R v Shah - [2007] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SHAH
[2007] SASC 68
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Sulan)
1 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF JUDGMENT OF ACQUITTAL
Appeal against conviction - appellant found guilty of wounding with intent to cause grievous bodily harm and two counts of common assault - evidence led by prosecution regarding time of attack - evidence indicated that at the time of the attack the appellant was at another location - strength of identification evidence - whether verdict of jury should be set aside as being unsafe or unsatisfactory - appeal allowed.
Criminal Law Consolidation Act 1935 s 11, s 21, s 39, s 270, referred to.
M v The Queen (1994) 181 CLR 487; R v Shueard (1972) 4 SASR 36, considered.

R v SHAH
[2007] SASC 68
Court of Criminal Appeal: Doyle CJ, Debelle and Sulan JJ

DOYLE CJ: I would allow the appeal, set aside the convictions recorded against Mr Shah, and direct that verdicts of acquittal be substituted.
I agree with the reasons given by Sulan J. I add these brief remarks.
The case is a difficult one. Sulan J has identified a number of difficulties with the identification evidence relied on to prove that Mr Shah is the offender. That identification evidence does not stand alone. There is other circumstantial evidence that supports the prosecution case.
The real obstacle to acceptance of the prosecution case is, as Sulan J says in his reasons, the evidence from the security cameras strongly suggesting that Mr Shah was still at the hotel when the attack was happening. I agree with Sulan J that there was no basis upon which the jury could have been satisfied that the attack occurred later than Sulan J puts it, or that the security cameras displayed incorrect times. It was not open to the jury to speculate that, for some unknown reason, the evidence about the time of the attack, or from the security cameras, was unreliable. There was simply no basis upon which the jury could put that evidence aside. This body of evidence is, on the material before the jury, a solid obstacle to reaching a conclusion beyond reasonable doubt, based upon the identification evidence and the other circumstantial evidence, that Mr Shah was a participant in the attack.
It is for those brief reasons that I agree with Sulan J that the appeal must be allowed.
DEBELLE J: The test whether the verdict of a jury should be set aside on the ground that it is unsafe or unsatisfactory was expressed in these terms in M v The Queen (1994) 181 CLR 487 at 494:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. (Citations omitted).
I have emphasised the sentence of particular note in that passage. A court of criminal appeal may set aside a verdict only where, after making all due allowance for the advantages enjoyed by the jury, there remains a significant possibility that an innocent person is being convicted. That fact was emphasised in R v Shueard (1972) 4 SASR 36 at 39 in these terms:
To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt. In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given. This Court must not usurp the functions of the jury. (Citations omitted).
It is appropriate to emphasise that the court should not usurp the functions of the jury. It is for that reason that the court will not quash a conviction on the ground that the verdict was unreasonable if there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty.
The appellant’s case essentially turned on the fact that, if the times shown on the video footage were correct, it was quite impossible for him to be present when the assault took place. He relied on the absence of evidence proving that the times were incorrect as well as what were asserted to be weaknesses in the evidence of identification.
There can be no doubt that, if the times as recorded on the videotapes are accurate, the appellant could not have been one of those who attacked what Sulan J has called “the complainant group”. Constable Anesbury received a call at 2:23am requesting him to go to the scene of the attack. He arrived at approximately 2:27am. The ambulance service received a call and despatched an ambulance at 2:25am. It arrived at 2:31am. Joshua Wilton had given evidence that he had called an ambulance immediately after the attack. It is apparent from these times that the attack occurred a little before 2:23am. The videotapes show the appellant as being present at the hotel on ten different occasions between 2:15am and 2:23am, that is to say, immediately before, during and just after the time when the attack must have occurred. Mr Brebner QC conceded that the prosecution case depended upon the times recorded on the videotape being inaccurate.
Before considering the implications of the times as shown on the videotapes, it is necessary to consider the identification and other evidence.
The Identification Evidence
When considering the reliability of the identification evidence, regard must be had to the fact that three of the members of the complainant group were markedly affected by alcohol. In her summing up the trial judge noted the evidence as to the levels of intoxication of each. Robert Stone was “very drunk”, Wilton was “certainly intoxicated after drinking a substantial amount of alcohol”, and Van Iersel was “a bit light-headed”. Rowland Stone was the only one who was relatively sober when he left the hotel.
Rowland Stone had seen the person he identified as the appellant when he was leaving the hotel. He described him as having a shaved head with a rat’s tail and wearing black pants, a black long sleeved t-shirt top with red writing on it. He recognised the person a second time as one of the two men to whom Wilton had shouted the word, “faggots”. He described the person who attacked him with a baseball bat as wearing black pants and a black jumper with red writing on it. He identified his assailant as the person he had seen outside the hotel. In his evidence in chief he said that he had a shaved head with a rat’s tail. In cross-examination he conceded that he did not actually see a rat’s tail and gave a description of that person’s face which did not match the appellant.
Rowland Stone accurately described the appellant’s appearance on the night in question. The appellant had a shaved head with a rat’s tail. He was wearing a long sleeved black top with the letters “SYLF” in red and a drawing of a motorcycle also in red on the front.
Rowland Stone’s identification evidence is the more reliable because he had seen the appellant on previous occasions at the hotel. It was not as if the night of this attack was the first occasion on which he had seen the appellant. In addition, just before the attack, Rowland Stone was ahead of the others in the group. He turned and saw his friends being attacked. He had the opportunity to get a good look at the assailants.
Robert Stone did not effectively identify any assailant. That is not a matter for remark as, in addition to being very drunk, he was quite severely injured.
Wilton’s evidence was that the man with the baseball bat was wearing a black jumper with a red symbol or design on the front. That evidence was consistent with Rowland Stone’s description.
Van Iersel’s evidence must be treated with caution. Not only was he intoxicated on the night in question but he was also declared to be a hostile witness. He said that he was scared to give evidence because of a warning given to him about three months before the trial by a man at the hotel near which the attack had occurred. He feared that there might be what he called “repercussions” if he gave evidence.
Van Iersel described the same person as Rowland Stone had seen outside the hotel. He said he had a shaved head and a rat’s tail, that he was wearing black pants and a black jumper with red writing. He said that he did not see any of the assailants other than the man wielding the sword. Although he recognised the appellant in the videotaped images as the man who spoke to them outside the hotel, his evidence was that he was unable to say whether the appellant was one of the attackers. After he had been declared a hostile witness, Van Iersel agreed that in his statement to police he had said:
The person I can see on the security footage wearing the black top with red writing on the front and back is very similar in appearance to one of the guys that attacked my friends on Martins Road that night. I am mainly using the clothing to identify him as one of the attackers, but his build, shaved head and rat’s tail are also the same. The security footage isn’t very good, making it difficult to see his face clearly.
He said in his evidence in Court that statement was not true and that he had said it because Rowland Stone had also said it. If the jury accepted as accurate the description given to police, it confirms Rowland Stone’s identification.
One salient weakness in the identification evidence is that none of the complainant group identified the appellant as one of the assailants in an identification parade conducted about one month after the incident. However, eight months later on 8 September 2005, Rowland Stone did recognise him on the videotape footage. That is not necessarily surprising because he was then seeing things in context.
Of the two witnesses who could not identify the appellant one was very drunk and had been seriously injured and the other was declared to be a hostile witness. Against that there is evidence from two others in the group which is capable of being treated by the jury as a description that matches a description of the appellant. The significant aspect of that evidence is that they each describe a person with a shaved head and a rat’s tail and wearing a black top with red writing or symbol on it. They are two relatively striking features. The likelihood that two persons were in this locality on this evening and at the relevant times with a shaved head and rat’s tail and wearing a black top with red writing or symbol on it would have been very remote indeed. If the jury accepted as correct Van Iersel’s description to the police, the likelihood is even more remote.
Were the Timing Devices Accurate?
If the times on the videotapes are correct, the appellant was still at the hotel at 2:23am. That is of course, a sound reason why the jury could have concluded that there was a very real doubt whether the appellant was one of the assailants. It was compelling evidence in favour of the appellant. At the same time, however, it was open to the jury to conclude that the times were incorrect. There was evidence of a discrepancy in the order of 40 seconds between two of the video cameras. That of course was not such a long period of time as to enable the appellant to be at the scene of the crime. It does, however, give rise to questions as to the accuracy of the timing mechanism. There was no other evidence which threw any real light on the accuracy of the timing mechanism. The evidence is recited in the reasons of Sulan J. What is remarkable about that evidence is that no one had checked the accuracy of the timing. It was assumed to be accurate. It might be acknowledged also that self-interest would have compelled the proprietor of the hotel to ensure that security cameras accurately recorded the time. Although we live in an increasingly automated world with a plethora of electronic devices and other sophisticated technology, common experience informs one that these modern devices are not infallible. It was, therefore, open to the jury to conclude that the timing devices were incorrect. It would not be necessary for the devices to be very significantly inaccurate for the appellant to be at the scene of the crime. It would also be open to the jury to conclude that it would strain credulity to breaking point to believe that two men with shaved heads and with a rat’s tail wearing dark pants and a dark top with red writing on it should both be in or near this hotel at the same time on this evening. It would be such an extraordinary coincidence that they would be entitled to discredit it and be satisfied beyond reasonable doubt that the appellant was one of the assailants.
The jury had the advantage of seeing Rowland Stone and Wilton in the witness box and assessing the reliability of their evidence. In his closing address, counsel for the appellant very forcedly reminded the jury of the fact that, if they believed that it was reasonably possible that the timing devices were accurate, they should acquit the appellant. The jury was clearly warned by the trial judge of the dangers of the identification evidence. The judge also clearly directed the jury as to the importance of the evidence of timing. Nevertheless, the members of the jury unanimously convicted the appellant. The verdict demonstrates that they were not of the view that the timing devices were accurate and relied on other evidence to convict.
The appellant’s counsel relied on the inconsistencies between the evidence of Rowland Stone and Wilton. Those inconsistencies are quite understandable. They simply reflect the frailty of human recollection. It would have been a matter of greater concern had they given identical descriptions.
Other Evidence
There was other evidence in addition to the identification evidence upon which the jury could rely to reach a verdict of guilty. The behaviour of the appellant as shown on the videotape is consistent with an insult being shouted at him and with him running to catch up to those who had made the insult. There was circumstantial evidence that the appellant’s cousin, Clinton Shah, resided in the house on the same road as the road on which the attack had occurred at a point between the hotel and the point where the attack occurred. A sword had been used in the attack. An empty scabbard and a baseball bat were found at Clinton Shah’s house. It was the prosecution case that the appellant’s group had obtained weapons from Clinton Shah’s house en route to the place where the attack had occurred.
Conclusion
The times shown on the videotape were capable of raising a doubt as to whether the appellant was properly convicted. The advantage that the jury had of seeing and hearing the evidence of those who had been attacked and of assessing the reliability of their evidence identifying the appellant was a factor capable of resolving the doubt raised by the times shown on the videotapes. The reasons already given show that it was open to the jury to conclude that they should rely on the identification evidence in preference to the times shown on the videotapes. It cannot be said that no reasonable jury would not have returned the verdict of guilty. I would, therefore, dismiss the appeal.
SULAN J: This is an appeal against conviction.
The appellant was charged with four offences. The first count was attempted murder, contrary to ss 11 and 270 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The second count was wounding with intent to cause grievous bodily harm, contrary to s 21 of the CLCA. The third and fourth counts were common assault, contrary to s 39 of the CLCA. The appellant pleaded not guilty to these offences and was tried before a jury in the Supreme Court.
Prior to the commencement of the trial, the prosecution entered a nolle prosequi on count 1, and consequently only counts 2, 3 and 4 remained for the consideration of the jury. The appellant was found guilty of the three remaining counts.
Facts
The appellant was originally charged with a co-accused, AN, who was a youth at the time of the offending. Prior to the jury being empanelled, the prosecution entered a nolle prosequi against the co-accused. The trial proceeded against the appellant alone.
The charges arose from an altercation between two groups of men. For convenience, I will refer to the two groups as “the complainant group” and “the appellant’s group”.
The appellant’s group was said to have comprised the appellant and two other men. The identities of the other men are not relevant for present purposes.
The complainant group comprised four men: Robert Stone, his brother Rowland Stone, Benjamin Van Iersel and Joshua Wilton. In respect of the charge of wounding with intent to cause grievous bodily harm, the complainant was Robert Stone. As to the assault charges in counts 3 and 4, the complainants were Rowland Stone and Joshua Wilton respectively.
The prosecution case was that the complainant group, and the appellant and a group of his friends (including the two other members of the appellant’s group) had been at the Slug ‘n’ Lettuce Hotel in Parafield Gardens in the early hours of 22 January 2005, immediately prior to the incident. The hotel is located on Martins Road, a main road running approximately in a north-south direction. There were two public entrances to the hotel building. The main entrance to the hotel was from the car park, which was located on the northern side of the building. A fence separated the car park from Martins Road. There was also a smaller, side entrance on the western side of the building.
The prosecution case was that the hotel closed at approximately 2:30 a.m., at about which time the complainant group started to walk in a southerly direction along Martins Road. Approximately 300 m along Martins Road, in the vicinity of number 163, the complainant group was attacked by a group of three men, who between them were armed with a baseball bat and sword. Robert Stone was stabbed in the torso with the sword, Rowland Stone received an injury to his arm from the sword and Joshua Wilton was beaten with the baseball bat.
It was the prosecution case that the three men were the appellant’s group. The prosecution case was that the appellant was the man with the baseball bat. The charges of wounding with intent to cause grievous bodily harm and assault, which arose from the actions of the man with the sword, were based on joint criminal enterprise or aiding and abetting.

The defence case was that the appellant was not present at the scene of the incident and was not one of the attackers.
It was agreed between the parties that Clinton Shah, the cousin of the appellant, lived at 145 Martins Road. When these premises were searched on the afternoon of 22 January 2005, a scabbard was found in a garden shed in the rear yard and a baseball bat was found in a bedroom. It was the prosecution case that the appellant’s group had obtained weapons from the house of Clinton Shah on the way to the location of the attack.
On 12 February 2005, the house of Ross Gilligan was searched, and another baseball bat was found. Ross Gilligan was present with the appellant at the Slug ‘n’ Lettuce Hotel and it was the defence case that after leaving the hotel, the appellant walked directly to Gilligan’s house, where a party was held.
The following facts are consistent with the jury’s verdict. The findings were made by the trial Judge when she sentenced the appellant.
The appellant’s sister Mel and her friend Jenna were also at the hotel in the early hours of Saturday 22 January 2005. Evidence was led that as the groups left the hotel around closing time, the appellant saw his sister talking to Benjamin Van Iersel and said, “Watch out, that’s my sister”, or words to that effect.
The trial Judge found that Van Iersel left the hotel premises some time later and joined the other members of the complainant group. As they walked south along Martins Road, Joshua Wilton yelled out the word “faggots” several times. The case against the appellant was that the appellant and the two other men then armed themselves with a Samurai sword and a baseball bat. The appellant was in possession of the baseball bat.
The appellant’s group followed the complainant group down the Martins Road access road and attacked them. Prior to the attack, one of the members of the appellant’s group said, “which one of youse called us poofters?” The trial Judge concluded that the appellant hit Joshua Wilton with the baseball bat on his legs, arms and upper body. The trial Judge accepted that another member of the appellant’s group stabbed Robert Stone in the abdomen with the sword and struck Rowland Stone on the arm with the sword. The trial Judge found, consistent with the jury’s verdict, that the appellant either aided and abetted or engaged in a common purpose with the member of the appellant’s group who attacked Robert Stone and Rowland Stone.
Appeal
In its amended grounds of appeal, the appellant advanced one ground. The appellant contended that the verdicts of the jury on all three counts were unsafe and unsatisfactory as they were either unreasonable, or unable to be supported having regard to the evidence as a whole.
Arguments on appeal
The appellant’s case
Mr Ibbotson, who was counsel for the appellant both at trial and before this Court, identified eleven areas in which he submitted the evidence was insufficient to satisfy the jury beyond reasonable doubt of the appellant’s guilt.
First, Mr Ibbotson submitted that the identification of the appellant was based solely on the identification evidence of Rowland Stone. He submitted that there were a number of aspects of the evidence which were unsatisfactory, rendering the evidence unreliable.
Secondly, Mr Ibbotson submitted that the evidence of the other three members of the complainant group lacked probative force and contained what he described as discrepancies and inadequacies.
Mr Ibbotson submitted that the prosecution case relied heavily on the evidence provided by the surveillance video recorded at the hotel. Mr Ibbotson contended that the video footage served two purposes in the prosecution case: it showed that the appellant was present at the hotel, and it showed that the members of the complainant group were present. Significantly for the purposes of this appeal, the video footage also purported to show the times at which the appellant and the complainant group left the hotel.
Mr Ibbotson submitted thirdly that the surveillance video showed another group of males that could not be excluded as the attacking group, given the location of the other group, the time at which they were recorded and the appearance of one of the members of the group.
Much emphasis was placed during the course of oral submissions on another feature of the surveillance video. Counsel submitted fourthly that the evidence as a whole indicated that the attack must have occurred at some time between 2:15 a.m. and 2:23 a.m. The security surveillance video, coupled with a chart of identified times on the video, indicated that the appellant was in or around the hotel premises during this time.
Fifthly, the appellant drew attention to the evidence of five witnesses that there were two or three males in the vicinity of 159 or 161 Martins Road approaching the victims from the west. The appellant’s sixth and seventh identified areas of deficiency were the evidence on the prosecution case that the appellant said indicated a reluctance by the occupant of 161 Martins Road to speak to the police, and what the appellant claimed was evidence that there had not been a full police investigation of 159 Martins Road.
The eighth and ninth bases for the appellant’s argument were perceived deficiencies in the identification evidence given by one of the witnesses, Beverley Jackson. The tenth basis was that the accused gave evidence denying any involvement in the offences.
Finally, counsel submitted that the prosecution contention that the appellant’s group had gone to Clinton Shah’s residence to arm themselves with a Samurai sword and baseball bat was based on weak circumstantial evidence that was incapable of supporting a jury verdict beyond reasonable doubt. This submission was based, amongst other factors, on what counsel contended was the impossibility of the appellant having sufficient time to attend at Clinton Shah’s before the time of the attack, having regard to the times shown on the surveillance video.
The case for the DPP
Counsel for the Director addressed the issue of identification, and in particular the reliability of Rowland Stone’s selection of the image of the appellant from the videos as being the image of one of the attackers. Counsel contended that any weaknesses in the evidence of Rowland Stone did not compel a reasonable doubt by the jury, and that the trial Judge had given clear, comprehensive and appropriate warnings. It was his case that the evidence of Rowland Stone with respect to identification was the most reliable, and the weaknesses and inconsistencies in the identification evidence of the other members of the complainant group did not detract from Rowland Stone’s reliability.
Counsel for the Director submitted that there was no-one on the video who matched Rowland Stone’s (and possibly Van Iersel’s) description of the attacker. Counsel contended that the prosecution did not rely on the accuracy of the times recorded on the security video. On the prosecution case, precise times were not important, and times were approximate only. Counsel submitted that it would not have taken long for the weapons to be collected from the cousin’s house on Martins Road, and that if there was any error in the times given by the attending police officer, or shown on the video, there would be sufficient time for the attack to have taken place in the manner contended by the prosecution.
The issues on appeal
There were two primary issues at trial, which are now the central issues in this appeal. The first was whether the appellant had been correctly identified as one of the attackers. The second, related issue was whether it was possible for the appellant to have been one of the attackers, having regard to the evidence of a surveillance video from the hotel that showed the appellant in the grounds of the hotel at the time of the attack. The time of the attack, whether the surveillance video had accurately recorded the time of the appellant’s presence at the hotel, and the extent of the discrepancy between the various times referred to in evidence were therefore significant questions both at trial and on appeal. I will summarise the most important aspects of the evidence on each of these issues.
Evidence relating to identification
The trial Judge directed the jury that the appellant had agreed he was the person identified on the video tape by Rowland Stone and Van Iersel, with a shaved head, dark pants and a black top with red writing on the front and back. The trial Judge noted that the appellant had not admitted that he had a rat’s tail, and that he had not been questioned about a rat’s tail by either counsel.
The learned trial Judge in her summing up identified three instances of identification: at the hotel, when the appellant was said to have seen Van Iersel speaking to his sister; when the complainant group left the hotel and Wilton shouted “faggots” in the direction of the hotel; and at location of the attack. These three points of identification, and the links between them, were important to the prosecution case.
In relation to the first and second points of identification, the only evidence led was from members of the complainant group. In relation to the third point of identification, evidence was led from the complainant group, as well as Beverly Jackson, a resident near the location of the attack, and a group of people in a car travelling along Martins Road at the time of the attack. The trial Judge observed in her summing up that the prosecution had conceded that the evidence of the group in the car had not taken the case very far.
The trial Judge in her summing up suggested that the first identification took place in the most reliable circumstances of the three. The appellant admitted that he was at the hotel and that he was the person shown on the security video.
Robert Stone gave no evidence in relation to the first identification. He gave evidence that as the group were passing the side entrance of the hotel, he saw two or three people in the hotel car park, behind the fence. He gave evidence that his attention was drawn to these people because they were shouting obscenities at the complainant group and waving their arms around. He said that Wilton responded by yelling and swearing, but he could not remember what was said. Robert Stone did not identify these people. He did not remember if there were other people around.
Robert Stone was not sure if the people who were shouting at them outside the hotel were the same people who later attacked him and Wilton.
Robert Stone gave evidence that he left the hotel through the front entrance, before going through the car park gate and proceeding down the service road. He thought he saw Van Iersel talking to a girl outside the front entrance. He stated that the four members of the complainant group met at the front gate and started walking south along Martins Road together from there.
Robert Stone gave evidence that as they were walking down Martins Road, Wilton climbed a stobie pole, but fell down. Robert Stone stayed back to help him. They were about twenty metres behind the other two members of the complainant group. Wilton lagged behind Robert Stone. Robert Stone heard Wilton yelling and turned around to see him lying on the ground with a man standing above him hitting him with a baseball bat. He said that he could not see anybody else and the lighting was “pretty dim”. Robert Stone pushed this man to the ground. He recalled someone else stepping out of the bushes.
Robert Stone had no recollection of the height or build of the man with the baseball bat. He could not recall his face or hairstyle. When asked to describe his clothing, Robert Stone responded, “I know he was wearing black. That’s all I could see. The lighting wasn’t that good”.
Nor could he describe the second man, although he thought his build was not much bigger than his own and thought he may have been taller than himself, although he was not sure if the man was standing on the road or in the gutter. Robert Stone was not able to recognise anyone in a line up, which included the appellant, conducted on 25 February 2005. His evidence lacked particularity. No conclusions as to the identity of the attackers could be drawn from it.
Rowland Stone said he saw Van Iersel talking to two females just to the left of the pokie entrance doors, for five to ten minutes. When asked whether another person had contributed to the conversation, he said, “As far as I know, Chris Shah”. In cross-examination, Rowland Stone said he did not know anyone called “Chris Shah” at the time of the attack, and had used that name because he had heard the name after the events of that evening. In that regard, his evidence was not reliable as to the name of the person who had contributed to the conversation in the car park.
He described the man as having a shaved head with a rat’s tail, and wearing black jeans and a black long-sleeved T-shirt top with red writing on it. The man said, “That’s my sister. Leave her alone”. Rowland Stone said that Van Iersel responded by saying, “It’s okay mate, I’m talking to her friend”. The man then continued walking. Rowland Stone said he had seen this man before at the hotel. In cross-examination, Rowland Stone agreed there were a number of men with shaved heads, but not with rat’s tails, although he “didn’t really take any notice”.
Rowland Stone said that when they were about twenty metres south along the road from the pokies entrance, Wilton shouted “faggots” once. Rowland Stone said this was directed to two people. One was the man he had previously described and named as Chris Shah. The other man had a brown top with black pants. Rowland Stone said that these men did not react.
After walking down Martins Road, Rowland Stone gave evidence that Robert Stone and Wilton were fifteen to twenty metres behind him when he heard yelling and screaming. He ran back and the person who had stabbed Robert Stone swung the sword at him. The sword was one metre long with a black handle.
Rowland Stone said he had never before seen the man with the sword. He was around 6’ to 6’1” inches tall and of “fairly solid build”. His hair was shaved. Rowland Stone was able to discern his facial features. He was wearing a black top with blue or black jeans.
Rowland Stone said that the second man was 5’8” to 5’9” tall with a shaved head and a rat’s tail. He had a solid build. Rowland Stone did not notice anything about his face. He was wearing black pants and a black jumper with red writing.
Rowland Stone gave evidence that the third man was between 5’6” and 5’8” tall. He had a stocky build and short, almost shaved hair. He was wearing a brown-coloured T-shirt and black pants.
Rowland Stone said he had seen the man with the rat’s tail before in the main bar of the hotel, outside the pokies entrance of the hotel and on previous nights. The effect of his evidence was that the person with the rat’s tail, who was a member of the group who attacked him, was known to him from previous occasions.
Rowland Stone gave evidence that after the attack, the men who attacked them went north. Rowland Stone went to help his brother. The complainant group walked south for about twenty metres before Rowland Stone realised his brother had been stabbed. Rowland Stone then called the police, who arrived within minutes.
About one month after the incident, Rowland Stone did not recognise the appellant in the line-up. In the light of his evidence that the person was known to him, this is surprising. On 25 September 2005, some eight months later, he was shown some video images from the hotel and recognised the man who attacked him in the video images. That person he claimed was the appellant. Again, it is surprising that he claimed that he recognised his attackers on the video, yet he failed to do so in the line up months earlier.
Rowland Stone gave evidence that the four members of the complainant group and the two females were at the corner of the hotel. Rowland Stone said that Van Iersel talked to the girls for about five minutes.
Rowland Stone estimated that from the time he left through the front doors of the hotel to the time when the three men approached them on Martins Road was around fifteen to twenty minutes, although it could have been less - ten to fifteen minutes. This evidence is inconsistent with evidence of video images of the complainant’s group. The group were filmed exiting from the hotel at 2.15 a.m. and the assault took place, at the latest, at 2.25 a.m., but probably some minutes earlier. I will deal with that evidence later in these reasons.
Rowland Stone gave evidence that when he first saw the men approaching they were about thirty metres away and Wilton and Robert Stone were about fifteen metres away. Rowland Stone said it was quite dark; there were only the street lights and there were not many street lights in the vicinity.
Rowland Stone gave evidence that the police and ambulance arrived “pretty much all around the same time”.
In cross-examination, Rowland Stone agreed that two of the attackers had shaved heads. They were coming towards him. He had described one of the persons as having a rat’s tail. However, in cross-examination he conceded that he only saw the man front-on and that he never actually saw a rat’s tail.
In cross-examination, he initially stated that the person who he had nominated as having a rat’s tail had no distinctive features. However, he went on to agree that the person had a flat or wide nose, like a boxer’s nose, which appeared to have been broken a few times and was widened and crooked. He agreed it was very noticeable. The appellant does not fit this description. The evidence in cross-examination on identification conflicted with his evidence‑in‑chief.
Rowland Stone gave evidence that later on 22 January, he, Van Iersel and Wilton discussed the events of that morning. It was not clear from the evidence how Rowland Stone may have been influenced in his recall of events by that later discussion.
Wilton gave evidence that he saw Van Iersel talking to two females just to the left of the front door. He was standing about two metres away from Van Iersel and about two metres from the front doors. He estimated that Van Iersel was talking to these girls for fifteen to twenty minutes. At this point the Stone brothers had walked out of the front doors of the hotel and started walking south.
Wilton said during this conversation that someone – he was not sure who – said to Van Iersel, “That’s my sister”, to which Van Iersel responded, “That’s all right mate, I’m just talking to her friend”. Wilton described this man as about five and a half feet tall, medium build, with short hair and a rat’s tail. In cross-examination, Wilton said the man had a rat’s tail that was curly and was about an inch long. He was wearing jeans and a black jumper with a symbol on the front, although he could not recall the symbol.
Wilton said that as he was leaving, he saw three men standing by the pokies entrance. He had never seen these men before. Wilton gave evidence he could only remember one of the men. He had a black jumper, short hair and was similar in appearance to the man who had been speaking to Van Iersel. He had a similar jumper, similar build and the same haircut, with a rat’s tail.
Wilton gave evidence that the men were staring at them. He and Van Iersel caught up to the Stone brothers about twenty to thirty metres south. At this point, Wilton shouted “faggots” twice. He did not hear a response.
Wilton gave evidence that the group continued walking down Martins Road. A group of men approached them and one said, “Which one of you guys called us faggots?” Wilton estimated this was about five minutes after he had yelled out “faggots”.
At this point, Wilton estimated that he was three to four metres behind Robert Stone and the other members of the complainant group were about another ten metres south from him and Robert Stone.

Wilton said the voice was approximately three to four metres behind him. He saw a baseball bat. After the attack, Van Iersel asked for his mobile phone to call the ambulance. The police and ambulance arrived shortly afterward.
Wilton gave evidence that he did not have a chance to see the man with the baseball bat or his companions after he had been hit. When asked to describe the man holding the bat, Wilton said he was wearing a black jumper with a symbol on the front, and that was all he could remember before he was hit. When asked how the man wore his hair, Wilton said he had short hair with a rat’s tail. He had seen the man outside the hotel when Van Iersel was talking to his sister. Wilton could not describe the other two men. He could not see if they were carrying or holding anything.
In cross-examination, Wilton said he saw the baseball bat when he turned around, but was unable to describe the man who had hit him with the baseball bat.
In cross-examination, Wilton said that Van Iersel was talking to the girls for about ten minutes, or about five to ten minutes. Wilton agreed he left the hotel at about 2.15 a.m.
Wilton agreed the jumper was black and long-sleeved with a hood and pockets on the lower front. He said there was a red symbol or design on the front, with no words.
In cross-examination, Wilton said he did not know who he shouted “faggots” to, nor why he shouted it. He denied that there was any verbal altercation between the complainant group and another group of males.
Wilton agreed he had discussed with Rowland Stone and Van Iersel on 22 January at the hospital what had happened the previous night. He agreed the three differed in their versions of what they had seen and done.
In cross-examination, counsel then referred to a statement that the complainant group had been walking down the service road when four men came out of some bushes. Wilton stated that did happen, and he did not know who the four men were. This evidence was confusing. The other members of the complainant group did not suggest that the attackers came out from some bushes. Their evidence was that the attack came from behind them on the road.
Van Iersel gave evidence that he spoke to the two females for about five minutes. He was located about two metres to the left of the front doors. Van Iersel said that a man he had never seen before walked past him about ten metres to his right and said, “Watch out, that’s my sister”. Van Iersel looked at him for only a few seconds. He was about five and a half feet tall, of slim build, with a shaved head and a rat’s tail. He was wearing black jeans and a black jumper with red writing. Van Iersel responded, “That’s okay, I’m talking to her friend”.
Van Iersel stated that when he was at the southern boundary line of the hotel, Wilton shouted “faggots” three or four times. Van Iersel was not sure who this was directed towards. Van Iersel said there were about ten or fifteen people standing outside the pokies entrance. The inference that can be drawn is that the appellant’s group were not the only people in the vicinity at the time.
Van Iersel gave evidence that as they walked along the service road, he and Rowland Stone were about twenty metres ahead of Robert Stone and Wilton. He looked around and saw three males about forty metres away. They were too far away to identify.
He then heard someone yell “Who called us faggots?” The voice was coming from near the bushes. He turned around and saw nothing. He turned to run away, but looked back to see if the others were coming. He then saw a man approach him and Rowland Stone. The man was swinging a sword with a blade of approximately 1.2 metres. He said the man was about six feet tall, with a slim build, wearing a light-coloured shirt and jeans, with gelled hair. He did not see his companions.
Van Iersel was asked to watch some video images. He identified on several occasions “the same bloke that spoke to me in the car park”. When asked whether any of the three men were of similar appearance to that man, Van Iersel said that he was unable to say as it was too dark.
After a voir dire, Van Iersel was declared hostile and cross-examined by the prosecution. He said the three men were about seventy metres behind him when he saw them.
Van Iersel said that his statement to the police on 23 January 2005 was incorrect and he had signed it because he thought it was what the police wanted to hear. He also said he was scared of giving evidence and feared repercussions following a warning given to him three months previously by a man at the Slug ‘n’ Lettuce.
Van Iersel was asked to read out parts of his statement to the police, including a portion in which he said he recognised the three men as those who were watching them in the hotel car park. Van Iersel said this was not true, and he had said it to the police because Rowland Stone recognised them, and he wanted to help Robert Stone.
Van Iersel denied that he saw the man on the video as he was walking past the eastern side of the hotel, or that he was one of the three men he saw on Martins Road.
He agreed that in his statement he said:
The person I can see on the security footage wearing the black top with red writing on the front and back is very similar in appearance to one of the guys that attacked my friends on Martins Road that night. I am mainly using the clothing to identify him as one of the attackers, but his build, shaved head and rat's tail are also the same. The security footage isn't very good, making it difficult to see his face clearly.
but said in court that it was not true, and he had said that because Rowland Stone had said that. He agreed he had deceived the police officer.
Van Iersel agreed he had spoken to Wilton and Rowland Stone regarding what had happened the previous night, and that they had different versions. Van Iersel could not identify anyone in the identification parade held on 25 February 2005 as being one of the attackers.
In my view, the evidence pointing to the appellant as one of the attackers was unsatisfactory.
There was also some evidence given by a group of men who were in a car driving along Martins Road at the time of the attack. It was conceded by the Prosecution, and noted by the trial Judge in her summing up, that this evidence did not advance the case very far.
James Ricketts gave evidence that he was in the back passenger seat of the vehicle, with Jason Waite and Scott Dobbin; Benjamin Flavel was driving. He saw a man swinging on a sign post to pull it out of the ground, and the car slowed down to observe the man. Ricketts gave evidence that at this time he observed three men about 20 m behind the complainant group. He saw them for about 5 or 10 seconds. He gave evidence that it appeared to him that they were carrying “a couple of blunt objects, like maybe a bottle”.
Ricketts agreed that he had told the police on 7 February 2005 that two of the men had been carrying baseball bats and the third man had been carrying what appeared to be a bottle. He gave evidence that one of the baseball bats was a light wooden colour. He could not recall the other.
Benjamin Flavel saw a man swinging on the pole. He gave evidence that he then saw three men who appeared to be walking from a house; he later clarified that they appeared to be walking from the block of 161 Martins Road, rather than the house itself. The men were walking south, and were all dressed in dark clothing. Flavel gave evidence that one of the men had a white object in his hand. He could not identify this object, but said that it was quite thin and about 40 to 50 cm long. In cross-examination, he said it was straight and thought it looked like a trolley pole.
Flavel did not notice anything else about the men. He did not notice if the other two men were carrying implements, nor could he tell if they were male or female.
Dobbin did not recall seeing anyone in the area apart from a young man knocking down a speed sign. Similarly, Murphy gave no evidence on the identification of the attackers.
Waite saw the man pulling a speed sign out of the ground. Waite gave evidence that they saw “a few blokes come behind him”; these men were not directly behind but were at some distance. Waite thought there were three or four. He did not know whether they were male or female as it was dark and late; however, he thought they were probably male.
When asked if he recalled anything about them, Waite gave evidence that he thought they were “skinheads”; he could not remember why he thought that but there may have been some light shining off their heads. In cross-examination, Waite said that these men were not on the service road and were coming from a property. Waite did not see anything else.
The final witness called in relation to identification was Beverly Jackson. Jackson had made a statement to the police on 22 January 2005. She agreed her memory would have been better at that time, due to the passage of time and the fact that she had had a loss in her family in the months prior to the trial. The trial Judge made the following comments about Jackson’s evidence in her summing up:
You also would have regard to the manner in which Mrs Jackson gave her evidence and you may think that she was quite stressed in the witness box and also whether you can rely on the descriptions that she has given. They did seem to vary quite considerably from that which was given to the police initially. You may think that there is some strength in the proposition that Mr Ibbotson has put to you, that even if you looked at each and every individual, each of her descriptors, none of those met the descriptor of the accused. Those are matters for you to decide.
Jackson lived at 149 Martins Road, on the opposite side of the road from the hotel. She gave evidence that she went outside at about 2:15 to have a cigarette underneath her veranda, which faced Martins Road. Jackson heard loud voices coming from the left-hand side (which would have been from the north). They sounded as if they were coming from the service road. Jackson was able to see them as they passed a streetlight and estimated there were four or five males talking angrily amongst themselves.
Jackson gave evidence that she watched the men on and off as she did not want to stare at them. She stated that two of the men were carrying objects; one was a baseball bat of natural wood colour, and the other was a sword of 90 cm to 1 m length with something dangling from the handle. Jackson described the blade of the sword as having some curve in it. Jackson lost sight of the men as they walked down the street. Jackson gave evidence that she had them under observation for “a matter of a few minutes. Two to three minutes”.
Jackson was asked if she had seen any other men. She responded that “there was another two behind”, who she presumed were in the same group. In cross-examination, she clarified that there was a group of three males and then two others behind. She did not see any men in front of them.
The evidence of Jackson as to the appearances of the men was unclear. At some points, she confused the man with the sword and the man with the baseball bat, and later corrected herself. It also became apparent that her evidence in court as to identification differed significantly from what she had told the police in her statements, which were made at a time when she agreed her memory would have been better.
In particular, her evidence given in court about the man with the baseball bat differed from her description to the police, in terms of clothing, height and build. Neither description was consistent with the descriptions given by other witnesses.
It is clear that Jackson gave a very detailed description of a group of men in her statement to the police. However, this evidence differed from what was given in examination-in-chief in court. Jackson agreed that at the time of giving evidence she had very little recollection of the incident.
I consider that very little reliance can be placed on the evidence of Beverly Jackson when viewed in the light of the evidence as a whole.
In her summing up, the trial Judge drew attention to the fact that, when initially interviewed at the hospital, Rowland Stone failed to state that he had seen his attacker previously that night at the hotel. Further, Her Honour emphasised that no member of the complainant group identified the appellant in a line-up conducted approximately one month after the attack. Counsel for the defendant in his closing address observed that the appellant had indicated his desire to participate in a line-up a few days after the attack; however, it had not taken place until about one month later.
None of the witnesses positively identified the appellant as one of the attackers. The prosecution case relied upon the description given by the witnesses of their attackers. It relied on the statement about faggots and the fact that one of the attackers referred back to the earlier abuse of Wilton as the group left the hotel. There was also some consistency in the witnesses’ description of clothing worn by the person who had a baseball bat, and that worn by the person at the hotel who claimed to be the brother of the woman to whom Van Iersel was speaking.
There were, however, many discrepancies and inconsistencies in the evidence. I accept that, given the circumstances of the attack, the fact that it was dark, the fact that the complainant group had been consuming alcohol and that descriptions in any circumstances will almost invariably vary, some discrepancies in the evidence are inevitable.
However, the evidence was, in my view, unsatisfactory in many respects to which I have referred and, when considered with the evidence relating to time, which I will deal with, was such that, in my view, it could not be relied upon to support a conviction.
Evidence relating to timing
Richard Lucas was the manager of the Slug ‘n’ Lettuce at the time of the incident. Mr Lucas gave evidence that there were “upwards of 20 video cameras” in various locations around the building. The video system was installed and maintained by a security company, with a logbook of maintenance kept.
Mr Lucas said that each day at 7:00 a.m. he would load the tapes for the system, which would run for 24 hours. In addition to displaying images from the video cameras, the system also displayed the time and date. Mr Lucas gave evidence regarding how the system was programmed, and agreed that the relationship between the time recorded and the true time depended on the skill and care of the programmer. Because each unit ran independently, the times associated with each video would not necessarily be identical; there was no mechanism for a uniform time to be displayed on the images from all of the video cameras.
Mr Lucas gave the following evidence:
Q. Are the images captured by all of the cameras recorded on one or other of the video cassette recorders.
A. That is correct.
Q. Is it possible to view the images captured by an individual camera.
A. It is.
Q. Is it possible to program the system so that one can see the images from more than one camera at any given time.
A.It is.
Q. As far as the procedures are concerned, are tapes loaded into the video cassette recorders each day.
A. Yes, they are.
Q. At what time.
A. 7 o'clock in the morning.
Q. And for how long do the tapes run.
A. They record for 24 hours at a time.
Q. Is it time lapse photography in the sense that there is a delay between the recording of each image.
A. Not that I'm aware of, no.
Q. What's done with the tapes at the end of the 24-hour period.
A. They are locked away in the cabinet with the video recorders.
Q. Is the system programmed so that the day of the week and the time of the day that an image is recorded by each camera is in turn recorded on the tape.
A. They are.
Q. So if one looked at the tape, one could determine, assuming the system was working properly, what time of the day and what day of the week, month and year the particular image was captured.
A. Correct.
He went on to say:
Q. You've given evidence to the effect that the system works in such a way the time and the day and date are recorded on the images captured by the surveillance cameras.
A. Correct.
Q. How does one program the system so that the time and date are accurately recorded.
A. It's just a matter of programming a number of buttons in succession on each individual unit. Each individual unit has battery back-up, so if there is any discrepancy, it would be because one unit is I guess like a wrist watch, they don't coincide, there is no mechanism for them to be both running parallel.
Q. Like everything else, the relationship between the time recorded and the true time depends on the care and skill taken by the programmer.
A. Yes, it does.
In cross-examination, Mr Lucas gave the following evidence:
Q. And the system is designed so that, as best it can, it gives an accurate time and day as to when something occurs.
A. That's right.
Q. How long are those tapes kept for.
A. The tapes are kept for two weeks.
Q. Then they are destroyed.
A. Rerecorded.
Q. The multiplexer system, during the time you were there, was it regularly serviced or maintained.
A. Yes, it was regularly serviced by Reidel Security and a log was kept of that.
Q. Had they been responsible for installing it.
A. They had been.
Q. And they are professionals in that sort of thing.
A. I would think so.
Q. And there are upwards of in excess of 20 cameras throughout the hotel.
A. Upwards of 20 cameras, yes.
Q. And you were the one who told us that you had inserted the videos to go in for recording at 7 a.m. on 21 January 2005 to 7 a.m. on 22 January 2005.
A. That's right.
Q. And the system was functioning properly.
A. Absolutely.
Q. That was the multiplexer system.
A. Yes.
It was apparent that there was some discrepancy between the times recorded on different video cameras, which the trial Judge referred to in her summing up. The trial Judge indicated that these discrepancies would be a matter of seconds at most. The trial Judge also referred the jury to an aide-memoire which contained a running list of significant events and the times at which they occurred to demonstrate the discrepancy between the cameras. Her Honour did not refer to any particular discrepancies, but the aide-memoire shows, for example, that the camera outside the main entrance records the appellant entering the hotel at 2:18:28 a.m., whilst the camera inside the foyer of the main entrance records the appellant entering the hotel at 2:19:05 a.m.
Relevantly, the video camera shows the complainant group present at the hotel until approximately 2:15 a.m. The chart of identified times indicates that Robert Stone and Van Iersel exited through the front doors at 2:15:20 a.m.,with Rowland Stone and Wilton following at 2:15:37. This is the last sighting of any member of the complainant group recorded on the chart of identified times. The prosecution case was that the complainant group went through the car park to reach Martins Road, before walking south.
Between 2:15 a.m. and 2:23 a.m., the appellant is shown at 2:17:28, 2:17:33, 2:18:28; 2:19:05; 2:20:58; 2:21:00; 2:21:40; 2:22:37; 2:23:02 and finally at 2:23:04, at various locations around the hotel. There was no suggestion that the appellant had left the hotel to engage in the attack and returned subsequently.
The last two sightings showed the appellant exiting the hotel. At 2:23:02, the appellant was recorded as being in the foyer of the side entrance. At 2:23:04, the appellant was recorded as being outside the side entrance, walking in a northerly direction; that is, in the opposite direction to where the attack occurred. On the prosecution case, at some time shortly thereafter he must have turned and walked in a southerly direction. It would seem that there is no discrepancy between the times recorded on these two cameras.

In relation to the timing of the attack, evidence was led regarding the times at which the police and ambulance services were contacted and arrived at the scene. Constable Anesbury, a police officer, agreed that he received a direction over his radio at approximately 2:23 a.m. to attend the location of the incident. He gave evidence that it took him approximately 5 minutes to arrive at the scene. Constable Anesbury agreed that he arrived at the scene at approximately 2:27 a.m. Constable Anesbury stated that he called for an ambulance but it was already en route and arrived at the scene after him – “within five minutes” or “pretty much straight after we have made the call”.
Sergeant Dyki, another police officer, agreed in examination-in-chief that he received a message about the incident at 2:27 a.m. When he arrived, Constables Groves and Anesbury were already present. In cross-examination, Sergeant Dyki was asked to clarify whether he had received the call or had arrived at 2:27 a.m.; he stated that he had arrived at that time, but had not made a note of it. He gave evidence that prior to arriving at 2:27 a.m., he was aware of the incident via his radio, and that another unit had been tasked. He could not recall how long this was before 2:27 a.m.
Dr Moore, who treated Robert Stone at the Royal Adelaide Hospital, gave evidence regarding the timing of the arrival of the ambulance. He referred to the notes from the hospital file. Dr Moore agreed that the ambulance service had received the message and dispatched an ambulance at 2:25 a.m., and that the ambulance had arrived on the scene at 2:31 a.m.
The attack must, therefore, have occurred, at the latest, some time prior to 2.25 a.m. when the ambulance was called. It is highly likely that it occurred some minutes prior to that time, given Constable Anesbury’s evidence. If that were the case, and if the evidence of the times of sighting the appellant at the hotel on the video are correct, then on the most favourable interpretation of the prosecution case, the appellant had less than two minutes from the time of leaving the hotel to the attack. In that time, he had to go to the house, which was approximately half-way between the hotel and the location of the attack, obtain the weapon and return to the place of attack, which was some 300 metres from the hotel. It is likely that the time was shorter, given that Constable Anesbury arrived at the scene at 2.27 a.m. and that on his estimate, the call occurred at 2.23 a.m. If that were the case, then it would not be possible for the appellant to have been at the hotel and at the scene of the incident at the same time. At the very least, the evidence creates a significant doubt about the prosecution case.
Unsafe and unsatisfactory verdicts generally
To establish that a verdict should be set aside on the basis that it is unsafe or unsatisfactory places a high burden on the appellant. In R v Shueard, the Court of Criminal Appeal said:
To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt. In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given. This Court must not usurp the functions of the jury [citations omitted].[1]
[1] R v Shueard (1972) 4 SASR 36, 39.
In that case, the Court of Criminal Appeal drew attention to the fact that “there was evidence which, if believed, could have justified a reasonable jury in returning that verdict”.
In considering whether the jury’s verdict should be overturned, a court of appeal must have regard to the advantages enjoyed by the jury in observing testimony and other evidence first-hand. The majority in M v The Queen[2] therefore expressed the test as follows:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act at to set aside a verdict based upon that evidence.
[2] (1994) 181 CLR 487, 494.
Application to present case
The presence of the accused at the scene of the incident was a necessary element of all of the charges against him. It was therefore necessary that the jury was satisfied beyond reasonable doubt that the accused was present at the scene.
The identification evidence contained discrepancies and deficiencies. In my view, these discrepancies and deficiencies in isolation would provide an insufficient basis to conclude that it was not open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.
The question of the timing is of more concern. It is clear that if the times displayed on the security footage were accurate and the evidence regarding the arrival of the police and ambulance was accurate, the appellant could not have been present at the scene of the incident. As the trial Judge observed in her summing up, the discrepancy between the times shown on different video cameras around the hotel was a matter of seconds.
On the prosecution case, the first police officer was directed to the location at 2:23, the ambulance was contacted at 2:25 and the second police officer was directed at 2:27, but had been aware of the incident prior to being assigned to the location.
As noted above, the final sightings of the appellant on the security cameras were at 2:23:02 and 2:23:04. These images showed him exiting through the side door of the hotel, and were recorded by the inside and outside cameras respectively. The times shown on these two cameras are consistent with each other. The final images shows the appellant walking in a northerly direction, away from the location of the attack.
The evidence of Beverly Jackson was that the attackers were walking along Martins Road. There was no evidence that the attacking group was running.
After exiting the hotel at 2:23:04 a.m., therefore, it was necessary on the prosecution case for the appellant to have turned around, walked south down Martins Road, obtained the weapons, continued to the location of the attack some 300 m south of the hotel and carried out the attack, before the police and ambulance were contacted at 2:23 a.m. and 2:25 a.m. respectively.
Even if the attack occurred at 2:25 a.m., which seems to be the latest possible time, it was not possible for the appellant to have been the attacker based on the evidence before the jury.
Mr Brebner QC, who appeared for the respondent, agreed that it was necessary that either the police officer was incorrect by some minutes, or the video was incorrect, or both were incorrect, because if the times were accurate then the prosecution case did not add up. Mr Brebner QC conceded that the Crown case depended on the times being inaccurate in the sense of not reflecting the real time.
It was, in effect therefore, necessary for the jury to be satisfied beyond reasonable doubt that all the times displayed on the video cameras at the hotel to which the jury had been referred were inaccurate, and that the extent of the inaccuracy was such that the appellant had time to leave the hotel, obtain the weapons used and walk approximately 300 m down the road to carry out the attack.
There was no evidence that the security video was inaccurate to this extent. On the contrary, the evidence of Mr Lucas indicated that the system was well maintained and carefully used. There was no further evidence regarding the accuracy of the video system. Further, there was no evidence led on the accuracy of the times recorded by the police and ambulance.
Mr Lucas testified that the accuracy of the times displayed on the video would be based on the care and skill of the person entering the times. It may be that the times were entered incorrectly into the system, or that the times at which the ambulance and police were called were incorrectly recalled or recorded; however, in the absence of any supporting evidence, such hypotheses are merely supposition.
The question of timing was not a question on which there was conflicting evidence and it was open to the jury to prefer one witness’ testimony over another based on the manner in which it was presented. It was not, therefore, a question on which it could be said that the jury enjoyed an advantage which this court does not.
The presence of the appellant was, as I have noted above, a vital element of each of the charges. The onus was on the prosecution to establish that he was there, and to adduce evidence of that. If there was evidence that the appellant was not present at the scene, the onus was on the prosecution to rebut that evidence. In the circumstances of the case, there were two aspects to establishing his presence at the scene: identifying the appellant as the attacker, and establishing a timeframe for the sequence of events which enabled the appellant to have been present.
As to the identity of the attacker, the evidence was unreliable. When evaluated in light of the issues of timing, I consider that it was insufficient to sustain a conviction.
In relation to the timing, conversely, the combined effect of the security video footage, the testimony of the police officers and the ambulance log was to support the defence case that the appellant was not one of the attackers. This was evidence that directly contradicted the prosecution case. There was no evidence that called into question the accuracy of that evidence.
Conclusion
I consider that the evidence as to the identification of the appellant as one of the group that attacked the complainant group was unreliable. In addition, there was inadequate evidence to support the prosecution case that the appellant had left the hotel by the time the attack occurred. I therefore consider that it was not open to the jury to be satisfied beyond reasonable doubt of the accused’s presence at the scene of the attack, which was a necessary element of all charges.
The evidence was insufficient to sustain a guilty verdict. There was no suggestion that there was additional evidence that would have rebutted the reasonable hypothesis that the appellant was not at the scene. Consequently, I would allow the appeal and enter a verdict of acquittal.