R v Martin No. Sccrm-02-54

THE QUEEN v MARTIN
[2002] SASC 375
Criminal

OLSSON AJ On 15^th October 2002 I published detailed reasons for my rulings on certain Rule 9 issues in this matter, which were argued before me. Of necessity, and in order to produce reasons for verdict which are cohesive, I will need to retrace some of the same ground. I will, however, only do so to the extent necessary to achieve that result.
In these proceedings the accused was presented for trial on 16 counts involving a variety of offences said to have been committed, in concert with another offender, over the space of several days in late January 2001. One count (Count 7) was, ultimately, the subject of a nolle prosequi. The accused elected for trial by judge alone.
It is common ground that the various counts can conveniently be grouped into three, separate, internally related, series.
The first involved allegations of the taking of a motor vehicle at about 12.01 am on 26 January 2001 and its subsequent illegal use, on 27 January 2001, in connection with entering a private residence and stealing various items and also two successive incidents of bag snatching. The last three offences were said to have occurred, in rapid succession, between about 4.30 am and 7.25 am on the same day. The vehicle was found abandoned shortly before 2 pm.
The second, inter alia, concerned allegations of the taking of another motor vehicle, at about 1:50 pm on 28 January 2001, and its involvement, on the same day, in an attempted larceny of a cash register and its contents, a bag snatching and larceny of petrol from a service station. The last three of those offences were said to have occurred, in rapid succession, between about 6.50 pm and 7.45 pm. The vehicle was found abandoned on the morning of 31 January 2001.
The third focused on allegations of the taking of yet another vehicle, at some time during the night of 28/29 January, and its subsequent use, on 29 January 2001, in relation to one attempted (but unsuccessful) bag snatching, three separate incidents of actual bag snatching and an associated offence of assault occasioning actual bodily harm. The last four offences were said to have occurred over a period extending from about 6.55 am to some time in the afternoon. The vehicle was found abandoned on the morning of 3 February 2001.
On his arraignment at trial, the accused pleaded guilty to nine counts connected with the first two series of offences. He pleaded not guilty to all counts comprising the third series i.e. Counts 11 to 16 inclusive. The present reasons are confined to my findings at the conclusion of a trial of the lastmentioned counts.
The Rule 9 issues, above referred to, gave rise to lengthy voir dire proceedings, as a prelude to the trial proper. The accused sought orders excluding evidence related to the first and second series of offences and also certain identification evidence proposed to be led through the witness Flanagan. In the event, for the reasons published by me, I held that evidence as to the first series of offences and as to count nine was cross-admissible in relation to Counts 11 to 16. I declined to exclude Flanagan's evidence. The trial then went forward on that basis.
As a broad, initial comment it may be said, at the outset, that it was never disputed that one or more persons had, in fact, committed the offences alleged in counts 11 to 16, in the manner and general circumstances and at the times asserted by the prosecution. There was, in reality, only one issue agitated at trial - whether the prosecution had proved beyond reasonable doubt that the accused was one of the offenders in question, in each instance. It will, accordingly, only be necessary to deal with most of the elements of the offences charged, in fairly brief terms.
The Charges
Particulars of the charges with which I am now concerned are as follows –
Count 11
Illegal Use. (s 86A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kendall John Martin between the 28th day of January, 2001 and the 30th day of January, 2001 at Sefton Park and other places, used a motor vehicle without first obtaining the consent of the owner Barry John Koch.
Count 12
Attempted Larceny from the Person. (s 155 and s 270A of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Kendall John Martin on the 29th day of January, 2001 at Felixstow, attempted to steal from the person of Janice Shephard a handbag and contents together of value.
Count 13
Larceny from the Person. (Section 155 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kendall John Martin on the 29th day of January, 2001 at Taperoo, stole from the person of Eunice Emma Benfell a handbag containing a mobile telephone, various cards, and medication together of value and money in the amount of about $30.
Count 14
Larceny from the Person (Ibid).
Particulars of Offence
Kendall John Martin on the 29th day of January, 2001 at Northfield, stole from the person of Beryl Margaret Phillips a handbag containing a purse, a wallet, a mobile telephone, a driver's licence, and various cards together of value, and money in the amount of about $220.
Count 15
Larceny from the Person. (Ibid).
Particulars of Offence
Kendall John Martin on the 29th day of January, 2001 at Gilles Plains, stole from the person of Engelina Warbout a handbag containing a credit card, personal papers, and money in the amount of about $300.
Count 16
Assault Occasioning Actual Bodily Harm. (s 40 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kendall John Martin on the 29th day of January, 2001 at Gilles Plains, assaulted Engelina Warbout, thereby occasioning her actual bodily harm.
The concept of common purpose
The Crown case was prosecuted on the footing that, in relation to each Count, it was said that the accused was guilty of the offence in question by reason of his participation, with another or others, in a joint enterprise or common purpose, the object of which was to commit such offence. It is therefore necessary that, at the outset, I direct myself as to this legal concept.
The basic legal principle is that, if two or more persons act together in pursuance of a common unlawful purpose, every act done in furtherance of that purpose, by any one or more of them, is, in law, done by them all. In other words, the combined actions of two or more persons with a common criminal intent, which is previously agreed upon by them, will make them all guilty of the resulting crime.
In order to prove that an accused who is not the actual primary perpetrator of it, is guilty of the crime charged, it is necessary for the prosecution to prove beyond reasonable doubt that –
the alleged crime was committed;
the accused was a party to a common purpose or agreement with the actual perpetrator;
the common purpose or agreement included the commission of the crime charged; and
the accused was present at or in the vicinity of the scene of the crime, either playing his part in carrying out the common purpose or at least being ready to do so if required.
It is not, of course, necessary that the agreement be anything in the nature of a formal or express agreement. It may be merely a tacit understanding, that is to say, without even a word spoken. It may be an understanding arrived at on the spur of the moment. What is essential is that the parties to it are acting in concert or collaboration, in pursuance of the unlawful purpose.
I bear in mind that a person is criminally liable only for acts that are within the scope of the common purpose to which that person was a party. The liability extends, however, to a crime committed in the course of carrying out the common purpose, if it was within the contemplation of the parties to the common purpose that that crime would or might be committed, if the occasion arose, in the pursuit of the common purpose. This concept becomes particularly relevant for consideration in relation to Count 16.
When I hereafter refer to common purpose it should be understood that I will be addressing the evidence within the foregoing concepts, as appropriate.
The narrative facts
Many of the narrative facts relevant to this trial were not in dispute. Some facts falling in that category may be summarised in this way --
The nine offences constituting the first two series referred to above all occurred between some time during the night 26/27 February 2001 and about 7:45pm on 28 January 2001.
By his pleas the accused has admitted his involvement in a joint enterprise to commit those offences. In each instance he acted in concert with a second person and, in the case of Counts 2, 3, 5, 8, 9, and 10 he was the getaway car driver. In the case of Count 4 he was the principal perpetrator of the bag snatch which occurred.
The accused is part aboriginal and he acted in concert with another or other persons of aboriginal ancestry in the commission of the offences to which I have just referred.
At the times of their commission and thereafter until his arrest the accused had dark, relatively bushy, hair and pronounced dark eyelashes. He exhibited a substantial goatee beard several centimetres in length, including a well-developed moustache. He did not have sideburns. His appearance was as depicted in exhibit P 12.
The first two series of offences had a number of common features. These included --
(1)Counts 2, 3, 4, and 5, followed very shortly in time after the taking of the car the subject of Count 1. Similarly, Counts 8, 9 and 10 followed very shortly in time after the taking of the car the subject of Count 6.
(2)In the case of both series the relevant stolen car was used as the getaway car in relation to the commission of the associated offences.
(3)All offences of larceny from the person were committed upon older women. They were each targeted whilst on foot and, except in one instance, alone.
(4)Each such offence involved an aboriginal male approaching the victim on foot and stealing or attempting to steal their handbag.
(5)Each involved a second aboriginal male waiting in the driver's seat of the getaway car with the engine running. In each instance the handbag snatcher ran to the car after the incident and was then driven away.
(6)In each case of larceny from the person one of the two offenders was said to be, or was, a male aboriginal with a beard of some type. In relation to Counts 5 and 9 the accused specifically pleaded guilty on the footing that he was the driver of the getaway car and not the offender who snatched the relevant bag.
It is common ground that the vehicle involved in the first series of offences was a white VL Commodore. Entry to it was gained by forcing the lock mechanism of the driver's door, removing the ignition key barrel assembly from the steering column and then "hot wiring" the vehicle to start it.
The stolen handbags related to Counts 4 and 5 were each left in the relevant vehicle used in the offence and were found there when that vehicle was eventually located.
The broad factual scenarios related to counts 11 to 16 inclusive are also not in dispute. They may be summarised as under.
The witness Koch parked his white VL Commodore sedan, registered number UJS 624, in Meredith Street, Sefton Park, during the afternoon of 28 January 2001. He last saw it there at about 7pm that evening. It was missing at 7:30am the next morning. The vehicle was found abandoned about a week later and taken to the police compound at Ottoway. Forensic examination did not reveal any usable fingerprints or relevant DNA material on or in it.
The Commodore had been damaged in two respects –
(1)A hole had been punched immediately below the lock on the driver's door (as appears in exhibit P 1, photographs 3 and 4), to give access to the lock mechanism, so that it could be manipulated internally, to open the door; and
(2)The whole barrel of the ignition locking mechanism had been removed from the steering column (as depicted in exhibit P 1, photograph 6) and, to use a colloquialism, the vehicle had been "hot wired" to enable the motor to be started.
(It is to be noted that this was the method which had been employed to gain entry to and start the VL Commodore taken and used in relation to the first series of offences).
In the glovebox, there were a syringe, two screwdrivers and a stainless-steel cutlery knife, which had not been there when Mr Koch last saw his vehicle.
Three ladies' handbags were found on the floor of the vehicle at the rear of and partly under the driver's seat. (See exhibit P 1, photographs 9, 10, and 11). These were positively identified as respectively belonging to each of the three persons who were the victims of counts 13 to 15 inclusive. No usable fingerprints could be detected on any of the bags.
Ms Janice Shephard, a 62 year-old woman, attended at the Payneham Swimming Centre, for her regular swimming exercise period, early on the morning of 29 January 2001. She arrived a few minutes prior to 7 am.
Having parked her car, she walked to the entrance to the pool area, carrying her swimming bag with its strap on her right shoulder.
As she went in the entrance near the office (occupied by the witness Wrathall), she felt what she described as a "tremendous pull backwards". This caused her, in effect, to pivot around, face-to-face, with an aboriginal male about 19 or 20 years of age, who was attempting to take her bag, by pulling on its strap.
Although the strap was pulled down her arm, she resisted and called out to the man to "Stop it". This alerted Wrathall, who rapidly emerged from his nearby office.
In the event, the assailant did not gain possession of the bag. He desisted, ran to a white car which had pulled up in a vehicle bay opposite the entrance to the pool with its engine running, and got in the front passenger seat. The car door slammed, the vehicle did a big U-turn and then drove off with the tyres screeching.
So much is not in dispute. These events constituted the substance of Count 12.
Ms Shephard said that her assailant was about five inches taller than her (she being five feet five inches in height), clean shaven and fairly smartly dressed. He was wearing trainers. She felt that he had a slightly darker skin than that of the accused, as seen by her in the dock. Her assailant was very athletic looking and had long legs. She was unable to give any description of the driver of the vehicle.
The witness Wrathall saw the male person attempt to pull the bag off Ms Shephard's shoulder and heard her call out. He got up and ran after the assailant. He noted the registration number of the white car, which, he considered was a VL or VN Commodore. The registration number which he recorded was UJS 264. This was, in my view, plainly an error on his part. It was in fact Mr Koch's vehicle UJS 624.
Wrathall thought that the assailant was of aboriginal descent and about six feet in height. He was "skinny and long" and appeared to be about 18 to 20 years of age. He had a No 1 haircut, but no beard.
Wrathall recalled the driver of the Commodore as being an older person, also of aboriginal appearance, aged about 25 years. He seemed to have slightly darker skin than the assailant. However the windows of the Commodore were tinted. This witness said that the driver had a moustache and a well manicured, square cut beard, which came down several inches below the chin. He thought that it was a full beard, with sideburns.
At about 11:15am the same morning, the witness Mrs Benfell, a 70 year-old woman, was returning to her home at Lowana Terrace, Taperoo, having been on a shopping expedition.
She alighted from the bus in Victoria Road and proceeded on foot from it, along Lowana Terrace, towards her house. She eventually walked past a creamy coloured car, which had reversed back towards her on the right side of the road. She noticed one person in the vehicle on the nearside front, who appeared to have been waving his arms. She thought someone else was also in the driver's seat.
When Ms Benfell walked up to her front door and commenced to unlock it, she was pulled from behind, with one hand being placed on her left shoulder and another on the shoulder strap of her handbag, which was on her right arm. She fell to the ground and was dragged over the lawn. She called out for help. The strap of her handbag broke, her assailant pulled the handbag away from her, and he then got into the front passenger seat of the car with it. The car took off around the corner of a nearby street. Ms Benfell's handbag was later found in Mr Koch's Commodore, when it was subsequently recovered. About $30 in cash, her credit cards, some medication and her mobile telephone were missing from it.
That incident founds Count 13.
Ms Benfell was unable to provide an accurate description of either man in the car. All that she observed was that her assailant was dark skinned.
Ms Cini, a neighbour who lived opposite, was sitting on the front verandah of her house when this incident occurred. She heard Ms Benfell calling for help and ran to the fence. She noted that a white car was parked across the road and that there was some activity on the far side of it.
She observed the driver of the vehicle in profile. He appeared to be an aboriginal male with a scruffy beard, but no sideburns. He did have a moustache. His hair was dark and shoulder length (although I am not entirely certain what the witness meant by that). The driver wore a blue checked shirt, which looked like flannelette. Ms Cini obviously did not have a view of any passenger in the vehicle. She said that she was concentrating on the car and the driver more than anything else.
I move on to the circumstances related to Count 14.
At about 1:00pm on the same day, Ms Phillips, a woman aged about 69, proposed to attend a bingo session at the Gepps Cross Sports and Social Club premises at Rowe Avenue, Northfield. Having parked her car in Rowe Avenue, she walked across towards the Club premises in Duncan Fraser Reserve. She was carrying her handbag by two straps on her left arm. As she approached the clubhouse, a male person aged about 20 came up behind her and attempted to pull her handbag off her arm. She turned around, struggled to retain her handbag and called out. However, he was too strong. He took her handbag and ran over to a nearby car. She followed somewhat behind him. She noticed that there was someone in the driver's seat who opened the rear passenger door for her assailant. The latter got in and the car drove off. Ms Phillips noted the number of the car as UJS 624.
This witness said that she was running after her assailant and shouting for help, but did not get a good look at his face, although she thought that he had long hair. She saw someone sitting in the driver's seat, but did not get a good look at him. She was particularly concerned to get the number of the vehicle.
Ms Phillips recognised one of the handbags later found in Mr Koch's car as being hers. About $220 in cash was missing, as were her mobile telephone and credit cards.
Certain of these events were seen by Mr Flanagan, the manager of the Club. He was in his office. Having heard what proved to be Ms Phillips calling out, he got up on a chair and looked out of the window. He actually put his head out of it to get a better view.
He saw Ms Phillips outside calling out "I've been robbed. I've been robbed." and pointing to the road. Flanagan looked in that direction and saw a white Commodore about 20 to 25 metres distant. At that stage there was one person to be seen in it from his location. That person was sitting in the driver's seat.
Initially Flanagan saw the driver's head in profile. He appeared to be an aboriginal in his late 20s, with a black goatee beard, extending about five centimetres beyond his chin. At one point, as the car commenced to drive off, the driver turned his head and looked directly at Mr Flanagan. The driver had black hair, about shoulder length and thick, but back from his forehead. He also had big eyes and eyebrows. All of this observation occurred in a very brief period of time -- a split second, as Flanagan put it.

This witness did not see a second person. He was particularly focusing on the driver and rushed out through the front door to see if he could get the registration number of the Commodore, as it sped off down Rowe Avenue.
On 6 February 2001, this witness was shown a selection of 12 photographs in a folder, including one of the accused taken at about the time of his arrest. He identified the accused as the driver of the white Commodore.
Finally, I come to the incident which gave rise to counts 15 and 16. This occurred on the afternoon of the same day. Ms Warbout, a woman aged 79, went shopping at the Gilles Plains Shopping Centre at the intersection of North East Road and Sudholz Road. She had her shoulder bag on her right shoulder and was carrying an umbrella in her right hand.
As she walked along the footpath past the bottle shop at the Centre she felt a tug on her shoulder strap and umbrella and was pulled over and along backwards. It is common ground that this was caused by a person in a car moving alongside of her and grabbing her bag and pulling it from her. She was totally surprised and upset by what occurred and could only say that the car in question was white. She did not see anyone in it.
Ms Warbout's handbag came away from her shoulder and the car drove off. When the VL Commodore belonging to Mr Koch was later recovered, her handbag was one of the three found in it. A strap was broken and $300 cash had been taken from the bag.
As a result of what occurred, Ms Warbout's right shoulder was dislocated and fractured and she sustained wide areas of severe bruising on her right arm and shoulder and also parts of her body. Her arm sustained a gravel rash. The shoulder had to be bandaged and the arm kept in a sling for about three months. Some of these injuries are depicted an exhibit P 10, particularly in photographs 2 and 3.
It is stating the obvious to say that the circumstantial evidence before me unequivocally points to the use of the VL Commodore owned by Mr Koch and taken on the night 28/29 January 2001 as having been involved in the commission of each of the incidents giving rise to counts 12, 13, 14 and 15 respectively. Quite apart from the similar characteristics of the driver in particular, noted in relation to most of them, the description of the vehicle, the recorded registered number on various occasions and the subsequent recovery of the three handbags in the Koch vehicle, coupled with the relevant timings and modus operandi, render such a conclusion well nigh inevitable. Indeed, I did not take Mr Lang, of counsel for the accused, to argue to the contrary. The same factors also combine to indicate, unequivocally, that the driver of the vehicle in relation to counts 12, 13 and 14 must have been one and the same person. They also indicate, as the only rational and logical hypothesis, that the persons who were involved in Counts 12, 13 and 14 must have been those who were responsible for the commission of the offences charged in Counts 11 and 15.
The circumstantial evidence
As the conclusions above referred to are the product of my assessment of the combined effect of the circumstantial evidence which I have already recited and I will, in due course, be further referring to evidence of that type, it is necessary that I pause to make some comment concerning evidence of this nature.
The assessment of circumstantial evidence involves a two step process. First, it is necessary to decide what primary facts have been proved by the Crown beyond reasonable doubt. Second, it becomes necessary to consider what inference or inferences are properly to be drawn from the facts so established.
In deciding whether a particular fact has been established the whole of the evidence can be taken into account, insofar as it bears on or forms the context in which the particular aspect under consideration must be viewed. Importantly, regard must be had to the totality of the circumstances proved and the united force of all the circumstances put together. i.e. the proper approach is to assess the combined effect of all of those items of circumstantial evidence accepted and relevant to an offence; and to consider further, separately in relation to each offence to which the evidence is relevant, whether, as a matter inference, they prove beyond reasonable doubt the ultimate factual conclusions in question -- in this case the guilt of the accused of that offence.
I am particularly conscious of the overriding principle that, at the end of the day, a guilty verdict cannot be returned as to any relevant Count unless the circumstances proved are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the specific offence in question, considered separately. Not only must guilt be a rational inference from the established facts -- it must be the only rational inference that the proven circumstances enable me to draw.
The elements of the charges
I have earlier made the point that there is no real issue between the parties as the commission, by one or more persons, of the several offences now under consideration. I will therefore restrict myself to a very brief consideration of the elements of them.
It is trite to say that the onus lies upon the Crown of proving beyond reasonable doubt each essential element going to constitute the several charges against the accused and that it is not for the accused to prove anything. It is equally trite to record that each individual charge against the accused must be considered separately, in light of the evidence properly admissible in relation to it. Nevertheless, some aspects of the circumstantial evidence are, in fact, admissible and relevant as to more than one count, as I specifically indicate in these reasons.
As to Count 11 the prosecution must prove that, at the time and place alleged, the accused used the VL Commodore motor vehicle belonging to the witness Koch (in the sense of entering and driving it away or being party to a common purpose to do so) and that he did so without the consent of its owner. In the instant case it is beyond question that, at the times and places alleged, some offender or offenders did use the vehicle belonging to Mr Koch in the relevant sense; and that this was done without his consent. The sole issue in contention is whether the accused drove it away or later drove it in relation to the commission of one or more of the bag snatching offences, or was party to a joint enterprise to do so.
As to Counts 13, 14 and 15 the Crown must prove that, on each of the occasions in question, the accused stole the items referred to in the relevant charge from the person of the victim named. In the context of this case the prosecution must prove, as to Counts 13 and 14, that the accused was party to a common purpose to carry out the relevant offence, by being the driver of the getaway vehicle, the actual taking of the relevant items having occurred at the hands of a co-offender with whom he was said to have been acting in concert. In the case of Count 15, it is not clear who was the driver and the Crown must prove that the accused was party to a common purpose to carry out the offence, by being either the driver or the person who actually snatched the bag.
The prosecution is required, in relation to each charge separately, to establish that the accused was party to a common purpose the object of which was to, dishonestly and without the consent of the owner of the items in question and any claim of right to those items made in good faith, deliberately take and carry away the property of the owner in question, with the specific intention, at the time of taking, of permanently depriving that owner of the property. It must further be shown that the property was actually taken from the physical person and possession of the owner.
Once again, there is simply no dispute that two offenders, acting in concert, committed the offences in question on each of the occasions asserted. The evidence abundantly demonstrates such a situation and I need not further dilate upon it. The sole question remaining for consideration is as to whether the Crown has proved beyond reasonable doubt that the accused was one of the offenders in each instance.
The 12th Count asserts attempted larceny from the person. This concerns the incident involving the witness Shephard. Here the prosecution is required to prove that, on the occasion in question, the accused was party to an attempted common purpose, the object of which was to steal from the person of Ms Shephard her handbag and its contents.
To make good that charge the prosecution must establish that the accused and his alleged co-offender positively intended to commit the alleged crime of larceny from the person (the elements of which I have referred to above) in relation to Ms Shephard and that, in order to carry out that intention, performed an overt act or acts immediately ( and not merely remotely) connected with the actual commission of the proposed offence and designed to effect it. It matters not that the acts proved ineffectual.
Here, also, the facts demonstrate beyond doubt that there was an attempt of the nature alleged, perpetrated by two offenders acting in concert. This was not challenged by Mr Lang. The only issue is as to whether it has been demonstrated by the prosecution, beyond reasonable doubt, that the accused was one of those persons.
Finally, there remains Count 16. The prosecution contends that, in the course of the commission of the offence constituting Count 15, one of the offenders committed an assault on Ms Warbout, occasioning her actual bodily harm. To make good this Count the Crown must prove that one of the offenders committed an assault on Ms Warbout, that the possibility of an assault of the type in question must have been in the contemplation of the parties to the common purpose at the time it was agreed upon and that the assault in fact caused a more than trivial injury to the victim. It is trite to say that an assault consists of the deliberate application of force, without lawful excuse, to a victim. The injury actually flowing from such an application of force need not have been intended by the person applying the force.
There can be no doubt, on the evidence, that one of the perpetrators of the offence constituting Count 15 did commit an assault on Ms Warbout which resulted in the occasioning to her of actual bodily harm. The inevitable and only reasonable inference from the evidence is that it must have been in the contemplation of those perpetrators that the commission of the offence would almost certainly have involved the application of force (by pulling on the strap of her handbag) constituting an assault upon the victim which, having regard to the age of the victim, could well have occasion her actual bodily harm. That is exactly what happened. Mr Lang, quite properly, did not set out to challenge any of those propositions. The only issue which arises is the same as that in relation to all other offences -- whether the Crown has proved beyond reasonable doubt that the accused was one of the perpetrators.
The stance of the accused
In addressing this aspect there are several matters to be noted.
As appears from my Rule 9 ruling, the accused declined a request by the investigating police to participate in a line-up or identification parade. He also declined, on legal advice, to answer questions in the context of a formal record of interview.
I note that it was his legal right to adopt both of these stances. His refusals are not to be viewed adversely to him and I draw no inferences of that type against him.
The accused also elected not to give evidence at trial. Once again, that was his right and no inference adverse to him is to be drawn by virtue of his exercise of it.
He comes before the court with a presumption of innocence in his favour and bears no onus of proving anything.
In essence, the primary defence case consisted of an attack on the validity and weight of the identification evidence and a pointing up of what were said to be certain inconsistencies of description reported by various witnesses (particularly as to hair length and the existence of sideburns); and in contrasting the evidence pertaining to the first series of offences and that related to Count 9, on the one hand and the evidence bearing on counts 11 to 16, on the other. Mr Lang also referred to the brief opportunities which the witnesses who gave oral evidence had of viewing the characteristics of the offenders, the limited observations of the getaway drivers and the fact that Flanagan had only a fleeting look at the driver from a considerable distance away. Whilst he did not attack the honesty of the various witnesses, and Flanagan in particular, he argued that the eyewitness identification evidence was not of sufficient quality and weight to found a safe identification.
Mr Lang also argued that the evidence related to Flanagan's photograph identification was less than satisfactory, because of what appeared to be the time taken, an associated apparent hesitancy and also the interchanges between Flanagan and Lockwood, which, he said, were highly suggestive of some lack of certainty on the part of the former. He stressed the inability of any other witnesses to make a photographic identification of the accused in relation to Counts 11 to 16.
Finally, Mr Lang contended that the evidence allowed as cross admissible simply fell short of establishing the unity required to constitute it circumstantial evidence of value or weight, which justified its use in the manner contended for by the Crown. There was, he said, nothing so uncommon in the various factors, considered either singly or in combination, as to attract the basis of admissibility and proof adverted to in Pfennig. Further, in relation to the second series of offences, the type and manner of taking of the car was quite different from the other two vehicles and also involved a high-speed chase, after it was taken.
It will be convenient to deal with most of these aspects in reviewing the identification evidence generally.
An issue of identity
It is therefore seen that a single issue arises in relation to all of the charges before me.
I have already made the point that I am satisfied beyond reasonable doubt, on the whole of the evidence, that all of the offences currently under consideration were committed by the same two offenders acting in concert. I therefore need not pause further to reflect upon that aspect of the case.
The Crown presents its case against the accused, as to identity, on two separate, but potentially reinforcing, bases.
First, it contends that there is positive evidence of the identification by Flanagan of the accused as one of the offenders in relation to Count 14, which is strongly reinforced by the other relevant circumstantial evidence arising in relation to counts 11 to 16 inclusive. Mr Henchcliffe says that this alone is adequate to found verdicts of guilty against the accused.
Second, it argues that the cross admissible evidence related to the first series of offences and Count 9, when considered in concert with the evidence related to counts 11 to 16 inclusive, gives rise to the situation that the only logical and rational hypothesis which emerges, on the whole of the evidence, is that the accused was one of the offenders as to each Count -- even if the evidence of Flanagan, considered alone, is an inadequate basis upon which to arrive at a conclusion of guilt.
I will consider each of these aspects in turn. In doing so I am acutely conscious of the strictures which fell from the High Court in Domican v The Queen (1991 -- 1992) 173 CLR 555 at 561-562. (See also what fell from the Court of Criminal Appeal in The Queen v Coxon [2002] SASC 165). It is manifest that there are always inherent dangers attendant upon convicting on evidence of identity, where such evidence is disputed.
I therefore bear well in mind the fact that evidence of identification of the type now under consideration must always be approached with great caution. I particularly to take into account the following aspects --
It is easy for an honest witness to make a mistaken identification and experience has shown that miscarriages of justice have occurred as a result.
Witnesses can be mistaken, even though quite sure of their identification. A mistaken witness who is sure of his identification can be a convincing witness and this factor must be taken into account.
The ability to form and retain an accurate impression of the culprit including his physical appearance and features, his dress, or any other distinctive features, may be affected by many factors, including the witness's involvement in the incident as well as the frailty of human observation and memory and a tendency to reconstruct the events in the mind over a period of time.
It is important to examine carefully the precise circumstances in which a purported positive identification was made. Relevant factors to be taken into account are the period for which the person identified was under observation, the distance at which the person was observed, any impediments in terms of lighting or otherwise which might need to be taken into account, whether the witness has ever seen the person identified before, whether there was anything distinctive about the appearance of the person identified, the time which may have elapsed between the observation of the person identified and the subsequent identification to the police, the presence of any material discrepancy between the description given to the police and the accused's actual appearance, and whether anything may have occurred between time of observation and identification which could have contaminated the witness's memory of the person identified. I particularly bear in mind the specific criticisms made by Mr Lang, as recited above. These focus on important aspects such as the brief periods of observation, the rapidly developing scenarios at the relevant times, the distances over which observations were made, and some asserted inconsistencies in observation.
The most reliable evidence of identification is that obtained when the witness indicates the accused as the offender in the context of a formal identification parade, properly organised. A dock identification is not, normally, an acceptable primary method. If for some reason it is not feasible to organise an identification parade then an identification by reference to an appropriate selection of photographs is permissible. However it must be borne in mind that this is not as reliable as the identification parade method. The reason for that is the so-called "displacement effect" referred to by Stephen J in Alexander v The Queen (1981) 145 CLR 395 at 409. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace the original memory. Moreover, any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.
I first turn my attention to Count 14 and the purported identification of the accused by the witness Flanagan. In doing so I make the initial point that no criticism is to be levelled at the police officers for resorting to a photographic identification method, rather than an identification parade. I have dealt with this aspect in some detail in my earlier ruling and there is no requirement to repeat what I there said.
Both in the course of his cross examination and his address Mr Lang sought to demonstrate that the purported identification by Flanagan of the accused as the driver of the relevant car was one which could not safely be acted upon. He stressed that the initial observation by Flanagan was only fleeting, in terms of time, and was made at a distance of about 20 to 25 m. As above recited, he also contended that the evidence related to the occasion on which the photographic identification was made indicated some uncertainty on the part of Flanagan and that his subsequent statements both to the police and in court indicated an unacceptable degree of uncertainty (or at least unreliability) as to the identification made.

As I have earlier indicated, I regarded Flanagan as an impressive, reliable, and careful witness. It is important to note that, although his observation of the offender was fleeting and at some distance, he nevertheless gave an initial description of the driver of the white Commodore which was both reasonably detailed and also apt to describe the accused. It is true that he described the driver as having had black hair, thick, but back from his forehead, and about shoulder length. But a glance at the photograph exhibit P 12 instantly reveals that this, particularly when coupled with his description of the age, aboriginality, black goatee beard and the eyes and eyebrows of the accused amounts to a surprisingly accurate summation of the latter's appearance, especially when the accused may have been seen from a distance. It is specifically to be noted that the accused did have a receding hairline across the forehead and thick black hair which may well have given the impression, at a distance and with the vehicle moving, of a much longer hairline at the back than was in fact the case.
Flanagan was cross-examined at some length concerning his identification, but essentially reiterated what was recorded in my earlier ruling. It is true that he took his time in making the identification, but said, in evidence, that he just wanted to be certain. I accept that this was no more than a manifestation of his obvious careful and responsible attitude. He did not have difficulty in identifying the accused -- he was, he said, 99 percent certain. He made a dock identification of the accused, given that, as he pointed out, the latter no longer wore a goatee beard. In accordance with the authorities I do not place a great deal of weight on that dock identification as such, although it was certainly appropriate for a confirmatory dock identification to be made and some regard must be had to it. (Jokic v Hayes (1990) 53 SASR 530 at 536).
Flanagan agreed that, in making the identification, he said to the police officer Lockwood "If I was going there, that would be the bloke, No 8 [ie the accused's photograph]". He indicated that all that he meant by that was that, if the offender's photograph was in the folder, it would definitely be the person No 8. He agreed that, when he made the identification, Detective Senior Constable Lockwood said to him "Fairly certain?", to which he replied "Ah. Never be 100 percent, but I mean I can show you where I actually saw him, where the car was, he was driver, he was -- I didn't actually see the bloke rip the handbag off, he was just the driver of the Commodore".
I closely considered the evidence of this witness at the time he gave it. I repeat, he was a careful and impressive witness, who was seeking to convey an immediate, positive and unequivocal identification of the accused as the driver. He simply made the point that 100 percent certainty, in pedantic terms, was never possible, but he made it abundantly clear to me that he entertained no doubt of the immediateness and correctness of his recognition of the accused when he looked at the folder of photographs.
Even giving careful consideration, as I must, to the factors in this case previously referred to, which require caution in accepting evidence of photographic identification, I am abundantly satisfied that Flanagan did, on the occasion in question, have a sufficient opportunity to observe and note the characteristics of the accused’s head and face as to constitute a proper basis for him to accurately identify the latter's photograph, as he later did. I am reinforced in that conclusion by the other circumstantial evidence related to Counts 11 to 16 inclusive, although I would have been prepared to arrive at it absent that material.
I have earlier made the point that such circumstantial evidence leads to the inevitable conclusion that the same offenders were involved in the commission of all of the offences charged by those counts. Accordingly, any observations of other witnesses which tend to support the identification made by Flanagan are of relevance. (See the reasoning in The Queen v Coxon (supra)).
It is noteworthy that the witnesses Wrathall and Cini, who respectively had an opportunity to observe the driver of the getaway vehicle in relation to one of two other offences, described that person in terms which were consistent with the presentation of the accused. It will be remembered that Wrathall described him as being a male person of aboriginal descent aged about 25 years, who had a moustache and a well manicured, square cut beard, which came down several inches below the chin. Ms Cini also described the driver as a dark haired aboriginal male with a beard, and moustache, but no sideburns. She thought the beard looked scruffy, although she only saw the driver in profile.
I certainly note that Wrathall did have the impression that the driver seen by him had sideburns and that Ms Cini thought the driver's hair was of shoulder length. I do not think that these aspects militate against the relevance of the remainder of the observations made, which, in my opinion, serve to reinforce the accuracy of the observations and identification made by Flanagan. In each case the observations occurred over a brief period of time and the presentation of the accused was such that, bearing in mind his presence inside the vehicle with tinted windows, he may well have given the impression of the lastmentioned features, dependent upon the angle from which he was viewed. I do not think that the differences detract from the general support lent by the observations in question, particularly bearing in mind what is seen in the photograph exhibit P 12.
The cross admissible evidence and its bearing on Count 14
For the reasons expressed by me in my ruling published on 15 October 2002, certain evidence related to the first series of offences and Count 9 was cross admissible for present purposes. That material is to be found in the agreed booklet of declarations, exhibit P 13. I have already summarised some of the key common features arising in relation to these. Those features fall to be contrasted with the scenarios related to Counts 11 to 16, as I have summarised them.
Two striking features which arise, on the whole of the material relating to all three series, are that all of the offences of larceny from the person and the attempted larceny from the person took place over a very short period of time. This extended from about 7am on 27 January 2001 to about mid-afternoon on 29 January 2001 i.e. over a period of approximately 56 hours or so; and, although three successive vehicles were involved, the modus operandi employed was essentially the same in each instance. Indeed, it is to be noted that the type of vehicle employed in the first and third series of offences was the same, as was the method of gaining entry and operating the motors. No less than seven offences of a similar nature were committed or attempted in the timeframe in question, with bag snatching activities almost immediately following the taking of a relevant motor vehicle used in relation to them.
What is equally striking is that the victims selected were all older women, on foot, and save in one case, walking alone. In every instance the offence consisted of bag snatching and, in most instances, the ransacked handbags were left in the vehicle used to commit the offence. In the majority of cases the offenders were identified as being of aboriginal descent, one being of a slightly younger appearance than the other and one being clean shaven, whilst the other had a goatee beard and moustache. One of those offenders was involved in the actual bag snatching whilst the other remained in the getaway car with the engine running.
In my earlier ruling I had this to say --
"It is trite to say that evidence of similar acts on other occasions is inadmissible, if it does no more than indicate that an accused is a person with a propensity for committing the kind of offence with which he is at present charged (R v Blackledge [1965] VR 397 at 398). Evidence of that type is usually only admissible where it can be demonstrated that the similarity between the features of the various offences is beyond mere coincidence and there is no reasonable explanation of that similarity consistent with the innocence of the accused (Sutton v The Queen (1983-1984) 152 CLR 528). There must be a cogent, inherent probative force in the circumstantial evidence to be led, thereby establishing the objective improbability of a relevant event having occurred, other than as asserted by the prosecution (see McHugh J in Pfennig v The Queen [1994-1995] 182 CLR 461 at 484).
The authorities render it clear that evidence of proven similar facts may properly be led for reasons other than proof of propensity. It may be relied upon, in relevant circumstances, to establish an underlying unity, or a system or pattern of offending, such that it raises, as a matter of commonsense and experience, the improbability referred to by McHugh J. (see also the joint judgment in Pfennig at p 482).
Where the identity of the offender is the key issue, the approach espoused by the Full Court of the Supreme Court of Victoria in Blackledge is apposite. Evidence of the nature of similar acts is admissible if there is such a marked similarity or connection between them that one can detect in them, as a whole, a system or technique which is capable of leading to the reasonable inference that it was the same person who had committed each. The Full Court accepted an earlier dictum to the effect that, while a mere similarity of method is not sufficient to establish the identity of a man who is alleged to have committed two or more offences, there may be so many similarities that the question passes the stage of mere similarity. It may become possible, from the technique employed and "the singular peculiarities of a number of features common to all of the offences", to draw the inference that it was the same person who was involved in the commission of each of them."
I have already made the point that, even absent the cross admissible material, I am satisfied beyond reasonable doubt that Flanagan's evidence as to identity is accurate and that, accordingly, the Crown has proved its case as to Count 14 against the accused beyond reasonable doubt.
However, if I be considered incorrect in such a conclusion, it seems to me that the cross admissible evidence, when thrown into the scales with the whole of the evidence led in relation to the lastmentioned Count, inevitably leads to the same conclusion by a different route.
Having regard to the features which I have above identified this seems to me to be a classic illustration of the Blackledge approach.
One commences with the proposition that the pleas entered by the accused confirm, beyond any doubt, his involvement in the series of offences evidenced by Counts 1 to 5 inclusive and Count 9. In any event, a consideration of the material available in relation the counts in question indicates that the pleas were no more than a recognition of the inevitable impact of an application of the reasoning of McHugh J in Pfennig.
Given that situation, a review of the whole of the material before me, including the cross admissible material, abundantly illustrates the existence of the singular peculiarities of a number of features common to both the first series of offences and Count 9, as well as Count 14 which warrants the drawing of a conclusion that it was the same person, namely the accused, as one of the persons executing a common purpose, who was involved in the commission of all of them -- in most instances as the getaway driver. The evidence establishes a clear underlying unity or system or pattern of offending such that it raises, as a matter of commonsense and experience, the objective improbability of the relevant offences having occurred, other than as asserted by the prosecution.
The situation related to Counts 11, 12, 13, 15 and 16
The lastmentioned reasoning is no less applicable to these Counts. Such is the underlying unity or system or pattern of offending that the same objective improbability arises in each case. Moreover, a conclusion that the accused was the getaway driver in relation to Count 14 inexorably leads to the conclusion that he was also one of the co-offenders related to each of the other offences comprising the third series. There can be no doubt that, on the evidence, the VL Commodore taken from Mr Koch was the vehicle used in each of these other offences, both by virtue of the observations of the various witnesses earlier recited, coupled with the finding of the three handbags in the vehicle when it was ultimately recovered. The descriptions of the two persons involved, where relevant, are all consistent in the sense that they serve to confirm that it was the same two aboriginal men who were involved on each occasion on which observations of the occupants of the car were made. The relative timings between the commission of the offences are also compelling pointers in the same direction. In any event, a conclusion that the accused was the driver of the Koch vehicle in relation to Count 14 automatically establishes his guilt in respect of Count 11, even if he did not originally take the vehicle. He was plainly guilty of illegal use on the former occasion.
In arriving at the foregoing conclusions I by no means ignore the fact, apropos Count 15, that no one gave evidence of having observed the occupants of the white car. However, bearing in mind the very short time which elapsed between the respective incidents the subject of Counts 14 and 15 respectively, the relative geography involved, the fact that the Koch car was plainly used (bearing in mind the finding of the victims' handbags in it) and the nature of the bag snatch from an elderly, unaccompanied female pedestrian, it is unreal to suggest, as a reasonable possibility, that some change of personnel in the car occupants could well have taken place.
Verdicts
On a careful review of the whole of the evidence before me and for the reasons above expressed I conclude that the prosecution has proved beyond reasonable doubt both the commission of the several offences constituting Counts 11 to 16 inclusive and that the accused was a party, with one of more other persons, to a common purpose to commit them.
I therefore record verdicts of guilty against him in respect of each of those Counts.

[2002] SASC 375

12 November 2002