R v Lawrie & Adams - [2019] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LAWRIE & ADAMS
Criminal Trial by Judge Alone
[2019] SADC 130
Reasons for the Verdicts of His Honour Judge Boylan
5 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Accused jointly charged with aggravated serious criminal trespass in a place of residence and two counts of aggravated robbery. Election for trial by judge alone.
Held: Circumstantial evidence - identification evidence - prosecution unable to prove guilt beyond reasonable doubt - not guilty all counts.

R v LAWRIE & ADAMS
[2019] SADC 130

Dylan Jamie Adams and Charles Ronald Lawrie, are jointly charged with aggravated serious criminal trespass in a place of residence and with two counts of aggravated robbery. They elected for trial by judge alone and I heard the trial. I now give reasons for my verdicts.
The Information is as follows:
INFORMATION
Criminal Law Consolidation Act 1935 s 275(1)
For arraignment on 27 March 2019
Information of the Director of Public Prosecutions
Dylan Jamie Adams and Charles Ronald Lawrie are charged with the following offences:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Dylan Jamie Adams and Charles Ronald Lawrie on the 16^th day of October 2017 at Osborne, entered or remained in the place of residence of Adam Duffy and Tracey McClure as trespassers, with the intention of committing an offence therein, namely theft.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and Dylan Jamie Adams and Charles Ronald Lawrie knew of the other’s presence or were reckless about whether anyone was in the said place.
It is further alleged that Dylan Jamie Adams and Charles Ronald Lawrie committed the offence while in company with one another.
Second Count
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Dylan Jamie Adams and Charles Ronald Lawrie on 16^th day of October 2017 at Osborne, used or threatened to use force against Adam Duffy in order to commit the theft of a mobile phone and a motor vehicle, and the force was used, or the threat was made, at the time of, or immediately before, the theft.
It is further alleged that Dylan Jamie Adams and Charles Ronald Lawrie committed the offence while in company with one another.
It is further alleged that Dylan Jamie Adams and Charles Ronald Lawrie used or threatened to use an offensive weapon, namely a shovel, to commit or when committing the offence.
Third Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Dylan Jamie Adams and Charles Ronald Lawrie on the 16^th day of October 217 at Osborne, used or threatened to use force against Tracey McClure in order to commit the theft of a laptop, iPod and jewellery, and the force was used, or the threat was made, at the time of, or immediately before, the theft.
It is further alleged that Dylan Jamie Adams and Charles Ronald Lawrie committed the offence while in company with one another.
It is further alleged that Dylan Jamie Adams and Charles Ronald Lawrie used or threatened to use an offensive weapon, namely a shovel, to commit or when committing the offence.
In October 2017, Ms Tracey McClure and Mr Adam Duffy were living in Poseidon Court at Osborne, a north-western suburb of Adelaide. Mr Duffy was the owner of a Holden Commodore SS Series car. In the early hours of the morning of 16 October 2017, Mr Duffy’s car was parked in the driveway of the house. On that same morning, Ms McClure and Mr Duffy were up and about early as Mr Duffy was about to leave the house to go to hospital. At about 5.45 am, two men broke into the house through the rear door. Both were dressed in predominantly black clothing and footwear with the hoods of their jackets covering their heads, bandanas covering their faces, and wearing black gloves. One of the men, at least, was armed with a shovel. Possibly, upon entry, each of them was so-armed. Soon after entering the house, one of the men pushed Ms McClure and ordered Mr Duffy to return to the couch in the loungeroom, threatening to harm Ms McClure if he did not do so. One of the robbers demanded the keys to Mr Duffy’s car before going down to the master bedroom where he found the keys. The men stole personal items from the loungeroom before leaving. One of the robbers re-entered the house before returning to Mr Duffy’s car where he sat for some seconds with the passenger door open before the two robbers drove off – in Duffy’s car. Ms McClure then telephoned the police, who arrived fairly quickly.
Some 12 hours later, at about 5.50 pm, police officers saw Mr Duffy’s car parked in a street in Athol Park, also a north-western suburb. There were two men in it, the driver and a passenger. As police officers approached the car, it took off and there was a short chase before the car stopped and the two men in it ran away. Police caught both of them. The two men were the accused.
As part of their investigations immediately following the arrest of the accused, police officers seized Adams’s mobile telephone. It contained a number of photographs of both accused. In some of those photographs, the accused are wearing items of clothing similar to some of the clothing described by the victims as having been worn by the robbers. In a couple of the photographs, Adams is wearing a white or cream-coloured cloth apparently as a bandana and a hooded jacket, with the hood covering his head, and black gloves. Some of the photographs could be interpreted as the accused posing as robbers. If the dates and times on those photographs are correct, they demonstrate that the two accused were together between 12.03 am and about 1.00 am on the morning of the robbery. Adams’s mobile phone also included photographs of the two accused in a car. Again, if the dates and times on those photographs are correct, the two accused were together about two hours after the robbery. Further, in the photographs taken in the car, both accused are wearing sunglasses. The reflection in one of the lenses of Adams’s sunglasses appears to show dashboard features similar to those of the dashboard in Mr Duffy’s car.
Ms McClure and Mr Duffy both gave descriptions of the robbers to investigating police officers. The descriptions they gave are, in a very general sense, consistent with the appearances of the accused. Each of them said that one robber was taller than the other and younger than the other.
I note here some agreed facts. On the day of the robbery, the accused Adams was 20. He is six foot three and a half inches tall and weighs 65 kilograms. Lawrie was 25 at the time. He is six-foot-tall and weighs 80 kilograms. Both accused are Aboriginal.
On 19 October 2017, Ms McClure and Mr Duffy were each shown, separately, collections of photographs which contained a photograph of each of the two accused. Ms McClure did not identify either accused. Mr Duffy positively identified a photograph of the accused Adams as the taller of the two robbers. He also wrongly identified a photograph of the accused Lawrie as the shorter robber.
At trial, neither accused gave evidence.
The prosecution case is circumstantial and I have directed myself accordingly.
The prosecution relies upon the following circumstances. The accused were together five to six hours before the robbery and they were together two hours after the robbery in a car with features similar to those of Mr Duffy’s car. They were still together, and in possession of Mr Duffy’s car, some 12 hours after the robbery. They fled from the car after they had been spotted by the police. In a very general way, the descriptions of the robbers given by Ms McClure and Mr Duffy match the accused. Mr Duffy positively identified Mr Adams as the taller of the two robbers.
I have considered the evidence to decide, first, which of the circumstances I find proved. I deal first with the purported photographic identification of the accused Adams.
Before turning to the reliability, or otherwise, of that evidence I have warned myself about the dangers of relying upon purported photographic identification of a stranger by an honest, confident and apparently convinced witness. It is notorious that many miscarriages of justice have occurred on account of mistaken identifications. Honest and confident witnesses have been shown, often by DNA evidence, to have been mistaken in their identifications. There have been many cases where a number of witnesses, all of whom have purported to identify the same person, have later been shown to have been mistaken. I turn, then, to the reliability of Mr Duffy’s purported photographic identification of Adams.
In considering the reliability of Mr Duffy’s photographic identification of the accused Adams, I have taken into account a number of matters. They include the lighting conditions on each of the occasions when Mr Duffy said he saw the robber’s face; Mr Duffy’s emotional state at those times, and the opportunities that Mr Duffy had to observe the robber on each of those three occasions. I have also taken into account some of Ms McClure’s evidence about what was happening on one of those three occasions.
I begin with the lighting conditions. Inside the house, the lounge and sitting room lights were on. I do not know how bright the lights were but proceed on the basis that the light in those two rooms would have been good.
I turn to the outside lighting. The home invasion and robberies took place early in the morning, before sunrise. (It is an agreed fact that sunrise on 16 October 2017 was at 6.32 am.) There is no evidence before me by which I can fix the timing of any event with certainty: there is no evidence of the time Ms McClure first rang the police after the incident, of the time police communications received that call, or of the precise time at which police officers first attended in response to it. Ms McClure and Mr Duffy could only give estimates. They estimated that they got up on that morning at about 5.30 and that the robbers entered their house at 5.45 to 5.50 and stayed in the house for up to 15 minutes. Accordingly, on that evidence, the latest time at which the robbers left was 6.05, nearly 30 minutes before sunrise. Ms McClure’s evidence, about the time at which the robbers arrived, was that it was dark outside. At the time the robbers finally drove off, according to Mr Duffy, it was “early morning, the sun was coming up.”[1] But, fairly shortly after the robbers had left, Mr Duffy went outside and noticed that a neighbour’s exterior light was on. Therefore, it cannot have been so light that one would not notice that a neighbour’s exterior light was on. There was no evidence about the weather conditions or about street lighting. I have studied the photographs[2] and there appears to be a street light on the other side of the road from where the robbers stopped Mr Duffy’s car for a short time before driving off. But, as far as I can make out, that street light would have been on the far side of the car from the passenger’s door. Further, there is no evidence before me about whether or not it was on or, indeed, working, on the morning of the robbery. Given that, at latest, the robbers left just a little under 30 minutes before sunrise, I can say only that Mr Duffy did not make his final observation of the car in full daylight.
[1] T104.
[2] Exhibit P1.19.
I turn to the witnesses’ emotional states. Ms McClure described herself as being “very frightened”.[3] At another stage, she said that she was “too stunned or scared to take my eyes off them.”[4] I note here that, in the hearing of both Ms McClure and Mr Duffy, one of the robbers threatened harm to Ms McClure early in the incident.
[3] T40.
[4] T64.
Mr Duffy variously described himself as “scared, afraid,[5] nervous, unsure.”[6] On the morning in question, he was about to go to hospital because he was suffering a “flare up” of his long-established Crohn’s Disease. He described himself as having been “in shock” when he spoke to a police officer at the house fairly soon after the robbers had left.[7]
[5]    T87.
[6]    T90.
[7]    T111.
Mr Duffy said that there were three separate occasions on which he saw the full face of the taller robber. The first of those occasions was when the robber returned from the car and stood near the loungeroom doorway, telling Mr Duffy and Ms McClure to give them 10 minutes before they rang the police. On that occasion, Mr Duffy said that the taller robber was no longer wearing his black bandana, that he could see the robber’s full face and that he got a clear look at it. There is no estimate of the time during which he made his observations but it could only have been a matter of seconds. But there is a difficulty about Mr Duffy’s evidence of his first sighting of the tall robber’s face. At the time, Mr Duffy was still seated on the couch. Ms McClure was standing near to him. When asked whether Ms McClure was facing towards Mr Duffy or facing towards the robber, Mr Duffy replied, “facing towards the male at that time”[8]. By “the male” he meant the taller robber. The difficulty is that Ms McClure’s evidence, about which she was quite confident, was that she never saw either of the robbers with their bandanas removed. She said “I’m a hundred percent sure I never seen their faces…I did not see their faces. I am one hundred percent sure of that.”[9] Further, when Mr Duffy gave his first statement to the police on the morning of the robbery, he did not mention that he had seen the face of one of the robbers after that robber had moved his bandana.[10]
[8] T100.
[9] T67.
[10] T129.
The second opportunity which Mr Duffy said that he had to observe the tall robber’s face was when that robber returned, almost immediately after Ms McClure had locked the front door. After she had done so, Mr Duffy, who was still seated, saw the outline of the robber come back past the loungeroom window. The robber then kicked in the front door. As the door gave way, the robber fell to the floor. At that stage, Mr Duffy stood and was approaching the robber, swearing at him. The robber got up and ran back to the car. Again, I do not know for how long Mr Duffy looked at the robber’s face. Nor do I know from what angle he saw the robber’s face.
Mr Duffy’s final opportunity to observe the robber was when the robber stopped Mr Duffy’s car for a short time on the street across from Mr Duffy’s dining room window. Mr Duffy said that, as he looked through the dining room window, he saw the passenger door open and the tall robber, from that passenger door, look straight at Mr Duffy. Again, Mr Duffy said that he got a clear view of the robber’s face even though he did not get out of the car. He described the time of this observation as being “all of seconds”[11]. There is no evidence of whether the passenger’s window was up or down. Mr Duffy said that the car was about seven metres from him. There is no evidence whether or not an interior light came on in the car, although, any such light would, presumably, have been behind the robber. I have already mentioned the lack of evidence about the street light. But there is another problem with the reliability of Mr Duffy’s observations at this point. Although I know that he made his observation through the dining room window, I do not know exactly where he was standing. More importantly, there is a diaphanous curtain of some sort covering that window. I do not know whether or not Mr Duffy pulled that curtain back. Any observation of the robber made through the curtain must be unreliable.
[11] T105.
There are some further problems with Mr Duffy’s purported identification evidence. When he saw the robber’s face, Mr Duffy could not remember seeing any facial hair. It is clear from the arrest photograph taken later that day that he accused Adams had a beard. Further, as I have said, Mr Duffy said that he was 90 to 95 percent confident that the photograph of Adams was that of the taller robber. But Mr Duffy was 100 percent confident that a photograph of a man in the other set of photographs which he was shown was a photograph of the shorter accused. He was wrong about that; that is, he identified the wrong man as being the shorter robber.
Given the evidence – and lack of evidence – about the lighting conditions, the problems associated with Mr Duffy’s opportunities to observe the taller robber, Mr Duffy’s emotional state at the times of those observations and the stark difference between his evidence and Ms McClure’s about the first purported observation, I am not prepared to rely upon the photographic identification evidence at all, even in combination with other circumstantial evidence in the case. It is too dangerous and, for that reason, I discount it entirely.
There are other difficulties for the prosecution. I was asked to receive the evidence of the two accused fleeing Mr Duffy’s vehicle as evidence of consciousness of guilt. But the evidence of their flight is equivocal. They were, after all, found in a stolen car and the accused Lawrie was wanted on a warrant. I have not, however, discounted the evidence of the flight; I have viewed it together with other circumstances upon which the Crown rely.
Photographs found in Adams’s mobile phone also present some problems for the prosecution. At first sight, the set of photographs taken inside a house soon after midnight on the morning of the robbery shows that the two accused were together and suggest that they were up to no good. But it seems to me that there may have been one other person with them at that time. One of the photographs shows both accused inside the house. That photograph is not a “selfie”. While I acknowledge that it could have been taken by some remote or automatic function of the camera in the telephone, I cannot dismiss as a reasonable possibility that a third person took the photograph. In my view, the possibility of there being a third person in company with the accused in the hours prior to the robbery raises the possibility that, at least one of the accused, may not have been the robber.
I turn to the photograph of the two accused taken in a car. This photograph appears to be a “selfie”. It is the prosecution’s submission that, at the time the photograph was taken, the two accused were sitting in Mr Duffy’s car. If the evidence about the time and dates is correct, then, it is the Crown’s submission, that they were in Mr Duffy’s car about two hours after the robbery. The prosecution relies upon what it asserts is a similarity in the upholstery of the car with the upholstery in the rear of Mr Duffy’s car and the reflection of the dashboard in the lens of Mr Adams’s sunglasses. Mr Duffy described the upholstery of his car as being charcoal grey, black. In neither of the photographs which show the rear upholstery, does it appear as charcoal-grey or black. The lighting in the photograph is such that I cannot know the colour of the upholstery. I cannot accept that it is charcoal-grey or black.[12]
[12] T142.
As I mentioned earlier, it is the Crown case that the reflection of the dashboard of the car in which Mr Adams is sitting shows features identical to features of the dashboard of Mr Duffy’s car. In particular, the Crown relies upon a silver trim running across the dashboard and silver trim on two circular air vents on the dashboard. As far as those features are concerned, the dashboard is similar to Mr Duffy’s. But I do not know how common that trim is. In particular, I do not know whether it is a feature common to a number of Holden vehicles built at the time of Mr Duffy’s or whether it is distinctive to the SS Series.

I mention one further matter. Mr Duffy, in his evidence, was confident that one of the robbers was wearing a black top on which there was a “Globe” logo. But there is nothing in the evidence to show any association between either of the accused and an item of clothing bearing that logo. Further, one of the police officers gave evidence that she was familiar with the “Globe” logo because such logos are very popular.13
13 T192.
Owing to the difficulties to which I have referred above, in the case of each accused, I am not satisfied that guilt is the only rational inference from the circumstances proved by the prosecution.
I find each accused not guilty of the three charges against him.