R v Hinder
[2019] ACTSC 57
•12 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hinder |
Citation: | [2019] ACTSC 57 |
Hearing Dates: | 12 March 2019 |
DecisionDate: | 12 March 2019 |
Before: | Elkaim J |
Decision: | Accused found Not Guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by judge alone – aggravated robbery – identification evidence – verdict |
Legislation Cited: | Criminal Code 2002 (ACT) s 310 Evidence Act 2011 (ACT) s 18 Supreme Court Act 1933 (ACT) s 68B |
Parties: | The Queen (Crown) Lochlan Hinder (Accused) |
Representation: | Counsel Ms S Janackovic (Crown) Mr R Davies (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 220 of 2017 |
ELKAIM J:
The accused exercised his right, in accordance with s 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge alone.
At the commencement of the trial the accused pleaded not guilty to the single count in an indictment filed on 7 September 2018. This count alleges that the accused committed robbery and at the time had an offensive weapon with him. This is an offence pursuant to s 310(b) of the Criminal Code 2002 (ACT).
In particular it is alleged that on Friday, 1 December 2017 at around midday, the accused entered the Subway restaurant on Flinders Way in Manuka and stole approximately $1,500. It is alleged that when he did so he was armed with an offensive weapon, namely a 30 centimetre kitchen knife.
Before looking at the evidence, it is necessary to state the legal principles that I must apply before arriving at a verdict. These are essentially standard directions.
The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is reasonable doubt, the accused must be found not guilty. The prosecution does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense.
There is no need to set out the elements of the offence because the accused admitted that a robbery took place at Subway in Manuka on 1 December 2017. He disputed only that he was the person who carried out the offence.
The Crown’s case relies on identification evidence of the accused by:
(a) Mr Bo Li and Mr Shu Xia, employees at Subway Manuka; and
(b) His sister, Greta Hinder.
I must warn myself to be especially careful before accepting identification evidence as reliable.
The Crown case includes CCTV evidence. When drawing any findings of fact from such evidence it is necessary to be cautious having regard to the possible unreliability of such evidence, in the same way as occurs when examining a photograph.
Quite properly, the Crown did not asked me to compare the person sitting in the dock with the person seen in the CCTV footage.
The Evidence
I was first of all shown the CCTV footage of the incident beginning with the robber walking to the Subway outlet, then the robbery itself and finally the robber leaving the outlet. He is wearing dark clothes including a ‘hoodie’ and sunglasses.
The two employees of Subway gave oral evidence. Neither of them could identify the accused. This included an inability to pick the accused from a photographic board which included a picture of the accused. Their description of his build was inconsistent. Mr Bo Li had him as slim. Mr Shu Xia had him as being of medium build. There was also inconsistency about the robber’s height.
Essentially there was nothing in the evidence of the two employees that could assist in identifying the accused as being the robber.
The accused’s sister, Greta Hinder, gave evidence about seeing a police video some 88 days after the robbery. Her evidence about identification was vague. This led to an application for her to be cross-examined on her statement. She was shown her statement and she agreed with its contents. In the statement she refers to identifying certain features which she thought were similar to those of her brother. However in paragraph [18] she stated “looking at these images now, I am not sure whether the male within them is my brother Lochlan. The lips and jaw is similar, but I cannot be certain”.
The Crown referred to yellow material being evident in the robber’s apparel. This was said to be consistent with the high visibility vest referred to by Greta Hinder. I looked closely at the CCTV footage and while a different colour is visible at the bottom of whatever top the robber is wearing, it is certainly not enough to conclude that there was a high visibility vest.
Ultimately, as far as the CCTV footage is concerned, I agree with the submissions of both the Crown and the accused that, at best, it might be said the person shown in the footage is consistent with the accused.
The accused’s mother gave evidence. She had initially objected to giving evidence however her reasons were imprecise and certainly not sufficient to excuse her under s 18 of the Evidence Act 2011 (ACT). Ultimately her evidence went no more than to the fact that some two or three days after the date of the robbery she noticed tattoos on her son’s hands which had not previously been present. The evidence was led to counter any suggestion that the person in the CCTV could not have been the accused because tattoos could not be seen on his hands.
The only other evidence connecting the accused to the robbery is the conversation he had with the police after he was arrested. These conversations were said to amount to admissions.
The evidence came from First Constable Duong. He said that on 19 April 2018, at about 10:44am, he went to the accused’s residence with the intent of arresting him. He was shown to the accused’s bedroom where he found the accused asleep. He woke him up by asking him his name. He responded by asking if the officer was a policeman. This fact prompted the accused to say “Fuck”. The officer then told him that he was being arrested for the robbery on 1 December 2017 at the Subway outlet in Manuka. The accused responded “It fucking took you long enough”. I will refer to this as the first admission.
The second admission was said to have come later during a lengthy conversation with the officer in which words to the following effect were said: “I have been waiting for you to come and arrest me for months. It will be good to get off the heroin. I am sick of stealing $80 per day”.
Under cross-examination the officer accepted that the three sentences may not have been stated consecutively. Further he could not remember the context in which the sentences were stated. He also agreed that he had told the accused that he was a suspect in three other robberies.
Conclusion
This is a classic case in which the distinction between the standard of proof required in a criminal case, compared to a civil case, is highlighted. The man in the CCTV footage could be the accused. The words spoken to the police officer could be seen as being admissions of guilt. But there are other explanations and they cannot be discounted.
Admissions must be unequivocal. As far as the first admission is concerned it is equally consistent with an admission of the specific robbery that the accused is bemoaning the fact that over four months have passed before the officers have arrived to talk to him about the robbery. It does not follow from the admission that the admission extends to an acceptance of having committed the robbery.
In relation to the second admission the absence of the context, the inability of the officer to say if the sentences were spoken consecutively and the possibility that the other three robberies or the persistent stealing were involved all combine to make the so-called admission far too vague. It cannot be relied upon in support of a conviction.
On a balance of probabilities I might have concluded the accused was guilty. I cannot do so when viewing the matter on the criminal standard of beyond reasonable doubt.
Accordingly the accused must be acquitted.
The formal finding of the court is that: on the single count in the indictment dated 7 September 2018, namely that the accused committed aggravated robbery and at the time had an offensive weapon with him, the accused is found Not Guilty.
| I certify that the preceding twenty eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: |
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