R v Pikula
[2020] ACTSC 265
•3 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pikula |
Citation: | [2020] ACTSC 265 |
Hearing Dates: | 22 – 25 June 2020 |
DecisionDate: | 3 July 2020 |
Reasons Date: | 13 October 2020 |
Before: | Loukas-Karlsson J |
Decision: | The accused is not guilty of the single count in the indictment dated 19 June 2020 |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – aggravated robbery – Circumstantial Case – Identification of accused – photo board identification by the complainant – not guilty verdict |
Legislation Cited: | Criminal Code 2002 (ACT) s 309, 310 Evidence Act 2011 (ACT) ss 116, 137, 165 Supreme Court Act 1933 (ACT) ss 68B, 68C |
Cases Cited: | Domican v The Queen (1992) 173 CLR 555 El Hassan v R [2007] NSWCCA 148 |
Parties: | The Queen (Crown) Tavake Lee Pikula (Defendant) |
Representation: | Counsel E Wren (Crown) D Rutherford (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (ACT/NSW) (Defendant) | |
File Numbers: | SCC 37 of 2020 |
LOUKAS-KARLSSON J
Introduction
On 3 July 2020 I found the accused not guilty of aggravated robbery and I indicated that reasons would be published at a later date. The reasons follow.
This was a judge-alone trial conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT) (Supreme Court Act) after Tavake Lee Pikula (the accused) signed an election to be tried by judge alone on 28 April 2020.
The accused was charged with one offence on an indictment dated 19 June 2020 being that on 2 December 2019 at Canberra, the accused committed robbery and at the time had an offensive weapon with him contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code).
The accused was arraigned on 23 June 2020 and pleaded not guilty to the offence.
Directions
Section 68C(2) of the Supreme Court Act requires that the judgment in a judge-alone trial include the principles of law applied and the findings of fact on which the Court has relied. Section 68C(3) requires that where a warning or direction is required by law to be given, or a comment to be made, to a jury in proceedings, the Court in a judge-alone trial must take the warning, direction or comment into account when considering its verdict. I approach these statutory obligations in accordance with the statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [6] and [52].
I adopt the following directions, set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (Mulcahy), in relation to my role in the present case. The directions have been adopted by Refshauge J in R v DM [2010] ACTSC 137 and Mossop J in R v Song (No 2) [2017] ACTSC 148; see also R v Connors (No 2) [2016] ACTSC 333 [6]-[18]; R v Droudis (No 14) [2016] NSWSC 1550 (Droudis (No 14)). The relevant directions as set out in Mulcahy and Droudis (No 14) are as follows.
Onus and Standard of Proof
A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law: see Mulcahy at [13]. The fundamental rules which govern a criminal trial are these.
The prosecution bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The prosecution has asserted that the defendant has committed a criminal offence, therefore the prosecution must prove that the defendant committed that offence. The accused does not have to prove that he did not commit that offence: see Mulcahy at [14]; Droudis (No 14) at [24].
The level or standard of proof required in a criminal trial is proof beyond reasonable
doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt: see Mulcahy at [15]; Droudis (No 14) at [25].
The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is
guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable
doubt of his guilt, then he remains presumed to be innocent and the appropriate
verdict is not guilty: see Mulcahy at [16]; Droudis (No 14) at [23].
Judge of Facts and Law
In addition to the fundamental rules which govern a criminal trial, the following rules have been developed. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will: see Mulcahy at [18].
General Directions on Witnesses
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence: see Mulcahy at [19].
I must determine the relevant facts according to the evidentiary material, considered
logically and rationally, without acting capriciously or irrationally. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses: see Mulcahy at [20]-[21].
I am not required by any rule of law, logic or common sense to accept a witness wholly
or to reject a witness wholly. I can accept everything that a witness has said if I
consider all of it worthy of acceptance, or I can reject everything that a witness has said
if I consider none of it worthy of acceptance, or I can accept that part of what a witness
said that I consider worthy of acceptance and reject the rest of what that witness said
as I consider it unworthy of acceptance: see Mulcahy at [22].
The Accused
The accused did not give evidence. I direct myself that he was not obliged to. The fact that he did not give evidence does not affect the burden upon the prosecution to prove its case beyond reasonable doubt: see R v Graham [2017] ACTSC 267; see also Droudis (No 14) at [59]-[61].
I adopt the foregoing directions in the present case.
Elements of the offence
The offences of robbery and aggravated robbery are contained under ss 309 and 310 of the Criminal Code.
Sections 309 and 310 relevantly provide as follows:
309Robbery
A person commits an offence (robbery) if—
(a) the person commits theft; and
(b) when committing the theft, or immediately before or immediately after committing the theft, the person—
(i) uses force on someone else; or
(ii) threatens to use force then and there on someone else;
with intent to commit theft or to escape from the scene.
310 Aggravated robbery
A person commits an offence (aggravated robbery) if the person—
(a) commits robbery in company with 1 or more people; or
(b) commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
Maximum penalty: 2500 penalty units, imprisonment for 25 years or both.
Note: Robbery means an offence against s 309.
In a criminal trial, the prosecution must prove the essential elements of the charge beyond reasonable doubt.
Issue
In this case there is no issue that the elements of the charge are met beyond reasonable doubt. The issue in this case is the question of identification: Is it proven beyond a reasonable doubt that it was the accused who committed the offence of aggravated robbery.
The Prosecution Case
Broadly, the prosecution case was that the accused committed a robbery at Narrabundah takeaway shop on 2 December 2019. The case against the accused is based on circumstantial evidence. It was not in dispute that shortly before 11am on 2 December 2019, a man left the passenger side of a vehicle and entered the Narrabundah takeaway shop wearing black pants, a zip-up jumper with a black and white V pattern, and a Puma logo, a dark coloured hat, and white and blue shoes. The man entered the shop and proceeded behind the service counter. At that point he produced a kitchen knife and demanded money from the proprietor Ms Le.
The man then grabbed hold of the Ms Le and led her to where the till was located. In the process of doing so he took a mobile phone head piece from her ear, threw it to the ground, and stomped on it. Ms Le opened the till and the man removed some money from it. The man then went into the back room of the shop and took the complainant’s purse, which contained bank cards, her driver’s licence, and approximately $900 from the shop’s takings. The man then left the shop, and Ms Le followed outside, observing him leaving in a silver car with NSW number plates.
Ms Le then went to the newsagency next door, and spoke with Mr Thomas, the operator of that newsagency, who proceeded to call the police.
The prosecution alleged that the man who committed the robbery as described above was the accused.
The Defence Case
The defence case was that the evidence, whether assessed separately or as a whole, could not establish beyond a reasonable doubt that the man who committed the offence (the offender) was the accused.
Evidence / Summary of Evidence
Evidence of Mr Thomas
Mr Thomas is the proprietor of the newsagency located next door to the Narrabundah takeaway shop. Mr Thomas recalled Ms Le entering his newsagency at 10:45am on 2 December 2019, telling him that she had been held up at knifepoint. She told him that her wallet, phone and money had been stolen. Mr Thomas then called triple zero on her behalf. An audio recording of that telephone call was tendered into evidence. In that telephone call Mr Thomas provided the police with the registration details ‘CK 72 SG’. He stated that the vehicle had been silver with a yellow licence plate. Those details had been provided verbally to him by Ms Le. Mr Thomas did not witness the events which had occurred in the takeaway shop or see the vehicle. I note here that the CCTV footage referred to later at [60] reveals that the number plate was ‘CK 72 GS’.
Evidence of Senior Constable Smorhun
Constable Smorhun gave evidence in relation to events which occurred prior to the robbery on 30 November 2019. The Constable was performing speed detection duties on William Hovell Drive in Cook and performed a stop on a silver Subaru sedan with NSW registration ‘CK 72 GS’.
The driver initially provided the Constable with a NSW proof of age card in the name of Tanelo Pikula, but when questioned was unable to provide a birth date which matched the date of birth recorded on the card. The Senior Constable also noted that the image recorded on the proof of age card did not match the appearance of the driver.
The driver of the Subaru eventually identified himself as the accused and provided an address in McKellar as his current place of residence. The Constable then made some inquiries on the ACT and NSW registration databases, noting that the car was not registered to the accused. The Constable recounted that the accused told him that the car belonged to a friend.
I note that the defence raised an objection under s 137 of the Evidence Act2011 (ACT) (Evidence Act) in relation to this evidence (T11.1-5). The objection was made on the basis of relevance, and that it potentially related to uncharged offences. Consequently, the evidence was limited to the identity of the person driving the vehicle.
Evidence of Constable Kate Goodwin
Constable Goodwin gave evidence in relation to Ms Le’s participation in a photo board identification which took place on 11 March 2020. An audio-visual recording of that process was played to the Court and the photo board was tendered as evidence. The audio-visual recording shows Ms Le on two occasions pointing to image number eight on the photo board, before identifying and then confirming image number four by drawing a ‘tick’ next to the image. Image number four is a photo of the accused.
In cross-examination Constable Goodwin agreed that prior to Ms Le identifying image number four there were two separate occasions where Ms Le had pointed to image number eight. Counsel for the accused noted that after Ms Le identified image number four she was asked to tick the box, whereas this had not occurred on the first two occasions. Constable Goodwin explained that she was working through a pro forma which required a complainant to confirm their decision once they had properly assessed all of the photos. Constable Goodwin explained that she not asked Ms Le ‘to solidly confirm it that it was number eight’ (T24.10-25).
Evidence of Ms Le
Ms Le gave a recorded evidence-in-chief interview with police shortly after the robbery on 2 December 2019. In her evidence-in-chief interview Ms Le described an offender entering her shop shortly after another customer had left. She stated that the offender began to move behind the counter and then produced a knife. The offender then demanded money, pulled her mobile phone earpiece from her ear, threw it to the ground, and stepped on it. Ms Le was then taken to and opened the till. The offender removed notes and change, which Ms Le estimated to have been worth less than fifty dollars. The offender then demanded banks cards, keys, and her handbag, which he took from her before leaving the shop.
Ms Le provided a description of the offender. She stated that he was wearing a black cap and a black jacket with no zip, but could not recall details in relation to the offender’s hair or eye colour. Ms Le could not recall the offender having any tattoos or piercings. She described the offender’s skin colour as “maybe white”. Ms Le stated that her main focus had been on the knife, which she described as a non-serrated stainless-steel kitchen knife, approximately 30 centimetres in length.
Ms Le stated that the offender then entered the passenger side of a silver car with NSW licence plates. Ms Le was unable to recall the make or model of the car, or whether it was a two-door or four-door vehicle, however she was able to take down her best recollection of the registration number of the vehicle.
Ms Le gave additional evidence at trial concerning the robbery with the aid of a Vietnamese interpreter. Ms Le explained that she had decided to identify image number four on the photo board because she “remember[ed] the eyes, and the look on the face” shortly after the offender had first entered the shop. Ms Le only saw the offender’s face directly for a few seconds, and did not see the offender’s face at any other point during the robbery, as she “was busy finding money and giving him money” (T34.10-11). Ms Le acknowledged that she had initially indicated that the offender was image number eight.
In cross-examination Ms Le agreed that she had been quite terrified and stressed during the robbery and had been quite concerned and focused on the knife. Ms Le agreed that she had only had a good look at the offender’s face for a couple of seconds (T 35.35-36; T 36.19-25). Ms Le accepted that she had indicated image number eight on the photo board as being the offender, but confirmed that she was one hundred percent certain that image number four on the photo board was an image of the offender. Ms Le had originally chosen number eight based on the shape of the face, but had then looked at the eyes of the accused depicted in image four and had remembered. Ms Le accepted that the task had been difficult given the three-month delay between the offence and the photo board identification. Ms Le explained that she believed that this was the reason why she had initially indicated image eight (T37.5-30). Ms Le also stated that she did not believe that her recollection of the offender would have been more accurate had the identification been conducted a few days or a week after the robbery, as the panic had affected her short-term memory of the events (T37.40-45).
Evidence of Detective Senior Constable Watson
On 2 December 2019 DSC Watson was given instructions that an aggravated robbery had occurred, and to keep a look out for a Subaru Impreza with NSW registration CK 72 GS which was linked to an address in McKellar. DSC Watson attended that address with Constable James and observed the silver Impreza parked in the driveway. The officers remained nearby and observed the Impreza leaving the address. They were unable to identify the driver. The officers followed the Impreza but were unable to maintain sight of it. They returned to the McKellar address five minutes later and found that the Impreza had also returned to the address.
The officers then approached a woman at the property who identified herself as Ms McGee and the owner of the vehicle. Ms McGee stated that she had recently purchased the vehicle, and that it had been parked at her residence in Queanbeyan from 7am until the afternoon that day while she had been at work. Ms McGee stated that she did not believe anyone else had used the vehicle that day, but the front door of her house did not lock so anyone could enter that house. Ms McGee provided consent for the police to conduct a search of the vehicle.
While conducting the search of the vehicle DSC Watson located a jumper in the boot which he believed was similar to the jumper which had been depicted in the ‘lookout to be kept for’. That jumper was tendered into evidence as Exhibit 6.
DSC Watson also obtained consent from the occupants of the property to search their home. Police conducted a search and nothing of relevance was found.
Evidence of First Constable Lee
Constable Lee attended the McKellar address in order to assist in the search of the vehicle. During that search Constable Lee located a kitchen knife between the front passenger seat and the centre console of the passenger side of the vehicle. That knife was tendered into evidence as Exhibit 7.
Evidence of Constable Hewish
Constable Hewish also attended the McKellar address to assist in the search of the vehicle. During that search he located a brown cap in the boot of the vehicle. That cap was tendered into evidence as Exhibit 8.
Evidence of Constable Cook and Leading Senior Constable Dinham
Constable Cook gave evidence in relation to events which took place on 8 December 2019. At this time the accused was in custody. Constable Cook conducted a forensic procedure with the accused. The accused provided a buccal swab, and his fingerprints and photographs were taken.
Constable Dinham gave evidence that on the same day he observed the forensic procedure conducted by Constable Cook. He then took photographs of the accused and seized the shoes that he was wearing. The accused was offered an interview and identification parade, which was declined pending legal advice. The accused was provided with access to legal advice. The photographs and shoes were tendered into evidence as Exhibits 9-11.
Evidence of Mr Preston
Mr Preston is a forensic biologist attached to the Australian Federal Police (AFP) evidence recovery unit. He conducted forensic examinations on four items which were retained by the AFP in relation to their investigations. Those items were the cap, the jumper, the kitchen knife, and an iPhone. Mr Preston conducted ‘tape lifts’ and swabs on the items in areas most likely to contain DNA, and then prepared those samples for DNA analysis.
Fingerprint examination was also conducted on the kitchen knife and iPhone. No suitable fingerprint details were recovered from those items.
An examination report summarising the details of those examinations was tendered into evidence as Exhibit 12.
Evidence of Mr Schwartz
Mr Schwartz is a forensic biologist with the AFP. His role is to examine items collected from crime scenes for biological material, to process any samples taken through the DNA laboratory in order to obtain a DNA profile, and to interpret those DNA profiles and report to the courts and police. Mr Schwartz was involved in the latter two stages with respect to the samples taken from the cap, the jumper, and the knife.
Mr Schwartz explained the process of DNA analysis and profiling in detail, noting in particular the types of biological material which are more or less likely to contain viable DNA, and the materials which are more, or less likely to provide a useful sample.
A sample may contain a DNA profile of a single person, or a mixed DNA profile, that is, a sample which contains the DNA of two or more people. DNA profiles taken from a sample are then matched against samples taken from known individuals. A statistical evaluation of the DNA results generates a ‘likelihood ratio’. This ratio calculates the likelihood that a profile from a known individual is a contributor to a profile taken from a sample. This ratio can then be expressed on a verbal scale. A likelihood ratio between 10 and 100 is moderate support for this proposition. A likelihood ratio of between 100 and 1000 is strong support for this proposition. A likelihood ratio of between 1000 and 1,000,000 is very strong support for this proposition. Anything 1,000,000 or above is extremely strong support for this proposition.
A report on the forensic examination of the cap, the jumper, the knife, and the iPhone was tendered into evidence (Exhibit 13). The samples taken from those items were assessed against the reference sample relating to the accused and the following information was recorded in the report:
(a) A mixed DNA profile from a minimum of three individuals was obtained from the cap. There was extremely strong support for the proposition that the accused was a contributor to the profile. An unknown female individual could not be excluded as a contributor to the profile.
(b) A mixed DNA profile from a minimum of three individuals was obtained from the jumper. There was extremely strong support for the proposition that the accused was a contributor to the profile. The unknown female individual could not be excluded as a contributor to the profile.
(c) A mixed DNA profile from a minimum of two individuals was obtained from the knife. The accused was excluded as a contributor to the profile. The unknown female individual could not be excluded as a contributor to the profile.
(d) No DNA was detected on the iPhone.
In cross-examination Mr Schwartz agreed that he could not rule out the possibility that some person other than the three individuals who had left DNA on the hat and the jumper had worn the items and not left any DNA behind (T103.35-37). Mr Schwartz also agreed that the main contributor of DNA to both the hat and the jumper had been the unidentified female individual. Mr Schwartz also agreed that it could not be determined how long any of the contributors had worn the items, or who the most recent person to come into contact with the items had been. He agreed that it was possible that a contributor had handled, rather than worn, the items. The DNA contributions could have remained on the items for weeks, or months. It is also a possibility that the most minor contributor to the mixed profile had more contact with the items than the more significant contributors (T104.35-45; 105.1-5; 108.1-5).
In relation to the knife, Mr Schwartz agreed that it was reasonable that if someone had handled it for a few minutes, that their DNA would be on the item, and that if DNA were detected that this would indicate that the knife had not been cleaned (T 105.20-35). If the knife had been cleaned thoroughly, no DNA would be detected. However, it was also possible that a knife could be cleaned and then DNA subsequently re-deposited (T107.10-20).
Evidence of First Constable Wilson-Smith and CCTV Evidence
CCTV recordings at the Narrabundah takeaway and the Narrabundah supermarket were taken on 2 December 2019 and tendered through Constable Wilson-Smith. These recordings form Exhibits 14 and 15. A number of still images, some of which were ‘enhanced’ by a member of the AFP Video Operations Team were also captured from that CCTV footage. They were tendered into evidence as Exhibits 16-18.
Also tendered were birth records in relation to the accused’s siblings, and three photographs of the accused’s brothers taken from police indices. They became Exhibits 19 and 20.
A statement of the crime scene examiner who attended the Narrabundah takeaway and tested the scene for fingerprint evidence became Exhibit 21. No fingerprints belonging to the accused were detected at the scene.
The Narrabundah takeaway ‘front door’ footage depicts the offender leaving a silver coloured vehicle and entering the shop. The offender follows Ms Le between two counters and enters the rear of the shop. The offender’s face is visible, from a distance, for a few seconds. The offender remains in the shop for approximately one minute. He is visible in the footage for approximately 30 seconds. The ‘kitchen’ CCTV footage shows the offender quickly entering and removing an item from a shelf. The footage is taken from an elevated position on the ceiling and the view of the offender’s face is obscured by his cap. The offender’s shoes and the knife are visible.
The ‘back door’ footage shows the front of the shop from a different angle. The footage depicts the offender entering the shop and proceeding behind the counter. The offender can be seen producing a knife and taking Ms Le to the register. Ms Le opens the register and the offender removes money from it. The offender then enters the rear of the shop. The offender’s face is obscured by his cap for the majority of the time that he is visible.
The ‘counter’ footage depicts a ‘top-down’ view of the register. The offender can be seen removing money from the register, however his face remains obscured by the cap. The ‘Narrabundah supermarket’ footage depicts the silver coloured vehicle parking and the offender entering through the automatic doors of the building. The details of the offender’s face are obscured both by shadow and his cap. The offender can be seen leaving through the same doors approximately six minutes later and returning to the vehicle with NSW registration ‘CK 72 GS’ visible.
Additional Directions
Inferences and Circumstantial Evidence and Identification
The prosecution case is circumstantial. This means that the prosecution must first demonstrate that the inference or conclusion that it was the accused who robbed the store is a reasonable one to draw from the facts established by the evidence. The prosecution must then prove that the only reasonable inference or conclusion that can be drawn from the consideration of all the established facts, viewed as a whole, is that it was the accused who committed the robbery.
If there is any other reasonable inference or conclusion open on the facts that is inconsistent with that conclusion, then the prosecution’s circumstantial case fails and the accused should be acquitted.
In assessing the prosecution’s case, I must consider all of the circumstances established by the evidence, and weigh them up in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Hillier [2007] HCA 13; 228 CLR 618 (Hillier) at [46]. A circumstantial case is not to be considered in a piecemeal fashion: Hillier at [48]; see also Droudis (No 14).
The prosecution case is a “strand in the cable”case, so that the individual circumstances relied upon by the prosecution need not be established beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 579.
Circumstantial evidence is not necessarily less reliable than direct evidence. In El Hassan v R [2007] NSWCCA 148, Hunt AJA (with the agreement of Latham and Johnson JJ) said at [27]:
It has been my experience that a circumstantial case can in some cases produce almost conclusive evidence of the accused's guilt. Circumstantial evidence does not usually depend to any great extent on the evidence of witnesses who could be either mistaken or maliciously false in their testimony: Regina v Cable (1947) 47 SR 183 at 184. Those cases I have in mind have all been of the ‘strands in the cable’ variety of circumstantial evidence case (see par [19] supra). It is a matter of common sense that the more strands in the cable, the stronger the cable is. The more circumstances pointing to the guilt of the accused, the less likely it is that there could be any reasonable explanation for those circumstances other than the guilt of the accused, and thus the stronger is the circumstantial case against him. As McHugh J pointed out in Shepherd v The Queen (at 582):
There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in Regina v Kilbourne [1973] AC 729 at 758:
Circumstantial evidence [...] works by cumulatively, in geometrical progression, eliminating other possibilities’.”
Additionally, it is appropriate to keep in mind, in approaching a circumstantial evidence case, what was said by the High Court of Australia (French CJ, Kiefel, Bell, Keane and Gordon JJ) in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [46]-[47] (footnotes omitted):
46.The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.”
47.For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
The distinction between drawing an inference from proven facts and engaging in speculation was emphasised in Lane v R [2013] NSWCCA 317; 241 A Crim R 321 at [109]-[110] (Bathurst CJ, Simpson and Adamson JJ):
109.The answer to that question lies in the distinction, which is a very real one, between inference and speculation. In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as ‘a deduction from the evidence’ which, if reasonable, may have the validity of legal proof.
110.He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows:
“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
Spigelman CJ stated the test as:
“... whether, on the basis of the primary facts, it is reasonable to draw the inference.”
To similar effect were observations of Gibbs, Stephen and Mason JJ in Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104-105.”
Warning in Relation to Identification
The directions and warnings required in relation to evidence of identification are governed by ss 116 and 165 of the Evidence Act. The content of those directions, however, are taken mainly from common law cases such as Domican v The Queen (1992) 173 CLR 555 and R v Heuston (1995) 81 A Crim R 387.
Section 116 requires me to direct myself as to the special need for caution and the reasons for that caution in relation to identification evidence. Section 165(1)(b) requires that a warning be given where requested in relation to “identification evidence”.
Reasons for the need for caution – generally (s 116(1) Evidence Act)
Evidence that the accused has been identified by a witness must be approached with special caution before I accept it as reliable. These directions relate only to the reliability of the identification evidence given, not to the honesty of the witness. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that her evidence is correct, that evidence will usually be quite impressive, even persuasive. So here, even if I thought, as I do, that Ms Le was entirely honest in the evidence that she gave, I must still approach the task of assessing the reliability of her evidence with special caution.
So, special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.
I must carefully consider the circumstances in which Ms Le made her observation of the person. The circumstances in which the witness made her observation of the person can affect the reliability of identification evidence.
Special need for caution before accepting identification evidence in the circumstances of the case (s 116(1)(b) Evidence Act)
There are a number of matters that have been specifically raised in this case that require my consideration.
The person identified was a stranger to Ms Le. It is obviously harder to identify strangers than it is to identify people who are well known to us.
What opportunity did Ms Le have to make her observation of the person? Ms Le said that she was unable to remember precisely how long the man who committed the robbery had spent in the store, but that ’it was quick’. The period of observation she had of the offender’s face was ‘a couple of seconds’ (T 35.15-25). Counsel for the prosecution submitted that while Ms Le may have stated that she had seen the offender for a matter of seconds, the CCTV footage demonstrated that the offender had been ‘incredibly close’ to Ms Le at the time, and had in fact been looking at him longer than she had estimated (T 132.8-20). It was submitted that Ms Le had looked at the accused on and off throughout the course of the robbery, which lasted approximately one minute (T 133.20-25). In her evidence Ms Le stated the following:
Prosecutor: Did you see his face at any other point during the robbery?
Ms Le: No, I didn’t because I was busy finding money and giving him money.
Did the witness focus her attention on the person or was it just a casual sighting that did not have any significance for the witness at the time? In this case Ms Le’s attention was focused on the person. In cross-examination Ms Le agreed that she had also been quite focused on the knife (T 35.35-45).
In what light was it made? I have heard evidence about the light at the time of the alleged offence. It was daytime and there was apparently no issue with the lighting.
Was there anything about the person observed which would have impressed itself upon the witness? In other words, was there anything distinctive about the person?
Ms Le stated that the primary feature upon which she had focused at the time of the robbery was on the offender’s eyes. However, in her evidence-in-chief interview, Ms Le was unable to remember the colour of the offender’s eyes. She stated in her evidence-in-chief interview “I don’t remember. When, when – when I see him again I know.”
Ms Le gave evidence at the trial that the most distinctive physical aspect of the offender that she was able to remember were his eyes. She attributed her inability to recall the details of the offender’s eyes on the day of the robbery to her ‘panic’ (T 37.5-25).
Ms Le was under understandable stress and pressure at the time of the robbery which may have affected her ability to accurately observe the person and store the image of the person’s appearance in her memory.
Ms Le does not come from the same racial background as the person identified. That is also something that must be borne in mind. It may be more difficult for a member of one race to identify an individual of another racial group.
When was Ms Le first asked for a description of the person and how fresh would her memory have been at that time? Ms Le provided a description of the offender to police on 2 December 2019, the same day as the robbery.
How long was it between the sighting of the person and the giving of the description to the time that Ms Le identified the accused? The photo board interview was conducted approximately 3 months after the robbery took place.
I must give consideration to each of those matters. Any one of those circumstances may possibly lead to error in identification.
Expert Evidence
In this trial, Mr Preston and Mr Schwartz were called as an expert witnesses in the prosecution case. In addition, a report of Mr Schwartz was tendered as Exhibit number 13.
An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. In this case, Mr Preston and Mr Schwartz gave oral and written evidence on matters concerning the detection and analysis of DNA.
The value of an expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training, and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness' specialised knowledge.
The expert evidence before the Court in this trial was adduced to assist in determining the question of the DNA evidence.
The evidence of Mr Preston and Mr Schwartz has not been challenged and is not inherently unbelievable. The issue for consideration is what conclusions ought to be reached by reference to that evidence.
It remains a matter for the Court to consider the expert evidence, in the context of all of the evidence adduced in the trial for the purpose of reaching a conclusion as to the significance of the evidence in the trial.
Submissions
Prosecution
Counsel for the prosecution submitted that all of the required elements of a robbery had been established, and identified five individual strands which were said to make up the circumstantial case against the accused. In summary, those five strands were:
(a)The photo board identification.
(b)The DNA evidence.
(c)The accused’s connection to the vehicle.
(d)The shoes.
(e)The CCTV footage.
Exhibits 3 and 4 were the photo board identification of the accused by Ms Le, and the video recording of Ms Le undertaking the photo board identification. This evidence was, in the prosecution’s submission, compelling evidence. Particularly so when the photo board was viewed in its entirety. It was submitted that Ms Le had identified the accused by reference to a particular moment in the robbery, and that this was indicative of her having made that identification by virtue of that memory, rather than being due to having seen the accused in another circumstance (T133.10-20).
Counsel for the prosecution submitted that due to the similarity of the items of clothing that were found in the vehicle and the shoes worn by the accused to those depicted in the CCTV footage, it could be accepted that they were the same items. It was submitted that the DNA suggested that it was more likely than not that the DNA had been deposited by a person who had worn those items, rather than through another form of incidental contact. In relation to the knife, the prosecution submitted that the absence of DNA did not necessarily indicate that a person did not handle it, that it was found in the vehicle, and that it was not known what had happened to the knife throughout the course of the day of the robbery. Counsel for the prosecution noted that the CCTV footage showed the sleeve of the jumper worn by the offender partially covering the knife.
Counsel for the prosecution also noted that the accused had been identified driving the vehicle two and a half days prior to the robbery. It was submitted that Ms McGee’s statement that the vehicle had been left at her unlocked Queanbeyan property was irrelevant in light of the evidence that it had not remained at that property on 2 December 2019.
Counsel for the prosecution emphasised the similarity between the brand and pattern of design on the shoes worn by the accused when he was arrested and those worn by the offender as depicted in the CCTV footage. This was submitted to be further evidence as to the identity of the offender in the CCTV.
It was submitted that the CCTV footage depicted the accused. Three of the accused’s brothers were in lawful custody when the robbery occurred, and that the remaining three could be excluded on the basis that they did not sufficiently match the depiction of the offender in the CCTV footage.
Defence
The defence submitted that none of the evidence, whether on its own or in combination, could establish the guilt of the accused beyond reasonable doubt.
It was submitted that the photo board evidence was problematic, given that the identification process had been conducted three months after the incident with no explanation for the delay, and that Ms Le’s evidence was that she had seen the offender for no more than two seconds. It was submitted that the recording of the identification process revealed that Ms Le was ‘clearly struggling’ to make an identification. It was submitted that Ms Le’s statement that picture number four ‘has the most likeness’ to the offender was not enough to establish a sufficient identification. It was submitted that this was particularly so given the circumstances of the robbery, and in light of the statutory and precedential warnings with respect to the caution which must be taken to apply to both photographic and CCTV evidence.
It was submitted that the accuracy of identification testimony could depend on a number of factors, including the quality of the photography and lighting at the scene, the angle of depiction of the subject in question, the eyesight of the examiner, the length of time a photograph is examined, and the degree of physiological or psychological arousal at the time of perception. It was submitted that some people may have an unconscious desire to make an identification, and that the evidence indicated that this may be the case with respect to Ms Le’s evidence, given that the level of certainty she had expressed had changed over time.
Counsel for the defence conceded that the shoes worn by the accused when he was arrested and those depicted in the CCTV footage were similar. However, it was submitted that the evidence could not establish whether that particular make of shoe was a common one. It was submitted that in the absence of that evidence it would be difficult to ascertain the appropriate weight to attribute to that similarity. Similar submissions were made with respect to the distinguishing features of the jumper, and the absence of any distinguishing features on the cap.
It was submitted that while the accused’s DNA was detected on the jumper and the cap, there was also another dominant female contributor to the profile, and a second unknown minor contributor. It was submitted that the evidence could only reveal that the accused had, at some point in time, come into contact with those items. It was submitted that the evidence demonstrating that the accused had been stopped by the police while driving the car two days prior to the robbery evidenced a positive situation in which he may have encountered those items. Counsel for the defence noted that the expert evidence had indicated that a dominant level of contribution to a DNA profile did not necessarily demonstrate a greater amount of contact with a particular item.
Counsel for the defence noted that neither of the contributors to the DNA profile recovered from the knife had been the accused. It was submitted that the CCTV footage revealed that the offender had not been wearing gloves and the knife could be seen to be touching his bare skin during the course of the robbery. Counsel emphasised Mr Schwartz’s opinion that in those circumstances it would be expected that DNA would have remained on the knife in the nine-hour period between the robbery and when it was discovered in the vehicle. This evidence was submitted to create significant doubt in respect of the accused’s involvement in the robbery.
In relation to the CCTV, counsel for the defence accepted that the footage itself was clear but submitted that there was no point in time at which the offender’s face could be seen clearly or unobscured. Counsel also noted that Ms Le had not recalled the offender having freckles around his nose and eyes, which the defence submitted to be a ‘distinguishing feature’ of the accused’s face.
Counsel also placed emphasis on the statement made by Ms McGee to DSC Watson, that her vehicle had been parked in Queanbeyan throughout the day on 2 December 2019 until 4pm when she had driven to the McKellar address. Ms McGee stated to DSC Watson that she was the owner of the vehicle, she had been at work throughout the day, and that the door to her house had been unlocked. It was submitted that this opened up the possibility that some other person had taken the vehicle, committed the robbery, and then returned it to the Queanbeyan property
Conclusion
Were the standard of proof the balance of probabilities, the prosecution may arguably have succeeded. The criminal standard of proof beyond reasonable doubt is a higher standard. The prosecution must prove the case against the accused beyond reasonable doubt.
I am not satisfied beyond reasonable doubt that the accused committed the aggravated robbery. I accept the submissions of defence counsel as the submissions accord generally with my view of the evidence.
I am not satisfied beyond reasonable doubt for the following reasons:
(a)This is a circumstantial case including identification evidence and there is a need for special caution before accepting identification evidence.
(b)The identification evidence set out in [73]-[85], is, in my view not strong.
(c)All the circumstantial evidence taken together, including the CCTV footage, the identification evidence and the DNA evidence, set out at [49]-[54] and discussed at [86]-[91], is in my view, not conclusive as to guilt. I also note in this context that the accused’s DNA was not found on the knife.
(d)Considering all of the evidence, I have a reasonable doubt as to the guilt of the accused. The guilt of the accused is not the only rational inference in this case. I am not persuaded beyond reasonable doubt that the man depicted in the CCTV footage is the accused.
Orders
I return the following verdict:
(a) The accused is not guilty of the single count in the indictment dated 19 June 2020.
| I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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