R v UD
[2020] ACTSC 26
•14 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UD |
Citation: | [2020] ACTSC 26 |
Hearing Dates: | 13 February 2020; 14 February 2020 |
DecisionDate: | 14 February 2020 |
Before: | Elkaim J |
Decision: | The Crown is not permitted to call evidence from DI as described in her statement. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – identification – CCTV footage – probative value – danger of unfair prejudice |
Legislation Cited: | Evidence Act 2011 (ACT) s 137 |
Parties: | The Queen (Crown) UD (Accused) |
Representation: | Counsel R Christensen (Crown) B Morrisroe (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 276 of 2019 |
ELKAIM J:
A trial in this matter commenced on 12 February 2020. The accused is charged with one count of attempted aggravated robbery, one count of attempted murder and, as an alternative to the latter count, one count of intentionally inflicting grievous bodily harm. The accused pleaded not guilty to each count.
The facts behind the three counts all arise from an incident at the Eastlake Football Club (also known as the Calwell Club) in the early hours of 18 December 2016. CCTV footage clearly shows a person (the “person”) entering the club at about 2:00am, fully disguised and brandishing a gun (ultimately discovered to be a replica) in one hand and carrying a bag in the other hand.
Witnesses who had given evidence prior to this argument being heard established, without challenge, that the person who entered the club was so encased in clothing and other material (such as gloves and a balaclava) that no identifying features were evident. The witnesses however all stated that the person spoke with a male voice. I think there is little doubt that the person was a male.
In addition to not being able to identify any features of the person, none of the witnesses referred to any particular piece of clothing, other than by colour and material (relating only to denim jeans), which might have given a clue as to the identity of the person.
Yesterday the Crown raised a legal issue arising from the statement of DI. DI was the girlfriend of the accused between mid May and late July 2016. The Crown wishes to call DI as a witness to, in summary, give evidence of the following:
(a)In June 2016 the accused purchased two jumpers, one black and one pink, which had the word “Everlast” displayed across the front of the jumper in large white letters. The accused kept the black jumper for himself and gave the pink jumper to DI. The Crown says that the top worn by the person in the CCTV footage (Exhibit B in the voir dire) is consistent with the jumper described by DI, especially because of the white writing across the front.
(b)DI states that the accused spoke to her about robbing the Calwell Club, including giving her a detailed description of the method that would be needed to carry out a robbery of the club. For example, he said that the manager would be required to open a safe, that he knew the manager’s name and he knew which security guards would be present.
(c)Upon viewing the CCTV footage, within a very short time after the robbery, DI states at [29] of her statement that “I knew immediately that it was (the accused). I watched the person doing the same hand gestures and walk the same as (the accused)”.
The accused objects to DI giving evidence about the above contents of her statement. The objection is primarily made on the basis that the evidence should be excluded under s 137 of the Evidence Act 2011 (ACT). This section states:
137Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
For purposes of my decision it is important to observe that s 137 refers to the “danger of unfair prejudice”. It is enough therefore if there is a potential that unfair prejudice will arise, even if it is not immediately apparent.
Another ground of objection was that DI was giving impermissible opinion evidence. In the light of my conclusion to exclude the evidence under s 137, this part of the objection does not need to be considered.
Regrettably, also yesterday, matters were brought to my attention which led to the discharge of the jury. Nevertheless, the parties agreed to continue the argument concerning DI’s evidence so that its result could be applied to the fresh trial, due to start next Monday.
Without more, there is an inference available to be drawn from the CCTV footage, that the person entering the club intended to carry out a robbery. There are some contraindications, such as Mr Pomale stating that the accused said to him “…how do you know I’m here for the money?”. However, I do not regard them as being of sufficient weight to defeat the overwhelming inference arising from the CCTV footage. I also note that counsel for the accused indicated that it was not her intention to submit to the jury that whoever the person was, he was not there for the purpose of committing a robbery.
I will deal with each of the three matters of evidence described above, in turn. DI says in her statement, at [29], that she remembers “...the person in the video was wearing a similar black jumper with a white Everlast logo to the one he bought when we were in Bateman’s Bay”.
I have viewed the CCTV footage a number of times. While there does seem to be ‘something’ white across the front of the garment (which I am not even sure is a jumper) it does not rise to the level of being identified as writing. In my view DI’s assertion about the jumper can only be a product of retrospective reasoning. To allow the evidence in would be to permit the introduction of a substantial prejudice to the accused far outweighing the very limited probative value of any conclusion about the clothing which can be drawn from the footage.
If I had had any doubt about this aspect it would have been extinguished by Exhibit 1 in the voir dire which shows the range of ‘hoodies’ which might fit within the description of what can be gleaned from the footage.
Turning now to the discussions held between the accused and DI, the first point raised by the accused is that the mode of carrying out the robbery described to DI is inconsistent with the actions of the person in the CCTV footage.
The Crown submitted that the events had not yet reached a stage where the ‘modus operandi’ would have been implemented. I disagree. By the time the person decides to abandon his enterprise, he has already commenced giving instructions, none of which are suggestive of the plans described to DI.
I also note that according to DI the accused had told her that he had been to the Calwell Club on “a lot” of occasions to the extent that he knew the names of the manager and the security guards. There was no evidence however, for example from Mr Pomale (a long-time security guard at the club), that a person fitting the description of the accused had ever been seen at the club or was a member or had been a guest of a member. I accept however that the Crown intends to call evidence to establish that the accused had been a member of the club and had made a number of visits in 2016.
Another reason for excluding this evidence is that the conversations occurred some six months before the incident on 18 December 2016. To translate a broad intention expressed by the accused in about June into an action in December would in my view be unfairly prejudicial to him.
I will therefore not permit DI to give evidence about the previous conversations with the accused.
Finally, in regard to DI’s observations about the accused’s gestures and manner of walking, I would normally see such evidence as admissible. The difficulty here however, is the nature of the CCTV footage. I agree with counsel for the accused that the footage is not recorded at ‘normal’ speed and includes very slight pauses giving it a stutter effect. In my view the result is to so substantially reduce the probative value (in relation to a recognition of gestures and gait) of the footage as to reduce the observations of DI to having little probative value, and well below the danger of unfair prejudice to the accused.
Accordingly, the Crown is not permitted to adduce evidence from DI on the topics described above and which have been the subject of the legal argument.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 7 December 2020 |
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