R v Elgueta No. Sccrm-98-171 Judgment No. S2

R V ELGUETA
[1999] SASC 2

Court of Criminal Appeal: Cox, Prior and Olsson JJ

COX J. Appeal against convictions for robbery and larceny.
The appellant, Marco Antonio Elgueta, was charged in the District Court on an information that alleged the following offences, three by the appellant and his brother jointly and a fourth by the appellant alone -

“MARCO ANTONIO ELGUETA and
DANIEL ERNESTO ELGUETA
are charged with the following Offences
First Count
Statement of Offence
Robbery. (Section 155 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Marco Antonio Elgueta and Daniel Ernesto Elgueta on the 3rd July, 1997 at Unley, robbed Sharon Margaret Hutton of money to the amount of about $780.
Second Count
Statement of Offence
Larceny of a Motor Vehicle. (Section 131 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Marco Antonio Elgueta and Daniel Ernesto Elgueta on the 15th July, 1997 at Adelaide, stole one motor vehicle to the value of $17,000, the property of Euro Alfa Company.
Third Count
Statement of Offence
Armed Robbery. (Section 158(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Marco Antonio Elgueta and Daniel Ernesto Elgueta on the 21st July, 1997 at West Richmond, being armed with an offensive weapon, namely a knife, robbed Angela Mary White of a purse of the value of $60, and money in the amount of about $315.
MARCO ANTONIO ELGUTA
is charged with the following offence
Fourth Count
Statement of Offence
Armed Robbery. (Ibid.)
Particulars of Offence
Marco Antonio Elgueta on the 16th July, 1997 at Plympton, being armed with an offensive weapon, namely a screwdriver, robbed Judy Kathryn Morrison of money in the amount of about $545.”

The appellant stood trial alone. It was an agreed fact at the trial that Daniel Elgueta had pleaded guilty to counts one, two and three and had been remanded for sentence. The appellant did not dispute that someone had committed the offences alleged against him, but he said that it was not him. The issue, then, was identity. The jury found him guilty on all four counts.

The appellant, a young man of twenty-five, arrived in Adelaide from Perth in June 1997. He found temporary accommodation in a flat in George Street, Parkside. He was joined on July 2 by his younger brother, Daniel. The following evening, about 7.50 pm, a man entered the TAB branch on Unley Road, Unley. He presented a marked TAB ticket to the attendant for processing and she opened the cash drawer. He got across the counter and assaulted her and threatened to stab her. He took money from the drawer and left the premises. He left the ticket behind and the evidence of a fingerprint expert was that he “found consistency” between a partial fingerprint on the ticket and a specimen fingerprint taken from the appellant after his arrest. By this he meant that there were eight points of comparison between the two prints, not enough for absolute certainty but leaving only “a very slim possibility” of the prints having been made by different people. The Crown case was that the robber was the appellant’s brother and that the appellant must have given him the TAB ticket, already filled in, to take into the TAB branch. Shortly before the robbery a witness, Mrs Post, had been sitting in her stationary car on Unley Road near the TAB shop. She was early for an appointment and spent 20 or 25 minutes observing a man at a stall outside a bookshop on the opposite side of the road. She said the area was well lit and she kept him under observation because she was suspicious. He was wearing a bomber jacket. At one point he crossed the road and spoke to a taller man (who on the uncontested evidence must have been the robber) and then went back to the bookstall. After the robbery the taller man joined his companion and the two hurried up a side street in the direction of Parkside. Six weeks later Mrs Post picked out the appellant’s photograph from a book of twelve photographs presented to her by the police. There was evidence that the appellant frequented the Adelaide Casino and TAB branches, including this branch, and that he was losing a lot of money. This was the essence of the Crown’s case against him on count one.
Count two related to the theft of an Alfa Romeo motor car from a trader’s showroom on Pulteney Street, Adelaide on 15 July 1997. Two young men entered the showroom late one morning and looked at the car. According to the proprietor neither of them touched it; indeed, their behaviour was unusual in that respect. The men left. Some time later, about 12.15, the car was driven away by two thieves. The proprietor recognized the driver as the taller of the two men who had inspected the car, but he had only a glimpse of the man in the passenger’s seat. A few days later the car was found abandoned near the scene of the armed robbery that was the subject of count three. The Crown’s case was that the earlier inspection and the subsequent theft were carried out by the appellant and his brother.
Count four is the next in time. About 5.50 pm on 16 July 1997 a young man presented a winning ticket to the attendant at the Plympton TAB branch. When the attendant opened the cash drawer he produced a screwdriver and told the attendant to move over. He stole money from the drawer and walked out. He went in the direction of a car park. He left the TAB ticket behind. The evidence was that it had been issued by the Richmond TAB branch at 5.18 pm that day. According to the police expert the ticket had a fingerprint on it that was identical with the appellant’s specimen print. The Crown said that the appellant was the robber.
Count three related to a robbery at the West Richmond Post Office on July 21. Mrs White, the victim, put the time of the robbery at five or ten minutes past four. A man came in and asked for change for a telephone call. Mrs White opened the cash drawer and at that point another man, wearing a balaclava cap, entered the post office, jumped the counter, presented a knife to Mrs White and stole cash from the drawer and also Mrs White’s purse. When the two men ran away from the shop they were observed by Mr White who was just driving up in his car. He said the time was “approximately 4 o’clock, just a little bit after, I think”. He saw the men run to a white car and he concluded that there had been a robbery. He chased the car and rammed it but it got away. He pursued it and soon afterwards found it abandoned some distance away. There was no sign of the occupants. The police were called. They inspected the car. They found the appellant’s fingerprints on the inside and outside of the passenger’s door and his brother’s fingerprints on the driver’s door. Inside the car was a balaclava cap which showed traces of saliva which, on analysis, disclosed a DNA profile identical (so far as it went) with Daniel Elgueta’s DNA profile. Under the passenger’s seat was a blank passport application form which, according to the police expert, showed a fingerprint identical with the appellant’s. Near the car was an abandoned bomber jacket. It had a blood stain on it which, according to the analyst, had a DNA profile identical with the appellant’s. The car was the Alfa Romeo that had been stolen from the Pulteney Street showroom six days earlier.
The appellant was arrested at the Adelaide Casino on 25 July 1997. He declined to be interrogated.
The accused gave evidence in his defence. He said that he was not at the Unley TAB at the time of the robbery. He gambled and bought TAB tickets and would leave them in his jacket or on a table at the flat he shared with his brother. He was not with his brother that evening. He and his brother did inspect the Alfa Romeo on July 15. He had touched it, indeed sat in it, during the inspection. Afterwards the two returned to the flat at Parkside. The appellant then went to a laundromat leaving his brother at the flat with a male friend whom the appellant did not know. He knew nothing about the theft of the car. The passport application form was not his. The bomber jacket had been brought to Adelaide by his brother. As for count four, he did buy a TAB ticket at the Richmond TAB on the afternoon of July 16 but he was not at the Plympton TAB where the robbery occurred. At the time of the robbery he was at a city motel where he and his brother were then staying. For count three he put forward an alibi that was supported by Telecom records showing that a telephone call was made to Perth from the motel room at 4.22 pm on July 21. Assuming that the time estimates of Mr and Mrs White were correct - and they offered plausible explanations for their estimates - there was police evidence that it would be just possible to drive from the abandoned car to the motel in time to make the 4.22 telephone call. However, that assumes the immediate availability to the robbers of a vehicle, and there was no evidence that they had a back-up vehicle there. The appellant said that he was at the motel that afternoon. Presumably the jury decided that Mr and Mrs White must have been mistaken in their estimates of the time of the robbery.
That is a brief outline of the evidence. I have not said much about the victims’ and Mrs Post’s respective descriptions of the men who robbed them. They could be said to be generally supportive of the Crown case, though far from conclusive, but with points of discrepancy available to the defence. However, those points were not likely to give a jury much trouble if they considered that the other evidence against the appellant was strong, as indeed it was.
Two grounds of appeal were argued. The ground relating to the photographic identification can be disposed of quite briefly.
The police had a statement from Mrs Post about the Unley robbery. They asked the appellant if he would take part in an identification parade and he agreed to do so provided that he had a solicitor present. However, when the police got in touch with the solicitor nominated by the appellant, the solicitor told them that the appellant refused to take part in a line-up. The police then fell back on the photograph procedure. Before the trial began the defence applied to have the photographic identification excluded from the evidence on the ground that the appellant had never told the solicitor that he would not go in a line-up, and that, remarkably, proved to be the position. The solicitor (who is not acting in the appeal) gave evidence on the voir dire. He confirmed that he told the detective that the appellant did not wish to take part in a line-up, and he told him this without having obtained any instructions at all on the subject from the appellant; he simply made what was evidently his routine response to a request of this sort. He thought that was in any client’s best interests, certainly if the circumstances suggested that the client was likely to be identified in a line-up. On this evidence it was submitted to the learned trial Judge that, while the police could not be blamed for what happened, it was unfair to the accused to have the jury decide the issue of identification on an inferior and dangerous type of identification evidence. The Judge declined in the exercise of his discretion to exclude the evidence.
I do not think there is anything in this point. The photographic evidence was, of course, relevant and admissible. See Alexander v The Queen (1981) 145 CLR 395. It was also important. The police had acted properly and reasonably; so, indeed, had the appellant, if not his solicitor. It often happens that a party must rely on evidence, or accept the absence of evidence, that makes the trial less than perfect. It was very unfortunate that things happened as they did, but that was no reason to deny the jury the benefit of Mrs Post’s photographic identification. The Judge gave the jury a very careful direction about the relative disadvantages of that kind of identification. No complaint is made about that. It is significant that this was not the only evidence implicating the appellant in the Unley robbery. Whether in all the circumstances the photographic identification evidence should be excluded was a matter for the discretion of the learned Judge and it is impossible, in my view, to say that his discretion miscarried. Nor can it be said now that the trial itself miscarried on that account.
I should say that Mr Boucaut, who appeared for the appellant on the appeal, also argued that the prejudice to the appellant in admitting this evidence was compounded by his need to offer some form of explanation to the jury as to why the identification parade did not take place, that this meant telling the jury that a solicitor had advised the appellant not to take part in a line-up, and that the jury might therefore have concluded that the solicitor gave that advice because he feared that a positive identification might otherwise result. But there was no need for the jury to be told anything about the solicitor’s advice. They could have been told simply that the appellant agreed to take part in a line-up but that, through a misunderstanding for which neither the appellant nor the police were to blame, no line-up was conducted, so that the police relied instead on the inferior photographic technique. The unnecessary details of the photographic identification came out in evidence, presumably at the instigation, or at least with the acquiescence, of the defence. The trial Judge was not asked to warn the jury against drawing an adverse inference from the solicitor’s unwarranted statement to the police.
In my opinion this ground of appeal is not made out.
The more substantial ground of appeal relates to the learned Judge’s directions on the evidential effect of the four counts being tried together.
The Crown argued to the jury that an important feature of the evidence was the way the appellant’s fingerprints turned up on each occasion, either on a TAB ticket (two counts, although the Unley print was said to be not absolutely conclusive) or in or around the stolen car (two counts). Counts one and four involved different TAB tickets. The car identification evidence related directly to both counts two and three. Prosecuting counsel argued that there were too many fingerprints, covering all four charges, for there to be an innocent explanation for them, and in his pre-trial admissibility submission the prosecutor relied on this Court’s decision in R v Mayfield (1995) 63 SASR 576. The learned Judge held that the evidence on the four counts was cross-admissible, but when he summed up to the jury he did so in terms of striking similarity and said nothing to the jury about rebutting an innocent explanation for the finding of any particular fingerprint. Defence counsel complained about the direction when the jury had retired, but the Judge declined to redirect on the subject. The appellant says that the Judge “erred in directing that the jury could use striking similarities between the alleged offences to make inferences of guilt.”
Counsel who appeared on the appeal referred to two recent decisions in this Court that dealt with similar fact evidence and improbability reasoning in identification cases having some resemblance to the appellant’s case.
R v Armstrong (1990) 54 SASR 207 was a case of five breaking offences being tried together. They were all committed in daylight, in the same section of the Adelaide Hills, within a period of six months of one another, and had as a common factor the proved presence of Armstrong or his car, or both, at or near each of the premises in question about the time the breaking took place. Armstrong’s car was stopped not long after the last break and property that was stolen in that break was found in the boot of the car. Armstrong lived a considerable distance from the area where the breaks took place. This Court held that the evidence on all five counts was cross-admissible, and had been properly admitted at the trial notwithstanding its prejudicial effect, because of the improbability of Armstrong’s being in the vicinity of the five breaks about the time they were committed through mere coincidence. There were eye witnesses who actually saw Armstrong or his car on each occasion, but one can imagine circumstances in which a fingerprint, identified as Armstrong’s, would have been an effective substitute for an actual sighting. The time aspect was important, so a fingerprint of indeterminate age might not do, but a fingerprint of Armstrong’s that was found, say, on a victim’s car that had just been washed and was standing outside the victim’s house at the time of a break would have served the Crown’s purpose as well as a sighting of Armstrong himself or his car. However, it was a critical element in Armstrong that there were five offences possessing the common features.
In Mayfield two armed robbery charges were tried together. The issue was identity. The robberies occurred on consecutive days in the north-eastern suburbs of Adelaide. The robberies were similar in type, and there were similarities between the descriptions of the offenders given by eye witnesses called with respect to each count, but this Court held that the evidence on the two counts was not cross-admissible on hallmark grounds of the kind accepted in Sutton v The Queen (1984) 152 CLR 528, notwithstanding evidence that Mayfield’s fingerprints were found on each of the (different) stolen cars that were used in the two robberies. However, the Court upheld the joint trial of the two counts on the ground that the Crown was entitled thereby to rebut a possible defence that Mayfield’s fingerprints got onto the cars innocently - say, by an accidental touching. It was another instance of improbability reasoning justifying the admission of similar fact evidence. Mayfield may have touched one of the getaway cars innocently, without being criminally implicated in the robbery, but that was most unlikely to have happened with two different getaway cars in two days.
I turn to the present appeal. In my opinion the fingerprint evidence with respect to all three of the robbery counts was admissible in proof of the Crown’s case against the appellant on any one of them. The fingerprint evidence on count two was admissible to prove the Crown’s case against the appellant on that count and also count three, and the appellant did not argue that, if it was admissible on count three, it was not admissible on counts one and four as well. The evidence was so admissible, in my opinion, to rebut a defence that there could reasonably be an innocent explanation for the presence of the appellant’s fingerprint (or jacket) in the prosecution evidence directly and obviously relating to any particular count. The evidence on all four counts was thus for practical purposes cross-admissible.
This is not the way the learned trial Judge approached the matter with the jury. What his Honour said was -
“The Crown argues that you ought to be satisfied that so striking are the similarities between all of the occurrences in question they could not have arisen by coincidence, but they clearly demonstrate that the same person was involved in perpetrating all of them and that it would be an affront to commonsense to conclude otherwise.
If you are satisfied that the accused did perpetrate any one of the occurrences in question, then you could use the similarity to each of the others as evidence that he may well be guilty of the other charges. The approach that you should take is this.
First, you must look to see whether you are satisfied that there are, in fact, similarities between the relevant occurrences which are so striking that they could not reasonably have arisen by coincidence and that they indicate beyond reasonable doubt that the same person was responsible for each of them. That involves a consideration of the existence and nature of those occurrences and a comparison between them.
Second, you must be satisfied beyond reasonable doubt on the basis of evidence, other than the mere evidence of similar occurrences, that the accused is guilty of at least one of the crimes charged.
Third, if you are satisfied from striking similarities that the same person was responsible for each of the occurrences, and you are satisfied from other evidence that the accused is guilty of at least one of the crimes, you may reason that the accused also committed the other crimes charged.
That line of reasoning would then be taken into account, together with all of the other evidence in the case, in reaching your conclusion as to each count, but I must remind you and emphasise that nothing that I have said on this subject in any way detracts from the onus which the Crown bears of proving, whether in this way or by some other line of reasoning, the guilt of the accused beyond reasonable doubt as to each separate count in the information.”

In fact, it was common ground on the appeal that this was not the Crown argument. The Crown put to the jury simply that the effect of all the evidence about fingerprints made an innocent explanation for the association between the appellant’s fingerprint (or jacket) and any particular count untenable.
Was the direction erroneous? While any rigid categorization of similar fact evidence is better avoided, the notion of “striking similarities” in an identification case generally means that the evidence is of the hallmark kind, so that proof that the accused committed one of the multiple offences charged will necessarily lead to his conviction on all the other counts in which the same strikingly similar features occur. Cf Sutton. In the present case the use of a strategem to get the shop attendant to open the cash drawer was a significant similarity in the evidence relating to the three robberies, but obviously the most important similarity was provided by the fingerprint evidence. The mere fact that there is some evidence tending to identify a defendant as the person responsible for a series of offences will not make the evidence cross-admissible, but the fingerprint evidence in the three robberies here was strongly probative, notwithstanding the guilty brother’s access to the appellant’s belongings, and there was also the modus operandi evidence. There is sometimes more than one way of describing or characterizing a particular body of admissible propensity evidence. Compare R v Pfennig [No. 2] (1992) 57 SASR 518, at 524-5. I think, on reflection, that directing the jury along striking similarity grounds was not an error. Compare Mayfield (at 579-580) where there were only two relevant crimes. While, for the reasons I have given, it would have been better, in my view, had the jury been directed simply in terms of improbabilities, I do not think that the passage I have quoted from the summing up amounted in all the circumstances to a misdirection.
At any rate, even if the learned Judge’s categorization of the case as a striking similarities case was an error, I am satisfied that it could not have led to a miscarriage of justice. His Honour did not tell the jury that these were striking similarities. He identified four similarities of varying weight, and left it for the jury to decide whether, taken together, they were so striking that they could not have arisen by coincidence but rather indicated beyond reasonable doubt that the same person was responsible for each of them. While he did say that, if they were satisfied from striking similarities that the same person committed each of the crimes, and if they were satisfied from other evidence that the appellant was guilty of at least one of the crimes, they could reason that he also committed the other crimes charged, he went on to tell them that none of this detracted from the need for the Crown to prove, whether in this way or by some other line of reasoning, that the accused was guilty of each separate count in the information. What could not have failed to impress the jury forcibly was the incriminating impact with respect to each count of all the fingerprint evidence. If the learned Judge’s treatment of the similar fact evidence was inappropriate, it could not, in my opinion, have resulted in a miscarriage of justice.
Mr Boucaut also argued - though this was not in the notice of appeal - that the learned Judge erred in not giving an adequate direction as to the impermissible use of the propensity evidence. Often a warning along those lines will be necessary. See Armstrong at 220 and Mayfield at 582. Fashioning an intelligible and effective warning suitable to this particular case along the lines discussed in R v Schlaefer (1984) 37 SASR 207 would not have been easy. No redirection of this kind was sought. It was a very strong case. I do not think that there was any real possibility of the appellant being unfairly prejudiced by the Judge’s treatment of the similar fact evidence.
In my opinion the appeal should be dismissed.
PRIOR J. I agree with the reasons given by Cox J. The appeal should be dismissed.
OLSSON J. I agree that the appeal should be dismissed for the reasons given by Justice Cox.

[1999] SASC 2

20 January 1999