R v Fitzgerald - [2005] SADC 118

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FITZGERALD
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Acting Judge Wilson
25 August 2005
CRIMINAL LAW - PARTICULAR OFFENCES
One count of aggravated serious criminal trespass in a place of residence, one count of larceny, and one count of common assault - trial by Judge alone.
Criminal Law Consolidation Act (1935) ss 39, 131 and 170(2), referred to.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - FINGERPRINTS
Evidence-observation evidence-circumstantial evidence-fingerprint evidence plus other circumstances.
Parker v R (1912) 14 CLR 681; R v Buckingham and Vickers (1946) 1 WWR 425; R v Keller (1970) 1 CCC (2d) 360, applied.
Re Belhaven and Stenton Peerage (1875) 1 AC 278 (HL), considered.

R v FITZGERALD
[2005] SADC 118

These are my Reasons for the Verdicts which were announced on 19 August 2005.
THE LAW RE FINGERPRINT EVIDENCE
The most convenient course for me to take, in giving my Reasons for Verdicts in this trial by Judge alone, is to state, before coming to the facts of this case, what I understand to be the law with regard to fingerprint evidence of identification.
In Parker v R (1912) 14 CLR 681, the High Court of Australia, without deciding whether, when evidence of fingerprints is the only evidence of identity, that is sufficient to support a conviction, held that evidence of fingerprints, in connection with other circumstances, may, of itself, be sufficient evidence of the identity of an accused person with the person who committed the crime charged.
Griffith CJ, who delivered the judgment of the Court, said (at page 683) :
A fingerprint is therefore in reality an unforgeable signature. That is now recognised in a large part of the world, and in some parts has, I think, been recognised for many centuries ….. If that is so, there is in this case evidence that the prisoner’s signature was found in the place which was broken into, and was found under such circumstances that it could only have been impressed at the time when the crime was committed. (The emphasis is mine)
In the Canadian case of R v Buckingham and Vickers (1946) 1 WWR 425, Robertson J, in the Supreme Court of British Columbia, said (at page 430) :
In my view, the evidence of fingerprint experts is opinion evidence and admissible as such. The weight and value of it are questions for the jury after the usual directions to reasonable doubt and circumstantial evidence.
In the Canadian case of R v Keller (1970) 1 CCC (2d) 360, Culliton CJS, in the Saskatchewan Court of Appeal, held that the presence of an accused’s fingerprint on a paper match-cover found near the scene of a safe, which had been opened by means of a cutting torch, was sufficient circumstantial evidence to convict the accused of the offence of breaking and entering. The learned Judge said (at page 363) :
In my respectful view, a careful review of all of the evidence satisfies me, as it did the learned trial Judge, that the presence of the fingerprint of the appellant on the match-cover is consistent with the conclusion that the appellant committed the offence and inconsistent with any other rational conclusion than that the appellant is the guilty party. The evidence, in my opinion, is such as to prove the charge beyond reasonable doubt.
The case of R v Barbera (1972) 1 NSWLR 612, in the Court of Criminal Appeal of the Supreme Court of New South Wales, though distinguishable on its facts from the present case, is nonetheless instructive. In that case no fingerprints were found on the car allegedly stolen by the convicted thief, except for some found on the small trim along the lower edge of the bonnet in the front of the car. There was no other evidence to connect the alleged offender with the car. Street CJ said (at page 613) :
The substantial matter which has occasioned me concern is whether the mere finding of the fingerprints, with no other evidence whatever to connect the applicant with the car in question, nothing to associate him with it in any way whatever, can be regarded as sufficient to justify a conviction on the charge of larceny.
Owen J said (at page 613) :
I think that, in the circumstances of the case, the discovery of the applicant’s fingerprints on the front of a motor car is not sufficient to enable a finding to have been made that he stole the car. The prints, which were on the outside of the car, afforded the only evidence against the applicant. There was nothing else to connect him with this theft.
I do not wish to be casting any doubt at all on the value of fingerprint evidence as evidence of identification, and, had one of these prints been found inside the car , I would have thought the jury could properly convict. The position of the print and the angle at which the thumb must have been held when it was made create in my mind a very strong suspicion that the print was not placed there accidentally while the applicant was merely passing the car when it was standing in the street. (The emphasis is mine)
Herron J (as he then was), after adopting many of the words used by Griffith CJ in Parker v R supra (at page 683), said (at page 613) :
The only question which arises is, could the fingerprint in question have been impressed at the time when the crime was committed; that is always the crucial question. In this particular case, whilst I believe that the evidence points somewhat in the direction of the applicant having been associated with this car at the time of its being stolen and stripped, nonetheless there is no evidence in the case to show when or how the fingerprints might have been placed on the car. It is not possible, I think, to say dogmatically that they could only have been impressed at the time when the crime was committed. There is another hypothesis perhaps open, and that is that they may have been placed there in some accidental way.
To apply that reasoning of that Judge, who was later to become Chief Justice of New South Wales, to the facts of this case, there is evidence, to be identified by me later in these Reasons, to show when and how the fingerprints might have been placed on the shot-glass located on the kitchen bench; as will become apparent, it is possible, I think, to say dogmatically (as I will be saying) that the fingerprints of the accused could only have been impressed at the time when these crimes were committed; there is no hypothesis open to the effect that they may been placed there in some innocent way.
The learned author of Law of Evidence in Australia (2nd Edition) by Peter Gillies summarised, in a helpful manner, the law on this topic (at page 41) :
Evidence of a person’s fingerprints may be received on the question of his or her identification ….. A person can properly be convicted of an offence, notwithstanding that the only evidence of the perpetrator is fingerprint evidence, where this evidence, taken with (and considered in the light of) the other evidence, establishes his or her guilt beyond reasonable doubt.
The case of R v Dimitropoulos, unreported, Court of Criminal Appeal, decision S3625, South Australian Supreme Court, dated 18 September 1992, cited by Mr Aitken, is to be distinguished on its facts from the present case.
As King CJ said (at page 2) :
The prosecution case really consisted entirely of the presence of the fingerprints on the allegedly stolen motor.
and
The only incriminating evidence was the presence of the appellant’s fingerprints on the engine.
and
The prosecution is left with the presence of the fingerprints on the engine.
Unlike the present case where, on the evidence, there was no innocent way in which the accused might have come to place his fingerprints upon the shot-glass in the period August to November 2002, there were, in the case of Dimitropoulos, held to have been many ways in which the accused, in that case, might have come to place his fingerprints upon the engine; there were ‘many such ways’; the presence of the fingerprints remained equivocal.
THE EVIDENCE IN SUPPORT OF THE CHARGES
The accused was arraigned, at the commencement of this trial by Judge alone, with one count of aggravated serious criminal trespass in a place of residence [contrary to section 170(2) of the Criminal Law Consolidation Act (1935)], one count of larceny [contrary to the now repealed section 131 of the Act] and one count of common assault [contrary to section 39 of the Act], and he pleaded not guilty to each count.
The evidence in support of count one was to the effect that the accused, on 16 November 2002, at Prospect, while in the company of other unknown persons, none of whom was before the Court, having entered, remained in the place of residence of Jonathon Horton and Manit Boon-Ngork as a trespasser and knowing that he was a trespasser, with the intention of committing an offence therein, namely larceny, when Jonathon Horton and Manit Boon-Ngork were lawfully present in the said place of residence, and knowing of their presence.
The evidence in support of count two was to the effect that the accused, on the same occasion, as part of a joint enterprise, stole a set of bicycle lights, one wallet, one mobile telephone, assorted compact discs, DVDs and X-Box games, together of the value of $1,200 the property of Jonathon Horton.
The evidence in support of count three was to the effect that someone, possibly the accused, on the same occasion, assaulted Jonathon Horton.
The crime of aggravated serious criminal trespass in a place of residence is committed when a person, either alone or in the company of other persons, enters or remains in a place of residence as a trespasser and knowing that he was a trespasser, with the intention of committing an offence therein, and where other persons, such as the victims of the trespass and the occupiers of the place of residence, are lawfully present in the said place of residence and the trespasser knows of the victim’s presence or is reckless as to whether anyone was in the place of residence, and, finally and importantly, the accused is identified as that person.
The crime of larceny (or stealing), as set out in the now-repealed section 131, is committed when a person, either alone or in the company of others, as part of a joint enterprise, dishonestly, and without the consent of the owner, fraudulently and without any claim of right made in good faith, takes and carries away any property capable in law of being stolen, with the intention, at the time of such taking, of permanently depriving the owner of that property, and, finally and importantly, the accused is identified as that person.
The crime of common assault is committed when a person applies force directly and intentionally to and against another, without lawful justification or excuse, or when that person threatens to so apply force to and against another, without lawful justification or excuse, with a present and immediate ability to carry that threat into effect, so that that other person is put in fear of immediate violence, and, finally and importantly, the accused is identified as that person.
It is not necessary that I should set out in these Reasons for Verdicts each and every of the elements of each of these offences. Suffice it to say that the only real issue, in relation to each count, was the issue of identity. Has it been proved by the prosecution beyond reasonable doubt that the accused was one of those who remained in the place of residence as a trespasser? Has it been proved that the accused, in the company of others as part of a joint enterprise, stole the goods in question? Has it been proved that it was the accused who so threatened to apply force to and against Jonathon Horton?
Dealing with count one first, it has been clearly proven beyond reasonable doubt that, on the evening in question, each of four men, in the company of each other, remained in the subject place of residence of Jonathon Horton and Manit Book-Ngork as a trespasser, and each knowing that he was a trespasser, with the obvious intention of committing the offence of larceny, and where the victims of the trespass and occupiers of the place of residence were lawfully present in the said place of residence, as each of the four men must have known.
It is the identity element, namely that the accused was one of those who remained in the place of residence in those circumstances, that has required most of my consideration.
Dealing with count two secondly, it has clearly been proven beyond reasonable doubt that each of the four men, as part of a joint enterprise, dishonestly and without the consent of the two victims, the occupiers of the place of residence and the owners of that property, fraudulently, and without any claim of right made in good faith, took away the subject property that was capable, in law, of being stolen, with the intention, at the time of such taking, of permanently depriving the owners of that property.
It is the identity element, namely that the accused, in the company of others as part of a joint enterprise, was one of those who stole the property, that has required most of my consideration.
Dealing with count three thirdly, it has clearly been proven beyond reasonable doubt that the victim, Jonathon Horton, was threatened with a steak knife by a man, with the present and immediate ability to carry that threat into effect, and was put in fear of immediate violence.
It is the identity element, namely that it was the accused that so threatened him, that has required most of my consideration, and there is an absence of convincing evidence that it was the man who had been handling the shot-glass, the man who had left fingerprints, who was so identified.
It is not in dispute that each of the four men, in the company of each other, having entered the subject place of residence, remained therein as a trespasser, and each knowing that he was a trespasser, with the intention of committing an offence therein, namely larceny. It is not in dispute that each of the four men must have known that Jonathon Horton and Manit were lawfully present in the place of residence. What was in dispute in relation to count one was that the accused was one of those trespassers.
It was not in dispute that the subject items of property were stolen from the subject place of residence as part of a joint enterprise. What was in dispute in relation to count two was that the accused was one of those who, in the company of each other, were the thieves.
It is not in dispute that Jonathon Horton was assaulted by a person who threatened to apply force to and against him, without lawful justification and excuse, and with the present and immediate ability to carry that threat into effect. What was in dispute in relation to count three was that it was the accused who so threatened him with a steak knife.
THE DEFENCE POSITION
The defence position is that the prosecution has not proved its case beyond reasonable doubt in relation to any of the charges. The defence contend that there was insufficient evidence to prove the identity of the accused as the offender or one of the offenders in relation to each count.
The defence argued that fingerprints alone do not constitute proof of identification.
In the language of the law of circumstantial evidence, the defence argued that there is a reasonable hypothesis consistent with the accused’s innocence, such hypothesis being the accidental impression of fingerprints when, contrary to the evidence of Peter Aitchison, the accused allegedly visited him at the Unit to buy drugs, when he (Peter Aitchison) was residing with Jonathon Horton in the Unit in about July/August 2002.
Implicit in that hypothesis was the contention (and possibility) first, that Jonathon Horton was mistaken, or giving false evidence, when he testified to having rinsed and dried the shot-glass with a tea towel in the circumstances he explained at some time as late as August/September 2002, and, secondly, that the word of Peter Aitchison, a young man with a significant criminal record and standing ‘unrehabilitated’, was simply not worthy of credence, and was valueless.
The defence takes some comfort from the evidence that is said to be lacking, such as the absence of evidence of possession of the stolen property, the absence of evidence collected for testing for DNA comparison, the absence of other forensic scientific evidence, whether inculpatory or exculpatory, which might have been collected, the absence of any photographic identification evidence from either of the two men, Manit and Jonathon Horton, who clearly did have the opportunity to observe (and did observe) the four men who are said to have included the accused, the non-collection and non-production of the knives, the equivocal nature of the description evidence, including the photograph taken of the accused on the evening of his arrest, and the word that might be used to characterise this police investigation, namely, ‘cursory’.
Mr Aitken, on the accused’s behalf, described Jonathon Horton’s evidence regarding the provenance of the shot-glass and the rinsing and drying of it with a tea towel in the context of the purchase of dog food as ‘a palpably ridiculous explanation’. I reviewed that submission and the suggestion of recent invention before reaching a final view as to Jonathon Horton’s credibility and reliability.
Finally, Mr Aitken urged me to approach the circumstantial evidence here in the appropriate legal manner and in accordance with legal authority, which, not inappropriately, can be described as ‘the Van Beelen/Chamberlain/Shepherd path to proof by means of circumstantial evidence’.
THE PROSECUTION WITNESSES
The prosecution witnesses were as follows :
1.     Mr Manit Boon-Ngork was one of the two occupants of the Unit and an eyewitness to what occurred from the time the four men entered the Unit through the open wooden front door and the closed (but unlocked) front security screen door and until they left the premises. Apart from a general description of the men who entered the Unit, he was unable to give (and did not give) any evidence which purported to directly identify the accused as one of the men. But, as Mr Aitken frankly conceded, ‘Manit was certainly a witness of truth’.
2.     Mr Ashley Justice was a previous occupant of the Unit, before Peter Aitchison and before Manit. He did not claim to know the accused, and he did not recall the accused ever being at those premises while he (Ashley Justice) lived there.
3.     Mr Jonathon Horton was the second of the two occupants of the Unit at the relevant time. He said that he was asleep in front of the television at the time when the four men entered the Unit, but he was able to give an eyewitness account of what occurred after he woke up. He too was unable to give (and did not give) any evidence which purported, directly and positively, to identify the accused as one of the four men.
4.     Mr Peter Aitchison was a previous occupant of the Unit and was aged 22 years at the time he gave his evidence. He was the person the four men were apparently looking for. He said, in evidence, that he lived in the Unit for about a month or a month and a half in about July 2002.
He testified to knowing the accused and to having known him for most of his life. But he said that he had not associated with him since about 2001, ‘roughly from 2001 sometime’.
He was adamant that, while he lived at the Unit, the accused never attended at that address while he (Peter Aitchison) was there.
[I have mentioned four witnesses thus far. I assessed each of those witnesses as honest and generally reliable witnesses. I have already mentioned Manit, ‘the witness of truth’. Notwithstanding Peter Aitchison’s history of criminal conduct dating back several years, which led me to be cautious in assessing him, I found him to be a truthful witness. He was not broken down under cross-examination. He was open and frank in acknowledging his past misconduct, and he impressed me when he stated that he ‘had quite a bad past’ but that he had ‘done his best’ in trying to turn his life around; which he said he had done. He said that he ‘did most definitely reach a stage in (his) life when (he) decided to stop’ that antisocial behaviour.
Where there were some differences in the observations of Manit, on the one hand, and Jonathon Horton, on the other hand, I preferred the former. He (Manit) was more awake and more attentive to what was going on, especially in the beginning, and he was less emotionally upset by what occurred than his flatmate, and he had neither been drinking alcoholic liquor nor smoking cones of cannabis.
Jonathon Horton was not discredited by his admission that he had not told the police the whole truth regarding cannabis use or by the fact that he remembered some more things subsequent to his first statement given to the police. I construe none of Jonathon’s evidence as ex post facto reconstruction or recent invention. I regard his evidence as having the ring of truth about it.]
5.     Senior Constable Ingrid Olfacius was present when the accused was arrested and later during a record of interview, during which the accused exercised his legal right to decline to answer police questions.
6.     Detective Senior Constable Peter Biermann was the officer who took the initial crime report from the alleged victims and who attended the Unit to investigate the report.
7.     Crime Scene Investigator Peter Spence was the police officer who attended at the crime scene at the Unit later on the night in question, who took photographs, generally examined items for fingerprints, and he located some fingerprints on a TV cabinet, a ceramic bong and a shot-glass, and he took photographs of those fingerprints and attended to other procedures at the Unit and elsewhere. He gave some expert evidence about certain forensic procedures.
8.     Senior Sergeant Dean Greenlees was the experienced fingerprint expert who identified, in particular, the fingerprints on the shot-glass as being those of the accused.
[The impression numbered six was ‘identical to the right middle finger of the accused’ and the impression number seven was ‘identical to the right thumb of the accused’. Importantly, he said that, in his experience, fingerprints from two different people can never be identical; ‘It is never known or heard of for that to have occurred’. In other words, his evidence was to the effect that the fingerprints on the shot-glass must have been impressed by the accused. He also said that, if a fingerprint was on a glass and if the glass was rinsed under a tap and then dried off with a tea towel, ‘there would be no fingerprint there’.]
9.     Senior Constable Anthony Woolley was the investigating officer in this matter and he was Detective Senior Constable Biermann’s police partner. He attended at the Unit on the night of the incident after the crime report had been received. He was the officer who arrested the accused on 20 February 2003. He acknowledged, in cross-examination, that Manit’s mobile phone located at the front of the Unit shortly after the incident was not seized by the police, that the bong located in the Unit had not been seized and tested for DNA, and that the accused’s premises at the date of his arrest were not searched for any of the stolen property.
[All of those police witnesses gave credible and satisfactory evidence. None of them was discredited or led to qualify his or her evidence under searching cross-examination. Senior Sergeant Greenlees was particularly impressive as an expert witness.]
FINDINGS

I now announce my findings, about each of which I am satisfied beyond reasonable doubt :
1.     For roughly a year and a half in about 2001, Jonathon Horton and Ashley Justice, who were work-mates at that time, resided at Unit 4/162 Prospect Road, Prospect (‘the Unit’).
2.     In or about July 2002, Peter Aitchison, who was then aged about 19 years, lived for about a month or a month and a half, at the Unit.
3.     Those premises had been occupied by Jonathon Horton since about the year 2001, and were still then occupied by him.
4.     At no time while Peter Aitchison lived at the Unit, did the accused, who was known to Peter Aitchison, ever attend at that address while he (Peter Aitchison) was there.
5.     At no time while Peter Aitchison lived at the Unit, did Peter Aitchison sell drugs from those premises to the accused or to anyone else.
6.     After Peter Aitchison moved out of the Unit in about August 2002, Manit moved in about one month later (September 2002).
7.     As at 16 November 2002, Manit had lived at the Unit for about three months, and Jonathon Horton was still residing there.
8.     At about 9.30 pm on the night of 16 November 2002, Manit was sitting on a cane couch in the lounge-room of the Unit watching television. Jonathon Horton was asleep on a large tartan couch in the lounge-room.
9.     The wooden front door of the Unit was open, and the security screen door was unlocked but closed.
10.    Manit heard a knock at the front door. He then went to (and looked through) the security screen door, having turned on the light. He saw some people outside. Although he said that there were five or six of them, only four men subsequently entered the Unit.
11.    When one of the men outside spoke through the screen door and said ‘Does Peter live here?’ Manit replied ‘No, he moved out’. The man then said ‘Do you know Peter?’ to which Manit replied ‘No, my flatmate might’ and he turned around and tapped the sleeping Jonathon Horton on his feet.
12.    Four men then began to enter the Unit; they had not been invited inside. Manit felt that he had been ‘forced backwards’ into the living area near the kitchen and just in front of Jonathon Horton’s bedroom.
13.    One of the men was standing by the coffee table; he was wearing a baseball cap. Two of the other men went into Jonathon Horton’s room. One of the men who went into Jonathon’s room was ‘a short blond-haired fella’. The other one was ‘tall, taller and bigger’ than Manit. They appeared to be looking for something. They were there for five minutes going through his room lifting everything up looking for something.
14.    Jonathon Horton was sitting on the couch waking up.
15.    The two men that were still in the lounge room were screaming and yelling at Jonathon and demanding Peter’s phone number.
16.    When the two men, who had been in the bedroom, came out, ‘one of them came out with a shot-glass’. He was ‘tall, short haired’. He was of solid build, one of the taller men. He was ‘the guy with the shot-glass’. The shot-glass contained some tablets.
The man said ‘What’s this?’ to which Jonathon Horton replied ‘It’s vitamin tablets’. The man said ‘I don’t believe you, prove it, take ten of them now’. When Jonathan Horton reached out to get a handful and said ‘Okay, no worries’, the man pulled back the shot-glass he had been holding in his hand and put it on the kitchen bench.
17.    The man who had been holding the shot-glass then told Manit to ‘sit down on the floor’ next to the dog’s food or he was going to ‘stab him in the head’ with a knife he had by this time in his hand.
18.    Manit responded by offering to sit on the armrest of the cane lounge and near to Jonathan Horton’s bedroom.
19.    The short-haired fellow then went over and smoked Jonathon’s bong, which had been sitting there next to where Jonathan Horton was.
20.    Jonathan Horton was looking for his mobile phone in the area where the coffee table was. The men were still asking for Peter’s number, and some of the men started taking Jonathan Horton’s CDs, DVDs and X-box games.
21.    The man who was then standing in front of Jonathan Horton (that is, the man with the baseball cap) was holding a knife and pointing it at Jonathan’s stomach, then ‘about half a metre’ away; ‘there was one guy that had a knife in front of Jonathan and one that had a knife on Manit as well’.
22.    After Jonathan Horton’s mobile phone was located, there was conversation about calling Peter, about the lack of credit on Jonathan Horton’s phone, and about an offer by Manit to use his phone, which, by this time, had, he said, gone missing as well. It was no longer on the coffee table.
23.    At least two of the men, including the short blond-haired guy and the short-haired guy, ‘that had a bong … the guy that brought the shot-glass out’, then took things from the unit; CDs, DVDs and the X-box game.
24.    Some conversation followed regarding Manit’s phone and regarding Jonathan Horton’s Jack Russell dog. The men then left the Unit.
25.    The men who had come to the Unit were not known to Manit, and he was unable to identify any of them in a folder of photographs prepared by the police and used as part of an attempted photographic identification procedure.
26.    The knives, which had been used to threaten Jonathon Horton with, had been on the shelf under the coffee table in the lounge room. They had been left there after meals had been consumed in the lounge room of the Unit previously.
27.    Jonathan Horton did not recognise any of the four men who had come to the Unit on the night in question. He described two of the men as being a bit taller than him : ‘a bit taller than 6 feet’. The other two : ‘a little bit shorter, slim build’. He described both of the taller men as having short hair, but one was definitely shaved. He described one of the shorter men as having ‘a bit more longish hair but it was still shortish, but not long, long hair’, and the other one had a hat on.
28.    The shot-glass had been on the side chest in Jonathon Horton’s bedroom ‘for a bit over three months’. Jonathon Horton said that he had bought a dog in about August/September 2002, in between the time of Peter Aitchison leaving the Unit and Manit moving in. He said that he ‘needed the container that the vitamins were in for dog food’ because he was taking his dog out wherever he went, so he needed ‘a little bit of food for him’.
He said he grabbed a shot-glass out of the back room from a display cupboard of glasses; it was dusty; ‘So I gave it a quick wash, rinse under the tap, and gave it a dry off with a tea towel, put the vitamin C tablets in it, and put it on the side chest next to my bed where it stayed’.
29.    The man who had the shot-glass was not known to Jonathon Horton; Jonathon had never ‘seen that man’ before. To the best of Jonathon’s knowledge, he had never been in the Unit before.
30.    Jonathon was not sure whether the man, who, he said, was standing in front of him with a knife, was the same man who had been holding the knife before.
31.    While that man was standing in front of him, another man was, according to Jonathon, standing next to Manit, ‘by this stage he had already grabbed CDs and DVDs and whatever’. He said that he noticed afterwards that ‘a set of twin halogen headlights with a battery pack and a portable CD player were missing’.
32.    The accused was, according to Mr Aitchison, whom I accepted as a witness of truth, known to Mr Aitchison since they grew up together and since they were in primary school.
33.    The last time Mr Aitchison had any association with the accused was in about 2001, before Mr Aitchison went to live in the Unit in about July 2002.
34.    Before the night in question the accused never attended at the Unit while Mr Aitchison was residing there, or at any other time; and he certainly did not attend at the Unit between August 2002 and 16 November 2002, when the shot-glass was just sitting there in a clean state.
35.    During the time Mr Aitchison resided at the Unit, he was not a seller of drugs, and at no time during that period did he sell drugs to the accused or anyone else.
36.    The fingerprints on the shot-glass were those of the accused.
37.    The shot-glass, having been rinsed under a tap and having been given a dry off with a tea towel in about August 2002, the fingerprints could not have been impressed before that time. The only opportunity for contact between the accused’s fingers and the shot-glass before the fingerprints were located, was the night in question.
38.    The accused was described on the day of his arrest, on 20 February 2003, as ‘180 centimetres tall, of short brown hair, trimmed up to a number one or number two length with clippers, heavy build’.
39.    Both Manit and Mr Jonathon Horton, during the photographic identification procedures that were conducted, failed to identify the accused or any other relevant person.
40.    No stolen property was ever found in the possession of the accused.
41.    Apart from the evidence of the fingerprints of the accused on the shot-glass, no other inculpatory forensic evidence was located.
SOME CONCLUSIONS FROM THE FINDINGS OF FACT
The accused was a principal in the first degree in relation to counts one and two, in that it was proved that he was one of several actual offenders who, present at the scene and physically committing the criminal acts, actually committed the offences of aggravated serious trespass in a place of residence and larceny.
The accused has not been shown to be criminally liable on count three in respect of which there is no sufficient evidence that it was he himself who assaulted Jonathon Horton with a knife.
Further, the accused has not been shown to have been a principal in the second degree, namely, a party to an arrangement or understanding that a crime of violence or threatened violence would be committed.
In any event, what transpired in the form of the occupants being threatened with their own steak knives went, I think, beyond the scope of any implied agreement (if there was one) and was foreign to any common criminal purpose. This is not a case in which the doctrine of common purpose, which extends the concept of joint enterprise, should be applied.
The key to the acquittal on the charge in count three, which I do not assess as being an act pursuant to a joint enterprise but rather as an offence committed by a sole offender, is to be found in the evidence of Jonathon Horton. Having described the person who came out with a shot-glass and having testified to what he did, he (Jonathon Horton) then said that he did not see the knife being picked up. He said ‘There was one guy that had a knife in front of me and one that had one on Manit as well’.
A crucial question followed :
Q.Is this the same man who had the shot-glass.
A.I couldn’t be certain.’
Later he was asked :
Q.You say that there was a man standing in front of you with a knife, can you describe that man for me.
A.He was one of the taller guys with solid build.
Q.Was it the same man that was holding the knife before.
A.I’m not sure.
In the language of the law of circumstantial evidence, there is a reasonable or rational explanation arising from that evidence which is consistent with the fact (that it was the accused who had a knife in front of Jonathon Horton) not being so.
A reasonable doubt, therefore, having arisen in my mind, the accused was entitled to my finding that identity had not been proven in relation to count three.
LEGAL PRINCIPLES
It is not necessary for me to identify and explain all of the legal principles I have applied in reaching my Verdicts in this trial. It will be sufficient if I record that I have constantly borne in mind the presumption of innocence, which is in the accused’s favour; the fact that the onus of proof rests with the Crown throughout; and the fact that the standard of proof is proof beyond reasonable doubt.
I have considered each count separately.
I was not persuaded that, in the circumstances of this trial, the law of complicity has application, other than when considering count two. When it came to the taking and stealing of the items of property from the Unit, I am satisfied that the four men were each acting pursuant to an implied joint enterprise. The accused was a principal offender in relation to count one, and the person responsible for the assault upon Jonathon Horton in count three, whoever he was, was acting alone and as a principal offender.
If I, as the trier of the facts, think that the evidence that I have heard in this trial is, in the end, open to any other reasonable conclusion than that the accused is guilty of the charge I am considering, then the accused is entitled to the benefit of my reasonable doubt and is to be acquitted. I would acquit him by bringing in a verdict of not guilty. But if, after due consideration and after approaching my task in a proper manner, I am satisfied that he is guilty of the charge I am considering, I would convict him, that is to say, bring in a verdict of guilty.
THE RIGHT TO DECLINE TO ANSWER POLICE QUESTIONS
According to the evidence, the accused, when spoken to by the police, declined to answer police questions. That was, of course, his right. No adverse inference is drawn by me by the fact that the accused exercised his legal right at that time and in that way.
NO EVIDENCE BY THE ACCUSED OR DEFENCE WITNESSES
It is the law today that an accused person has the right to do one of two things at their trial. First, an accused may remain completely silent, leaving it up to the Crown to prove the case against him if they can. There is no obligation upon an accused person to enter the witness box and give evidence, or to call witnesses.
Secondly, an accused can choose to go into the witness box and give evidence on oath and be subject to cross-examination.
This accused, Simon Gerard Fitzgerald, chose to take the first course. By doing so, he exercised the right which the law has given him. I have reminded myself not to assume from the fact that he did not give evidence that everything alleged against him must be true or that the inferences suggested by the Crown should be drawn.
It is the law that I should not assume from the fact that the accused did not give evidence that he is guilty of any crime. I should, as I have done, concentrate on the evidence that has been given and decide whether or not I find the evidence to be truthful and reliable and I should decide what inferences, if any, are to be drawn from the evidence and other material that is before me and not in doubt. I should decide, ultimately and in relation to each count considered separately, whether, upon the whole of the evidence, I am satisfied beyond reasonable doubt to draw inferences there from and to draw the ultimate conclusion of guilt of the charge in that count.
I repeat that I should not (I must not) infer from the fact that the accused failed to give evidence that the accused must be guilty of any charge.
I reminded myself that there may be many reasons why an accused person may decide not to give evidence and I have refrained from speculating about them. To put this important matter another way, the accused’s silence in court is not evidence against him; it does not constitute an admission by the accused; it may not be used to fill gaps in the evidence tendered by the prosecution; and it may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.
THE CRIMES OF A CROWN WITNESS
I need to say something about what the law has to say about the crimes of a Crown witness.
Mr Aitken, in cross-examination of the person whom the four men were allegedly interested to track down, Peter Aitchison, asked him about some offences that he had allegedly committed in the past. And, as I recall his method of cross-examination, he started with the oldest of the alleged offences committed by Mr Aitchison as a juvenile in 1995, and then brought us forwards to 1996, 1997 and 2001 or thereabouts.
But, having found that Peter Aitchison had committed offences in the past (and he did admit most of them committed in 1995, 1996, 1997 and 2001), that is some evidence which I may use in assessing Peter Aitchison’s credibility as a witness.
But I must state here and now that persons who have broken the law, even those with a long criminal record, may (and often do) speak the truth and do, as did Mr Aitchison, in my assessment of him, give reliable evidence. They may, of course, give false or otherwise unreliable evidence, but I do not think that that was the case with Mr Aitchison. In fact, I was impressed by his frankness.
OBSERVATION EVIDENCE
Evidence given by Manit and by Jonathon Horton included evidence which may be described as observation evidence.
Observation evidence is evidence given by a witness who claims to have seen or observed certain things and who claims to be able to describe certain events which occurred in his or her range of vision.
Any one or a combination of factors may lead to a conclusion as to the reliability or unreliability of observation evidence; such as, firstly, the period, long or short, during which the thing observed was under observation; secondly, the ability or inability of the witness to make visual observations due to such factors as lighting, time of day or night, presence or absence of distractions, presence or absence of fear, the nature of the surrounding circumstances etc; thirdly, the nature of the observing witness himself or herself; fourthly, the tendency or otherwise to reconstruct events as one would want them to have been or as suggested by others; fifthly, the effect of subconscious influences; sixthly, the reliability of the observer; the honesty, the accuracy and the demeanour of the observer; seventhly, the existence or otherwise of any evidence suggesting that the evidence was fabricated; and eighthly, the existence or otherwise of reasons suggesting that the observer fabricated his or her evidence, or painted a false picture, or was mistaken.
So it is that the reliability of observation evidence will depend upon a number of factors, amongst the more important of which are those that I have been discussing.
In the circumstances of the present case, it is important to emphasise the emotional factors which would, very likely, have been impacting upon Manit and Jonathon Horton (the latter in particular) including the fear that the conduct of the four men must have engendered, and, in the case of Jonathon Horton, the fact that he had, before these incidents occurred, been asleep and to an extent affected by alcoholic liquor and the consumption of cannabis.
Another factor upon which the reliability of observation evidence given by a witness will depend is the existence or otherwise of other facts and circumstances independently proved which confirm or support the evidence of that witness.
Where the conditions present difficulties for the observer, where the conditions cause the object of the observation to be hard to see, where the action is said to have been observed or seen for only a short time, where the circumstances of the alleged observation could well have induced heightened emotions in the observer - and that was very much the situation here - or where there is some other feature which casts a shadow, so to speak, over the observer’s mental process of observation, recollection or recognition, I must appreciate (and have appreciated) the danger of giving too ready an acceptance to such observation evidence. The important thing is that I take care with observation evidence, and before acting upon it, satisfy myself that it is accurate and reliable. And, of course, I should bear in mind the possibility of lies being told and/or mistakes occurring.
CIRCUMSTANTIAL EVIDENCE GENERALLY
The evidence is circumstantial in a number of respects in this trial. Before I discuss those aspects, I make it clear that, when we speak of circumstantial evidence, we mean, generally, evidence from which a fact or facts to be proved can be inferred.

Circumstantial evidence, as distinct from direct evidence (such as evidence from an eyewitness) has been defined in this way: circumstantial evidence is evidence of minor facts (minor, as opposed to major ones) of such a nature that the mind is led, by a process of reasoning, to being convinced that some other fact, the fact to be proved, may be inferred.
Circumstantial evidence may be as strong as (in fact, it may be stronger than) direct evidence; it may be weak. Properly used and understood, and in appropriate cases, it can be valuable.
If there are two or three or more independent facts all pointing in the same direction, that may be more reliable than the evidence of one witness purporting to give direct testimony where that witness may be mistaken or might be forgetful or might be falsifying evidence.
In every-day life we use circumstantial evidence; we put two and two together to reach decisions; and so with circumstantial evidence. When two or more facts independent of each other are proved and they point in the same direction, the coincidence between them is yet another fact of greater weight to establish the ultimate fact than the two or more independent facts considered separately.
A number of circumstances, each individually very slight, may so tally with and confirm each other to leave no reason for doubt as to the fact they tend to establish. Of course, the strength of circumstantial evidence lies in the fact that there may be a number of things all pointing in the same direction and an absence of any circumstance pointing in the opposite direction. If one circumstance shows that what is alleged to be a fact cannot be (or it is most unlikely to be) then, of course, the whole pattern is destroyed.
As to the weight to be given to circumstantial evidence in a trial such as this, that is a matter for me, as judge of the facts.
How then does circumstantial evidence go towards proving a fact? That question, I always think, can best be answered by having regard to what Lord Cairns said in England many years ago [in Re Belhaven and Stenton Peerage (1875) 1 AC 278 (HL)]. His Lordship said (at page 279) :
In dealing with circumstantial evidence we have to consider the weight which is to be given to the united force of all the proved circumstances put together. You may have a ray of light so feeble that, by itself, it will do little to elucidate (illuminate or light up) a dark corner. On the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear on the same spot, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.
In the end, it is for me, as judge of the facts, to say whether, in a case such as this, where there is circumstantial evidence, what I see is completely illuminated (to the extent that I do not have a reasonable doubt about it) or whether, on the other hand, what I see is blurred or dull or reasonably consistent with the fact not being so.
I am not permitted to draw inferences from doubtful facts. There is a clear distinction between drawing an inference from a combination of several proved facts, none of which by itself would support the inference, and drawing an inference from several facts whose existence is in doubt.
Before I can find a fact proved on circumstantial evidence, I must be satisfied not only that the circumstances I find proved are consistent with that fact being so, but I must also be satisfied that the true facts are such as to be inconsistent with any other rational or reasonable conclusion. Before I can be satisfied to draw an inference that such a fact is so from circumstantial evidence, it is necessary, not only that the fact is a reasonable or rational inference, but also that it is the only reasonable or rational inference that the proved circumstances enable me to draw. For an inference to be reasonable or rational, it must rest upon something more than mere conjecture. If the inference of a fact is the only inference open to me, upon a consideration of all the proven facts in the case, it is proper for me to draw the inference that the fact is proven. A fact is, therefore, proven by circumstantial evidence if the only reasonable inference from the proven circumstances is that the fact is so. If there is a reasonable or rational explanation (or ‘hypothesis’, as it is often called in the law) which is consistent with the fact not being so, that is enough to raise a reasonable doubt in my mind and to entitle the accused to my finding that the fact is not proven. The emphasis is, of course, upon the words ‘reasonable’ and ‘rational’.
Just to complete what I want to say about circumstantial evidence in a general way, and before I relate it to a consideration of the circumstantial evidence in this case, I must say this in conclusion: if I accept a particular piece of circumstantial evidence, I should simply keep it in mind to be considered along with any other piece or pieces of circumstantial evidence. If a particular piece of circumstantial evidence is not accepted by me, or if it is found to be unproven by me, I should reject it and put it out of my mind. But if, after considering two or more pieces of circumstantial evidence, I find two or a series of facts has been established to my satisfaction, then I should consider them in their combined effect. It is when two or more pieces of circumstantial evidence, each separately proved, combine to prove an ultimate fact, and do so beyond reasonable doubt, that a fact based on circumstantial evidence can be said to be proved.
THE CIRCUMSTANTIAL EVIDENCE HERE – THE FINGERPRINT EVIDENCE PLUS SOME OTHER CIRCUMSTANCES
The presence of the accused’s fingerprints on a shot-glass, which had been rinsed under a tap and dried off with a tea towel in about August 2002, and then placed with some vitamin C tablets inside on the side chest next to Jonathon Horton’s bed where it stayed, handled and placed on the kitchen bench on the night of the home invasion by a tall, short-haired guy of solid build (one of the taller men) and the absence of any contact between the accused and the Unit in the period August to November 2002, and the fact that the accused (a tall, short-haired man of solid build) is known to Peter Aitchison, the person whom the four men were trying to track down on the night in question, are circumstances which, in their combined effect, show that the fingerprints could only have been impressed by the accused at the time when the crimes were committed.
These circumstances, all of which are proved beyond reasonable doubt, constitute sufficient and convincing evidence to connect the accused with the events of the night in question and to convict the accused of the offences in counts one and two.
The presence of the fingerprints of the accused on the shot-glass, handled and placed on the kitchen bench on the night of the home invasion, by the man described by Manit and Jonathon Horton, is consistent with the conclusion that the accused committed the offences in counts one and two and inconsistent with any other rational conclusion than that the accused is the guilty party.
This is not a case of the mere finding of fingerprints with no other evidence to connect the accused with the crime scene, with nothing to associate him with it in any way whatever.
The position of the prints and the evidence of the handling of the shot-glass on the night in question, when impressions were likely to have been left, exclude, in my mind, the reasonable possibility that the fingerprints were placed there accidentally when, contrary to the evidence, he might have had access to that shot-glass, or innocently by some other means.
Could these fingerprints have been impressed at the time when this home invasion occurred? This is a crucial question and is to be answered in the affirmative. In this particular case, the evidence points strongly in the direction of the accused having been associated with this shot-glass at the time of (and in the circumstances of) its being handled and moved on the night in question. To echo some of the words used in the authorities to which I referred at the commencement of these Reasons for Verdicts, it is right, I think, to say (and to say dogmatically) that these fingerprints could only have been impressed at the time when these crimes were committed. There is no reasonable or rational hypothesis open that they may have been placed there accidentally or in some innocent way.
For all these reasons, I found that the accused was guilty on each of counts one and two and not guilty on count three.