R v Harding - [2012] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARDING
Criminal Trial by Judge Alone
[2012] SADC 40
Reasons for the Verdict of His Honour Judge David Smith
5 April 2012
CRIMINAL LAW
Trial by judge without jury - Accused pleaded not guilty to offence of robbery - Prosecution relied on circumstantial evidence to identify accused as the robber - discussion of principles which guide proof by means of circumstantial evidence - consideration of difference between positive identification evidence and circumstantial identification evidence - consideration of s 285BC of the Criminal Law Consolidation Act and whether accused obliged to give Prosecution notice of intention to lead Hospital notes relating to accused's hand injury - consideration of whether Hospital notes included expert evidence such as to enliven the section and require notice - consideration of the application of the rule in Browne v Dunn - Verdict Guilty.
Criminal Law Consolidation Act 1935 s 137(1), s 285BC, referred to.
Browne v Dunn (1894) 6R.67 (HL); Reid v Kerr (1974) 9 SASR 367; R v Bonython (1984) 38 SASR 45; Clark v Ryan (1960) 103 CLR 486; Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722; Shephard v R (1990) 170 CLR 573; R v Van Beelen (1972) 4 SASR 353; Peacock v R (1911) 13 CLR 619; Barca v R (1975) 133 CLR 82; Festa v R (2001) 185 ALR 394; Murphy v R (1994) 62 SASR 121; R v Dodson [1984] 1 WLR 971; R v Smith (1983) 33 SASR 558; R v Winters [2010] SASC 100; Domican v R (1992) 173 CLR 555; R v Dodd (2002) 135 A Crim R 32; R v Bunting & Wagner No 7 [2003] SASC 555; R v Heuston (1995) 81 A Crim R 387; Alexander v The Queen (1981) 145 CLR; R v Clune [1982] VR 1; R v Clarke (1997) 97 A Crim R 414; Pitkin v The Queen (1995) 69 ALJR 612, considered.

R v HARDING
[2012] SADC 40
Introduction

The Accused is charged on Information with:
Statement of Offence
Robbery. (Section 137(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Jason Dwayne Harding on the 5^th 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.
He pleaded not guilty and elected for trial by judge without a jury.
As will be made clear in my findings, there is no doubt that in the early hours of Tuesday morning, 5 January 2010, a young couple, Ruby Plate and Alexander Stanley, were accosted by a man with a dog in Gray Street in the city, where Ruby Plate was robbed of $10.
The Accused denies that he was the robber. The Prosecution relies on circumstantial evidence to identify him as the robber.
Findings - Background Circumstances
The following chronological narrative constitutes my findings. The core issue is the identity of the robber. I will set out the evidence as to that issue within the narrative but reserve the resolution of it for later consideration.
On late Monday night, 4 January 2010, Ruby Plate was at the Grace Emily Hotel in Waymouth Street, drinking with a companion, Alexander Stanley. They left the hotel together shortly after 1.00 am on Tuesday morning, 5 January 2010. They intended to go to Hungry Jack’s restaurant on West Terrace and thereafter to Ms Plate’s residence near Gouger Street.
Whilst walking south on Gray Street, they noticed a man with a dog walking behind them. Mr Stanley saw him initially walking west on Franklin Street and then turn into Gray Street behind them as they crossed Franklin Street (45). The dog was not on a lead. The man and the dog walked past them briskly, and then, when a few metres ahead, turned and confronted them. He demanded that Ms Plate give him her phone and $20. Ms Plate said that the man had raised his fist when making the initial demand. Mr Stanley, on the other hand, said that the man clenched his fists at his sides. Ms Plate said the man spoke quickly and “… slightly aggressive …” (22). Mr Stanley said that “… his voice was – it was a yell a demand and it was certainly a raised voice …” (46). In response, Ms Plate reached into her bag. She said to the man that she would not give him her phone but handed him $10. The robber took the $10 and, according to Mr Stanley “… sprinted off …” (47) in a southerly direction on Gray Street and when near the Grote Street corner he yelled back over his shoulder “follow me and I’ll fucking kill you” (47). The robber and his dog then headed west on Grote Street towards West Terrace. Neither Ms Plate nor Mr Stanley saw him again. They immediately rang the police and waited at the scene.
As to the state of light Ms Plate said, “… It wasn’t particularly dark, but it wasn’t particularly light either. Patchy probably …” (24). Mr Stanley said “…we were perhaps in shadow but certainly on the verge – it wasn’t well lit at all, on the verge you could see a ring of light … We were on the verge of that ring of light … ” (47, 48).
They described the robber and his dog as follows:

Ms Plate (25, 26)

·     6 foot tall or taller

·     neat casually dressed

·     mid length brown hair

·     slender build

·     age 40 plus

·     wearing T-shirt or a shirt, long pants and a jacket

·     carrying a bag like a laptop bag

·     not a particularly deep voice with no accent

·     dog brown medium size not fully grown, short haired, “Staffy” but not completely sure

·     dog placid and not on a lead.

Mr Stanley (48, 49, 50)

·    eyes bulging

·    very tall … perhaps 6 foot

·    prominent Adam’s apple

·    very skinny

·    weighed 75 – 85 kilos

·    hair dark not long, haphazard, messy,

·    face quite skinny … quite gaunt, elongated

·    stubble on his face

·    age late 20’s 30’s

·    wearing khaki cream coloured pants and dark top with collar perhaps horizontal stripes

·    carrying a laptop bag with handle dark in colour

·    voice deep and threatening “as he was raised up …”

·    dog was short haired, brown, short and stocky and not on a lead

·    it was the stocky build of a “Staffy”.

Ms Plate agreed, in cross-examination, that at the scene on the morning of the robbery, she told a police officer that the robber had black hair with grey streaks. At the time of her evidence her memory was not refreshed by that reminder. She said that she could recall only that his hair was dark (31). Further she said in evidence, that “ … she could have …” told the same police officer at the scene that “the dog had a harness …” but in her testimony could not remember whether there was a harness or not (32). No doubt, in view of Ms Plate’s ambivalence about whether or not she did tell the police officer that the dog had a harness, for the purpose of proving the out of court arguably inconsistent statement, it became an agreed fact that she did tell the police that (see Exhibit P18).
So too Mr Stanley agreed that he told a police officer at the scene that “… the dog had a blue harness …” (53). He was not asked if that reminder refreshed his memory though he did accept that he would then have had a better recall of the event.
Ms Plate and Mr Stanley were both credible and reliable. There were some differences in their respective accounts of the robbery. They were inconsequential.
I find it proven beyond reasonable doubt that the man with the dog committed the offence of robbery as alleged. The question which remains is has the Prosecution proved that the Accused was the robber?
One of the police officers who attended the scene was Sergeant Christopher Mason. He was then stationed in Hindley Street. Upon learning that the robber had a small brown dog with him, Sergeant Mason recalled that an hour or so earlier, when on his rounds of licensed premises in Hindley Street, he saw a small brown dog tethered on the footpath outside the Rosemont Hotel. That Hotel is situated on the north eastern corner of the intersection of Hindley and Morphett Streets. Sergeant Mason caused the Closed Circuit Television film taken by three surveillance cameras located in Hindley Street in the vicinity of the hotel, to be downloaded, saved and seized.
I admitted that film in evidence. It depicts, not only a small brown dog outside the entrance of the Rosemont Hotel and Sergeant Mason entering and leaving, but also at an earlier time, shows a man and a small brown dog at various locations in Hindley Street proceeding westward towards the Rosemont Hotel on the northern footpath. The man is seen to be carrying a “laptop” style bag – sometimes in his right hand. Further, it shows the same man and his dog leaving the area, crossing Hindley Street just east of the intersection with Morphett Street, and then crossing Morphett Street in a south-westerly direction heading towards Light Square. The time was then shortly before 1.00 am, which would have been within minutes of Ms Plate and Mr Stanley leaving the Grace Emily Hotel in nearby Waymouth Street and about 10 or 15 minutes before the robbery. The scene of the robbery is about an 11 minute walk from the Rosemont Hotel (see Exhibit P17).
As indicated, the robbery occurred at about 1.15 am on the 5^th January.
About three weeks later, on 29 January 2010 at about 12.30 pm, Sergeant Mason, when on foot patrol in company with another police officer saw a male with a small brown dog outside Hungry Jack’s restaurant on the corner of Pulteney Street and Rundle Street. The dog, according to Sergeant Mason, was “… very similar …” to the one he saw tethered outside the Rosemont Hotel (64). He spoke with the male and, in particular, obtained his personal particulars. The interaction between Sergeant Mason, his partner and the male was captured on film by a nearby surveillance camera. The film was admitted into evidence (see Exhibit P9). It is accepted that the male was the Accused and the small brown dog was Marley, his dog. On that occasion there was no discussion between the Police and the Accused about the robbery.
On Tuesday, 9 February 2010, the Accused was spoken to again by police – this time about the robbery. He declined to participate in a formal identification parade (80), (see also Agreed Facts, Exhibit P18).
On 2 March 2010, Ms Plate was shown an array of photographs and identified a photograph of the Accused. She said that she was “… about 80% …” certain that the person shown in the selected photograph was the robber. (see Exhibits P2, P3 and P4). On 5 March 2010, Alexander Stanley was shown an array of photographs which included one of the Accused. He hesitated to make a selection, saying that he could not be certain. He was then asked to make a selection on the basis of “… any inclination as to the person who may be involved …”. He said he was “inclined” to photograph number 9 and that it was the closest. He signed and dated the back side of that photograph. At the end of the procedure he said “… Ah well it was between number 3 and number 9 and perhaps even number 6 but yeah 3 or 9 mostly …” (see Exhibits P3, P4 and P10). In fact, photograph 3 was of the Accused (see Exhibit P18).
On Thursday, 11 March, the Accused was arrested in the city by Senior Constable Andrew Irvine and another police officer. He was taken to the Adelaide Police Station, charged and interviewed. He volubly denied committing the offence. In the course of his interview, he said that he was in custody at the time of the robbery, having been arrested for Failing to Comply With a Bail Agreement. He then corrected that and said he was at the home of Brett and Helen Bierton at 12 Charlotte Street. He indicated that Charlotte Street was in the south-eastern corner of the city square near Gilles Street (78), (see also Exhibits P12 and P13). When asked about his current situation, he told police officers that he was sleeping in the West Terrace Parklands and that he was unable to stay at places such as “St Vinnies” because they would not accommodate his dog. He had his dog with him at the time of his arrest. The arrest and interview was video recorded (see Exhibits P12 and P13).
Senior Constable Irvine approached the Biertons. They refused to cooperate. Their declarations to that effect were tendered (see Exhibit P14).
I admitted in evidence, from the Prosecution, a Certificate of Record from the Magistrates Court at Port Adelaide (Exhibit P15) and a Police Apprehension Report (Exhibit P16). I find the following from those documents:
·that on 1 January 2010 the Accused was arrested for three counts of Failing to Comply with the Conditions of a Bail Agreement entered into by him in December, 2009 and was held in custody;
·that when spoken to by Police about the Bail offences, he said, inter alia, that notwithstanding the condition of bail forbidding him from attending at his ex-girlfriend’s house at 2 Karoola Court, Taperoo, he had been living there for 4 or 5 days because his options were either to stay there or on the streets because no place would accommodate him because of his dog;
·that as at the time of his arrest his physical description was noted by Police as follows:
SEX:                 MALE            BIRTH YEAR:    1987                 SEXUAL APP:    MASCULINE
WEIGHT:           65 KGS            HEIGHT:       190 CMS            ETHNIC APP:    CAUCASIAN
HAIR LENGTH:    SHORT            HAIR COL:    BLACK              HAIR STYLE:    SPIKED
HAIR TYPE:        STRAIGHT        COMPLEXION: OLIVE              BUILD:           SLIM
EYE COLOUR:      HAZEL            EYE TYPE:     SUNKEN            EYEBROWS:      BUSHY
FOREHEAD:        HIGH             EARS:          LARGE              NOSE:            LONG
CHIN:               SQUARE          NECK:         ADAMS APPLE      MOUTH TYPE:   OPEN
TEETH:             STAINED         MOUSTACHE:   LIGHT               BEARD:          UNSHAVEN
FACIAL SHAPE:    LONG             SHOULDERS:    SQUARE            SKIN TYPE:      POCKMARKED
EYEGLASSES:      NONE             SPEECH:       SLOW               VOICE:           DEEP
HANDS:             ROUGH
TATTOOS, DAGGER ‘KNIFE’, LOWER ARM, RIGHT FRONT
·    that at 11.30 am on Monday, 4 January 2010 the Accused appeared in the Magistrates Court at Port Adelaide from custody, and having pleaded guilty, was convicted of the said three bail offences, and fined a total of $540 with 28 days to pay.
The Accused gave evidence on oath.
He said that his birthday was 19 December 1987 and so as at January 2010 he was 22 years old.
He agreed with or at least did not challenge the evidence arising from the Certificate of Record and the Police Apprehension Report, about which I have made findings. He explained, and I accept it to be so, that he was discovered by police to have breached his bail, because his former partner reported him for punching and breaking a window in the Taperoo house in the throes of a fit of anger. I accept also that in the course of doing that he broke the fifth metacarpal bone in his right hand. When in custody he complained to his gaolers about his hand. In response, on 3 January, the police took him to the Queen Elizabeth Hospital. There the fracture was discovered. Pending surgical repair, which was scheduled for 7 January, the Accused’s right forearm and portion of his right hand was immobilised in an ulna gutter splint (see Exhibit P19).
The Accused claimed that the hand injury considerably disabled his right hand. In particular he said that his hand was swollen and “… I had trouble picking up cups and I couldn’t move my hand …” (133, 135, see also 115).
The Accused agreed that on Monday 4 January he appeared from custody in the Magistrates Court in Port Adelaide, pleaded guilty was convicted and fined and released.
Much of the balance of the Accused’s evidence, the purpose of which was to establish that he was not the robber, was challenged as untruthful. Pending findings as to that issue, I will summarise his evidence in the third person.
The Accused said that on the afternoon of 4 January 2010, after having collected his belongings and his dog Marley, from his ex-partner, he journeyed into Adelaide by taxi. He said he had nowhere to stay and he may have had $10 on his person. He said that he prevailed on Brett and Helen Bierton to accommodate him and the dog Marley. He said that he ended up staying at the Biertons’ home at 12 Charlotte Street for about a month after which he camped in the West Terrace Parklands.
He said that at the time of the robbery, that is the early hours of the morning of 5 January 2010, he was at the Biertons’ house. In particular he said that he was not in the city alone with his dog at about that time. He denied also that he was the man depicted on the CCTV film taken in Hindley Street on 5 January and that the dog shown accompanying the man was Marley.
In particular the Accused said the dog shown on the Hindley Street CCTV film on 5 January 2010, was not Marley because Marley was light brown in colour, had floppy ears, a bushy tail and long fur (117, 127, 131, 157–160, 169 and 170). In order to demonstrate these differences he referred to Marley’s appearance in, the Hungry Jack’s CCTV film of 29 January 2010, the photographs, (Exhibits D1, D2A, D2B) and the four still pictures (Exhibit D4), taken from the arrest video (Exhibit P12). I note in this respect however, that, in the course of cross-examination the Accused seemed to abandon the colour as a point of difference (160 lines 13–15). Further I take the Accused’s reference to long fur, as being confined to Marley’s tail, because it is clear from the photographs that Marley was a short haired dog.
The Accused said that at the time of the robbery his hair colour was black and he did not have streaks in it (129).
He said that, on the morning of 6^th January 2010, before his attendance that day at the Queen Elizabeth Hospital for surgery, with the help of Helen Bierton, he removed the plaster from his right arm. He explained that the splint had become wet and uncomfortable as a result of him allowing his right arm to be accidently immersed when he was swimming in the Biertons’ swimming pool. Accordingly on his evidence as at the 4^th and 5^th January he had an ulnar splint on his right forearm and hand.
The Accused said that on the afternoon of 6^th January he underwent surgery at the Queen Elizabeth Hospital in which the fractured metacarpal bone was repaired by means of a plate and screws. The Hospital Notes which were eventually tendered indicate that the surgery was on the 7^th.
There was no other oral evidence adduced by the Defence.
The Biertons also refused the Accused’s request to give evidence. He explained that they refused to come to court to support his alibi because they did not want anything to do with the court case “… in case they got themselves into trouble …” (125).
As indicated the Defence tendered the Hospital Notes from the Queen Elizabeth Hospital relating to the Accused’s admissions and treatment for the hand injury (Exhibit D3). The Notes established, inter alia, that on 3 January X rays disclosed a fracture of the fifth metacarpal bone of the right hand, which, on 7 January, was surgically repaired by means of a plate and screws. Also an outpatient record for 6 January, noted that the plaster put on previously had been removed because it had “got wet”. I think it probable that the Accused attended an Outpatients clinic on the 6^th as a prelude to the surgery on the 7^th. He was not admitted on the 6^th. The Notes did not express an opinion about the extent of disability which would attend such an injury.
Counsel for the Accused Mr Kelly, submitted that I should infer from the Hospital Notes that the Accused could not have carried a bag in his right hand, as indeed he asserted in his evidence, and therefore could not have been the man depicted in the Hindley Street CCTV film. I would not and could not draw such an inference from the Hospital Notes alone. I indicated as such.

The Accused’s evidence, that he was injured, that he was wearing a splint on his right hand at the time of the robbery and the Hospital Notes only emerged in the Defence case. Those items of evidence were a surprise to the Prosecution.
I permitted the Prosecution to lead evidence rebutting the Accused’s claims of disability and the claimed effect of the medical records. I encouraged the recalling of Ms Plate and Mr Stanley, to address the failure by Defence to comply with the rule in Browne v Dunn (1894) 6R.67 (H.L.), by omitting to put to Ms Plate and Mr Stanley directly or indirectly that the robber was not wearing a splint. The rule requires that where the cross examining party intends to later contradict a witness by calling further evidence or by suggesting that the witness’s testimony can be otherwise explained, the witness should be given the opportunity in cross examination to comment on the contradictory version (see Reid v Kerr (1974) 9 SASR 367, 373–4: Ligertwood A, Australian Evidence, 3^rd ed 1989 at [7.91]).
In the result after an adjournment the Prosecution called Dr Kolitha Mahappuge from the Queen Elizabeth Hospital.
The following exchanges constituted the thrust of his 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).
Dr Mahappuge was shown the Hindley Street CCTV film and the following exchange occurred:
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).
In summary, Dr Mahappuge’s evidence, which I accept, was that the injury sustained by the Accused may or may not have precluded him from using his hand, for instance to write or to carry a laptop style bag, and that the extent to which the Accused was prevented from using his right hand depended upon him and his pain threshold. Accordingly I could not infer from the injury itself, that the Accused was as disabled as he claimed.
Before leaving the topic of the surprise medical evidence, I indicate that I consider that the Accused was in breach of s 285BC of the Criminal Law Consolidation Act, 1935, by not giving notice to the Director of Public Prosecutions of his intention to introduce the Hospital Notes in evidence. Section 285BC requires that a person, to be tried for an indictable offence, give written notice to the Director of any intention to introduce expert evidence. One of the sanctions for non compliance can be a refusal to admit the evidence. No such notice was given in this case.
Expert evidence is not defined in the said Act. Ordinarily understood expert evidence is evidence on a subject, which is part of an organised body of knowledge or experience, about which persons without instruction or experience are unlikely to prove capable of forming a correct judgment, without the assistance of persons possessing special knowledge or experience in that area (see R v Bonython (1984) 38 SASR 45 per King CJ at 46 and 47: Clark v Ryan (1960) 103 CLR 486 at 491 per Dixon CJ).
There is within the Notes a mixture of factual evidence and expert evidence. The following are some of the instances of expert evidence. (Nb “ORIF,” which is mentioned more than once in the extracts set out below, is an acronym for Open Reduction Internal Fixation – in this case a plate and screws).

Document

Expert Evidence

Outpatient Department Letter
3^rd January 2010
Diagnosis of R 5^th metacarpal #

Letter from Emergency Department to Plastic Surgeon
3^rd January 2010

Diagnosis of ‘Right fifth metacarpal shaft fracture with dorsal angulations about 15 degrees. Noted flexion deformity on right ring and little fingers, cap refills <2s but decreased sensation’

Clinical Record/Patient Notes
6th January 2010 onward Mostly simple observations – however note:
‘X-Ray – Good Position’
And several references to the wound being healthy, movement good and so on.

Radiology Report
3^rd and 4^th January 2010

Report of ‘fracture involving the mid shaft of the 5^th metacarpal causing moderate degree of plantar angulation of the distal fragment 45 degrees’.

Radiology Report
7^th and 8^th January 2010

Notes an ‘ORIF for 5^th metacarpal fracture… Fixing plate and screws transfixing the fracture involving the 5^th metacarpal shaft’.

Radiology Report
21^st January 2010

Notes a comparison was done with earlier X-rays and that there is no change in position or complications.

Separation Summary
8^th January 2010

This document states the principal diagnosis, procedures performed, clinical synopsis and management plan.

Patient Care Plan
7^th January 2010

Outlines the procedure performed including the findings of the injuries, the precise plates and screws and the plastic surgery undertaken on the nerves and tendons.

Operation Details
7^th January 2010

Much the same information as included in the Care Plan. Dot point as to the procedure undertaken and the nature of the fracture.

At the time of the proffering of the Hospital Notes neither I nor, I assume Counsel, was alert to the application of the said s 285BC. I admitted the Hospital Notes into evidence and granted the inevitable Prosecution request for an adjournment. I note that, notwithstanding the breach of the section, the court, by sub-ss 5, 6 and 7 of s 285BC, has a discretion to admit the subject evidence and grant the Prosecution an adjournment to procure its own expert evidence. Had I been alert to the application of the section I would have made the same decisions.
Defence and Prosecution addressed the Browne v Dunn problem with further agreed evidence from both Ms Plate and Mr Stanley (see Exhibit D7). The two agreed facts are:
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.”
Finally the Defence introduced into evidence a CCTV film, taken in Rundle Mall between 1730 and 1830 hours on 12 January 2012, showing a man walking away from the camera, east on Rundle Mall, accompanied by a small brown dog. The Accused denied it was him and that the dog was Marley. The Prosecution objected to the relevance of the film. I admitted it on the basis that Defence Counsel would establish its relevance in his final address. He purported to do that (see 238, 239). I gather that the purpose of this evidence was to demonstrate that at the time of the subject offending it was not beyond the realm of possibilities that there was another man in the city who was tall, thin, carrying a bag and accompanied by a short haired brown dog. I consider this “cautionary piece of evidence” as Mr Kelly described it, to have negligible probative value.
Some Applicable Principles of Law
Before I turn to the resolution of the core issue, namely identity of the robber, I mention some applicable legal principles.
General Matters
I direct myself as to the elements of the offence and as to the onus of burden of proof.
I advert to the fact that the Accused has given evidence on oath when he was not obliged to do so.
I draw no inference adverse to the Accused by reason of the fact that the Biertons refused to give evidence in support of his alibi. He has no obligation to call such evidence.
Apart from using it for the purpose of fixing the Accused’s whereabouts at about the time of the robbery, I take no notice whatsoever of the evidence that he was in custody for bail offences, shortly before the robbery, and that in relation to those offences he told police that his residential address was a “detox” centre in Hindmarsh. In particular I take no notice of the fact that the Accused may have some criminal history in order to be on bail.
Circumstantial Evidence
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).
Identification Evidence
The Prosecution case is that the circumstantial evidence includes not only the description evidence of Ms Plate and Mr Stanley but also their photo array evidence. This is part of what is sometimes described as “circumstantial identification evidence” (see Festa v R (2001) 185 ALR 394 per McHugh J at [56–59]). Drawing a distinction between circumstantial identification evidence and direct or positive identification evidence can be decisive of whether an identification evidence warning is required. If there is positive identification evidence, (eg “that is a photograph of the robber”) a warning is necessary. If, however, the identification evidence is part of the circumstantial evidence implicating an accused in the offending (eg “the person shown in that photograph is similar to the robber”) then a warning may not be necessary (see Festa (supra) per McHugh J at [57]).
I consider that Ms Plate’s identification of the Accused in the photo array was a direct and positive identification. The fact that she said that she was “80% sure” should not change that. In this respect the New South Wales Court of Criminal Appeal case of R v Dodd (2002) 135 A Crim R 32 is instructive. In the trial a witness picked out an accused from a photo array and then said that he was 80% sure that the selected photograph was of the accused. Sully J with whom Meagher JA and Sperling J agreed, regarded the witness’s selection as “… a direct positive identification evidence …” [17]. However, I understand Prosecuting Counsel Mr Williams’ submission to be that Ms Plate’s photo array identification together with her estimate of certainty should be regarded as evidence that the photograph she selected was of a man similar in appearance to the robber – hence part of the circumstantial identification evidence (see Murphy v R 62 SASR 121 per King CJ at 123 and 124: Festa (supra) per McHugh J at [56]: and R v Bunting & Wagner No 7 [2003] SASC 555).
Notwithstanding my view, I am content to regard that aspect of her evidence as part of the circumstantial evidence implicating the Accused as the robber because, in any event, I intend to give myself an identification evidence warning. I will return to the topic of the warning in a moment.
There is one other aspect of, what I will loosely call, the identification evidence in this trial, which requires special mention. Prominent in the Prosecution case is the CCTV film of the man and his dog walking in Hindley Street in the early hours of 5 January 2010. The Prosecution contend that the man shown in the film is the robber. Accordingly, this film is part of the Prosecution’s circumstantial case. If I am satisfied that the man in this film is the robber, I am able to decide whether or not the Accused is him. I can do that by comparing the appearance of the man shown in the said CCTV film in Hindley Street with, other film and photographs in evidence, which are accepted to be of the Accused, and also with the Accused’s appearance in the dock. This process is no different to a jury viewing a film of the commission of an offence and deciding whether the filmed offender is the Accused in the dock (see R v Dodson [1984] 1 WLR 971: R v Smith (1983) 33 SASR 558: Festa (supra): R v Winters [2010] SASC 100). If I am not satisfied beyond reasonable doubt that the man shown in the Hindley Street CCTV film is proven to be the robber, then the Prosecution case rests upon the remaining circumstantial evidence emerging from the evidence of Ms Plate and Mr Stanley.
At the risk of being obvious, these above aspects of the evidence relating to identification are to be considered together with all of the circumstantial evidence in the case, in accordance with the principles I have set out, and having regard to the identification evidence warning.
I now return to the topic of the warning.
Counsel Mr Williams submitted that a warning as to the dangers of identification evidence was not called for because neither Ms Plate nor Mr Stanley were categorical about the Accused being the offender. He submitted that they were “transparent about their uncertainty …” (232) and so their evidence should be regarded as similarity evidence and part of the circumstantial identification evidence.
In Festa (supra) at [57] McHugh J said:
When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence.
(citations omitted)
In this case because the “circumstantial identification evidence,” is “… a significant part …” of the Prosecution case, I warn myself as, I would myself or a jury, in a case involving positive identification evidence (see Domican v R (1992) 173 CLR 555 at 561). There are two parts to this warning. First I need to warn myself that identification evidence, in general, for well known reasons, requires special need for caution (see R v Clarke (1997) 97 A Crim R 414 at 428). Secondly, I need to alert myself to, and give careful consideration to, those parts of the identification evidence in this case which are capable of causing the identification of the Accused to be unreliable (see Domican (supra) at 562).
Accordingly as to the first matter, I give myself that general warning about the need for caution. In respect of the second matter, I instruct myself that before I act upon the circumstantial identification evidence I need to have regard to “… any matter of significance [in the context of the case] which may reasonably be regarded as undermining the reliability of the identification evidence…” (see Domican (supra) at 562: R v Heuston (1995) 81 A Crim R 387 at 395-396. That does not mean I must alert myself to every discrepancy or weakness however slight – such unreality is not required (see R v Heuston (supra) per Hunt CJ at CL at 395).
Such matters in this case will include:
·the less than ideal lighting conditions which prevailed at the scene of the robbery;
·inconsistencies in the elements of the description of the robber and his dog as between Ms Plate and Mr Stanley;
·inconsistencies between the testimony of Ms Plate and Mr Stanley as to the description of the robber and his dog and their out of court statements;
·the fact that the photo array identification procedure was undertaken two months after the time of the offence;
·the fact that Ms Plate was less than 100% certain that the photo of the Accused she selected was of the robber; and
·the fact that Mr Stanley was unable to identify the robber from the photo array but “indicated an inclination” to a photograph which was not of the Accused.
Further, to the extent that I will myself be comparing the appearance of the man and his dog on the Hindley Street CCTV film with the appearance of the Accused and his dog, I must not only exercise caution but in particular acknowledge the dangers of being influenced by such matters as suggestibility, the ‘rogues’ gallery effect’ and also the effect of displacement.

I direct myself also that the photo array method of identification is inferior to that of a line up or identification parade for the reasons spelled out in the authorities and in particular in Alexander v The Queen (1981) 145 CLR 395 per Stephen J at 409 and Pitkin v The Queen (1995) 69 ALJR 612. I agree however with Counsel Mr Williams, that in relation to the evidence of Ms Plate and Mr Stanley, there could be no suggestion of there being the displacement effect spoken of by Stephen J in Alexander (supra) at 409, because neither of them, at any time before giving evidence, had seen any film or photographs of the Accused apart from the photo arrays.
Finally, I warn myself that nothing adverse to the Accused is to be drawn from his refusal to participate in an identification parade (see R v Clune [1982] VR 1).
Reasons for Verdict
I have considered both the oral and written submissions of Counsel. I have reviewed the evidence and in particular viewed again the CCTV films and photographs. I have done that with the identification evidence warning in mind.
I have dealt with the credibility and reliability of the evidence of both Ms Plate and Mr Stanley [12]. There was no serious challenge to the credibility and reliability of the other three Prosecution witnesses, save that the Defence contend that Sergeant Mason was not reliable when he offered the view that the Accused’s dog, seen by him outside Hungry Jack’s on 29 January 2010, was similar to the dog seen by him tethered outside the Rosemont Hotel at about 12.45 am on 5 January 2010. Of course I am in a position to make such a comparison by reference to the Hindley Street CCTV film on the one hand and the other film and pictures accepted to be of the dog Marley. I regard the evidence of Sergeant Christopher Mason and Senior Constable Andrew Irvine as both credible and reliable. The evidence of Roger Duncan from the Police Security Services Branch was uncontroversial and for good reason drew no cross examination.
I reject the Accused’s evidence except where it fits in with other acceptable evidence. In particular I reject his denial that he was the robber. I am of the view that he is not to be believed in the crucial areas concerning the robbery and his involvement in it.
Notwithstanding my rejection of the evidence of the Accused it remains for the Prosecution to prove beyond reasonable doubt that the Accused was the robber. If the Prosecution evidence is lacking in any material respect, my view about the lack of truthfulness of the Accused will not matter and acquittal should follow.
Upon a consideration of all the evidence I conclude beyond reasonable doubt first that the man shown on the Hindley Street CCTV films is the robber. Secondly I conclude beyond reasonable doubt that the Accused is the robber.
Man shown on Hindley Street CCTV film is the robber
I set out the points of circumstantial evidence which I accept and which make, the inference that the robber is the man on the CCTV, irresistible.
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; and
10The facial appearance of the man shown in the Hindley Street CCTV films is similar to that of the Accused, (Cf Hindley Street CCTV films Exhibits P7 and P8: Hungry Jack’s CCTV film Exhibit P9: still photographs of both Exhibit P6: photograph D2A: arrest and interview video Exhibit P12: Accused’s appearance in court), and Ms Plate selected a photograph of the Accused as being that of the robber and, of the two photographs Mr Stanley was inclined to select, one was of the Accused.
Accordingly, as indicated, the irresistible inference is that the man shown on the Hindley Street CCTV film is the robber. There is in my view no other inference reasonably open on the evidence.
I turn to the second conclusion.
Accused is the robber
I set out the points of circumstantial evidence which I accept and which make the inference, that the Accused is the robber, irresistible.
Opportunity and Motive
11The Accused was in the City of Adelaide at the date and time of the robbery. He arrived with his dog Marley on 4 January 2010, homeless, with little money and no mobile phone (see Police interview Exhibits P12 and P13: Accused’s evidence 140, 152, 154).
12There was no categorical and acceptable evidence of where the Accused was residing on the 4^th and 5^th of January. As I indicated I do not accept his evidence that he was staying with the Biertons at the time of the robbery. I consider it possible that he was camping in the West Parklands. He agreed in evidence that after leaving the Biertons, a month or so after the robbery, he “… returned to camping in the West Terrace Parklands …” (124). He explained that camping there was permissible with Council approval (124). He told Senior Constable Irvine, when interviewed on 11 March 2010, that he and his dog were sleeping in the West Terrace Parklands because such places as “St Vinnies” would not accommodate his dog (see Exhibit P13 at 9). It is notable that the robber was headed west towards the West Parklands upon leaving the Rosemont Hotel.
Robber similar to Accused
13Ms Plate picked out the photograph of the Accused from the photo array and said she was about 80% certain and she explained that he had “… the same facial structures as the offender …” (see Exhibit P4 Answer 14).
14Mr Stanley, in the course of contemplating the photo array said that the offender “… was between number 3 [the Accused] and number 9 and perhaps even number 6, but yeah 3 or 9 mostly …” (see Exhibit P11 Answer 21).
15Mr Stanley said also in the course of the photo array procedure “… all I can remember is the vivid eyes … were almost popping out of his head … but you know I don’t think he’s in that pose obviously …” (see Exhibit P11 Answer 20 and see 48). The arrest video from time to time shows the Accused to have confronting dark eyes (see Exhibit P12).
16Mr Stanley described the robber’s face as being “… quite skinny so quite gaunt an elongated face …”(48). That description accords with the Accused’s facial appearance:
·in the films and photographs accepted to be of him in evidence, (see Exhibits P9, P12, D2A);
·in the unchallenged description of the Accused particularised at page 5 of the Police Apprehension Report (Exhibit P16); and
·in Court.
17Mr Stanley said the robber had a “… prominent Adam’s apple …” (48). That characteristic is seen from time to time in the arrest video (Exhibit P12) and is also included in the description at page 5 of the Police Apprehension Report (Exhibit P16).
18Ms Plate described the robber as “… 6 foot tall or taller …” and of “slender” build (25) and Mr Stanley said he was “… very tall … perhaps 6 foot very skinny …” and weighed “75-85 kilos”. (48). Those features of height, build and weight approximately accord with the Accused’s bodily appearance:
·in the films and photographs accepted to be of him in evidence, (see Exhibits P9, P12, D2A);
·in the unchallenged description of the Accused particularised at page 5 of the Police Apprehension Report (Exhibit P16); and
·in Court.
19Ms Plate agreed that she told a policeman at the scene of the robbery that the robber had dark hair with grey streaks (31). There is no suggestion elsewhere in the evidence that the robber or the Accused had grey streaked hair. Having said that, Ms Plate selected the Accused in the photo array and justified her selection in the following words “… same facial structures, relatively the same age and the hair, is just a bit familiar …” (Question and Answer 14 of Exhibit P4). The photograph of the Accused [No 9] did not show any grey streaks (see Exhibit P2). She did not say the robber’s hair was streaked in her testimony but agreed that she said that in the out of court statement to a police officer. I do not regard this particular inconsistency as undermining the credibility of her identification evidence generally. As particularised above, she has testified to a number of distinctive characteristics of the robber and his dog which fit those of the Accused and his dog and which in turn fit those of the man and his dog shown on the Hindley Street CCTV film. Her out of court statement about the robber having grey streaks may be explicable by reference to the “patchy lighting from the streetlights” spoken of by Mr Stanley (47). The balance of the evidence from both Ms Plate and Mr Stanley as to hair colour, hair length and facial hair was unremarkable and while there were variances they did not impair or undermine their description evidence as a whole.
20The Accused was 22 years old in January 2010 (129, see also P16). Mr Stanley estimated the age of the robber to be “… late 20s, 30s …” (48), but Ms Plate said he was “… 40 plus …” (25). However, as indicated she correctly selected the photograph of the Accused on the basis that it depicted a person who was “… relatively the same age …” as the robber (25). So in my view that evidence merely indicates that Ms Plate suffers from, the not uncommon difficulty, of having trouble assessing the age of someone.
21In respect of dress or clothing there are again some differences. For instance, Mr Stanley said “… as I recall, khaki or cream coloured pants” (48) whereas the robber, as I have found by reference to the CCTV films, was wearing what looks like blue jeans (see Exhibit P6 still number 21 taken from Exhibits P7 and P8). Again in the context of all the description evidence coupled with the films that is not undermining and may be explained again by the artificial street lighting.
22I turn now to the issue of the ulnar slab (see Exhibit P19) and the significance of neither Ms Plate nor Mr Stanley noticing whether or not the robber was wearing such a device (see agreed facts Exhibit D7). The Accused in his evidence said, that he took the slab off on the morning of the admission to hospital namely the 6^th January (121, 122). The Hospital Notes record the absence of the slab on the 6^th January which appears to be an outpatient note. It seems to me that he was seen on the 6^th and admitted for surgery on the 7^th (see Exhibit D3). I do not accept the Accused’s evidence as to when he removed the slab. I accept only, that sometime before the 6^th January he removed the slab. That it was not seen by Ms Plate and Mr Stanley might be because either it was scarcely visible under the long sleeved top or that it had already been removed.
23Finally, as indicated previously in these reasons, I am of the view that the facial appearance of the Accused is similar to the facial appearance of the man shown in the Hindley Street CCTV who was plainly the robber. (Cf  Exhibit P7 and P8 stills 3-6 of Exhibit P6 with stills 24-28 of Exhibit P6).
The Robber’s dog is similar to the Accused’s dog
24The robber’s dog was:
·brown (Ms Plate 26, Mr Stanley 50);
·small, short, stocky or medium sized (Ms Plate 26, Mr Stanley 50);
·short haired, (Ms Plate 26, Mr Stanley 50); and
·a “staffy” breed of dog (Ms Plate 26, Mr Stanley 50, Sergeant Mason 65)
and such a dog is seen, not only on the Hindley Street CCTV film, but also in the company of the Accused. (Cf  Hindley Street CCTV Exhibits P7 and P8 with Hungry Jack’s CCTV Exhibit P9, arrest video Exhibit P12, and photographs Exhibit D1, D2A, D2B, and D4).
25Sergeant Mason said that the dog he saw with the Accused outside Hungry Jack’s on 29 January 2010 was “… very similar …” (64), to the dog seen by him outside the Rosemont Hotel on 5 January 2010.
26By reference to the films and photographs, my view is that the dog shown with the robber is similar to the Accused’s dog Marley. The Accused’s claimed dissimilarities (117, 127, 131, 157-160, 169 and 170) were unconvincing and not borne out by the photographic evidence.
27Both Ms Plate and Mr Stanley told police at the scene that the robber’s dog had a harness. Mr Stanley said it was blue (Ms Plate 32, Mr Stanley 53 and see also Exhibit P18). Neither could recall that in their testimony. Defence Counsel relied on those out of court statements as being inconsistent with the testimony of both Ms Plate and Mr Stanley and therefore rebounding their credibility. I do not agree. It is not possible to determine whether the dog was wearing a harness or not. Because none was visible on the sometimes indistinct Hindley Street CCTV films, it does not follow that there was none. The robber did tether his dog outside the Rosemont Hotel after all. In any event it is a small matter.
Behavioural similarities as between the robber and his dog
and the Accused and his dog
28Counsel for the Prosecution Mr Williams, submitted that the circumstantial evidence included a number of items of evidence which demonstrated similarities in behaviour as between, first the Accused and his dog Marley, secondly the man and dog shown on the Hindley Street CCTV films and, thirdly the robber and his dog. By themselves, as Defence Counsel Mr Kelly submitted, these points would not support an inference of guilt but they are properly part of the body of circumstantial evidence. I set out what I regard as the more cogent of these points:
·the Accused and the robber smoked (see Exhibit P13 Question 209, see Exhibits P7 and P8 Hindley Street CCTV);
·as at January 2010 the Accused derived income by selling “The Big Issue” around the city and his dog Marley accompanied him (often not on a lead). He carried “The Big Issue” in a bag. The man on the Hindley Street CCTV, the robber and the Accused are seen in the city with a bag and with a dog not on a lead (evidence of Ms Plate and Mr Stanley, Hindley Street CCTV Exhibits P7 and P8, Hungry Jack’s CCTV Exhibit P9, evidence of Sergeant Mason, arrest video and transcript Exhibits P12 and P13); and
·the robber’s dog and the dog on the Hindley Street CCTV and the Accused’s dog apart from looking the same, were quiet, well-behaved and accompanied their owner without the necessity of a lead.
Such are the points of circumstantial evidence on which I have relied.
It can be seen in [12, 19, 20, 21, 22 and 27] that I have canvassed some arguments mounted by the Defence. I have deliberately left those topics in the narrative stream of points of circumstantial evidence to indicate that the arguments as to them do not fracture the united force of the evidence. I emphasize that I have carefully considered all the arguments – oral and written of the Accused’s counsel.
A painstaking analysis of the Prosecution evidence will unearth differences in, for example, the description evidence of the two eyewitnesses, Ms Plate and Mr Stanley and some inconsistencies between their testimony and things said by them out of court. I have canvassed those matters. Discrepancies are to be expected. These are, in my view, of small moment. In this case they are overwhelmed by the cogency of the evidence of a number of highly distinctive characteristics common to both the robber, the man shown on the Hindley Street CCTV films and the Accused.
In all I accept that the, above numbered, circumstances are established by the evidence. Some of the items by themselves are not compelling. However, the inference which reasonably arises from their united force is that the Accused was the robber. It is, not only a rational inference, but is the only inference reasonably arising.
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.
I conclude from all the evidence that the Prosecution have proven the elements of the offence of Robbery beyond reasonable doubt and that the Accused was the robber. Therefore the Accused is guilty as charged. His denial was a transparent falsehood.
My verdict is therefore that the Accused is guilty as charged.

Document	Expert Evidence
Outpatient Department Letter 3^rd January 2010	Diagnosis of R 5^th metacarpal #
Letter from Emergency Department to Plastic Surgeon 3^rd January 2010	Diagnosis of ‘Right fifth metacarpal shaft fracture with dorsal angulations about 15 degrees. Noted flexion deformity on right ring and little fingers, cap refills <2s but decreased sensation’
Clinical Record/Patient Notes 6th January 2010 onward	Mostly simple observations – however note: ‘X-Ray – Good Position’ And several references to the wound being healthy, movement good and so on.
Radiology Report 3^rd and 4^th January 2010	Report of ‘fracture involving the mid shaft of the 5^th metacarpal causing moderate degree of plantar angulation of the distal fragment 45 degrees’.
Radiology Report 7^th and 8^th January 2010	Notes an ‘ORIF for 5^th metacarpal fracture… Fixing plate and screws transfixing the fracture involving the 5^th metacarpal shaft’.
Radiology Report 21^st January 2010	Notes a comparison was done with earlier X-rays and that there is no change in position or complications.
Separation Summary 8^th January 2010	This document states the principal diagnosis, procedures performed, clinical synopsis and management plan.
Patient Care Plan 7^th January 2010	Outlines the procedure performed including the findings of the injuries, the precise plates and screws and the plastic surgery undertaken on the nerves and tendons.
Operation Details 7^th January 2010	Much the same information as included in the Care Plan. Dot point as to the procedure undertaken and the nature of the fracture.