R v Weetra - [2014] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WEETRA
[2014] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Bampton)
27 May 2014
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
The defendant was charged with the offence of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The issue was whether the prosecution had established the identity of the defendant as the robber. The prosecution relied upon circumstantial evidence. The direct evidence of witnesses who witnessed the robbery did not directly identify the defendant as the robber. The Judge failed to give sufficient weight to evidence of defence witnesses tending to establish that the defendant was not the robber. The trial Judge erred in failing to adequately weigh the evidence. The evidence did not exclude as a reasonable possibility that the defendant was not the offender.
Held: Appeal allowed and a direction of acquittal entered.
Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
Festa v The Queen (2001) 208 CLR 593, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Appeal against conviction"

R v WEETRA
[2014] SASCFC 50
Court of Criminal Appeal: Gray, Sulan and Bampton JJ
THE COURT.

This is an appeal against conviction.
The defendant and appellant, Colin Andrew James Weetra, was charged with the offence of aggravated robbery contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the alleged offence were that the defendant on 23 September 2011 at Pooraka, threatened to use force against Ms McPartland and Ms Reid in order to commit the theft by taking cash to the value of $1070.00 and the threat was made at the time of or immediately before the theft. It was further alleged that the defendant used or threatened to use a firearm to commit the offence.
The defendant elected to be tried by a Judge alone in the District Court. The trial was conducted between 3 and 11 June 2013. A verdict of guilty was returned on 23 August 2013. The reasons of the Court were delivered at the time of verdict.
There was no dispute that, at about 3.00 pm on 23 September 2011, a man armed with a pistol robbed cashiers in the gaming room at the Bridgeway Hotel at Pooraka. The only issue for the Judge was whether the prosecution had proved beyond reasonable doubt that the defendant was the offender.
The prosecution acknowledged that its case was circumstantial. Particular reliance was placed on what was said to be the strong resemblance of the defendant to the offender shown in hotel security footage. Reliance was also placed on photographic identification by an eyewitness, and on clothing worn by the offender, in particular a beanie with an aboriginal flag in the middle of the lower front and a jacket bearing the words “Russell Athletic” across its front. Some months after the robbery,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Weetra

Details

AGLC: R v Weetra [2014] SASCFC 50
Case: [2014] SASCFC 50
Decision Date: 27 May 2014

CaseChat Overview and Summary

The appeal concerned the conviction of the defendant, R v Weetra, for robbery. The dispute centred on the reliability of identification evidence presented at trial. The case was heard by Gray, Sulan, and Bampton JJ.

The legal issues before the court were whether the trial judge erred in admitting and relying upon identification evidence that was arguably unreliable, and whether the conviction was unsafe and unsatisfactory given the weaknesses in the identification evidence and other contradictory evidence. Specifically, the court considered the identification made by Mr Larner, the failure of Ms Reid to make a positive identification, and the conflicting evidence regarding the defendant's hair and thumb injury.

The court reviewed the security footage, noting its poor quality and the limited discernible features of the robber. It also examined the circumstances of the photographic identifications, highlighting Mr Larner's initial uncertainty and his query about potential influence from prior viewings. The court noted Ms Reid's statement that two men "looked like the robber," one of whom was the defendant, but she did not make a positive identification. Crucially, the court considered the unchallenged evidence that the defendant was bald, which contradicted Ms Reid's description of the robber having black hair under his beanie. The medical evidence regarding the defendant's thumb injury was also considered in relation to his ability to perform certain physical activities.

The court found that the identification evidence was not sufficiently strong to support a conviction, particularly in light of the contradictory evidence regarding the defendant's hair. The conviction was therefore quashed as unsafe and unsatisfactory.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This Court reviewed the earlier referred to security footage. The film does not show the robber’s facial features or clothing with any clarity. It shows his build and, to the extent that one can gauge, his height. In some frames, his lower face and jaw are reasonably discernible. Details of the beanie worn by the robber are not entirely clear in the film. It is tight fitting and black, or at least dark coloured, has a square shaped area of pattern or decoration at the lower middle front, and the bottom section of that area appears red. The robber is wearing a dark coloured, long sleeved zip-up jacket with a collar. It has double white stripes down each sleeve and printed across the chest in large letters the word “Russell” and, below, the word “Athletic”. Between the words “Russell” and “Athletic” there is some other form of mark or lettering on the jacket. The film is not in real time. The Evidence On 16 January 2012, nearly four months after the robbery, the two cashiers, Ms Reid and Ms McPartland, were shown collections of photographs each of which included a photograph of the defendant. Ms Reid did not select any photograph as being a photograph of the robber but said that the men shown in two photographs “looked like the robber”. One of those two photographs was of the defendant. Ms McPartland selected a photograph but it was not of the defendant. On 16 January 2012, Mr Larner identified a photograph of the defendant as the robber. Some weeks earlier, he had been shown a folder of photographs containing a photograph of a man police then suspected may have been the robber. Mr Larner was unable to identify the robber in that folder. When shown the folder which included a photograph of the defendant on 16 January 2012, and after having pointed almost immediately to the defendant’s photograph, Mr Larner queried whether that photograph had been in the folder of photographs shown to him weeks earlier. He asked that to be sure that he was not influenced by the photographs he had seen earlier. Only when assured that none of the people in these photos were in the previous photographs was Mr Larner prepared to confirm his identification of the defendant as the robber. The features of the robber which he particularly recalled were his round head and jaw line. A further matter is that Ms Reid gave evidence describing the robber as having black hair under his beanie. There was unchallenged evidence that the defendant had been bald for approximately ten years. The Judge made no reference or findings at all about this evidence. Partha Poatim Roy was the defendant’s general practitioner. On 19 August 2011, the defendant consulted Dr Roy about pain in his right big toe. Dr Roy was uncertain about treatment but vaguely remembered “buddy strapping” the toe. On that occasion, the defendant was walking well and was not limping. On the morning of 23 September 2011, the defendant consulted Dr Roy, complaining of pain in his thumb. On examination, the distal joint was a “bit tender” and there was mild swelling, but no pain, on the dorsal aspect of the lower left thumb. Dr Roy arranged for an individual X-ray to be taken. The X‑ray showed a fracture to the distal joint of the left thumb. Dr Roy bandaged the defendant’s left hand. Dr Roy said, the defendant could remove and replace the bandage himself. Dr Roy prescribed panadeine forte to be used at night if there was throbbing pain; otherwise, panadol or nurofen. Dr Roy certified that the defendant was unfit for work for one week. When questioned about the defendant’s ability to work as a sports trainer, Dr Roy said that the defendant was capable of pushing and pulling heavy weights but such activity would give him a little pain.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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