R v Poile
[2016] ACTSC 262
•13 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Poile |
Citation: | [2016] ACTSC 262 |
Hearing Dates: | 12-13 September 2016 |
DecisionDate: | 13 September 2016 |
Before: | Elkaim J |
Decision: | On the charge of attempted aggravated robbery contrary to s 310 by virtue of s 44 of the Criminal Code 2002 (ACT), the accused is found ‘Not Guilty’. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judge alone trial – attempted aggravated robbery – s 310 Criminal Code 2002 (ACT) – identification evidence |
Legislation Cited: | Crimes Act 1900 (ACT) s 235(2) Criminal Code 2002 (ACT), ss 310, 44 Supreme Court Act 1933 (ACT), s 68B |
Cases Cited: | Nguyen v The Queen (2007) 180 A Crim R 267 R v Prasad (1979) 23 SASR 161 Strauss v Police (2013) 224 A Crim R 389 |
Parties: | The Queen (Crown) Ryan Eugene Poile (Accused) |
Representation: | Counsel Ms K McCann (Crown) Mr R Davies (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 15 of 2016 |
ELKAIM J:
The accused pleaded not guilty to the charge of attempted aggravated robbery contrary to s 310 by virtue of s 44 of the Criminal Code 2002 (ACT).
In accordance with s 68B of the Supreme Court Act1933 (ACT), the accused elected to be tried by a judge alone.
The offence is alleged to have occurred in the early hours of 6 September 2014.
In brief, the prosecution alleges that the accused, together with another man, attempted to rob a taxi driver who had driven them to an address in Pulleine Crescent in the Australian Capital Territory. In the course of the attempt, the taxi driver was struck a number of times but the attempt to obtain his wallet failed.
Before looking at the evidence it is necessary to state the legal principles that I must apply before arriving at a verdict.
The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
The prosecution does not have to prove the truth of each fact that is asserted in its case. However it must prove each legal element of the charge beyond reasonable doubt.
The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense.
As a matter of practical reality, for purposes of this trial, the primary issue is not whether there was an attempt to rob the taxi driver, but rather whether the attempt was carried out by the accused. This raises the need for warnings concerning identification evidence. I will return to these below.
The elements of the offence of attempted aggravated robbery were described by the Crown as follows:
(a)The accused carries out conduct that is more than merely preparatory to the commission of the offence of aggravated robbery;
(b)The accused intends to appropriate something;
(c)The accused intends to appropriate property or knows that what is to be appropriated is property;
(d)The accused intends that the property to be appropriated belongs to someone else or knows that the property belongs to someone else;
(e)The accused intends or knows the appropriation is dishonest according to the standards of ordinary people;
(f)The accused intends at the time of appropriation of property to permanently deprive the person to whom the property belongs of the property;
(g)The accused intends to use force on someone, or threatens to use force then and there on someone else, when committing the theft, or immediately before committing the theft, or immediately after committing the theft, the accused uses force on someone else or threatens to use force then and there on someone else;
(h)The accused intends to commit theft or escape from the scene when using force or threatening to use force;
(i)The accused is in company with one or more people at the time of committing the robbery; and
(j)The accused is reckless to the fact of being ‘in company’ with one or more persons at the time of committing the robbery.
I agree with the Crown’s description of the elements of the offence. The accused did not suggest any error in this approach.
The prosecution case includes CCTV evidence. When drawing any findings of fact from such evidence it is necessary to be cautious having regard to the possible unreliability of such evidence, in the same way as occurs when examining a photograph. The CCTV evidence, primarily Exhibit D, was actually made up of a series of still photographs. I was informed this is because it was derived from a number of cameras.
The taxi driver was Mr Sok Ngep. He gave evidence. He was an obviously honest witness. No submission was put to the contrary.
Mr Ngep said he started work at about 4:30am on 6 September 2014. He first of all drove to the Charnwood Shopping Centre. At about 5:30am he received a booking through his computer booking service. He was told to pick up “Paul” from 214 Osburn Drive. No destination was included in the booking. He was to proceed “as directed”.
Mr Ngep arrived at the above address at about 5:35am. It was in a residential area. He saw two adult males standing in front of the house. There was a “bit” of light around.
One of the males, who was described as being tall and wearing a dark grey jumper with a hood, sat in the front passenger seat. The other male was described as shorter than the first, also with a hooded jumper, but this one was red in colour.
Mr Ngep said he had not seen either of the two men before. He was told to “keep going” by the front seat passenger. He continued along Pulleine Crescent and was then asked to turn into Seccombe Place. This street is a cul-de-sac. At the end of the street he was told to pull to the right and stop. A depiction of the route he took from picking up the passengers to where he came to a halt can be seen in Exhibit A.
As the taxi had been proceeding, Mr Ngep had noticed that the backseat passenger had moved to the middle of the rear seat.
After pulling over as directed, Mr Ngep stopped the meter and said that the fare was $8.70. The front seat passenger punched him and said, “here you go”. He continued to punch him. He was hit on the left of his face. His glasses fell off and were broken. Mr Ngep put his arms up as a defensive measure but still received a number of punches. He could not see the attacker’s face. This was because the attacker had pulled down a mask, as had the rear seat passenger. These masks are clearly visible in the photographs in Exhibit D.
While he was being punched, Mr Ngep noticed that the rear-seat passenger had put his arms around the back of the driver’s seat and was apparently feeling for a pocket.
The front seat passenger left the vehicle and stood in front of it. The backseat passenger exited through the rear passenger door and came over to the driver’s door. He tried to open it but Mr Ngep had been able to lock it with his elbow.
The rear-seat passenger then came in through the front passenger door and searched the vehicle’s console. He found nothing. He demanded of the driver: “Where is your wallet?” He also threatened: “I’m going to stab you.”
Mr Ngep was able to press his emergency button, scream for help and also press the horn with his elbow. The front seat passenger, now standing outside the vehicle, was repeatedly calling out “we’ve got to go.”
The assailants left the vehicle and walked to the end of the cul-de-sac and disappeared along a path.
Mr Ngep, distressed and in pain, immediately drove away and stopped at the corner of Osburn Drive and Pulleine Crescent. He closed the still open passenger doors and telephoned his base. His base in turn telephoned the police who made contact with him. The police attended and details were obtained. Mr Ngep went to hospital and also made a statement.
One of the police officers who met Mr Ngep, where he had stopped his vehicle, was Constable Reynish. She gave oral evidence. She said that she first saw Mr Ngep at about 6:30am. He was upset, there was swelling around his temporal area and his glasses were broken.
The Constable later obtained a disc which contained a number of images taken by the cameras installed in the taxi. They became, together with a printed version, Exhibit D.
It was decided not to examine the taxi because it had been in service through the night and would no doubt have carried a number of passengers.
The images from the taxi cameras were distributed through the ACT police network. This produced no results. The photographs were also sent for forensic analysis. Again no results were forthcoming.
Comfortable Reynish selected two of the photographs and forwarded them to the police media unit with a brief description of the events, to be placed on the police Facebook page. This was done (Exhibit F). There were a number of responses. One of them was from Ms Ayesha Owen.
Constable Reynish spoke to Ms Owen and took a statement from her. She identified the accused as being the person in the photograph that had been shown on the Facebook page.
Constable Reynish obtained a search warrant for the accused’s address. It was executed on 26 October 2014. The address is located in Osburn Drive. It is to be recalled that it was on this street that the taxi picked up the two males.
The search of the premises revealed no relevant material. On 26 October 2014, the accused was interviewed by Constables Reynish and Saunders. He was asked if he would partake in an identification parade. He declined. He also declined to have his photograph taken.
I note here that the CCTV record of interview concerning the identification parade (Exhibit A on the voir dire) was admitted only on the voir dire concerning the admissibility of Ms Owen’s evidence.
Ms Owen gave oral evidence on the voir dire. She said that she had first met the accused about eight years ago, that is about six years before the offence. It had been in a social setting and there was little conversation between them. She did speak to him about a year later but again not in any depth.
Thereafter Ms Owen said she saw the accused at least “a 100 times” because she would see him at the Kippax Shopping Centre or when she would drive past his home on Osburn Street. When she was in her car, he would be some 40 to 50 metres away and she would only see him for two or three seconds. On other occasions she might have observed him for a longer period at a distance of 10 to 20 metres. She did not talk to him. She simply recognised him from the particular distance that she was away from him.
Ms Owen said she had last seen the accused about a year before the taxi driver was attacked.
Ms Owen, who is now about 22 years of age, has been a regular user of Facebook. On 20 October 2014, at about 1pm, she was ’tagged’ by her friend Jessica. As a result of the tag she looked at her Facebook account on her iPhone 4S. She saw the description on the police media page and the two photographs as shown in Exhibit F.
Ms Owen thought she recognised the person in the second photograph and replied to her friend: “It’s that the dirty kid that lives in Osburn, I think. What’s his name?”
Another friend, also taking part in the Facebook exchange, responded: “Looks like that Ryan kid.”
Ms Owen said she called Crime Stoppers but could not get through. She went on to the police website and entered a message indicating she could be of assistance in a crime investigation. She was contacted by Constable Reynish.
The Constable showed her the two photographs that were on the Facebook post. She signed an enlarged photograph said to be of the accused (Exhibit B on the voir dire).
Under cross-examination, Ms Owen did not think she was mistaken in her identification. She conceded that the photographs was “grainy” and in black and white. She also accepted that she did not know the accused personally, but just “of him”.
Following Ms Owen’s evidence I heard submissions on the admissibility of her evidence in the substantive proceedings. After considering the matter overnight, I indicated to the parties that I would not allow her evidence, or Exhibits A and B in the voir dire, to be admitted in the substantive proceedings.
These are my reasons for that decision: The accused submitted that the evidence was not admissible on four bases. Firstly, it was said the evidence was not relevant. Secondly, it was submitted that the evidence was not admissible because it was opinion evidence contravening the relevant rules of admissibility. Thirdly, it was submitted that the evidence had been unlawfully obtained in contravention of s 235 (2) of the Crimes Act 1900 (ACT). Finally, it was submitted that the evidence should be rejected under s 137 of the Evidence Act2011 (ACT) because of its low probative value compared to the danger of unfair prejudice.
I think there is merit in each of the accused’s submissions. However I think the second, third fourth submissions are most persuasive and are the formal bases for the rejection of Ms Owen’s evidence. I will however make some comments about all of the arguments.
Starting with the submission on relevance; the accused relied on Smith v The Queen (2001) 206 CLR 650 at paragraphs 10 and 11. Arguably the same reasoning can be applied in this case. The evidence of Ms Owen is no more, at its highest, than that in her view the accused is the person in the photograph. In the words of s 55 of the Evidence Act 2011 (ACT) it is not evidence that “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.
The evidence of Ms Owen is that she thinks that the person in the photograph is the accused. This is the same evidence, namely the photograph, which is available to me (as a jury). Therefore “the fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for a effecting the jury’s assessment of the probability of the existence of that fact when that conclusion is based only on material that is not different in any substantial way from what is available to the jury.” (Paragraph 11 in Smith).
In relation to opinion evidence it was argued that Ms Owen was expressing an opinion about the identity of the person in the photograph and, she not being an expert, the evidence was not admissible. The Crown submitted that Ms Owen had effectively become an ad hoc expert as described by Smart AJ in Nguyen v The Queen (2007) 180 A Crim R 267.
The difficulty with the analogy is that the police officers in Nguyen had, as part of their duty, made themselves familiar with the persons they were watching. In contrast, here, Ms Owen made observations of the accused on a particularly casual basis; perhaps best described as a person “pretty much just standing around with friends” (T 43.8) and someone to whom she had not paid any particular attention (T 45.30). There is a vast difference between casual observations and those made by a person doing so as part of his occupation.
In my view, the evidence of the Ms Owen is lay opinion evidence that does not have the benefit of any exception under the Evidence Act 2011 (ACT) and should therefore be excluded.
The third basis for objection arises from an alleged contravention of s 235(2) of the Crimes Act 1900 (ACT). Under this sub-section, if a police officer shows photographs to a witness for the purpose of establishing the identity of a suspect, a number of rules apply. Those rules were not complied with in this case. There is no issue about that fact.
The Crown however submitted that the section was not applicable because the police officer was not showing a picture to Ms Owen “for the purpose of establishing, or obtaining evidence of, the identity of a suspect.” Rather the police officer was confirming the identity of the suspect which had already been established by Ms Owen when she viewed the Facebook page.
In my view the distinction does not exist. It is correct that Ms Owen had already formed a view based on the Facebook photograph. However the purpose of the police officer showing her the single photograph, which in itself was an enlargement of the Facebook photograph, was to establish, even if only by way of confirmation, the identity of the suspect. Accordingly I find that there was a failure to follow the rules in s 235(2).
This conclusion then raises the question of whether the evidence could nevertheless be admissible under s 138 of the Evidence Act2011 (ACT). In my view the desirability of admitting the evidence would not outweigh the undesirability of its admission. This is because the evidence is of such little probative value that its admission, carrying with it the risk of being accepted by a jury, renders its admission undesirable. I will discuss the probative value of the evidence below.
The final submission made by the accused, on the voir dire, was that the evidence should be excluded under s 137 of the Evidence Act 2011 (ACT) because its low probative value is outweighed by the danger of unfair prejudice to the defendant. I have summarised above the evidence of Ms Owen going to her capacity to identify the accused. This summary highlights the casual and perhaps vague nature of her observations of the accused over time. It is emphasised by her not having seen the accused for a year prior to her seeing the Facebook photograph. In addition I note that her first observation to her friend on Facebook was “It’s that the dirty kid that lives in Osburn, I think. What’s his name?” The emphasis has been added to show the element of uncertainty in the original identification and the need for corroboration from the Facebook friends. None of these friends has given evidence.
I was also taken to the decision of Peek J in the South Australia Supreme Court in Strauss v Police (2013) 224 A Crim R 389 where his Honour discussed the dangers of Facebook identification. I think the danger here is highlighted by the discussion amongst Facebook friends following the tagging of Ms Owen and the ensuing conversation by the friends, each adding information, arguably ultimately contributing to Ms Owen’s view as to the identity of the accused.
If the evidence were to go to the jury there would always be the possibility of it being accepted and being the basis for the conviction of the accused. This possibility would create an unfair prejudice which well exceeds the low probative value of the evidence.
Turning now to Exhibit A on the voir dire, I think this evidence should be excluded because it is not relevant. It was said to be relevant for two reasons. Firstly, because it showed the accused declining to participate in an identity parade and to being photographed. The accused conceded these matters so the CCTV footage took the matter no further.
Secondly, the Crown said that an identification of the accused as he is seen in the police station could be made by comparison to the photographs in Exhibit D. The camera in the police station is some way from the accused and at an angle that makes any identification exercise quite impossible. I can see no basis upon which the footage could be used as a means of identification.
Accordingly I rejected the tender of this exhibit and Exhibit B on the voir dire in the substantive proceedings.
Following my rejection of the above evidence, the Crown closed its case. The accused then made an application for a verdict by direction on the basis that on the remaining evidence before the court, a jury could not safely convict the accused. Alternatively it was said that I could give myself a ‘Prasad’ direction which would then enable me to enter a verdict of not guilty. Another alternative proposed by the accused was for the trial to continue, noting that the accused would not give evidence and would not call any other witness or tender any evidence.
The Crown submitted that, whilst theoretically I could give myself a ‘Prasad’ direction, I should not do so because there still remained evidence which could go before a tribunal of fact. This evidence was made up of the photographs in Exhibit D together with the presence of the accused in court so that a positive identification could still be made and lead to a guilty verdict.
In my view, the appropriate way to proceed is on the basis of the Crown having closed its case and the accused offering no evidence but submitting that the case against him had not been proved beyond reasonable doubt.
No argument was put that the elements of the offence with which the accused has been charged had not been established. I think this is plain and derived from the evidence of Mr Ngep. The only real issue in the case has been whether or not it is the accused who carried out the attempted robbery.
This issue is one of identification. Before considering the remaining evidence on identification, it is necessary for me to give myself the warnings that are applicable.
I must warn myself to be especially cautious before accepting identification evidence as reliable. Following my rejection of the evidence of Ms Owen, it is not a question of whether or not she was ‘honest but mistaken’ but rather whether or not the remaining evidence is capable of establishing the identification necessary to find that the accused was the person in the taxi.
The warning I give myself in this case must be of almost extreme caution because I am not assessing what one person says about another person. Rather the Crown is asking me to look at photographs taken in 2014, in black and white, grainy in substance, and of a man with a beard and then compare those images to a person sitting in court, two years later, clean-shaven and without any other comparative point of reference. Besides the photographs taken by the taxi cameras there are no other images of the accused which I could use to compare his appearance in court with the way he appeared in 2014.
The Crown submitted that I could take account of various facial features that were evident in the photographs and compare them to facial features that I can discern of the accused as he sits in court. For example, the accused’s nose was mentioned. It does seem that the accused may have, without any disrespect, a ’bent’ nose and that this feature is discernible both in the photographs and as he sits in court.
It may also be said that the accused, if imagined to be unshaven, might ‘look like’ the person in the photographs. This could be described as a consistency in appearance of the accused to the photographed person.
I also note that the accused’s address is on Osburn Drive although there is no correlation between the accused’s specific numbered address and the place where the two assailants were picked up by the taxi.
As I mentioned above, the Crown must prove its case beyond reasonable doubt. I must not act on suspicion or even probability. In my view the Crown’s evidence is well short of establishing a case beyond reasonable doubt. Even if the identification process could be validly made, by comparison between the accused in court and the photographs, it could show no more than a consistency. It certainly cannot establish proof beyond reasonable doubt.
The accused must therefore be found ‘Not Guilty’.
I would like to add one final matter. It may be thought that the effect of my decision on the admissibility of Ms Owen’s evidence is to discourage members of the public from contacting the police where they have information about the identity of a suspect. Such a conclusion would not properly reflect my decision.
A person contacting the police does so to assist the police in their investigation of a crime and, usually, to give the police a ‘lead’ as to the identity of a criminal. Once the lead has been obtained the police go about their investigations to gather evidence to connect the person to the crime. The information obtained from the member of the public is therefore invaluable to the police. However it is not the end of the investigation. It is often the beginning and will hopefully lead to the discovery of evidence to confirm the identification. In this case, the prosecution failed against this accused because the police were unable to find the confirmatory evidence.
The final order of the Court is: On the charge of attempted aggravated robbery contrary to s 310 by virtue of s 44 of the Criminal Code 2002 (ACT), the accused is found ‘Not Guilty’.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: V Wei Date: 13 September 2016 |
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