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.

1. This is an appeal against conviction.

2. 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.

3. 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. 

4. 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. 

5. 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, the police searched the defendant’s home and found what was claimed to be a beanie similar to that worn by the robber and a photograph of the defendant wearing a jacket bearing the words “Russell Athletic”.  The police relied on a further item of evidence.  The defendant, when stopped by traffic police some months after the robbery, was found to be in possession of a pistol.  It was the prosecution case that this pistol was similar to the pistol used in the course of the robbery.

6. It was the defence case that the prosecution had failed to prove beyond reasonable doubt that he was the offender.  A defence, in the nature of an alibi defence, was raised.  It was the defendant’s case that he was at home on the afternoon of 23 September 2011 nursing a broken thumb.  He had been examined, X-rayed and bandaged by his general practitioner earlier that day.  The defendant led evidence from his wife and her sons to support the defence case that he was at home at the relevant time.  The defendant did not give evidence.

7. A film recorded by hotel security cameras depicted the robbery.  The robber, wearing a beanie and jacket and with his face uncovered, walks toward the cashier’s counter at which a customer, Mr Larner, is standing.  While one of the cashiers, Ms Reid, serves Mr Larner, the robber puts on a pair of sunglasses.  Mr Larner walks away and the robber bends, appearing to take something from a shopping bag which he is carrying.  When he straightens he is holding a pistol in his right hand.  He pushes the bag towards Ms Reid with his left hand.  She responds by moving back from the counter.  A second cashier, Ms McPartland, assumes Ms Reid’s position and puts money in the bag.  The robber takes back the bag and walks away.  As he does so he pushes Mr Larner.  Mr Larner stops, turns and looks at the robber’s face.  The robber walks from camera view. 

8. Evidence from eyewitnesses describe the robber leaving the hotel through a set of double doors which open onto an outdoor balustraded landing.  The robber bumps into the balustrade before proceeding down a short flight of steps and then limps across the car park until out of sight. 

9. A short time later, the police commenced their investigation.  However, those investigations failed to identify the offender. 

10. On 8 December 2011, the defendant was driving in his vehicle on Frome Street in the city.  Police officers stopped the car for a routine traffic matter.  A subsequent search revealed a pistol under the driver’s seat.  Ammunition usable in the pistol was found in the console next to the driver’s seat.

    The Security Footage

11. 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 

12. 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. 

13. 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. 

14. 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. 

15. 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. 

16. 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. 

17. On 15 November 2011, the defendant again consulted Dr Roy about his thumb.  On that occasion, Dr Roy prescribed a further medical certificate for work.  Dr Roy again bandaged the defendant’s left hand. 

18. Winifred Warrior is the defendant’s partner.  She gave evidence that, on the morning of the robbery, she drove the defendant to his appointment with Dr Roy and then drove him back to their house, arriving there at about 12.15 or 12.30 pm.  She went into the house, but only for a few minutes, before driving to her workplace for a 1.00 pm appointment.  She left the defendant at home with her then 17 year old son, Luke Wilson, and did not return until about 5.30 pm. 

19. Ms Warrior gave evidence that the defendant had no hair for at least ten years.  He had tattoos on his hands for ten years or longer.  Ms Warrior said that the defendant had not limped as a result of any injury to his toe.  When asked about the beanie and jacket, she said that she had not seen him wearing a beanie such as the beanie seized by the police, and she did not recall seeing him wearing a “Russell Athletic” top. 

20. Luke Wilson is Ms Warrior’s son.  On the day of the robbery, he was a year 12 student, but was having the day off school.  He spent most of the day watching television in the lounge room of the defendant’s home.  He gave evidence that the defendant remained in his bedroom for the entire afternoon, not leaving the house at all.  Mr Wilson said that he would have known if the defendant had left the house as the defendant, if leaving through the front door, would have to walk through the room in which Mr Wilson was watching television.  If the defendant left through the back door, he would have heard the noisy roller door which had to be operated to allow a person to leave the premises.  He said that the defendant did not walk through the lounge room and that he did not hear the roller door.  He recalled that the defendant had tattoos on one of his hands.  He also gave evidence that he did not recall the defendant limping as a consequence of a toe injury. 

21. Aaron Adams, Ms Warrior’s nephew, aged about 14 years, was also living at the defendant’s home at the time.  He arrived home from school at about 3.30 or 3.45 pm and said that the defendant was home, with his hand bandaged.

22. Photographs of the home showed the roller door.  They also showed a wooden gate between the roller door and the front of the house.  Ms Warrior, Luke Wilson and Aaron Adams gave evidence that the gate was locked and that the key had been missing for some time prior to the day of the robbery.

    The Judge’s Reasons

23. The Judge concluded that the quality of the images disclosed by the security footage was inadequate to allow identification of the defendant as the robber.  We agree.

24. In respect of the photographic identification, the Judge considered that Ms Reid’s evidence was so weak and dangerous that it could not be used.  The Judge, made no reference at all in his reasons to the significance of Ms McPartland selecting a photograph of somebody other than the defendant. 

25. The Judge considered that Mr Larner’s photographic identification was given by an honest, careful, credible and reliable witness.  However, the Judge then gave himself the following warning:

    Identification evidence is very dangerous, as the experience of the courts has shown.  Even careful and honest witnesses making observations in ideal viewing conditions can be both persuasive and wrong.  The danger of error is much greater where, as here, the witness saw the robber for only a very short time and when he had good cause to be in fear.  Moreover, photographs provide an inferior form of identification evidence, being two-dimensional and showing only head and shoulders.  Bearing that warning in mind, I do not accept Mr Larner’s evidence as positive identification evidence but as a telling item of circumstantial evidence.  …

26. In declining to rely on Mr Larner’s positive identification, the Judge concluded that it was a “telling item of circumstantial evidence”. The Judge did not identify what it was in Mr Larner’s description of the defendant which made the evidence a telling item of circumstantial evidence.  Mr Larner was asked what it was about the photograph that drew his attention to it.  He replied “It was his jaw and his round head”. In answer to a question from the Judge, he said it was the shape of his head and jaw line which stood out. 

27. The conclusion that this was telling circumstantial evidence is not supported by the evidence.  The only matters to which Mr Larner pointed as significant, being the shape of the head and large jaw, are not uncommon descriptive features.  We consider that this evidence was, at its highest, weak.

28. In this respect, it is relevant to record the telling observations of McHugh J in Festa:[1]

    Positive-identification evidence has often proved to be unreliable. This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weaknesses in the evidence, in the case being tried.

    Unfortunately, another class of evidence is sometimes called “circumstantial identification evidence”. It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance — usually, but not always, weak — that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.

    [Emphasis added, footnotes omitted.]

    [1]    Festa v The Queen (2001) 208 CLR 593, [55]-[56].

29. On the topic of the beanie, the Judge concluded that the evidence of observations of the beanie by the eyewitnesses was consistent with the beanie found at the defendant’s home in the room of one of the boy’s.  None of the eye witnesses described the square shaped pattern or decoration at the front of the beanie.  The Judge observed that the security footage did not provide clear images of the beanie.  There was no evidence about the prevalence of such beanies. 

30. The Judge noted the similarity between the jacket depicted in the security footage and that in the photograph of the defendant wearing the jacket.  The Judge noted that there was no evidence as to when the photograph was taken, or about the prevalence of such jackets and noted that no similar jacket had been found at the defendant’s premises. 

31. The Judge considered that the pistol found under the driver’s seat of the defendant’s motor vehicle some months later looked the same as the pistol shown in the security footage.  The Judge then concluded, however, that he could not definitely say that it was the same pistol.  This is unsurprising, given the poor quality of the security footage and the evidence of the eyewitnesses, Ms Reid, Ms McPartland and Mr Larner.  Ms Reid said that it looked like the same pistol.  Ms McPartland and Mr Larner were both unsure about the similarity of the pistol found in the car to that used in the robbery.  A ballistics expert gave evidence that he was able to conclude only that the pistol found in the defendant’s vehicle was consistent with the one used by the robber.  The type of firearm found in the defendant’s vehicle was not uncommon. 

32. The Judge rejected the evidence of Luke Wilson that the defendant did not leave the house.  The rejection was not based on the witness’s lack of credibility.  The Judge considered that his evidence was unreliable, due to the passage of time and the number of other occasions when the events he described could have occurred.  The Judge makes no finding as to the credibility or reliability of Ms Warrior and Aaron Adams. 

33. The Judge addressed the submissions of defence counsel as follows:

    I have considered all of the arguments put by ..., counsel for the accused.  I have carefully considered his submissions about the accused not being able to act as the robber did owing to the injury to the thumb.  Of course, I accept Dr Roy’s evidence that he bandaged the accused’s hand but, as Dr Roy said, the bandage was easily removed and replaced.  The accused could have done that himself or with the help of another.  Further, I accept prosecuting counsel’s submission that there is some evidence the robber was avoiding using his left thumb.  In a couple of frames in the security footage of the robbery, the robber carries the green bag by draping its handles over his index finger and the fingers below the index finger while holding his thumb above the handles in such a position that he would put no pressure on it.  Neither the fact that the hand was bandaged earlier in the day nor the fact that the thumb was undoubtedly injured causes me to think that the accused could not have been the robber. 

    The Judge then concluded:

    I have considered all of the submissions about the varying descriptions of the pistol and the beanie.  As with descriptions of the robber’s general appearance, one would, in the circumstances, expect differences.  I have considered the fact that the prosecution adduced no evidence about how common is the type of beanie found at the accused’s house or how common is the ‘Russell Athletic’ jacket.  The lack of evidence on those topics does not cause me to doubt that the accused is the robber.  Nor does the fact that no witness noticed the faint tattoos on his hand.  In my view, the appearance of the robber on the film, particularly the appearance of the lower face and jaw line of the robber, together with the finding of a similar pistol in the accused’s car, an identical beanie, an identical jacket and the fact that Mr Larner picked the accused’s photograph, provide overwhelming evidence that the accused is the robber.  These circumstances exclude any reasonable explanation consistent with his innocence.  I am therefore satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence of aggravated robbery.  I do not set out those elements as there is no dispute that such an offence occurred. 

    The Appeal

1. On the appeal, the primary submission advanced was that the evidence was insufficient to establish beyond reasonable doubt that the defendant was the robber.

2. In our view, the quality of the security footage, the angle at which it was taken, and the fact that it was not taken in real time rendered it unsafe to draw any conclusion other than that there was some similarity of the defendant to the robber.

3. The evidence does not establish that the beanie found some months later in the room of one of the boys at the defendant’s home was identical to the beanie being worn by the robber.  None of the eyewitnesses described the emblem on the beanie. We accept that there is considerable similarity.  However, the Judge’s conclusion that it was identical is incorrect.  In any event, it is unlikely that such a beanie is other than common.  Further, the evidence does not establish that the photograph of the jacket worn by the defendant taken on some unspecified occasion is identical to the jacket depicted in the security footage.  The Judge’s conclusion about the jacket is incorrect.  Again, there are obvious significant similarities. 

4. Mr Larner’s photographic identification is an item of circumstantial evidence.  We agree with the Judge’s finding that it would be inappropriate to treat it as positive identification evidence.  We also agree with the Judge that much care must be taken before weight can be given to such evidence.  For reasons discussed above, the finding was not justified in describing Mr Larner’s evidence as telling circumstantial evidence.  It was not.  We consider it to be significant that Ms McPartland was unable to identify the defendant.  This fact must carry some weight.  It confirms the dangers associated with placing any significant weight on Ms McPartland or Mr Larner’s evidence of identification. 

5. We consider the evidence concerning the pistol to be very weak indeed.  A review of the security footage, the witnesses’ evidence as to their memory of their brief observation of the pistol and the exhibited pistol demonstrates that this evidence had little probative value.  Further, the eyewitness evidence, including the description of the pistol is to be treated with caution. 

6. There is more.  The defence case, although it did not provide a complete alibi, did provide evidence relevant to the question of guilt.  The defendant had been treated by his general practitioner in respect of a fracture to the left hand, had been driven by his partner to the doctor and then home by his partner.  The defendant’s partner had taken the only motor vehicle available to the family for the rest of the day.  The defendant’s residence was some distance from the site of the robbery and the defendant would have required a vehicle to leave home, conduct the robbery and return.  Although the evidence given by Luke Wilson and Aaron Adams did not exclude the possibility of the defendant leaving the house, it did provide some support to the reasonable possibility that he did not do so.  Presumably, the prosecution hypothesis was that the defendant left his home, arranged transport, committed the robbery and returned. This, on the evidence, was no more than speculation.

7. Having regard to our above reasons, the question arises whether we should apply the proviso and uphold the conviction.  Our task is to consider the trial evidence and to reach a conclusion as to whether the conviction should be set aside and, if so, whether a retrial should be ordered.  In our view, on the evidence, the prosecution could not exclude the reasonable hypothesis that the defendant was not the robber.  We are of the view that the evidence for the prosecution, taken at its most favourable, cannot establish guilt beyond reasonable doubt.  Accordingly, a direction of acquittal should be entered.