R v Crombie - [2017] SADC 122

District Court of South Australia
(Criminal)
R v CROMBIE
Criminal Trial by Judge Alone
[2017] SADC 122
Reasons for the Verdicts of His Honour Judge Soulio (ex tempore)
24 August 2017
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - OTHER VISUAL IDENTIFICATION
Accused and co-accused charged with one count of aggravated serious criminal trespass in a non-residential building, and one count of theft - accused and a co-accused broke into a pizza bar and stole eight bottles of alcohol - co-accused pleaded guilty and was sentenced in the Magistrates Court - offences recorded on CCTV - issue for determination - whether it was established beyond reasonable doubt that the accused was the second man.
Verdicts: Count 1 Not Guilty, Count 2 Not Guilty
Criminal Law Consolidation Act 1935 (SA) ss 134, 169; Juries Act 1927 (SA) s 7, referred to.
R v Gardi [2015] SASC 186; Smith v The Queen (2001) 206 CLR 650; R v Marsh [2005] NSWCCA 331, considered.

R v CROMBIE
[2017] SADC 122
Background

The accused, Brenton Paul Crombie, together with one Gary Warren, was charged with two offences said to have been committed on 8 May 2016. Shortly after 3.00am on that date two men broke into John’s Pizza Bar in Hutchins Street, Coober Pedy. One of the men was carrying a pick axe that was used to break glass in one of the doors in the premises. The two men then entered the premises. While in the premises they stole eight small bottles of beer. Mr Warren, the co-accused, was one of the men, and pleaded guilty to the charges. The issue for determination is whether it has been established beyond reasonable doubt that the accused was the second man.
The charges
The charges against him are: Count 1, aggravated serious criminal trespass in a non-residential building contrary to s 169(1)(b) of the Criminal Law Consolidation Act, the particulars being that on 8 May 2016 at Coober Pedy Mr Crombie entered or remained in John’s pizza bar as a trespasser with the intention of committing an offence therein, namely theft. It is further alleged that he committed the offence in company with another person.
Count 2, theft contrary to s 134(1) of the Criminal Law Consolidation Act, the particulars being that Mr Crombie on 8 May 2016 at Coober Pedy dishonestly dealt with property, namely eight bottles of beer without the consent of the owner of that property, intending to permanently deprive him of that property or make a serious encroachment on his proprietary rights.
Trial by judge alone
The accused elected for trial by judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v Gardi,[1] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities; see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR; and AK v Western Australian (2008) 232 CLR 438 per Hayden J.
[1] R v Gardi [2015] SASC 186.
The general directions were summarised by Lovell J in R v Gardi. As he there said:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence.
The evidence
The evidence in this matter was of narrow compass. The only issue in dispute was the identification of the second man shown on closed-circuit television footage, depicting areas outside the premises and areas inside the premises, including the refrigerators from where the beer was stolen.
I received a number of declarations as Exhibit P1, including from the owner who said that he became aware at about 8.00am on 8 May 2016 that the front door had been smashed. He viewed the CCTV footage of his premises. He arranged for police to be called.
A police officer, Mr Tieman, attended at John’s Pizza Bar in relation to the break-in at about 11.30am on 8 May 2016. He observed the damage to the front doors. He spoke with one of his colleagues, Mr Daniels, who was viewing CCTV footage of the incident. He also viewed that footage.
Mr Tieman became aware that Senior Community Constable Walker had viewed the footage and identified Mr Warren as one of the males. Certain steps were taken in relation to that information, including identifying clothing in the possession of Mr Warren that matched a distinctive jacket being worn by Mr Warren on the morning in question, which jacket can be seen in the footage.
Mr Daniels provided a declaration in which he said he had taken certain steps in relation to the investigation, including disseminating still photographs of the suspects to police personnel with a view to trying to identify them.
Mr McClure, a police officer, viewed the CCTV footage at about 5.00pm on 8 May 2016. He purported to provide a description of the two people shown in the video footage, including a precise age, a precise height, and details of build. He described both men depicted in the video footage as being of the same build, or a similar build, and precisely the same age and height.
Whilst it is not possible to be confident as to the relative height of the offenders from viewing the footage, it does seem apparent that the two offenders are of differing heights. I am not sure of the basis of Mr McClure’s opinion and do not have particular regard to it.
I have also been provided with the CCTV footage, and stills taken from that footage. Quite properly, counsel for the Director of Public Prosecutions did not suggest that I could use that material in any way to identify the perpetrator of the offences.
The issue
I do not specifically list the ingredients for the offences of aggravated serious criminal trespass in a non-residential building and theft. I am satisfied, and it seems to me that it is not controversial, that the elements of the offences are made out. The only issue for consideration is whether there is sufficient evidence to satisfy me beyond reasonable doubt as to the identification of the second man as being the accused.
The evidence called in that regard was that of a Mr Lynch. He was initially called to attend at the Coober Pedy Police Station by the co-accused, Mr Warren, who is Mr Lynch’s nephew.
Mr Lynch purported to identify the accused after viewing the video footage. He conceded in cross-examination that the process of identification had involved him viewing a short passage of the footage, that depicting only the inside of the store, which ran for a matter of something between 10 and 20 seconds.
I have seen that footage. There is a limited opportunity to observe the two men in the store. For almost all of the short period depicted inside the store their backs are to the camera and their heads are covered by hoods attached to their jackets. There is a period of something of the order of two seconds when the man who, I infer is not Mr Warren, shows his face.
Mr Lynch said that he had viewed the footage on a particular occasion at the police station. He made no identification at that time. A day or two after that he had gone back to the police station stating that he was able to identify the second person shown in that footage as the accused, Mr Crombie. It may be of some significance that he was not immediately able to make that identification.
In evidence Mr Lynch said that he was also Mr Crombie’s uncle. He said that he had known Mr Crombie since he was a child. He said that Mr Crombie spent time in Coober Pedy, and visited Coober Pedy with his mother, but came and went. He said that he had seen Mr Crombie possibly about a month before he was called upon to view the footage, although it is not possible to be entirely clear as to the period involved.
Mr Lynch said specifically that he was able to identify Mr Crombie by the way he walked and the way he stood. As I have said, I formed the view that there was only a very limited opportunity to observe the second person’s gait, and even less of an opportunity to observe the way in which the second person stood, from the short piece of CCTV footage.
When shown a still photograph from the footage, which to my mind was relatively indistinct, Mr Lynch was asked what it was about the person in the footage that made him say that the person was Mr Crombie. He paused thoughtfully and said ‘It’s him’. I infer from that that he purported to recognise Mr Crombie’s face.
Identification evidence
The question of the assistance that can be provided to a trier of fact via the expression of opinion evidence regarding the identification of someone depicted on photographs or footage was considered by the High Court in Smith v The Queen.[2] There, police officers had been permitted to give evidence at trial, of their prior dealings with the appellant and purported to identify one of the accused in security camera photographs. After an unsuccessful appeal to the Court of Criminal Appeal, the appellant succeeded in the High Court. There the court held that the evidence of the police officers was inadmissible as irrelevant.
[2] Smith v The Queen (2001) 206 CLR 650.
In R v Marsh,[3] again the critical issue was the identification of the offender, who had been captured by bank security cameras when he was at a counter in the bank, as he left the counter, and as he was passing through the front doors. Photographs were published in the media with an accompanying article. The appellant’s sister saw a published photograph, and the article, and recognised the appellant as her brother. She notified police. The admissibility of that evidence was challenged on a voir dire before the trial judge but ruled admissible.
[3] R v Marsh [2005] NSWCCA 331.
On appeal to the Court of Criminal Appeal the appellant submitted that the evidence of the appellant’s sister was in no different position than the evidence of the two police officers in Smith v The Queen,[4] to which I have earlier referred, and should have been excluded for the same reasons. The Court of Criminal Appeal held that the evidence was admissible. The Court held that the evidence the appellant’s sister was able to give was in a different category from that of the police officers, given the nature of the relationship between the appellant’s sister and the appellant, together with her opportunity during the course of that relationship to become familiar with his stature, his stance and his facial features. That evidence was regarded as direct evidence that the person shown in the photograph was her brother.
[4] Smith v The Queen (2001) 206 CLR 650.
The Court held that, unlike the police officers in Smith v The Queen, the appellant’s sister had grown up with her brother and had an ongoing association with him. She had the advantage, not shared by the jury, of the long-time opportunity of observing her brother and of noting his characteristics, his stature, his stance, his facial features and the manner in which he wore his jacket which the witness claimed was so familiar to her. The Court ruled that the evidence she was able to give, and did give, satisfied the requirement of relevance.
Findings
No challenge was made before me to the admissibility of the evidence, and I find that the evidence of Mr Lynch was admissible having regard to the nature of his relationship with Mr Crombie. However, the extent of the opportunity he had to make observations about the issues he relied upon in purporting to identify the accused are unclear, and in any event, considerably less than the opportunity claimed by Mr Marsh’s sister in that case.
Further, it is not apparent what the quality of the photographs was in R v Marsh, but it is apparent that the quality of the footage in the present case is rather low and its value limited.
On the basis of the evidence of Mr Lynch as to the reasons he was purportedly able to identify the accused and, given the limited evidence as to the extent and nature of the opportunity he had to observe the accused over the years as opposed to a general assertion that he had known Mr Crombie since he was a boy, and having regard to the nature of the footage, and particularly bearing in mind the delay between seeing the footage, reflecting upon that footage, and finally making the identification to police, I am left in a position that, whilst I accept that Mr Lynch was doing his best, and that he may have genuinely believed that the person shown in the footage was the accused and, indeed, whilst it may well be that the person shown in the footage was the accused, I cannot be satisfied, beyond reasonable doubt, that that is so. Given that that is the only evidence connecting the accused with this offending I find the accused not guilty.
Verdicts
As to Count 1 – Aggravated serious criminal trespass in a non-residential building – Not Guilty. As to Count 2 – Theft – Not Guilty.