R v Gavin

[2021] SADC 69

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v GAVIN

Criminal Trial by Judge Alone

[2021] SADC 69

Reasons for the Verdicts of his Honour Judge Soulio 

18 June 2021

CRIMINAL LAW

Defendant charged with one count of serious criminal trespass in a place of residence, and theft, and one count of robbery at another residence - circumstantial case - identification.

Held: Guilty of all three counts.

Criminal Law Consolidation Act 1935 (SA) ss 134, 137, 170; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 28, referred to.
R v Gardi [2015] SASC 186; Martin v Osborne (1936) 55 CLR 367; Peacock v The King [1911] 13 CLR 619; R v Micallef [2002] NSWCCA 480; Barca v The Queen (1975) 133 CLR 82; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shaw v The Queen [1952] 85 CLR 365; Killick v The Queen [1981] 147 CLR 565; Dansie v The Queen [2020] SASCFC 103, considered.

R v GAVIN
[2021] SADC 69

Introduction

1. Some time before 1.00 pm on 19 July 2019 a man wearing a multicoloured motorcycle helmet rode a motorcycle onto a property at Haydon Road, Reeves Plains. He entered the house at that property. He stole some items. While doing so he was confronted by Mr Copland, a friend of the owner. Something of an altercation took place. Mr Copland left in order to telephone police. On the way past the motorcycle he removed the keys and took the helmet. He then contacted police.

2. Shortly after that, Mr Copland saw a man ride out of the property on a small yellow 50cc Suzuki motorcycle. Mr Copland followed the motorcycle and saw the man ride the motorcycle through scrubland. Mr Copland stopped his vehicle at the point where he saw the motorcycle enter the scrubland, waiting for the man to re-emerge. The man did not.

3. At about 1.00 pm on the same day one Mr Day was at his property on Redbanks Road, Kangaroo Flat, adjacent to the scrubland in question. A man approached him from the direction of the back fence of his property. The man asked Mr Day to drive him to Gawler, and offered to pay Mr Day $50.00. Mr Day refused and told the man to leave. Mr Day then observed the man walk to a neighbouring property on the other side of Redbanks Road, a property belonging to one Mrs Meaney.

4. At some time around 1.00 pm Mrs Meaney noticed a man near her house. She approached him, and he asked for contact details for a taxi, before asking her to drive him to Gawler. He offered to pay her $50.00. She retrieved the car keys to her red Toyota Camry and got into the driver’s seat. The man entered the front passenger seat. Mrs Meaney then had a telephone conversation with her husband who told her police were investigating a man seen in the vicinity of her property. The man, having overheard part of the conversation, put to Mrs Meaney that she was going to ‘take him to the police’. She denied that. He then demanded that she get out of the car and give him the keys. She refused. He reached across and forcefully removed the keys from her hand, and demanded that she get out of the car. He said he would not hurt her. While she was getting out of the car, unbeknownst to the man, Mrs Meaney picked up a mobile telephone left on the passenger seat by the man. The man then left her house, driving her car along Redbanks Road.

5. It is common ground that the man who entered the house on Haydon Road, attended Mr Day’s property on Redbanks Road, and then went to Mrs Meaney’s house on Redbanks Road, and drove off in her car, was the same man.[1]

   [1]     T 87 L 7; T 295 L 2.

6. The issue for determination is whether I am satisfied, beyond reasonable doubt, that that man was the accused, Mr Gavin.

   The Charges

7. Arising out of the events of 19 July 2019, Mr Gavin was charged with the following:

   First Count

   Statement of Offence

   Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Clinton Johnston Gavin on the 19^th day of July 2019 at Reeves Plains, entered or remained in the place of residence of Judith Haydon as a trespasser, with the intention of committing an offence therein, namely theft.

   Second Count

   Particulars of Offence

   Theft. (Section 134(1) of the Criminal Law Consolidation Act, 1935).

   Clinton Johnston Gavin on the 19^th day of July 2019 at Reeves Plains, dishonestly dealt with property, namely $350 in cash, assorted jewellery to the value of $8,000, and a JR50 Suzuki motor cycle, without the consent of Judith Haydon the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on her proprietary rights.

   Third Count

   Particulars of Offence

   Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).

   Clinton Johnston Gavi on the 19^th day of July 2019 at Kangaroo Flat, used or threatened to use force against Dorothy Charlotte Meaney in order to commit the theft of a Toyota Camry Altise sedan, and the force was used at the time immediately before the theft.

8. Mr Gavin elected to be tried by a judge sitting without a jury.[2]

   [2]     Juries Act 1927 (SA) s 7(1)(a).

   General Directions

   General Legal Directions

9. The general directions were conveniently summarised by Lovell J in R v Gardi as follows:[3]

   ·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.

   [3]     R v Gardi [2015] SASC 186 at [9]-[15].

   The Prosecution Case

   Circumstantial Evidence

10. The prosecution case is that the accused was involved in each of the alleged offences and is based essentially on circumstantial evidence. The accused did not give evidence and was under no obligation to do so.

11. The prosecution case is that the accused went into Ms Haydon’s house on Haydon Road Reeves Plains and stole $350 in $50 notes, assorted jewellery, and the yellow Suzuki motorcycle. The multicoloured motorcycle helmet was tested and revealed a finger print and a partial palm print, said to be of the accused.

12. Mr Copland participated in a photographic identification parade and positively identified the accused as the man he confronted in Ms Heydon’s house.

13. Mr Day participated in a photographic identification parade and positively identified the accused as the man who had approached him.

14. Mrs Meaney participated in a photographic identification parade and identified the accused as resembling the man who had approached her at her house.

15. The mobile telephone Mrs Meaney seized from the passenger seat of her vehicle was subscribed to one Ms Nicole Baker, the accused’s partner.

16. In addition some witnesses provided a description of clothing worn by the man. That description bears some similarity to clothing worn by the accused when arrested.

    Defence Case

17. The accused did not give evidence. He was under no obligation to do so. That is his legal right, as it is the right of anyone charged with an offence. He has the absolute right to not give evidence and because that is his legal right I must not draw any adverse inference because he has done so. There may be many reasons he did not do so and I should not speculate about that. If is for the prosecution to prove its case beyond reasonable doubt.

18. I bear in mind that the accused bears no onus. The accused’s partner, Ms Baker, gave a form of alibi evidence. The accused challenged the identification evidence and submitted that the circumstantial evidence relied upon by the prosecution is insufficient to establish guilt beyond reasonable doubt.

    Particular Directions

    Circumstantial Evidence

19. The prosecution submitted that the evidence, in particular the identification evidence, relating to each of the offences was cross-admissible, and further, that the united force of all the circumstances put together, leads to an inevitable inference of guilt beyond reasonable doubt in relation to each offence.

20. I bear in mind that the amount of circumstantial evidence which might be sufficient to prove any charge beyond reasonable doubt varies from case to case. The number of circumstances proved can be quite different, as can the weight of the actual circumstances. I bear in mind that I must decide what facts I find to be proved by the evidence, and that in doing so, I must carefully consider each item of circumstantial evidence and, taking into account the whole of the evidence, decide whether I accept that a particular fact has been proved. Having decided what facts I find to be proved, I must then consider what inference, or inferences, I am  prepared to draw from those facts.

21. I bear in mind that the strength of circumstantial evidence lies in its ability to show that “according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed”.[4] However, “ … an inference, to be reasonable, must rest upon something more than mere conjecture.”[5] It is necessary to weigh and consider the totality of the evidence and in doing so I must not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.[6] It is of critical importance to remember that in considering the inferences to be drawn, all of the circumstances established by the evidence are to be considered and weighed.[7]

    [4]     Martin v Osborne (1936) 55 CLR 367 p 375.

    [5]     Peacock v The King [1911] 13 CLR 619 p 661.

    [6]     R v Micallef [2002] NSWCCA 480 at [42].

    [7]     R v Gardi [2015] SASC 186.

22. I bear in mind that for guilt to be established by circumstantial evidence, the inference to be drawn as to the ultimate question must be the only inference reasonably open on all of the proven facts. The circumstances must exclude any reasonable hypotheses consistent with innocence.[8]

    [8]     Barca v The Queen (1975) 133 CLR 82 p 104; Chamberlain v The Queen (No 2) (1984) 153 CLR 521 p 536.

    Elements of the Offences

23. I bear in mind the elements of the offences, each of which must be proved beyond reasonable doubt:

    Count 1 - Serious Criminal Trespass in a Place of Residence

24. That the offender entered or remained in a building; a place of residence, as a trespasser; knowing he was a trespasser; and intending to commit an offence of theft.

    Count 2 - Theft

25. That the accused dealt with property dishonestly; without the owner’s consent; intending to deprive the owner permanently of the property, or to make a serious encroachment on the owner’s proprietary rights.

    Count 3 - Robbery

26. That the accused committed a theft; that he used (or threatened to use) force in order to commit the theft; and that the force was used (or threatened) at the time of, or immediately before or after the theft.

27. It is common ground that the man first seen at the Haydon’s property committed the three offences, and that each element of each offence has been established beyond reasonable doubt.[9] Again, the real question in issue is whether the prosecution has proved beyond reasonable doubt that the accused was that man.

    [9]     T 5; and T 330 L 33.

    The Trial

28. The prosecution lay witnesses Mr Copland, Ms Haydon, Mr Bentley, Mr Day and Mrs Meaney gave evidence, as did police officer Mr Benyk, the crime scene investigator Mr Van der Ploeg, the fingerprint expert Ms Ha, and the investigating officer Mr Nikolic. In addition there were a number of agreed facts and documents received into evidence to which I will refer as necessary.

29. The accused did not give evidence, as I have said, and as was his right. His partner, Ms Baker, gave evidence.

    Prosecution Evidence

    Mr Copland

30. Mr Copland was a family friend of the Haydons, having gone to school with their son. On 19 July 2019 he was at the Haydons’ property using drone technology in a paddock. He was familiar with the house.[10] His utility vehicle was in the paddock. From there he could see the house.[11]

    [10]   T 58.

    [11]   T 59.

31. At about 1.00 pm he was about 70 meters from the house when he heard a motorcycle approaching along Haydon Road.[12] He saw the motorcyclist pull up in the driveway and then knock on the front door. That aroused his curiosity as he said that no one who knows the family uses that driveway, or the front door.[13] After knocking on the door the person moved the motorcycle around to the back of the house and Mr Copland lost sight of it.[14] He started to walk to the property because the person obviously did not know the family, and he wanted to make sure they were not breaking in.[15]

    [12]   T 60.

    [13]   T 61.

    [14]   T 62.

    [15]   T 62.

32. Mr Copland described the motorcycle as a red and white Honda CRF, similar to a motorcycle owned by his son. As he walked toward the house he noticed that there was a door open and the motorcycle was leaning against the side of the rumpus room with a helmet resting on the handle bars. He described the helmet as a multicoloured motorcycle helmet with no visor.[16]

    [16]   T 62.

33. Mr Copland heard noises from inside the house, which sounded like someone ransacking the house. He walked into the house through the rumpus room door. He said ‘I saw a gentleman with the drawer open and I said ‘What the fuck are you doing in here, you cunt?’[17]

    [17]   T 64.

34. Mr Copland described the person he saw as being ‘about 5 10, dark hair, dark, dark sort of beady eyes.’[18] He said he obviously took the person by surprise, the person looked straight at him, and the person ‘was no less than six feet away’[19] and they were facing each other. The man’s hair was short, short back and sides.[20] He was mid to late 20s.[21] He looked ‘a little indigenous’, like he had some sort of indigenous traits.[22] He was wearing a black motorcycle jacket.[23] He had the man under observation for about 10 seconds.[24] The lighting was not too bad as there was a window with no blinds on it.[25] The man was of slim to medium build, although he had a jacket on. He had stubble, rather than a beard or moustache.[26]

    [18]   T 64 L 26

    [19]   T 64 L 29.

    [20]   T 64.

    [21]   T 65 L 1.

    [22]   T 65 L 3.

    [23]   T 65 L 12.

    [24]   T 65 L 31.

    [25]   T 65 L 38.

    [26]   T 70 L 16.

35. As Mr Copland did not have his telephone with him, he returned to his vehicle. On the way, he seized the keys from the motorcycle, and took the helmet from the motorcycle and made his way back to his vehicle to ring police.[27] He rang 000 and requested police assistance.

    [27]   T 66.

36. After seizing the helmet he took it to his vehicle. He left it in the vehicle when he proceeded to chase the man down the road. He handed the helmet, together with the key from the motorcycle, to police later that day.[28]

    [28]   T 86.

37. As Mr Copland was going back to his car, he heard a motorcycle start up and saw the same person as had been inside the house, ride past the back of the house and around to the front of the house, on a small yellow 50cc motorcycle.[29] He followed in his vehicle. As he caught up with motorcycle, the man turned off into the bushes on the side of the road.[30]

    [29]   T 66-67.

    [30]   T 67.

38. Two to three minutes later police arrived and Mr Copland spoke to police. He then travelled down Haydon Road and back onto Redbanks Road and saw Mrs Meaney standing by the side of the road waving her arms.[31]

    [31]   T 69.

39. Mr Nikolic attended Mr Copland’s house that night with a photograph pack.[32] Mr Nikolic read out a list of instructions making it clear that if Mr Copland recognised anyone in the pack, he was to point that person out, but that if he didn’t recognise anyone that was fine.[33] Mr Copland said he went through the folder slowly to make sure, and had a look at all of the images, and recognised the man that he had seen at the Haydon’s property that afternoon. He pointed that man out to Mr Nikolic.[34] Mr Copland signed underneath photograph number 2. It is common ground that that was a photograph of the accused. The identification procedure was recorded on videotape.[35]

    [32]   Exhibit P8.

    [33]   T 70-71.

    [34]   T 71.

    [35]   Exhibit P9.

40. Mr Copland was asked in evidence why he had nominated that photograph. He said ‘because I recognised the guy’s eyes. It was the guy’s eyes that gave it away.’[36]

    [36]   T 72 L 15.

41. Mr Copland was cross-examined about his expression of opinion that the man ‘looked a little indigenous’. He said that what he meant by that was the man’s facial features, namely his darker eyes.[37] He said he did not notice whether the person had any scars on his head, nor did he notice any distinguishing features of the man’s hands. He did not notice any tattoos.[38] He said that the man was wearing a long-sleeved black motorcycle jacket made of some waterproof material. He did not notice any insignia or colouring. He said the man did not have a beanie or anything on his head.[39]

    [37]   T 74 L 25.

    [38]   T 75 L 19.

    [39]   T 76.

42. Mr Copland was challenged on whether there was sufficient light in the room where he had encountered the man. It was suggested to him that it was dark in the room. He was adamant that there was clear light and he could clearly see the man’s face.[40] He reiterated that the man had stubble around his face, similar to a couple of day’s growth.[41]

    [40]   T 79.

    [41]   T 80.

43. Mr Copland was challenged on the basis that he had given a description to police that the man was wearing a ‘white multicoloured helmet.’[42] He was asked whether the helmet was white. He said ‘not that I recall’.[43] He agreed that telling police it was a white multicoloured helmet was incorrect. He had subsequently seen a photograph of the helmet.[44]

    Ms Haydon

    [42]   T 82.

    [43]   T 83 L 3.

    [44]   T 83 and T 85.

44. Ms Haydon received information that her house had been broken into, returned to her house, and met with police there.[45] When she left, the house had been secured. The window adjacent to the rear screen door was closed when she left, but found to be open when she returned home.[46] At one stage there was a flyscreen on the outside of that window. She noticed it missing when she returned home. She was not able to say, however, when it was that the flyscreen had been removed.[47]

    [45]   T 48.

    [46]   T 51; Exhibit P2.

    [47]   T 51.

1. There had been a small yellow 50cc Suzuki motorcycle in the house which was missing when she returned.[48] Ms Haydon discovered her jewellery including a padlock bracelet, her mother’s wedding ring, her wedding and engagement ring and other jewellery, and $350 in $50 notes were also missing.[49]

   Mr Bentley

   [48]   T 52.

   [49]   T 54.

2. Mr Bentley said that on 19 July 2019 he was at the property of his stepfather Mr Day, when he heard his dogs barking. He saw Mr Day speaking to a man on the property at which they lived.[50] He approached and was about two meters away. He heard the man ask for a ride into Gawler. The man said he had been getting some exercise. Mr Day refused the man’s request and told the man he was trespassing. The man started walking down to the bituminised road.[51]

   [50]   T 89.

   [51]   T 90.

3. Mr Bentley said he did not get a good look at the man’s face. He said the man had a two-day growth, which I infer to be a reference to stubble on his face. He was wearing black tracksuit pants. He had a backpack ‘sort of thing’.[52] He estimated Mr Day was speaking to the man for about 15 minutes, and Mr Bentley had observed the man for about 10 minutes.[53]

   [52]   T 90.

   [53]   I accept that such estimates of time are notoriously amenable to error.

4. Mr Bentley said the man walked towards the bituminised road, and jumped the fence near a point where there was a water trough for the horses.[54] Mr Bentley thought it was strange that the man said he was walking into Gawler, but instead walked in the opposite direction.[55] He saw the man that Mr Day had been speaking to, later speaking to Mrs Meaney.[56]

   [54]   T 91.

   [55]   T 92.

   [56]   T 93.

5. Mr Bentley said, as to the age of the person, ‘late 20s, early or mid-30s sort of age-ish’; height, shorter than me (Mr Bentley was 6’ 3); and build, slightly bigger than me build-wise, (Mr Bentley was quite slim). Mr Bentley said he had bad eyesight particularly in his right eye, as he had suffered strokes and scarring of the eye.[57]

   [57]   T 98.

6. A few days after the incident a police officer asked Mr Bentley to look at a folder containing photographs.[58] Police asked him to ‘pick out a man, or people that looked like the man we saw on the property, and that’s what I did.’ The identification process was recorded.[59]

   [58]   Exhibit P11.

   [59]   Exhibit P12.

7. The DVD recording shows that Mr Bentley pointed out photograph 7 initially. He did so on the basis that the two-day growth depicted on the man in that photograph was similar to that which he had observed. The man in photograph number 3 was identified on the same basis.[60] Neither of the two men selected by Mr Bentley was the accused.

   [60]   T 96 and T 98.

8. When Mr Bentley was cross-examined he said he thought he saw the man had a backpack. He could not recall whether it was on the man’s back or shoulder. He said ‘it’s hard to say, you know. It’s been a long time ago and I’ve had medical problems since.’[61] He said that the man had black tracksuit pants on. He thought the man was wearing a black dark coloured or back jumper. He could not remember anything on the man’s head.[62] He could not recall what the man had on his feet.[63]

   Mr Day

   [61]   T 99.

   [62]   T 99.

   [63]   T 101.

9. Mr Day said of the encounter with the man in question, that the man appeared from behind a tin fence on the property. Mr Day said that an exchange took place. He said ‘can I help you?’ and the man said ‘I will give you fifty bucks if you take us into Gawler’. Mr Day said that something didn’t seem right and he said to the man ‘you’re huffing and puffing’ and the man said ‘I’ve just been running a bit’. The man asked to make a phone call to order a taxi. Mr Day formed the view that something was not right, and told him to ‘fuck off and get off my property’. The man left and headed towards Redbanks Road.[64] He said the conversation between them took three to five minutes. He was asked:[65]

   QAnd the conversation you just relayed to his Honour, was that the extent of the conversation you had with him.

   APretty well after I told him to fuck off that was the last of it.

   [64]   T 108.

   [65]   T 109.

10. Mr Day said that when the conversation was taking place they were about two to three metres apart.[66] He saw the man walk towards the property belonging to Mr and Mrs Meaney. He rang Mr Meaney to tell him that the man had gone across and was speaking to Mrs Meaney.[67]

    [66]   T 110.

    [67]   T 111.

11. When asked to describe the man Mr Day said he was Caucasian, with squarish facial features, and looked like he hadn’t had a shave in the morning.[68] He said he was around the 35-40 years old mark but closer to 35.[69] The man was a little taller than Mr Meaney’s 170cm, reasonable skinny ‘a hell of a lot skinner than what I am’.[70] I observed that Mr Day was a reasonably portly gentleman. Mr Day said the man had short brown hair cropped like a crew cut.[71] He said the man was wearing tracksuit pants, white sports shoes similar to the Adidas brand with a blue stripe or striping on the shoe, and a black hoodie with a name brand across the chest.[72] He did not think the man was carrying anything.[73]

    [68]   T 115. L 7.

    [69]   T 115 L 13.

    [70]   T 115 L 16.

    [71]   T 115 L 26.

    [72]   T 115 L 29.

    [73]   T 116.

12. On 23 July 2019 Mr Day went into the Gawler police station and was given a folder containing photographs.[74] The identification procedure was video recorded.[75] Mr Day said that without help from anyone he was to try to recognise the person he had seen on the day in question. He said he excluded the ones that were definitely not the person he saw and it came down to two people. He picked out photograph number 2, which, it is common ground, depicted the accused.

    [74]   Exhibit P13.

    [75]   Exhibit P14.

13. Mr Day said he selected number 2 because of his squarish features, and he sort of remembered that look.[76]

    [76]   T 116.

14. In going through the exercise of excluding people he said that it was definitely not numbers 7, 1, 5, 3 and 6, and that he was tossing up between numbers 4 and 2.[77] He said the square-ish features, and the skinnier build, and the eyes, caused him to select number 2.[78] He had used the phrase ‘I’m pretty sure it was number 2’ and when asked to define that said:[79]

    Pretty sure being as in confident for me of my way of speaking is, yeah, confident that it was number 2. Looking at 4 then looking at 2 I was leaning more towards that 2 because of that square feature and being just that not rounded on the day, he’s more of a sunken, like, square featured face.

    [77]T 117 L 26.

    [78]   T 117 L 32.

    [79]   T 118 L 6.

15. When asked to explain what he was trying to convey when he said he was ‘95% sure it was number 2’ he said:[80]

    95% is just because of the hair that number 4 had but it still came down to the features on the face and just, yeah, just looking at the face and going back to that day being 95% sure it was number 2.

    [80]   T 118 L 12.

16. When cross-examined he was challenged on the basis that, for the first time, he had mentioned something about the man’s eyes.[81] He was asked what he observed about the eyes and said ‘being sunken’.[82] He was asked whether the man was of indigenous descent and said ‘indigenous, no, I don’t think so, with saying that, someone could be an eighth or a quarter or 5/16th, you know.[83] When pressed, he said that he would not describe the man as being of indigenous descent, because he basically looked like a Caucasian white male.[84] Mr Day was asked:[85]

    QThe other thing I want to ask about your identification with the photo process and the board is this; you said you were 95% sure. There is still a 5% doubt in your mind that No. 2 is the correct person though, isn’t there.

    ANot really, no.

    [81]   T 118.

    [82]   T 119.

    [83]   T 119 L 14.

    [84]   T 119 L 22.

    [85]   T 119 L 31.

17. There followed cross-examination as to the meaning of 95% sure, and the element of doubt that that must necessarily involve.

18. Mr Day said he did not see the man wearing any gloves.[86] He was asked whether he observed any distinguishing features of the man’s face other than the sunken eyes. He said ‘the squareness, yeah, and just the stubble, stubble growth.’ He did not see any scars on the man’s face.[87] Mr Day was cross-examined about the description of the man’s hair as being short cropped or like a crew cut. He did not seem to give a clear answer to the relationship between that description and the man’s hair depicted in photograph number 2 in the photograph array.[88] He said the hair on the man in photograph 4 was different to that of the man he had seen on his property.[89]

    Mrs Meaney

    [86]   T 123 L 34.

    [87]   T 125 L 23.

    [88]   T 127-128.

    [89]   T 128.

19. On 19 July 2019 Mrs Meaney was at her home in her office. She heard a rattle at the front door.[90] She didn’t hear any knocking. She went outside.[91] She saw a man crouching by a tap on the property. She asked him whether she could help him. The man said he wanted a ride to get into Gawler, and asked her to ring a taxi. He said he had money and could pay her, and he pulled folded $50 notes out of his shoe.[92] She rang the taxi company and was informed that they could not attend. She relayed that information to the man. He asked if she could give him a ride to the T-junction which she understood to be to the junction of the road that leads into Gawler.[93] Mrs Meaney agreed to do so and went inside to retrieve her car keys. She thought the man might like a drink of water so she got a bottle of water out of the fridge and at that stage she received a telephone call from her husband. She nevertheless collected her car keys and continued with her intention to drive the man to Gawler.[94] She said the man looked hot. He took his hoodie off. He was sweating. He had a small black backpack with him.[95] She said the man was wearing sunglasses but he took them off. She said, of his demeanour, that he gave the appearance that he was anxious to get to Gawler.[96] She opened the car shed door with the remote control and said that before the door was fully up the man walked into the shed and got into the passenger side of her Toyota vehicle.[97] She then got into the car and reversed out of the shed.

    [90]   T 132.

    [91]   T 133.

    [92]   T 135.

    [93]   T 136.

    [94]   T 137

    [95]   T 138.

    [96]   T 138.

    [97]   T 139.

20. She had another phone call from her husband. Her husband suggested that she drive the man along a back road to where police were waiting. The man then shifted the gear lever into the park position and said ‘you’re going to take me to the cops, aren’t you?’ and she responded ‘no, I’m not’. He said ‘yes, you are, I heard you.’ The man then demanded that she give him the keys and get out of the car. She turned the car off, took the keys out of the ignition and was putting them into her left hand.[98] She said she decided she did not want to give him the keys. He snatched them out of her hand. He then got out of the car and walked around to the front of the car.

    [98]   T 140.

21. Mrs Meaney noticed a mobile telephone on the car seat where the man had been sitting. She seized that phone and put it into her jacket pocket.[99] The man then came round to the front of the car, opened the driver’s door and demanded that she get out. She said his manner was menacing, he was being direct and very insistent. She got out of the car.[100] The man then drove the car out of the property and turned right onto Redbanks Road in the direction of Gawler.[101] She went back into the house and rang 000.[102]

    [99]   T 141.

    [100] T 141.

    [101] T 142.

    [102] T 142.

22. In evidence, Mrs Meaney’s attention was drawn to a photograph of her car, which was ultimately recovered.[103] That photograph showed a white substance on the dashboard near the ignition, and near the air-conditioning vent. She said that substance was not in the vehicle on the day the car was stolen, nor was there any white substance over the steering wheel, the gear stick or on the dashboard on the passenger side.[104] She said that an earring that had been found in the car and depicted in a photograph, was not hers.[105]

    [103] Exhibit P6.

    [104] T 143-144.

    [105] Exhibit P6 p 7.

23. Mrs Meaney described the man as being over five foot 10 inches, something like six foot tall. He was slim. He had a black hoodie on with some sort of grey or white logo on the front, track pants, and dirty white sneakers that might have been Adidas brand. He was wearing sunglasses. He was wearing a peachy coloured t-shirt underneath the hoodie. He had very short crew cut style hair that was dark but appeared to have a few grey flecks through it. He was in his mid-30s. He had dark, tanned-looking skin.[106]

    [106] T 145.

24. Mrs Meaney was shown photographs of her face and of her hands.[107] She said she had a red mark on the index finger of her left hand, an injury sustained when the keys were snatched from her hand.[108]

    [107] Exhibit P4.

    [108] T 147.

25. That night Mr Nikolic attended Mrs Meaney’s house and presented her with a folder with photographs in it. She was told not to converse or ask questions but to look at the photographs to see whether she could identify the person who took the car.[109] The process was video recorded.[110] She selected photograph number 3. It is common ground that photograph 3 depicts the accused. When engaged in the identification process she used the phrase ‘I’m leaning towards number 3’. She was asked what her thought process was. She said ‘I was pretty sure that none of the others were that particular person, and number 3 was that person.’[111] She was asked about her statement, made during the identification process, in which she described the shape of the person’s face as a sort of square-ish shape. She said the face she identified was the same as the one she had seen; the others were not the same.[112] She was asked by Mr Nikolic about her percentage of confidence that she had identified the person on her property, and had responded saying ‘80’. She was asked what she meant by that. She said ‘it’s difficult to say now. I was almost certain that that was exactly the person. … and …well, I was close to being 100% positive but I thought it was definitely at least 80%.’

    [109] Exhibit P15.

    [110] Exhibit P16.

    [111] T 149 L 29.

    [112] T 149-150.

26. Mrs Meaney identified the mobile phone produced in court, as looking like the same phone she had seized from the passenger seat of her car.[113]

    [113] Exhibit P17.

27. Mrs Meaney was cross-examined about the identification process. She said she did not see gloves on the man at any time. She did not see any distinguishing rings on his fingers.[114] She was asked about her statement to Mr Nikolic during the identification process, when she had said that she ‘couldn’t see his eyes because he was wearing sunglasses’. She said that she could not remember whether or not the man had taken his sunglasses off.[115]

    [114] T 151.

    [115] T 153.

28. Mrs Meaney accepted that she told police that the man’s hair had ‘significant grey through it’,[116] and that the man had some facial hair.[117] She thought that the man produced two $50 notes from his shoe.[118] She did not observe any scarring on his head, forehead or face.[119] She could not recall any tattoos or distinguishing marks on his arms.[120]

    [116] T 156 L 19.

    [117] T 156 L 37.

    [118] T 157.

    [119] T 159.

    [120] T 159 L 33.

29. When cross-examined about the identification process Mrs Meaney said that the person’s picture that she identified was not a mirror image of the person she saw at her house.[121] She was looking at all of the photographs wanting to make sure that she made the right decision, and none of the other photographs were anything like the person that had taken the car.[122] She said she had identified the person by the shape of his face,[123] and the way he looked.[124] She said the man depicted in the photograph had slightly different hair than the man she saw.[125] She said the hair depicted in the photograph was longer than on the man she saw that day.[126] She agreed that the best she could say in relation to photograph 3 is that she was ‘pretty sure that No. 3 was the person’.[127]

    Brevet Sergeant Benyk

    [121] T 161 L 7.

    [122] T 161 L 19.

    [123] T 161 L 23.

    [124] T 161 L 30.

    [125] T 161 L 35.

    [126] T 162 L 1.

    [127] T 162 L 16.

30. Mr Benyk was the crime scene investigator tasked to attend the house at Haydon Road. He looked for points of entry. He noted an open window adjacent to the screen door.[128] He found no sign of forced entry, nor other doors or windows open.[129] The surfaces of the door and window were examined for fingerprints but no prints were found.[130] He secured the motorcycle helmet which had been seized by Mr Copland.[131] Mr Benyk took possession of gloves which had been provided to him by Mr Day.[132] Mr Benyk photographed Mrs Meaney, and in particular her hands showing redness and bruising of the left index finger.[133] He noted the dried residue of some form of liquid over parts of the interior of Mrs Meaney’s red Camry motor vehicle.[134] There were no finger prints found on the vehicle suitable for comparison testing. He photographed the earring found in the abandoned motor vehicle.[135]

    Brevet Sergeant Van der Ploeg

    [128] T 22.

    [129] T 23.

    [130] T 23.

    [131] T 26.

    [132] T 33.

    [133] T 33.

    [134] T 36.

    [135] T 37.

31. Mr Van der Ploeg is a crime scene investigator with training, amongst other things, in finding and recording latent fingerprints. He explained the process by which fingerprints might be left on an object. He identified an area on the seized motorcycle helmet that might be suitable for fingerprint comparison. He took photographs of those fingerprints and forwarded them to the fingerprints section.[136] He also swabbed the telephone seized by Mrs Meaney for potential contact DNA samples.[137] When cross-examined he said he had decided to swab for DNA rather dust for fingerprints on the telephone as the screen looked scratched and there were limited chances of getting a fingerprint from the surface.[138]

    Ms Ha

    [136] T 166.

    [137] T 168.

    [138] T 171.

32. Ms Ha is, amongst other things, trained as a ‘fingerprints expert’. She explained what a fingerprint is and the mechanism of a fingerprint being left on a surface.[139] She said there had never been a reported case of two identical fingerprints from unrelated unknown sources.[140] She described the process of comparing digital images of a print identified on a seized item, with sample prints from a person whose identity was known.[141] She described the identifying characteristics of fingerprints, and the number of similarities required for confirmation of the fact that two prints matched and could be said with confidence to be from the same person.[142]

    [139] T 173.

    [140] T 174.

    [141] T 175.

    [142] T 175.

33. Ms Ha said her process of comparison was peer reviewed by two colleagues. A fingerprint identified on the helmet was confirmed as coming from the right index finger of the accused. She identified a palm print identified on the helmet as being a match for the right palm of the accused.

34. Ms Ha explained that a fingerprint transferred onto a surface is a latent fingerprint, or invisible print. The print is made visible by the application of powder that adheres to moisture in the print. That moisture is typically sweat, or may contain fatty material because the person leaving the print has touched their forehead for example, and then touched the surface in question.[143]

    [143] T 182.

35. Ms Ha said that fingerprints are fragile in the sense that the clarity of a fingerprint may be affected by heat, by a poor surface for depositing the fingerprint, or by water.[144] A fingerprint may be damaged by mechanical means, by something coming into contact with the fingerprint, by wiping, or by just brushing against it.[145] She said that picking up the helmet and moving it could remove latent fingerprints. Packaging it into a bag might be bad for the fingerprint. Contact and friction could damage the fingerprint.[146]

    [144] T 183.

    [145] T 184.

    [146] T 185-186.

1. In cross-examination Ms Ha agreed that she was not able to put a time limitation as to when the fingerprint or palm print were placed on the visor of the helmet. She had no information as to whether the accused was a person who sweated a lot; nor as to whether the person who was seen on the day the helmet was being worn was sweating or not; what the weather conditions were; the condition of the helmet when it was obtained by police; whether the helmet had been handled by people other than police; nor whether there was any exposure to water.[147]

   [147] T 186-187.

2. Ms Ha said the fingerprint was positioned such that the finger appeared to be pointing towards the back of the helmet.[148] The palm print, a right palm print,[149] appeared to be angling down towards the front of the helmet on the left hand side of the helmet.[150] She agreed that all she could say was that the fingerprint and palm print indicated that at least the outside of the helmet was handled at some stage.[151] She agreed she could not say that the accused had worn the helmet at any time.[152]

   [148] T 188.

   [149] T 192.

   [150] T 191.

   [151] T 192.

   [152] T 192.

3. Ms Ha was asked about transference of fingerprints. She was able to exclude the hypothesis that there had been a transference of the fingerprint and palm print onto the helmet.[153] She said there could not be an accidental transfer of fingerprints.[154]

   Detective Brevet Sergeant Nikolic

   [153] T 192-193.

   [154] T 193.

4. Mr Nikolic was the investigating officer and arrested the accused.

5. Mr Nikolic commenced his shift at 3.00 pm on 19 July 2019, and was informed of the events at Kangaroo Flat shortly thereafter. He made inquiries and formed a view that the accused was a possible suspect. He prepared photograph ID packs and attended first on Mr Copland, and later that evening on Mrs Meaney to conduct an identification process.[155]

   [155] T 196.

6. Mr Nikolic conducted inquiries to endeavour to identify the owner of the motorcycle that had been ridden to Ms Haydon’s house and left there. That motorcycle had never been registered. Inquiries of the manufacturer’s representative revealed that it had been sold to one Mr Edwards in Victoria, but he could not be located.[156]

   [156] T 197.

7. Mr Nikolic made inquiries about the 000 emergency calls made by the various witnesses. Mr Copland’s call was made at 12.48 pm on 19 July 2019. Mrs Meaney’s call was made at 1.14 pm the same day. She made a subsequent 000 telephone call using the telephone she had seized.[157]

   [157] T 197-198.

8. Mr Copland’s identification procedure commenced at about 5.20 pm on 19 July 2019. The photograph of the accused appeared at number 2 in Mr Copland’s folder.[158]

   [158] Exhibit P8.

9. Exhibit P15 which was tendered as Mrs Meaney’s photograph board, contained a photograph of the accused at number 3.[159]

   [159] T 198-199.

10. Thereafter, Mr Nikolic attended at a house in Gosford Street, Gawler West where he understood the accused was living with either the accused’s parents or grandparents. The accused was not at home. Mr Nikolic spoke with an elderly man at the house, and made it clear that he was looking for the accused.

11. On 22 July 2019 Mr Nikolic attended at the Gawler office of the Department for Correctional Services as he had information that the accused was due to meet with his community corrections officer at 11.00 am that day. The accused failed to attend.[160]

    [160] T 199-200.

12. Thereafter, Mr Nikolic conducted an identification procedure with Mr Bentley. The photograph book contained a photograph of the accused at number 6.[161]

    [161] Exhibit P11.

13. On 23 July 2019 Mr Nikolic conducted an identification procedure with Mr Day. The photograph book shown to Mr Day contained a photograph of the accused at number 2.[162]

    [162] T 200 and Exhibit P13.

14. On 24 July 2019 Mr Nikolic received information that the accused had been seen near the Gosford Street address. Mr Nikolic attended there. As he approached the house Mr Nikolic noticed a vehicle leaving. That vehicle was stopped. It was driven by Ms Nicole Baker, who was spoken to. Mr Nikolic described her as generally argumentative and hostile. She was asked where the accused might be. She responded that she did not know. Mr Nikolic continued to the Gosford Street address. The accused was there. He was arrested.

15. The downloaded contents of the telephone seized by Mrs Meaney were examined, including the contacts list. The registered subscriber of the telephone service used for that telephone was Ms Baker. One of the contacts in the telephone was described as ‘Nic’ - telephone number 0401633041. That telephone number in turn was recorded on police systems as belonging to Ms Baker. Another contact on the telephone was described as ‘Pu’ – telephone number 0885223450. That number was recorded on police systems as belonging to Mr Kevin Gavin at the Gosford Street address. Mr Kevin Gavin is the accused’s father or grandfather. Another contact on the telephone was described as ‘Dave parole’ – telephone number 84113015. Upon calling that number Mr Nikolic reached a recorded message which said ‘You’ve reached Chantelle from the home detention unit.’ Another contact on the telephone was described as ‘Mu’ - telephone number 0416646486. The police system indicated that telephone was recorded against the accused, but with a note suggesting it was also a telephone number used by Ms Sharon Gavin, who is the accused’s mother or grandmother.[163]

    [163] T 202-203.

16. When arrested no formal measurement of height and weight of the accused was taken. Mr Nikolic estimated that he and the accused were the same height, about 182 cm. He estimated the accused’s weight, at the time of arrest, at about 85 kg, and said he looked physically fit and strong. Upon observation in the precincts of the court Mr Nikolic said the accused looked slim to the point of looking unwell, and looking as though he had lost a lot of muscle.[164] Mr Nikolic said that upon arrest the accused’s hair appeared a little longer and a bit lighter. At the time of trial, the accused’s hair had been shaved closely above each ear. Mr Nikolic could not recall whether it was shaved that way at the time of arrest. Mr Nikolic said it appeared the accused had grey in his hair at the time of his arrest. He did not notice any scars on the accused’s face, head or hands, nor notice any tattoos.[165] As to the accused’s appearance in the photographs used in the photograph identification packs, Mr Nikolic thought that the accused’s hair was a bit shorter on the sides on the day of his arrest, compared with his appearance in the photograph.[166]

    [164] T 204.

    [165] T 204-205.

    [166] T 205.

17. When cross-examined Mr Nikolic agreed that one of the items seized from the Gosford Street address was a white mobile i-Phone. No downloads were taken from that telephone. No cash was seized, nor jewellery. No clothing was seized.[167]

    [167] T 207.

18. In particular, on the topic of clothes being seized, Mr Nikolic was cross-examined and asked:[168]

    [168] T 207.

    QI want to take you through that. For example, there was no white Adidas shoes that were seized from the home.

    ANo, not to my knowledge.

    QNo black track pants.

    ANo sir.

    QNo black top.

    ANo.

    QWhen I say black top, no like a hoodie or motorcycle type apparel of a black colour.

    ANot from 30 Gosford Street, no.

19. Mr Nikolic was unable to recall whether the accused was wearing a watch on his left hand when arrested, nor rings on his fingers.[169]

    [169] T 210.

20. No sunglasses were seized during the search.[170]

    [170] T 211.

21. Mr Nikolic was asked whether there were any motorcycles at the house and said he thought there was a blue motorcycle in a shed at the property. It may have had a wheel taken off it. He could not recall seeing any motorcycle helmets.[171]

    [171] T 207-208.

22. As to the photograph board, the photograph of the accused which was used to compile that board was taken prior to 19 July 2019, and may have been a number of years prior. It was an image already uploaded to police systems.[172]

    [172] T 208.

23. I disregard the fact that there was a photograph of the accused already uploaded to police systems, as irrelevant to my deliberations.

24. Mr Nikolic was cross-examined about the photograph board identification undertaken by Mr Bentley. It was put to Mr Nikolic that Mr Bentley had identified, for the purposes of the process undertaken, the men depicted in photographs number 3 and number 7. The person depicted in photograph number 3 was one Mr CN. Mr Nikolic agreed that no investigation had been undertaken as to the whereabouts of Mr CN on 19 July 2019. Mr CN was not spoken to.[173] The person depicted in photograph number 7 was one Mr AB. No investigation was made as to Mr AB’s whereabouts on 19 July 2019, nor was he spoken to.

    [173] T 208-209.

25. Two photographs of the accused were shown to Mr Nikolic. He was asked whether that depiction of the accused, said to have been taken in April 2019, was what the accused looked like at the time of the arrest. Mr Nikolic said that on the day of the arrest the accused was lighter in weight, and his hair on the sides was shorter, than was depicted in those photographs.[174]

    [174] Exhibit D21; T 209-210.

26. No DNA or fingerprints evidence was obtained in relation to the red motorcycle or the yellow motorcycle.[175] Mr Nikolic had made a request for the gloves shown in Exhibit P4 to be tested for DNA comparisons. Mr Nikolic did not know the size of the gloves, nor did he ask the accused to try them on.[176] Forensic Science South Australia has policies and guidelines, which permitted only one item to be accepted for DNA assessment. The crime scene officer made the decision to submit the DNA swab from the mobile telephone.

    [175] T 213.

    [176] T 214.

27. Mr Nikolic made a request for DNA analysis to be undertaken in respect of the motorcycle helmet. He was informed by Mr Van der Ploeg that as a fingerprint had been found on that helmet, and only one item would be accepted for DNA analysis. It was decided that the mobile telephone should be submitted for DNA analysis.[177] Mr Nikolic agreed that in an ideal world it would have been beneficial to have had a DNA analysis of at least the interior side of the motorcycle helmet.[178]

    [177] T 216.

    [178] T 217.

28. After Mrs Meaney’s vehicle was located, having been abandoned in Willaston, dirt was found, observable in a photograph of the footwell of the vehicle. No analysis was taken, nor comparison made with any item of shoes or clothing of the accused. The white substance which appeared on the steering wheel and gear shift was not analysed. No specific observation of cleaning agents was made at the accused’s house at Gosford Street. No inquiry was made of a Cash Converters store at Murray Street Gawler as to any jewellery that had recently been disposed of at that shop.[179] No jewellery was located at the accused’s house at Gosford Street, and in particular, no matching earring similar to the one found in the abandoned car was located at the accused’s premises.[180]

    [179] T 215.

    [180] T 216.

29. Mr Nikolic confirmed that there were no messages or communications on 19 July 2019 between the telephone seized by Mrs Meaney, and any telephone ‘attached to Mr Gavin’. Mr Nikolic agreed that the phone content was almost blank. The last use of that telephone was the 000 call made by Mrs Meaney.[181]

    [181] T 218.

30. During the course of the cross-examination of Mr Nikolic, counsel for the accused called for production of two arrest photographs of Mr Gavin. Subsequently two arrest photographs of the accused, taken on 24 July 2019, were admitted into evidence as Exhibit D22.

    Agreed Facts

31. The mobile telephone seized by Mrs Meaney was handed to police. The telephone number was 04811167593.[182] The contents of the telephone were downloaded onto a DVD.

    [182] Exhibit P7; T 194 – Agreed Fact 1.

32. Between 24 January 2019 and 7 September 2019 the accused was under the supervision of a community corrections officer employed at the Gawler office of the Department for Correctional Services. On 24 January 2019 the accused advised his case management officer that his telephone number was 0481167593, that is, the number subscribed to the Alcatel telephone. On 20 June 2019 he once again provided that number to his case manager. On 7 September 2019 he advised his Community Corrections Officer that he had a new telephone number.[183]

    [183] T 194 – Agreed Fact 2.

33. I have no evidence as to the reason the accused was under supervision. It is not relevant to my deliberations. I ignore that evidence except insofar as it relates to the suggested connection between the telephone seized by Mrs Meaney and the accused.

34. A DNA profile obtained from the mobile telephone was too complex for analysis, and a forensic swab taken from the earring found in the red Toyota Camry contained very low or DNA and was not subject to formal analysis.[184]

    [184] T 195 – Agreed Fact 4.

35. The accused’s finger and palm prints were obtained from the accused at the Elizabeth Police Station on 24 July 2019.[185]

    [185] T 195 – Agreed Fact 5.

    Defence Case

    Ms Baker

36. At the time of giving evidence Ms Baker was 35 years old. She lived with the accused, who was on bail in respect of the present charges, and her three-year-old son. She had commenced a relationship with the accused in February 2019. She was studying aged care, having previously worked as a child care worker.

37. In July 2019 she was living in Nuriootpa with her mother. She stayed with the accused on occasions at his Gosford Street house. His grandparents also lived at that house.[186]

    [186] T 221-222.

38. Ms Baker was then asked:[187]

    [187] T 222 L 8.

    QI want to take you in particular back to 19 July 2019. Whereabouts were you living on that date.

    AI stayed at Clint's [the accused] house.

    QYou recall getting up in the morning on that day.

    AYes.

    QWhat time did you get up.

    AI would have got up about 7.30.

    QWhat were your movements. What did you do after you got up.

    AGot Kade [her son] dressed and ready and then we went down to Christie Downs.

    QWhen you went down to Christie Downs, what time did you leave 30 Gosford Street at Gawler.

    ARoughly 8-8.30.

39. Ms Baker said that the accused and his grandparents were all at home when she left. She travelled to Christie Downs with a friend, Jenaya, who was also her son’s aunt.[188]

    [188] T 222.

40. Ms Baker was then asked whether she recalled what time she left the Christie Downs address and responded:[189]

    [189] T 223 L 6.

    ARoughly lunchtime, 12.30-ish.

    QWhere did you go from that location.

    AI came straight back, dropped her off at Davoren Park she was living at that time and then straight back home to Clint's nan and pop's.

    QDo you recall what time it was roughly when you got home.

    ARoughly maybe 2, 1.30. I'm not 100%.

    QWhen you got home, who was home at that time.

    AClint and his nan.

    QWhen you arrived back home, did you see what Clint was wearing on that day.

    AYeah, he just had a blue hoodie on and a hat. I don't know, normal clothes.

41. Ms Baker said that the accused always wore baseball hats. She was asked:[190]

    QCan you recall anything else about clothing that he was wearing on that day.

    AHis normal Nikes. He’s always got them on. He wears the same sort.

    [190] T 223 L 22.

42. She was again asked:[191]

    QCan you recall the exact time you got home.

    AAs I said, probably 1.30 to 2-ish. I’m not 100% on the time.

    QCould it have been after 2 o’clock.

    ANo, because I was coming home to be home before all the school traffic.

    [191] T 223 L 26.

43. Ms Baker said that after she arrived home she and the accused ‘got organised’ and went to a friend’s house in Evanston Gardens where they arrived at around 3.00 pm.[192]

    [192] T 223-224.

44. Ms Baker was asked:[193]

    QI just want to ask you in particular were you ever spoken to by the police in relation to this matter.

    ANo.

    QDid you at any time volunteer to give the police some information in a statement.

    AThe police contacted my mobile phone and I organised to go see Detective Doug, he had organised for me to go in on the Friday and Clint got arrested on the Wednesday and no-one come and spoke to me after that.

    [193] T 233 L 9.

45. Ms Baker said that on 24 July 2019, the date of the accused’s arrest, she had been at the Gosford Street house. She recalled police attending at some stage in the morning and a search being undertaken. She was asked:[194]

    QWere you there during the course of that search.

    AWhen they went in his room, I was there, yeah.

    [194] T 227 L 6.

46. She was then asked what she was doing when police arrived and said that she and her son were in her car on the way to the shops. She reversed out of the driveway and drove along the street. Police cars with sirens operating arrived so she stopped. She said she did not think Mr Nikolic was there at that stage when she was stopped by the cars, but when she returned later he was at the front of the house. She was asked whether she had any argument or disagreement with any police officer and she denied that.[195]

    [195] T 227-228.

47. By way of description, Ms Baker said that the accused was at least six feet tall, maybe a little taller. She estimated his weight at 90-100kg.[196] The accused’s appearance shown in the photographs Exhibit D21 was what he looked like in April 2019. The watch he is shown wearing was a present from his mother. He always wears that watch. He also regularly wore a chain and a couple of thick gold rings with some diamonds in them.[197]

    [196] T 224.

    [197] T 225.

48. Ms Baker said the accused’s appearance in July 2019 was as depicted in the photographs, and there had been no change in the intervening period. She had not known the accused to ever dye his hair. She said he did not have any grey hair at all.[198]

    [198] T 226.

49. Ms Baker said she had never seen the accused wearing a peach coloured shirt; she had not observed a large amount of jewellery present at his house when she returned to the house on 19 July 2019; the accused did not own a black backpack; the accused had scars on the top half of his forehead including one near his eyebrow on the left side and a quite prominent one on the right side, and one at the back of his head; and she had never seen him on a motorcycle.[199]

    [199] T 228.

50. Ms Baker said she had never ridden a motorcycle with the accused; had never seen him in possession of any motorcycle equipment or a motorcycle; had never seen the motorcycle left at Ms Haydon’s house; and had never seen the gloves seized by police.[200]

    [200] T 229.

51. Ms Baker had never seen Mrs Meaney’s motor vehicle.[201] The earring found in that motor vehicle was not hers and she had never seen that ear ring or a similar one.[202]

    [201] T 230.

    [202] T 231.

52. Ms Baker said that friends of the accused visited the accused on occasions, travelling on motorcycles. She saw people wearing helmets. She did not know their names.[203] She was shown the helmet seized by Mr Copland. She was asked whether she had ever seen that helmet before. She said ‘I’m not too sure. I mean someone could have been wearing the same helmet that popped over with that one but, yeah.’ She had never seen the accused wear that helmet or be in possession of that helmet.[204]

    [203] T 233.

    [204] T 234.

53. Ms Baker said that she had a black Samsung telephone as of 19 July 2019. The accused had a white i-Phone.[205] Ms Baker was shown Exhibit P18 and directed to photographs of a mobile telephone. She said that was her telephone subscribed to her. She was not sure when she obtained that telephone. As at 19 July 2019 it was no longer her telephone. She said that telephone, a couple of bracelets, and some change, were stolen from her car at the front of the Gosford Street house in late June 2019. She did not make a complaint to police about that.[206]

    Cross-examination

    [205] T 224.

    [206] T 232.

1. In cross-examination, Ms Baker was first challenged in relation to events on the morning of the accused’s arrest on 24 July 2018. She said that she left the Gosford Street house at about 8.30 am. When she left the accused was in bed. She was pulled over by the police 50 or 100 meters up the road. She was asked:[207]

   [207] T 237 L 25.

   QYou knew when you left your house that morning that Mr Gavin was home inside the house, didn’t you.

   AWhen I left he was still at home, yes.

   QDid you tell police you didn’t know where he was.

   AI’m not 100% sure what I said when they pulled me over to be honest. My – we were pretty upset the way they had pulled me over so I couldn’t tell you what I said.

   QI suggest to you that you told them that you didn’t know where he was.

   AOk.

   QDo you agree.

   AI’m not 100% sure.

2. When she was pulled over, police asked her where the accused was. She said they asked to look in the boot of her car. She was asked why she didn’t tell police that the accused was at home. She responded saying that police had asked to look in her boot so she let them.

3. The following was put to her:[208]

   QI suggest to you you told police you didn't know where he was, do you agree or disagree with that suggestion.

   AI don't remember what I said at the time.

   QIf you told police that you didn't know where he was that would have been a lie, wouldn't it.

   AWell as I said, I honestly cannot remember what got said. It happened so fast.

   [208] T 239 L 26.

4. Ms Baker was asked whether she was curious as to why police were pulling her over, and said she was not because she had already telephoned police and been to the police station to speak to police when asked to. She was asked what she knew of police looking for the accused, and said:[209]

   Nothing because I went down to the Gawler Police Station and they told me that there was nothing on the file, they had no reason why I should be down here and they told me that Detective Doug would give me a call, which he did, he said 'Could you come see me Friday'. I said 'Yeah, no worries'. He come around on the Wednesday, told me I missed my appointment. I said 'It's in a couple of days' and that was the end of that.

   [209] T 240 L 13.

5. Ms Baker denied being told that police were looking for the accused. She said she was told by her sister and mother that police were looking for her.[210]

   [210] T 240.

6. Ms Baker agreed that police had attended her house in Nuriootpa on 19 July 2019, and she knew, on that date, that police wanted to speak to her. She went to the Gawler Police Station the following day, 20 July 2019, to ask why they had been to her address in Nuriootpa.

7. As to that visit to the Gawler police station on 20 July 2019, she was asked:[211]

   [211] T 245 L 27 ff.

   QI suggest that when you were at the Gawler Police Station on the 20th you spoke about Mr Gavin to the police officer that you spoke with, that the topic of your partner Mr Gavin came up in conversation. Do you agree or disagree with that.

   AI can't actually remember. As I said, there were three of them that spoke to me and none of them had anything to - they weren't concerned about anything so I left.

   QI suggest that you told police at the Gawler Police Station on 20 July that you had no idea where Mr Gavin was. Do you remember or disagree with that suggestion.

   AWell he wasn't with me at that stage. I was at the police station seeing them. Then I was going to pick up my son from Elizabeth.

   QAll right.

   ASo, no, at that stage I didn't know where he was.

   …

   QDo you agree that you told police you didn't know where Mr Gavin was.

   QNo, I don't agree to that because I can't remember what I said that day at the police station.

   QDid you tell police that Mr Gavin does not have a telephone.

   AI can't remember. As I said I can't remember the conversation that we actually had at the police station.

8. In subsequent cross-examination Ms Baker did not agree that she knew that the accused had a mobile telephone as at 20 July 2019, and said she would be guessing. She said she would presume he would have a telephone as ‘we all do’.[212] It was put to her that she had his phone number in her contacts list and said ‘so therefore I would presume he had a telephone.’ She agreed she would speak to the accused by telephone.[213] She reiterated that she presumed that he had a telephone.

   [212] T 246.

   [213] T 246.

9. She was then specifically asked:[214]

   QDid you say this to the police at the Gawler Police Station on the 20th: that he didn't have a phone and that you wait for him to contact you.

   AI can't recall that at all.

   QIs that true, that you used to wait for him to contact you as opposed to you ringing him on the mobile phone number that was saved in your telephone.

   ANo, we would both contact each other whenever.

   [214] T 247 L 30.

10. Ms Baker was asked whether she gave police her mobile number as 0401633041 and said she thought so.[215] She said that she had the accused’s telephone number, related to his white i-Phone, saved on her contact list. She was asked whether she had the accused’s number saved to the black Alcatel phone and said ‘I think so. I am not 100%, it was a while ago’. She purported to give an explanation as to why her own number might have been recorded on that black Alcatel phone even though it was her own phone. She said that was in order to be able to remember her number if she was asked for it. She said she sometimes stored her own number under ‘A’, or under her own name.[216]

    [215] T 241.

    [216] T 242-243.

11. Ms Baker denied that she had lied in her evidence regarding her movements on 19 July 2019; or that she had deliberately and falsely claimed to have been home by 1 or 1.30 on the afternoon of 19 July 2019 to provide an alibi for the accused.[217]

    Application by Prosecution to Call Rebuttal Evidence

    [217] T 261.

12. Counsel for the DPP made application to call evidence from a police officer, Mr Bourke, on the basis of Ms Baker’s inability or refusal to distinctly admit, within the meaning of s 28 of the Evidence Act, the statements she had made to police at Gawler to the effect that she had no idea where the accused was; and that he did not have a telephone; and that she would wait for him to contact her.

13. I accepted the submission that that was a matter going to Ms Baker’s credit. I accepted that the test in s 28 of the Evidence Act had been met. I ruled that the evidence of Mr Bourke could be led in rebuttal. I did not consider that the calling of evidence from him offended the general principle that the prosecution cannot split its case.[218]

    [218] Shaw v The Queen [1952] 85 CLR 365; Killick v The Queen [1981] 147 CLR 565.

14. Thereafter Mr Bourke’s evidence was admitted by way of agreed fact in the following terms:

    The witness, Nicole Baker, attended the Gawler Police Station on the morning of 20 July [2019]. She did provide her mobile number and said that police can call her at any time. She gave the number 0401633041.

    She stated that she has no idea where Gavin is and that he does not have a phone and she waits for him contact her.

    Consideration

15. The prosecution case was a circumstantial case. The evidence relied upon included the accused’s fingerprint and palm print found on the motorcycle helmet left at the Haydon’s property by the offender and seized by Mr Copland; the identification in the photograph array of the accused by Mr Copland; the identification of the accused in a photograph array by Mr Day; the identification of the accused in a photograph array by Mrs Meaney; and the telephone seized by Mrs Meaney from the passenger seat of her motor vehicle where the offender had been sitting.

    Identification

16. I take into consideration the evidence of the identification witnesses in the witness box, and my observations of the identification process they undertook as recorded.

17. I bear in mind that reliance upon identification evidence is dangerous, in that even honest witnesses, taking care, and making observations of an offender in good clear viewing circumstances, may be persuasive in their evidence but nevertheless incorrect. The risks of such an error are increased where a witness has had only a limited opportunity to view an offender, and where a witness may be affected by shock or fear.

18. I bear in mind that during the identification procedure the three witnesses, to whom I next refer, were asked what it was as to the appearance of the person they had each identified, that caused them to select that person. Such questions may be part of the standard protocol. Whilst the answers elicited may have been confined to particular, and indeed differing aspects of the accused’s appearance, I accept that the process of identification is a multifactorial process which may not lend itself to easy explanation or description as to that process. The somewhat constrained responses do not cause me to have any doubt as to the clear process of identification engaged in by those witnesses.

19. I consider that the three witnesses Mr Copland, Mr Day and Mrs Meaney who had identified the accused from the photograph arrays, were honest witnesses. They each had a good opportunity for making clear observations of the offender.

20. Mr Copland said that the lighting in the house was good. His evidence in that regard was not undermined in cross-examination. I accept his evidence. I accept that he had a good clear opportunity to observe the offender in the house at Ms Haydon’s house. The offender was looking straight at him for part of their interaction. The photograph identification procedure was conducted later that day.

21. Mr Copland did not strike me as someone who was in fear when he encountered the offender. Mr Copland was a large, confident and apparently capable man who challenged the offender in no uncertain terms. He had, as I have said, a clear opportunity to observe the offender. He had the presence of mind to take the key from the motorcycle the offender had arrived upon, and take the helmet used by the offender. I accept that Mr Copland provided a positive identification of the accused.

22. Mr Day gave his evidence in a straightforward matter of fact way. He was, in my view, clearly an honest witness. He spoke to the offender outside. It was in the middle of the day. They had a conversation for a few minutes. He had a clear opportunity to observe the offender. His identification procedure was conducted on 23 July 2019.

23. Mr Day again was a man not troubled by the arrival of the offender, and who dealt with the offender clear and certain terms. As I have said, he had a good opportunity to observe the offender, and there was no reason for his observations to be affected by fear or shock. I accept that Mr Day also provided a positive identification of the accused.

24. Mrs Meaney was also clearly an honest witness. She gave her evidence in a matter of fact way. She had a clear opportunity to observe the offender having engaged in a discussion with him, gone inside to obtain a bottle of water for him, and returned outside to provide that to him. Her identification procedure was conducted on 19 July 2019.

25. Mrs Meaney was confronted by the offender in the sense that once they were in the car and the offender overheard Mrs Meaney’s conversation with her husband, he demanded that she hand over the keys and leave the car, and then forcefully took the keys from her hand causing her a bruising injury. As she put it, she bruises quite easily. She struck me as a matter of fact witness although I make some allowance that she may have been affected by shock. I accept that Mrs Meaney provided what might be described as similarity evidence, that the person whose photograph she selected resembled the accused.

26. I bear in mind Mr Bentley’s selection of two other possible contenders from the photograph array, and not the accused. I do not consider that that undermines the force of the identification of the accused made by the other witnesses to any material degree whatsoever. Mr Bentley said that he had only a side profile view of the offender. Mr Bentley had suffered a number of health issues having suffered strokes and issues with his eyesight. I do not consider therefore that Mr Bentley’s selection of two other candidates from the photograph array undermines the strength of the identification evidence of the other three witnesses. It does not cause me to doubt their identification evidence.

27. The witnesses were cross-examined as to the asserted failure to observe scarring on the offender’s face, or tattoos or jewellery on his hands. Ms Baker gave evidence of visible scarring on the accused’s face, and evidence that he always wore a watch which had been given to him by his mother, and wore two rings which were gold and contained diamonds.

28. I had the opportunity to observe the accused in the dock albeit at a greater distance than the witnesses who gave evidence of having encountered the offender in the circumstances to which I have referred. I formed the view that there was no readily visible scarring such as might attract the attention of an eye witness, insofar as that may be relevant.

29. For reasons I will come to, I reject the evidence of Ms Baker. I do not accept her evidence as to her observation that the accused always wore a watch, and rings, as she described. In any event, there may be many reasons why a witness did not notice a watch or rings, even if the offender had been wearing such items on the day in question.

    Fingerprint Evidence

30. I regard the finger print evidence as a significant item of circumstantial evidence. I remind myself of the usual direction as to expert evidence. I accept that the fingerprint and palm print are matches for the fingerprint of the accused. I accept the evidence of Ms Ha that a fingerprint is affected by heat, or water, or physical contact or friction. That reduces the potential for the fingerprint and partial palm print to have been placed on the helmet by the accused at some other time, and then the fingerprint and palm print still be present on the helmet when that helmet, bearing the accused’s prints, was coincidentally used by someone else who chose to break into Ms Haydon’s house.

    The Alcatel Telephone

31. Although the telephone number of that telephone was subscribed to Ms Baker the telephone number was given by the accused to his community corrections officer on 24 January 2019 and again on 20 June 2019. The contacts lists included a number for each of the accused’s two grandparents, and importantly, a number for Ms Baker. Also importantly, it did not include contact details for the accused, as would have been expected had Ms Baker been using that telephone. I reject Ms Baker’s evidence that the Alcatel telephone was stolen from her vehicle some weeks prior to the events of 19 July 2019. I formed the view that Ms Baker had fabricated her evidence in an endeavour to assist the accused, by seeking to explain away the evidence against him. Amongst other things, that would require that the offender, if someone other than the accused, not only stole Ms Baker’s telephone and took it with him when committing the offences on 19 July 2019, but did so while using a motorcycle helmet which had somehow been in the possession of or in contact with the accused at some stage. Such a scenario beggars belief.

32. There are other very minor pieces of circumstantial evidence. The offender asked both Mr Day and Mrs Meaney to assist him to get to Gawler, where the accused lives. The arrest photographs of the accused[219] depict the accused on 24 July 2019. He is shown wearing a black hoodie bearing a brand logo across the front, track pants albeit light grey, and white running shoes. Whilst that may be of limited weight as a piece of circumstantial evidence, it demonstrates that at least at that stage the accused was in possession of items of clothing that broadly accorded with the description of the clothing given, for example by Mr Day and Mrs Meaney. I bear in mind defence counsel’s cross-examination of Mr Nikolic as to whether a pair of white Adidas running shoes was found at the accused’s house, whether a pair of black track pants were seized from the accused’s house, and whether a black hoodie or black motorcycle apparel were seized.[220] As I have said, they are matters of limited circumstantial weight, but are nevertheless, matters that can be taken into account in assessing the circumstantial evidence as a whole.

    [219] Exhibit D22 – taken 24 July 2019.

    [220] T 207.

33. I bear in mind, in assessing the defence case that the accused bears no onus whatsoever to prove anything. The accused did not give evidence. As I have said, that was his right and I have drawn no adverse inference against him for exercising that right. I bear in mind that there may have been many reasons that he made the decision not to give evidence. I remind myself that the onus is upon the prosecution to prove the charges beyond reasonable doubt. I bear in mind again the presumption that he is innocent unless and until I am satisfied beyond reasonable doubt that the prosecution has proved each element of the offences charged.

    Ms Baker

34. I reject Ms Baker’s evidence. I consider that she entirely lacked credibility, and was evasive in her evidence. I consider that her evidence was a fabrication designed to endeavour to provide what was, in practical effect, an alibi for the accused by suggesting that she had returned to the Gawler address at some time around 1.30 and certainly no later than 2.00 pm to find the accused at home with his grandmother, dressed in clothing which did not match the description offered by any of the witnesses. I bear in mind that the first time Ms Baker had provided a statement or information or instructions to a solicitor or counsel acting for the accused was about a month before trial.[221]

    [221] T 267.

35. Counsel for the accused submitted that Ms Baker’s evidence was not alibi evidence.[222] It is however difficult to see what other basis there was for eliciting evidence from her as to the time she left the Gosford Street house, the time she returned, and where the accused was when she returned.

    [222] T 271 L 2.

36. I consider that Ms Baker was evasive in the way she responded to cross-examination on the topic of her interaction with police on the morning of the arrest of the accused. Indeed I consider that Ms Baker was an evasive witness who was cautious when cross-examined about any topic relating to her communications with police, her communications with the accused, the question of the accused’s possession of a telephone, the question of her conversations with police at the Gawler Police Station prior to the accused’s arrest, her knowledge of the accused’s whereabouts when she was stopped by police on the morning of the accused’s arrest, the question of her visits to the accused when he was in custody following his arrest,[223] her conversations with the accused about the reason he had been arrested,[224] and her dealings with community corrections officers, parole officers or the like.[225]

    [223] T 253.

    [224] T 254.

    [225] T 256-257.

37. I reject Ms Baker’s evidence that the black Alcatel telephone was stolen from her car at the front of the accused’s house some time in June 2019 prior to the July 2019 events. Ms Baker did concede that that telephone was used by the accused.[226] More to the point, the telephone contained contact details for the accused’s grandfather and grandmother. It contained contact details for Ms Baker and her usual telephone number. Ms Baker’s explanation that she entered her own telephone number into her telephones so that she did not have to remember the number, and could give the number to other people, is all well and good, but that cannot be the explanation in respect of her contact entry in the Alcatel telephone, because the accompanying telephone number was not for that Alcatel telephone. There was no contact entry, upon the evidence, for the accused himself. Had that telephone been used by Ms Baker that might have been expected to be there. The accused gave the telephone number of the black Alcatel telephone to his community corrections officer, as his contact number, on occasions in January and June 2019. Although the telephone number of that phone was subscribed to Ms Baker, the inevitable finding is that that telephone was used by the accused, not by Ms Baker.

    [226] T 257 L 36.

1. I bear in mind that my rejection of Ms Baker’s evidence does not provide any basis for a finding of guilt. The onus of proof, as I have said, remains entirely upon the prosecution.

2. I have carefully considered the submissions of Mr Moen in relation to the pre-arrest photographs of the accused in relation to the differing descriptions of the person seen on the day of the offending and the criticisms he made of the witnesses during their respective identification processes.

3. I bear in mind that I cannot convict the accused unless I am satisfied of his guilt beyond reasonable doubt. I cannot convict the accused if there is any rational hypothesis or reasonable possibility consistent with his innocence.[227] It is necessary to consider the united force of all the circumstances put together.[228]

   [227] Dansie v The Queen [2020] SASCFC 103 at [457] citing R v Van Beelen.

   [228] Dansie v The Queen [2020] SASCFC 103 at [458] citing Chamberlain v The Queen (No.2) and the cases referred to therein.

4. I have found that the helmet worn by the offender bore a fingerprint and palm print of the accused. The offender had removed the helmet upon arrival at the Haydon’s house. There was no evidence of other prints. I bear in mind the evidence of Ms Ha as to the potential fragility of prints. Mr Copland made a positive identification of the accused as the offender. So did Mr Day. Mrs Meaney’s evidence was that the accused, as depicted in the photograph array resembled the accused. I have found that the Alcatel telephone was used by the accused. The accused fitted the admittedly broad general description of the offender, evidence of which was given by the witnesses.

5. When arrested, the accused was wearing clothing matching, to some extent, the description of the clothing being worn by the offender. The offender was seeking a ride from Mr Day and subsequently from Mrs Meaney, to Gawler, where the accused resided.

6. The positive identification of the accused by Mr Copland, combined with the fingerprint evidence on the helmet worn by the offender would be sufficient to satisfy me beyond reasonable doubt of the guilt of the accused in relation to Counts 1 and 2. That in turn strengthens the evidence of the positive identification of the accused by Mr Day, the similarity evidence of Mrs Meaney, and the presence of the accused’s telephone in Mrs Meaney’s car.

7. The united force of all of the circumstantial evidence put together is such that I am satisfied that the accused was the offender. There is no rational hypothesis consistent with his innocence. I am satisfied of the guilt of the accused, in respect of each charge, beyond reasonable doubt.