R v Pike - [2013] SADC 121

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PIKE
Criminal Trial by Judge Alone
[2013] SADC 121
Judgment of His Honour Judge Boylan
30 August 2013
CRIMINAL LAW
Accused charged with aggravated serious criminal trespass (residential) and theft.
Issue: identifiction and recognition
Verdicts: guilty
Evidence Act 1929 s 34P(4), referred to.

R v PIKE
[2013] SADC 121

Jason Tyler Pike is charged with an offence of aggravated serious criminal trespass in residential premises and theft. The particulars of the offences are:
Jason Tyler Pike on the 5th day of June 2012 at Mawson Lakes, entered a place of residence of Jenny Maye Page as a trespasser, with the intention of committing an offence therein, namely theft.
It is further alleged that Jenny Maye Page was lawfully present in the place of residence and that Jason Tyler Pike knew of her presence in the place.
Jason Tyler Pike on the 5th day of June 2012 at Mawson Lakes, dishonestly dealt with property, namely an iPad, without the consent of Jenny Maye Page, the owner of that property, intending to deprive Jenny Maye Page permanently of the property.
Mr Pike pleaded not guilty and I heard his trial without a jury. I now set out the reasons for my verdicts.
There is no dispute that, at about 4.15 am on 5 June 2012, a man broke into Mrs Page’s house at 20 Lomond Circuit, Mawson Lakes and stole an iPad from Mrs Page’s kitchen bench. There is security film of some of the intruder’s activities on and about the premises and Mrs Page saw him in her house.
The issue in this case is identity: has the prosecution proved beyond reasonable doubt that the intruder is the accused?
The prosecution case
The security film shows the intruder approaching the Pages’ house and walking onto their property, passing three cars parked in front of their garage doors as he does so. It shows him examining items on a table in an outdoor kitchen area. He eventually entered the house through an unlocked door.
In build and height the intruder’s appearance matches the accused’s.
Mrs Page, who had gone downstairs to get a drink, saw the intruder, albeit fleetingly, at her kitchen bench. She was about three metres from him in an area that was dimly lit. She said it was ‘half light but he was quite clearly visible’. She described him as being of average build – neither thin nor short and ‘not of imposing stature’. She estimated that he was about five foot 10 inches tall. He had dark skin and looked clean shaven; there was no hint of stubble. She did not think that he was wearing gloves but his hands were covered by his sleeves. He was wearing a navy blue track jacket with white stripes down the sides - she thought two stripes - jeans and white or light-coloured sneakers. The security film shows the intruder wearing a hooded jacket with white stripes on each sleeve. Mrs Page said that he was wearing a hood which was pulled down so that she could only see the lower part of his face.
When Mrs Page first saw the intruder she panicked and yelled at him. He gasped and made for the door. Mr Page came downstairs and soon noticed that their iPad was missing from the kitchen bench. Some 15 minutes later, Mrs Page rang the police.
At about 4.35 am, Constables St Clair and Jedrejczak were on uniform mobile patrol in a police car in Mawson Lakes and were driving along Garden Terrace near its junction with Station Lane. That location is not far from the Pages’ house. Constable St Clair saw a man run across Garden Terrace and into Station Lane. At that stage, St Clair was unaware that there had been a trespass offence committed at Lomond Circuit. St Clair turned the police car into Station Lane and Constable Jedrejczak saw a man apparently hiding from them in Fisher Place, a street which runs off Station Lane. The man was crouching between two cars parked outside an apartment block. Doors to the block of apartments at 9-11 Hurtle Parade open onto Fisher Place. The police did a u-turn and drove towards the man. St Clair got out of the car and saw the man stand and walk quickly towards the glass entry doors. St Clair ran after him. The man was holding what seemed to be a lanyard with a swipe card attached to it. He used the swipe card and then pulled the door to the apartment block open and entered the foyer. Once inside he turned to pull the door shut. St Clair, who had been about three metres behind the man when he opened the door, arrived at the door as the man was pulling it shut. The man was then facing St Clair, who had an unobstructed view of his face from the eyebrows down. The man had bushy eyebrows, dark skin, facial stubble and protruding ears. St Clair immediately recognised him as the accused Jason Pike. The man was wearing a beanie and a dark coloured track top with white stripes down each sleeve. St Clair had never seen the accused in person before but had seen his photograph on many occasions, mainly at police intelligence briefings, because Pike was a man of interest to police.
St Clair could not open the door. He watched the accused walk a couple of metres across the foyer to a door which opened into the stairwell and the car park beyond. The man opened the stairwell door and went through it. Before he shut it, he looked back at St Clair. Both St Clair and Jedrejczak, who was also on the street at the entry door, saw the man’s face before he disappeared behind the stairwell door. St Clair ran up and down two sides of the building looking for the man. Jedrejczak stepped back onto the roadway and, no more than 30 seconds after the man had disappeared into the stairwell, saw a light go on in an apartment on the first floor. There is no dispute that that apartment is number 5.
Jedrejczak did not recognise the man who ran into the apartment block, although she had seen photographs of the accused. She had been slightly behind St Clair as he chased the man but was so close to St Clair that she, too, had her hands on the entry door handle when St Clair was trying to pull it open. Constable Jedrejczak said the man had quite prominent, bushy eyebrows and was not clean shaven; he may have had a bit of stubble. He was about six feet tall and slender. She noticed a black hooded jacket and a dark grey beanie. The jacket had three very distinctive white stripes down each sleeve. She made her first observations of the accused from about a foot away. At the entry doors, she estimated she observed him for two to three seconds and, when he was at the stairwell door, for one to two seconds. Her evidence was that she had not seen the man before.
Sometime later, probably about 15 minutes, other police arrived. It was then that Constable Jedrejczak paid closer attention to an item found where the man had been crouching between the two cars. There is no dispute that it was the Pages’ iPad.
The light was still on in apartment 5 when the first patrol car arrived in response to St Clair’s and Jedrejczak’s call for assistance. Later, perhaps about 5.00 am, police officers gained access to the building and went to apartment 5 where an officer spoke to a young male occupant. It turns out that he was Robert Wills, the son of the accused’s partner, Sylvia Wills. Still later, after they had obtained a search warrant, police searched the apartment but found no sign of the accused.
Later on the same day, at about midday, Constable Putsey was in an unmarked police vehicle on Martin Road at Salisbury Downs when he saw a man jump a temporary security fence surrounding an abandoned house. Putsey immediately recognised the man as the accused as he had spoken to him face to face on two occasions in the previous two months and had seen photographs of him on as many as 30 occasions. Although he was some 35 metres from the man whom he identified as the accused when he first saw him, Putsey was quite positive that that man was the accused. Putsey and his partner turned the police vehicle to follow the man but lost sight of him. At the time, Putsey knew that the accused was a suspect for the trespass at the Pages’ house but had no information about what the intruder had been wearing.
The man was wearing a dark beanie and a jacket, which Putsey recorded as having been a black Adidas jacket, blue jeans and white sneakers. Putsey had no specific memory of the jacket but gave evidence that he recorded it as having been an Adidas jacket on account of his having seen either the Adidas symbol or the three stripes which are distinctive of Adidas clothing. I heard no evidence about the size or appearance of the ‘Adidas symbol’.
The accused was arrested on 29 June 2012 at the premises of Ms Sylvia Wills at Ingham Way at Salisbury Heights.
The prosecution relies principally upon Constable St Clair’s recognition of the accused as the man who had been crouching between the two cars. Owing to the finding of the laptop computer where he had been standing, the prosecution, of course, asserts that that man was the intruder. I am satisfied beyond reasonable doubt that the man crouching between the cars was the man who had broken into the Pages’ house. I make that finding because he was in possession of the stolen iPad, was less than a kilometre from the Pages’ house when he was spotted by police and was wearing clothing identical to the clothing shown on the security footage and as described by Mrs Page. In addition to relying on Constable St Clair’s purported recognition, the prosecution relies upon the circumstance that both the accused’s stepson and the accused’s de facto wife, Sylvia Wills, were in the apartment in the early hours of the morning shortly after the man had run into the apartment block. The prosecution also relies upon the fact that a light came on in that unit seconds after the man had disappeared behind the stairwell door and upon the fact that Putsey, on the prosecution case, saw the accused later on the same day wearing clothes apparently identical to those worn by the intruder.
Some months later, Constable St Clair picked the accused’s photograph in a photo board identification procedure. I have ignored that evidence completely owing to its patent unreliability.
The defence case
Mr Pike did not give evidence. That was his right. I have drawn no inference adverse to him for choosing to exercise that right. There may be many reasons why he chose not to give evidence and I have not speculated about them. I have always borne in mind that the onus is on the prosecution to prove the whole of its case beyond reasonable doubt. Mr Pike does not have to say, prove, or do, anything. Moreover, he is presumed innocent unless and until I am satisfied that the prosecution has proved beyond reasonable doubt each element of the charged offences.
Although there was no evidence on the topic, I was told in addresses that the accused declined to answer questions upon his arrest. That was his right and I have drawn no inference against him because he chose to exercise that right.
Although he did not give evidence himself, Mr Pike called one witness, his stepson, Robert Wills.
Robert Wills was the tenant of apartment 5, 9-11 Hurtle Parade, a one bedroom unit on the first floor. The front door to his unit opens from a corridor into a long room with the kitchen immediately inside the entry door. Beyond the kitchen, is a lounge room which opens onto a balcony which, in turn, overlooks Fisher Place. The bedroom is off the lounge.
Mr Wills uses a swipe card or key to enter the building. When he moved in he was issued with only one swipe card but it was not in his possession on the relevant night; he had left it in a car owned by another brother.
The swipe card allows entry to the main door onto Fisher Place, to the lift and to the door to the stairwell on the ground floor. The first floor door from the stairwell into the corridor outside Mr Wills’ unit requires a key; there is no swipe card facility to exit the stairwell there. No key or card is needed to get into the ground floor car park from the stairwell.
At about 8.30 pm on 4 June 2012, Mr Wills arrived at the unit with his mother, Sylvia Wills, the accused’s partner, and his 11 year old younger brother. The three of them slept in the unit that night, Mr Wills in his bedroom and Sylvia Wills and her younger son in the lounge.
At about 5.00 am, the time when the police officers knocked on his door, Robert Wills was asleep. He woke and got up. The unit was in darkness except for light from the television. It was so dark that Mr Wills had to turn a light on to get to the door. His evidence was that his mother and brother had also been asleep and were woken by the police.
Between 8.30 pm and the arrival of the police, no-one else came to the unit.
A day or so later, Mr Wills retrieved the swipe card from his brother. It had nothing attached to it.
Credibility of Robert Wills
Mr Wills was an unsatisfactory witness. Despite saying that he had always wanted to assist the accused, he did not contact the police officer who spoke to him or left a card for him. His evidence about the light does not sit with the evidence of police officers that a light in the unit came on shortly after the intruder disappeared from sight into the stairwell and that the light stayed on. Either he was untruthful about the light or he slept through a period during which the light was on. If so, his evidence does not assist the accused.
My rejection of Robert Wills’ evidence does not provide a basis for conviction of the accused. The onus of proof remains always upon the prosecution.
I have no doubt that someone in apartment 5 turned a light on shortly after the intruder disappeared into the stairwell. In my view, those two events are connected. I cannot know precisely how. The fact that police officers did not find the accused in unit 5 or elsewhere in the building does not exonerate him. He had an opportunity to leave the building through the car park before back-up police patrols arrived, or he could even have been in another unit. I have not overlooked the fact that there was no evidence before me whether, to leave the car park, a pedestrian would have to operate some sort of roller door or gate or whether there is egress through a pedestrian door.
There is no evidence that the man who ran into the apartment block had a key to the stairwell doors.
Reliability of recognition evidence
I turn to the reliability of the recognition evidence of Constable St Clair.
Observation conditions were good when St Clair saw the man’s face. There is a street light right outside the entry doors but I do not know whether or not it was on. The police car, with its headlights on, was parked almost opposite and parallel to the doors. Much more importantly, the foyer was very well-lit. Both Constables St Clair and Jedrejczak saw the intruder in good light through a plain glass door. They had a clear and unobstructed view of his face both when he turned to pull the entry door shut and when he turned back to look at them before closing the stairwell door. Of course, each officer saw the intruder only for a few seconds.
Constable St Clair had never seen the accused in person before but, as I mentioned earlier, he had, on many occasions, seen photographs of the accused. For some weeks before the trespass offence at Mawson Lakes, police had been on the lookout for the accused and had displayed photographs of him at regular intelligence briefings. St Clair had also seen photographs of the accused on his computer. He had become very familiar with the accused’s face and saw the intruder in the foyer in very good light.
Although this is not a true identification case in the sense of the prosecution’s asking the court to rely upon purported identification by a witness of a stranger, possibly seen only fleetingly, I have directed myself about the dangers of identification evidence generally, including the possible dangers of recognition evidence. It has been the experience of the courts that credible and honest witnesses giving evidence about identification and recognition can be both persuasive and wrong. In the case of recognition from photographs, there is the added danger that a photograph may present a distorted picture of the subject. A photograph, for example, does not record height or build, and the lighting in which it is taken may reflect poorly upon its quality. I have taken all of those matters into account. Having done so, I find that Constable St Clair’s evidence is reliable and I accept it as positive evidence of recognition.
Constable Jedrejczak’s description of the man matches the appearance of the accused, especially the bushy eyebrows.
I have not used Constable Putsey’s evidence at all because he was unable to be sure of the feature of the accused’s jacket which led him to believe that it was an Adidas jacket. Accordingly, I cannot use his evidence as tending to show that the accused’s jacket had stripes on the sleeves as did the intruder’s.
Conclusion.
For reasons already given I am satisfied beyond reasonable doubt that the man who ran into the apartment block was the intruder at the Pages’ house. On the basis of Constable St Clair’s recognition of that man, Constable Jedrejcazk’s description of him and the accused’s connection with people in apartment 5, I am satisfied beyond reasonable doubt that the intruder was the accused.
As there is no dispute that the offences of serious criminal trespass in a residential building and theft were committed, I do not set out the elements of those offences. Those offences have been proved.
I am also satisfied beyond reasonable doubt that the offence of serious criminal trespass was aggravated. As the accused walked onto the Pages’ property he walked past, and must have seen, three cars parked outside their garage doors. The film shows that, before he went inside the house, the accused examined a table top in an outdoor kitchen and dining area. Photographs show that there were on that table cigarette packets and ashtrays with butts in them. It was about 4.15 am. Owing to the time, the presence of the cars and the items on the table, I am satisfied beyond reasonable doubt that, at very least, it crossed the accused’s mind that there were people in the house and that he entered it anyway. Thereafter, his offence is an aggravated one.
Discreditable conduct notices
The Director of Public Prosecutions filed two discreditable conduct notices pursuant to s.34P(4) of the Evidence Act.
I admitted the evidence the subject of the notices. The evidence that the accused was wanted by police for offences committed before the two charged offences and that, in connection with those earlier offences, police officers had been shown photographs of him, tends to show that he is or may be guilty of offences other than those charged. That is, the evidence could be used as propensity evidence. Such a use in this case is impermissible. But the evidence has a permissible use: to prove how it was that the relevant police officers were familiar with the accused’s appearance. The probative value of the evidence for that purpose substantially outweighs any prejudicial effect it may have. By using the evidence for no purpose other than the permissible one, I have been able to keep the evidence sufficiently separate and distinct from the impermissible use and so remove any risk of my using it impermissibly. I have used the evidence only for the permissible purpose.
The evidence that the relevant police officers were familiar with the accused’s appearance both from photographs or from earlier dealings with him is essential to my reasoning leading to a finding of his guilt. Accordingly, I have directed myself that I cannot use the evidence unless on the whole of the evidence, the facts in proof of which the evidence is admitted, is established beyond reasonable doubt.

The evidence the subject of the second notice is the evidence of the accused’s hiding from the police, fleeing from them and concealing evidence, namely, the iPad. No objection was taken to any of that evidence. While I have considered the evidence against the accused in respect of each charge separately, the evidence in support of each is plainly cross-admissible. The evidence the subject of the notice tends to show that the accused’s association with the iPad was a guilty association. Evidence of such a guilty association is admissible in respect of both counts.
I have not used any evidence as propensity evidence
I enter verdicts of guilty on both counts