R v Loodin

[2015] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LOODIN

[2015] SASCFC 74

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Lovell)

19 May 2015

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - EVIDENCE - HEARSAY - ADMISSIBILITY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION

Appeal against conviction.  The defendant was convicted of two counts of aggravated robbery.  On 27 April 2013 the complainants, SRV and DEH, were walking along the Esplanade at Largs Bay.  They were approached by three young men.  One of the men produced a knife and demanded that DEH hand over his mobile phone.  DEH complied.  At the same time another of the men grabbed SRV by the collar causing him to fall to the ground.  The man demanded his mobile phone and wallet.  SRV replied that he did not have a mobile phone.  The man struck SRV to the head.  SRV then handed over his wallet.

On 27 April 2013 police attended at the defendant’s home in North Haven.  In the defendant’s bedroom they located a knife similar to the description of the one used in the robbery.  In the defendant’s brother’s bedroom, the police located a hooded jumper consistent in appearance with the clothing worn by the person wielding the knife.

It was the prosecution case that DEH immediately recognised the defendant’s face at the time of the robbery.  DEH also identified the defendant as being present and involved in the robberies in a photographic identification procedure.  The defendant gave evidence in his defence.  The defendant denied any involvement in the robberies.  He claimed that at the time he was at home. 

Whether verdict was unreasonable or could not be supported having regard to the recognition identification evidence of DEH.  Whether prosecution should have led evidence of statements made to the police by the victim and the father of the defendant.

Held per Gray J (Peek and Lovell JJ agreeing):

1.  A review of the evidence in the trial and of the summing up of the Judge demonstrates that the verdicts of the jury were open on the evidence and fully justified by the evidence. 

2.  It was not open to the prosecution to lead evidence of the statements made to the police by the victim and the defendant’s father as part of the prosecution case.  Both were out of court statements.  The statements were made available so that the defence could make use of them, as considered appropriate. 

3.  Appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
R v Nguyen (2010) 242 CLR 491; M v The Queen (1994) 181 CLR 487, considered.

R v LOODIN
[2015] SASCFC 74

Criminal Court of Appeal:       Gray, Peek and Lovell JJ

GRAY J.

1. This is an appeal against conviction.

2. Following a trial before Judge and jury in the District Court, the defendant and appellant, Imran Loodin, was convicted of two counts of aggravated robbery contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).

   The Trial

   The Prosecution Case

3. At about 3.00 am on 27 April 2013 the complainants, SRV and DEH, were walking along the Esplanade at Largs Bay.  They were approached by three young men.  One of the men produced a knife and demanded that DEH hand over his mobile phone.  DEH complied.  DEH recognised that man as the defendant as he had gone to the same school as him.  At the same time another of the men grabbed SRV by the collar causing him to fall to the ground.  The man demanded his mobile phone and wallet.  SRV replied that he did not have a mobile phone.  The man struck SRV to the head.  SRV then handed over his wallet.

4. On 27 April 2013 at about 9.00 am, police attended at the defendant’s home in North Haven. In the defendant’s bedroom they located a knife similar to the description of the one used in the robbery.  In the defendant’s brother’s bedroom, the police located a hooded jumper consistent in appearance with the clothing worn by the person wielding the knife.

5. It was the prosecution case that DEH immediately recognised the defendant’s face at the time of the robbery.  During the course of the robbery, the defendant said to DEH, “Give me your phone. I’ve got a knife. Do you know who I am?” In reply, DEH said “Yes, I do know who you are.” On the prosecution case, DEH said “You’re Imran Loodin” as the defendant began to walk away.  The defendant responded “No” and then proceeded to run.  DEH also identified the defendant as being present and involved in the robberies in a photographic identification procedure.

   The Defence Case

6. The defendant gave evidence in his defence.  The defendant denied any involvement in the robberies.  He claimed that at the time he was at home.  No other evidence was called. 

   Summing Up

7. The Judge drew attention to the evidence of DEH of his prior association with the defendant at high school, of seeing the defendant around the general area and of some contact with the defendant on Facebook. 

8. The Judge gave careful directions concerning the evidence of recognition identification.  In the course of those directions the Judge said:

   But in the case of the latter, that is, in the case where there is a recognition of somebody previously known, matters have to be considered differently. In those circumstances, you are required to scrutinise the evidence carefully and to consider such questions as the degree of familiarity of the witness with the suspect, the circumstances in which the suspect had previously seen or come into contact with the witness and the circumstances in which the suspect was alleged to have been seen by the witness at the time that the robberies were committed. Was there a sufficient opportunity to see him? Was it long enough to recognise him? Could the purported recognition be infected by fear, or could [DEH] have simply jumped to an erroneous although genuinely held conclusion, as Mr Apps put to you? You should consider carefully the opportunity for observation that morning, including the poor lighting conditions, the length of time available to observe, the possibility or risk of jumping to conclusions as to identity and the nature, extent and duration of the previous relationship between the witness and the suspect, before coming to any conclusions that you can rely on the purported evidence of recognition.

   Of course, those matters are only questions which you might ask yourselves. There might be other considerations which appear important to you, but as in all things, those are questions of fact for you to determine.

   As to the photo board evidence, that identification was clearly affected by the fact that he was pointing to a person already known to him and whose image he had only recently called up on Facebook, so that I direct you that this photo board identification adds really nothing to the previous occasion of recognition on the seafront that night. Likewise indicating Mr Loodin here in court, as was done, carries no weight at all for precisely the same reasons, that he is pointing out somebody whom he has already recognised. The in-court identification is permitted to confirm that the person previously identified is in fact, the accused, but such evidence is of no value on the identification issue itself. It is given in court only in order to complete the picture and to avoid any speculation as to why it was not done. Members of the jury, [DEH] gave evidence ‘Yes, I recognise Mr Loodin. I recognise his photographs’ and if he did not point him out in court, you might when you return to the jury room scratch your head and wonder why it was not done. It is done to complete the picture, but in itself it adds nothing to the recognition on the seafront and that is where you should focus your attention in your deliberations.

9. The Judge assisted the jury with directions about how they may approach their task of the assessment of evidence and in that respect said:

   Now, could I say something to you briefly about the way you should approach the assessment of the evidence of witnesses. It is of course, as counsel reminded you a number of times, for you and for you alone to determine what the facts of the case are, and whether you believe the whole or any part or parts of the evidence of a particular witness. In ascertaining the facts of the case you will have to evaluate the evidence which has been placed before you. Amongst other things, this involves a consideration of just how much weight you can place on the evidence of a particular witness or witnesses, and in assessing both the witness’s truthfulness and also the witness’s reliability. The two concepts are quite different, as counsel have explained.

   You will need to have regard to your own impressions of the witness, the intrinsic likelihood or unlikelihood of the version or story the witness gives, how the account stood up or did not stand up under cross-examination, and how the witness’s evidence fits with any evidence in the case you find to be convincing, or on any other factor which appeals to you in assessing the evidence of a particular witness.

   ...

   Of course, you do not have to accept all of what a witness says or reject all of what a witness says without qualification. For example, you might find that a witness who you regard as generally reliable says something which you cannot accept. Should you come to that view, you do not necessarily reject the whole of the evidence of that witness, for he or she may have been honestly mistaken about that subject while being entirely reliable about others. In short it comes down to this: you have the absolute right to accept all of what a witness says, part, or some parts of it, or indeed none of it. ...

10. The Judge reminded the jury of the submissions of counsel, and in particular, in some detail, of the submissions made by defence counsel.  The Judge concluded in his summing up with the following:

    Members of the jury, at the end of the day, although I stress once again that it is entirely a matter for you, you might take the view that proof of the prosecution case is dependent on the acceptance of [DEH] as a reliable and truthful witness. The weight to be given to his testimony is entirely a matter for you, but it remains necessary for you to be satisfied beyond reasonable doubt of his truthfulness and his reliability. In that respect, you are entitled to look at other independent evidence which may or may not support his version of the events.

    You should analyse the evidence of prior association particularly carefully and ask yourselves whether it was extensive and sufficient enough to enable [DEH] to satisfy you that his evidence of recognition was safe and reliable on that night in question.

    You should understand clearly that it is not a question of making a choice between his evidence, that is [DEH] on the one hand, and that of Mr Loodin, on the other. You do not have to believe that Mr Loodin is telling the truth before he is entitled to be acquitted. Even if you get to the point of rejecting Mr Loodin’s evidence as to alibi, that does not mean that you thereby find him guilty on one or both charges, for you must then step back and consider all the evidence that you are prepared to rely upon as it relates to each count and ask yourselves the fundamental question with respect to each ‘Has the prosecution proven the charge beyond reasonable doubt?’.

11. On the appeal, no complaint was made about these directions. 

    The Appeal

12. The primary complaint on the appeal was that the verdicts were unreasonable or unsafe.  It was said that a substantial miscarriage of justice occurred as a consequence of the unsatisfactory nature of the evidence.  It was further complained that the defendant’s right to a fair trial had been prejudiced by the prosecution not leading evidence of a statement made by DEH to a police officer and also by the prosecution not leading evidence of a statement made by the defendant’s father to a detective. 

13. The approach to be taken by the Court when considering on appeal whether a verdict is unreasonable or cannot be supported having regard to the evidence was recently reaffirmed by the High Court in Nguyen.[1]  The Court described the earlier observations of the plurality in M[2] as authoritative and observed:[3]

    [1]    R v Nguyen (2010) 242 CLR 491.

    [2]    M v The Queen (1994) 181 CLR 487.

    [3]    R v Nguyen (2010) 242 CLR 491, 499-500.

    The task of an appellate court in considering whether a verdict of guilty returned by a jury “should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence” was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being “unsafe or unsatisfactory”, “unjust or unsafe” or “dangerous or unsafe”. The question for the appellate court is one of fact.

    “[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

    As the plurality in M went on to point out:

    “But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

    The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:

    “It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (31). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

    [Footnotes omitted.]

14. In support of the submission that the verdicts were unsafe or unreasonable, counsel for the defendant submitted that there were material inconsistencies and inadequacies in the evidence of DEH.  It was contended that these matters so undermined DEH’s evidence of recognition and identification that this Court should conclude that the verdicts were unsafe and unreasonable. 

15. Counsel for the defendant pointed out that in a statement made to the police two days after the robberies, DEH said “I didn’t immediately recognise him but soon after I recognised him as Imran Loodin.”  Counsel then contrasted this statement with DEH’s evidence at trial, when, in answer to the question of whether he recognised the man, he answered yes and that he had done so immediately. 

16. Attention was drawn to what was said to be matters that evidenced a lack of reliability on the part of DEH.  It was pointed out that his contact with the defendant at school was several years prior to the robberies and that apart from only seeing him around and in photos on Facebook, he had had no direct relationship with the defendant. 

17. Counsel for the defendant pointed out that the lighting was poor in the area where the attack occurred, that the attacker was wearing a hood over his head and that, in addition, DEH gave evidence that at the time of the robbery he was focusing on the knife.  Counsel submitted that, as a consequence, DEH would not have had a good look at the offender’s face during the attack.  Emphasis was placed on what were said to be inconsistencies in the description by DEH of the hooded jumper and of the appearance of the knife.  Attention was also drawn to inconsistencies in the evidence of DEH and SRV.  Finally, counsel referred to the evidence of DEH that he was mildly intoxicated at the time. 

18. Counsel for the Director of Public Prosecutions submitted that the ultimate issue for the jury was whether the evidence of recognition identification could be relied on. It was said that the Judge gave strong and appropriate directions and warnings of this topic.

19. The Director further contended that the Judge was correct in his direction to the jury that the central issue in the case was recognition identification. There was said to be ample evidence from which the jury could safely find beyond reasonable doubt that the defendant was present and involved in the two offences.

20. Counsel for the defendant further submitted that the defendant’s right to a fair trial had been prejudiced due to the alleged failure of the prosecution to present evidence from two witnesses. 

21. Prior to trial, in accordance with the prosecutor’s duty, a statement made to a police officer by DEH was made available to the defence.  In this statement DEH said, inter alia, that he was pretty sure it was Loodin that had robbed him.  It was complained that the prosecution did not lead this evidence. 

22. The prosecution also made available to the defence a statement made to another police officer by the defendant’s father.  In this statement, the defendant’s father was reported to say “Imran was home all night. I saw him in bed. You are wrong.” 

23. An immediate answer to these complaints is that the evidence was not admissible as part of the prosecution case.  The statements were made available so that the defence could make use of them, as considered appropriate.  The assertion that the prosecution should have led evidence of these statements suggests a misunderstanding of the relevant rules of evidence.  It was not open to the prosecution to lead evidence of these statements as part of the prosecution case.  Both were out of court statements.  No unfairness was caused to the defendant. 

24. A review of the evidence in the trial and of the summing up of the Judge demonstrates that the verdicts of the jury were open on the evidence and fully justified by the evidence.  The circumstances do not allow a conclusion that it would be dangerous to allow the verdicts to stand.  The verdicts are not unsafe and can be supported having regard to the evidence.  It was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the defendant was guilty as charged. 

    Conclusion

25. I would dismiss the appeal.

26. PEEK J.    I would dismiss the appeal.  I agree with the reasons of Gray J.

27. LOVELL J.           I would dismiss the appeal.  I agree with the reasons of Gray J.