few words to each other before Mr Joliffe-Cole says “we’ll talk in the yard ay” tapping the intercom on the cell wall as he says this.
75․Later the two men discuss the circumstance that they have been put together in cells even though they are co-accused. They then have this conversation:
JC: weird ay
Accused: mmmm
Accused: want us to talk
JC: maybe its because they know we’re gonna dob on each other
JC: they are probably listening to us right now wondering ‘what are you cunts talking about’
Accused: they are
This part of the conversation concludes with Mr Joliffe-Cole saying loudly “fuck you”.
76․Finally, Mr Joliffe-Cole again says that “we’ll talk about it in the yard” because they will be “going on remand today”.
77․Having considered those interactions between the two men I was satisfied that the accused and Mr Joliffe-Cole intended or should have reasonably expected what they said to be heard by a law enforcement officer. That makes it much less likely that anything said by the accused would amount to a genuine admission.
78․At this stage I should give myself a warning under s 165 of the Evidence Act2011 (ACT). The evidence on which the prosecution relies may be unreliable in the sense that what was said by the accused may not amount to an admission at all. There are some matters, apart from the fact that the two men knew they were being recorded, which may cause the evidence to be unreliable. I refer to those later when I discuss the particular passages on which the prosecution relies. Finally, there is a need for caution in deciding whether I accept the evidence and the weight I should give it.
79․The prosecution relied on the following passages of their conversation:
JC: Are they looking for your mate as well?
Accused: Nah
80․Although it is possible that this can be interpreted as the accused having some knowledge of there being a third person involved, that person being a friend of the accused, in my view it would be dangerous to regard what was said in that way due to the equivocal nature of that interaction. In any case, knowledge is not the same as criminal involvement.
81․The prosecution also relies on this:
Accused: Didn’t he know you anyway?
JC: He knows me really well
82․The prosecution argues that this demonstrates the accused was aware that the person who was robbed knew Mr Joliffe-Cole. However, that does not necessarily demonstrate an involvement in the robbery, or the use of the debit card for that matter. It is entirely possible the accused has learnt of this circumstance after the event.
83․The final passage of the recorded conversation is one on which the prosecution placed most reliance.
JC: mate, how do they – how do they know it was you?
Accused: No idea
84․This, of course, comes after both men have been arrested for an offence of aggravated robbery, and the accused’s response “no idea” is very different to what might have been expected if the accused had no involvement in the offence.
85․On the other hand, as Mr Maher submits, this must be looked at in context. It comes after Mr Joliffe-Cole asks the accused “if I put money in your account every week, would you do me a solid”. Mr Joliffe-Cole tells the accused how good his life was going until his arrest and the problems that it would cause in his life were he to go to gaol again. He even offers to pay for the accused’s lawyer. I interpret that conversation as Mr Joliffe-Cole asking the accused to do him a favour, that he will be paid for doing that favour, and that what Mr Joliffe-Cole wants is the accused to do something which would mean that Mr Joliffe-Cole no longer goes to gaol.
86․The accused’s response “no idea” has to be looked at in that context. Mr Maher argues that, if it is an admission, it only came after an inducement.
87․Finally, if the accused is admitting to some offence, which offence is it? I will discuss below the possibility that while the accused is guilty of counts 2 and 3, he is not guilty of count 1. It is entirely possible that if the accused is admitting to anything, which is far from certain, it is merely to using Mr Reilly’s debit card.
88․My conclusion regarding the matters relied on by the prosecution which it says are admissions is this: I do not regard them as evidence pointing to the accused’s guilt on count 1, and it is not necessary for me to have regard to them in order to be satisfied of the accused’s guilt on counts 2 and 3. In effect, the recorded conversation between the two men in the ACT Watchhouse has been ignored for the purposes of this judgment.
Has the prosecution proved that the accused is the third robber?
89․The prosecution argues that if I were to find that it is the accused depicted in the CCTV footage at the Florey shops, then that is support for the proposition that the accused was the third man who robbed Mr Reilly, that Mr Reilly’s photo board identification of the accused is accurate, and that thus the accused is also guilty of count 1 on the indictment.
90․However, the prosecution is faced with many problems regarding Mr Reilly’s identification of the accused’s photograph. Most of these have been mentioned already, but at the risk of repetition I will list them:
1.The accused was a stranger to Mr Reilly;
2.The opportunity he had to observe the third robber was short, he was struck on the head at least twice, he was in a stressful situation, and he was dividing his attention between two other men and the weapon being held against his neck;
3.Although it was daylight, the carport in which this took place was relatively enclosed;
4.The description which he gave to police shortly after he was robbed does not match the photograph he selected. The accused does not have blue eyes. This is despite Mr Reilly saying in Court that the third robber’s eyes were the most distinctive feature that he remembered throughout the entire event of what happened to him that day;
5.At no stage has Mr Reilly ever described the third person as having a facial tattoo. This is despite the accused having a tattoo of what appeared to be a trident over his left temple, the tattoo being clearly visible on CCTV footage taken of the accused in the ACT Watchhouse and as he sat in Court during his trial;
6.He made no mention when describing the third offender to police the day after he was robbed, of things he said were important to his identification of the accused’s photograph, namely, the scar above the accused’s right eye and the shape of his nose;
7.There was a significant period between Mr Reilly’s observations of the third robber and when he was shown the photo board containing the accused’s photograph;
8.It is harder to identify someone from a two-dimensional image rather than seeing the person in three dimensions;
9.Despite the best endeavours of police instructions, it is natural for someone who is asked to view a photo board containing twelve photographs to think that police have a particular suspect in mind and whose photograph is included on the photo board, which runs the risk that a photograph which merely looks similar to the offender will be selected;
10.That last factor is particularly important in circumstances where the accused was shown the same photo board twice;
11.Although his opportunity may have been limited because of the way the photo board procedure was conducted, it remains relevant that Mr Reilly did not pick the accused’s photograph the first time he was shown the photo board, and indeed he said that having recognised the person in photograph number three “nothing else was recognisable from any of the other people that were on that photo board…”;
12.Mr Reilly is certain that he has correctly identified photograph number three on the photo board as being a photograph of the second robber. There is no suggestion at all that the man depicted in photograph three on the photo board was involved in the offence and it would be remarkable if a photograph from police records picked at random on the basis that he looks similar to the accused turned out to be the second robber after all. The chances of that happening would be astronomic and it is all but certain that, in truth, Mr Reilly has misidentified the person in photograph three on the photo board as the second robber; and
13.Mr Reilly was certain about something he was mistaken about, namely, the time he was robbed. His certainty about his identification of the accused must be looked at in that light.
91․Given those problems with Mr Reilly’s identification of the accused’s photo, it is hard to be satisfied beyond reasonable doubt of its accuracy.
92․Other factors, independent of Mr Reilly’s act of identification are important too. The third robber was wearing a face mask, whether in an effort to avoid the COVID-19 virus or to act as a disguise whilst committing a crime does not matter. But the person conducting the transactions at the Florey shops was not wearing a mask, even though he was at perhaps an even greater risk of catching COVID-19 and was committing two crimes.
93․Similarly, the third robber was wearing a white t-shirt, but the man at the Florey shops was wearing a black hoodie. Certainly, one could understand why someone would put on a hoodie in the middle of a Canberra winter, but that begs the question as to why that person would not have put it on earlier. That tends to suggest that the third robber and the accused were different people.
94․Finally, there is the absence of DNA evidence connecting the accused and the robbery. Mr Reilly said that the third robber grabbed his hoodie and held a weapon to his throat. Yet DNA testing failed to reveal the accused’s DNA on the hoodie nor was it found on what was likely to have been the weapon which police found in Mr Joliffe-Cole’s car.
95․When I consider all those matters, together with the warnings I must give myself about the dangers of identification evidence, the prosecution has not satisfied me beyond reasonable doubt that Mr Reilly has accurately identified the photo of the accused as being the third robber. There is a reasonable possibility that he is mistaken.
Are my findings inconsistent?
96․I fully accept that for Mr Reilly to be mistaken and for the accused to be guilty of counts 2 and 3, the following must be true: Mr Reilly has selected, from a group of twelve photographs, a photograph of a person he has never seen before, who looks remarkably similar to the third robber, and who turns out to be somehow criminally involved with the robbers to the extent that he has within minutes of the robbery come into possession of Mr Reilly’s debit card. It might be said to strain credulity that the third robber looks so similar to the accused that Mr Reilly has made an honest mistake and that completely coincidentally both the third robber and the accused were criminally involved in the theft and use of Mr Reilly’s property.
97․The prosecution has a powerful argument that this hypothesis strains credulity to the point of breaking it.
98․This analysis can be called in aid by the accused too, when I look at the question of whether I can be satisfied that it was the accused in the CCTV from the Florey shops. If it is hard to accept that there was present that morning a fourth man who looked like the accused who was involved in the robbery, while it was the accused who used Mr Reilly’s debit card, then, if I am not satisfied beyond reasonable doubt that the accused was correctly identified by Mr Reilly as the third man, that makes it less likely that it was the accused who used the debit card at the nearby shops.
99․This has caused me to re-examine my conclusion regarding the identity of the man at the Florey shops. However, despite fully acknowledging the difficult to accept the proposition that there was a fourth man who Mr Reilly has mistaken for the accused, and giving full weight to the warnings I have given myself about the dangers of identification evidence, I remain convinced beyond reasonable doubt of the accuracy of my conclusion concerning the identity of the man in the Florey shops CCTV; it is, beyond reasonable doubt, the accused.
100․Looking at the same issue from the view of the prosecution, even after conducting the analysis I have just done, I remain of the view that there remain so many problems with the accuracy of Mr Reilly’s act of identification that I simply cannot be satisfied beyond reasonable doubt that he has not made a mistake.
Orders
101․I return the following verdicts:
(1)The accused is not guilty on count 1.
(2)The accused is guilty on count 2.
(3)The accused is guilty on count 3.
| I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: Date: |