McLean v Adamson
[2025] ACTSC 43
•19 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McLean v Adamson |
Citation: | [2025] ACTSC 43 |
Hearing Date: | 4 February 2025 |
Decision Date: | 19 February 2025 |
Before: | Taylor J |
Decision: | (1) The appeal is dismissed. (2) The convictions for the charges of burglary (CAN2023/1060) and damage property (CAN2023/1414) are confirmed. |
Catchwords: | APPEAL – Appeal from Magistrates Court – Appeal against conviction – whether the verdict was unsafe and unsatisfactory having regard to the evidence – whether Magistrate erred regarding identification evidence – adequacy of directions – burglary – damage property – error identified - conviction confirmed – appeal dismissed |
Legislation Cited: | Criminal Code 2002 (ACT) ss 311, 321, 403(1) Evidence Act 2011 (ACT) s 116 Magistrates Court Act 1930 (ACT) divs 3.10.1, 3.10.2 Supreme Court Act 1933 (ACT) s 370 |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 Devenport v Garnon [2024] ACTSC 198 DPP v Campbell [2023] ACTSC 307 DPP v Holder [2022] ACTSC 336; 103 MVR 30 Festa v The Queen [2001] HCA 72; 208 CLR 593 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Ji v Stone [2023] ACTSC 54 Johnson v Giumelli [2003] ACTSC 58; 175 FLR 467 Lee v Lee [2019] HCA 28; 266 CLR 129 M v The Queen [1994] HCA 63; 181 CLR 487 R v Kirby [2000] NSWCCA 330 R v Shevlin [2013] ACTSC 86 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 90 ALJR 679 The Queen v Gerard Robert Baden-Clay [2016] HCA 35; 258 CLR 208 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Wolter v Broomhall [2023] ACTSC 331 |
Parties: | Andrew McLean ( Appellant) James Christian Adamson ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) S McLaughlin ( Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions | |
File Number: | SCA 30 of 2024 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 21 May 2024 Case Title: The Police v Andrew McLean Court File Numbers: CAN2023/1414 CAN2023/1060 |
TAYLOR J:
Introduction
1․The appellant, Andrew McLean, entered pleas of not guilty in the Magistrates Court in relation to each of the following charges:
Series 1: 15 November 2022
(a)CAN2023/1059: Burglary, contrary to s 311 of the Criminal Code 2002 (ACT).
(b)CAN2023/1412: Minor theft, contrary to s 321 of the Criminal Code.
(c)CAN2024/1914: Damage property, contrary to s 403(1) of the Criminal Code.
Series 2: 6 December 2022
(a)CAN2023/1060: Burglary, contrary to s 311 of the Criminal Code.
(b)CAN2023/1414: Damage property, contrary to s 403(1) of the Criminal Code.
2․The hearing in respect to both series commenced on 12 February 2024 and continued for two days in the Magistrates Court. On 21 May 2024, the Magistrate handed down his decision. The appellant was acquitted of the three charges from Series 1. The Magistrate found the appellant guilty of the burglary and damage property offences in Series 2.
3․A Notice of Appeal was filed on 18 June 2024 with respect to the findings of guilt in Series 2.
Grounds of appeal
4․The Notice of Appeal identified a single ground of appeal being that the Magistrate’s decision was unsafe and unsatisfactory having regard to the evidence.
5․Despite the Notice of Appeal referring to the appellant’s intention to rely on fresh evidence, the appellant informed the Court that he did not seek to adduce fresh evidence.
6․The appellant was self-represented at the appeal. Notwithstanding a direction for him to file and serve written submissions in advance of the appeal hearing, he did not do so. The appellant was offered the opportunity of further time within which he could prepare written submissions. The appellant declined that opportunity indicating that he was prepared to make oral submissions.
7․In those circumstances, the Court and the appellant were significantly assisted by Mr McLaughlin, who appeared for the respondent. Mr McLaughlin provided comprehensive written submissions in addition to generous and fair assistance during the course of the appeal hearing.
Background
The prosecution case
8․For the purposes of the appeal, both the appellant and the respondent agreed that the evidence and reasoning of the Magistrate with respect to Series 1 was irrelevant to a consideration of the appeal. I have proceeded on that basis.
9․The alleged offending occurred on 6 December 2022. The prosecution case was that the appellant entered the secure carpark of 19 Marcus Clark Street by tailing another vehicle. The appellant exited the carpark a short time later, changed his clothing and then re‑entered the carpark. Once inside, the appellant placed an unknown item over the lens of a security camera that was facing the complainant’s vehicle. The covering was removed shortly thereafter and the appellant exited the carpark. The prosecution alleged that while the camera was obscured, the appellant caused damage to the complainant’s vehicle.
10․The offending conduct was said to have occurred in the context of ‘bad blood’ between the appellant and the complainant. The ‘bad blood’ arose after the complainant, a real estate agent, was engaged by the appellant to sell a property on his behalf.
11․A search warrant was executed at the appellant’s residence on 26 January 2023. During the search, police located several items which the prosecution relied on to link the appellant to the burglary.
12․It was noted by the prosecutor that tendency or coincidence reasoning was not relied upon.
The proceedings before the Magistrate
13․On 12 February 2024, the hearing commenced before the Magistrate. The appellant was legally represented at the hearing.
The evidence
14․The prosecution case consisted of oral evidence from the complainant, Constable James Adamson and Constable Jason MacQueen. Closed-circuit television (CCTV) footage from the 19 Marcus Clarke Street premises, statements from numerous police officers, a quote from a panel beater, photographs of the damaged vehicle, photographs of items seized from the appellant’s residence and body-worn camera (BWC) footage recorded during the execution of the search warrant, were each tendered at the hearing.
Evidence of the complainant
15․The complainant gave evidence that in 2022, he was living at 19 Marcus Clarke Street and owned a Jaguar SVR F-Pace. He stated that his building had an underground carpark and that a swipe card was required to enter the carpark. Swipe cards were only issued to residents of the building.
16․The complainant explained that he first met the appellant roughly 17 years ago when he employed him as a personal trainer. More recently in August 2022, the complainant commenced acting as a real estate agent for the appellant. The complainant recalled the difficulties he encountered in acting for the appellant which culminated in a dispute concerning finances. The complainant gave evidence that from around October 2022, the appellant continually demanded “the rest of [his] money” despite the complainant having already transferred him the entirety of the relevant funds. The complainant recalled regularly receiving text messages from the appellant of this nature in late 2022.
17․The complainant stated that on 5 December 2022, he parked his vehicle in his designated carpark in the underground carpark at 19 Marcus Clarke Street.
18․On 6 December 2022, the complainant drove his vehicle to the carpark of the Belconnen Markets, unaware that it had been damaged. He first noticed the damage upon returning to his vehicle after exiting ‘Petbarn’. An unknown man was standing near his vehicle and the complainant asked him whether he had witnessed anything happen to the vehicle. The man replied that he had first observed the damage to the vehicle when the complainant was driving around searching for an empty parking space.
19․The complainant took his vehicle to a panel beater on 12 December 2022, where photographs of the vehicle were taken and a quote for repairs was obtained. A document recording the details of the quote formed part of the evidence. The complainant confirmed in reference to the photographs captured of the damage, that the damage was not present when he left his vehicle in the underground carpark at his residence on 5 November 2022.
20․The complainant was shown CCTV footage from 5 December 2022 and 6 December 2022 in which he identified his vehicle. The complainant confirmed that he had not given permission for his vehicle to be damaged, nor for the appellant to enter 19 Marcus Clark Street.
21․In cross-examination, the complainant confirmed that he had not noticed any damage to his vehicle on 6 December 2022 when he drove it from 19 Marcus Clarke Street to the Belconnen Markets. The complainant stated he had parked out the front of Petbarn and remained in the store for approximately five minutes before returning to his vehicle.
22․In re-examination, the complainant confirmed that he did not drive his vehicle in the period between 6 December 2022, when he became aware of the damage, and 12 December 2022, when he took the vehicle to a panel beater. He further stated that on 12 December 2022 he did not observe his vehicle to have any additional damage than what he had already observed on 6 December 2022.
Evidence of Constable Adamson
23․Constable Adamson was the Australian Federal Police informant. His evidence consisted of a tendered statement as well as oral evidence.
24․Constable Adamson gave evidence that he executed a search warrant at the appellant’s residence on 26 January 2023. Arising from this search, various items were photographed and seized. Constable Adamson identified a bundle of photographs as those taken by police of the seized items. The items photographed included a white bicycle, a black and blue bag, black and blue sneakers, black and blue shorts, a black baseball style cap, dark gloves, a blue hooded ‘spray jacket’ and a yellow and black high-visibility shirt. The constable noted that he made the decision to only photograph and not seize the appellant’s bicycle as he was aware that it was the appellant’s only mode of transport.
25․Constable Adamson’s BWC footage captured during the execution of the search warrant formed part of his evidence. In the footage, the appellant denied that the photograph of the man entering the carpark on a bicycle is him, although concedes that the person “could look like [him]”. The remainder of the recording did not substantively assist to determine the facts in issue at the hearing and for that reason I do not consider it necessary to summarise the footage in any further detail.
26․Constable Adamson also confirmed that he obtained CCTV footage from 19 Marcus Clarke Street from 5 and 6 December 2022. He stated that the footage was from multiple angles and that compilations had been produced. The CCTV footage was played to the Court as part of his evidence and it depicted two entries to the carpark by a person which the prosecution alleged was the appellant.
27․I will come to analyse the CCTV footage in greater detail as part of my determination, however in summary, the footage depicted a man riding a white bicycle into the underground carpark. The man is wearing black and purple ‘Adidas’ shorts, a blue hooded jacket, a black hat with white writing, black and blue shoes with white soles, and a blue and black backpack. The man’s face is visible throughout various portions of the footage. The man exited the carpark after a short period.
28․Approximately 19 minutes after the first man exited the carpark, the CCTV footage captured a person entering the underground carpark on foot. The person is wearing a yellow high-visibility shirt, dark pants, a blue hood, a medical style face mask, and black and blue shoes with a white sole. The person takes a wheelie bin from near the entrance of the carpark and wheels it towards where the complainant’s vehicle is parked. The footage captured the person placing something over a security camera such that the footage is entirely obscured. A different security camera captured the rear of the complainant’s vehicle through a glass door. The person can be seen moving around the left-hand side and rear of the vehicle. The person can be observed motioning with an arm or arms close to the rear bumper bar area of the vehicle. The covering over the CCTV camera is removed and the person can be observed exiting the carpark.
Evidence of Constable MacQueen
29․Constable MacQueen gave evidence that he performed some of the duties typically undertaken by the informant.
30․In cross-examination, Constable Adamson conceded that he did not make inquiries as to the number of items in circulation that matched the items obtained from the search warrant executed on 26 January 2023. Constable Adamson also conceded that he did not make inquiries with the residents of 19 Marcus Clarke Street as to whether any of them had given permission for a person to enter the building.
The Magistrate’s decision
31․The reasons of the Magistrate contained the standard directions required in a criminal trial, referencing R v Shevlin [2013] ACTSC 86 and Fleming v The Queen [1998] HCA 68; 197 CLR 250.
32․The Magistrate comprehensively summarised the evidence and made findings with respect to the evidence upon which he could rely.
33․The Magistrate rejected the appellant’s denial captured in the BWC footage that he was the individual entering the underground carpark on 6 December 2022 and that he knew nothing of the property located at his premises during the execution of the search warrant.
34․For the Series 2 offences, the Magistrate was satisfied he could accept and rely upon the complainant’s evidence. He accepted that at the time the Series 2 offences occurred, at least as far as the appellant was concerned, there was an outstanding issue with respect to money between the appellant and the complainant that had not been resolved. The Magistrate was further satisfied that the complainant’s vehicle was damaged prior to him entering the Petbarn carpark but that the complainant did not notice the damage until returning from the store.
35․The Magistrate properly identified the circumstantial nature of the prosecution case and directed himself accordingly. His Honour noted that the appellant could not be found guilty unless it was the only available, rational inference that could be drawn in the circumstances of the case, citing The Queen v Gerard Robert Baden-Clay [2016] HCA 35; 258 CLR 208.
36․The Magistrate identified the appellant as the person riding a bicycle into the underground carpark as depicted in the CCTV footage. His Honour further determined that the items located at the appellant’s residence did in fact belong to the appellant and was satisfied that the items matched those depicted in the CCTV footage from the carpark. His Honour was satisfied that it was the appellant wearing those items and riding his bicycle into the carpark, exiting the carpark and then re-entering the carpark at 19 Marcus Clarke Street on 6 December 2022.
37․His Honour was satisfied that there was no reasonable alternative hypothesis consistence with innocence as it was “simply not plausible in the circumstances having regard to all those matters which give rise to both time, place, and location that anyone else is responsible for the damage to the motor vehicle, and the only person responsible for that damage was the defendant”.
38․Accordingly, the Magistrate found the appellant guilty of the burglary and property damage offence committed 6 December 2022.
Determination
The standard of review
39․The Supreme Court’s jurisdiction and conduct on appeals against convictions on summary offences from the Magistrates Court is governed by divs 3.10.1 and 3.10.2 of the Magistrates Court Act 1930 (ACT) (the ‘MCA’), namely ss 207-219. This appeal is brought pursuant to ss 207-208 and is by way of re-hearing: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27. On a re-hearing, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”: s 214 of the MCA.
40․The standard of review to be applied in conviction appeals from the Magistrates Court brought under s 208 was clarified and confirmed in Alexander at [18]:
…[A]n appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.
41․As Baker J set out in Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37], where there is a complaint that the verdict is unreasonable, the Court must “ask itself whether it thinks that upon the whole of the evidence it was open to [the Tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; 181 CLR 487 at 49 [7] (per Mason CJ, Deane, Dawson and Toohey JJ). As Baker J further observed in Ji v Stone [2023] ACTSC 54 at [153] “there may be little difference in the practical outcomes between the two formulations” and whether “applying the test in M v The Queen or applying “rehearing” principles in the court’s determination of whether factual error is established, the Court will be required to perform its own assessment of the evidence, but in doing so, the Court must also take into account any advantage that the tribunal of fact had in the proceedings below”: at [154].
42․If error is established, the Court is obliged to make its own findings and to formulate its own reasoning based on those findings: Robinson Helicopter Company Inc v Mc Dermott [2016] HCA 22; 90 ALJR 679 at [43].
43․Any consideration of error in a Magistrate’s decision must take into account the pressures of the Magistrates Court: Alexander at [21]. Appeals by way of re-hearing require a “real review of the evidence given at first instance and the judge’s reasons for judgment and while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion”: Alexander at [13], citing Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551 [18] and Lee v Lee [2019] HCA 28; 266 CLR 129 at 148-149 [55]-[56]. The onus is on the appellant to identify and demonstrate error in the Magistrate’s findings: Alexander at [22].
Ground of appeal
The Magistrate’s verdicts were “unsafe and unsatisfactory”
44․The appellant relied on one ground of appeal, namely, that the findings of guilt were “unsafe and unsatisfactory”. I have approached the single ground, as the respondent did, as an assertion that the findings were unreasonable or cannot be supported having regard to the evidence: s 370 of the Supreme Court Act 1933 (ACT).
45․As the above extract from Alexander (at [40]) explains, an appellant does not need to establish that a finding was unreasonable to succeed. It is sufficient for a material legal, factual or discretionary error in the Magistrate’s decision to be established for an appellant to succeed.
46․The appellant was self-represented and is not legally qualified. While he did not raise any specific complaint as to the approach taken by the Magistrate to the identification of him as the person captured in the CCTV footage, the respondent fairly conceded that as part of an assessment of the ground of appeal asserted by the appellant, the prosecution case with respect to the identity of that person would necessarily require consideration. In the interests of ensuring that the merits of the appeal were properly identified and considered, notwithstanding the appellant’s unfamiliarity with the process, the identification evidence warranted consideration.
47․It is in the Magistrate’s approach to the identification evidence where legal error can be established.
Identification evidence
48․It is useful to recall that the prosecution relied on an inference that the person who first entered the carpark riding a bicycle on the driveway entrance and then exited the carpark soon after by the side door, was the same person who, minutes later, re-entered the carpark by tailgating a vehicle and went on to damage the complainant’s vehicle. The prosecution case was that the person captured entering the carpark riding a bicycle on the driveway, and who later entered the carpark on foot, was the appellant.
49․The prosecution case required consideration of several pieces of evidence upon which the identification of the appellant relied.
50․First, the CCTV footage which captured a person riding a bicycle into the carpark at 19 Marcus Clarke Street and a person moving around within the carpark. The face of the person could be observed in the footage. The footage was captured in daylight hours. The footage provided opportunity for the face of the person to be observed unobstructed, clearly and from a relatively close distance.
51․Next, the clothing worn by the person could be observed in the footage. Distinctive features of the clothing could be observed including markings on the person’s footwear, shorts and backpack. It can be observed that the person was wearing gloves.
52․Finally, items similar to those worn or used by the person that can be observed in the CCTV footage from 19 Marcus Clarke Street were located at the appellant’s residence during the execution of a search warrant weeks later including shoes, backpack, bicycle, shorts, gloves, high-visibility shirt and hooded jacket.
53․The prosecution submitted that it was the combined force of all the evidence that established beyond reasonable doubt that the person captured in the CCTV footage was the appellant. Critical to that determination was a finding that the person in the CCTV footage riding a bicycle into the carpark, was the appellant. For the purposes of that finding, the Magistrate was required to consider the appearance of the appellant during the proceedings and determine whether it was in fact the appellant captured in the footage from 6 December 2022.
54․The Magistrate considered all the evidence adduced by the prosecution to establish identity and made the following findings:
(i)The bicycle ridden by the person in the CCTV footage being a white ‘Giant’ bicycle with white hand grips and a blue water bottle hold on the main frame, had the same appearance as the bicycle located by police at the appellant’s residence;
(ii)The shoes worn by the person in the CCTV footage were the shoes seized by police, their appearance described as “cushioning blue tops around the black main body of the joggers, with three stripes which are slightly lighter in colour which have white soles”. The shoes in the CCTV footage and the shoes found at the appellant’s residence had distinctive black tape in the exact same location on the left and right sole of each shoe;
(iii)The blue and black backpack with the words “Fitness First” inscribed in white found at the appellant’s residence was “rare” having not been in circulation for ten years and had the exact same appearance as the backpack worn by the person in the CCTV footage;
(iv)As the person rode into the carpark, they can be observed on the CCTV footage to be wearing black shorts with the “trademark” Adidas three stripes in purple on the side and the word “Adidas” in a triangle on the left front leg. A pair of shorts with all of those features were found at the appellant’s residence by police;
(v)The person can be observed in the CCTV footage wearing a blue hooded spray jacket as they entered the carpark riding a bicycle. A blue hooded spray jacket was located at the appellant’s residence; and
(vi)Black gloves found at the appellant’s residence were like those observed to be worn by the person captured on the CCTV footage.
55․The Magistrate also recorded observations of the person when they are captured on the CCTV footage re-entering the carpark consistent with those items described above. The person can be observed wearing a “worker’s high-vis top, being yellow and the upper part from the chest and arms and shoulder and the sleeves in blue”. A high-visibility shirt, consistent with the shirt worn by the person when they are captured re-entering the carpark, was also located at the appellant’s residence.
56․Upon re-entry to the carpark, the Magistrate recorded that the person can be observed wearing a blue hood pulled over their head, consistent with the hood which can be observed extending from the blue jacket worn by the person riding the bicycle into the carpark.
57․The Magistrate went to lengths to describe the distinctive black taping on the white soles of the shoes worn by the person when entering the carpark on the bicycle. That same distinctive black taping was observed on the shoes of the person who re-entered the carpark and can be seen in the images of the shoes seized by police during the execution of the search warrant.
58․A determination that the person riding the bicycle into the carpark on 6 December 2022 was the appellant provided the foundation for the identity of the person who re-entered the carpark and damaged the complainant’s vehicle.
59․The appellant did not give evidence. In BWC footage admitted into evidence, the appellant was recorded telling police that the person in the CCTV footage “could be me, yeah”. The Magistrate referenced this evidence but did not attribute any significant weight to it in determining that the person in the CCTV footage was the appellant.
60․The Magistrate made a finding that the person captured in the CCTV footage on 6 December 2022 in the carpark at 19 Marcus Clarke Street was the appellant:
I am satisfied, having observed the defendant in court, and having observed the CCTV footage and camera image observed by me that it is the face of the defendant riding the bike as it enters the underground carpark.
…..
I’m satisfied having regard to the defendant riding his bike on the morning of 6 December 2022 at the first entry into the property, he is clearly identifiable as to both his facial features, the white bike which he concedes is his with the white handle grips and bottle holders as identified in Exhibit 13. I’m satisfied as to the items of clothing being the backpack with Fitness First written on it, the All Blacks shorts earlier identified by the defendant to having been given to him by Dan Carter, an All Black from New Zealand and the blue spray jacket and black cap worn by the defendant. I’m satisfied the shoes given their particular unique pattern, that is the blue and black have black tape attached to the heels of both shoes in a way which is significant and readily observable. They are shoes found at the defendant’s home and they are the shoes worn by the cyclist as he enters the property for the first time on 6 December 2022. I’m satisfied they are the shoes worn by a person who then re-enters the property after the cyclist exits wearing long trousers and a yellow and navy hi-vis shirt who collects a wheelie bin and can be seen moving about the premises in a suspicious manner. He has a mask and his face is, otherwise, not readily identifiable.
I’m satisfied that that is the defendant in relation to the connection between the strength of the evidence as to the clothing and the shoes worn by that person entering the premises on two occasions and leaving. And then dressing at another location and returning wearing the hi-vis yellow and blue shirt and long trousers. The shoes remain, however, the one constant and connector along with the shirt found in the defendant’s belongings on the rear deck of his residence. That is the hi-vis yellow shirt as opposed to the orange shirt.
61․The Magistrate directed himself at the outset of the hearing and there can be no criticism of the substance of those directions.
62․It is unfortunate that in assisting the Magistrate with closing submissions, neither the prosecutor nor the legal representative for the appellant reminded the Magistrate of the need for special caution with respect to the identification evidence.
63․In Wolter v Broomhall [2023] ACTSC 331, Baker J upheld an appeal which challenged the adequacy of reasons given by a Magistrate when identifying the appellant as the offender. The circumstances in Wolter were not dissimilar to those which confronted the Magistrate in this matter; the need to assess footage of an alleged offender and compare it with the appearance of the person charged with the offence.
64․The analysis in Wolter at [62], which I gratefully adopt, resulted in a conclusion that:
Accordingly, even though there is no equivalent to s 68C(2) [of the Supreme Court Act] in respect of decisions of the Magistrates Court, it remains “part of the Magistrate’s duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict”: Director of Public Prosecutions(NSW) v Wililo and Anor [2012] NSWSC 713; 222 A Crim R 106 at [56], citing Donges v Ratcliffe [1975] 1 NSWLR 501 at 507.
65․The circumstances in Wolter were analogous to those in Johnson v Giumelli [2003] ACTSC 58; 175 FLR 467, where Gray J held that a Magistrate was required to expressly warn themselves as to the dangers of identification evidence. Of significance, Gray J determined that the direction or warning that was “called for” required reference to the experience of courts generally with identification evidence as well as specific reference to factors which may undermine the reliability of the identification: Johnson at [12]–[13]. A general reference to an “appropriate direction” was determined to be inadequate.
66․In Wolter, the Magistrate referred to the need to warn himself “very, very carefully in the traditional way through the New South Wales Bench Book and reminding myself of decades of being concerned about the danger of identification”. While this direction was held to be sufficient, the reasons provided in support of the conclusion were found wanting.
67․As was the case in Wolter, in this matter the respondent conceded that the Magistrate was required to direct himself about the dangers of identifying the appellant by a comparison with the CCTV footage. As her Honour acknowledged in Wolter at [73], while s 116 of the Evidence Act2011 (ACT) applies to identification evidence adduced from a witness and not when the Court is making such a comparison, “the common law concerns about the reliability of such evidence which underlie s 116 apply with added force to such evidence: see R v Kirby [2000] NSWCCA 330 at [43]–[44] and [57] (Emphasis added).”
68․The conclusion of Baker J at [69] is applicable in this case, namely:
[I]t remains necessary for a Magistrate to refer to any directions or warnings that they have taken into account in reaching their decision. However, bearing in mind the absence of a provision that expressly requires that a warning or direction be recorded, and recognising that appropriate allowance should be made in respect of ex tempore judgments delivered by Magistrates with limited resources in a busy list, this may be done through demonstration within the Magistrate’s reasons for decision that the direction or warning has been taken into account.
69․In this matter, the Magistrate did not make any express or general reference to the need to approach the task of assessing the appearance of the appellant and comparing it to the appearance of the person on CCTV footage, with caution. The Magistrate did not refer to the experience of the courts generally with respect to the dangers of identification evidence or identify the factors influencing the reliability of the identification evidence he was called upon to assess.
70․As I have already observed, identification of the appellant as the person riding the bicycle into the carpark in the CCTV footage was critical to the prosecution case. That is not to say that the items located during the search warrant were not significant. Rather it is to acknowledge that the identification of the appellant through the CCTV footage was a substantial ‘strand in the cable’ of the circumstantial prosecution case.
71․The Magistrate’s reasons in the present case were not delivered ex tempore. However, as I observed in Devenport v Garnon [2024] ACTSC 198 at [87]:
Whether delivered immediately at the end of a hearing or with some time for further consideration, the reasons of the Magistrate must be read fairly, as a whole and not painstakingly picked over with an eye overly sensitive to error. Whether ex tempore reasons or reasons after further reflection, the pressures of the Magistrates Court remain: Poidevin v Coutts [2024] ACTSC 91 at [100]. [See similarly Wolter v Broomhall [2023] ACTSC 331 at [63] and Director of Public Prosecutions (DPP) (NSW) v Peckham [2022] NSWSC 713 at [23].]
72․The Magistrate very carefully and comprehensively considered the features of the items located during the search warrant that could be “matched up” to items observed on or with the person in the CCTV footage.
73․The foundation for his certainty that the appellant in the proceedings before him was the person on the bicycle whose face could be seen on the CCTV footage was not set out with the same detail.
74․While the in-court identification of the appellant in Wolter was the sole basis upon which the Magistrate determined him to be the offender, the analysis of the sufficiency of the Magistrate’s reasons is nonetheless apposite and underscores the necessity for a warning with respect to identification evidence and for the basis of a positive identification to be exposed in the reasons. As Baker J explained in Wolter at [78]:
[A]n in-court identification is unusual, because the “evidence” on which guilt is determined (that is, the appearance of the accused at the time of the hearing) is not contained in the court’s record of the proceedings. As a person’s appearance may change over time, where a Magistrate relies on an in-court identification, it is necessary for the Magistrate to briefly describe the accused’s appearance at the time of the hearing, so that there is a record of the evidence that has been acted on.
75․The CCTV footage allowed for physical features of the person depicted to be observed including that the person appeared to be a Caucasian male, with dark hair, a straight nose, angular bone structure and a solid, medium build.
76․In circumstances where a judicial officer is asked to make an assessment of an accused’s physical appearance in court in order to compare it with the physical appearance of a person captured in CCTV footage, the judicial officer must bear in mind the particular risks of in-court identification including that it is “usually performed in circumstances that strongly suggest the answer that is ultimately given”: Festa v The Queen [2001] HCA 72; 208 CLR 593 at 601 [18].
77․The Magistrate recorded that he was satisfied that the appellant was the person in the CCTV footage “having observed him in court” though did not record any specific features or similarities as contributing to his certainty. The Magistrate did not record the appellant’s appearance at the time of the hearing. The Magistrate did not identify aspects of the evidence which influenced the capacity for observations to be made such as the angle of the CCTV footage, the period of time that had elapsed since the footage was taken, that the person in the footage was moving when their face can be seen in the footage, that the period within which the person’s face can be observed is not particularly lengthy, that the CCTV footage was of good quality, that the person was relatively close to the camera when their face was revealed and that the imagery of the person was captured unobstructed.
78․As her Honour concluded in Wolter, an expression of the warning and the reasons for a positive identification need not be extensive. And while the CCTV footage and the in-court identification was not the sole basis upon which the appellant was identified as the person in the CCTV footage, it was a material finding in support of the prosecution case. It was necessary for the Magistrate to record the appellant’s appearance at the hearing to enable an appellate court to properly attend to its task and to explain how the warning with respect to identification evidence was given effect in the reasoning behind the determination that the appellant was the person in the CCTV footage.
79․In the circumstances of the case, the warning as to the danger of identification evidence and reasons for the Magistrate’s finding that it was the appellant whose face was revealed in the CCTV footage, was required. The Magistrate did not expressly state, or demonstrate through his reasoning, that he had taken into account the relevant direction or warning in assessing the identification evidence.
80․I am satisfied material legal error is established on that basis.
81․However, it does not follow that the appellant should be acquitted. This is an appeal by way of re-hearing. I must perform my own assessment of the evidence. In doing so, I address the error I have identified and bear in mind any advantage of the Magistrate.
82․The appellant argued the appeal in person. The respondent played the CCTV footage and paused the footage at moments where features of the appearance of the person in the CCTV footage could be readily observed. The CCTV footage was an exhibit in the proceedings before the Magistrate. I had opportunity to carefully assess the appearance of the appellant as he appeared before me. In circumstances where I am in the same position as the Magistrate with respect to the identification evidence, it was unnecessary for the matter to be remitted and determined according to law.
Has the prosecution established that the appellant is guilty beyond reasonable doubt?
83․For the reasons that follow, I am satisfied of the appellant’s guilt beyond reasonable doubt with respect to each of the offences.
Directions
84․In considering the case against the appellant, I have directed myself, as the Magistrate did, in accordance with the standard directions that apply to a criminal trial including in relation to the onus and standard of proof and an accused who did not give evidence: see DPP v Campbell [2023] ACTSC 307 at [55]-[78].
85․The prosecution case is entirely circumstantial and I direct myself accordingly: see Campbell at [63] and DPP v Holder [2022] ACTSC 336; 103 MVR 30 at [61]–[66]. The requirement for the prosecution to prove the guilt of the accused beyond reasonable doubt means that I must be satisfied not only that the evidence shows the accused is guilty, but that the conclusion of guilt is the only conclusion reasonably compatible with the circumstances established by the evidence.
86․I warn myself of the dangers of identification evidence, in particular an in-court identification. As the High Court in Festa cautioned, this kind of identification is “notoriously dangerous”. I bear in mind the special need for caution when comparing the appearance of the person depicted in the CCTV footage to the appearance of the appellant in court. The experience of the law is that mistakes concerning identity are made and can be easily made. Special attention or care is necessary because of the possibility that a judicial officer might be mistaken. The experience of criminal courts, over many years, both in Australia and overseas, has demonstrated that conclusions drawn about identification may turn out to be unreliable. There have been some notorious cases over the years in which identifications have been found to be wrong after innocent people have been convicted.
87․I have taken into account those factors which bear upon my capacity to make observations of the person in the CCTV footage such as the angle of the footage, the period over which the person can be observed, that the person is moving in the CCTV footage and the clarity of the footage.
The CCTV Footage
88․The CCTV footage is recorded from several perspectives of 19 Marcus Clarke Street. The CCTV footage is of good quality and in colour. The perspective which revealed the face of the person riding the bicycle is recorded from the driveway of the entrance to the carpark. The carpark was accessible through a security roller door and the person riding the bicycle gained access to the carpark by ‘tailgating’ a vehicle with swipe access. The footage taken from this perspective was recorded in daytime hours and is well lit. The rider’s face can be clearly observed. Facial features can be observed with a good degree of clarity.
89․The person in the CCTV footage can be readily observed riding a white bicycle with white handle grips and a blue water bottle holder on the main frame. The rider is wearing a blue jacket with a hood, black gloves, black and purples Adidas shorts, a black hat with white writing, a blue and black backpack with white writing, and dark Adidas shoes with black markings on what are otherwise white sides to the soles.
90․The period within which the person’s face is revealed in the footage allows for observations to be made of their facial features and the functionality of the CCTV footage includes ‘zooming’ in on the person’s face. The person can be identified as male presenting, medium solid build, fair skin, dark hair, straight nose, strong brow, clean shaven, average height and angular jaw.
91․Observations of the appellant in the proceedings included that he had a fair complexion and had a solid, medium sized build. The appellant was average height for a man. The appellant presented with short dark hair. He had a straight nose, angular jaw and was clean shaven. He had a heavyset brow and dark eyebrows.
92․The extent, quality and functionality of the CCTV footage provided a very good opportunity for careful assessment of the person entering the carpark at 19 Marcus Clarke St. Having had that opportunity, my observation of the appellant in the proceedings was that he bore striking physical similarity to person in the CCTV footage.
93․Even without reference to the items later located in the appellant’s residence, I am satisfied, taking into account the special need for caution and care, that the person I observed in the CCTV footage riding a bicycle down the driveway into the carpark of 19 Marcus Clarke Street was the appellant who appeared before me.
94․That finding is only strengthened by reference to the items I have already catalogued, located at the appellant’s residence, that also bore striking similarity to those items worn or used by the person in the CCTV footage.
95․Having carefully reviewed the evidence for myself, the Magistrate was correct to make the findings he made that are set out above at [54]. I am satisfied beyond reasonable doubt as to the accuracy of those findings based on my own assessment of the evidence.
Was the person who rode the bicycle into 19 Marcus Clarke Street, the person who re-entered the carpark minutes later on foot?
96․I am satisfied beyond reasonable doubt that the person who rode the bicycle into the 19 Marcus Clarke Street carpark (the first entry) is the same person who re-entered the carpark on foot through the roller door (the second entry) based on the following evidence.
97․First, the shoes seized by police from the appellant’s residence were identical in general appearance to the shoes worn by the person in the first entry and the person in the second entry; dark-coloured sneakers with a thick, bright white sole. Further, each shoe in the pair had black tape in the precise location where black marks, consistent with the size and shape of the tape, can be observed in the CCTV footage on the shoes worn by the person in the first and second entry. The black tape has the appearance of electrical tape and is plainly not part of the original design of shoe; the black tape had been added to the shoes. The Magistrate was correct when he observed that the consistency of the location of the black marks on the shoes worn by the person in the first entry and the second entry, with the black tape on the shoes seized at the appellant’s residence, was “significant and readily observable”.
98․Secondly, the CCTV footage captured the person in the second entry with a blue hood pulled up and over their head. The hood can be seen to extend up and out of the back of the high-visibility shirt and does not have the appearance of being connected to the shirt. The hood was not the same colour blue as the dark navy of the high-visibility shirt. The blue hood is consistent with the hooded blue jacket worn by the person in the first entry. In addition, the person in the second entry is wearing dark coloured gloves.
99․Finally, the timing of the entries. The first entry to the carpark occurred at 11:04am. The second entry occurred approximately 19 minutes later. This period provides opportunity for the person in the first entry to have changed clothing and stored the bicycle they rode in the first entry. On each entry, the person gained access to the carpark by ‘tailgating’ a vehicle with authorised access to the building. The person in the second entry had a body size and shape consistent with the body size and shape of the person in the first entry.
100․In addition to the shoes with the distinctive tape, the detail of which I have already recorded, dark-coloured gloves, a high-visibility shirt and a blue hooded jacket were found by police at the appellant’s residence.
101․The combined effect of all that evidence is satisfied beyond reasonable doubt that the person in the second entry is the same person in the first entry.
102․Having determined that the appellant was the person in the first entry, it follows that I am also satisfied beyond reasonable doubt that he was the person in the second entry.
Did the appellant cause damage to the complainant’s vehicle when he was in the 19 Marcus Clarke Street carpark on the second occasion?
103․The overwhelming force of the evidence is that I am satisfied beyond reasonable doubt that the appellant is responsible for the damage identified by the complainant as occurring after he parked his vehicle on 5 December 2022 in the 19 Marcus Clarke Street carpark and before he drove it out of that same carpark at about 1pm on 6 December 2022.
104․This aspect of the prosecution case was the focus of the appellant’s challenge to the capacity for the evidence to support a finding of guilt. The appellant submitted:
(i)That it was improbable for the complainant not to have noticed the damage to his vehicle when he drove it from 19 Marcus Clarke Street to the Belconnen Markets on 6 December 2022.
(ii)That the improbability of that evidence left open the possibility that any damage to the vehicle occurred when it was parked outside Petbarn at the Belconnen Markets;
(iii)This possibility was strengthened by the complainant’s evidence that when he returned to his vehicle a man was near his vehicle;
(iv)That the panel beater’s quote for the cost of the repair of damage to the vehicle tendered by the prosecution by consent in the hearing recorded damage not seen on the vehicle and was damage that would have rendered the vehicle incapable of being driven.
(v)That any action engaged in by the person in the CCTV footage when they can be observed at the back of the complainant’s vehicle making a striking motion toward the vehicle does not result in a conclusion that they in fact caused any damage to that area of the vehicle.
(vi)There were no images or footage of the vehicle exiting 19 Marcus Clarke Street after the damage allegedly occurred. Accordingly, the appellant contended, the damage recorded in the panel beater’s quote does not “match up” with the evidence.
(vii)The evidence cannot establish that the person near the vehicle caused any damage to it.
The complainant’s evidence and the damage to the vehicle
105․The complaint’s evidence was largely unchallenged. He described parking his relatively new vehicle and returning to it the next day. He described getting into the vehicle and driving it from Civic to the Belconnen Markets. The complainant said that he did not notice any damage to the vehicle in the carpark of 19 Marcus Clarke Street and that it was not until he returned to his vehicle after spending “five minutes” in Petbarn that he noticed the damage.
106․The appellant argued, effectively, that the complainant’s version was incredible because the damage recorded in the quote for repair would have either rendered the vehicle incapable of driving and/or would have been impossible not to notice.
107․The CCTV footage established two things relevant to the credibility of the complainant’s evidence. First, that when he approached his vehicle from the lift area, after the damage allegedly occurred, he approached it from the driver’s side of the vehicle; the most obvious and extensive damage as revealed in the photographs was on the passenger side of the vehicle. Secondly, the carpark area was dark, limiting the opportunity for the appellant to notice any damage on the vehicle at all.
108․The appellant was right to point out that there was no footage of the vehicle exiting the carpark. The appellant submitted that the absence of this evidence was fatal to the prosecution case. I do not agree.
109․I cannot speculate about evidence that was not before the Magistrate. The absence of evidence in this instance does not undermine the strength of the evidence that was before the Magistrate which demonstrated that any damage which occurred to the vehicle occurred after the complainant parked his vehicle on 5 December 2022 and before he drove the vehicle out of the carpark on 6 December 2022.
110․The appellant pointed to evidence from the complainant that after he spent five minutes in Petbarn he returned to his vehicle and a man was “standing near the car”.
111․The complainant described returning to his vehicle after minutes in Petbarn, noticing the damage to his vehicle, noticing a man “standing near the car” and asking that man if he had seen anything. No objection was taken to this part of the complainant’s evidence. The man the complainant described interacting with was not ever identified. The complainant said the man told him that he had noticed the damage earlier when the complainant was driving “up and down” in search of a carpark. This was the extent of their interaction.
112․The appellant pointed to the possibility of the vehicle being damaged during the time the appellant was in Petbarn and by inference that the unidentified man was responsible for the damage. The complainant did not describe any behaviour or conduct by the unidentified man consistent with him having caused the damaged. The nature of the damage that can be observed on the left-hand side of the vehicle in the photographs is inconsistent with an accidental damage; either by scraping as another vehicle parked next to it or some other accidental mechanism. The damage can be described as including consistent, rounded dents along almost the entire length of that side of the vehicle. Some of the dents were quite low on the vehicle, others higher up. Almost all the dents have a consistent shape and appear to have required force in their making.
113․The appellant’s contention that the evidence did not “match up”, placed significance on the quote that was tendered in support of the extent of the damage that was occasioned. The complainant was shown photographs of the vehicle taken on 12 December 2022 and identified that when describing the “damage” occasioned to his vehicle, he was referring to that which could be observed in those photographs. He gave evidence that he did not drive the vehicle between 6 December 2022 after he returned home from Petbarn and when the images were taken on 12 December 2022.
114․The complainant readily accepted that the damage to the back bumper bar in comparison to other damage on the vehicle was “minimal” explaining “you could tell that the plastic had been impacted, but not enough to kind of show a dint on the bumper bar, because it is soft and hollow.”
115․The appellant correctly submitted that the CCTV footage did not capture the person in the high-visibility shirt inflicting damage to the left-hand side of the vehicle or on the bonnet. The CCTV footage does capture the person bending down at the back of the vehicle making a repeated motion back and forth with an arm or arms. The action is entirely consistent with the person making repeated contact with the bumper bar area of the vehicle. The action has the appearance of a striking motion. The person can subsequently be observed moving toward the left side of the vehicle.
116․The appellant submitted that the panel beater’s quote established three matters fatal to the complainant’s reliability. The crux of his argument was that the damage reflected in the quote provided the foundation for the following findings:
(i)the extent of the damage recorded in the quote would have rendered the vehicle inoperable;
(ii)it was not possible for the complainant to have driven from 19 Marcus Clarke Street to Petbarn at the Belconnen Markets without noticing the damage to the vehicle; and
(iii)the extent of the damage reflected in the quote did not “match” the action of the person captured in the CCTV footage.
117․The panel beater’s quote was not the subject of any further evidence. The person who completed the quote was not called to give evidence. The complainant was not taken through the quote in any detail.
118․The panel beater’s quote was divided into the following parts:
(i)“Remove + Refit @ $33.50 per Hour”.
(ii)“Repair @ $ 33.50 per Hour”.
(iii)“Paint @ $58.40 per Hour”.
(iv)“Paint @ $80.00 per Hour”.
(v)“Miscellaneous”.
(vi)“Nett Parts”.
(vii)“New Parts”.
119․Under each heading was an itemised list. All of the items under (ii) were identified as “LH”. The appellant conceded, and common-sense dictated, that this was a refence to the left-hand side of the vehicle. All of the items under (iii) were identified as the left-hand side of the vehicle. All of the items under (vii) except four references to “rear bumper flare RH”, “x4 wheel valve caps”, “RHF guard flare” and “bonnet vent RH” were identified to be on the left-hand side of the vehicle.
120․The appellant submitted that references in the quote to items on the right-hand side of the vehicle as being damaged, as well as to other items such as head lamps, inner cabin trims and the rear fender distance sensor, was inconsistent with the prosecution case and rendered the complainant’s version improbable. The appellant’s submission attributed significance to the panel beater’s quote that was unsupported by evidence.
121․The weakness in the appellant’s approach was that panel beater’s quote did not record any item on the right-hand side as being “damaged” or indeed any item on the left-hand side as being “damaged”. The quote recorded what would require “repair”. The items listed as those for “repair” were all on the left-hand side of the vehicle. Items on the right-hand side of the vehicle were identified as requiring “remove and refit” consistent with the need, perhaps, for them to be taken off the vehicle for the purposes of repairing damage to the left-hand side of the vehicle. Any “New Parts” for the vehicle identified as being for the right-hand side of the vehicle, were part of a pair; that is where a right-hand side part was identified, both left and right-hand side parts were required to be “New Parts”.
122․The quote was tendered in support the complainant’s evidence that the vehicle had been damaged on 6 December 2022. The quote was not relied upon to provide precise particulars of the damage the prosecution alleged the appellant caused. The quote did not demonstrate the vehicle was incapable of being driven because of any damage occasioned to it on 6 December 20022 or establish that the complainant would have noticed any damage to the vehicle as he was driving it to Petbarn. Indeed, the complainant’s unchallenged evidence was that he did drive the vehicle after the prosecution alleged the damage occurred and that he did not notice the damage while he was driving the vehicle. In view of the circumstances of his entry to the vehicle and the nature of the damage that can be observed in the photographs, there was nothing inherently incredible about the complainant’s version.
123․The panel beater’s quote cannot stand for the propositions advanced by the appellant and does not undermine what the evidence is otherwise capable of establishing. To the extent it could, the panel beater’s quote supported the complainant’s evidence that there was damage to the left side of the vehicle when he took it for assessment on 12 December 2022 as revealed in the photographs.
Bad Blood
124․The prosecution evidence established that the complainant had been engaged by the appellant to sell a property. The property settled around October 2022. The complainant described disgruntlement on the appellant’s behalf as to the financial aspect of the settlement. The appellant submitted that the effect of this evidence was undermined by the failure to produce text messages the complainant described receiving from him, reflective of the “bad blood”.
125․The appellant made a submission from the bar table in the appeal that there was no “bad blood” between him and the complainant. This proposition was not put squarely to the complainant in the proceedings before the Magistrate. The complainant did accept in cross-examination that “sometimes” a delay could occur when “large sums of money” were transferred. It was not suggested to him that this is what had occurred in the deal he was involved in with the appellant. There was no evidence which contradicted the complainant’s version of events with respect to the appellant expressing his disquiet to the complainant about the finalisation of the real estate transaction.
126․Whether or not there was “bad blood” between the appellant and the complainant is not a matter to which I attach weight. The evidence of the real estate transaction in the lead up to December 2022 established a connection between the appellant and the complainant in the time prior to the offences occurring. I am satisfied that the evidence established that they were known to each other as of 6 December 2022.
Did the appellant intentionally cause damage to the complainant’s vehicle when he entered the carpark at 19 Marcus Clarke Street for the second time on 6 December 2022?
127․Yes. Having determined it was the appellant in the first and second entry to the carpark, I am also satisfied beyond reasonable doubt that the appellant intentionally caused damage to the complainant’s vehicle after he entered the carpark on the second occasion.
128․I am satisfied that this conclusion is the only reasonable inference that can be drawn when the whole of the evidence is considered as follows.
129․When the appellant re-entered the carpark for the second time, he made an effort to entirely conceal his identity. The evidence established that the appellant was in the carpark for around nine minutes or so. Having successfully entered without swipe card access for the second time, the appellant took a wheelie bin from inside the carpark and began to push it. Moments later the CCTV camera which captured his entry to the carpark was completely covered so that the footage went black.
130․The appellant can then be observed at the complainant’s vehicle. Specifically, he can be observed making an action down close to the bumper bar of the vehicle which I am satisfied was him hitting or striking the vehicle either with his hand or an item he had in his hand. The only conclusion to be drawn from the nature of the action is that it was deliberate conduct. I am satisfied this action was engaged in intentionally to damage the vehicle. I am satisfied the action did cause some damage to that part of the vehicle as described by the complainant.
131․Having damaged the back bumper bar, the appellant can be observed to move around to what was the left of the vehicle. No further observation of him at the vehicle can be made on the footage. The appellant clearly had the opportunity and was in the position to cause the damage revealed in the photographs of the left-hand side of the vehicle. Again, moments later, the covering on the CCTV camera was removed and the appellant reappeared on the CCTV footage with the wheelie bin, which he left in the carpark before exiting.
132․There is only one other person visible in the footage who was not dressed like the appellant and who did not approach the complainant’s vehicle in the footage. I am satisfied the evidence excluded that person as responsible for the damage to the complainant’s vehicle.
133․I accept the evidence from the complainant that when he parked his car on 5 December 2022 in the carpark at 19 Marcus Clarke Street, it was not damaged. I accept his evidence that he noticed the damage to the vehicle when he came out of Petbarn on 6 December 2022 after a short drive from Civic to Belconnen. I am satisfied that the evidence excluded the man who spoke to the complainant near his vehicle at Petbarn on 6 December 2022 as responsible for the damage to the complainant’s vehicle. The vehicle was not driven again until 12 December 2022. The vehicle was a near new vehicle having only recorded 3,011 kilometres by 12 December 2022. I am satisfied that the vehicle was not damaged accidentally or in the ordinary course of it being driven by the complainant.
Findings
134․I remind myself that in a circumstantial case such as this, all the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative.
135․This case is properly characterised as a “strand in the cable” case, it is only the elements of the offence itself which need to be proved beyond reasonable doubt. This reflects the capacity of a body of evidence to have a cumulative effect. It is not necessary for the various factual "strands" to be proved beyond reasonable doubt before they can contribute to the cumulative effect of a body of evidence. While each individual strand may be of insufficient strength to support the weight of the prosecution case, when bound together the whole may be of greater probative force than the sum of its parts.
136․Based on all the evidence that I have accepted, I am satisfied beyond reasonable doubt of the following findings:
(i)The complainant’s vehicle was not damaged before 6 December 2022. The complainant’s vehicle was damaged while it was parked in the carpark of 19 Marcus Clarke Street on 6 December 2022 prior to 1pm.
(ii)The appellant entered the carpark at 19 Marcus Clarke Street on two occasions on 6 December 2022 from around 11am when he was not authorised to do so.
(iii)When the appellant entered the carpark on the second occasion, he concealed his identity and covered the CCTV camera which captured his entry on both occasions.
(iv)The appellant entered the carpark at 19 Marcus Clarke Street with the intention of damaging a vehicle which belonged to someone else, namely the complainant.
(v)Consistent with that intention the appellant went to the complainant’s vehicle and deliberately caused damage to it.
(vi)The damage occasioned by the appellant was that described by the complainant and recorded in photographs of the vehicle taken on 12 December 2022 consisting of, at least, marks and dents on the left-hand side of the vehicle, marks and indents to the rear bumper bar, scratching and dents to the left-hand side wheels and hub caps as well as damage to the left-hand black rim on the front windshield.
(vii)Before exiting the carpark, the appellant uncovered the CCTV camera.
Conclusion
137․The elements of the offences were not in contention either before the Magistrate or in the appeal. The are attached at Annexure “A”. The findings I have made established each element of the offence of burglary contrary to s 311 of the Criminal Code and each element of the offence of damage property contrary to s 403(1) of the Criminal Code, beyond reasonable doubt. Accordingly, the appeal must be dismissed.
Orders
138․I make the following orders:
The appeal is dismissed.
The convictions for the charges of burglary (CAN2023/1060) and damage property (CAN2023/1414) are confirmed.
| I certify that the preceding one hundred and thirty-eight [138] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: S Zhang Date: 19.02.25 |
ANNEXURE A – ELEMENTS OF THE OFFENCE
Burglary – contrary to s 311 of the Criminal Code 2002 (ACT)
(a)The offender entered a building;
(b)The offender intended to enter the building;
(c)The offender was a trespasser;
(d)The offender was reckless as to whether their entry into the building was without permission; and
(e)At the time of entering the building, the offender intended to commit an offence that involved causing damage to property, and that is punishable by imprisonment for five years or longer.
Damaging property – contrary to s 403(1) of the Criminal Code 2002 (ACT)
(a)The offender engaged in conduct;
(b)The offender intended to engage in conduct;
(c)The offender’s conduct caused damage to property;
(d)The offender intended to cause damage to the property or any other property belonging to someone else;
(e)The damaged property belonged to someone else; and
(f)The offender was reckless as to whether the property belonged to someone else.
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