R v Harding
[2012] SASCFC 91
•2 August 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARDING
[2012] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
2 August 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
Appeal against conviction – appellant found guilty by a Judge sitting alone of one count of robbery contrary to s 137(1) Criminal Law Consolidation Act 1935 (SA) – case against appellant based on circumstantial evidence – central issue at trial was one of identity – whether the verdict was unreasonable and could not be supported having regard to the evidence.
Held: appeal allowed – conviction set aside – verdict of not guilty entered – on the objective evidence as presented, a trier of fact must have entertained a reasonable doubt as to the appellant’s guilt.
M v The Queen (1994) 181 CLR 487, applied.
R v HARDING
[2012] SASCFC 91Court of Criminal Appeal: Nyland, Anderson and David JJ
NYLAND J: I agree with the reasons of David J and would set aside the verdict and enter a verdict of not guilty.
Having compared the CCTV footage of the person who was agreed to be the robber with the photographs of the appellant, I am left with a reasonable doubt that they are of the same person. I also consider that the footage on the CCTV which shows the robber swinging his bag backwards and forwards is inconsistent with being the appellant who had suffered an undisputed and serious fracture to his hand and which required surgical intervention the day following the robbery.
Although there are aspects of the evidence which raise a suspicion of guilt, in my opinion they are insufficient to establish proof beyond reasonable doubt.
ANDERSON J: In this matter I agree with David J and I would set aside the verdict and enter a verdict of not guilty.
Since viewing the CCTV footages in court I have reviewed some of that footage and also considered the still photographs taken from that footage.
I agree with David J that it is impossible to say whether the person depicted in the respective footages is the same person. That being the case there is in my view a reasonable doubt on the evidence. There is in my view a reasonable possibility that the footages are of two different people.
DAVID J: After a trial by Judge alone the appellant was convicted of the offence of robbery. He now appeals against that conviction on the ground that the verdict was unreasonable and could not be supported having regard to the evidence.
At his trial there was no dispute that the victim was robbed. The issue was whether it had been proved beyond reasonable doubt that it was the appellant who was the robber. The prosecution case was based upon circumstantial evidence which the appellant now argues could not amount to proof beyond reasonable doubt that he committed the robbery.
Trial
I set out the Information in full:
Statement of Offence
Robbery. (Section 137(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Jason Dwayne Harding on the 5th day of January 2010 at Adelaide, threatened to use force against Ruby Plate in order to commit the theft of $10, and the threat of force was made at the time of the theft.
There was undisputed evidence led by the prosecution that Ms Ruby Plate and her friend, Mr Alexander Stanley, at about 1.00am on 5 January 2010 had left the Grace Emily Hotel in Waymouth Street, Adelaide. They intended to go to a Hungry Jack’s restaurant on West Terrace. They were walking south along Gray Street, having entered that street from Waymouth Street, when a man and a dog walked past them briskly. That dog was not on a lead and the man, having passed them, turned around and confronted them. He demanded that Ms Plate give him her phone and $20. According to the evidence of Ms Plate, the man raised his fist when making that demand. Ms Plate reached into her handbag and gave him $10, but refused to give him her phone. The man then went quickly in a southerly direction on Gray Street and when he was near Grote Street turned back and cried out, “follow me and I’ll fucking kill you”. The man and his dog then headed west on Grote Street towards West Terrace. Neither Ms Plate nor Mr Stanley saw that man again.
Police were telephoned and attended shortly afterwards and both Ms Plate and Mr Stanley gave police descriptions of the robber. The area was searched but no-one matching the descriptions they provided was found.
At trial Ms Plate described her assailant in the following way:
1.He was six foot tall or taller;
2.He had mid length brown hair (she cannot recall whether he had any facial hair);
3.He was of slender build;
4.He appeared to be aged 40 or over;
5.He was wearing a t-shirt or a shirt, long pants and a jacket;
6.He was carrying a bag which looked a laptop bag;
7.The dog he was with was brown, medium sized, and it was probably a Staffy, but she was not sure. The dog had short hair. It was not on a lead.
In cross-examination Ms Plate agreed that on that morning at the scene she told a police officer that her assailant had black hair with grey streaks.
Mr Stanley described the assailant in the following terms:
1.He had bulging eyes;
2.He was very tall, perhaps six foot;
3.He had a prominent Adam’s apple and was very skinny (weighing about 75 to 85 kilograms);
4.His hair was not long but was haphazard, messy and dark;
5.His face was quite skinny, gaunt and elongated;
6.He had stubble on his face;
7.He was aged in his late 20s to 30s;
8.He was wearing khaki cream coloured pants and a dark top with collar perhaps horizontal stripes;
9.He was carrying a laptop bag with a handle which was dark in colour;
10.The dog was short haired, brown, short and stocky and not on a lead. It looked like a Staffy.
On 2 March 2010 Ms Plate was shown an array of photographs (P2) which included a photograph of the appellant. She gave evidence that at that procedure she pointed out the photograph of the appellant and in doing so said that it looked “familiar” and she was about 80 per cent sure that the person in that photo was the person responsible for the robbery. She was asked by the police officer conducting the procedure at the time what it was about the photograph that made her believe that that was the person involved and she replied, “same facial structures, relatively the same age and the hair, it’s just a bit familiar” (P3).
On 5 March 2010 Mr Stanley was shown the same array of photographs. Although he referred to a photo which was that of the appellant, he also added that he could not be certain. I indicate at this stage that, for the purposes of my assessment of the evidence, the photographic array of Mr Stanley has no evidentiary value. That is to be contrasted to the photographic array of Ms Plate, which was an important piece of circumstantial evidence.
Evidence was led at trial of CCTV footage from Hindley Street between midnight and 1.00am on 5 January 2010. This came about because one of the police officers who attended at the scene, Sergeant Christopher Mason, upon learning that the robber had a small brown dog recalled that an hour or so earlier whilst on patrol he saw a small brown dog tethered to the footpath outside the Rosemont Hotel which is situated on the north eastern corner of the intersection of Hindley Street and Morphett Street. That footage (P8) depicts a small brown dog outside the entrance to the Rosemont Hotel and Sergeant Mason entering and leaving, but also shows at an earlier time a man and a small brown dog at various locations in Hindley Street heading west towards the Rosemont Hotel on the northern footpath. At about 1.00am on the footage the man is seen crossing Morphett Street in a south westerly direction, walking towards the scene of the robbery. From a view of the film the man appeared to be swinging his right arm with a bag in it. The man was wearing a rugby style jumper and his dog was not on a lead. The trial Judge found that that person shown on the CCTV footage was in fact the robber. He found that by a process of assessing the circumstantial evidence that led to that conclusion. It is to be noted that there was no dispute about that at trial or on appeal.
On 29 January 2010 at about 12.30pm, the same Sergeant Mason, whilst on foot patrol with another police officer, saw the appellant with a small brown dog outside Hungry Jack’s restaurant on the corner of Pulteney Street and Rundle Street. Sergeant Mason gave evidence that he was of the view that that dog was very similar to the one that he saw at the Rosemont Hotel on 5 January. He then spoke to the appellant. That conversation between the two was captured on CCTV and tendered as an exhibit (P9). At that stage there was no discussion about the robbery but it was accepted at the trial that that person shown in P9 was the appellant.
On 9 February 2010, the appellant was spoken to by the police about the robbery and declined to participate in a formal identification parade. On 11 March 2010 he was arrested on the charge of robbery, taken to the Adelaide Police Station, charged and interviewed. During his interview he denied being the person who committed the robbery. He said he was at the home of Brett and Helen Bierton at 12 Charlotte Street, Adelaide. He indicated that that street was in the south eastern corner of the city, near Gilles Street. Declarations from the Biertons were tendered in evidence (P14) and they were to the effect that they would not cooperate.
The defence case at trial
The appellant gave evidence on oath. He said that his birthday was 19 December 1987 making him 22 years of age at the time of the robbery. He denied that he was the robber. He said that on the morning of 5 January 2010, which was a Tuesday, he was at Brett and Helen Bierton’s home. He said that on 4 January, in the morning, he had been at the Port Adelaide Magistrates Court because he had been charged for breach of bail for which he was fined $540. He had been held in custody. The condition of bail which he breached was that he was staying with a Rosemary Mundy who lived at Taperoo when his bail conditions forbade that. When he was arrested for that breach, the appellant told the Court that he hit a window with his right fist and as a result his hand was broken. This caused it to be swollen as a result of which the police took him to hospital on 3 January. He said a half-plaster was placed on his right hand and an operation was booked for 6 January.
The appellant then gave evidence that when he was released from the Port Adelaide Magistrates Court on 4 January, he first went to Centrelink. He then caught a bus to Taperoo and met Rosemary Mundy. She had previously been his partner before they broke up. He said that she delivered a black suitcase on wheels with a pull-up handle as well as his dog, Marley. That was the same dog that was depicted in P9. After he left Rosemary Mundy he caught a taxi to the city and went to the Bierton’s place at Charlotte Street. He asked them if he could stay. He went inside and had a couple of drinks then fell asleep on a couch in the front room. The arrangement was that he was to stay there until he found somewhere else to go. He said he stayed there for about one month. His evidence was clearly that he was there at the time that the robbery took place and the robber was not him.
He gave further evidence that the operation on his right hand took place at the Queen Elizabeth Hospital on 6 January. He said that Helen Bierton had cut the cast off with scissors on 5 January after it had become wet. The plaster cast, when it was on, went from his knuckles up to his elbow. In other words, at the time that the robbery took place the plaster cast would have been on. Nevertheless, according to the appellant in his evidence, at that time he was at the Bierton’s.
During his evidence hospital records were tendered (D3) indicating that on 5 January the appellant was suffering a displaced fracture of the fifth metacarpal of the right hand which required surgery and which involved the insertion of screws and a plate. On an enquiry from the trial Judge, the medical report was tendered. The relevance of the medical report was that, in the CCTV footage taken from the Rosemont Hotel, the man swinging a bag around with his right hand appeared to have no apparent discomfort consistent with an injury such as that suffered by the appellant.
The appellant then gave further evidence that he and his dog stayed at the Bierton’s for a month after the operation. He then went to the West Parklands with council approval from an organisation called “Street to Home” to live there. The appellant emphasised in his evidence that he went to the West Parklands and did not return to the Bierton’s.
The appellant gave further evidence that he had asked the Bierton’s to give evidence but they said they did not want to have anything to do with the Court case in case they got themselves into trouble. The appellant denied that he was in the city alone with his dog at any time after midnight or in the early hours of Tuesday 5 January. He was not the robber.
The appellant also gave evidence that he used to sell a magazine called “The Big Issue” at the beginning of 2010. It is a fortnightly magazine. He also said that in January of 2010 his hair was black and did not have any streaks in it. Particularly, it had no grey streaks. He also told the Court that he was not the man shown in the CCTV footage outside the Rosemont Hotel and walking along Morphett Street.
During the defence case a CD containing vision from Rundle Mall on 12 January 2012 between the hours of 5.30 and 6.30pm was played (D5). This indicated a man walking a dog along Rundle Mall. The purpose of the tender was to indicate it was not an uncommon occurrence for men to walk their dogs around the city. In my view the tender of that footage was of little relevance. That was a view also held by the trial Judge.
As the question of the injury to the appellant’s hand had been raised for the first time during the defence case, the trial Judge allowed rebuttal evidence to be called, firstly, by way of expert evidence from a plastic surgeon to speak of the difficulties a person suffering such an injury might have and, secondly, by way of agreed fact of matters that should have been put to Ms Plate and Mr Stanley. I deal with that topic first.
The following facts are agreed between the parties (D7):
1.It is an agreed fact that if asked “Did the robber have a plaster cast on his right arm?” the complainant’s response would have been, “To be honest I don’t recall, but I’m pretty sure that he didn’t have a cast.”
2.It is an agreed fact that if asked, “Did the robber have a plaster cast on his right arm?” the witness Alexander Stanley’s response would have been, “I don’t remember a cast, so either ‘no’ would be my answer, or ‘I can’t remember.’ I think something like that would’ve stuck in my mind, but I don’t recall one.”
Also in rebuttal the prosecution called Dr Kolitha Mahappuge from the Queen Elizabeth Hospital who gave the following evidence:
QWith a fracture of this nature will a patient still have the use of the rest of their hand, for example, their thumb, index finger and middle finger.
AIf thumb and index middle thing (sic) are not involved in the original injury, he will be able to use the hand, that part of the hand at least. That actually is subject to feeling because patients with a single bone injury in the hand although is having very minimal pain threshold will not move the hand at all, but patient with a very high pain threshold will use the hand for even normal work, even with the minimal placed fracture. So it’s really difficult thing to say whether the hand is functional or not. It’s clearly subjective.
QSo as a matter of medical science the hand could be used but depending on the pain tolerance of a particular patient, they may choose not to use the hand at all.
AGenerally when there is an injury in the hand or fracture the patient tends to use the other hand. But if it’s involving the dominant hand or the most-used hand, people still use the injured hand because our hands, they worked together. So I would say they will prefer to use the non-injured hand, but if the injury is involving in this main hand, or the dominant hand, you may still use the hand. That depends on the patient’s requirement as well. If the patient wants to use the hand for something like buttoning a shirt or having a shower, the patient will use the hand.
QThe patient will still, if they so choose, be able to write with the hand, if they had a right fifth metacarpal fracture of this nature.
AThey would be able to write, depending on the degree of pain.
QSo again if they were to rate their pain as a No.10 demonstrating a very low level of pain tolerance, they might choose to do nothing with the hand whatsoever whilst they have got that injury.
AThat is another possibility, yes. All this is really subjective because we are seeing patients with hand injuries. So sometimes we are not able to sign consent form with injured hand. But some patients with the same injury; One patient with the same injury would write with clear letters.
QAre you able to say in your review of the file whether this patient, Mr Harding, signed anything.
AIn fact, I haven’t seen a consent form as such, I am sorry about that.
QWill a patient with an injury of this nature be capable of holding a laptop-style bag using their thumb, index finger and middle finger.
AIt’s really difficult question to give a yes or no answer because it depends on the patient’s tolerance. If the patient is having a very good pain tolerance they might be able to use index, little finger, thumb, avoiding other fingers to carry a little, a certain amount of weight, but a patient with very low pain threshold will not be able to do that.
(194, 195, 196).
…
QThe footage that you’ve just seen of a man from the back, carrying what appears to be a laptop style bag in his right hand and then transferring it to his left hand. Is the manner that that man is seen to be carrying that bag consistent with someone who has an injury of the nature that we have been talking about.
AConsidering the quality of the pictures, I can’t see the fingers in both hands and I can’t say whether there is a splint on or not. If a patient is having good pain threshold he can still carry a lightweight bag like that but with low pain threshold might not be able to use the hand like that.
QAgain it depends on the patient.
ADepend on the patient, yes.
(199).
Based upon all of the evidence, the Judge found it proved beyond reasonable doubt that the person shown in the CCTV footage at Hindley Street was in fact the robber and that person was the appellant. Accordingly, the Judge entered a verdict of guilty as charged.
The Judge’s reasons
There is no dispute that the trial Judge thoroughly and carefully directed himself in proper terms as to the elements of the charge, the onus of proof and the appropriate approach to take when considering matters of circumstantial evidence. When dealing with how he viewed the circumstantial evidence that was led, the Judge said:[1]
As I have indicated, the Prosecution case that the Accused was the robber, is reliant on circumstantial evidence. Accordingly, I direct myself as to the principles which guide proof by means of circumstantial evidence. The exercise is essentially drawing inferences from proven circumstances. I direct myself that speculating or guessing is not drawing inferences. The inference must reasonably arise from proven circumstances (see Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 at 733). In particular, I remind myself that guilt should not only be a rational inference arising from the proven circumstances but should be the only rational inference (see Shephard v R (1990) 170 CLR 573 at 578). Put another way I could not convict the Accused if there is any rational or reasonable hypothesis or possibility consistent with his innocence (see R v Van Beelen (1972) 4 SASR 353 per Bray CJ, Mitchell and Zelling JJ at 374; see also Peacock v R (1911) 13 CLR 619 per Griffith CJ at 634; see also Barca v R (1975) 133 CLR 82 at 104‑5).
[1] R v Harding [2012] SADC 40 at [56].
As part of the circumstantial case involved what could be considered to be an identification by Ms Plate, the trial Judge also gave himself a very careful identification warning. The trial Judge considered that there might be some controversy as to whether this case was a positive identification evidence case which required a warning or, rather, whether that the evidence of Ms Plate was a piece of circumstantial evidence because of the nature of her identification. Nevertheless, he gave a strong and undisputedly correct identification warning to himself, setting out the dangers of photo identification and relating those dangers to the facts of the case.
The appellant does not argue against any of the above approach by the trial Judge.
The trial Judge then dealt with the issue of whether the circumstantial evidence which was led, after applying the appropriate test, inexorably leads to a conviction to the exclusion of all other hypotheses. He first made the factual finding that he rejected the salient evidence of the appellant. In particular the Judge rejected the appellant’s denial that he was the robber. The Judge properly directed himself that that rejection does not relieve the prosecution of the responsibility of proving beyond reasonable doubt that the appellant was the robber. He reminded himself that if the prosecution evidence is lacking in any material aspect that view that he has taken of the appellant’s evidence will not matter and an acquittal should follow.
The Judge then dealt with the circumstantial evidence as to whether the man shown in the Hindley Street CCTV footage on 5 January 2010 (P7 and P8) was the robber. I point out that there was no argument to the contrary either before the trial Judge or in this Court. Nevertheless, his Honour pointed to the following pieces of circumstantial evidence which he found proved and were basically uncontested:[2]
[2] R v Harding [2012] SADC 40 at [76].
1At about 12.30 am on 5 January 2010, a man carrying a dark laptop style bag walks westward on the northern side of Hindley Street heading towards the Rosemont Hotel, and is accompanied by a small brown dog not on a lead (see CCTV films Exhibits P7 and P8).
2The man tethers the dog outside the Rosemont Hotel and enters the Hotel (see CCTV films Exhibits P7 and P8).
3At about 12.40 am Sergeant Christopher Mason enters the Rosemont Hotel, on his rounds of licensed premises, and observes the small brown dog tethered outside on the footpath (57 and also CCTV films Exhibits P7 and P8).
4At about 1.00 am on 5 January 2010 the same man emerges from the Hotel. He collects his dog and heads off across Hindley Street and then across Morphett Street in a south westerly direction. He is carrying the said bag. He is wearing a dark top with horizontal stripes. The brown dog, which is not on a lead, accompanies him (see CCTV films Exhibits P7 and P8).
5At about the same time Ms Plate and Mr Stanley leave the Grace Emily Hotel in Waymouth Street and head south on Gray Street towards the intersection of Gray Street and Grote Street (see Ms Plate 20, Mr Stanley 44).
6As Ms Plate and Mr Stanley cross over Franklin Street, Mr Stanley sees a man and his dog walking west on Franklin Street and at the intersection with Gray Street observes the man turning left into Gray Street coming in behind them (44, 45).
7Just before the intersection of Gray Street and Grote Street Ms Plate and Mr Stanley are overtaken from behind by the same man who then turns, accosts them and robs Ms Plate of $10. The robbery takes place at about 1.15 am. The scene of the robbery is about 11 minutes walk in approximately a south-westerly direction from the Rosemont Hotel (see Ms Plate 20-21; Mr Stanley 45; see walking time estimate Google Map Exhibit P17, CBD map Exhibit 1).
8The man and the dog walking down Hindley Street and heading away in a south westerly direction, fit the key features of the description of the robber and his dog as given by Ms Plate and Mr Stanley. I summarise those key features as:
• He was tall approximately six foot;
• He was slender or skinny;
• He had a gaunt or skinny face;
• He was carrying a dark laptop style bag;
• He was accompanied by a small brown short haired dog which was not on a lead; and
• He was wearing a dark top with a collar with, perhaps, horizontal stripes.
(see Ms Plate 25, 26; see Mr Stanley 48, 49 and 50).
9Sergeant Christopher Mason’s description of the dog, which he saw tethered outside the Rosemont Hotel, accords with both the description of the dog given by both Ms Plate and Mr Stanley (57) and with the appearance of the dog as seen on the said CCTV as it crossed Hindley and Morphett Streets heading in a south westerly direction with the man; …
The combined effect of all those circumstances was that the trial Judge found it proved beyond reasonable doubt that that person shown on the CCTV footage was the robber. As I have already said, there is no dispute about that.
The trial Judge then went to the next question as to whether that person, namely the robber, has been proved to have been the appellant. He set out the following pieces of circumstantial evidence which he found proved and found that the combined effect proved the case:
1.The appellant was in the city at the date and time of the robbery with his dog. He relied upon both the police interview and the appellant’s evidence to establish those facts.
2.There was no objective evidence other than the appellant’s version as to where he was residing on 4 and 5 January.
3.Ms Plate identified from the photo array the appellant’s photo to the extent that she was 80 per cent sure that it was a photo of the robber.
4.Mr Stanley’s description of the robber as being skinny and gaunt with an elongated face accords with the appellant’s facial appearance. That was, according to the Judge, borne out by the films and photographs accepted to be of him in evidence at the trial and particularly in court.
5.Mr Stanley said the robber had a “prominent Adam’s apple”. That was seen from time to time in the arrest video (P12).
6.Ms Plate’s general description of the robber as being tall and skinny accords with that description of the appellant. It is to be noted that the Judge also pointed out the inconsistencies in Ms Plate’s evidence, namely that she had told a police officer that the robber had dark grey hair with grey streaks and also said that he was over 40.
7.The appellant was 22 years of age and Mr Stanley estimated the age of the robber to be in his late 20s to 30s, although Ms Plate said he was 40 or older.
8.The Judge, by his own observations, was of the view that the facial appearance of the appellant as seen in court and in the accepted photographs was similar to the facial appearance of the man shown in the Hindley Street CCTV footage who was the robber.
9.The trial Judge found that the robber’s dog was similar to the appellant’s dog. The robber’s dog is shown in the Hindley Street CCTV footage and the appellant’s dog is shown in the CCTV footage at Hungry Jack’s (P9) and also on the arrest video (P12).
10.On that same topic, Sergeant Mason gave evidence that the appellant’s dog outside Hungry Jack’s was similar to the dog he saw at the Rosemont Hotel.
The Judge added some less important factors of circumstantial evidence, namely there was evidence that the both the appellant and the robber smoked. Also, the appellant admitted selling The Big Issue around the city with his dog accompanying him and he carried The Big Issue in a bag. The man in the Hindley Street CCTV footage and the appellant at Hungry Jack’s both have a bag and a dog not on a lead. Furthermore, both the dog in Hindley Street and the dog admittedly with the appellant are well behaved without the necessity of a lead.
The trial Judge also dealt with matters that were relied upon by the defence. He dealt with the discrepancy between the description of the clothing by Mr Stanley and what was shown on the Hindley Street CCTV footage. Mr Stanley describes khaki or cream coloured pants whereas on the Hindley Street CCTV footage the person is wearing what looked like blue jeans and a laterally striped rugby top. No such description was given by either Mr Stanley or Ms Plate. The Judge indicated that this may have been explained by the artificial street lighting. As there was no dispute that the person shown in the Hindley Street CCTV footage (P9) was in fact the robber, a discrepancy between the description of the robber’s clothing and the clothes seen on the person in P9 could only go to the question of the reliability of the two eye witnesses.
The Judge then dealt with the question of the plaster cast on the appellant’s right arm, the technical description of which is an “ulnar slab”. He dealt with the question of the significance that neither Ms Plate nor Mr Stanley noticed any such device. The trial Judge said he did not accept the appellant’s evidence as to when he removed the slab, except that it was sometime before 6 January 2010. There was no question that the fact that the slab may have been on at the time of the robbery is really dependent upon the credibility of the appellant. The Judge came to the conclusion that Ms Plate and Mr Stanley may not have seen it because it was either scarcely visible under a long sleeved top or it had already been removed.
In conclusion, having applied the facts as he found them to the law, the trial Judge found the following:[3]
I consider that the evidence establishes the following series of events. The Accused was the man shown in the Hindley Street CCTV films. Shortly after 1.00 am on 5 January 2010, after having visited the Rosemont Hotel, he collected his dog Marley and headed off towards the West Parklands. He was carrying the dark laptop style bag seen on the CCTV films. It was probably used by him to carry copies of “The Big Issue”. He carried that bag in his right hand, which I am satisfied, was not as disabled as he pretended. The city in this area was all but deserted. He headed west on Franklin Street and at the intersection of Gray Street, he came upon Ms Plate and Mr Stanley crossing just in front of him and heading south on Gray Street. He turned into Gray Street behind them. At the time he had little or no money on him and no mobile phone. At about this time Ms Plate was using her mobile phone and the Accused probably observed that. He and his dog overtook the couple. He then turned and accosted them. Menacing them he demanded that Ms Plate give him her phone and $20. Ms Plate, gamely, refused to give him her phone but handed over $10. The Accused took it and went on his way westward on Grote Street, threatening them as he did so.
[3] R v Harding [2012] SADC 40 at [84].
Appeal
As I have already indicated, there is no dispute about the trial Judge’s directions of law or his approach to the question of circumstantial evidence. The appellant now argues that the verdict is unreasonable and cannot be supported by the evidence.
The test to be applied in determining this question was stated in the case of M v The Queen[4] where the majority (Mason CJ, Deane, Dawson and Toohey JJ) held:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Footnotes omitted)
Further, their Honours said:[5]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
[4] (1994) 181 CLR 487 at 493.
[5] (1994) 181 CLR 487 at 494.
In the present case, there were no issues of credibility in the presentation of the prosecution case. All of the pieces of circumstantial evidence accepted by the trial Judge were not in dispute. The question was whether their combined effect amounted to proof beyond reasonable doubt. Although the trial Judge had the advantage in assessing the evidence of the appellant, an advantage which this Court does not have, nevertheless he correctly directed himself that that finding cannot reinforce gaps in the prosecution case.
Therefore, applying the principles in M v The Queen and paying full regard to the fact that the trial Judge is the person entrusted with the primary responsibility of determining guilt or innocence and who has had the benefit of seeing the witnesses, I am of the view that a reasonable trier of fact must have had a reasonable doubt about the appellant’s guilt having made an independent assessment of the evidence. The following factors lead me to that conclusion:
1.Having closely scrutinised the Hindley Street CCTV footage (P7 and P8) and the other agreed photos and footage of the appellant (P9) including the appellant’s appearance in this Court, I cannot say one way or the other whether it is the same person. I find it impossible to come to the conclusion that the facial features are similar. In fact, in looking very carefully and contrasting P7 and P8 with P9 and the photographs extracted from those exhibits, in my assessment there is a reasonable possibility that they depict two different people. I am also of the view that the build of the robber shown in P7 and P8 is different than the agreed footage of the appellant.
2.Of itself, the photograph array evidence is unsatisfactory bearing in mind the nature of the danger of photographic identification. There is no suggested unfairness in the procedure because the appellant refused to participate in an identification parade, but nevertheless Mr Stanley made no positive identification and Ms Plate said that she was 80 per cent sure and he looked familiar.
3.The undisputed fact was that the appellant did have a badly broken right hand. Although pain is subjective as described by Dr Mahappuge, nevertheless the behaviour of the agreed robber on the Hindley Street CCTV footage swinging his bag backwards and forwards is hardly behaviour consistent with the fact that the appellant had a fractured right hand which required surgery.
4.There was no evidence led by the prosecution that the appellant had ever owned or worn items of clothing similar to the descriptions given by Mr Stanley or shown by the person on the Hindley Street CCTV footage.
This left the prosecution case really relying upon the fact that the appellant was in the vicinity of the city on the morning in question, he does walk around with his dog not on a leash, and he is of similar appearance to the robber. This leads me to a deep suspicion that he may be guilty of this offence. However, on the objective evidence as presented, a trier of fact must have entertained a reasonable doubt as to the appellant’s guilt.
Conclusion
I would set aside the verdict and enter a verdict of not guilty.
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