Eddy Cervantes v The Queen
[2013] VSCA 334
•22 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0057
| EDDY CERVANTES | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | NEAVE, REDLICH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 November 2013 |
| DATE OF JUDGMENT | 22 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 334 |
| JUDGMENT APPEALED FROM | R v Cervantes (Unreported, County Court of Victoria, Judge Hannan, 25 March 2013) |
---
CRIMINAL LAW — Election — Application for leave to appeal against conviction for armed robbery — Identification evidence — Argued verdict unsafe because victim of robbery conceded that the photo board identification was ‘a bit of a guess’ — Evidence as a whole showed witness confident of identification — Verdict open to jury — Libke v The Queen (2007) 230 CLR 559 — Application refused — No point of principle.
---
| Appearances: | Counsel | Solicitors |
| The Applicant appeared in Person | ||
| For the Respondent | Ms D Piekusis | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
On 15 March 2013, the applicant, Eddy Cervantes, was found guilty by a County Court jury of one charge of armed robbery.[1] Following the refusal of leave to appeal against the conviction by a single judge of this Court,[2] he elected to have his application reheard. His sole proposed ground of appeal is that it was not open to the jury to return a verdict of guilty.
[1]R v Cervantes (Unreported, County Court of Victoria, Judge Hannan, date of sentence 25 March 2013).
[2]Cervantes v The Queen (Unreported, Supreme Court of Victoria, Court of Appeal, Justice Buchannan, 4 September 2013).
The evidence
The alleged offence occurred at about 5.15 pm on 19 September 2011, when a man entered a confectionery shop on Puckle Street, Moonee Ponds, and approached the shop assistant, Ms Erin Coleman, from behind, saying ‘this is a robbery’. In her evidence in chief, Ms Coleman said that she had then ‘turned around and got a good look at his face’. The man grabbed Ms Coleman’s arm, dragged her to the cash register and asked her to open it about three times, but she refused to do so. When she told him she would not open the register, she was ‘looking at his face, the upper part of him’. The offender then produced a knife from the waistband of his jeans and said that if she didn’t want to get hurt she should open the register. Ms Coleman opened the cash register and the man removed $590. She said that while this was occurring she had just focused ‘on his face’. He pushed her out of the way and took the money out of the register. The offender asked Ms Coleman to open the safe and she said she could not. He kneeled down and unsuccessfully tried to open it himself. He then left the shop, telling her to stay out the back.
After the robbery Ms Coleman described the offender to the police as about 30 years old, ‘possibly African, really dark skin’ and of medium build with brown eyes and ‘freckles just underneath his eyes’. She told the police he was wearing a ‘black hoodie, black jeans and possibly white shoes’. His hair was in ‘black dreadlock just beneath the ears’.
On 8 November 2013 Ms Coleman was shown a photo board by the police, containing images of 12 men. Detective Senior Constable Kylie Smart gave evidence that when Ms Coleman was given the board Ms Smart had read from a pro forma card which told the witness that she should not conclude or guess that the images contained the picture of the person who committed the crime and that she was not obliged to identify anyone. Ms Coleman had identified the applicant as the man who had robbed her, by pointing to image number 5 (the image of the applicant), saying ‘yep’ and then marking the image and signing the board. In her evidence, Ms Coleman agreed with this account of the identification process.
At the trial the Crown tendered a short extract of CCTV footage showing a dark skinned man, wearing a black top and trousers, which was taken by cameras located in the Moonee Ponds Central shopping centre at some time on 19 September. Two still images extracted from CCTV footage taken by a camera located at the nearby Puckle Street branch of the National Australia Bank at about 5.14 pm on the day of the robbery were also tendered. These showed a man walking along the street, wearing a black top (possibly a hoodie) and dark jeans. A white stripe could be observed on the side of the man’s jeans in two images, but the man’s face was barely visible.
In cross-examination Ms Coleman was asked if she had had a good look at the offender’s pants and she said, ‘just the top area of the pants, yep’. She said that the offender was not wearing gloves. At the committal she was shown the video footage of a man wearing trousers with a white stripe down the side which was said to ‘marry up’ with the time the incident occurred. She was then asked whether she would have noticed a white stripe on the offender’s jeans and she said she would have done, but later said she must have been mistaken. In cross-examination at the trial it was put to her that she had conceded at the committal that she must have been mistaken in describing the offender as wearing black trousers without a stripe on them. She said she thought that her description of the clothing worn by the offender was correct when she gave it to the police.
There was then the following cross-examination about her photo board identification:
COUNSEL: You see what I am suggesting to you is that when you see the board, you do the best you can, but you have a bit of a guess, don’t you?
--- Yeah
COUNSEL: And, indeed, you’re doing the best you can , but it’s possible that you’ve made a mistake, isn’t it, just like you did with the jeans?
---I don’t think so because I got a pretty good look at his face.
COUNSEL: It’s possible though, isn’t it?
---I don’t think so.
In re-examination Ms Coleman reiterated that while the man was in the shop she had focused on the front of his body from the waist up and said that her approach when she looked at the photo board was, ‘I felt like that was the person. I just had images going through my head of what happened and that’s the face I saw’.
Ms Coleman’s identification was the only evidence which suggested that the applicant was the offender. The police did not recover the knife or the clothing allegedly worn by the applicant at the time of the offence and no fingerprints were recovered from the cash register. The applicant declined to be interviewed. He did not lead any evidence at the trial.
Because of the poor quality of the images, the trial judge instructed the jury that they were not entitled to use the CCTV footage as a basis upon which they could identify the accused man as the offender, although they could use it to assist them in assessing Ms Coleman’s evidence. The trial judge made it clear to the jury that they could not find the applicant guilty unless they accepted the identification evidence beyond reasonable doubt. Her Honour gave an appropriate warning about the pitfalls in relying on identification evidence, and the need to take care in considering that evidence.[3] In his proposed grounds of appeal the applicant does not contend that the warning was inadequate.
[3]See Domican v The Queen (1992) 173 CLR 555.
Submissions
The applicant appeared before the Court unrepresented and made no additional submissions beyond his written submissions. In his written submissions, the applicant argues that no reasonable jury could have found the applicant guilty, because Ms Coleman had agreed when defence counsel put it to her that the identification was ‘a bit of a guess’ and had conceded she had made a mistake in giving evidence that the pants worn by the offender were entirely black.
In his written submissions, the applicant also relied on other factors to impugn the identification evidence. Ms Coleman had:
·described the offender as ‘possibly African, really dark skin’ whereas Mr Cervantes was Peruvian and the photograph she selected did not show a man with ‘really dark skin’;
·said that the offender had ‘dreadlocks’ whereas the selected photograph showed a man with braids, not dreadlocks;
·described the offender as ‘possibly African’ while the photo board showed images of men from a range of ethnicities, including men of Micronesian, Melanesian, African and middle-eastern appearance;
·said that she was ‘freaking out a bit’ when the offence was committed and was ‘still out of it a bit’ when she selected the image.
The applicant submitted that because of the potential dangers of identification evidence,[4] the weaknesses in Ms Coleman’s evidence, and the absence of any other evidence supporting the Crown case (including evidence of opportunity) the jury verdict was unsafe.
[4]Alexander v The Queen (1981) 145 CLR 395, 426 (Mason J).
Conclusion
In deciding whether a jury verdict must be set aside as unsafe the question is whether the jury must have entertained a doubt about the applicant’s guilt, not whether they might have entertained a doubt. As Hayne J observed in Libke v The Queen,[5] in relation to a claim that a jury verdict should be set aside on this ground:
… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt ... It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[6]
[5](2007) 230 CLR 559.
[6]Ibid 596 [113]. See also R v Klamo (2008) 18 VR 644; M v The Queen (1994) 181 CLR 487.
In my opinion, it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt. Although Ms Coleman initially agreed with defence counsel that ‘you have a bit of a guess’, that answer must be read in the context of the whole of her evidence. Immediately after she gave that answer she said that she did not think she had made a mistake, had a good look at the offender’s face and did not think it was possible that she was mistaken. In my opinion she gave clear and unequivocal evidence identifying the applicant as the offender,[7] having had a reasonable period of time to observe him when he took her by the arm, led her to the cash register, went into the back room with her and kneeled down while trying to open the safe. Although she said in cross-examination that the time from the offender’s entry to his departure ‘felt not even ten minutes’ she was firm in her evidence that she had focused on his face during the whole period while the robbery was occurring.
[7]As required by Pitkinv The Queen (1995) 80 A Crim R 302.
The applicant’s reliance on the presence of the white stripe on the jeans of the man observed on CCTV depended on the jury accepting the CCTV footage showed the actual offender after the robbery had occurred. This, in turn, depended on the fact that the time on the two still photographs was 5.14 pm and 15 seconds and Ms Coleman said that the robbery occurred around 5.15 pm. In his closing address defence counsel relied on the fact that Ms Coleman had not observed a white stripe on the accused man’s jeans and had admitted she had made a mistake about its presence. This was said to cast doubt on her photo board identification.
Although the Crown did not address this issue, it may be observed that the jury might not have accepted that the CCTV footage was actually taken after the robbery occurred, or might not have been satisfied that the man shown was the actual offender, as opposed to some other passer-by. If that were the case, the jury might have considered that the ‘mistake’ conceded by Ms Coleman when she was shown the footage of a man wearing pants with a white stripe, said to be the actual offender, was not necessarily a mistake at all.
Regardless of that issue, Ms Coleman said that she had focused on the upper part of the offender’s body while the robbery was occurring. In light of that evidence, it would have been open to the jury to accept that she had simply not noticed a stripe, even if the actual offender was wearing pants with such a stripe upon them.
Having examined the photo board, I do not consider that there is any substance in the matters relied upon by the applicant to impugn the photo board identification. The board shows 12 brown skinned men, with skin tones varying from light brown to quite dark. The majority of the photographs, including that of the man said to be the applicant, show men with a dark skin tone. The notion that the facial characteristics of all Africans are the same is clearly false, since such characteristics vary considerably in different parts of Africa. Be that as it may, the witness selected the applicant, although he was not as dark as a number of the other men on the board and unlike several of them did not have facial features which are commonly (though probably incorrectly) often perceived as typically ‘African’. Since many Peruvians have some African heritage, there is nothing in the point that the
applicant is, in fact, Peruvian. Further, it was not argued at the trial that the applicant could not have been the offender because he was Peruvian and the offender had been described as possibly African.
I do not accept that the applicant’s argument that the identification was unsafe because some of the photographs appeared to depict men who were obviously Melanesian or Micronesian, rather than ‘possibly African’. Nor do I accept that there is any significance in the fact the witness selected a man with ‘braids’ although she had described the offender as having ‘dreadlocks’. All of the men shown have similar hair styles and the distinction between plaited and dreadlocked hair is not an obvious one.
As I have said, the applicant did not allege that the identification process was conducted improperly or that the jury warning relating to the use of identification evidence was defective. Although it is trite law that identification evidence must be used with particular care I do not consider that the jury must have had a doubt about the applicant’s guilt, because of deficiencies in the identification evidence. For these reasons I would refuse the application for leave to appeal.
REDLICH JA:
I agree.
WEINBERG JA:
I also agree.
- - -
0
2
0