R v C, CJ (No 2) - [2019] SADC 21

District Court of South Australia
(Criminal)
R v C, CJ (NO 2)
[2019] SADC 21
Reasons for Ruling of His Honour Judge Beazley (ex tempore)
30 August 2018
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
CRIMINAL LAW - PROCEDURE
Submission by accused that there is no case to answer with respect to the respective counts of Aggravated Serious Criminal Trespass in A Place of Residence, and of Aggravated Robbery - each count relates to the same event at residential premises at Ridleyton at about 2.00am on 18 January 2017 - police alerted about a home invasion - the two officers tasked to attend the Ridleyton premises and the victim of the offences were unable to positively identify the accused as the person who committed the home invasion - two other officers were tasked to check streets in the Brompton area it being the general direction in which the alleged offender was seen to be walking - they observed the accused near the front door of premises in Brompton - they suspected the accused had committed the offence at Ridleyton - they seized some property including a 'beanie', a piece of cloth said to be a mask, cash in the sum of $170 and some black gloves - question as to whether the victim was asked to identify those items by the police - the prosecution case was circumstantial in nature - whether there is evidence to identify the accused as the offender which, if accepted, could prove that issue beyond reasonable doubt - the question to be answered is whether on the assumption that all the evidence of that primary fact considered at its strongest, from the point of view of the case for the prosecution, is accurate and on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond a reasonable doubt of the guilt of the accused - the question of recognition or identification of an accused by clothing or other chattels discussed.
Held: No case to answer on either of the two counts. The prosecution evidence is not capable of supporting a conclusion of the guilt of the accused beyond reasonable doubt on either of the two counts.
Criminal Law Consolidation Act 1935 (SA) ss 137 and 170, referred to.
R v Bilick & Starke (1984) 36 SASR 321; R v Brady & Smythe (2005) 92 SASR 135; R v Zainudin (2012) 115 SASR 165; Plomp v The Queen (1963) 110 CLR 234; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Fazio (1997) 69 SASR 54; George v Rockett (1990) 170 CLR 104; Allan v The Queen [2017] NSWCCA 6; Police v Williams [2014] SASC 177; Strauss v The Police [2013] SASC 3; R v Rowbotham [1992] QCA 215; Domican v The Queen (1992) 173 CLR 555; R v Lowe (1997) 98 A Crim R 300; Murrell v The Queen [2014] VSCA 334; Clune v The Queen (No 2) [1996] 1 VR 1; R v Ireland [1999] NTSC 25; Alexander v The Queen (1981) 145 CLR 395; Thompson & Wran v The Queen (1968) 117 CLR 313; R v Quist [2017] SASCFC 37; Festa v The Queen (2001) 208 CLR 593; R v Callaghan [2001] VSCA 209; Evans v The Queen [2006] NSWCCA 277; Papakosmas v The Queen [1999] HCA 37; Pitkin v The Queen (1995) 69 ALJR 612; R v Doney [1990] HCA 51, considered.

R v C, CJ (NO 2)
[2019] SADC 21
Introduction

The accused is charged on Information with one count of Aggravated Serious Criminal Trespass in a Place of Residence,[1] and one count of Aggravated Robbery.[2]
[1] Section 170 of the Criminal Law Consolidation Act1935 (SA) (the CLCA).
[2] Section 137 of the CLCA.
At the close of the prosecution case on 30 August 2018, a submission of no case to answer was made by the accused in respect of both counts on the Information. That submission involved some difficult issues of law relating to the identification or recognition of an accused person from clothing or other chattels.[3]
[3] Allan v The Queen [2017] NSWCCA 6; Murrell v The Queen [2014] VSCA 334; R v Rowbotham [1992] QCA 215 and R v Lowe (1997) 98 A Crim R 300.
I provided some brief ex tempore reasons for ruling that there was no case to answer on either count, and to explain the order which I would make in due course. I intimated that if the parties requested more detailed reasons then I would provide them. The accused has sought detailed reasons despite his acquittal of the two counts. I accordingly provide these more extensive reasons. I make it plain that each of the five witnesses who gave evidence before me on behalf of the prosecution were honest witnesses doing their best to recall the circumstances of the events which had occurred on 18 January 2017.
One of the difficulties exposed in this case is that which has been described as the ‘displacement effect’, referred to in Alexander v The Queen (1981) 145 CLR 395 at 409, and, more recently in Strauss v The Police [2013] SASC 3. This may occur where a witness’ recollection of a suspect’s appearance may have merged with a subsequent sighting of an accused.
The investigating officer made very proper concessions about some of the difficulties which occurred in the investigation on the night of the offences. These included the recording of times; the driving of the victim to the premises where the accused had been detained; and whether various items should have been forensically tested. While the reliability of some of the witnesses’ evidence may well have played an important part in the trial, in consequence of those difficulties in the investigation of the events of that night, that question of reliability can be put to one side for the purposes of the no case submission.
The principal issue identified in the submission of no case to answer was that directed to the question of proof in the difficult area of identification, or in this case recognition. It involves a detailed consideration of the transcript and exhibits to decide the appropriate inferences to be drawn. I have conducted that detailed consideration. I do not propose to detail that evidence in these reasons, but will simply refer to some of the significant issues.
In Strauss v The Police,[4] Peek J noted that:
Identification cases are almost idiosyncratic in the variety of peculiar dangers that they present. One such danger is reliance upon demeanour, particularly in a case where the crime has undoubtedly been committed, and the victim has a legitimate grievance against [whomsoever was the] assailant, [as] other witnesses sympathise with the victim and want to be seen helping, [thus] leading the witnesses to honestly, and perhaps fervently, believe that the man on trial is the assailant.
[4] [2013] SASC 3.
During this trial, there was no dispute that a male person had entered the home of the victim, to whom I will refer as B, at Ridleyton on the 18^th of January 2017 as a trespasser. That male person then threatened B with a knife in consequence of which a sum of cash, later said to be $170, was taken by the offender.[5] At issue was whether the prosecution had proved beyond a reasonable doubt that that person was the accused.
[5] The victim had initially told the police that between $100 and $150 had been taken.
This question was made even more complex because of the ‘identification’ at separate times. The victim B could only give evidence of the offender in the restricted lighting in his home. Two police officers could only give evidence of a person walking across the road for about three seconds, from about 40m with some street lighting. Did that evidence establish that it was the same person, who committed the offences? Two other police could only give evidence of locating the accused in the suburb of Brompton; as to his demeanour; and as to items located on his person or nearby.
The principles of law in respect of a no case submission
The prosecution case against the accused in respect of both counts is based upon circumstantial evidence. The principles dictating whether there is a case to answer when an element of the charge, in this case the identification of the accused as the offender, is sought to be proved by circumstantial evidence, was set out in R v Bilick & Starke (1984) 36 SASR 321. King CJ said, at [337]:
The case against the appellant Starke was circumstantial in character. The same test is to be applied in deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus, and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind.
Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: on the assumption that all the evidence of primary fact considered at its strongest, from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing, in the mind of a reasonable person, satisfaction, beyond reasonable doubt, of the guilt of the accused? That, it seems to me, was the question which the learned trial judge was required to answer in deciding on the submission of a no case to answer.
Subsequently in Questions of Law on Acquittal (No 2 of 1993) (1993) 61 SASR 1 King CJ restated those principles as follows:
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the Judge might consider such evidence to be. If the case depends on circumstantial evidence and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable … there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt – could not exclude all hypothesis consistent with innocence.
Those principles were affirmed by the Court of Criminal Appeal in the case of R v Brady & Smythe (2005) 92 SASR 135. Duggan J, on behalf of the Court, said at pp138-139 that:
It is fundamental to a trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction, then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of the law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts…The question at this stage of the case is whether the prosecution evidence is capable of supporting a conclusion of guilt beyond reasonable doubt, and that’s a question of law.
As is plain, the finding of no case to answer is a matter of law. It is not merely a finding that a verdict of guilty would be unsafe or unsatisfactory. See R v Doney [1990] HCA 51.
The principles of law as to identification by clothing or other items.
In the subject case, the prosecution case is based upon the observations of the offender by the victim; cash taken from the victim; observations of the offender’s clothing by the victim; observations by the police of a person near to the victim’s home; and observations by other police of the accused.
In Allan v The Queen (supra) the Court of Appeal (NSW) said:
Such objects therefore count as identification evidence. In support of this proposition, the applicant referred to R v Clout (1995) 41 NSWLR 312 and R v Lowe (1997) 98 A Crim R 300. In Clout, Kirby ACJ said that:
The fact that the identifying link between the accused and the crime is not an aspect of human physiognomy can scarcely be determinative. In several cases, objects (such as clothing) have been vital to establishing identification of the accused as the offender … Similarly warnings had been required in the identification of objects as those used in the commission of an offence …
This decision was affirmed in Lowe, with Hunt CJ at CL remarking:
I see no distinction in principle between visual, voice and object identification. I am satisfied that a warning as to the danger of convicting should be given where the identification relates to an inanimate object, such as the clothing worn by the offender or a weapon used by him in the commission of the crime, and where that evidence represents a significant part of the proof of the guilt of the accused. Just as with voice identification, object identification is not a distinct category of evidence.
Likewise in R v Whalen (2003) 56 NSWLR 454 ; [2003] NSWCCA 59, the Court stated at [46]–[47]:
The circumstance that it concerned the identity of an inanimate object, rather than a person, does not mean that it cannot be identification evidence: see R v Clout (1995) 41 NSWLR 312; Crupi (1995) 86 A Crim R 299; Theos (1996) 89 A Crim R 486. Furthermore, these cases indicate that the circumstance that the evidence seeks to establish identity by virtue of similarity of features, rather than outright identification, is also not determinative of the question. However, in my opinion, these cases also indicate that in order for the evidence in question to be identification evidence, reliance on identification or similarity of features must be a ‘significant part’ of what the Crown relies on in order to establish the identity of the person or object in question. In this case, in my opinion there was no question of direct evidence of identification, and the similarity of features was not a significant part of what was relied on. What was relied on, as indicated above, was the general consistency of the appearance of the vehicles observed with Whalen’s vehicle, coupled with the telephone intercepts, the scarcity of other vehicles, the remoteness of the area, and the visits to Site 1.
There is a distinction between the identification of an object on the one hand and forensic evidence on the other. As Whalen makes clear, forensic evidence links an accused to an object; whereas ‘identification’ evidence involves an assertion that the accused was present at or near a place where the offence was committed.
In the subject case, there was a dearth of forensic evidence. The prosecution case is based upon the evidence of the victim B and the first two police officers, that clothing or other items or at least one of them were observed at or near B’s residence. In addition, there was evidence given by two other police officers who detained the accused, as to items found by them, and the demeanour of the accused.
In R v Quist [2017] SASCFC 37 at [41]-[43] the Court of Criminal Appeal noted that evidence given by a witness that a male person was in close proximity of an offence is of itself of little or no assistance. Accordingly, there is a need to assess the evidence of those witnesses carefully.
In a different context, in Pitkin v The Queen,[6] Deane, Toohey and McHugh JJ stated:
Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender.
[6] (1995) 69 ALJR 612, 615 B (col 1).
In Strauss v The Police (supra) Peek J also referred to the dangers of reliance upon demeanour of a suspect. He set out in detail, concerns expressed by Courts as to conduct which is classified as ‘suggestible’. In the subject case, there is a concern that in being driven by the police to the place where the accused was being detained the victim may think that the police must have grounds to believe that the accused had committed the offences. Therefore, this conduct may well affect, adversely, his memory.
In the subject case, the victim conceded that while he told police at an earlier time that some cash had been taken by the offender, he had later been told by them that ‘the suspect’ was found with $170 on his person.[7] He unwittingly appears to have adopted that sum in his evidence. The cash had not been marked, however the coincidence of the same $170 would have been a significant factor. The concession by the victim put that ‘coincidence’ to rest.
[7] T P [63]-[64].
Peek J also noted that it is well established that memory is not only affected by post-event information but is also affected by the subconscious psychological need to eliminate uncertainties and inconsistencies. In effect, memories are internally distorted so that ‘it all makes sense’.[8] Of course, an obvious example of that process is that doubts that a witness originally has as to identification ‘may be resolved by another [witness’] confidence’.[9] Hence the great dangers of memory contamination through witnesses talking to each other and the commensurate importance of police taking full statements from each identification witness immediately (and obviously separately).
[8] Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 15.
[9] Heydon, 'Evidence of Identification: The Law’ (1982) 14(4) Australian Journal of Forensic Sciences 134, 138; Roberts, ‘The problem of mistaken identification: Some observations on process’ (2004) 8 International Journal of Evidence & Proof 100, 104.
I have already briefly referred to the ‘displacement effect’, expressed by his Honour as follows:
The displacement effect may occur in a variety of circumstances but the courts have most often addressed the displacement effect in the context of stressing that a “memory [of a person’s features may be] altered by later experiences such as the perusal of photographs or identikit pictures”, reading descriptions of the suspect or other persons or viewing newspaper sketches of the suspect. It is well recognised that after a photographic identification process, the witness’ recollection of the culprit and recollection of the photograph are likely to be so merged that the two can no longer be separated.
In Alexander v The Queen, Stephen J said:
Lastly, there is the “displacement” effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.
Synopsis of the evidence

The prosecution called five witnesses at the trial.
They were respectively the victim B; the two police officers who attended at his home within minutes of the report by B, respectively Constable Z, and Constable W; and the two other police officers, Brevet Sergeant M1, and Constable M2, who had been tasked to search for males acting suspiciously in the neighbouring suburb of Brompton. The latter two officers had located the accused in the front garden of a house at Coglin Street Brompton, soon after they received the task.
The prosecution tendered a statement of Senior Constable L who deposed to his attendance with a police dog and a list of agreed facts. Neither of those documents assisted the prosecution case save for the confirmation of times otherwise provided by the witnesses who gave oral evidence.
At the commencement of the trial counsel for the accused explained that there was no dispute that B was confronted in his home and that he handed over some money to an offender. He identified the issues for the jury being those of ‘recognition’ and that of the sufficiency of the police investigation as to whether that person was the accused.
The prosecution case
The case against the accused was entirely circumstantial, being the combination of the following:
1.   The description of the offender by victim B. It was limited to him having a face mask and dark clothing together with what might be described as a ‘beanie’, ‘gloves’ and a ‘knife’. In addition, he alleged that some money had been given to the offender.
2.   The combined evidence of the first two police officers Constables Z and W that while driving to the victim’s house they had observed a male person 40m away walking across the road from the general direction of the victim’s house for about three seconds.
3.   That the accused was located by Brevet Sergeant M1 and Constable M2 in the front yard of a house at Coglin Street at Brompton. The accused had given them an account that he was an acquaintance of the occupier of the house. The police were not able to determine whether any one was present in the house at the time.
4.   The suspicion of the police officers was aroused by his demeanour. The police had searched the accused and found $170 in cash together with a black cloth which had a white skull on it. They assumed that it might be a ‘face mask’.
5.   The police officer, M1, searched the general area in which the accused was first seen. He found amongst various items, which had cobwebs over them, some items which he thought were free of dust or cobwebs, namely a pair of gloves, a beanie, a torch and a pair of glasses.
Difficulties involving the items found by the police
There is some difficulty in respect of the admissibility of the items located in the general area of the accused. Counsel for the prosecution had purported to tender them on the basis that they were ‘items of the type used by a trespasser’.
In Murrell v The Queen[10] the admissibility of such items was considered by the Court of Appeal (Vic).
[10] [2014] VSCA 334.
By contrast with this subject case, in Murrell’s case, some of the items contained the accused’s DNA.
It said at [62]:
Evidence of items that could have been used in the commission of the crime charged, and which are found in circumstances connected to the offender will ordinarily be admissible. Such evidence may be a description of the item by a witness to the crime, or it may be evidence that otherwise connects the item to the crime. In Thompson & Wran v R, Berwick CJ and Menzies J acknowledged that evidence of possession of ‘tools of the trade’ was admissible if they were or might have been used to commit the crime … Second, where the evidence is clear that the items were not used in the crime, the evidence is inadmissible. If there is an absence of similarity or resemblance of the items found to those in the crim charged the items will throw no light on the offences charged, and hence the evidence has no probative value.
In Thompson & Wran v The Queen (supra) the evidence made it clear that the ‘tools of the burglar’ in the possession of the accused had not been used in the crime charged. Accordingly, it was inadmissible.[11] By contrast, in Festa v The Queen[12], while again the ‘tools of the trade’ were not those used in the crime charged, they were admissible because and only because it was consistent with the accused’s proven modus operandi.
[11] (2001) 208 CLR 593.
[12] To similar effect Driscoll v The Queen (1977) 137 CLR 517.
Even then it said:
It is trite that where the evidence has only a tenuous link, though admissible it may be excluded where its prejudicial effect outweighs that tenuous value.
In the subject case, there was no evidence of modus operandi. Further in the absence of evidence from the victim B to identify the items, there was no evidence that they were used in the counts charged. I repeat there was no DNA evidence to link those items to the accused.
Now, it was suggested as part of the prosecution case that ‘the gloves’, ‘a beanie’, ‘a torch’ and the ‘pair of glasses’ found at Brompton, were of significant probative value, suggestive of some implements of breaking in. They plainly were not implements of breaking in.
The victim’s evidence
B deposed that the offender wore dark clothes, ‘probably black or dark brown’. He said that he had a cap on so that he could not see his hair.
B described being in his room, which, while not totally dark, provided little illumination.[13] Having heard a noise, he called 000 and the police were called immediately and came quickly.
[13] T P [47]-[50].
B lived in a double storey unit. That was a unit which was separate from other flats at that address. He said that a male person entered his room and he asked, ‘what do you want’? The person said, ‘I want money’. There is no suggestion in this case of any voice identification. He initially said that he thought he had between $100 and $150. He later deposed that it was $170. He could not recall the denomination, save for there being three $50 notes. He said the male person was a ‘tad shorter than himself, and he was 182cm’. He expanded upon his description of ‘dark clothes’, saying that they were ‘probably black or dark brown, dark olive’; in addition to the ‘cap’ on his head. At one stage, he described the clothing as a ‘black hooded jumper’. He said he had something like a ‘face mask or balaclava or something’ and could only see his eyes, which were said to be light-coloured. He thought the man was in his early 30s or early 40s. B then repeated that he wore dark-coloured clothing.
B said he was driven by Constable W to where the accused had been found in Coglin Street. That police officer had shown him some sunglasses and the face covering. He said at the time he did not recognise the sunglasses as his. Only shortly before the trial he had been told by his mother that he may have had such a pair of glasses. B said he now thought that perhaps he did have those sunglasses. He deposed that he could not swear that he could identify the particular face mask.
There was a dispute between B and the police officers as to whether B had been shown the ‘black cloth’ or ‘face mask’. The victim deposed that he had been shown it, however he deposed that he could not recognise that black cloth if he saw it again.
Constable W deposed that he did not show him the black cloth. In any event a photograph which was tendered in the trial showed that the piece of black cloth had a rather large white skull on it. That was not consistent with B’s memory of it.
I make it clear that if it was established that the cloth had been shown to B it would not have been objectionable. See Papakosmas v The Queen [1999] HCA 37; Evans v The Queen [2006] NSWCCA 277; R v Callaghan [2001] VSCA 209 at [28] and Murrell v The Queen [2014] VSCA 334.
I do not need to comment upon whether it was however proper for the victim to be driven to the Coglin Street premises and whether it might have otherwise prejudiced the identification of the accused. There is the risk that a victim, having seen an accused being detained by police, might form the view that the police had identified the offender.
The accused denied that the items had been in his possession.
Information had been provided by the victim to the police officers that night from time to time. There was a dispute as to the times when particular pieces of information had been provided. There were inconsistencies in the police communications systems.
B could not identify coins found on the accused. I have already referred to his inability to identify the ‘black cloth’. I have also already referred to B’s change of account in respect of the quantum of cash taken by the offender, and as to whether the glasses were his.
As to the gloves, the ‘beanie’, the torch and the pair of glasses, the police did not forensically test any of those items to establish any connection with the accused. No enquiry was made of the occupier of the Brompton house.
It is plain that B was not able to give any evidence of identification, save for some evidence about the dark nature of the clothes that he was wearing, his height, possible age, and the colour of his eyes.
As it transpires, B was not asked to attend a line-up.
The evidence by B alone is insufficient of itself to convict the accused.
The evidence of Constables Z and W
The telephone report by the victim was recorded as being at 2.02am. These two police officers arrived at about 2.11am.
Constable Z drove the police vehicle to B’s home. Constable W was in the front passenger seat.
Constables Z and W said they saw a man exit from the driveway of the subject address from 40m away. They saw him walk for three seconds across the road.
They described him, as I said previously, as 185cm tall, medium build, short dark hair, black T-shirt, ‘arms apparently covered by something’, and grey fleecy track pants. That is different from the evidence of B. They thought that he was aged about 30 years. They were only able to observe that person because of street lights.
The police officers soon thereafter described on the police communication system the clothing as being apparently all black clothing. Subsequently they received a communication that a man had been stopped in Coglin Street, said to be of medium build, dark short hair, a beard, grey tracksuit pants and a long-sleeved shirt.
Both officers gave evidence that the person they saw was wearing a T-shirt. His hair was ‘boofy on top’.
Neither however gave evidence as to the facial appearance of that person. As it transpired the accused had a beard at that time. He was not wearing a mask, nor did he have a cap, or a black hooded jumper on his person.
It must be said that the description of the clothing of the person observed by the two police officers in their evidence, in particular, the grey track pants, was consistent with the clothing worn by the accused at Brompton.
Constable W deposed that when he drove B to the Brompton house, he ‘had no doubt in my mind’, that it was the same male whom he had seen near the victim’s home. Now of significance is the evidence of the police officers as to the grey fleecy track pants. I repeat that B did not refer to such clothes. I do not need to consider whether Constable W had unwittingly suffered from the displacement effect – namely having seen the accused separately and merging that with the three seconds observation of the male outside B’s premises.
In summary, these two officers observed that male person for about three seconds. They made no mention of a beard. They did not see his face. Both conceded that they could not identify him from his face at all.
They did not, either of them, provide any identification of the person walking on the road apart from the clothing and the other limited matters.
They then proceeded to take some statements from the victim and contacted the police communications to arrange for cordons to be set up.
Even if their evidence establishes that the male observed by police outside B’s house is the accused does it establish that the accused was the offender as described by B?
The evidence of Brevet Sergeant M1 and Constable M2
I do not propose to detail the evidence of officers M1 and M2 of their observations at Brompton.
There is no doubt that the accused was found in the front garden of a house in Coglin Street at Brompton soon thereafter, and two police officers, Constable M2 and the former Brevet Sergeant M1, made observations of his demeanour.
Constable M2 said that when she first saw the accused, he moved immediately to the police vehicle, sweating rapidly, and agitated. He gave her his identification. Brevet Sergeant M1 by contrast said that the accused was crouched down in the front garden and only stood up when he approached him. The accused clearly had grey track pants, black sports shoes and a T-shirt. He was searched and $170 in cash was found, together with a piece of cloth said to be the face mask.
After the police officers at Brompton searched the accused, they located the aforementioned gloves, beanie, torch and a pair of glasses on the Coglin Street premises.
Discussion
It is trite that it is necessary to consider the whole of the evidence, and not just individual items in isolation. The question is whether on the whole of the evidence, taken at its highest, from the point of view of the prosecution, and all inferences most favourable to the prosecution which are reasonably open, are drawn, is it capable of producing in the mind of a reasonable person the guilt of the accused beyond a reasonable doubt.
What is plain in this case is there was no adequate identification of the accused by neither B nor the two police officers. None of them purported to identify the accused, other than by clothing, apparent age and height.
It is trite that proof of an identification of an offender is notoriously difficult, even when there has been facial identification of an individual.
There could be no doubt that in this case, the jury, accepting all of what was put on behalf of the prosecution, would have a suspicion about the accused. That suspicion would be even more significant if they accept that he was the male observed in close proximity to B’s home shortly after the offending.
A suspicion is not enough. The question is whether the accused was the offender depends upon the evidence of B.
In R v Rowbotham,[14] at trial the accused was identified from clothing only. The victim had been unable to subsequently identify the accused from his facial appearance, in photographs, despite observing him for four to five minutes. The Court of Appeal (Qld), explained that in the circumstances of that case the purported identification of the accused by clothing was ‘patently unfair’. This was because the victim could not identify the accused from a line up. It did however suggest that ‘if the accused had been found in the vicinity of the offence; and he and his clothing had matched the victim’s evidence, and that he had run from the police’, a different result may be reached.
[14] [1992] QCA 215.
That with respect is consistent with the caselaw of the need to connect the accused to the crime, not just being in proximity to a crime.
Even if it were established that it was the accused outside B’s home, it does not establish any more than that. I have referred at length to the different versions of the clothes worn by the offender on the one hand by B and those worn by the accused. There is insufficient evidence to link the accused to the other items. Does it show any more than he happened to be extremely unlucky being at that vicinity at that time? Could it be said that there was no reasonable hypothesis consistent with innocence?
Conclusion and orders
In my opinion, it is obvious that the evidence called at the trial is insufficient to prove either charge beyond a reasonable doubt, taken at its highest.
Accordingly, I find no case to answer on either charge. I will direct the jury to acquit the accused as a matter of law, on each count.