R v Harradine
[2008] SADC 179
•23 December 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal Injuries Compensation Division)
R v HARRADINE
Criminal Trial by Judge Alone
[2008] SADC 179
Reasons for the Verdict of Her Honour Judge McIntyre
23 December 2008
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with four counts of aggravated serious criminal trespass in a non residential building, four counts of damaging property and two counts of theft. - Issue of identity - Comparison of CCTV footage with photographs - expert evidence - anatomical comparison - Trial by Judge Alone - Verdict guilty on all counts.
Murdoch v The Queen (2006) 167 A Crim R 329; R v Tang (2006) 161 A Crim R377, applied.
R v HARRADINE
[2008] SADC 179Preliminary
Kain William Harradine was tried before me sitting as a Judge Alone upon his plea of not guilty to four counts of Aggravated Serious Criminal Trespass in a Non-residential building; four counts of Damaging Property; and two counts of Theft. The alleged offences took place on 2 September 2006 at Modbury and Prospect.
The charges and particulars were as follows:
First Count – Damaging Property
Kain William Harradine on the 2nd day of September 2006 at Modbury, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged double glass doors, the property of the Modbury Triangle Shopping Centre, the said damage amounting to about $2000.
Second Count – Aggravated Serious Criminal Trespass in a Non Residential Building
Kain William Harradine on the 2nd day of September 2006 at Modbury, while in company with other persons, entered or remained in the building of the Modbury Triangle Shopping Centre as a trespasser, with the intention of committing an offence therein, namely theft.
Third Count – Damaging Property
Kain William Harradine on the 2nd day of September 2006 at Modbury, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged a security grill, a cupboard and a glass door the property of the Menzies Jewellers, the said damage amounting to about $5,500
Fourth Count - Aggravated Serious Criminal Trespass in a Non Residential Building
Kain William Harradine on the 2nd day of September 2006 at Modbury, while in company with other persons, entered or remained in the building of the Menzies Jewellers as a trespasser, with the intention of committing an offence therein, namely theft.
Fifth Count – Theft
Kain William Harradine on the 2nd day of September 2006 at Modbury, dishonestly dealt with property, namely six pearl necklaces, a watch band stand, 200 charm bands, a set of Micky Motto pearls, a brief case, a 48 centimetre television and 2 bank books without the consent of Menzies Jewellers, the owner of that property, David Menzies, the owner of that property, intending to permanently deprive Menzies Jewellers of the property or make a serious encroachment on its proprietary rights.
Sixth Count – Damaging Property
Kain William Harradine on the 2nd day of September 2006 at Prospect, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged a glass door, the property of the North Park Shopping Centre, the said damage amounting to about $3000.
Seventh Count – Aggravated Serious Criminal Trespass in a Non Residential Building
Kain William Harradine on the 2nd day of September 2006 at Prospect, while in company with other persons, entered or remained in the building of the North Park Shopping Centre as a trespasser, with the intention of committing an offence therein, namely theft.
Eighth Count – Damaging Property
Kain William Harradine on the 2nd day of September 2006 at Prospect, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged a security grill and 6 display cabinets, the property of the Zamels Jewellers, the said damage amounting to about $5,500.
Ninth Count - – Aggravated Serious Criminal Trespass in a Non Residential Building
Kain William Harradine on the 2nd day of September 2006 at Prospect, while in company with other persons, entered or remained in the building of the Zamels Jewellers as a trespasser, with the intention of committing an offence therein, namely theft.
Tenth Count – Theft
Kain William Harradine on the 2nd day of September 2006 at Prospect, dishonestly dealt with property, namely 4 watches, gem stone rings, gold earrings and gold bangles without the consent of Zamels Jewellers, the owner of that property, intending to permanently deprive Zamels Jewellers of the property or make a serious encroachment on its proprietary rights.
Legal considerations and general directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by Judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial Judge is bound to be aware. I do nevertheless remind myself of the following:
1. An accused person is presumed to be innocent of the charge unless and until guilt has been proven beyond reasonable doubt.
2. The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it.
3. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence, then I must give the accused the benefit of that doubt and find him not guilty.
4. I have reminded myself of the normal directions given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. The accused elected not to give evidence in this court. He was not bound to give evidence. He is entitled to remain silent leaving the prosecution to discharge its burden of proving the case.
5. In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
6. There are ten separate charges. They are tried together as a matter of convenience. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
7. Finally, I remind myself the sole task before me is to determine whether or not the prosecution has proved the elements of the charge beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge, then it necessarily means that the prosecution has failed. In this trial, as a matter of practical reality, I must be satisfied beyond reasonable doubt that the accused was one of five offenders who, on 2 September 2006, entered the North Park Shopping Centre and the Modbury Triangle Shopping Centre and committed a number of offences including serious criminal trespass, property damage and theft.
Background
There is no dispute that, at about 3.14 am on 2 September 2006 five men smashed the front door of the Modbury Triangle Shopping Centre at Modbury using a shopping trolley. All five men entered the shopping mall and ran to the Menzies Jewellery store. They smashed glass doors and a security grill and gained entry to Menzies Jewellery store. Jewellery was stolen. The damage to the Modbury Triangle Shopping Centre amounted to about $2,000. The damage to the front door and security grill of Menzies Jewellers amounts to about $5,500.
The jewellery stolen from the jewellery store was as follows:
·6 pearl necklaces;
·a watch band stand;
·200 charm bands;
·set of Micky Motto (sic) pearls;
·a brief case;
·a 48 cm television; and
·2 bank books.
At about 3.26 am on the same day five men attended at the North Park Shopping Centre at Prospect. The five men smashed the front door of the shopping centre using a shopping trolley. All five entered the shopping centre mall and ran to Zamels Jewellery Store. They broke the front glass door in order to gain entry and took jewellery. The damage to the North Park Shopping Centre door was about $3,000. The damage to Zamels Jewellery store was to a security grill and six display cabinets amounting to about $5,500. The following items were stolen from Zamels:
·four watches;
·gemstone rings;
·gold earrings;
·gold bangles.
The prosecution says that the accused is one of the 5 men. This is the sole issue in dispute.
Proceedings
Ms Griffith who appeared on the instructions of the Director of Public Prosecutions (DPP) tendered by consent the following items:
P1 Statement of agreed facts.
P2 Original CD surveillances.
P3 Evidence bag.
3.1 Bundle of 9 copy colour photographs.
3.2 CD – Harradine photos (no name).
3.3 CD – copy security footage – Menzies Jewellers – 2/6/09.
3.4 CD – copy security footage – Zamels North Park– 2/9/06.
3.5 Working copy of video provided to Professor Henneberg.
3.5 Video provided to Professor Henneberg.
P4. Photo of Mr Harradine taken 24/9/05.
P5. Original hand held video cassette of arrest.
P6. Original recording of Record of Interview 4/4/07.
P7. Video cassette – working copy of P5 & P6.
P8. Bundle of 3 pages of Street Directory marked by Constable Goreing.
P9. Floor plan of North Park Shopping Centre.
P10. Floor plan of Modbury Triangle Shopping Centre.
P11. Bundle of 15 photographs of Modbury Triangle Shopping Centre.
P12. 13 photographs of North Park Shopping Centre and Zamels Jewellery store.
P13 Professor Henneberg’s C.V.
In addition to tendering the above material, Ms Griffith called two witnesses, Constable Ben Goreing and Professor Maciej Henneberg. Both were helpful witnesses who did their best to assist the court. I will comment on their evidence further in these reasons. Also tendered, by the accused during Professor Henneberg’s evidence, were photographic prints taken from the Zamel’s footage[1].
[1] Exhibits D1 & D2
At the conclusion of the prosecution case Mr Gaite, for the accused, submitted that there was no case to answer. I heard argument on this issue and delivered a Ruling that there was a case to answer. The accused elected to call no evidence and accordingly I heard final submissions from counsel.
Elements of the charges
I turn now to the basic elements of each offence charged. The prosecution must prove each element of each offence beyond reasonable doubt. I remind myself of the elements of the offences as follows:
Theft
The elements of theft are:
1. That the accused dealt with the property;
2. That the accused did so dishonestly;
3. That the accused dealt with the property without the owners consent;
4. That at the time the accused dealt with the property he intended either:
a. To deprive the owner permanently of the property;
b. To make a serious encroachment on the owner’s proprietary rights; that is that the accused intended to treat the property as his own to dispose of regardless of the owner’s rights, or to deal with it so as to create a substantial risk that the owner would either not get it back or, if he did, that its value would be substantially impaired.
What is dishonest is a question that should be determined in accordance with the standards of ordinary people. The accused must be shown to have known that his dealing is dishonest in terms of those standards.
Damaging Property
The elements of property damage relevant to this case are:
1. That the relevant items were damaged.
2. That they were damaged intentionally or recklessly by the accused.
3. That the damage was done without any lawful excuse knowing that there was no lawful excuse.
Aggravated Serious Criminal Trespass
The elements of Aggravated Serious Criminal Trespass in a Non-residential building are:
1. That the accused entered or remained on the premises.
2. That it was a non-residential building.
3. The accused was a trespasser.
4. That the accused knew he was a trespasser and intended to enter as a trespasser.
5. He entered with the intention of committing an offence namely theft.
6. That he did so without lawful excuse.
In this matter the Crown also alleges that the concept of joint enterprise has a role to play. The prosecution contends that the accused is guilty of each crime either as a principal or as one of the parties to a joint enterprise. A joint enterprise occurs when two or more persons reach an agreement and join together to carry out a crime.
Mr Gaite conceded that the elements of each of the three offences charged, with the exception of the identity of the accused, were established. The accused says that the prosecution has failed to prove beyond reasonable doubt that he was the person involved in the commission of each offence.
Having considered the statement of agreed facts, the security footage taken at both Modbury Triangle Shopping Centre and North Park Shopping Centre and the submissions of counsel I am satisfied that the elements of the three offences as charged in each of the ten counts on the information, leaving aside the issue of identity, are established beyond reasonable doubt.
Identity
The CCTV footage of both incidents shows five men entering Modbury Triangle Shopping Centre and North Park Shopping Centre and undertaking a number of activities[2] within each of the two shopping centres. The Crown contends that the offenders at the Modbury Triangle Shopping Centre and at the North Park Shopping Centre are the same and that the accused is one of them.
[2] Exhibit 3.3
Crown Evidence
On 28 September 2006 two police officers, one of whom was Constable Goreing, attended Professor Henneberg at the Medical School of the University of Adelaide and provided him with the items that were tendered as exhibit 3 (comprising exhibits P3.1, 3.2, 3.3, 3.4, 3.5(a) and 3.5) as follows:
·Surveillance footage of the Modbury Triangle Shopping Centre from 2 September 2006;[3]
·Footage from the North Park Shopping Centre at Prospect on the same date;[4]
·A compact disc containing photographs of persons of interest together with copies of the photographs on that disc.[5]
·A video of persons not including the accused. This was tendered as exhibit P3.5. It became necessary to receive a further copy of that video as exhibit P3.5(a) as it was not possible, for technical reasons, to view exhibit P3.5.
[3] Exhibit 3.3
[4] Exhibit 3.4
[5] Transcript p9-10
Exhibits P3.3 and 3.4 are copies of the security footage prepared by Constable Goreing using the process that he described in his evidence.[6] I interpolate at this stage that the original CD from the North Park Shopping Centre was, owing to a misunderstanding within SAPOL, destroyed prior to the trial.[7] Constable Goreing made the tendered copy of the footage from North Park Shopping Centre[8] from the original CD. It is not possible to say what, if any, degradation in the quality of the CCTV footage has occurred in that process. What is however plain is that the North Park Shopping Centre footage is superior in quality to that of the Modbury Triangle Shopping Centre. Having viewed both exhibit P3.3 and P2, which is the original Modbury Shopping Centre footage I am unable to discern any diminution in quality between exhibit P2 and the copy made by Constable Goreing. I therefore consider it a reasonable inference that the exhibit P3.4 footage is of similar, or the same, quality as the original. In any event the issue is whether the material before me is of sufficient quality to enable conclusions to be made in accordance with the requisite standard of proof. I will return to this issue shortly.
[6] Transcript p10-11
[7] Transcript p11
[8] Exhibit P3.4
Professor Henneberg holds the Wood Jones Chair of Anthropological and Comparative Anatomy at the Adelaide University. His extensive qualifications are set out in exhibit P13. He has a degree in biology, a doctorate in biological anthropology and a doctor of science also in biological anthropology. He has a further qualification, in the Polish system, of Professor of biological science. He has had a distinguished career as an academic having held a number of positions at a number of universities throughout the world. He has published extensively. There was no challenge to Professor Henneberg’s qualifications or his expertise.
He indicated that the basic hypothesis about human variation that underlies his discipline of biological anthropology is that each human being is unique in his or her biological characteristics to the extent that it is possible to tell apart identical twins by minute biological differences. These differences are manifest in the face and the variability of other body parts and movement.[9]
[9] Transcript p36-37
Professor Henneberg’s experience in the forensic comparison of people in images commenced in 1976 when he used his knowledge of human anatomical variation in paternity cases. This was prior to the time DNA analysis became available. He described using a protocol to observe and compare approximately 200 anatomical details between a mother, child and alleged father to determine whether it was likely that the alleged father was in fact the father of the child.
In more recent times Professor Henneberg has been called upon to give evidence in criminal matters in a number of jurisdictions including South Australia. He described an emerging field of anatomical comparison looking at images and photographs due to the increasing availability of security camera images and security camera systems.
He described his methodology as follows:[10]
AI use a method of anatomical comparison which is based on old experience of comparing individuals for paternity cases. I try to go to the same list of characters but obviously not always possible to see them all, but it’s a method of anatomical comparison meaning that with the hindsight of my experience in describing anatomical features I study CCTV images, paying attention to a person of interest, so the person indicated to me by, usually a police officer who is working on the case, saying ‘Please concentrate on the man wearing, let’s say, the red garment and white baseball cap’ and I observe this person and go in my head – basically, I go through the lists of anatomical characteristics that can be observed and compared and then describe those that I could see, in other words they are not obscured by the furniture, and they are good enough to observe from the video of a particular quality, because not all details can be observed from pixellated video images. Once I have constructed an anatomical description of this particular person from this particular set of images, being limited by its quality and quantity, then – and I will type it on my laptop – then I will study images which are usually supplied to me by the police, but in rare cases I also observed living individuals who are suspects at this stage. So now I observe the suspect, mostly from good quality police images but sometimes in person or from other images, and I only then, on those images or those comparisons, I only look at features which I initially identified from CCTV material because looking for other characteristics is useless. I start from looking for differences, because using a scientific method which is the hypothetical deductive method, if one can falsify one character then one falsifies the whole case and this makes my work much easier. But if I fail to find differences I then describe similarities and eventually I can conclude as to the degree of anatomical similarity between the person of interest and the suspect.
QHow do you express your conclusions?
AI usually express them in categorical terms meaning ‘very similar’, ‘similar’, or ‘likely to be similar’. Sometimes I use rounded percentage values for usual purposes; I don’t say ‘I’m 90% certain that these two individuals are anatomically the same’ but meaning ‘10% uncertain’ but these are not precise calculations on percentage values. Equations is just a figure of speech.
QHow many times, whilst preparing a report, do you inspect the surveillance or CCTV images.
AAt least three times, and sometimes more. What I do is usually the amount of material, not in all cases, but usually the amount of material is fairly large so I have the first run-through inspecting the entire material to identify those images that may be specifically useful and during this run-through I already obviously form the first approximate description of the person of interest or persons – sometimes there are several persons of interest. Once I then type this description on to my laptop I will now return to specific images to check yet again this hypothetical deductive person, I want to falsify my initial observations. I said for example that ‘This individual is very muscular’, now ‘Is he really very muscular? Let’s go back and look. On my first impression he is but let’s go back and I look at specific images’ – well actually, sometimes I say ‘Well he is muscular but there is also a lot of evidence of fatness’ and so on. So then I refine my description, first adding specific images, especially trying to test whether my initial impressions were correct or not. After I have done this I will go now the third time to ensure myself that what I now have written after doing tests of my initial impressions is now truly correct: ‘Can I see something else, have I really seen this?’, and sometimes obviously it requires more than – sometimes after a day or two of a break I say ‘Maybe I should have another look because I think there is something else’. So it’s a back and forth, what I consider scientific method of testing specific observations.
QDo you look at photographs or similar of persons of interest provided by police before you carry out that process of inspection that you have just described or do you do that afterwards.
AI do it afterwards because I need to avoid the phenomenon of displacement. It’s known in psychology that once a person saw detailed image of someone, or saw the actual individual, then he will have a tendency to read from memory features discerned from this good quality photograph into fuzzier, usually, and less detailed image on the screen. This is a very well known phenomenon to all of us when at night we see blurred shapes somewhere we tend to think that this is a ghost or it’s a neighbour or whatever else, we always try to secure – our mind tries to supplement incomplete image from memory and that’s obviously inappropriate in trying to establish anatomical similarity between a person depicted as committing some offence or crime and a suspect because yet again I stress this in science, we use the method of falsification so we try to be critical and eliminate rather than to prove and corroborate.
[10] Transcript p39-49 line 26
Professor Henneberg is able to give evidence of similarity regarding the facial features of the persons shown in the CCTV footage and the photographs. He has the training and expertise to do so. He was also able to give evidence of similarities of body and movement based upon his detailed study of the images[11].
[11] Murdoch v The Queen (2006) 167 A Crim R 329; R v Tang (2006) 161 A Crim R 377
Are the five men at both shopping centres the same?
Constable Goreing gave evidence that he drove between the Modbury Triangle Shopping Centre and the North Park Shopping Centre in November 2008. The route that he took was southwest on North East Road at Modbury to Mullers Road at Greenacres where he turned right. He followed Mullers Road, which turns into Regency Road at Sefton Park and continued over the Main North Road. He turned left from Regency Road into the northern entrance of the North Park Shopping Centre through the car park to the Zamels entry and exit point of the shopping centre. This route is identified in exhibit P8.
Constable Goreing took the journey early afternoon in quite heavy traffic conditions. The route was 10.22 kilometres and the drive took approximately 15 minutes. I take note of the fact that the traffic conditions between 3 and 4 am are likely to have been much lighter than those prevailing at the time of Constable Goreing’s journey.
Agreed fact number 1 is that at approximately 3:14 am five males broke into the Modbury Triangle Shopping Centre at Modbury.
Agreed fact number 6 is that at about 3:16 am police officers Hadley/Pappin attended at Menzies Jewellers. Whilst this has not been agreed, it is plain from my viewing of the CCTV footage of the Modbury Triangle Shopping Centre that the five men had departed prior to the arrival of the police officers and I make that finding.
Agreed fact number 7 is that at 3:26 am a vehicle pulled up to the exterior doors at the North Park Shopping Centre Prospect, five males forced their way into the shopping centre using a shopping trolley to break through a double plate glass door at the southern entrance to the mall.
Accordingly there was approximately 10 minutes between the departure of the five men from the Modbury Triangle Centre and the arrival of five men at the North Park Shopping Centre.
Based on the evidence of Constable Goreing I conclude that it was possible for the same five men to have departed the Modbury Triangle Shopping Centre at approximately 3:16 am and to have arrived at the North Park Shopping Centre at 3:26 am.
Professor Henneberg gave evidence of similarity between the five men in the Modbury Triangle Shopping Centre footage and those in the North Park Shopping Centre footage. He described these men as male 1,2,3,4 and 5.
Having viewed the footage I have reached the same conclusion. The men are of very similar appearance. Specifically on each CCTV CD there are two small men of slight build, two stout men and one tall thin man. They are each wearing similar clothes in each of the two CDs. On each occasion they used the same method of entry to the shopping centres. Specifically they used a shopping trolley in a particular manner to break into the shopping centre doors.
Also of significance is agreed fact number 5 that reads:
A stolen Holden Commodore sedan VKX-248 was abandoned at the Caltex Service Station, Port Wakefield Road Bolivar and located at about 10:03 am Sunday 3rd September 2006. On 18th September 2006 David Menzies the proprietor of Menzies Jewellers identified two Bank SA deposit books shown to him by police, which had been located in the vehicle.
Menzies Jewellers is located in the Modbury Triangle Shopping Centre and bankbooks were stolen from that store.[12] The CCTV footage of the North Park Shopping Centre[13] shows a vehicle arriving at the shopping centre. Its number plate is visible in the footage from the camera close to the entrance. Having carefully considered the CCTV footage I am confident that the number plate is VKX-248. The vehicle located by police is therefore linked with both the Modbury Triangle Shopping Centre and the North Park Shopping Centre.
[12] Agreed fact 3(d)
[13] Exhibit P3.4
Accordingly I find, beyond reasonable doubt, that the five men depicted in the video footage from the Modbury Triangle Shopping Centre were the same men as depicted on the video footage at the North Park Shopping Centre.
Was the accused one of those five men?
Professor Henneberg considers that there are a number of similarities between a photograph of the accused[14] and the person he described as male number 2 in the CCTV footage from both Modbury Triangle Shopping Centre and North Park Shopping Centre. The photograph of the accused is a front on photograph of his face taken on 24 September 2005 some twelve months prior to the events in question.
[14] Exhibit P3.1 and Exhibit P 4
Professor Henneberg described a profile view of individual number 2 showing at 3.27.19 of the CCTV tape as follows:[15]
QWhat observations do you then make given this profile view.
AWhat I could observe on this profile view was the prominent brow ridge. I will try to point to it. A prominent low-placed brow ridge and then the root of the nose is sitting back and below, darkish skin colour, a fairly prominent nose and very unremarkable hairstyle. So, it is not anything of great importance. If we had for comparison – which we did not in this case – the good profile view of the suspect, we could also compare the position of the ear, the location of the external ear in relation to the rest of the face, but this is an observation that can only became of any value if we could observe the profile of a particular person. There was another profile view of the same person, but with no additional detail described. Here we have another good view of his face in which he started turning a little bit and, yet again, the same characteristics; the low-placed prominent brow ridge, the large nose with deep-seated root, the root is deep in relation to the brow ridge and darkish skin colour.
[15] Transcript p52 line 5-25
He then described the first full face view of individual number 2 at 3.27.24 as showing a strong brow ridge, largish nose, large mouth. He also commented that the mouth appears to be open.[16] Professor Henneberg was asked about the significance of the latter observation. His response was as follows:[17]
AThere may be, that is why one has to note it and there may be two reasons for a mouth that appears to be open. One is that the person was speaking while the image was shot, but the other – that’s why it is worth noting – is that some individuals habitually keep their mouth open rather than lips together. It is a habit which is not that common, but fairly common. And it may also indicate, for example, that on the particular day the individual had a runny nose and couldn’t breathe through the nose. So it is worth noting, especially if it were repeated. Here was another image of the full face at 032731762. Yet again, the mouth appears to be open. And again at 032733241, it is a three-quarters portrait of the person. Obviously detail is missing. The mouth appears to be open once again, low prominent brow ridge. Another good view of the face is at 2733762. Nothing more to add to my previous description. Mouth open once again, which now starts telling me that this person may have had his mouth habitually open on this day, so in other words, kept his mouth open on this day even if not speaking, but obviously at this stage it is just a supposition. Every time we see the face, the mouth is open.
[16] Transcript p54
[17] Transcript p54 line 33
Professor Henneberg also viewed the footage at the Modbury Triangle Shopping Centre noting that it was of poorer quality than the North Park Shopping Centre video.[18] He considered that the general body shape of male number 2 was the same as that from the Zamels’ images. There was a series of images of the face of person number 2 which did not have fine detail but it showed a face with generally the same shape and features as in the Zamels’ images. Specifically Professor Henneberg noted that the Modbury Triangle Shopping Centre footage showed a low and prominent brow ridge, a large nose and the hairstyle is the same albeit he noted it was a very common hairstyle.[19]
[18] Transcript p60
[19] Transcript p61
Professor Henneberg was then shown some photographs[20] and a CD of photographs.[21] He was asked:[22]
QIn relation to individual No. 2 to whom you have referred in your evidence, were you able to reach a conclusion as to the likelihood or otherwise that he was the person shown in any of the bundle of colour photocopies.
AI used it in my statement and I can use it again: that for person number 2 and, therefore, Mr Kane Harradine, I was practically certain of their anatomical similarity. That was mostly because we had, as we have seen, a number of face images clearer from Zamels, less so from Menzies, but on both sets of images, the body shape, the clothing and the general features of the face matched.
[20] Exhibit P3.1
[21] Exhibit P3.2
[22] Transcript p64 line 11
Professor Henneberg’s evidence identifying points of facial similarity between the two CCTV CDs and the photograph of the accused, based upon his skill and training and his experience in conducting such comparisons on a number of other occasions, is extremely helpful. I must however make my own assessment of the material. In assessing it I bear in mind the following matters:
·The quality of the Modbury Triangle images is relatively poor. There is a lack of clarity of the images such that it is not possible to discern specific facial features. The quality of the North Park images is better but it is true to say that it is not possible to discern fine detail.
·The North Park images are a copy of the original handed to police. It is possible that there has been some degradation of the images in the copy process.
·Factors relevant to the reliability or otherwise of the CCTV images from both Modbury Triangle and North Park include camera angles used, variations in lighting, shadowing of areas of identification and technical limitations in the cameras and capture devices.
·The data and poor quality of the printed photograph of the accused provided for comparison purposes.
·The lack of statistical data as to how common, or otherwise, are the facial features identified by Professor Henneberg.
I accept Professor Henneberg’s evidence as to the similarities between the facial characteristics of the person described as Male number 2 on the CCTV images at both North Park and Modbury Triangle and the photograph of the accused. It accords with my own view of that material.
In addition to the material available to Professor Henneberg I had the opportunity to view video of the arrest of the accused and his record of interview[23] together with my observations of the accused in court. This reinforced my view that the accused was male number 2. The video and my observations in court demonstrate that the accused has the same facial characteristics identified by Professor Henneberg. The video of the accused’s arrest also demonstrates the unusual feature identified by Professor Henneberg on the CCTV images namely that he habitually keeps his mouth open. I will say however this was not in evidence in the accused’s demeanour in court. I could see the accused in profile in court and on the video film. I could compare this with the profile images of the accused in the CCTV. I consider that they were the same.
[23] Exhibit P5, P6 and P7
In addition Professor Henneberg described male number 2 as having a small thin body build,[24] as being very agile, moving fast and well[25] and as having a straight posture. Whilst I had no substantial opportunity to view the accused moving in either the video of his arrest or interview or in Court I formed the view that he had the small, thin body build and straight posture described by Professor Henneberg.
[24] Transcript p49
[25] Transcript p50
Can I be satisfied beyond reasonable doubt that the accused is male number 2 in the two sets of surveillance tapes?
Professor Henneberg commented in his evidence that it can be difficult to describe in detail the anatomy of another person:[26]
…We had a fairly long discussion of the terminology of just one element of the anatomy of the face – of the root of the nose – which required me to use quite a long number of words and this is a common difficulty that all people face when asked to describe in detail the anatomy of another person. Even anatomists do not have a very precise language; it is full of Greek and Latin words, but still not precise enough to distinguish minor differences in the anatomy of two faces, or two other body parts. Whereas by looking we can clearly, like any police officer inspecting a driver’s licence, or any immigration officer inspecting photographs in passports can tell, by looking, discern two faces which descriptively have similarities, and say they have a round, big nose and they have deep-seated eyes and so on. Yet we can tell by looking at the two photographs that they are different people because of the detailed nuances that the human language is incapable of describing.
[26] Transcript p53
I find myself with the same difficulty. It is difficult to express in words the features that, on careful examination of the evidence, lead me to my conclusion beyond reasonable doubt that the accused is the person depicted in both sets of CCTV images. I do however have that level of confidence, for the reasons set above. On each count on the Information there will be a verdict of guilty.
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