R v Sumner - [2014] SADC 88

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SUMNER
Criminal Trial by Judge Alone
[2014] SADC 88
Reasons for the Verdicts of His Honour Judge Chivell
23 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with one count of attempted kidnapping and one count of causing harm with intent to cause harm – alleged to have attempted to force the victim into the boot of a car and then assaulted her when that attempt failed and she fell to the ground. Issues of identification, alibi and consciousness of guilt (lies).
Verdicts: Guilty on both counts.
Criminal Law Consolidation Act 1935 s 21, s 24(1), s 39(1), s 270A, s 285C(1), s285C(3); Evidence Act 1929 s 34; Juries Act 1927 s 7(1), referred to.
R v Collingridge (1976) 16 SASR 117; R v Zorad [1979] 2 NSWLR 764; R v Juric [2003] VSC 382; Craig v R (1933) 49 CLR 429; Davies v R (1937) 57 CLR 170; Alexander v R (1981) 145 CLR 395; Domican v R (1992) 173 CLR 555; Pitkin v R (1995) 69 ALJR 612; Festa v R (2001) 208 CLR 593; Strauss v Police (2013) 115 SASR 90; R v Bridgland, ATS & Winter [2013] SASC 203; Edwards v R (1993) 178 CLR 193; Shepherd v R (1990) 170 CLR 573; R v Wildy [2011] SASCFC 131; R v Hirst [2013] SASCFC 54; Broadhurst v R [1964] AC 441; Harris v R (1990) 55 SASR 321; W, JA v Police [2010] SASC 76, considered.

R v SUMNER
[2014] SADC 88
The Charges
Introduction
General Directions
Elements of the Offence
Count 1 – Attempted Kidnapping
Count 2 – Causing Harm with Intent to Cause Harm
Prosecution Case
- Agreed Facts
- Evidence of Ms Martin
Injuries Suffered
Description Given
Opportunity for Observation
- The Identification Process
- Other Witnesses
Carmen Dawes
Trevor Baillie
Rhys Marks
- The CCTV Evidence
- Evidence of Mr Sumner about the Identity of the Driver
- Arrest of Mr Sumner
- Record of Interview
- Rhys Marks’ Car
- DNA Evidence
The evidence of Senior Constable Jankovic
The evidence of Dr Duncan Taylor
Defence Case
- Alibi Notice
- Mr Sumner’s Evidence
Daniel Toomey’s Car
- Evidence of Kym Barnes
- Evidence of Rachel Livesey
- Intercepted Telephone Calls
- Mr Sumner Recalled
- Rebuttal Evidence
Analysis
- Identification
- Circumstantial Evidence
- Lies of the Accused
Conclusions

The Charges

Eamon Merrit Sumner is charged with the following offences:
First Count
Attempted Kidnapping (Sections 39(1) and 270A of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Eamon Merritt Sumner on the 19^th day of August 2012 at St Agnes, attempted to take or detain Barbara Thiere Martin without her consent, with the intention of committing an indictable offence against her, namely an offence against the person.
Second Count
Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Eamon Merritt Sumner on the 19^th day of August 2012 at St Agnes, caused harm to Barbara Thiere Martin, intending to cause her harm.
Mr Sumner elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr Mead. Ms Wilkinson appeared for the Director of Public Prosecutions.
Introduction
On 19 August 2012, Ms Barbara Thiere Martin was 70 years old. Early in the morning of that day, she was walking her dog in Kennedy Street at St Agnes, a north-eastern suburb of Adelaide. As she walked along Kennedy Street, she passed a white vehicle which was parked at the kerb. A man was standing at the rear of the car with one hand touching the open boot lid. When she was about level with the front of the vehicle, she was grabbed from behind with one arm of the assailant across her chest and the other hand on her mouth, and dragged back to the rear of the car. The man then attempted to forcibly put her into the boot.
Ms Martin resisted and eventually she fell to the ground at the rear of the car. She hit her head on the cement kerb or the lid of a stormwater drain depicted in the photographs Exhibit P3. The man then took hold of her hair and hit her head several times on the concrete, then stood on the side of her face with his foot, and then returned to the driver’s door of the car, got in, started the car and drove away.
General Directions
I remind myself of the following fundamental principles:
·Mr Sumner is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
·The burden of proving guilt rests on the prosecution. There is no onus on Mr Sumner to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of Mr Sumner.
·Mr Sumner elected to give evidence. He was under no obligation to do so. In doing so, he subjected himself to cross-examination by Ms Wilkinson. He denied each of the charges, and answered questions about the surrounding circumstances.
·Mr Sumner’s evidence should be assessed in the same way as the evidence of any other witness. In particular, it should not be given less weight because he is the accused in this trial. To do so would be to deny him the presumption of innocence.
·Even if I reject his denials beyond reasonable doubt, that does not bolster the prosecution case. For Mr Sumner to be convicted of any of these offences, I must be satisfied of the strength of the prosecution case beyond reasonable doubt.
·Mr Sumner gave notice of an alibi, and called evidence in support of it. In doing so, he does not undertake any onus of proof. The onus remains with the prosecution to disprove the alibi beyond reasonable doubt. Even if the prosecution succeeds in this, again its case is no stronger. I must be satisfied of the strength of the prosecution case beyond reasonable doubt for Mr Sumner to be convicted of either of these offences.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or even that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Each count on the information must be assessed separately, and the evidence relevant to that count assessed in isolation from the other count. The outcome of one charge does not necessarily require a similar outcome on the other.
Elements of the Offence
Each of the elements of these offences must be proved beyond reasonable doubt. The elements are:
Count 1 – Attempted Kidnapping
(1)an attempt to take or detain Ms Martin;
(2)the taking or detention was without Ms Martin’s consent;
(3)an intent to commit an indictable offence against Ms Martin, namely an offence against the person.
(Criminal Law Consolidation Act 1935 (‘CLCA’), s 39)
An attempt is an act which goes beyond mere preparation to commit a crime. The accused must have embarked on the commission of the crime (R v Collingridge[1]). When committing the attempt, the accused must intend the commission of the offence (R v Zorad[2]).
[1] (1976) 16 SASR 117
[2] [1979] 2 NSWLR 764
Count 2 – Causing Harm with Intent to Cause Harm
(1)harm being caused to Ms Martin
(‘Harm’ can be physical or mental harm, whether temporary or permanent. Physical harm includes unconsciousness, pain or disfigurement – CLCA, s 21);
(2)an intent to cause harm to Ms Martin;
(3)the absence of a lawful excuse to inflict harm on Ms Martin.
In this case, there was no dispute that there was an attempted kidnapping of Ms Martin, and that the offender caused harm to her with the intent to cause harm. The single issue in the case concerned whether the prosecution had proved beyond reasonable doubt that Mr Sumner was the offender (Defence Outline at T 40; Defence Address at T 463).
Prosecution Case
- Agreed Facts
A number of facts were agreed pursuant to s 34 of the Evidence Act 1929 (Exhibit P28). I therefore find the following facts proved without the need for evidence to be called:
1.1Police officers arrived at Kennedy Street, St Agnes at 7:09am on 19 August 2012.
1.2Mrs Barbara Martin was sitting on the ground near the letterbox of number 17 Kennedy Street.
1.3Police officers administered first aid to Mrs Martin’s head wound, which was bleeding, until an ambulance arrived at 7:27am.
1.4At about 7:30am police officers placed paper bags over Mrs Martin’s hands.
1.5At 7:36am ambulance officers found Mrs Martin to have a Glasgow Coma Scale (a scale measuring level of consciousness) of 15, indicating normal cerebral function.
1.6At 7:42am Mrs Martin left Kennedy Street in an ambulance and was taken to Modbury Hospital.
2.1On 19 August 2012 Dr Di Milnes was working as a medical officer in the Emergency Department of the Modbury Hospital. She examined Mrs Barbara Martin at 8:30am that morning.
2.2Mrs Martin was alert with a Glasgow Coma Scale (a scale measuring level of consciousness) of 15, indicating normal cerebral functioning. She had normal speech and no neurological deficit.
2.3Mrs Martin had a laceration and bruise to the back of her head. It was approximately 3 – 4 cm long. Surgical exploration of Mrs Martin’s head wound was undertaken in the Emergency Department. Her deeper scalp tissues were intact and there was no evidence of a skull fracture. Her head wound was cleaned and then closed with four surgical staples.
2.4Mrs Martin had grazes to both cheeks, her right elbow, right hip, back and both knees. She had bruising to her left middle finger, which was subsequently found to be fractured.
2.5Mrs Martin was kept in the Emergency Department under observation for a period of four hours before being discharged.
3.1The photographs of the finger and palm print impressions located on the vehicle (SA) WVE-584 by Crime Scene Investigator Jankovic were submitted to the Fingerprint Section of the South Australia Police for examination. The results of those examinations are set out in the table labelled “Schedule of Fingerprints Located on Vehicle (SA) WVE-584” in the column labelled “Result of Examination”.
3.2The term ‘identical’ in the “Result of Examination” column means that the impression was made by only one person.
3.3The term ‘unable to be identified’ means that from the detail available in the fingerprints taken from the accused at the time of his arrest in August 2012, this print could not conclusively be said to have been made by the accused as one of his fingers had not been printed completely at the time of his arrest in August 2012. However, based on records held by the South Australia Police of fingerprints taken from the accused at early times, fingerprint impression 6 can be said to have been made by the accused.
4.1Senior Constable Pike and Constables Dawson and Lynch, from Elizabeth Police Station, provided no information to the accused regarding the allegations against him, other than he was being arrested for a serious offence.
5.1The date shown on the CCTV footage obtained by Detective Olive from Quick Car Wash is accurate. The time shown in the CCTV footage obtained by Detective Olive from Quick Car Wash is accurate to within one or two minutes.
5.2The cameras at Quick Car Wash do not record continuously. They are motion sensitive and start recording when there is sufficient motion detected to activate them. No other vehicles or persons were captured by the CCTV cameras at the Quick Car Wash between 6:40:53am and 6:51:30am on 19 August 2012 other than what is shown in the footage on discs P18 and P19.
- Evidence of Ms Martin
Ms Martin said that she commenced walking her dog at about 6.30 a.m. on Sunday, 19 August 2012. Part of her walk took her along North East Road at St Agnes. She was heading in a generally north-easterly direction towards the Adelaide Hills. She was walking along the south-eastern footpath.
As Ms Martin proceeded along North East Road, she passed a car wash on the opposite side of the road. She said it was in the vicinity of the Ridgehaven Reserve, and indicated the position on the map, Exhibit P1.
As Ms Martin walked past the car wash, she saw a young man walking from behind the building at the left-hand end of the premises as she looked at it, the area she referred to as the ‘dog wash’. He walked down the driveway towards the kerb. She indicated the position on the photograph, Exhibit P2. She felt a ‘little apprehensive’, although she could not identify why. He did not particularly stare at her, although he may have looked at her casually. He was carrying a white drink bottle.
In cross-examination, Ms Martin said that she is long-sighted. She only needs glasses for reading, and had only worn them for about a year. She did not wear glasses for any reason in August 2012.
Ms Martin was clear that the man at the car wash was the same man she saw later, and who attacked her in Kennedy Street (T 48). She said that she could clearly see the face of the man from the other side of the road. He had a hoodie on, but it was back slightly and she could see the colour of his hair, as well as his face.
Mr Mead criticised this evidence, pointing out that Ms Martin could not mention distinguishing features on the man’s face. In fairness to Ms Martin, that may have been because the man had regular features.
Ms Martin said she continued up North East Road, and turned right into Benbowie Street. She turned right down Francis Street to Susan Street, and then turned right again onto Kennedy Street. However, after examining the photographs (Exhibit P3), Ms Martin quickly realised that she was mistaken. She did not turn down Susan Street, she turned down Doreen Street and then onto Kennedy Street (T 46). In cross‑examination, Ms Martin acknowledged her mistake. She explained that she had misread the street directory map, Exhibit P1, but when she saw the photographs, she realised her error. She denied that she was confused. She explained that she was ‘really nervous’ (T 67). She was referring to when she was giving evidence. I find this explanation satisfactory, and that Ms Martin’s mistake does not detract from the credibility or reliability of her evidence.
Ms Martin said that she saw a white car, with the boot up, parked in Kennedy Street. The car was near a stormwater drain, which is clearly depicted in Exhibit P3, photograph number 3. The car was dirty and the boot was empty. She noted that there was a red wire in the boot. A man was standing at the back of the car by the open boot, with his left hand holding the boot up (T 47).
Ms Martin said that as she approached the front of the car, the man came up behind her, put one arm across her chest and the other hand over her mouth, and began dragging her back towards the back of the car (T 48). Once at the back of the car, he tried to put her in the boot.
Ms Martin described what then happened as follows:
Q.    Once he had got you to the back of the car, what happened.
A.    He tried to put me in the boot.
Q.    Can you describe how he did that.
A.Yes, he got hold of me – I was wearing a jacket, he got hold of the jacket and was pushing the top of my body into the car, into the boot.
Q.    When he did that, did he still have a hand over your mouth.
A.    No.
Q.    When he took his hand off your mouth, what did you do.
A.    I grabbed hold of his hoodie, at the neck.
Q.    Were you making any noise.
A.    No.
Q.    How much of your body did he get into the boot.
A.    Only just the top half, my feet were still on the floor, pushing me over.
Q.Can you describe the male’s body position compared to the boot and compared to you.
A.He was standing, facing – facing me on this side of the car, and pushing me into the right – the left-hand side of the car, as like that (INDICATES).
Q.    You mentioned that you grabbed hold of his hoodie.
A.    Yes.
Q.    Did you do that with one hand or -
A.     Yes, one hand.
Q.    And what did you do when you grabbed his hoodie.
A.Hung on for dear life. I just hung on, hung on so he couldn’t push me any further in because if he did he would have to go in as well.
Q.Did you do anything else to the male at that stage.
A.I tried to scratch him.
Q.Where did you try to scratch him.
A.On his neck.
Q.Were you able to scratch him.
A.No. No.
Q.Why weren’t you able to scratch him.
A.I had acrylic nails on and they are very rounded and blunt.
Q.When you were trying to scratch him, were you still in, like, half in the boot at that stage.
A.Yes, I was, yes; I was pulling myself out by his hoodie.
Q.What happened as you were trying to pull yourself out with his hoodie.
A.Well, he pulled my hand off because, as I was hanging onto him, he couldn’t get my [sic] any further. So he pulled my hand off his hoodie and then he threw me down on the ground (INDICATES).
Q.When he threw you down on the ground, can you tell us where you ended up, if you look at photograph 3.
A.Yes, I ended up with my head on the cement, laying there.
Q.What happened whilst you were on the ground.
A.Well, I was screaming then, and he was telling me to shut up.
Q.And what kind of voice was he using when he was telling you to shut up.
A.Well, not shouting very loud but sort of panicky.
Q.And what happened whilst you were on the ground.
A.He stamped on my face.
Q.Which foot did he use to do that.
A.I don’t know.
Q.How were you positioned when he stepped on your face.
A.I was lying down, on my head. He was hanging onto my hair before banging my head on the ground.   And then when he got up, I was still lying with my head on the cement, that’s when he stamped on my face (INDICATES).
(T 49-50)
Ms Martin said that after these things occurred, the man ‘backed off’, went back to the car and said something, but she did not know what it was. She was ‘too busy yelling’ (T 52). When asked in cross-examination if the man said ‘That’s what you get for trying to rip me off’, she said she did not know (T 67).
Ms Martin said that after the incident, she was lying behind the car, with her head on the kerb. She got up ‘really quickly’ (T 53). The man started the car and drove off ‘very quickly’ (ibid).
Ms Martin said that after she got up, she shouted ‘Help me’ repeatedly. There was a man walking on nearby Avago Street with a Rottweiler dog. He was watching the incident and when she cried ‘Help me’, he turned around and walked the other way (T 53).
Ms Martin said that after the incident, other people came out of their houses and assisted her, and the police and an ambulance were called.
Injuries Suffered
Ms Martin was conveyed to Modbury Hospital after the incident. She suffered a number of injuries, including a cut on the head which required five staples, and bruising and abrasions to her back, legs, elbow and her face where the man stood on it. She also suffered a dislocated finger on the left hand. She said that this injury occurred when the man pulled her hand away from the hooded jacket after she had taken hold of it (T 57). Photographs numbered 9 to 25 in Exhibit P3 illustrate these injuries.

It is agreed that when ambulance officers examined Ms Martin at 7.36 a.m. at the scene in Kennedy Street, their assessment of her Glasgow Coma Scale level of consciousness was 15. This is a reading which indicates a normal level of cerebral function. A similar level of 15 was assessed by Dr Milnes at the Modbury Hospital at about 8.30 a.m.
Description Given
Ms Martin described her assailant as being a male in his 20s, with dark skin, of Aboriginal descent, with a slim build, without facial hair, brown eyes, dark hair cut short, about 5 foot 7 inches to 5 foot 8 inches tall, and wearing a grey hoodie with long sleeves, dark pants and running shoes.
Detective Senior Constable John Olive, the investigating officer in this matter, said that Mr Sumner was 5 foot nine inches or 5 foot 10 inches tall (T 168), which is slightly taller than Ms Martin’s estimate. I do not regard that as significant. In all other respects, Ms Martin’s description is consistent with the appearance and physical attributes of Mr Sumner.
In cross-examination, Ms Martin was asked to say whether the pants worn by the offender were jeans or trousers. She declined to say, simply asserting that ‘They were dark’ (T 69).
Ms Martin identified the dark grey hooded jacket, or ‘hoodie’, produced in evidence (Exhibit P4) as the one the assailant was wearing, saying ‘that’s it’ (T 55). Obviously, she could not know that it was precisely the same hoodie. I take her answer to mean that the one produced was identical to the one she saw.
Opportunity for Observation
Ms Martin said (by indicating) that during the time when the man was trying to push her into the car boot, his face was about one foot away from hers. At other times during the incident at Kennedy Street, she was observing him. She said ‘I was looking at him all the time’. She said the lighting at that time was ‘very bright’ (T 56).
From this evidence, it is established that Ms Martin observed her assailant from a variety of distances, ranging from the distance across North East Road to the car wash, to the distance from the footpath to the car as she walked past, to very close during the struggle.
It was suggested in cross-examination that because the assailant’s face was so close to Ms Martin’s face, her vision may have been affected because of her long-sightedness. She denied that. She said she only had trouble with writing. I accept her evidence about that. Clearly, observing the features on a face is entirely different from reading the written word.
I do not overlook that this must have been an extremely stressful experience; indeed, I do not think it is an exaggeration to suggest that, as she said, Ms Martin ‘hung on for dear life’ in Kennedy Street (T 49). She obviously thought that if the man succeeded in getting her into the boot, her life was in great danger. I think that she was well-justified in that belief. That was why she fought so effectively to prevent that from occurring.
- The Identification Process
On 10 September 2012, that is, about three weeks later, Ms Martin was shown a folder of 12 photographs by Detective Olive. The folder of photographs is Exhibit P5. The process during which Ms Martin examined the folder was recorded, and the DVD record of that process is Exhibit P6. During the interview with police (Exhibit P22), Mr Sumner had declined, on legal advice, to take part in an identification parade, or line-up.
The video-recording demonstrates that Ms Martin took some time examining the photographs before identifying photograph number 3, which she signed and dated (T 58). That photograph is of Mr Sumner.
Ms Martin said that she looked at all the other photographs before she made her selection, but ‘I knew who it was straightaway’ (T 59). Ms Martin explained that she waited for perhaps 20 or 30 seconds before selecting photograph number 3 because:
… I knew it was very important to – for people to see that I was definitely sure.
She said that she looked at all the photographs before signing photograph number 3 (T 60).
In cross-examination, Ms Martin said:
I glanced at all of them and when I saw No. 3, I knew that that was the person who attacked me. (T 71)
She said that there was nothing in particular about his face, she simply recognised it (ibid). She denied that the fact that the man in photograph number 3 is clean-shaven influenced her decision. Several of the other men in the photographs had stubble or facial hair, but none of them had such heavy beards that their facial features were hidden. She said:
No, that had nothing to do with it. That was the man. (T 73)
Ms Martin denied she suffered any concussion as a result of the incident. She acknowledged that she was ‘extremely upset’ after the incident. She denied that this has impacted on her ability to identify her attacker (T 73). She remained certain of her identification of Mr Sumner.
- Other Witnesses
Carmen Dawes
Ms Carmen Dawes was staying at her mother’s house in Kennedy Street and was woken by ‘a high pitch squeal’ at around 7 a.m. that morning. When she came outside the house, she saw the nose of a white vehicle parked between the culvert or stormwater drain and her mother’s driveway, as illustrated in photograph number 7 of Exhibit P3. She heard a car door slam and the car start up and move off ‘very quickly’ up the road (T 75).
After the car left, Ms Dawes saw Ms Martin enter her mother’s yard and she went to assist her. Ms Dawes and her husband waited with Ms Martin until the police and the ambulance arrived. She said that Ms Martin was ‘very distressed’ after the incident.
Trevor Baillie
Mr Trevor Baillie lived in Kennedy Street on the opposite side of the road. He said he was woken by a dog yelping at around the relevant time. He heard a lady calling ‘Help me’ repeatedly. He then heard someone say:
That’s what you get for fucking ripping people off. (T77)
As he was dressing, he heard a motor start up, which he recognised as that in a V8 Holden. He looked out the window and saw what he recognised as a white VQ model Holden Statesman drive off. He described himself as a ‘Holden man’ (T 78). When shown photograph 25 in Exhibit P3, Mr Baillie confirmed that it was ‘very similar’ to the vehicle he saw.
Mr Baillie quickly finished dressing and ran outside and remained with Ms Martin until the police arrived.
In cross-examination, Mr Baillie confirmed that the voice he heard yelling ‘That’s what you get for fucking ripping people off’, was a male voice (T 79).
In his address, Mr Mead submitted that this evidence was inconsistent with Mr Sumner being the offender. I disagree. It was a simple matter for the offender to say such a thing in case there was anybody within earshot, so that they may think that the incident concerned a drug deal gone wrong. Any suggestion that Ms Martin may have been involved in a drug deal is ludicrous, and was not suggested to her in cross-examination.
Rhys Marks
Rhys Marks was an acquaintance of Mr Sumner. He said they had known each other since they were children. Around 19 August 2012, he often stayed at Rachel Livesey’s house. Ms Livesey was Mr Sumner’s partner. Mr Marks described his lifestyle as ‘couch surfing’ at that stage. He acknowledged that, on 18‑19 August 2012, he was the owner of the white Holden Statesman, registered number WVE-584 (T 103). The transcript records that the registered number of the vehicle was WVE-589, but this is an error.
Mr Marks agreed in cross-examination that he probably drove Mr Sumner to his mother’s house on Friday, 17 August 2012 to pick up some clothes. He said he had done that a couple of times (T 108). He did not know whether Mr Sumner had put his clothing in the boot (T 109).
Mr Marks said that he attended a party at Ms Livesey’s house on Saturday, 18 August 2012. After the party, he drove to his girlfriend Christine’s house in Craigmore. He was not asked at what time this occurred. Mr Sumner came with him in the car. He could not remember where they had been before that (T 108). He loaned the white Statesman to Mr Sumner at 3 or 4 a.m. Mr Sumner told him he wanted to go and see a friend. He did not get the car back after that.
Mr Marks denied in cross-examination that he visited Kym Barnes at his house in the early morning of 19 August 2012 for the purpose of dealing in methylamphetamine, or for any other reason. He said that he was asleep at his friend Christine’s house in Craigmore at that time. He was still there the following morning when the police arrived (T 107).
Detective Olive confirmed that the white Statesman was not at that address when they visited in the early afternoon of 19 August.
Mr Marks’ evidence contradicted that of Kym Barnes, who said that Mr Marks did visit his house in the early morning of 19 August 2012, for the purpose of dealing in amphetamines. I discuss Mr Barnes’ evidence later in these reasons.
There is evidence that Mr Marks left the party at Ms Livesey’s house in the early hours of Sunday, 19 August, and then returned. He was not asked about that event. He declined to answer questions about dealing in amphetamines on the grounds of self-incrimination.
Mr Marks was obviously giving evidence adverse to Mr Sumner. It was submitted by Mr Mead that he was lying to cover up the fact that he was dealing in amphetamines. I do not accept the argument that Mr Marks’ desire to hide his drug-dealing activities was the motivation for him giving evidence that he lent his white Holden Statesman to Mr Sumner at 3 or 4 a.m. I do not see that the two issues are connected.
I also reject the evidence of Mr Sumner and Rachel Livesey that Mr Sumner did not leave Ms Livesey’s house that night, for reasons I will discuss later.
I see no reason to doubt Mr Marks’ evidence that he lent his car to Mr Sumner as he said. There is no possibility on the evidence that Mr Marks is in any way implicated in the offences before the court.
Of course, one can never be certain that a witness may be lying from a motive which is not apparent. There is no onus on Mr Sumner to demonstrate a motive for Mr Marks telling lies. The onus is always on the prosecution to demonstrate the contrary. But in all the circumstances of this case, I accept that Mr Marks lent his car to Mr Sumner in the way he described.
- The CCTV Evidence
Detective Olive attended at the ‘Quick Car Wash’ on North East Road at St Agnes, in the morning of 19 August 2012. He later measured the distance from the corner of Kennedy and Doreen Streets, where the attack took place, and the car wash, and it was 4.2 kilometres (T 173). He obtained a copy of CCTV footage from seven cameras installed at the car wash and the plan which sets out their respective positions is Exhibit P17. That plan also demonstrates the directions in which the cameras were facing (T 157). A disk containing the images captured by these cameras is Exhibit P18. A further disk with a more accessible format containing those images is Exhibit P19 and a schedule of the images is Exhibit P20.
It is convenient to refer to the schedule, which is an aide-mémoire to the contents of the disks. It is agreed that the times indicated are accurate to within one to two minutes (Agreed Fact No. 5.1). The relevant points arising from the images are:
·A white Statesman arrived at the car wash at 6:40:56 a.m. It drove into the driveway of the car wash and reversed into a parking space at the rear of the premises. At 6:42:41 a.m., the male driver of the vehicle walked past the camera holding a white object in his hands. It will be recalled that Ms Martin observed the man holding a white drink bottle (T 44), and that a white bottle was found in the car by the police (T 118). Exhibit P3, photograph 42, shows that the bottle was predominantly white. The man looked at the camera at 6:42:46 a.m. and his face is visible, although the image is not completely clear.
·A number of photographs of males mentioned during the course of the evidence were tendered. They included:
·K D (Kym) Barnes (Exhibit P27);
·R D (Rhys) Marks (Exhibit P27);
·M J (Michael) Hill (Exhibit P27);
·C R (Charlie) Lawrie (younger) (Exhibit P29);
·E R G Allen (Exhibit P30);
·C R (Charlie) Lawrie (older) (Exhibit P31).
All of those people, with the exception of Charlie Lawrie (younger) and Charlie Lawrie (older), were Caucasian in appearance and did not resemble the person depicted in the CCTV images from the car wash in any way. Charlie Lawrie (older) appeared to be an Aboriginal person, but he did not resemble the person in the CCTV image.
·The male was shaking a white item, which he was holding in his right hand, while walking at 6:43:36 a.m.;
·The white Statesman pulled out of the parking bay at 6:49:24 a.m. and drove towards the exit. At the exit, its left-hand indicator came on. At this point its numberplate was visible, showing the number WVE-584.
·The white Statesman sedan turned left onto North East Road and travelled north-east at 6:49:57 a.m.
- Evidence of Mr Sumner about the Identity of the Driver
In evidence, Mr Sumner said that Charlie Lawrie is about the same age as him, although he could be five or so years younger; he is an Aboriginal person and about the same height as him, maybe a bit shorter; he has a slim build, although he looks stocky in his arms; he has a short hairstyle, the same colour as Mr Sumner’s; his skin is about the same colour as Mr Sumner’s; and he was not sure where he was living in August 2012 (T 208-9).
When shown the images from the CCTV at the car wash, Mr Sumner said ‘It looks like Charlie’ (T 211).
It was then put to Mr Sumner that on 18/19 August 2012, Charlie Lawrie was in gaol. However, Mr Sumner remained sure that he was at the party (T 212). Mr Sumner was then shown a photograph of the man I have referred to as Charlie Lawrie (older) (Exhibit P31). Mr Sumner said he was not at the party (T 213). Eventually, Mr Sumner said that the man he recognised in the CCTV images from the car wash was not the Charlie Lawrie in Exhibit P29, but was in fact a third Charlie Lawrie. This third Charlie Lawrie, according to Mr Sumner, looks like him. He said ‘Most of all of us boys all look the same’ (T 214).
At this point, Mr Sumner’s evidence became almost farcical. I have already observed that Mr Sumner said initially that the Charlie Lawrie, whom he said the person in the car wash CCTV images resembled, was the same Charlie Lawrie who was at the party. He later said that it was not the same person who was at the party and was a third Charlie Lawrie (T 213). He then said that there were two Charlie Lawries at the party, namely the first Charlie Lawrie and the third Charlie Lawrie, but not the second Charlie Lawrie (T 215-6).
Mr Sumner was plainly lying about this. He was seeking to adjust his evidence to suit the questions, and obviously attempting to get around the fact, which was evident from the prosecutor’s questions, that the Charlie Lawrie he tried to implicate as being the person in the CCTV images was in fact in gaol.
- Arrest of Mr Sumner
On 20 August 2012, police attended at the house of Mr Sumner’s mother. When the police arrived, there was a vehicle parked out the front and Mr Sumner was crouched down next to the vehicle talking to the occupants. There were two people in the car, and Constable Dawson noted the presence of Daniel Toomey in the general vicinity of the car soon afterwards. Mr Sumner was arrested and taken to the Holden Hill Police Station. All conversations with Mr Sumner were recorded on video by Detective Sergeant Nash.
The presence of Mr Toomey when Mr Sumner was arrested assumed great prominence during the presentation of the defence case, particularly in relation to Mr Sumner’s initial denial that he travelled to his mother’s house in Mr Toomey’s car. I will discuss these issues later in these reasons.
- Record of Interview
After he was arrested, Mr Sumner was taken to the Holden Hill Police Station by police, arriving there at about 2.30 p.m. His arrival was recorded on video, and a disk showing Mr Sumner’s face on arrival is Exhibit P21.
Mr Sumner was then interviewed by Detective Olive in the presence of Detective Nash. The interview commenced at 2.36 p.m. The disk containing that record of interview is Exhibit P22 and the transcript, as an aide-mémoire to the disk, is Exhibit P22A.
Relevant matters arising out of the interview were:
·When advised of his right to have a relative or friend informed of his whereabouts after his arrest, Mr Sumner nominated Daniel Toomey. He said, ‘Cos he was there when I was arrested’ (page 3).
·Mr Sumner had a clear understanding of his right to remain silent during questioning and not answer questions unless he was required to do so by law (page 4).
·Disregarding parts excluded by consent, Mr Sumner said:
So if youse wanna ask me like questions about … Where my description or hey. I might have been seen in that area. You know I’m not stupid man. I know that I cruise around man. (page 5)
·When asked what he was doing at about 7 a.m. on 19 August 2012, Mr Sumner said ‘No comment’.
·When asked who was the driver of the vehicle WVE-584 at that time yesterday, and when advised that it was an offence to fail to truly answer that question, Mr Sumner said ‘No comment’ (page 10).
·When advised that the police proposed to conduct a forensic procedure by conducting an examination of his upper body, Mr Sumner said ‘Like looking for scratch marks, or …’ (page 11). It was submitted by Ms Wilkinson that this question demonstrated that Mr Sumner had esoteric knowledge of the incident. Ms Martin described her attempts to scratch her assailant. Having regard to the context of the interview, I am not satisfied that the question does demonstrate esoteric knowledge. I agree with Mr Mead that it was a reasonable question in the context of what he had been told earlier.
·When advised that the police proposed to conduct a formal identity parade, Mr Sumner said, after receiving legal advice, ‘No line up’ (page 14).
Detective Olive said that the photograph taken of Mr Sumner at the police station on the day of his arrest was the photograph included in the identification pack presented to Ms Martin on 10 September 2012.
- Rhys Marks’ Car
Exhibit P9 is an extract from an entry in the Register of Motor Vehicles relating to a white Holden sedan, registered number WVE-584. The certificate establishes that between 7 December 2011 and 6 March 2012, the registered owner of the vehicle was Kym Derwyn Barnes of Wallaroo. There is no evidence that the vehicle was registered to any particular person on the weekend of 18/19 August 2012.
Rhys Marks said that he was the owner of the white Holden Statesman, WVE-584 at the time of the relevant events (T 103). He said he purchased the car from Kym Barnes for a ‘small amount’ of money (T 107). When $250 was suggested to him in cross-examination, he thought it was around that amount ‘maybe, or a bit more’ (T 107).
Kym Barnes gave evidence for the defence. He confirmed that he sold the vehicle to Mr Marks, who paid him about $1,000 over a period of time (T 245).
In his closing address, Mr Mead, counsel for Mr Sumner, conceded that it is ‘perhaps obvious’ (T 464) that the white Statesman was the car seen by Ms Martin in Kennedy Street, St Agnes in the early morning of 19 August 2012. In my view, that concession is amply justified in view of the following evidence:
·Ms Martin’s general description of the car and her observation that the first two letters on the numberplate were ‘WV’ (T 53);
·Ms Martin’s evidence that the man at the car wash was carrying a white drink bottle, the video image confirming that, and the finding of a white bottle in the rear floor well of the white Holden Statesman;
·When shown photograph 26 of Exhibit P3 and the subsequent photographs, Ms Martin identified it as the car driven by her assailant (T 57);
·Ms Martin’s mention of the red wire in the boot, which is amply illustrated in the photographs;
·Ms Dawes’ evidence that she saw a ‘white vehicle’ outside her mother’s house in Kennedy Street;
·Mr Baillie’s evidence that he recognised the white car as a VQ Holden Statesman, which was ‘very similar’ to the vehicle in Exhibit P3, photograph 25;
·The DNA evidence, which I will discuss in the next section of these reasons, which provides strong support for the hypothesis that two of the three hairs found in the boot of the white Statesman came from Ms Martin.
- DNA Evidence

Exhibit P8 is an extract from an entry in the Register of Motor Vehicles. It establishes that a red Holden sedan, registered number S315-AML, was registered to Daniel Toomey between 1 June 2012 and 31 August 2012. I have already mentioned that Mr Toomey was an associate of Mr Sumner.
On 21 August 2012, police attended at Mr Toomey’s house. In the carport of the property was Mr Toomey’s red Holden sedan. Detective Brevet Sergeant Aland seized a bag in the boot containing items of clothing, including a grey hooded top similar to the one being worn by the man in the CCTV footage from the car wash. This grey hooded jacket became Exhibit P4.
Mr Sumner said that the grey hooded jacket, or ‘hoodie’, was not his (T 189). He said he had seen it many times at Daniel Toomey’s house. He said that he had in fact worn it on one occasion, probably for about an hour or so, about a week after he first saw it. He said he was sitting on the lounge with Mr Toomey watching television and he put the jacket on. He took it off when he went home with Ms Livesey in her car. He did not know how the jacket came to be in the boot of Mr Toomey’s car. He last saw it hanging on Mr Toomey’s coat stand a week or two before he was arrested (T 194-5).
As to the track pants he was wearing when he was arrested, Mr Sumner said that he had bought them three or four weeks before that time. He said that on 19 August 2012, these track pants were in Rhys Marks’ car when Mr Sumner went to Michael Hill’s house to collect his clothes.
The evidence of Senior Constable Jankovic
Senior Constable Jankovic was the crime scene officer who was called to collect forensic samples in this case.
He took reference samples for DNA analysis from Ms Martin at Modbury Hospital. He then attended at Kennedy Street, St Agnes, at about 8.35 a.m. and took the photographs which are Exhibit P3. He took swabs of what were apparently bloodstains in the vicinity of the drain cover depicted in the photograph (see Exhibit P3, photos 3, 4 and 5).
On 22 August 2012, Senior Constable Jankovic examined Mr Marks’ vehicle, WVE-584, and took various photographs of it. Photographs 38 to 40 depict the contents of the boot of the vehicle, and the red wire described by Ms Martin in her evidence can be plainly seen.
On close examination, Senior Constable Jankovic found three hairs in the boot of the vehicle at the positions indicated by the barcode labels in photographs 45 to 48 (T 117-18).
Forensic samples suitable for DNA analysis were also taken from Mr Sumner at the Holden Hill Police Station. These were used as reference samples in the DNA analysis.
The evidence of Dr Duncan Taylor
Dr Taylor interpreted the report of the forensic scientist who carried out the analysis, Dr Pamela Fietz. He agreed with her conclusions. The reports are Exhibits P13 and P14.
In relation to the three hairs found in the boot of the Holden, items 9, 10 and 11 of Exhibit P13, the hair which was item 10 did not include cellular material which would have made a DNA profile possible. However, hairs 9 and 11 did include that cellular material. In each case, DNA analysis of that material disclosed that it came from a single source – that is, a single person.
The analyst considered two competing hypotheses as explanations for the similarity of the profiles thereby obtained:
(a)that the DNA came from Ms Martin;
(b)that the DNA came from another unrelated individual.
Dr Taylor said that the similarities were such that it is two billion times more likely that Ms Martin was the source of the DNA in hair number 9 rather than another unrelated individual (T 130). A similar result was obtained in relation to item 11, except that the likelihood ratio in that case was 1.9 billion rather than two billion (T 130).
Having regard to the verbal scale adopted by Forensic Science SA, such results are expressed as providing ‘extremely strong’ support for the proposition that Ms Martin was the source of the DNA in the cellular material in items 9 and 11 (T 131).
As to the grey hooded jacket taken from the boot of the red Holden Statesman by Detective Aland (Exhibit P4), four samples were taken.
Tape lifts from the inner hood and inner cuffs of the jacket were analysed and produced a mixed DNA profile with four contributors. The DNA profile of the major contributor corresponded with the profile of Mr Sumner. The analyst considered two competing hypotheses as explanations for the similarity of the profiles thereby obtained:
(a)that Mr Sumner and three people were contributors to the sample; and
(b)that Mr Sumner is not a contributor to the sample and there are four other contributors.
Dr Taylor said that the similarities were such that it is 89 billion times more likely that Mr Sumner and three others were contributors. This is described as providing ‘extremely strong’ support for the hypothesis that Mr Sumner was the major contributor to that DNA profile.
A sample taken from a small blood-like stain on the front right-hand side of the jacket produced a DNA profile indicating that there had been three contributors and the profile of the major contributor corresponded with the profile of Mr Sumner. The analyst considered two competing hypotheses as explanations for the similarity of the profiles thereby obtained:
(a)that Mr Sumner was the major contributor and there were two other contributors; and
(b)that Mr Sumner is not the major contributor and that there were three other contributors.
Dr Taylor said that the similarities were such that it is 91 billion times more likely that Mr Sumner was the major contributor than the second hypothesis (T 137).
When considering the hypothesis that Ms Martin was one of the minor contributors, the analysis revealed that there was a likelihood ratio of 20 to 1 in favour of the hypothesis that Ms Martin was a minor contributor to that sample, against the competing hypothesis that she was not such a contributor. Dr Taylor described this as providing ‘moderate’ support for the hypothesis that Ms Martin was a contributor to that sample.
In cross-examination, Dr Taylor acknowledged that although it is not as simple as the proposition that 1 in 20 Caucasian people in South Australia might have provided a similar sample, ‘you would be in the right ballpark’. In other words, Dr Taylor acknowledged that 1 in 20 would provide a ‘fair indication of that number of people’ (T 143).
On this issue, I agree with the submission of Mr Mead that a likelihood ratio of 1 in 20 in favour of the hypothesis that Ms Martin was a minor contributor to that sample is statistically insignificant (see R v Juric[3] at [23] per Nettle J).
[3] [2003] VSC 382
Analysis of another blood-like stain on the left-hand side of the grey hooded jacket also provided extremely strong support for the hypothesis that Mr Sumner was the major contributor of two contributors to that sample, with a likelihood ratio of 92 billion, and an analysis of a further tape lift taken from the front of the jacket also provided ‘extremely strong’ support for the hypothesis that the major contributor to that sample was Mr Sumner, with a likelihood ratio of greater than 100 billion (Exhibit P14, page 2).
In each of these latter two samples, the support for the hypothesis that Ms Martin contributed to either of those samples is even less statistically significant than the sample with a likelihood ratio of 20 discussed above.
Analysis of swabs taken from the shoes seized by the police from Mr Sumner (Exhibit P16) disclosed that there was no blood on the shoes, and that tape lifts taken from the inner surface of each shoe provided a profile which was too complex for analysis because it contained the profiles of five or more individuals (T 141).
In summary then, the DNA evidence establishes that there is extremely strong support for the hypothesis that Ms Martin was in close proximity to, if not in, the boot of Mr Marks’ car prior to testing. There is also extremely strong support for the hypothesis that Mr Sumner had worn the grey hooded jacket, Exhibit P4, at some stage prior to testing, but there is no statistically significant support from the DNA evidence for the proposition that Ms Martin has come into contact with the grey hooded jacket.
Defence Case
- Alibi Notice
Mr Sumner, through his solicitor, gave notice by letter dated 18 July 2013 that he may lead evidence of alibi at the trial. The notice was rather vague in its terms. It stated:
This evidence would be to the effect that at the time of the offence he was at 31 Admiralty Circuit, Smithfield with Ms Rachel Livesey at the time of the alleged assault.
(The notice then provided an address and telephone number for Ms Livesey.)
The Director of Public Prosecutions certified that he received the notice on 18 July 2013.
Section 285C(1) of the Criminal Law Consolidation Act 1935 requires that such notice be given if a defendant proposes to introduce evidence of alibi at the trial. Section 285C(3) requires that:
(3) The notice—
(a) must be in writing;
(b) must contain—
(i) a summary setting out with reasonable particularity the facts sought to be established by the evidence; and
(ii) the name and address of the witness by whom the evidence is to be given; and
(iii) any other particulars that may be required by the rules;
(c) must be given within seven days after the defendant is committed for trial;
(d) must be given (to the Director of Public Prosecutions).
Mr Sumner was committed for trial in the Holden Hill Magistrates Court on 25 February 2013.
No objection was taken by Ms Wilkinson to the introduction of evidence of alibi in this matter, on the basis either that the notice lacked sufficient particularity or that it was given out of time.
Evidence was led from Detective Olive that he made several attempts to contact Ms Livesey and take a statement from her, but she did not cooperate. No objection was taken by the prosecutor to the introduction of alibi evidence in this matter on the basis of such lack of cooperation on the part of Ms Livesey.
- Mr Sumner’s Evidence
Mr Sumner gave evidence. He said that at the time of these events in August 2012, he was living at his mother’s house at Elizabeth East. However, he was also staying with his partner, Rachel Livesey, at her house at Smithfield. He said that most of his belongings were kept at his mother’s house.
Mr Sumner said that on Friday, 17 August, he needed to go to his mother’s house to collect some clean clothes. He asked Ms Livesey to take him, but she had no petrol. He then got in touch with Rhys Marks and asked him to take him there. Mr Marks drove him and Ms Livesey to his mother’s house in the white Holden Statesman. He had been in that car previously. His mother was not at home (T 181, 206). He collected some clothes and put them in the boot of Mr Marks’ car, apart from one jumper, which he put on (T 182).
When they returned to Ms Livesey’s house, Mr Marks received a phone call and told them that he had to leave straightaway. He drove off in the car with Mr Sumner’s clothes still in the boot.
Mr Sumner said that on Saturday, 18 August 2012, he remained at Ms Livesey’s house all day. They usually had a party on the weekend. People began arriving at about 6 p.m., there was music and people were drinking alcohol and having a good time. The party finished at 9.30 a.m. the following morning, 19 August 2012.
Mr Sumner said that the people at the party included Eric (presumably Eric Allen), Rhys Marks, two men called ‘Shane’, Charlie (Lawrie) and Neil (Sansbury).
Mr Sumner said that he had a few ‘bongs’ (which I assume is a reference to cannabis), but he did not drink alcohol. He did not leave the party. Mr Marks left the party a couple of times. The first occasion was early, before midnight, and he then returned with other people. He left a second time at about 2 or 3 a.m. This time, Charlie Lawrie and Neil Sansbury went with him (T 185).
Mr Sumner said that on Sunday, 19 August 2012, he wanted to have a shower after the party finished, but he could not because his clothes were still in Rhys Marks’ car. He called Mr Marks, who told him that he was at his girlfriend Christine’s house. Mr Marks told him that the car was at Michael Hill’s house, in Smithfield (T 186). Rachel Livesey then drove him to Michael Hill’s house. Mr Marks’ car was parked in the driveway. The windows were open and he saw his clothes were scattered on the back seat. He retrieved his clothes and chatted with Mr Hill, and then went back to Ms Livesey’s house and had a shower (T 187). He said he was at Mr Hill’s house at approximately 10 or 11 a.m.
Mr Sumner said that a few hours later he received a call from his mother, as a result of which he went to her house, where she told him that the police were looking for him. He said the police arrived after that and he was then arrested (T 188). Mr Sumner was obviously confused about this. He was not arrested until about 2 p.m. on Monday, 20 August 2012.
Mr Sumner denied that he left the party at all during the evening of the 18^th and the morning of 19 August 2012 (T 185).
Daniel Toomey’s Car
Mr Sumner said that Daniel Toomey was a friend of his – he had known him since they were children. They would see each other often.
Mr Sumner said that Mr Toomey was the owner of a red Holden Statesman, the same model as Rhys Marks’ car (T 191). Exhibit P8 is an extract from an entry in the Register of Motor Vehicles which establishes that Daniel John Toomey was, between 1 June and 31 August 2012, the registered owner of a red Holden sedan, registered number S315-AML.
Mr Sumner said that he did not see Daniel Toomey’s red Holden on 19 August 2012, the day of his arrest (T 192). He had not seen that car for ‘three, four days before that’ (ibid).
Mr Sumner repeated in cross-examination that it was Rachel Livesey who drove him to his mother’s house on 20 August 2012, the day he was arrested (T 234).
Rachel Livesey said that Daniel Toomey was present when Mr Sumner was arrested at his mother’s house. Mr Toomey’s car was there and the police were videoing the incident (T 336-7).
- Evidence of Kym Barnes
Mr Barnes is currently in custody. He said that he was an associate of Rhys Marks, who used to come to his house and sell him methylamphetamine on a regular basis. He knows Mr Sumner through Rhys Marks.
Mr Barnes said that Rhys Marks purchased the white Holden Statesman WVE‑584 from him for $1,000 in August 2012.
Mr Barnes said that Mr Sumner came to his house on the afternoon of Saturday, 18 April 2012 to pick up some car parts. He said Mr Sumner put them in the back of the Statesman at around 4.30 p.m. (T 245). He said that Mr Sumner drove the white Statesman that day (T 255). This contradicted Mr Sumner’s evidence that he had never driven the white Statesman (T 237).
Mr Barnes said that around 6 a.m. on Sunday, 19 April 2012, Rhys Marks went to Mr Barnes’ house to sell him methylamphetamine. He had two Aboriginal men in the car with him. He came inside for only 10 or 15 minutes (T 246).
In cross-examination, Mr Barnes said that the police came to his house on 20 August 2012, looking for the white Statesman. Before the police came, he was aware that they were looking for the Statesman in connection with an assault against an elderly lady. He told the police that he did not know where the car was. Before the police started the video camera, he told them that he had not seen the car at around 7 a.m. He did not tell them that he saw Rhys Marks in his car that morning. He had ‘an issue with trust with the police’ (T 250). Mr Barnes said that Mr Marks had been at his house at 5.30 or 6 a.m. that morning (T 250). This was a modification of his earlier evidence that the visit was at ‘around 6’ (T 246).
Mr Barnes admitted that he had several convictions for dishonesty. His convictions have involved making false reports to police and deceiving insurance companies. He said he was forced to commit the offences by bikies to whom he owed a drug debt. He said he pleaded guilty because the judge said he would just get a fine, so he decided it was the ‘easiest option’ (T 253).
Mr Barnes denied that he had had any conversations with Mr Sumner about what to say in court (T 256).
This evidence was obviously led to contradict the evidence of Rhys Marks that at the time of the offence, he was home at his partner’s house in bed. It remains a little unclear as to whether it in fact contradicts Marks’ evidence or not.
There is no doubt, on the objective evidence, that Rhys Marks’ car, apparently containing only one person, the driver, was at the car wash on North East Road between approximately 6.40 and 6.50 a.m. The eyewitnesses said that the assailant was alone in the white Statesman in Kennedy Street at around 7 a.m.
It seems to me that Mr Barnes’ evidence is capable of giving rise to the following inferences:
·Rhys Marks did go to Mr Barnes’ house in the early hours of Sunday morning in the white Statesman, but at a time early enough so that he could have handed the car over in order that the assailant could then drive it to St Agnes, a trip which on Detective Olive’s evidence would take 27 or 28 minutes (T 173). If the visit was at 5.30 a.m., there was more than enough time for this to occur. Even at 6 a.m., it was still possible.
·Mr Marks attended at Mr Barnes’ house in a different car from the white Statesman, having handed it over to the assailant at some earlier time. (Mr Barnes’ evidence cannot be reconciled in this way. Mr Barnes was at pains to point out that Mr Marks was driving the Statesman WVE-584. He volunteered this information without being questioned specifically about the make of vehicle, nor the registration number (T 245).)
·Mr Marks did not attend at Mr Barnes’ premises at all.
None of these scenarios supports Mr Sumner’s alibi. The inescapable facts are that it was Rhys Marks’ white Statesman that was at the Quick Car Wash at St Agnes at between 6.40 and 6.50 a.m. and that it was likely that it was Rhys Marks’ Statesman that was being driven by the assailant who attacked Ms Martin in Kennedy Street. Mr Mead conceded as much in his closing address (T 463).
There is no suggestion that the driver of the white Statesman at the Quick Car Wash, or in Kennedy Street, was Rhys Marks. He is a tall Caucasian young man who does not remotely resemble the person in the CCTV images, nor does he remotely fit the description of her assailant given by Ms Martin. In those circumstances, even if I reject Mr Marks’ evidence as to what he was doing that morning on the basis suggested by Mr Mead, namely, that he was involved in drug dealing, I do not see how that assists Mr Sumner’s case.
In any event, I formed a very unfavourable impression of Mr Barnes’ credibility. He gave his evidence in a glib and rather supercilious way, giving me the distinct impression that he was sticking to a script rather than recalling from memory of the events. The way he volunteered the make and registration number of the white Statesman, and his answers to suggestions that he had had the opportunity to concoct his evidence with Mr Sumner in custody, or while being transported to court (T 257-58), indicate that his evidence was obviously premeditated and rehearsed.
Mr Barnes’ convictions for dishonesty did not inspire confidence in the honesty of his evidence either.
In all the circumstances, I place no reliance on the evidence of Mr Barnes at all.
- Evidence of Rachel Livesey
Rachel Livesey was, in August 2012, Mr Sumner’s partner. She is still his partner.
Ms Livesey said that in the afternoon of 17 August 2012, at about 2 to 2.30 p.m., Mr Marks drove her and Mr Sumner to Mr Sumner’s mother’s house, in Mr Marks’ car, so that Mr Sumner could collect some clothes. In cross-examination, Ms Livesey said that Mr Sumner’s mother was at home and came outside and was arguing with Mr Sumner. Ms Livesey said that she stayed in the car. She said Mr Sumner grabbed some clothes and they ‘got out of there as quickly as we could’ (T 297). This was a direct contradiction of Mr Sumner’s evidence that his mother was not home when he went to collect his clothes on 17 August (T 181, 206).

Ms Livesey also said in cross-examination that on their way back to her house, at about Midway Road, just before Yorktown Road, Mr Marks got in the back of the vehicle and Mr Sumner commenced driving the white Statesman (T 298). This was another direct contradiction of Mr Sumner’s evidence that he had never driven Mr Marks’ car (T 237).
Ms Livesey said that after the visit to Mr Sumner’s mother, they returned to her house and caught up with friends for the rest of the evening. Mr Sumner slept in her bed that night (T 288).
Ms Livesey said that on Saturday, 18 August 2012, they tidied up from the night before, friends continued to pop in and out, and they listened to music. Mr Sumner was at her house throughout the Saturday, helping her clean up. On Saturday evening, various people came to the house, including Mr Marks and several others. Most of them were friends of Mr Marks. Eric Allen attended at her invitation. She stayed up until the party finished on Sunday afternoon (T 291).
Ms Livesey said that on Saturday evening, various people were at her house, drinking and consuming drugs. Rhys Marks was there with a couple of his friends. They were drinking and consuming methamphetamine and cannabis. To her knowledge, Mr Sumner was not using drugs. This contradicted Mr Sumner’s evidence that he used cannabis and that by the next morning he was ‘whacked’ (T 227-8). This was the reason he gave for not getting his clothes out of the boot of Mr Marks’ car.
Ms Livesey said that she used some cannabis that night. She said it ‘calmed me down a little bit’ (T 307). She said that she did not use methamphetamine anymore. When asked if she obtained ‘gear’ from a person she knew as ‘Uncle Hobby’, she denied it. She said she saw Uncle Hobby a couple of days earlier with a friend, who ‘probably’ got methamphetamine from him.
Ms Livesey said that apart from about one and a half hours from 10.30 p.m. on the Friday night (T 308), when she was in her room asleep, and on a couple of other occasions for periods of up to an hour, she did not go to sleep at all from Friday morning until Sunday night. She said that Mr Sumner did not leave her house at all (T 291). She said the longest period she spent in her room after about 3 a.m. was for about five minutes when she was putting things away (T 314-5). Ms Livesey said that by 6 a.m. on Sunday morning, she did not think that Rhys Marks was at the house. She thought that only Eric Allen, Mr Sumner and herself were present. At 7 a.m. that morning, she and Mr Sumner were sitting on the couch talking (T 319).
Ms Livesey said that she and Mr Sumner left the premises between 1 and 2.30 p.m. on Sunday, 19 August 2012 to go to Michael Hill’s house. They were driven to Mr Hill’s house by Eric Allen in his car. Mr Allen then dropped Ms Livesey back at her house, leaving Mr Sumner at Michael Hill’s house. He returned at about 6.30 p.m. that night (T 292).
Ms Livesey said that at about 9 p.m. on Sunday, 19 August 2012, she and Mr Sumner went to Daniel Toomey’s house. They drove there in Daniel Toomey’s car. Both Ms Livesey and Mr Sumner slept at Mr Toomey’s house that night. They went to bed at about 11 p.m. This is the first time she had been to bed since about 10.30 p.m. on Friday night, on her evidence. She said that she woke up at about 11 a.m. on Monday morning, 20 August 2012. Mr Sumner was still in bed with her (T 322).
Ms Livesey said that on Monday, 20 August 2012, she and Mr Sumner went to Mr Sumner’s mother’s house at about 1 p.m. to collect more clothes. She said that they were driven there by Daniel Toomey in his car. After they arrived at Mr Sumner’s mother’s property, the police arrived and arrested Mr Sumner (T 322).
- Intercepted Telephone Calls
Ms Livesey was giving evidence on the afternoon of Wednesday, 23 April 2014. She said she last spoke to Mr Sumner on 21 April, which was Easter Monday. Mr Sumner was in custody. They spoke to each other on the telephone ‘nearly every day’ (T 326). She said that they had not talked about the weekend before Mr Sumner was arrested (T 327). They had not talked about what happened at the time of his arrest ‘at all’ (ibid). She was aware that their telephone conversations were recorded. She said they had ‘not really’ talked about the court case ‘that I know of’. She did acknowledge that Mr Sumner had said something about the case ‘a couple of days ago’ in that he was finding it ‘annoying’ (T 327). In particular, Ms Livesey denied that anyone had told her what she should say about what had happened in court (T 328-9).
Ms Livesey denied that she was worried about coming to court (T 336).
A recording of a conversation, which both Mr Sumner and Ms Livesey acknowledged was between them, on Saturday, 19 April 2014 at 1.09 p.m. was played to the court. The recording is Exhibit P32. The transcript, which was admitted as an aide-mémoire, is Exhibit P32A.
Some points which arose during that conversation are as follows:
·Ms Livesey said ‘Yeah now I gotta go back Tuesday morning at 9:30’ (page 1). Later in the conversation, she said ‘Like the judge ah fucken Matthew turned around and said make sure you’re there at 9:30 instead then.
In cross-examination prior to the call being played, Ms Livesey said that she did not know that she had to attend court on Tuesday morning (22 April) at 9.30 a.m. (T 335).
·On page 3:
(Mr Sumner):        I know you do the right thing by me. Look when you come to court right.
(Ms Livesey):        Yeah.
(Mr Sumner):                Cos I told em that we didn’t we didn’t stay at Toomeys’ house.
(Ms Livesey):        Okay, Well that’s a bit stupid.
(Mr Sumner):        Yeah I told em it was the week before.
(Ms Livesey):               Well that’s retarded. That’s pretty fucked up considering when you were arrested we were with fucken Toomeys weren’t we you idiot.
(Mr Sumner):        Yea I told em I told em that me and you fucken went to mum’s house and Toomeys rocked up there.
(Ms Livesey):        And how did we get there?
(Mr Sumner):        We drove in your car.
(Ms Livesey):        We weren’t even in my car you idiot.
(Mr Sumner):        Yes we fucken were.
(Ms Livesey):        No we weren’t we were in Toomeys car you dickhead. Don’t you remember?
(Mr Sumner):        Nah.
(Ms Livesey):        We were in fucken Toomey’s car remember he drove us from his house to your mum’s.
(Mr Sumner):        I thought we drove I thought we drove in fucken in your car.
(Ms Livesey):        Nah you’re an idiot. That’s retarded like that’s pretty fucked up hey.
(Mr Sumner):        Well tell em anyway that we drove in your fucken car.
(Ms Livesey):        Well I can’t now. I can’t.
(Mr Sumner):        Yes you can.
(Ms Livesey):        No I can’t.
(Mr Sumner):        Why can’t ya?
(Ms Livesey):        Because I fucken can’t. Like what do you think I’m gonna get fucked fucked in the arse because like you want me to tell them something different I don’t think so. Like fucken hell that’s just like fucken stupid. I can’t do that like we were with Toomey’s in Toomey’s car like.
(Mr Sumner):        Yeah well don’t tell them that. Tell them that you can’t remember.
(Ms Livesey):        Yeah well then I’m gonna have to then they’ll just throw my evidence out of court anyway.
(Mr Sumner):        No they wont.
(Ms Livesey):        Yeah they will. Because there like trial now like you can’t do anything about it now.
(Mr Sumner):        If you tell them that we were in Toomey’s car they are going to fuck me alright.
(Ms Livesey):        Why?
(Mr Sumner):        Because they’re trying they’re trying to say that fucken that they found the jacket in Toomey’s car this and that that fucken that I told Toomey to get rid of it this and that.
(Ms Livesey):        Ok.
(Mr Sumner):        So they fucken they were drilling me the whole fucken Thursday on the stand.
(Ms Livesey):        Yeah they are gonna drill me too. Your lawyer already said like they’re they are gonna turn around and tell me that I’m lying and shit.
(Mr Sumner):        Yeah that’s what they were trying to do with me.
(Ms Livesey):        But yeah, but your lawyer said don’t even listen to them.
(Mr Sumner):        Yeah. Don’t even listen to them babe. Just keep on telling them.
(Ms Livesey):        I will.
(Mr Sumner):        Just keep on telling them that I was fucken with you.
(Ms Livesey):        Yeah.
(Mr Sumner):        Which I fucken was anyway.
(Ms Livesey):        Yeah, I know.
(Underlining mine)
Not only does this conversation contradict Ms Livesey’s evidence that they had not really spoken about the court case, it also contradicts her evidence that no one had spoken to her about what she should say in court.
In my opinion, the words used by Ms Sumner at the commencement of the passage quoted above, and underlined by me, clearly indicate that Mr Sumner knew very well that what he said in court about staying elsewhere than at Mr Toomey’s house was a lie, and that he was asking Ms Livesey to back him up on that because ‘I know you do the right thing by me’.
When Ms Livesey was questioned about this, she said that she did not think that she needed to tell the court about the conversation. This was clearly a deliberate lie. She knew very well how important the conversation was. Neither Mr Sumner nor Ms Livesey is unintelligent. Mr Sumner was clearly aware of the forensic significance of the jacket, and Ms Livesey was clearly aware that if she lied about not being in Toomey’s car, the lie would be detected. This became apparent in a later conversation, on Monday, 21 April 2014, when she referred to the fact that the police were videoing at the time Mr Sumner was arrested.
The telephone conversation between Mr Sumner and Ms Livesey on Sunday, 20 April 2014 at 9.48 a.m. was also played to the court. The recording is Exhibit P33 and the transcript, admitted as an aide-mémoire, is Exhibit P33A.
Some points which arose during that conversation are as follows:
·On page 2:
(Mr Sumner):        You understand what I said yesterday, hey?
(Ms Livesey):        What do you mean?
(Mr Sumner):        When I told you what I told them?
(Ms Livesey):        Yeah, course I did.
(Mr Sumner):        Yeah, cos they asked me, they asked me what I was doing right and I told them that on the Friday Rhys took me and you up to mum’s house so I could get my clothes.
(Ms Livesey):        Yeah.
(Mr Sumner):        I come back to your house. They asked me what happened and I told them that fucken like we had a bit of a party on Saturday.
(Ms Livesey):        Yeah.
(Mr Sumner):        Which we did. They asked who was there and I told them I couldn’t remember everybody.
(Ms Livesey):        Yep.
(Mr Sumner):        I don’t know who was there. I told them I was sitting with you most of the night. Walking around in the house.
(Ms Livesey):        Yep.
(Mr Sumner):        Then they said right how did you get your clothes back. I told them that you give me a lift around to Mick’s house the next day.
(Ms Livesey):        Yep.
(Mr Sumner):        To get my clothes and then we went back to your house.
(Ms Livesey):        Yeah.
(Mr Sumner):        And that’s what I told them. They asked me how did we get up to mum’s house. I told them that we drove up there, you drove, you drove me up there.
(Ms Livesey):        Yeah well you’re an idiot. Ah well.
(Mr Sumner):        But yeah, cos they found, cos they found fucken I don’t know, they found a jacket or some shit in Toomey’s car.
(Ms Livesey):        Yeah.
(Mr Sumner):        And it had my DNA on it.
(Ms Livesey):        Yeah.
(Mr Sumner):        And I told them that I put it on at Toomey’s house a cup, about a week or so ago.
(Ms Livesey):        Yep.
(Mr Sumner):        That’s how my DNA would have got on it.
(Ms Livesey):        Yeah well it wouldn’t even have lasted that long so.
(Mr Sumner):        Yes it would have. DNA –
(Ms Livesey):        No it wouldn’t have.
(Mr Sumner):        DNA is DNA it stays on there for fucken ages.
(Ms Livesey):        Mmm hmm
(Mr Sumner):        What
(Ms Livesey):        Yeah
(Mr Sumner):        So yeah they found it in Toomey’s car or some shit. Toomey said it was his jacket, so I don’t know, I don’t know what’s going on there.
(Ms Livesey):        Yeah.
(Mr Sumner):        But yeah, make sure that you tell them that you drove me to mum’s house.
(Ms Livesey):        I can’t.
(Mr Sumner):        Yes you can.
(Ms Livesey):        No I fucking can’t.
(Mr Sumner):        Oh you’re going to just drop me straight in it then.
(Ms Livesey):        Well, der –
(Mr SumnerThanks.
(Ms Livesey):        Like I can’t help that hey.
(Mr Sumner):        So what are you just going to drop me straight in it.
(Ms Livesey):        Oh well if that’s what you think then no worries. Right there’s no fucken way I can do anything about that now.
(Mr Sumner):        Yes you can.
(Ms Livesey):        No I cannot.
(Mr Sumner):        What so you’re going to tell them that Toomeys drove us up there.
(Ms Livesey):        Well he did.
(Mr Sumner):        No he fucken didn’t.
(Ms Livesey):        Yeah he fucken did. Remember.
(Mr Sumner):        No he didn’t. Remember.
(Ms Livesey):        Yes he did. In his car.
(Mr Sumner):        No he fucken didn’t.
(Ms Livesey):        Well whose car was it then dick?
(Mr Sumner):        It was your fucken car.
(Ms Livesey):        Really. So I’ve got, I got a blue Commodore do I?
(Mr Sumner):        No you don’t have a blue Commodore. You’ve got a fucken Ford.
(Ms Livesey):        No I don’t whatever fucken.
(Mr Sumner):        You know they’re recording my phone calls hey.
(Ms Livesey):        Well der like.
(Mr Sumner):        Well der hello.
(Ms Livesey):        I can’t help that can I? Fucken Jesus.
(Mr Sumner):        Fucken hell man. Fucken click on dick head.
(Ms Livesey):        Oh yeah, no worries hey. Whatever.
(Mr Sumner):        I’m trying to fucken talk to you.
(Ms Livesey):        Yeah, yeah.
…
(Mr Sumner):        I’m not. I’m just trying to fucken. I’m just trying to tell you, you know what I mean?
(Ms Livesey):        Yeah. Yeah.
(Mr Sumner):        That if you tell them that it’s gonna fucken, it’s gonna sink me.
(Ms Livesey):        Well I don’t see how.
(Mr Sumner):        Because that’s how they’re connecting me.
(Ms Livesey):        Yeah but that’s you know, that’s inevitable. That you know, that’s (inaudible) thing.
(Mr Sumner):        No it doesn’t.
(Ms Livesey):        (sighs)
(Mr Sumner):        That’s how they’re connecting me to it. Or they’re trying to anyway.
(Ms Livesey):        Yeah well you’re a fucken you’re a stress head.
(Mr Sumner):        How am I a stress head babe?
(Ms Livesey):        Cos you are. Listen to ya. No wonder you’re fucken stuck where you are.
(Underlining mine)
Again, I consider the words spoken in this conversation to be clear evidence that Mr Sumner was attempting to influence Ms Livesey to change her evidence about who drove them to his mother’s house before he was arrested. The intonations of the conversants indicate clearly to me that Mr Sumner knew very well that what he was suggesting was untrue, and that he was pretending to have a different memory from her because he was conscious of the fact that their conversation was being recorded; for example, Mr Sumner’s use of the word ‘remember’ which, by his intonation, was clearly intended to pressure her, rather than being a genuine question.
Further, after Mr Sumner reminded Ms Livesey that his calls were being recorded, he said to her ‘click on dickhead’, an obvious exhortation, like ‘wake up’, to stop saying that they went in Mr Toomey’s car.
In cross-examination, Ms Livesey said that she did not tell the court about this conversation, even though it clearly contradicted her evidence that she had not been told what to say, because ‘it was a pretty silly conversation’. She said she had forgotten about most of it. When she was asked what she meant by the word ‘inevitable’, she said that she did not know what the word meant. She just thought it ‘sounded good’ (T 347).
Again, I have no hesitation in disbelieving Ms Livesey’s answers on this topic completely, for the reasons I expressed earlier. Her answer about the word ‘inevitable’ was completely disingenuous.
The telephone conversation on Monday, 21 April 2014 at 9.50 a.m. was also played to the court. The recording is Exhibit P34 and the transcript, admitted as an aide-mémoire is Exhibit P34A.
Some points which arose during that conversation are as follows:
·Page 3:
(Ms Livesey):        Yeah, you’re an idiot, your not, your not thinking very clearly.
(Mr Sumner):        No I’m not.
(Ms Livesey):        At all. Do ya remember when you got arrested they were filming us.
(Mr Sumner):        Yeah, they were.
(Ms Livesey):        Yeah I know.
(Mr Sumner):        I watched it.
(Ms Livesey):        Can you see um –
(Mr Sumner):        No you can’t.
(Ms Livesey):        – the car in the background
(Mr Sumner):        No you can’t.
(Ms Livesey):        Yeah, I don’t know.
(Mr Sumner):        Ya can’t babe. They had it on me the whole time.
(Ms Livesey):        Yeah but, what ya can’t see it even in the background.
(Mr Sumner):        Na.
(Ms Livesey):        Ok.
(Mr Sumner):        Ya can’t babe, I watched it.
(Ms Livesey):        Alright.
(Mr Sumner):        They let me watch it.
(Ms Livesey):        Yeah.
(Mr Sumner):        They let me watch the one, where they, where they’re sayin’ that its me.
(Ms Livesey):        Yep.
(Mr Sumner):        You can see, you can see it’s like somebody, like you can’t see its me.
(Ms Livesey):        Mmm ok.
(Mr Sumner):        You can see its somebody though.
(Ms Livesey):        Yep.
(Mr Sumner):        Cunts have got a fucken hood on man.
(Ms Livesey):        Ok.
(Mr Sumner):        You’ll be able to tell anyway, cos they’ll probably show you.
(Ms Livesey):        Nah, they wont.
(Mr Sumner):        Why?
(Ms Livesey):        Cos I don’t see, I don’t get to see any of the evidence.
(Mr Sumner):        Don’t ya?
(Ms Livesey):        No, I don’t need to anyway.
(Mr Sumner):        Why?
(Ms Livesey):        Cos I know it wasn’t you.
(Underlining mine)
In summary, the contents of the conversations recorded in the telephone calls, parts of which I have outlined here, completely destroy whatever credibility or reliability the evidence of Mr Sumner and Ms Livesey may have retained. It shows that:
·Ms Livesey was not telling the truth when she said she did not know she had to attend court on Tuesday, 22 April 2014;
·Mr Sumner was urging Ms Livesey to lie about who drove them to his mother’s house on Monday, 20 August 2012;
·he knew it was untrue when he gave that evidence about that matter in court (T 234);
·he knew that the grey hooded jacket had great forensic significance because it fitted the description of the jacket worn by the man at the car wash, and it had his DNA on it;
·he wanted to distance himself from Mr Toomey’s car so that it could not be suggested that he left it in there;
·Ms Livesey’s denials about these conversations before they were played to her were obviously untrue, and deliberately so, which indicates that she well knew that they involved an attempt to concoct evidence, and were not merely clearing up a misunderstanding;
·Mr Sumner concocted the story about how he put the jacket on at Mr Toomey’s house to explain how his DNA was on there;
·Mr Sumner continued to press Ms Livesey to say she drove him to his mother’s place on the Monday in subsequent conversations;
·Ms Livesey seemed prepared to lie if she thought it could not be detected on the video taken by the police at the time of his arrest;
·the intonations in the voices of the conversants in these conversations clearly indicate that at various stages they reminded each other about the fact that their conversations were being recorded. They would then slip back into exchanges like ‘No he didn’t’, ‘Yes he did’ to show, for the benefit of the recording, that Mr Sumner’s attempts to distance himself from the car had been a lapse of memory rather than a concoction.

Mr Sumner’s comments about the images from the CCTV in the car wash, ‘You can see, you can see it’s like somebody, like you can’t see its me’, when combined with his later comment, ‘You’ll be able to tell anyway, cos they’ll probably show you’, are particularly illuminating.
When asked about this part of the conversation during cross-examination, Mr Sumner said:
Yes, but I was meaning ‘No, you can’t see it’s me. You can’t see it’s not me’. I am pretty sure I said ‘Yeah, the person’s got a hood on, or some shit’. That’s what I reckon I said. (T 409)
In my view, despite his protestations to the contrary, Mr Sumner was indicating that he was particularly worried about the image on the video, and whether his features could be seen. He wanted Ms Livesey to check the video, because ‘You’ll be able to tell’.
Ms Livesey’s comment ‘Cos I know it wasn’t you’, was clearly for the benefit of the recording.
- Mr Sumner Recalled
Mr Sumner was recalled to give further evidence in light of the evidence about his telephone conversations with Ms Livesey outlined above.
In summary, his evidence was as follows:
·He was confused about Ms Livesey driving him to his mother’s house.
·When Ms Livesey told him that she did not drive him, he panicked because he had told the court the opposite.
·He was panicking because the grey hoodie was found in Mr Toomey’s car and it had his DNA on it and the DNA of Ms Martin.
·When Ms Livesey told him that it was Mr Toomey who drove them to his mother’s house, he did not know what to do.
·He now recalls that it was in fact Mr Toomey who drove them to his mother’s house.
·He asked Ms Livesey to tell the court that she drove him rather than Mr Toomey, because he was scared as his DNA was found on the jacket in Mr Toomey’s car.
·He knew that this was a key piece of evidence against him.
(T 376-77)
·In cross-examination, Mr Sumner said that before he made the call on 19 April, it was his belief that Ms Livesey had driven them to his mother’s house.
·However, he knew that they had stayed at Mr Toomey’s house the night before.
·He told Ms Livesey to say that they did not stay at Mr Toomey’s house because he knew he got it wrong in court about Mr Toomey.
·He wanted Ms Livesey to lie about who drove him to his mother’s house because he thought that if the court knew he was in Mr Toomey’s car, this would link him to the jacket and that that was part of the evidence against him.
·The truth about who drove him to his mother’s house slipped his mind before he gave evidence in court.
(T 390-93)
·He said he did not remember telling Ms Livesey ‘Just keep on telling them that I was fucking with you’ (T 400).
·He could not remember why he had said ‘Click on dickhead’ to Ms Livesey.
I reject his evidence about these matters, for the reasons I have already expressed.
- Rebuttal Evidence
Detective Olive was recalled to give evidence in rebuttal of parts of the evidence given by Mr Sumner. The evidence was received over Mr Mead’s objection. The objection was not made pursuant to s 285C, which prohibits evidence being given in rebuttal of an alibi after the close of the prosecution case except with the permission of the court.
The evidence led related to Charlie Lawrie, the person depicted in photograph P29. Detective Olive stated that Mr Lawrie’s date of birth was 30 January 1992, that his height was 185 cm, that he had a slim build, and that his custody status in August 2012 was that he was in the Adelaide Remand Centre, having been admitted on 12 June 2012 and released on 21 September 2012. Detective Olive said that he obtained this information from police records.
In cross-examination, Detective Olive said that another Charlie Lawrie in the police records was a person born on 30 January 1992, the person who appears in the photograph Exhibit P31.
In my view, this evidence was clearly admissible in rebuttal, since no prior notice had been given by the defence to the prosecution that it was to be asserted that Charlie Lawrie was the person in the video images from the car wash, either in the alibi notice or by way of cross-examination of any of the prosecution witnesses.
Analysis
- Identification
Ms Martin made a very clear and unequivocal identification of Mr Sumner as being her assailant from the book of photographs presented to her on 10 September 2012. I have already rejected the defence criticisms of the photo‑identification procedure. Such a procedure was justified since Mr Sumner had declined to participate in a line-up. The procedure was conducted appropriately, and in my opinion the photographs provided Ms Martin with an appropriate range of choices. In my view, there can be no valid criticism of the way the identification procedure was carried out.
Ms Martin had a good opportunity to observe the offender. She observed him from a distance at the car wash and at close quarters on Kennedy Street. She observed him in full daylight with no obstructions. Mr Mead criticised Ms Martin’s identification of the man at the car wash as being the same man who attacked her shortly thereafter, having regard to the distance between them and her inability to distinguish any distinguishing features. However, Mr Mead conceded that it is likely that, on the objective evidence, it was the same man. This confirms the accuracy of Ms Martin’s observation.
However, the infirmities of identification evidence are well known to the law. The authorities are clear that there are serious dangers in relying upon identification and recognition evidence (see Craig v R,[4] Davies v R,[5] Alexander v R,[6] Domican v R,[7] Pitkin v R,[8] Festa v R,[9] Strauss v Police.[10] The issues were recently summarised by Peek J in R v Bridgland, ATS & Winter.[11]).
[4] (1933) 49 CLR 429
[5] (1937) 57 CLR 170
[6] (1981) 145 CLR 395
[7] (1992) 173 CLR 555
[8] (1995) 69 ALJR 612
[9] (2001) 208 CLR 593
[10] (2013) 115 SASR 90
[11] [2013] SASC 203
The observations in these cases include that honest and confident witnesses can be wrong, and that miscarriages of justice have not infrequently occurred because of this, particularly when the observation is of fast-moving events which are stress‑inducing and distracting.
There is no doubt that Ms Martin observed the offender in a particularly stressful and frightening situation. I have rejected any criticism of her identification on the basis of an infirmity of her eyesight.
There is also the suggestion that Ms Martin may have suffered some head injury when she fell to the ground and was stomped on by the attacker. However, she denied this, and the witnesses who were with her afterwards, although observing that she was upset, did not mention any sign of concussion or lack of consciousness. Both the ambulance officers and the doctors at the hospital recorded that she had a Glasgow Coma Scale assessment of 15, which is normal, and inconsistent with disturbance of cerebral function.
Taking into account the dangers of identification evidence in general which I have identified, Ms Martin had a good opportunity to observe the offender. I remain of the view that her identification of Mr Sumner as that offender is reliable.
- Circumstantial Evidence
However, it is not necessary to rely upon Ms Martin’s identification evidence alone. There are a number of items of circumstantial evidence which also implicate Mr Sumner. These include:
·Mr Sumner’s appearance being consistent with the appearance of the male in the CCTV footage at the car wash;
·there being little doubt that Ms Martin’s assailant was the male in the CCTV footage at the car wash;
·the offender wearing a grey hooded jacket which is consistent with the grey hooded jacket found in the boot of Mr Toomey's car;
·Mr Toomey being an acquaintance, if not a friend, of Mr Sumner;
·the evidence that there is a very high probability, approaching certainty, that Mr Sumner’s DNA was on the grey hooded jacket;
·it having been conclusively established that the white Holden Statesman, registered number WVE-584, was the car driven by the male at the car wash and by the offender;
·the presence of Mr Sumner’s fingerprints on the boot lid of the white Holden Statesman, in the position described by Ms Martin;
·the fingerprints on the boot lid of the white Holden Statesman being from Mr Sumner’s left hand, as described by Ms Martin;
·Mr Marks’ evidence that he lent the white Statesman to Mr Sumner three or four hours prior to the attack.
- Lies of the Accused
The evidence clearly established, and I am satisfied beyond reasonable doubt, that Mr Sumner has told lies on several occasions in this trial:
·his assertion that Charlie Lawrie was the person in the CCTV footage at the car wash, when it has been conclusively established that Mr Lawrie was in custody at the time, coupled with Mr Sumner’s further attempts to implicate a second, and even a third, Charlie Lawrie when this became apparent to him;
·his clear lies about who drove him to his mother’s house on Monday, 20 August 2012 in an attempt to distance himself from Daniel Toomey’s car.
There were a number of other instances where Mr Sumner’s evidence was contradicted in clear terms by evidence of witnesses called as part of the defence case. These included:
·his assertion that he had never driven Rhys Marks’ car, which was contradicted by Kym Barnes (T 255) and also by Rachel Livesey (T 298);
·his evidence that his mother was not home on Friday, 17 August 2012 when he went to collect clothes (T 181, 206), which was contradicted by Rachel Livesey, who said that he and his mother had an argument outside the house that day (T 297);
·his and Ms Livesey’s evidence that he did not leave her house in the afternoon of Saturday, 18 August 2012, which was contradicted by Kym Barnes, who said that Mr Sumner drove the white Statesman to his house to collect car parts (T 245).
It was submitted by Ms Wilkinson that Mr Sumner’s lies amount to evidence of guilt. In effect, it was argued that they demonstrate that Mr Sumner ‘knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in [Reg. v Lucas], because of “a realization of guilt and a fear of the truth”’ (Edwards v R[12]).
[12] (1993) 178 CLR 193 at 210-11
Mr Mead submitted that an alternative explanation for these lies cannot be excluded – namely that Mr Sumner was afraid of being convicted of something he had not done or, in the words of the High Court in Edwards, ‘out of panic, to escape an unjust accusation …’[13]
[13] ibid
It is clear that an inference of consciousness of guilt need not be proved beyond reasonable doubt, unless it is the only evidence against the accused, or it is an ‘indispensable link’ in the prosecution case, as discussed in Shepherd v R[14] (see also R v Wildy[15]).
[14] (1990) 170 CLR 573
[15] [2011] SASCFC 131
In my opinion, it has been proven the lies told by Mr Sumner which I have identified above were told from a consciousness of guilt, particularly the lies about who drove him to his mother’s house on Monday, 20 August 2012. I am satisfied beyond reasonable doubt, although it is not necessary to go that far, that the only rational inference to be drawn from those lies is that they were told from a consciousness of guilt. I am satisfied beyond reasonable doubt that Mr Sumner’s motivation for lying was not fear of an unjust accusation.
The same considerations outlined in Edwards apply to other forms of ‘post-offence conduct’, such as Mr Sumner’s attempts to induce Ms Livesey to lie about travelling in Mr Toomey’s car on 20 August 2012.
Again, I am satisfied that the only rational inference to be drawn from this conduct is consciousness of guilt (c.f. R v Hirst[16]). The whole tenor of the conversations between Mr Sumner and Ms Livesey makes it clear that Mr Sumner did not fear an unjust accusation, he feared the truth. The truth was that he was wearing the grey hooded jacket, on which he knew his DNA had been deposited, on the night of the offence. He was attempting to concoct a story to reduce the impact of the DNA evidence, which he knew to be incriminatory.
[16] [2013] SASCFC 54 at [40]
What is also abundantly clear is that Mr Sumner’s lies and attempts to persuade Ms Livesey to lie, as well as the other contradictions to which I have referred, have completely discredited his exculpatory evidence about this offence. To adapt the dictum of Lord Devlin in Broadhurst v R,[17], quoted in Harris v R[18], per King CJ, and W, JA v Police[19] per Bleby J:
… a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all.
[17] [1964] AC 441 at 447
[18] (1990) 55 SASR 321 at 323
[19] [2010] SASC 76 at [35]
The context in which that dictum was quoted by King CJ was in order to demonstrate that discrediting of the evidence of the accused does not necessarily mean that it follows that his lies must come from a consciousness of guilt. But in these circumstances, Lord Devlin’s dictum must apply with equal force. I have found that the lies came from a consciousness of guilt, but it must also follow that Mr Sumner’s evidence is valueless.
For those reasons, Mr Sumner’s explanations for some of the items of circumstantial evidence must be rejected. For example:
·his explanation for his DNA being on the grey hooded jacket;
·his explanation for his fingerprints being on the boot lid of the white Holden Statesman;
·his evidence that he did not leave Rachel Livesey’s house on the night of 18/19 August 2012.
Conclusions
For all those reasons, I find that the evidence of Ms Martin, when combined with the circumstantial evidence produced by the prosecution, is overwhelmingly probative of Mr Sumner’s guilt. I am satisfied beyond reasonable doubt that all of the elements of each of the two charges on the information have been proved.
My verdicts are:
Count 1: Guilty
Count 2: Guilty