R v Chalmers - [2012] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHALMERS
Criminal Trial by Judge Alone
[2012] SADC 21
Reasons for the Verdict of His Honour Judge Barrett
1 March 2012
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE
The accused was charged with aggravated causing harm with intent to cause harm. The assault was caught on a CCTV. One accused pleaded guilty. The issue in the trial was the identity of the other offender. Circumstantial evidence of identity.
Held: The circumstantial evidence excludes any rational explanation other than the guilt of the accused.
Criminal Law Consolidation Act 1935 S 24(1), referred to.

R v CHALMERS
[2012] SADC 21
Verdict
Introduction

The accused is charged with aggravated causing harm with intent to cause harm pursuant to s 24(1) of the Criminal Law Consolidation Act 1935. It is alleged that he, in company with a man named Bekirovski, assaulted Jonathon Koritsa in a convenience store on Jetty Road Glenelg, causing him serious injury. CCTV footage from two cameras inside the shop shows Mr Koritsa being attacked by two men. One attacker is Bekirovski. Bekirovski has pleaded guilty before me to the offence. The issue in the trial is whether the accused is the other attacker. The prosecution adduces circumstantial evidence which it says identifies the accused as the other attacker. The accused exercised his right not to give evidence, but his defence is that the prosecution’s circumstantial evidence of identification does not exclude his innocence as a rational hypothesis. The prosecution has not proved beyond reasonable doubt that the accused was one of the attackers.
Background
Shortly after midnight on 7 September 2009 Mr Koritsa and two friends, Brett James and Ben Pedler, went to Glenelg intending to celebrate the forthcoming wedding of Pedler. They parked their car in Durham Street and were walking towards Jetty Road intending to go to the Grand Hotel down by the beach. Before they got to Jetty Road, James was kicked in the head by one of a group of three males walking in the opposite direction. How that came to happen is unclear but is not relevant to the issue in this case. James was kicked to the ground but he got up and hit his assailant with a beer bottle he had in his hand. The Crown hypothesis is that this assailant was Bekirovski. Later that morning Bekirovski presented to The Queen Elizabeth Hospital with injuries to his head saying that he had been hit with a bottle.
The three friends then ran off along Durham Street with the second group chasing them. When they got to Jetty road the first three went in different directions, James and Pedler turning right heading west towards the beach, and Koritsa turning left, heading east towards Brighton Road.
Eyewitness evidence and surveillance footage evidence establishes reasonably clearly what happened on the beach side of Durham Street. I will distinguish the three pursuers by the tops they were wearing that night. One, said to be Bekirovski, was wearing an Adidas jumper. Another, alleged to be the accused, was wearing a button up white shirt with a monogram on the left chest. The third man, who remains unidentified, was wearing a blue shirt.
James and Pedler ran west as far as the Grand Hotel. All three of the other group pursued them partway down Jetty Road but gave up the chase somewhere between the Jetty Road Hotel, where surveillance cameras were installed, and the Grand Hotel near the beach. The surveillance cameras show the two men in the Adidas top and the blue shirt running west. The white shirted man probably ran west as well but out of camera range. He may have run west on the northern footpath of Jetty Road whereas the cameras, and the other two men, were on the southern footpath. The white shirted man joins the other two as they walked back east after giving up on the chase. At about 12.40am the three men are seen walking east along the southern footpath of Jetty Road. The convenience store, K-Food, is some 60 metres east of Durham Street on the same, southern, side of Jetty Road. The surveillance cameras show the three men walking in the direction of the convenience store. The footage, taken quite a long way from the convenience store, does not suggest they are in a hurry at that stage.
Mr Koritsa says that he had run, on his own, east of Durham Street after the three friends split up. He stopped after a while and could see neither of his two friends nor any of the three pursuers. He crossed to the southern side of Jetty Road and walked west looking for his friends. He then noticed the three pursuers coming towards him. He doubled back and ran east, but got only as far as the convenience store before they caught up with him.
The assault
Mr Koritsa says that he remembers little about what happened to him at the convenience store. He remembers putting up his hands as if in surrender. He says he said “don’t hit my face, I’ve done nothing wrong”. He mentioned his face because he had just had facial surgery and his face was wired up internally. He says one of the men said “Do you think we care?”. He says he remembers being punched once. He remembers nothing more until he woke up in hospital.
The two CCTV cameras set up inside the convenience store make it reasonably clear what happened to Mr Koritsa. One of the cameras faced outwards towards the front glass doors. The other was located above the door and faced into the shop. The footage is in colour and produced clear moving pictures. Some of the footage has been reproduced in eleven colour still photographs Exhibit P9 (three further photographs in that exhibit are from CCTV footage inside and outside The Queen Elizabeth Hospital).
The footage shows what appears to be Mr Koritsa just outside the store, holding up his hands. It then shows what appears to be a blow to Mr Koritsa’s head or face being delivered by the man in the Adidas top. This occurs immediately outside the glass sliding doors of the shop. Mr Koritsa turns, or is forced, around to his right and falls face forwards on to the floor just inside the shop. The footage shows clear images of what followed, although some detail is obscured by a floor freezer inside the shop. The man in the Adidas top moves into the shop and kneels astride Mr Koritsa in about the middle of his back. Mr Koritsa is still face down on the floor. The man punches Mr Koritsa repeatedly in the direction of his head. The man in the white shirt steps into the shop and stands on Mr Koritsa’s left around his legs. The two cameras catch from different angles what the man in the white shirt did. He proceeds to kick Mr Koritsa around the buttocks and legs. For part of the time the man in the Adidas top is kneeling astride Mr Koritsa punching him, and for part of it he is standing over him apparently stomping in the area of his head. Exactly what contact is made by this man is obscured by the freezer. After kicking Mr Koritsa for a short while, the man in the white shirt pulls the man in the Adidas top away from Mr Koritsa. He takes him out of the shop. That is the end of the relevant footage from the shop. There is no footage of the man with the blue shirt. However the eye witness who saw the three men walking east from the Jetty Road Hotel followed the men in his car, suspicious of what they were doing. He noticed the same three men leave the area of the convenience store. They went west in the direction of Durham Street. The man in the blue shirt did not enter the shop, but he is likely to have been just outside it.
The video footage makes clear several aspects of the Crown case which have not been disputed by the defence. The man in the white shirt was no more acting in self-defence than was the attacker in the Adidas top. No lawful excuse for the men’s action is suggested. Further, the man in the white shirt joined in the attack by the man in the Adidas top. He kicked the victim while the other man was punching him and stomping on him. There is no suggestion that this was not a joint enterprise by the two of them. Nor was it disputed that the joint enterprise involved an intent to cause harm. The attack was vicious and sustained. In the event, Mr Koritsa suffered two subdural haematomas, a laceration above his left eye, an abrasion above across his right buttock/hip area and swelling, bruising, pain and headaches. He was plainly caused harm.
The only issue in the trial is the identity of the man in the white shirt. Was it the accused? Has the prosecution proved beyond reasonable doubt that it was the accused? Has the prosecution established that the accused’s guilt is the only rational explanation for the circumstantial evidence?
The Crown case
The prosecution’s circumstantial evidence is in three broad groups.
The CCTV evidence;
The alleged link between the accused, the crime and a green utility near the scene;
Clothing allegedly connecting the accused to the crime.
I discuss the evidence in that order.
The CCTV evidence – Prosecution
There is no dispute that the CCTV footage (and some eye witness evidence) links Mr Bekirovski and two other men with the incident with Mr James in Durham Street and the assault on Mr Koritsa in Jetty Road. CCTV footage from inside the Jetty Road Hotel at about 11.45pm shows the two men in the white and blue shirts in the bar having a drink. Both men are shown in the footage outside the hotel leaving it and walking east. Mr Bekirovski is not shown in any of this footage.
Some 40 minutes later, at about 12.25am, the outside footage shows Mr Bekirovski and the blue shirted man chasing Messrs Pedler and James west past the Jetty Road Hotel. A minute or so later all three men are shown walking back east along Jetty Road. Bekirovski and the white shirted man are shown in the footage from both cameras at the convenience store assaulting Mr Koritsa. It was not, and could not have been, suggested that it was not the same group of men shown in those several pieces of footage, notwithstanding that Bekirovski is not shown inside the Jetty Road Hotel and the blue shirted man is not shown in the convenience store footage.
While it is an agreed fact that Bekirovski presented at The Queen Elizabeth Hospital at 12.42am for treatment for the injury caused by being hit with a bottle, the defence does not accept that the white shirted man appears at the hospital at approximately the same time, but separately. However, I have no doubt that it is the white shirted man shown at The Queen Elizabeth Hospital albeit that, by then, he is wearing a top over the white shirt. Bekirovski and the blue shirted man are shown arriving together. A third man arrives a little later. He enters the hospital on his own. Shortly after that he and the blue shirted man are shown waiting together for quite some time outside The Queen Elizabeth Hospital Emergency entrance. In my view it is plain that it is the white shirted man at the hospital with the blue shirted man. He was indistinguishable from the white shirted man except that he is wearing a top over a white shirt. The link of the blue shirted man between Bekirovski and the white shirted man suggests that it is the same three men. The coincidence of time suggests that as well. While I do not necessarily accept that the times shown on different CCTV cameras should be taken as completely accurate, the proximity of the incident in Glenelg and the presentation of the men at The Queen Elizabeth Hospital is so close that, together with the other evidence, the coincidence of time supports my conclusion that it is the white shirted man at The Queen Elizabeth Hospital. He has simply put on a top over his white shirt.
The four pieces of footage provide an extended opportunity to observe the white shirted man. He is seen inside the Jetty Road Hotel. He is drinking with the blue shirted man. He is seen in a small part of the footage from outside the Jetty Road Hotel walking east with the other two men after the chase. He is seen entering, and later waiting outside, The Queen Elizabeth Hospital. He is seen closest to the camera in the store footage. Eight of the still photographs taken from the store footage and comprising Exhibit P9, depict the white shirted man. They show him from various angles and in different poses. Two of the still photographs from the camera looking into the store show the right side of the man’s head and face in a close-up fashion. My overall impression from the footage, including the still photographs, is that they depict the accused.
I have had the opportunity to observe the accused in court. I have seen him sitting in the dock. Occasionally, when I entered or left the court, I saw him standing in the dock. Several times I watched him walk from either the door into the court, or from the body of the court, into the dock. I have watched him sitting, standing and walking over a period of two sitting days. The only difference I can detect between the white shirted man in the footage and the accused is that the accused appears slightly less bulky. The footage was taken 2 and a half years ago. My impression as an observer and a fact finder is that the two men are one in the same, but since 7 September 2009 the accused has lost some weight. I must be extremely careful about relying unduly on such an impression. The dangers of relying on witness evidence of identity are well known. There are frailties in human perceptions. While I have looked and relooked at the footage and the photographs and at the accused, the opportunities to make observations from footage and the photographs have limitations. There is nothing like a front on portrait photograph. Unlike a close-up portrait photograph, the still photographs are a little more distant. While there are some differences between eye witness testimony of identification at a crime scene and my comparison impressions, I should warn myself about relying too heavily on my impression. I should bear in mind the possibly unconscious consideration that I am comparing images of an offender and a solitary accused in the dock. It is at least analogous to dock identification evidence which is traditionally treated with great caution.
Mr McGee for the accused pointed out another cautionary consideration. I do not have the benefit of evidence of the accused’s appearance around the time of the incident. Such evidence exists. Police went to what is alleged to be the accused’s address at 12.30pm on 7 September 2009, some 12 hours after the offending. The accused was not there. The police went again to the address at about 10am the following day, some 34 hours after the offending. The accused arrived at the address while the police were there. The accused was arrested. He was questioned on video upon his arrest and back at the police station. Neither the arrest video nor the interview video were presented in evidence. There may be good reasons why this evidence was not lead. There may have been no probative or relevant evidence to be gleaned. There may even have been inadmissible or prejudicial material in the videos.
Mr McGee submitted that I should bear in mind that I am not able to see how the accused looked at about the time of the offending. The Crown has not seen fit to lead such evidence. However, I would not be willing to conclude that it was impossible for the defence to require such evidence to be put before me. Even accepting that there may have been inadmissible material in the videos, parts of it could, I think, have been shown to me without prejudice to the accused. I think I can take judicial knowledge of the fact that many questions of suspects are neutral, such as questions directed towards advising suspects of their rights. In addition Mr McGee cross-examined the interviewing officer eliciting that, during the interview, the accused was asked whether he would be willing to take part in an identification parade. The police officer acknowledged that he had been so asked and that the accused had agreed to take part in a line up. I am thus certain that the defence could have insisted that some footage of the accused at about the time of the offending be put before me, and that to do so would not have prejudiced the defence case. This was not done. The conclusion from this observation is that I should not assume that evidence of the accused’s appearance at about the time of the offending would have assisted him. Without prejudice to his right to silence and without prejudice to his case in any way, he could have let me see how he looked at about he time of the offending.. The accused could have demonstrated to me that he looked materially different at the time of the offending from his present appearance. Of course I bear in mind that the accused bears no onus of proof.
The utility – Prosecution
The prosecution alleges that the accused is linked to the offending by a green Holden utility. Mr Richards is an alert Council Compliance Officer who was on duty at the time of the crime. He came to witness James and Pedler as they ran away from the three men in Jetty Road. He took particular notice of James and Pedler because he said they had beer bottles in their hands. That was contrary to the council’s dry zone policy (the footage makes it clear that at least one of them had a beer bottle). Mr Richards then noticed the three men chasing them. He was parked in his car outside the Jetty Road Hotel facing the beach. He then noticed the three men walk back up Jetty Road. At first he thought that they were undercover police officers, but he became suspicious about what they were doing. As the men walked past him going east he watched them in his rear vision mirrors. He noticed the three men start running towards another man who had crossed Jetty Road from the north to the south. Plainly that was Mr Koritsa. Mr Richards decided to do a U-turn in Jetty Road and see what ws going on. The footage showed his car doing the U-turn.
When he got to the convenience store, Mr Richards noticed the three men go from the store down Jetty Road towards Durham Street. He did another U-turn and followed the men into Durham Street. He drove past the men in that street and parked with his lights turned off. He watched the men in his mirrors. He watched one of them kicking and bashing a car parked in the street. The car the friends had parked in Durham Street was later found to have its driver’s window smashed and to have suffered other damage. Mr Richards then saw the lights of a vehicle flash as if someone had operated a remote locking device. He noticed one man get into the driver’s side of a vehicle but he did not see what the other two did. He then saw two vehicles drive north past him. He wrote down what he thought were the registration numbers of the two vehicles. He described the first vehicle as a tray-top utility, possibly a Toyota, and the second vehicle as a bronze Holden or Ford. His evidence therefore tends to link the offenders with these two vehicles.
The vehicles turned right into Augusta Street Glenelg and Mr Richards saw nothing more of them. He drove around the block to the store in Jetty Road and in due course he told police what he had seen, including the two registration numbers that he had noted down.
Police did vehicle registration checks on the two registration numbers. Investigations into one of them led nowhere. The other registration number applied to a green Holden utility registered in the name of Peter (not John-Joseph) Chalmers, of 92 East Street, Brompton. At about 12.30pm on the same day, police went to that address. The green utility with the matching registration number was parked out the front. At the house police spoke to a woman who gave her name as Sarah Chalmers. What, if any, relationship she was to the accused was not disclosed. No one else appeared to be home at the time. Police took some (unspecified) details and left.

Police went back to the house at about 10am then next day. The utility was again parked out the front of the house. They again spoke to Sarah Chalmers. Initially she was the only person at the house. On this occasion one of the police officers had a search warrant. Police went to a bedroom indicated by Ms Chalmers as the bedroom occupied by the accused. Police searched the room and seized some clothing which will be the subject of the next broad area of circumstantial evidence.
The police also searched the utility. They located an Adidas top underneath the driver’s seat. The top had blood-like stains on it. It is an agreed fact that the blood-like stains match the DNA of the co-accused, Bekirovski. While the police were at the house the accused arrived in another vehicle. He was spoken to and arrested.
The prosecution submits that there are important circumstantial links between the accused and the crime, links forged by the utility. The vehicle is linked by Mr Richards to the offenders. Bekirovski’s Adidas jumper is found in the vehicle. The vehicle is linked to the accused by being registered to someone with his surname and being found at his address.
The clothing – Prosecution
As well as seizing the Adidas jumper from the utility on 8 September, police seized a white shirt from a bedroom identified by Ms Chalmers as the accused’s bedroom. The shirt Exhibit P5 is a buttoned white shirt with a black monogram on the left chest. The shirt appears indistinguishable from the white shirt worn by the offender in the footage. That shirt appears to have a monogram in the same place.
Police also seized a pair of white Nike sneakers from the bedroom. The prosecution does not seek to link those sneakers with the crime. Police also seized another pair of Nike sneakers worn by the accused when he was arrested. The prosecution does seek to link these shoes with the crime. These shoes have more pronounced black stripes than the shoes found in the bedroom. The prosecution asserts these shoes resemble the shoes shown in the footage. Further, these shoes were examined forensically. No visible blood stains were observed, but it is an agreed fact that on the sole of what I take to be one of the shoes (see agreed fact 5d of Exhibit P16) was a stain with a very weak positive reaction to a presumptive test for blood. No blood-like staining was detected elsewhere on what I take to be the other shoe. No samples were taken for DNA analysis.
I will not the other to discuss testing that was done on clothes taken from, or associated with, Mr Koritsa or Mr Bekirovski. That evidence has no bearing on the accused’s culpability.
In summary, the prosecution alleges that the clothing evidence links the accused to the offender. The shirt on the offender is indistinguishable from one found in what is said to be the accused’s bedroom. The monogram, common to both, adds to the significance of the so called match. The accused was wearing shoes similar to those worn by the offender. On the sole of one of those shoes there was a sign, albeit slight, of blood. When attacked the victim was bleeding. There was blood on the floor where he lay. It is quite likely that blood from the scene might have got on to the soles of the white shirted man’s shoes.
The Defence case
The defence challenges the probity of the circumstantial evidence. It challenges the weight to be given to each item of circumstantial evidence. Mr McGee submitted that the vehicle evidence in particular points away from the accused being implicated in the crime. I will discuss the defence challenges to the forensic evidence in the same order as I have discussed the prosecution assertions.
The CCTV evidence – Defence
I have already incorporated into my discussion of the CCTV evidence the defence challenges to it. The defence submission is that the impressions I might have of the similarity between the accused and the white shirted man should be given little weight. There is a danger in relying on impressions of this sort. The warnings I must bear in mind should cause me to give limited weight to the suggested similarity between the two men. There is no evidence of what the accused looked like in September 2009. I should therefore be doubly cautious about relying on impressions of similarity between the accused now and the white shirted man in September 2009.
There is an additional challenge to the CCTV evidence. Despite the accused agreeing to take part in an identification line-up, no line-up was ever organised. The police gave no explanation for why that was so. Instead, the victim and several other witness were shown two folders of photographs. The accused was very briefly cross-examined about his participation in that process. The identification process was conducted with each of the witnesses in about October 2010, some 13 months after the event. Mr Koritsa said that he had made one identification, but it was not an identification of the accused. There was no evidence about whom he identified. In the folder of photographs containing a photograph of the accused he did not identify him. None of the other witnesses identified the accused. The folders of photographs were not produced in court. I do not know when the photograph of the accused was taken. I do no know what he looked like when the photograph was taken. I know nothing of the other photographs appearing in the folders in that process. Neither counsel elaborated on the evidence of this process apart form Mr McGee’s observation that no witness identified the accused.
The utility – Defence
Mr McGee submitted that the vehicle evidence actually pointed away from the accused being the offender. The utility was not registered to his client. It was registered to a Peter Chalmers. There was no evidence about who Peter Chalmers is. He may be a brother or other close relative. He may look like the accused. There is no evidence directly linking the accused to the utility. Nothing was found in the utility suggesting such a link. There were no documents or possessions. There were no fingerprints or DNA or other forensic evidence. There was no reliable evidence linking the accused to the premises. Nothing was found in or about the bedroom or the house linking the accused to that address. No documents or letters or bills bearing his name were produced.
The police evidence of being directed by someone, giving her name as Sarah Chalmers, to the bedroom said by her to be the accused’s bedroom is slight evidence of the accused’s connection with that house. Far from the accused being associated with the green utility, he appears to be associated with another vehicle, namely, the car in which he arrived at the house while the police were there on 8 September. The accused was not home on 7 September when the police called but the green utility was there. The accused was not initially at the house on 8 September but the utility was there. The evidence of the link between the crime and utility may be strong, but the link between the utility and the accused is at best, weak. In fact, Mr McGee submitted, it tends to point away from the accused.
The clothing – Defence
The defence made submissions in respect of three items of clothing.
The first is the shirt found in the bedroom in Bowden. The shirt is an unremarkable one. The monogram cannot be clearly enough seen to match the one observable on the offender’s shirt. The evidence of the bedroom being occupied by the accused is slight. There is nothing beyond Sarah Chalmers indication to police tending to show that the room was the accused’s bedroom.
The second submission relates to the shoes. They are very commonly worn shoes. The footage is insufficiently clear to make out more than a similarity. The evidence of blood is slight and is found on a shoe seized 44 hours after the offending.
The third submission is that there is no evidence linking the accused with the top worn by the third man seen at The Queen Elizabeth Hospital. If the third man is the same as the white shirted man (which is not conceded) then the police have failed to produce any top corresponding to the top worn by that man. By the time the police went to the Brompton address on 8 September they had been alerted to the footage from The Queen Elizabeth Hospital. There is no evidence of the police locating such a top at the house or anywhere else.
I add, really by way of an aside, that there was a DNA analysis of the blood found on Mr Koritsa shirt[1]. Unsurprisingly, Mr Koritsa was found to be the major contributor to that blood. The comparison with Bekirovski was inconclusive. The accused was excluded. However there is no evidence of any way in which blood from the white shirted man might have got on to the victim’s tee-shirt. There is no evidence of the white shirted man being injured. There is evidence of Bekirovski being injured. He was injured by being hit with the bottle in Durham Street. There is no evidence suggesting the white shirted man got close to the tee-shirt of the victim. His contact with the victim was by way of kicking him. I do not regard this evidence as exculpating the accused.
[1] Agreed fact 5f of Exhibit P16.
Discussion
In considering the evidence adduced by the prosecution I must consider the combined effect of individual strands of circumstantial evidence to determine what is the combined effect of all the strands. In that process however, I must put out of my mind pieces of evidence which have no probative weight. As I consider each piece of evidence I bear in mind the criticisms the defence have made of the evidence. In the light of those criticisms, I must determine whether the individual piece of evidence has no weight, considerable weight or is somewhere in between. I cannot find the accused guilty unless I am satisfied beyond reasonable doubt of his guilt. I must be satisfied not that his guilt is a rational inference from the facts I find proved, but that his guilt is the only rational inference that the circumstance I find proved enable me to draw.
I draw no inference adverse to the accused because he exercised his rights not to answer police questions and not to give evidence. His exercising those rights in no way strengthens the prosecution case.
I turn to the three areas of evidence. First, to the CCTV evidence. I bear in mind the limitations of such evidence that I have already mentioned. I bear in mind the caution with which I should approach such evidence. Nevertheless the footage and the still photographs leave me with a strong impression that the white shirted man and the accused are one in the same. I am conscious of the suggestion by Mr McGee that the registered owner of the utility, Mr Peter Chalmers, may be a relative of the accused. That being so, he may resemble the accused. Nevertheless I have the impression of a very strong resemblance between the accused and the offender. The head and face are indistinguishable. The hair style and colour are the same. The muscular build of the men is the same except that the accused is a little less bulky than the offender. I would describe the difference as what you might expect if the offender had lost some weight. The muscular body shape is the same but there has been a uniform reduction in bulk. My first view of the footage lead me to think immediately that I was looking at the accused. I have reflected on that impression. I have considered the limitations of the CCTV material. I have thought about the possibility of the offender being a relative of the accused. I have considered the warnings I must bear in mind. I remain impressed by the likeness of the accused to the offender. The CCTV footage, in my view, is a powerful piece of circumstantial evidence implicating the accused.
I turn to the evidence of the green utility. It is, as I have said, persuasively linked to the offending. It was parked outside an address associated with the accused. While the accused was not at that house when the police called on 7 and 8 September, he turned up at the house on the 8 September. He has some association with the house. Someone giving her name as Ms Chalmers indicated that a bedroom was his. Of course there is nothing directly linking the utility to the accused. There are no documents or possessions inside it linking him with the utility. There is no forensic evidence. The utility was not registered in his name. He was driving another car when he arrived at the house on 8 September. However his not being the owner of the utility does not mean that he could not have been driving it, or been a passenger in it, on 7 September. I think that the circumstance of some association between the accused and the utility is of some probative weight in support of the prosecution case. The vehicle was not found at an address with which the accused has no association whatsoever. It is registered to someone with his surname, and it was located at an address with which he has some association.
Finally there is the clothing. The shirt Exhibit P5 cannot be distinguished from the shirt on the offender. There is a reservation about that observation. It relates to the monogram on the left chest. The monogram on the offender’s shirt cannot be deciphered. However it is in the same place on the shirt, it is of the same general size and it is the same colour. The similarity of the shirt has to be considered together with its location. Mr McGee submitted that the indication by Ms Chalmers of the bedroom where the shirt was found as the accused’s bedroom is slight evidence of that fact. I do not agree. While the link is not as strong as it could be, it is not insignificant. I do not overlook that there was no other evidence linking the accused to the room. There was no evidence of letters or bills or belongings linked to the accused. No police officer spoke of searching the room and finding no such items. There is simply an absence of evidence about what was found. There is no evidence of items identifying someone else, but there is no evidence identifying the accused. I think that the finding of the shirt Exhibit P5 in a room said by someone apparently an occupier of the house to be the accused’s bedroom is a significant piece of circumstantial evidence implicating him in the crime.
I think the evidence relating to the sneakers the accused was wearing when he was arrested is of less weight. I do not think the shoes on the accused could be said to be more than consistent with those on the offender. Those sorts of shoes are commonly worn in the community. The footage does not enable a careful comparison to be made. The slight evidence of blood on the sole of one of the shoes adds very little to that evidence. Overall I think that the evidence of the shoes is of slight weight in the prosecution case.
I have not overlooked Mr McGee’s submission that police did not locate a top similar to the one worn by the third man at The Queen Elizabeth Hospital. I have already said that I think that third man was the offender in the white shirt who had put on a top. The absence of evidence about the finding of such a top is not exculpatory of the accused. There were no questions of the police about searching for such a top. It is true that they had the opportunity to learn that the man in the white shirt might have put on a top before he went to The Queen Elizabeth Hospital but there is no evidence of them deliberately searching for such a top when they searched the bedroom.
I find that the discovery by the police of the white shirt in the bedroom said to be the accused’s is a significant piece of evidence implicating him in the offence. I think the evidence of the shoes is very slight evidence although it is not inconsistent with the accused’s guilt. The evidence of the shoes is not exculpatory.
Conclusion
The issue in the trial is the identity of the offender in the white shirt. Considering together the circumstantial evidence of the CCTV footage, the utility and the clothing I am satisfied beyond reasonable doubt that the accused is that offender. I find his guilt is the only rational inference from the facts I have found proved.
I direct myself on the ingredients of aggravated causing harm with intent to cause harm. The prosecution must prove five ingredients and the aggravating factor. I have already observed that the only issue in the trial was the identity of the accused as the offender I make findings in respect of each ingredient.
The ingredients are as follows:
The first ingredient is that the accused caused harm to Mr Koritsa. It must be proved that the accused’s conduct, or that of anyone acting jointly with him, is the sole cause of the harm or it substantially contributed to the harm. I find that the accused acted jointly with Bekirovski in assaulting Mr Koritsa, and together, they were the sole cause of the harm he suffered.
The second ingredient is that the accused caused harm to Mr Koritsa. I find that the injuries suffered by Mr Koritsa amount to harm.
The third ingredient is that the accused acted deliberately as opposed to accidentally. It is plain that the accused acted deliberately.
The fourth ingredient is that the accused acted unlawfully. It is plain that neither of the men acted lawfully.
The fifth ingredient is that, when the accused caused harm to Mr Koritsa he intended to cause harm to him. The accused’s intention to cause harm is plain from the manner in which he and Bekirovski assaulted Mr Koritsa.
Finally the prosecution must prove the aggravating factor, namely, that the two men acted in the company of each other. That is plainly so.
I am satisfied beyond reasonable doubt of each of the ingredients of the offence and of the aggravating factor.
Verdict
I find the accused guilty of aggravated causing harm with intent to cause harm.