R v Jay & Leibhardt - [2020] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JAY & LEIBHARDT
Criminal Trial by Judge Alone
[2020] SADC 24
Reasons for the Verdict of His Honour Judge Boylan
18 March 2020
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Accused jointly charged with one count of armed robbery - trial by judge alone - recognition evidence proved beyond reasonable doubt.
Held: Both accused found guilty.

R v JAY & LEIBHARDT
[2020] SADC 24

Tom Mitchell Jay and David Shaun Leibhardt are jointly charged with aggravated robbery. At their election, I heard the trial without a jury. I now publish my reasons for my verdict.
The charge is as follows:
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Tom Mitchell Jay and David Shaun Leibhardt on the 29^th day of March 2018 at Elizabeth Vale, used or threatened to use force against Harinder Singh Gurna in order to commit the theft of a mobile phone and money in the sum of $620, and the force was used, or the threat was made, at the time of, or immediately before, the theft.
It is further alleged that Tom Mitchell Jay and David Shaun Leibhardt committed the offence while in company with one another
There is no dispute that two men robbed Mr Gurna; nor, with the exception of Mr Gurna’s evidence that he recognised those two men, is the rest of the prosecution case in dispute.
The prosecution case
For some years before March 2018, Mr Gurna had worked as a taxi driver, mainly in the northern suburbs of Adelaide. There was a security camera in his taxi.
At about 12.40 am on Thursday 29 March 2018, Mr Gurna was in Willow Crescent at Elizabeth Vale. He had finished his shift and was on his way to visit a friend who lived in that street. Having parked his taxi, he began walking to his friend’s house. As he rounded a bend in the street, he saw two men walking towards him. One of the men was skinny and had a ponytail; the other was chubby. Mr Gurna immediately recognised the two men as passengers in his taxi the previous Sunday afternoon. When they were closer to him the man with the ponytail said to Mr Gurna “What have you got for me?” he then grabbed Mr Gurna’s tee-shirt and began punching him. The chubby man joined in the attack by kicking Mr Gurna, who fell to the ground. The kicking and punching continued for a short time during which the robbers took Mr Gurna’s telephone and $620 in cash.
After the robbers had finished with him, Mr Gurna drove straight to the Elizabeth Police Station and reported the robbery. He told police he had recognised the robbers.
Two weeks later, without Mr Gurna having seen any CCTV footage from the camera in his car, police officers showed Mr Gurna a collection of photographs which included photographs of the two accused. Mr Gurna readily selected photographs of the accused as photographs of the robbers.
The police retrieved the CCTV footage. It showed the two accused and a woman travelling as passengers in Mr Gurna’s taxi on two separate occasions on the previous Sunday, 25 March 2018. On that afternoon, Mr Gurna had collected both accused and the woman from 17 Willow Crescent, Elizabeth Vale and driven them to an address in Elizabeth South. Thirty minutes later, he picked the same three people up from 12B Harcourt Terrace, Salisbury North and drove them to the Waterloo Station.
There is a connection between both accused and Willow Crescent. The accused Leibhardt lived at number 17 and, on 1 April 2018, when police officers had cause to attend at number 17, the accused Jay was there with Leibhardt.
There is also a connection between Mr Gurna’s stolen telephone and the premises at 12B Harcourt Terrace. About 24 hours after the robbery, Mr Gurna’s stolen telephone was used. At the time it was used, the SIM card in the phone was registered to a Ms Alyce Newton of 12B Harcourt Terrace, Salisbury North. Further, on 16 May 2018, in response to an advertisement on the “Gumtree” website, a Ms Helena Swyghuizen went to 12B Harcourt Terrace and bought the stolen telephone from a woman calling herself “Zoe”.
The prosecution case is, of course, that the accused are the robbers: the man with the ponytail is Jay and the chubby man is Leibhardt. The prosecution relies on Mr Gurna’s recognition of the accused; the connection between Mr Gurna’s telephone and 12B Harcourt Terrace, premises at which both accused had attended only days before the robbery; the prior association between the accused; and the association of both of them with Leibhardt’s premises on the very street where Mr Gurna was robbed.
The position of the accused
Neither accused gave evidence. Each of them was entitled to remain silent and I have not drawn any inference adverse to either of them by his election not to give evidence. The position of each of them is that he not one of the robbers; that Mr Gurna has mistakenly identified him as a robber.
Standard directions
I have directed myself that each of the accused is presumed innocent unless and until his guilt is proved beyond reasonable doubt by the prosecution. Neither accused has to say, do or prove anything.
I shall not set out the elements of the offence of aggravated robbery: there is no dispute that two men, acting in company, robbed Mr Gurna.
I have considered the case against each accused separately. I have not reasoned that, because I am satisfied beyond reasonable doubt that one of them is guilty that, therefore, the other is also guilty. I shall say a little more on this topic later.
Recognition warning
The prosecution case depends upon the accuracy of Mr Gurna’s purported recognition of the accused as the robbers. I cannot convict them unless I am satisfied beyond reasonable doubt of the accuracy of Mr Gurna’s evidence that the robbers were the two men who had been in his taxi on the previous Sunday.
I have directed myself that I must approach Mr Gurna’s evidence with great caution. Honest and convincing witnesses are sometimes mistaken about their purported recognition of people, sometimes even of people well known to them. I have, therefore, scrutinised Mr Gurna’s evidence very carefully. In particular, I have scrutinised his evidence about the opportunity he had to observe the robbers. I have borne in mind that, although there is no suggestion that he has given inconsistent descriptions of them, Mr Gurna did not say that either of the robbers possessed any special feature that would readily distinguish him. All that can be said is that his description of the robbers generally matches the appearances of the accused.
I have had regard to the dangers associated with the “displacement effect”. In addition to giving evidence that the two accused had been in his taxi on the Sunday afternoon, Mr Gurna’s evidence was that there had been other occasions, before that Sunday afternoon, when each accused had been in his taxi, either singly or together. In those circumstances, I have borne in mind that Mr Gurna would have had a memory of the faces of the accused and that he may have, subconsciously, substituted his memory of their faces for a hazy recollection of the appearances of the robbers.
I return briefly to my separate consideration of the cases against each accused. I have warned myself of the possibility that Mr Gurna has correctly identified only one of the accused as a robber and has then assumed, owing to the association of the two men on the Sunday afternoon – and perhaps on earlier occasions – that the other accused was the second robber.
Photographic identification evidence
I have used the evidence of Mr Gurna’s selections of the photographs of the two accused for one purpose only, namely, as evidence that Mr Gurna was sufficiently familiar with the appearance of each accused to be able accurately to identify each of them as a passenger in his taxi on the previous Sunday afternoon.
Assessment of Mr Gurna’s evidence
Mr Gurna’s honesty was not challenged. I find that he was an honest witness.
In considering the general reliability of Mr Gurna’s evidence, I have had regard to criticisms made of it by counsel for both accused. Those criticisms included some prior inconsistent statements and I deal with them now.
When Mr Gurna made his statement to the police an hour or so after the robbery, he told them that the amount of money stolen was $720, that he had withdrawn that sum from the bank the previous day, and that he had picked up the two accused the previous Sunday from number 7 Willow Crescent. He later told police that he was wrong about those matters, correcting them by saying that the amount stolen was $620; that he had withdrawn it on the previous Tuesday; and that he had collected the men from number 17 Willow Crescent. In cross-examination, he explained his errors by saying that he had arrived at the police station shirtless and stressed by the incident.
I accept Mr Gurna’s explanations for those errors in his first statement. They are peripheral matters and they do not shake my faith in his reliability. Having said that, I have borne in the forefront of my mind when considering his purported recognition of the accused as the robbers that he would have been very fearful from the time of the first demand made by the first robber.
I turn now to the accuracy and reliability of Mr Gurna’s recognition evidence. Defence counsel submitted that his evidence on that topic is unreliable for a number of reasons. First, it was submitted that he had no good opportunity to see his robbers. Although – and there was no challenge to this – Mr Gurna said that the street lighting was good, counsel emphasised that the robbery occurred at night. Each of them submitted that Mr Gurna had very little opportunity, before the first demand was made of him to get a good look at the two robbers: there were only nine metres between him and the robbers when he first saw them and he had them under observation for perhaps five seconds before the demand was made. I accept Mr Gurna’s estimate of the nine metres and his rough estimate of five seconds.
Counsel also emphasised – and emphasised strongly – that his evidence is unreliable because of his emotional state from the time the first demand was made. Counsel also submitted that his opportunity to see the robbers was hampered by his sometimes putting his hands to his face.
I have taken all of those matters into account.
I now set out a couple of passages of Mr Gurna’s evidence.
When asked in examination-in-chief what happened when he got out of his taxi, Mr Gurna replied (at page 19 line 22 and following)
When I just get out of my taxi and lock my taxi and start walking on the footpath which went to the units down there, there is a footpath, when I just started walking towards east and just go round the corner, there were two guys were walking towards me and they start – when – the were – I recognise them because they – I drop them in my taxi a few times before that incident happened so I thought that they were going – they are the same – they were the same guy. When they come really close to me – they were – their action was like they tried to grab me and they start asking – there was one guy, ponytail guy, he said “What you have for me? What you have for me? Just give us”.
Mr Gurna then went on to describe in some detail the physical attack upon him.
At page 42, in cross-examination by Ms Mansfield, there is the following passage:
QIt’s the case isn’t it, that you had a view of these men who attacked you for a period of about five seconds before the attack commenced.
ABefore the attack commence it would be the distance the same as you guys are standing. They were coming towards me.
His Honour
QAre you saying that you first noticed them coming towards you when they were about as far from you are now in the witness box and Ms Mansfield is at the bar table.
AYes. Because there is, I think, a bend on footpath and one tree down there. When the person cross there and on the corner, we were crossing each other that time I saw them that these are the same guy who I picked up, but that time they haven’t done anything wrong with me. (My underlining)
Mr Gurna went on to say that, before the attack, he and the two men were walking towards each other and that nothing obstructed his view of them.
Mr Gurna’s evidence is, then, that he recognised the two men in the street as the two accused before he had any reason to feel any alarm; that is, at the time he recognised them as his passengers from the previous Sunday, he had no reason to feel any stress or fear. The prosecution asks me to accept, on the basis of that evidence, that his opportunity to see the face of each man and accurately to remember the features of each of those men was not adversely affected by his emotional state. I accept that submission.
Evidence Independent of Mr Gurna
I have considered the other evidence to which I have already referred. It supports Mr Gurna’s recognition evidence. The robbery took place on the street in which Leibhardt lives. Leibhardt and Jay are associates: they were in the taxi together on the previous Sunday and they were both present at Leibhardt’s house when the police attended there two days after the robbery. Further, they both had some association with the premises at 12B Harcourt Terrace. And it was at those premises that Mr Gurna’s telephone ended up.
Mr Gurna impressed me as an honest and careful witness. I accept his evidence that he had sufficient time, before he felt any alarm, clearly to see the faces and general features of the robbers. But I have borne in mind the warning that I have given myself. The independent evidence to which I have referred corroborates his evidence of recognition of each of the robbers. I am, therefore, satisfied beyond reasonable doubt that Mr Gurna’s recognition evidence is accurate and reliable. I find each of the accused guilty of the offence charged.