R v Clothier
[2015] SADC 26
•4 March 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLOTHIER
Criminal Trial by Judge Alone
[2015] SADC 26
Reasons for the Verdict of His Honour Judge Costello
4 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY
Criminal trial by judge alone – accused charged with robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 – prosecution relied on circumstantial evidence to identify the accused as the offender – consideration of principles relating to admission and use of identification evidence.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 s 137(1); Juries Act 1927 s 7(1); Evidence Act 1929 s 34AB, referred to.
R v Murdoch (2005) NTSC 78; Smith v The Queen (2001) 206 CLR 650; Alexander v The Queen (1981) 145 CLR 395; R v Deering (1986) 43 SASR 252; Festa v The Queen (2001) 208 CLR 593; R v Joyce (2014) SADC 125; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Martin v Osborne (1936) 55 CLR 367; Knight v The Queen (1992) 175 CLR 495; R v Micallef [2002] NSWCCA 480; Shepherd v The Queen (1990) 170 CLR 573; R v Chamberlain (No 2) (1984) 153 CLR 521; R v Hillier (2007) 228 CLR 618; R v Dodd (2002) 135 A Crim R 32; Domican v The Queen (1992) 173 CLR 555; R v Clarke (1997) 97 A Crim R 414; Pitkin v The Queen (1995) 80 A Crim R 302, considered.
R v CLOTHIER
[2015] SADC 26
This is a trial by judge alone. The accused is charged with committing the offence of robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935.
The particulars of the offence are that Richard John Clothier:
On the 20th day of July 2013 at Glenelg East, used force against Amer Halabi, in order to commit the theft of cash of the value of about $250, and the force was used immediately after the theft.
The accused pleaded not guilty to the charge. He elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr A Ey. Ms Orr appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, that the Court should detail every obvious and basic direction which might be given to a jury.
I do, nevertheless, record that I have reminded myself of the following:
(i)An accused person is presumed to be innocent of the charge unless and until his guilt on the charge has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty.
(iv)The normal directions given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
(v)An accused person may elect not to give evidence. Because he has a legal right not to give evidence I must not draw any adverse inference to him or the case he puts forward. There may be many reasons why an accused person does not give evidence and I am not to speculate on those reasons.
Furthermore, his silence in court is not evidence against him and I cannot use his silence to fill gaps in evidence tendered by the prosecution, nor use it as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
The Prosecution Case – An Overview
On 20 July 2013 a Ms Alameo was working as a checkout operator at the IGA Supermarket in Glenelg East. In the course of serving a customer, she opened a cash register to give him some change. As she did so, a man standing behind the customer she was serving (on the prosecution case it was the accused) reached over and grabbed a handful of notes from the cash register.
This man ran towards the shop exit but was halted by a security guard, Mr Halabi, who grabbed him and tried to restrain him. Both men struggled with each other before the man escaped Mr Halabi’s grasp and ran off.
Mr Halabi pursued the man and observed him, from a distance, to get into a ‘small silver car’ and drive away.[1]
[1] For ease of reference I will describe the actions of this man on this night compositvely as ‘the incident’.
At this time the accused was the owner of a 1998 Mazda sedan which was silver in colour.
Some months later both Ms Alameo and Mr Halabi took part in a photographic identification procedure.
Ms Alameo selected an image of the accused from the twelve photographs she was asked to view and said she was 95% sure that the accused was the person who grabbed the money from the cash register.
Mr Halabi initially picked two images from a folio containing the same 12 photographs, one of which was that of the accused. On further reflection he selected the picture of the accused because he had ‘blue eyes’ which was a particular feature he remembered about the man with whom he struggled on the night in question.
In their oral evidence, both Ms Alameo and Mr Halabi adverted to this and other characteristics of the man they saw on that night, which broadly corresponded with the accused.
Two police officers gave evidence. Officer Brook gave evidence as to his recognition of the accused in some of the still images, taken from CCTV footage of the incident. His recognition was based on his past dealings, in his role as a police officer, with the accused.
Officer Godwin was the primary investigating officer. He gave evidence with respect to an interview he conducted with the accused in relation to whether the accused was prepared to take part in an identification parade. After initially agreeing to do so, the accused then withdrew his consent to take part when apprised by Officer Godwin that he was under no obligation to do so. It was Officer Godwin who subsequently conducted the photographic identification procedures with Ms Alameo and Mr Halabi.
He also produced photographs of the accused taken at various dates and times, including mid 2012 and late 2013, together with his recorded height which is 176 cm and details of the make, model and colour of a car registered to the accused at the relevant time.
Voir Dire and the Course of the Trial
It will be apparent from some of the evidence to which I have just adverted that questions as to its admissibility were likely to arise. Due to the fact that the trial was of short duration (the evidence took less than 1 day) and that a significant proportion of that evidence was objected to, as being either irrelevant or unfair to the accused, I elected to receive all the evidence de bene esse and to rule on that evidence as part of my verdict.
The Voir Dire
The Recognition Evidence
As I earlier indicated, Officer Brook gave evidence of having recognised the accused as the person in some still images taken from CCTV footage of the incident. These still images were contained in a daily intelligence bulletin circulated to the Sturt Local Service Area where he was working on 5 August 2013. He had worked in that area since 2001.
Officer Brook immediately recognised the person in the still images as the accused.
Officer Brook’s recognition evidence was based upon the fact that, over a number of years, he had regularly come into contact with the accused and/or been exposed to photographs of him, which were on display in various guises in the office out of which he operated.
These ‘dealings’ with the accused may be summarised as follows:
1 From 2003 onwards the accused was arrested on some nine different occasions. On each occasion the accused’s photograph appeared as part of a ‘daily intelligence bulletin’ which he read.
2 In July 2004 the accused had been arrested and was on bail. A condition of his bail required him to obey a curfew. During the period 27 July 2004 – 24 August 2004 Officer Brook visited the accused at his home to check on his compliance with the curfew condition. He estimated that this may have occurred up to 16 times over this period, although it may have been as few as five occasions.
3 For a period in 2004 and again between 2006-2008 he was part of a uniformed tactical team whose duties included monitoring licensed venues at Westfield Marion and Glenelg. He said that the accused was a regular attendee at these venues. He said that he paid particular attention to the accused on these occasions because of the accused’s intimidating and aggressive behaviour to police officers and others. He made regular observations of the accused over this period which he estimated to be fortnightly but ‘not every fortnight’.
4 The accused’s picture was on a bulletin board at the police station at the Westfield Marion Shopping Centre between March 2008 and May 2008. His picture was posted with others who, as a condition of their bail, were precluded from attending the shopping centre. He estimated that he would have glanced at the accused’s picture, during this period, on a daily basis.
5 In August 2008 he viewed CCTV footage of a robbery which took place at Dan Murphy’s, Westfield Marion. He identified the accused as the offender in that robbery. The accused was subsequently convicted of that offence.
6 In 2013, when he viewed the still images of this incident as part of the CCTV footage he immediately recognised the person in them as the accused. He identified certain characteristics which he said were peculiar to the accused as his build, flared nostrils and a distinctive mouth.
In summary, it is said that Officer Brook was able to recognise the accused because of his observations of him both in person and photographically over an extended period of time and in a variety of contexts. On the other hand this recognition needs to be balanced against the fact that it occurred in 2013, at a time when he had had no personal contact with the accused for some four years.
Principles[2]
[2] See generally R v Murdoch (2005) NTSC 78.
The principles, pursuant to which the admissibility of this type of non-expert opinion evidence is to be determined, were discussed by the High Court in Smith v The Queen.[3] The accused was presented on a charge of robbery of a bank. Film from the bank’s security cameras showed the offender. Two police officers gave evidence identifying the appellant as the offender depicted in the security camera footage. The only basis for their conclusion was knowledge gained of the appellant’s physical appearance during previous encounters when compared with features revealed when looking at the photographs from the security film.
[3] (2001) 206 CLR 650.
In a joint judgment, Gleeson CJ and Gaudron, Gummow and Hayne JJ held that the evidence was inadmissible because it was irrelevant. Significantly, there was no suggestion that the physical appearance of the appellant had changed materially between the time of the offence and the time of trial or that by reason of their previous observations of the appellant the police possessed an advantage in recognising the persons in the security film. In the joint judgment, their Honours observed that the police were ‘in no better position to make a comparison between the appellant and the person in the photographs than the jurors …’. It was in those circumstances that their Honours held that the assertion by a police officer that he recognised the appellant was ‘not evidence that could rationally affect the assessment by the jury’ of the question in issue.
Their Honours continued:
The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury.[4]
[4] At p 656.
In the joint judgment their Honours recognised that there are cases in which evidence of the type under consideration is relevant and, therefore, admissible:
In other cases, the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused. Thus, if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused’s appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant. Or if it is suggested that there is some distinctive feature revealed by the photographs (as, for example, a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witness’s conclusion of identity would not be irrelevant.[5]
Application of Principles
[5] Ibid.
In my opinion, although the evidence here arguably discloses a more extensive involvement of this officer with the accused than was the case with the two officers in Smith, I am not persuaded that his observations place him in a position of advantage over the trier of fact such that I would be assisted by his evidence in reaching a conclusion as to whether the person in the CCTV footage is the accused. Importantly, there is nothing in the distinctive features articulated by Officer Brook (the flared nostrils, distinctive mouth and similar build) which cannot be seen by me when observing the accused throughout the course of the trial.
Accordingly, his evidence is not relevant to the issues I need to determine and is therefore excluded.
The Photographic Identification Evidence
The accused sought to have the evidence of Ms Alameo and Mr Halabi, identifying the accused by the use of photographs, excluded. He did so for the following reasons:
1 The police failed to conduct an identification parade despite the fact that the accused consented to taking part in one and then actively sought to dissuade him from participating in such a line up;
2 Officer Godwin provided assistance and encouragement to the witnesses during the course of their identifications;
3 Photographs of men with brown eyes should not have been included when the witnesses had informed police that the man who grabbed the money had blue eyes;
4 The filming procedures were poor;
5 There was a delay of some five months between the alleged offence and the date on which the identification procedures took place;
6 The uncertainty of the two witnesses in their purported identifications.
Evidence Act Amendment – Photographic Identification
Subsequent to the purported identifications taking place the Evidence Act 1929,[6] was amended such that identification evidence is not inadmissible, and is not to be excluded merely because it was obtained by means other than an identity parade involving a physical line of persons.
[6] Section 34AB relevantly provides:Insofar as this amendment may be said to effect a change to the existing law, I would regard it as a procedural amendment only and therefore one having retrospective operation.
By its terms, it dictates that identification evidence procured otherwise than by means of a physical line-up is not thereby inadmissible. The High Court has already made it clear that identification evidence obtained via photographs is admissible.[7]
[7] Alexander v The Queen (1981) 145 CLR 395, 402.
At common law the trial judge retained an overriding discretion to exclude identification evidence of this kind if thought appropriate to do so in the interests of justice.[8] For the purposes of argument, I am content to treat the provisions of s 34AB as displacing the common law on this issue.
[8] R v Deering (1986) 43 SASR 252, 253.
Section 34AB dictates that photographic evidence is to be excluded if, relevantly for these purposes, the procedures prescribed in the Regulations for an identity parade (using photographs) are not complied with.
These Regulations require that a witness attempting to identify an alleged offender is to be visible at all times during the identity parade and that if a witness indicates a particular photograph, the image in that photograph is also to be visible at the time the indication is made.
In both of the identification procedures under consideration here, the face of the witness was not, at all times, visible. However, the torso of each witness was visible at all times and the camera ‘panned up’ to take in the face of each witness at the time the indications of the accused’s image were made.
In my view, although the letter of the Regulations was not adhered to, I am satisfied that the essence of it has been. Furthermore, each identification of the accused represents a not unimportant piece of circumstantial evidence in the prosecution case. In situations where the Regulations have not been adhered to, the evidence is to be excluded unless the interests of justice require its admission.
I am satisfied that, in the circumstances of this case, the interests of justice require the admission of this evidence and therefore the evidence of both identifications is admitted.
In the event that the provisions of s 34AB do not apply, I now turn to consider the criticisms made with respect to the evidence of these identifications and whether that evidence should be excluded in the exercise of my common law discretion.
Accused agreeing to a physical line-up
In his evidence Officer Godwin agreed that initially he did obtain the consent of the accused to participate in a physical line-up. However, he then proceeded to convey to the accused that he could seek legal advice about whether to participate in a line-up and that there was an option to the physical participation, namely a photo-pack option. Officer Godwin explained that he did so because the accused appeared to him to not fully understand his rights, particularly given that he and his partner had just woken him up. Far from being unfair to the accused, the approach of Officer Godwin, in referring to the photo-pack option was, in my opinion, quite appropriate and fair to the accused. Indeed, on being apprised of the photo-pack option, the accused was adamant that he no longer wanted to participate in a physical line-up.
I would not exclude the evidence of the photo identifications on this ground.
The balance of the criticisms deal with the timing and conduct of the identifications. I will set out the criticisms in more detail and then consider the principles governing the admission or exclusion of such evidence.
Assistance and Encouragement to the Witnesses
Ms Alameo
During the course of her identification procedure Officer Godwin made comments as to where the photographs, that she viewed, had come from and when she indicated, that the person (whom she had seen in the incident) had some facial hair, suggested that she should try to picture him with and without facial hair.
He also said the word ‘excellent’ after she identified the accused’s picture prior to asking her whether she was 100% sure it was him. In my view, it would have been preferable for such comments not to have been made. However, when the entire procedure is considered, I am not persuaded that they detracted in a material sense from what, to my mind, was a positive identification.
Mr Halabi
Although in this interview Officer Godwin did not make the same sort of comments, he did permit the witness to resume the identification procedure after it was initially terminated. At that point Mr Halabi had been unable to choose between two images, one of which depicted the accused. Officer Godwin said he only reactivated the audio visual recording because of comments made to him ‘off-camera’ by Mr Halabi.
In his evidence Mr Halabi said that after the initial procedure finished he remembered the accused’s blue eyes and relying upon that memory subsequently selected the accused’s image in preference to the other one. Again, the procedure was less than ideal. Nevertheless, I am satisfied that the resumption of the identification procedure emanated from unsolicited comments from Mr Halabi and was only reactivated to permit him to make an identification.
Inclusion of Persons with Brown Eyes
The procedures were also criticised by reason of the inclusion in the array of photographs of men with brown eyes when both witnesses had told police that they remembered the offender as having blue eyes. This may be true but it is equally true that there were a number of photographs, perhaps as many as nine, depicting men who had blue eyes.
The Poor Filming Procedures
This criticism relates to the fact that the witness’s faces were not visible at all times during the identification procedures. I have already addressed this concern under the Evidence Act amendment provisions.
The delay between the Alleged Offence and the Procedures
The period of time which elapsed was some five months.
The uncertainty of Witnesses in their Identifications
In the case of Ms Alameo it was submitted that she appeared to take a long time in making an identification. It is not clear to me that this represented any uncertainty on her part. Rather, I took it to indicate a level of care on her part before making an identification.
After careful consideration she selected the accused and opined to being 95% sure. Although this followed an arguably ‘anchoring’ comment by Officer Godwin, who asked her whether she was 100% sure, I did not detect any measurable uncertainty in her selection.
Mr Halabi was clearly less sure in his identification and at best leant marginally to the accused over the image of another man due to his blue eyes.
Discretion to Exclude – The Principles
Identification evidence, of the type adverted to, may be excluded in the exercise of a judge’s discretion if its probative value is outweighed by the prejudice, danger or unreliability associated with it.[9]
[9] Festa v The Queen (2001) 208 CLR 593 at [51], [161].
The identifications of each witness are not susceptible to exactly the same criticisms. The identification packs containing men with brown eyes, the delay between alleged offence and identification and the filming procedures are common to each.
There was a measure of ‘encouragement’ in Officer Godwin’s responses to Ms Alameo which was absent from the Halabi identification, but she was, to my mind, independently more certain than Mr Halabi.
I have considered each identification separately. In the case of the Alameo identification I am not persuaded that taken individually or in combination the criticisms call for the exclusion of this evidence. I am not persuaded that the asserted prejudice, danger or unreliability associated with her evidence outweighs its probative value.
I have reached similar conclusions with respect to the identification evidence of Mr Halabi.
Their evidence is admitted.
The Trial
Elements of the Offence
I turn now to the basic elements of the offence charged. The prosecution must prove each element beyond reasonable doubt.
Robbery
The elements of robbery, relevant to this case, are:
1 That the accused committed a theft;
2 That the accused used, or threatened to use, force in order to commit the theft; and
3 That the force was used (or threatened) at the time of, or immediately before the theft.
For the accused to be found guilty of robbery it must first be found that he was guilty of theft
Theft
The elements of theft are:
1 That the accused dealt with the property;
2 That the accused did so dishonestly;
3 That the accused dealt with the property without the owner’s consent;
4 That at the time the accused dealt with it he intended either:
(a)To deprive the owner permanently of the property;
(b)To make a serious encroachment on the owner’s proprietary rights; that is that the accused intended to treat the property as his own to dispose of regardless of the owner’s rights, or to deal with it so as to create a substantial risk that the owner would either not get it back or, if he did, that its value would be substantially impaired.
What is dishonest is a question that should be determined in accordance with the standards of ordinary people. The accused must be shown to have known that his dealing is dishonest in terms of those standards.
The Prosecution Case and its Witnesses
Ms Alameo
She gave her evidence with the aid of a privacy screen and did not see the accused at any time during the course of her evidence.
She is 20 years old and was working at the IGA Supermarket in Glenelg East on the night in question. She observed a man (she later identified as the accused) to enter the store at about 8:40 pm. This man came straight up to her and asked her ‘where the biscuits’ were. She said he was about 1½ metres from her when he spoke to her. He was also facing her when he asked this question. She said he was about 30 years old, with blue eyes and brown curly hair. She said he was some 176 cm tall, Caucasian with a build she described as ‘he used to be a solid man but now he’s lost some muscle’. She said that he had some facial hair on the sides of his chin.
A short time later he joined the check-out line and when she opened the till to give another customer some change, this man reached over and grabbed what she estimated to be some $300-$400 out of the till.
She said he then tried to run out of the store but was stopped by Mr Halabi, who struggled with him before the man broke free and left the store.
In December 2013 she identified this man from a photo display as the accused.
In cross-examination she agreed that the incident happened quickly and was shocking for her. She disagreed with the suggestion that she did not get a good look at him. She said that she remembered his eyes when he asked for the biscuits.
She agreed that in the photo identification she had assumed that a photo of the ‘culprit’ would be one of the 12 images. Even so, she said that when she opened the booklet she looked at the accused’s image ‘straightaway’ but then looked around at other photos and then tried to imagine the image of the accused with or without facial hair before she chose him.
She confirmed her view that she was 95% certain that it was the accused. Although she agreed that she couldn’t see his hair, she said that when she went home and ‘really thought about it’, she remembered seeing his hair.
Finally, she said she was drawn to the accused straightaway because of his blue eyes.
Mr Halabi
Mr Halabi is 56 years old. At the time of the incident he said he was working at the Glenelg East IGA as a security guard. He said that at about 8:30 pm he saw a man reach into the till and grab some money. The man then ran towards the exit. Mr Halabi said that he attempted to restrain the man but that the man punched him on a number of occasions and ‘wrestled his way free’. Mr Halabi said that he pursued him as he fled and observed him to climb into a small silver car.
He said that in the struggle he saw his face and blue eyes. He said he was about 30 years old, 165-170 cm tall and had a build, ‘not fat or not skinny’, ‘a solid man’.
He said that in December 2013 he viewed the photo display (which contained the same 12 photographs) and was initially uncertain as to which of two photographs was the man he saw in the supermarket. After the procedure was terminated, he thought again and remembered the man’s blue eyes and after the recording recommenced, he selected the photograph of the accused.
At that time he declared that ‘it should be’ the accused’s photograph by which he meant he could not say 100% it was him because of the time that had elapsed between the incident and the identification procedure.
In cross-examination he agreed that his identification was made more difficult due to the elapse of time. He also re-emphasised that he selected the accused’s photograph because of his blue eyes.
Officer Godwin
He gave evidence confirming the accused’s date of birth as 22 April 1982 and height as being 176 cm. He produced a document certifying that at the relevant time the accused was the owner of a silver Mazda sedan. He also produced a bundle of photographs taken of the accused at various times between 2012 and 2014, together with both the CCTV footage and a series of still images extracted from the CCTV footage of the incident. Finally, the accused’s interview with Officer Godwin, on the topic of him taking part in an identity parade, was tendered through him.
In cross-examination he accepted that no DNA evidence had been taken of items that the man who committed the robbery had touched, nor had the entire piece of CCTV footage been seized and retained by the police.
The CCTV Footage
The prosecution also tendered the CCTV footage of the incident which I have studied carefully, along with still images of the alleged offender taken from that footage.
I studied this footage together with the still images carefully throughout the course of the trial and compared the images of the man in that footage and in the still images with the man I observed in the dock.
The Defence Case
The accused did not give evidence or otherwise adduce any evidence.
Assessment of the Witnesses
I am satisfied that the witnesses Alameo and Halabi were both truthful. I accept that each of them gave their evidence in a forthright and open manner and made concessions where appropriate. I also accept that each of them was reliable.
In arriving at this latter conclusion, I am satisfied that each of them had the opportunity to see, and did in fact see, the man and that the time lapse between the incident and identification was not such as to ‘rob’ them of an ability to retain an image of that man.
In so saying, I acknowledge that the conditions for observing him were less than ideal for Mr Halabi given the fact that it occurred during a struggle. In the case of Ms Alameo she observed him in a situation of relative calm, albeit only for a short time.
I have, of course, considered each witness independently and have not been influenced by the fact that more than one witness was able to identify the man.
Although Ms Alameo was criticised for a change of evidence with respect to remembering the colour of the man’s hair, she explained that the change came later after she had had an opportunity for some mature reflection about the incident. However, when her evidence is considered as a whole, I formed a very positive impression of her as a careful, thoughtful witness who was able to remember and recall what the man looked like and later confidently identify him from the photo display.
I acknowledge the limitations attached to Mr Halabi’s identification (e.g. its relatively short duration and one occurring as part of a disturbing experience) but nevertheless, found him to have been a careful, considered and otherwise reliable witness.
I have no reason to doubt either the truthfulness or reliability of Officer Godwin’s evidence.
I now turn to two particular aspects of the evidence in this trial which require particular consideration, namely circumstantial evidence and identification evidence.
Circumstantial Evidence[10]
[10] On this topic generally, I have adopted the remarks of Judge Lovell, as he then was, in R v Joyce (2014) SADC 125, [128]-[134].
Where, as is the situation here, the case against an accused person rests, to a significant extent (albeit not entirely) upon circumstantial evidence, the jury or a judge sitting without a jury, cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’.[11] To enable me to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference, but that it should be ‘the only rational inference that the circumstances would enable [me] to draw’.[12]
[11] Peacock v The King (1911) 13 CLR 619.
[12] Plomp v The Queen (1963) 110 CLR 234.
A case is not bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that ‘according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed’.[13]
[13] Martin v Osborne (1936) 55 CLR 367.
While this statement of principle is uncontroversial it is really ‘no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt’.[14]
[14] Knight v The Queen (1992) 175 CLR 495 at 502.
However, for an inference to be reasonable it must rest upon something more than mere conjecture.[15] It is necessary to weigh and consider the totality of the evidence and in doing so the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.[16]
[15] Peacock v The King (supra).
[16] R v Micallef [2002] NSWCCA 480.
It is of critical importance to remember that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[17]
[17] Shepherd v The Queen (1990) 170 CLR 573.
Often in a circumstantial case there is evidence of matters, which looked at in isolation from other evidence, may yield an inference compatible with the innocence of an accused. But a circumstantial case is not to be considered piecemeal.[18]
[18] R v Hillier (2007) 228 CLR 618 at [48].
As was said in R v Chamberlain (No 2):[19]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence...
[19] (1984) 153 CLR 521 at 535.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said in Plomp:[20]
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
[20] (1963) 110 CLR 234, 242.
Identification Evidence
The prosecution case is that the circumstantial evidence includes not only the description evidence of Ms Alameo and Mr Halabi but also their photo identification evidence. This is part of what is sometimes described as circumstantial identification evidence. [21]
[21] Festa at [56]-[59].
Drawing a distinction between circumstantial identification evidence and direct or positive identification evidence can be decisive of whether an identification warning is required. If there is positive identification evidence a warning is necessary. If however, the identification evidence is part of the circumstantial evidence implicating the accused in the offending, then a warning may not be necessary.[22]
[22] Ibid at [57].
I consider that Ms Alameo’s identification of the accused from the photo display was a direct or positive identification. Her assessment that she was 95% certain does not, in my mind, convert her identification into something other than a direct positive identification.[23] That being so, there is a need for me to give myself a warning in accordance with the requirements set out in Domican v The Queen.[24]
[23] R v Dodd (2002) 135 A Crim R 32 at [17].
[24] (1992) 173 CLR 555, 561-562.
I do not regard the identification evidence given by Mr Halabi as evidence of a positive or direct identification. However, his identification, like that of Ms Alameo (albeit in part), relies upon a particular facial feature said to be common to both the alleged perpetrator and the accused i.e. the blue eyes.
For that reason, it is appropriate to give myself a similar warning in relation to the evidence of his identification.[25]
[25] Festa at [57].
Applying the principles laid down in Domican I warn myself that identification evidence, in general, for well known reasons, requires a special need for caution.[26] Secondly, I need to have regard to any matter of significance in the context of the case which may reasonably be regarded as undermining the reliability of that evidence.[27]
[26] R v Clarke (1997) 97 A Crim R 414, 428.
[27] Domican at p 562.
Those matters which, in this case, are common to each witness include the length of time which elapsed between incident and identification, the unsettling effects occasioned by the incident itself, the fact that the duration of their observation was brief and the inclusion of some men with brown eyes in the photo display.
In the case of Ms Alameo, there were the ‘encouraging’ responses and comments of Officer Godwin; the inconsistency between her evidence as to him having brown curly hair compared with her statement during the identification that she couldn’t see his hair; the fact she was not 100% certain and that she expected the offender’s photograph to be in the photo-pack.
In the case of Mr Halabi, his observations of the perpetrator were made in the course of a violent struggle and during the identification procedure he was initially unable to decide between the accused’s photograph and that of another person. Furthermore, his selection of the accused only came after a resumption of the recording.
I also remind myself that this method of identification is inferior to that of a physical line-up for the reasons spelt out by the High Court in Alexander[28] and by the Court of Appeal in Pitkin v The Queen.[29]
[28] Per Stephen J at p 409.
[29] (1995) 80 A Crim R 302.
In a similar vein, I have observed both the CCTV footage, the still photographs taken from it and other photos of the accused before and after the incident, and then compared that material with the accused in the dock. In doing so, I remind myself that I too must not only exercise caution but also acknowledge the dangers of being influenced by such matters as suggestibility, the ‘rogues gallery’ effect and the effect of displacement.
Findings
Against this background I now turn to consider my findings. Before I do, I confirm that I have listened carefully to and considered the oral evidence. I have also taken into account both the oral and written submissions of counsel. Finally, I have had regard to the various exhibits, including those containing the CCTV footage, the still extracts and the other photographs of the accused.
I make the following findings beyond reasonable doubt, namely that:
1 On 20 July 2013 a man took money in the sum of about $250 from the cash register of the IGA Supermarket at Glenelg East;
2 In taking that money from the cash register he acted dishonestly;
3 When taking that money from the cash register he was acting without the consent of the owner;
4 At the time he took that money he intended to permanently deprive the owner of that money;
5 The man who took the money used force to enable him to take it; and
6 The force was used immediately after he took the money when he struggled with and struck Mr Halabi.
The central and critical issue which remains is whether the accused was that man.
On this issue I have had regard to and taken into account the following evidence.
The Positive Identification Evidence of Ms Alameo
Ms Alameo recognised the photograph of the accused as the man she saw in the incident but then looked at the other photographs in a careful and considered manner. She stated that she was 95% certain that it was him. I am satisfied that she took some time to make her selection but only because she was being careful not because she was unsure.
I regard her evidence as evidence of a direct, positive identification by a witness whom I have no hesitation in accepting as reliable.
If this part of Ms Alameo’s evidence had been the only evidence in the trial, I would have been satisfied beyond a reasonable doubt that the accused was the man depicted in the CCTV footage and still images of the incident.
As it was not the only evidence, I now turn to consider the balance of the circumstantial/identification evidence on this issue.
The Description Evidence of Ms Alameo
The description of the man by Ms Alameo matches that of the accused in a number of respects, namely:
· The man was in his early 30’s – the accused was 31 at the time;
· The man was Caucasian, as is the accused;
· The man had an ‘Australia accent’ as does the accused;[30]
· The man was about 176 cm tall as is the accused;
· The man had a build of someone who once was solid but now lost some muscle. To my mind, this is an apt description of the accused as I observed him to be in the dock and in some of the footage and photos;
· The man had some facial hair – this is consistent with some of the accused’s arrest photos and of the man in some of the still photos taken from the CCTV footage;
· The man had curly brown hair which is not inconsistent with that of the accused around the time of the incident as evidenced by some of his arrest photos;
· The man had blue eyes which is apparent from some of the accused’s photographs.
[30] I listened carefully to the accused's interview with police during which an identity parade was discussed. It was apparent from listening to the accused converse with Officer Godwin that he had a typical Australian accent.
I take into account that this evidence was based upon a face to face view of the man with the distance between her and him being some 1½ metres.
The Description Evidence of Mr Halabi
The description evidence of Mr Halabi also generally matches the accused in a number of respects, namely:
· The man was about 30;
· The man was some 165-170 cm tall;
· The man had blue eyes;
· The man had a solid build.
These observations were made with both men in very close proximity to each other.
The Photo Identification of Mr Halabi
Mr Halabi’s identification amounted to a conclusion that it was probably the accused.
He too took his time but was less certain than Ms Alameo. Ultimately, his identification was influenced by a recollection of the accused having blue eyes whereas the other person, he had under consideration, did not. Nevertheless, he did select the accused’s image from an array of 12 men, seven to nine of whom had blue eyes.
Although his evidence ‘points’ to the accused as the man in the incident, it is not as strong an identification as that of Ms Alameo.
The Accused’s Motor Vehicle
During the relevant period a silver Mazda sedan was registered to the accused which is not inconsistent with the description of the car proffered by Mr Halabi.
Collective Effect of these pieces of Evidence
Even though the ‘united force of these pieces of evidence put together’ does not persuade me beyond reasonable doubt that the accused is guilty, their collective weight points strongly to the accused as the offender and serves to confirm the conclusion I am prepared to reach, were it to be based solely upon the positive identification of Ms Alameo.
Finally, I turn to consider the comparisons I have made of the accused during the trial with the person in the CCTV footage, the still images and some arrest photos.
Comparison of the Accused with CCTV Footage, Still Images and Arrest Photographs
In my view, the man in the CCTV footage/still images material bears the following characteristics which match the accused, namely:
· The shape of his nose and flared nostrils;
· The shape of his mouth;
· A similar build;
· A pattern of light facial hair (in CCTV still images – Exhibit P15) comparable with that shown in arrest photos (Exhibit P16, photos 1 and 3).
Apart from these particular features I paid particular attention (throughout the course of the two days of trial) to the accused’s overall physiognomy both as he sat in the dock and during the times when he entered it from the holding area of the cells.
Taking into account these observations (and making appropriate allowance for the caution I need to exercise in so doing), I am equally satisfied beyond reasonable doubt, again even if this evidence stood alone, that the accused is the man depicted in the CCTV footage and still images of the incident and the man identified by both Ms Alameo and Mr Halabi as the person who robbed the IGA Supermarket at Glenelg East on 20 July 2013.
Conclusion
Having considered all the evidence, I am satisfied that the prosecution has proven all the elements of robbery beyond reasonable doubt and that it was the accused who committed the robbery.
My verdict is that the accused is guilty as charged.
(1)In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line-up of persons.
(2)In a criminal trial, evidence of the identity of a person alleged to have committed an offence obtained by means of an identity parade is to be excluded unless—
(a) —
(i) an audio visual record of the identity parade is made and kept in accordance with the regulations; and(ii) if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or
(b) the judge is satisfied that the interests of justice require the admission of the evidence despite the failure to comply with paragraph (a).
...
(6)In this section—
identity parade means a contemporaneous presentation (whether by a physical line-up or by means of images) of a number of persons to a witness for the purpose of identifying a person.
0
18
1