DW v The Queen

[2019] NSWDC 809

District Court

New South Wales

Medium Neutral Citation:	DW v R [2019] NSWDC 809
Hearing dates:	14 August 2019
Date of orders:	14 August 2019
Decision date:	14 August 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Appeal allowed. Set aside conviction.
Catchwords:	CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction CRIME — Attempted armed robbery EVIDENCE — Standard and onus of proof — Criminal cases EVIDENCE — Circumstantial case — Identification evidence — photo board — DNA evidence EVIDENCE — Reliability of witness — witness cousin of accused — witness statement given 18 months after alleged incident
Cases Cited:	Fox v Percy [2003] HCA 22
Category:	Principal judgment
Parties:	DW Director of Public Prosecutions
Representation:	Solicitors: E Freelander (ODPP) B Le Comte (ALS NSW)
File Number(s):	2019/00022530
Publication restriction:	Statutory non-publication order – appellant’s identity not to be published
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Children’s Court Crime Date of Decision: 28 June 2019 Before: Magistrate D Covington File Number(s): 2019/22530

Judgment

1. HIS HONOUR: The appellant appeals against a conviction for an attempted armed robbery of Ian Thompson on 14 October 2017. The summary trial took place over a number of days in the Local Court.

2. As always it is appropriate that I briefly mention the nature of the jurisdiction this Court exercises when hearing an appeal from a conviction recorded in the Local Court. The nature of the appeal has been considered in a number of cases in both the Court of Criminal Appeal and in the Court of Appeal. The appeal is not a hearing de novo, the approach to be taken is analogous to that taken to a civil appeal as explained in Fox v Percy [2003] HCA 22.

3. I am to form my own judgment of the facts so far as I am able to do so from the transcript, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the Local Court. While the magistrate’s reasons are not part of the transcript of the evidence, I can have regard to them on the appeal. The powers of the District Court are exercisable where the appellant demonstrates that the order, the subject of the appeal, is a result of the legal, factual or discretionary error in which event I can substitute my own decision based on the facts and law as they then stand, it is unnecessary for the appellant to demonstrate a legal error as such.

Evidence before the Magistrate

4. I turn then to my review of the evidence that was before the magistrate.

5. Ian Thompson, the complainant, a retired person, gave evidence that on 14 October 2017 he pulled into Wilcannia and went to the Victoria Caravan Park and set up his tent near the river. His evidence was he went to bed and was awoken by dogs barking and got up to have a look around and then went back to his tent and laid down. His evidence was that at that time he looked at his watch and it was 11.27pm.

6. A little later he heard someone say “wake the cunt up” and then he went to unzip the tent and could see a person outside. The complainant described that person as a young male dressed in light clothes, not overly tall and thought the male was in his early 20s. He recalled the clothes as being light‑coloured and considered the person as of Aboriginal descent. He described the male as having medium length hair which was wavy. He could not say if the male had facial hair. In cross-examination he described the clothes of that male as being a light-coloured t-shirt and light‑coloured pants like tracksuit pants.

7. The complainant said that as he came out of the tent the whole of his focus was on the axe. He described it as a typical tomahawk. He said he was sure it did not have a wooden handle. The complainant said he was no more than 2 metres from the man concerned. The complainant’s evidence was that the man was shouting “give me your cash or cards, you know, or I’ll kill you, you cunt”. The complainant said he did not see anyone else around and the man who made that demand upon him had the same voice as the person who said “wake the cunt up”.

8. The complainant described going backwards into his tent to retrieve a hammer, having told the man he was going to get his cards and cash. He described the axe striking his tent, having just gone past his head. The complainant said he screamed out “I’ll give you the bloody cash and cards” and came out of the tent and as he did so the man left.

9. The complainant gave evidence that after the man had left he looked at his watch and it was midnight when he went to the police station in Wilcannia. He then pressed a button which was answered by Broken Hill Police Station and told whoever he spoke to what had happened; two police officers then arrived in his presence. The complainant described to the police at one point that night, showing him a bag with an axe or a tomahawk in it, which he identified as being the axe from earlier in the night.

10. The complainant agreed he had been unable to pick the person who made the demand upon him from photographs he was subsequently shown by police. In cross-examination he said he recalled that he had picked three photographs because of similarities.

11. In terms of the evidence about the attempted photographic identification the evidence was essentially to the effect that the complainant participated in a photograph identification procedure on 25 March 2019 which contained photographs of 20 Aboriginal men, including the appellant. The officer‑in‑charge gave evidence that the complainant appeared to experience difficulty with the procedure, the complainant was said to identify one person at 30% certainty, one at 40% and one at 50% certainty. None of those three persons was the appellant.

12. The young person JJ, who said he was the appellant’s cousin and who was 13 at the time of the incident and 15 at the time of the hearing, gave evidence in the prosecution’s case. JJ gave evidence that at about 11pm on 14 October 2017 in Wilcannia he was walking with a friend, the young person RJ. He gave evidence that the two of them ran into the appellant who asked them to go up to the area referred to as the Mallee. He gave evidence that the three of them were talking and walking down the street. At one point they saw the police and the appellant commenced running, and he and his friend also ran because the appellant told them to. He said the appellant had told him he had been to a party.

13. JJ gave evidence that when he first met up with the appellant that night the appellant was holding an axe “in his arms up his jumper sleeve”. JJ gave evidence that the “sharp bit” of the axe, the head of it, was in the appellant’s hand and “the other bit” was up his jumper. He later described it as a little tomahawk. He gave evidence that the appellant did not have the tomahawk with him when they were up at the Mallee area.

14. JJ gave evidence that the last time that he saw the appellant with the tomahawk was around the TAFE near the residence of CJ; this was just before the police came around the corner. He described the appellant running into the flats where CJ lived and then pulling the appellant up.

15. JJ was cross-examined and gave evidence that he had been consuming cannabis prior to his meeting and walking with the appellant, he estimated that he had smoked three or four cones of cannabis that evening. In cross‑examination it was raised that JJ did not initially report the appellant having an axe and that there was a one-and-a-half year delay in JJ giving up this information to the police. JJ was cross-examined as to whether he could remember the appellant wearing a jumper or a long-sleeved shirt. JJ remained firm in his evidence that he had seen the appellant with the axe earlier in the night. He denied that he made up his account that he had seen the appellant with an axe and that he was saying that the appellant had an axe to avoid getting into trouble.

16. There was evidence about the police finding the axe in the initial search of the appellant. A Constable Ronayne gave evidence that he and Senior Constable White began patrolling the town area very shortly after the complainant attended the police station. He gave evidence he saw three people walking north along Woore Street who saw the police vehicle and they turned to run south along that street. He says the police turned down Byrne Street to follow the three young Aboriginal males who were running. The two shorter males ran down a laneway and the taller male jumped a fence at 12 to 14 Byrne Street.

17. After the constable got out of the vehicle he says he saw the taller male stop in the driveway, in his statement he described the taller male as wearing a dark top and light pants. Constable Ronayne went on to give evidence to the effect that he initially stopped and talked with JJ and asked JJ who the male was who jumped the fence, and he said he did not know. According to Constable White he first observed the taller male, on the evidence the appellant, was standing in the front yard of 12 to 14 Byrnes Street, while the two smaller males ran into Reid Lane. Constable White stopped and talked with the appellant shortly afterwards.

18. The appellant told him he was visiting his cousin CJ to get a smoke from her and that she lived at that address. The officer agreed in cross‑examination that at that point the appellant gave his correct name and was compliant with directions. I note that there were some conflict in the two officers’ evidence about the attitude of the appellant on the evening but ultimately I do not think that that conflict causes me to have any real question about their evidence.

19. After the two officers searched the two boys, which included the appellant, and found nothing of interest they were given a move on direction and allowed to leave. Constables White and Ronayne then searched an area in the front of 14/12 Byrne Street and found an axe in the grass. White found it and it had a green and black handle. Photographs of the axe were tendered and it is clear it does not have a wooden handle, the evidence is that it has a rubber handle and that is consistent with the description of the axe given by the complainant. Constable White gave evidence in cross‑examination the axe was located some 5 metres from where he spoke to the appellant. In cross‑examination Constable Ronayne gave evidence that of the boys he saw only the appellant ran near that area.

20. A little later that night the appellant was arrested by the police and charged. In cross‑examination Constable White was vague about what the appellant was wearing on the night however said he recalled that a jumper and white pants and a man or bum bag. There was also evidence called from CJ who lived at Unit 1/12-14 Byrne Street, Wilcannia. Her evidence was that she had known the appellant since he was a small child. She said she see him on the night of the incident. Her evidence was that she thought she was away for the weekend and not at home that night. In any event her usual practice was that she went to bed around 8.30 to 9pm and did not get out of bed to open the door for anyone after 9 o'clock at night. She said in her evidence in chief that she did not see anyone around her residence about 11 or 11.30pm on 14 October 2017. There was no real challenge to her evidence in cross‑examination.

21. There was some evidence that on the evening of 15 October 2017 CJ was spoken to by the police and agreed that she knew the appellant as she said in her evidence. She told the police he did “did not come around much” and when asked if he visited often responded, “not really, just whenever”.

22. There was certain DNA evidence produced below. Exhibit 8 in the proceedings was an expert certificate, it contained the results of a DNA test performed on the handle of the tomahawk/axe and a buccal sample from the appellant. The find was reported,

“The DNA is a mixture that originates from at least four individuals. The major contributor to this mixture has the same profile as DW, the appellant. The DNA from the minor contributors is not suitable for comparison due to the low level and complexity”.

23. The appellant gave evidence in the Local Court. His evidence was to the effect that on the night of the incident he had been to a party in Wilcannia and had been drinking. His evidence was that he had an argument with his partner. He said he went looking for cigarettes and went to CJ’ premises to obtain a cigarette, knocked on the door but she was not home. The appellant agreed that the axe the police found that night was his grandmother’s. He gave evidence that he had used the axe before to chop firewood and hammer nails. The appellant said in evidence the last time he had used the axe was approximately one week prior to the incident. He denied being involved in any attempted robbery at the caravan park that evening which involved the use of an axe.

The Magistrate’s decision

24. I turn then to the Magistrate’s decision. His Honour noted that there was no dispute that there had been an attempted armed robbery of the complainant, Mr Thompson. The only issue the Magistrate considered that arose in the hearing was whether it was in fact the appellant who had committed the attempted armed robbery which was with an axe. His Honour noted that the prosecution case was a circumstantial one in relation to proof that it was in fact the appellant who had committed the charged offence.

25. His Honour gave himself an appropriate direction as to the onus and standard of proof, and also gave himself a circumstantial evidence direction in that his Honour directed himself that he could not find the appellant guilty unless the prosecution had excluded all reasonable hypotheses consistent with innocence that arose on the evidence. His Honour noted that in a circumstantial case all of the circumstances need to be considered in combination and the evidence should not be considered in a piecemeal way.

26. The Magistrate relied to some degree on JJ’s evidence, in doing so he noted that JJ had not told anyone for 18 months about what he saw that night but made no specific credit finding in relation to JJ. The Magistrate noted that the complainant had not identified the appellant from a photo board and had said that photographs of other persons in the array was similar to the perpetrator. His Honour noted however that there were some similarities between the complainant’s description of the perpetrator and the appearance of the appellant, noting that the complainant focused upon the axe. The Magistrate noted that the complainant had identified the axe found by the police to be the axe used in the offence.

27. The Magistrate relied upon where the axe was found by the police and noted that it was found some 5 metres from where the appellant was observed to run, and that the appellant was the only person who was observed to run in the direction of the area where the axe was found. The magistrate also relied upon the DNA evidence. His Honour noted the evidence given by the appellant being that he said that was axe found was similar to one from his grandmother’s and he used it to bang nails and chop wood.

28. His Honour also noted CJ’s evidence which I have discussed earlier. His Honour considered that the version given by the appellant was fanciful and rejected it, although he did not give reasons as to why he considered it was fanciful. Ultimately his Honour was satisfied beyond reasonable doubt that it was the appellant who attempted the armed robbery of Ian Thompson.

My decision

29. As is always the case the onus of proof is on the prosecution and the standard of proof is proof beyond reasonable doubt. As the Magistrate correctly observed this is a circumstantial case and I have given myself a circumstantial evidence direction. That in essence means that the evidence is not to be viewed in a piecemeal fashion but is to be viewed globally and in combination. The Crown must exclude all other hypotheses that arise on the evidence beyond reasonable doubt before I am entitled to find the appellant guilty.

30. The appellant gave evidence below and of course even if I reject all the evidence he gave I still must be satisfied beyond reasonable doubt of his guilt before I may convict him.

31. I also note, and I mentioned this briefly earlier, that at least insofar as the Magistrate’s decision has been transcribed, and there were some problems in that regard, the Magistrate appears to have made no specific credit findings in relation to JJ or the appellant, although I will note as I noted earlier the appellant’s account was considered to be fanciful by the Magistrate. That is not an expression I would use in describing the appellant’s evidence. I am certainly sceptical of the appellant’s evidence and it might be thought to be a very convenient explanation to the prosecution case, but I do not think I can dismiss it entirely.

32. As the Magistrate said in his judgment there is no doubt there was an attempted armed robbery of the complainant, Mr Thompson. The issue in the case is whether the Court can be satisfied beyond reasonable doubt that it was the appellant who committed that offence. The relevant circumstances that the Crown rely upon are essentially as follows:

• Some general evidence of description by the complainant of the offender, which might be thought to be consistent with a description of the appellant in a general sense, I set out that evidence earlier. I note in that regard the complainant did not select the appellant from the photo board array which took place more than 12 months after the incident. The inability of the complainant to select the appellant’s photo is unsurprising given the circumstances of the incident and the length of time that had passed by the time the complainant engaged in the identification process.

• The finding of the tomahawk. The evidence of the complainant was that the tomahawk found by the police that night was in fact the tomahawk that had been used by the perpetrator during the incident. The appellant in effect during his evidence conceded that the tomahawk was his grandmother’s tomahawk. The DNA evidence which I referred to earlier was to the effect that four person’s DNA was found on the handle and the major contributor was that of the appellant. The appellant in his evidence said he had used the tomahawk in the past and that in effect, on the appellant’s case, was an explanation for the presence of his DNA on the tomahawk. The location of the finding of the tomahawk as closest to where the police observed the appellant when they first spoke to him that night is another circumstance the Crown points to. I referred to that evidence earlier and the police evidence that the only person they observed near that area was the appellant.

• The evidence of JJ which I referred to earlier is another circumstance relied upon by the Crown. That is that when he first saw the appellant, when he first met up with him that night, he had an axe in his arms up his jumper sleeve.

33. To my mind the evidence of the general description of the perpetrator, the finding of the tomahawk in its location, it being the appellant’s grandmother’s, the presence of the appellant’s DNA on it, do not without the evidence of JJ prove the guilt of the appellant beyond reasonable doubt. It is to my way of thinking the evidence of JJ which ties the appellant to the tomahawk earlier in the night and links him to having actual control of it on that evening. The other items of evidence of course can be thought to in some ways corroborate the evidence of JJ.

34. In saying what I have just said I am not suggesting that in approaching a circumstantial case you do so in a piecemeal fashion. Clearly one does not and all the evidence must be viewed together.

35. I found the resolution of this appeal somewhat difficult. There were no specific credit findings as I say by the Magistrate and it might be thought that his Honour’s decision constitutes an implicit acceptance of the reliability of the evidence of JJ, and a negative credit finding in relation to the appellant. For my part I do have some real concerns about the reliability of the evidence of JJ, although I accept that he does not appear to have been particularly shaken in cross‑examination on the aspects of his evidence which implicate the appellant in the offence.

33. The concerns I have about JJ’s reliability are as follows:

• On the night of the incident he told Officer Ronayne that he did not know who the tall boy was who the police observed jumped the fence. That clearly was a lie to the police as on his own account he knew who that was. He conceded in his evidence that he had smoked three to four cones of cannabis that evening, he being a 13 year old boy at the time of the incident. He said he smoked the cones quite close together. Common sense suggests that such an amount of cannabis would have an impact upon the reliability of the evidence that a child of that age could give about the events that evening.

• JJ said in his evidence that he knew of CJ and where she lived. The other boy who was with him he described as his cousin and he used that term when referring to his relationship with the appellant. He said in his cross‑examination that he and RJ had been out the front of CJ’ premises for two or three minutes prior to the presence of the police. That obviously places both of them in the vicinity of where the tomahawk was ultimately found prior to the police observations of where the appellant ran to. In considering that evidence it is not without significance that other unidentified DNA was found on the tomahawk. I also note that police gave no evidence that when they observed the appellant he appeared to drop something in that area.

• JJ really could not explain why he had not told the police on the night what he claimed in his evidence he had observed about the appellant and the tomahawk earlier in the night. The evidence below was that JJ only came forward some 18 months after the incident to provide information implicating the appellant in the offence. The Magistrate referred to that in his reasons.

37. The circumstances as to how and why JJ made that statement implicating someone he considered to be like a cousin so long after the events was not explored in the evidence below. There may have been good forensic reasons why that issue was not explored and I must be careful not to speculate as to why the issue was not explored or speculate as to the reasons why JJ came forward so much later in time to provide the incriminating evidence. The delay in giving a statement implicating the appellant is a matter which I can have regard to in my view however in assessing the weight that I can give to the evidence of JJ and it causes me to have a real reservation in placing considerable weight on his evidence.

38. Ultimately for the reasons I have given I am unable to give much weight to the evidence of JJ. Having reached that view of his evidence, when I have regard to the whole of the prosecution circumstantial case, I consider that the evidence creates a very strong suspicion that it was the appellant who committed the offence. However, a very strong suspicion is no substitute for proof beyond reasonable doubt. For these reasons I am not satisfied that the prosecution had proved its case beyond reasonable doubt.

Orders

39. The appeal is allowed for those reasons and I set aside the conviction.

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Decision last updated: 19 February 2020