R v Weetra
[2016] SADC 128
•21 October 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WEETRA
Criminal Trial by Judge Alone
[2016] SADC 128
Reasons for the Verdicts of Her Honour Judge S David
21 October 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Accused charged with one count of Attempted Aggravated Robbery and two counts of Aggravated Robbery - trial by judge alone - identification of offender in issue - evidence insufficient to establish accused was the offender on any of the counts.
Held - not guilty of counts 1, 2 and 3.
Evidence Act 1929 (SA) s 34P, s 34R, referred to.
Hirst v Police [2006] SASC 244; Barnes [1995] 2 Cr App R 491; Downey [1995] 1 Cr App R 547; R v Haidley & Alford [1984] VR 229, applied.
Domican v The Queen [1992] 173 CLR 555, considered.
R v WEETRA
[2016] SADC 128
The accused was arraigned before me on the following Information:
First Count
Statement of Offence
Attempted Aggravated Robbery. (Sections 137(1) and 207A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jordan Ross Weetra on the 4th day of December 2014 at North Adelaide, used force against William George Spencer in an attempt to commit theft of a wallet and money, and the force was used at the time of the attempted theft.
It if further alleged that Jordan Ross Weetra used, or threatened to use, an offensive weapon, namely a knife, when committing the offence.
Second Count
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jordan Ross Weetra on the 4th day of December 2014 at North Adelaide, used force against Patrine Quist in order to commit the theft of a handbag, and the force was used at the time of the theft.
It is further alleged that Jordan Ross Weetra used, or threatened to use, an offensive weapon, namely a knife, when committing the offence.
Third Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Jordan Ross Weetra on the 4th day of December 2014 at North Adelaide, used force against Rosemary Papillion in order to commit the theft of a handbag, and the force was used at the time of the theft.
It is further alleged that Jordan Ross Weetra used, or threatened to use, an offensive weapon, namely a knife, when committing the offence.
The Pleas
The accused pleaded not guilty to counts 1, 2 and 3. At his election, I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Overview of the Prosecution Case
On 4 December 2014 at 11.35pm at the Majestic Old Lion Apartments on Jerningham Street, North Adelaide (‘the apartments’), the accused allegedly confronted an employee William Spencer, by producing a knife and saying ‘if you don’t give me your wallet and all your cash, I’ll cut your throat’ (count 1). Mr Spencer only had loose change on him. The accused left in a white vehicle driven by another person. On 11 December 2014, Mr Spencer participated in a photographic identification procedure during which he positively identified the accused as the offender.
On the 4 December 2014 at about 11.45pm, the accused allegedly approached two females on the corner of Stanley and Jerningham Streets, North Adelaide. The accused is alleged to have taken the handbag of the first female, Ms Patrine Quist (count 2). He then turned to the second female, Ms Rosemary Papillion and demanded her handbag whereupon Ms Papillion gave him her handbag containing a purse and about $80 (count 3). The accused is alleged to have again left the scene in a light coloured vehicle driven by another person.
Ms Quist did not provide a statement to the police or participate in a photographic identification procedure or give evidence at the trial. On 11 December 2014, Ms Papillion participated in a photographic identification procedure and said that two photographs ‘stand out but I can’t be 100% certain.’ One of the selected photographs depicted an image of the accused.
The accused was arrested on 8 February 2015, and declined to participate in a record of interview with the police or answer any questions.
At trial, there was no challenge to the admissibility of the identification procedures, nor was there any challenge to the joinder of the charges. There was no dispute at the trial that the offences had occurred; the issue at trial was whether the Prosecution had established beyond reasonable doubt that the accused was the offender and had committed the charged offences.
Standard Directions
I have given myself a number of directions, some of them standard and some particular to this case. I deal now with some of the standard directions. Later in these reasons, I will deal with some particular directions on how the evidence in support of count 1 can be used in respect of counts 2 and 3, and vice versa, and about the identification evidence.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the three charges lies wholly upon the Prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the Prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before I could convict the accused on any count, I must be satisfied that the Prosecution has proved reasonable doubt each of the elements of that count.
The accused declined to answer police questions. That was his right. I have not drawn any inference adverse to him on account of his exercise of that right.
Each of the three counts before me was charged as a separate offence and each must be treated separately upon its merits. Should I be satisfied of the accused guilt on one count, it does not necessarily follow that he is guilty of the other counts. I must take special care to ensure that the method by which the guilt of the accused on each count is established is by considering only the evidence admissible in relation to that count. However, the evidence in respect of each count is admissible on all counts for reasons which I will turn to later in my reasons. Notwithstanding the cross-admissibility of the evidence, I remind myself that if the accused’s guilt is established beyond reasonable doubt on one count he is not necessarily guilty on the other counts.
I have directed myself about the elements of the relevant offences of attempted aggravated robbery and aggravated robbery.
To prove the offence of aggravated robbery (counts 2 & 3), the prosecution must prove beyond reasonable doubt the offence of robbery and the circumstance of aggravation.
A person commits the offence of robbery if he commits an act of theft and at the time of, or immediately before or after that act of theft, he uses force or threatens to use force against the victim. The legal definition of theft includes if a person dishonestly deals with property without the owner’s consent, and at the time that he dealt with the property, he intended to deprive the owner permanently of that property. A person threatens to use force if by word or act he deliberately communicates to the victim an intention to apply physical force to him if some condition is not met or some action is not taken by the victim, for example, handing over money or goods. The threat may be expressed or implied.
In respect of this element of the offence, the Prosecution relied on Ms Quist’s evidence that the male person (said to be the accused) grabbed Ms Quist’s bag causing her to spin around, and then approached Ms Papillion and said ‘I’ll take yours as well’ before grabbing her bag.
The offence becomes one of aggravated robbery if the accused commits the offence whilst armed with an offensive weapon. An offensive weapon is an article or object which the offender has in his possession for the purpose of causing or threatening to cause injury or which is likely to cause another person to reasonably apprehend that it is likely the offender had the article or object for the purpose inflicting injury.
The prosecution alleged that the accused was armed with a knife at the time he robbed Ms Papillion and Ms Quist of their handbags.
There was no dispute at trial that someone committed the offences of robbery simpliciter, the subject of counts 2 and 3, which on the Prosecution case was the accused. However, Ms Quist did not say in her evidence that the offender was armed with an offensive weapon or a knife. Consequently at the close of the Prosecution case, on the application of defence counsel, I found no case to answer on the charged offences of aggravated robbery (counts 2 & 3), and a case to answer on the common law alternative of robbery simpliciter.
I turn to the elements of count 1, attempted aggravated robbery. To prove the offence of an attempt to commit an aggravated robbery, the Prosecution must prove beyond reasonable doubt firstly, that the accused intended to commit the completed crime of aggravated robbery and secondly, that the accused in order to carry out that intention, performed an act or acts which amount to an attempt to commit that crime.
To amount to an attempt, the accused must perform some act or acts which are a step, or are steps towards the commission of the crime which, if they had not been interrupted by the accused voluntarily desisting or by some other cause, would have resulted in the commission of the completed crime. The act or acts must go beyond mere preparation and must be closely or immediately and not merely or remotely connected with the commission of the crime. The accused must have taken some real step towards the commission of the particular crime and must necessarily involve an intention to do it. A person cannot be said to be attempting to do something if he or she does not intend to do it. Once the relevant action combined with the intention has proceeded far enough to amount to the attempted crime, it does not matter in law how it happened that the attempt failed. Once the action and the intention so combined have gone far enough to amount to an attempt, the crime has been committed.
To prove this offence, the Prosecution relied on the evidence of Mr Spencer that the offender (alleged to be the accused) whilst brandishing a knife told him to hand over his wallet or he would cut his throat. The offender desisted from his actions only once Mr Spencer emptied his pockets and wallet and showed him he had nothing more than loose change.
Again, there was no dispute at trial that someone committed the offence of attempted aggravated robbery, the subject of count 1. The dispute at trial was whether the Prosecution had proved beyond reasonable doubt that the accused was the offender.
The evidence
I now turn to the evidence in more detail.
On 4 December 2014, Mr William Spencer was employed by the Majestic Hotel and was working at the Majestic Roof Garden Hotel, Adelaide. On that day he had travelled to the apartments to complete other duties.[1]
[1] T13, L5-27.
Mr Spencer gave evidence that he arrived at the apartments at about 11.30pm.[2] He parked his car out the front of the reception area on Jerningham Street. He got out of the car carrying some linen and walked into the court yard of the apartments.[3] As he did so, he noticed what he referred to as a ‘hotted up’ car park just behind his car.[4] Mr Spencer gave evidence he thought the car was a Nissan Skyline, and it was white and very loud.[5] He said he heard a person approach him from behind wearing some sort of dress shoes which made a loud tapping noise.[6] The person came up on his left hand side, turned straight in front of him and said ‘G’day mate, hand over your wallet’. Mr Spencer said he replied ‘look, I don’t have a wallet on me, I’ve only got small change on me’. Mr Spencer gave evidence the person then produced a knife out of his right pocket and said ‘hand over your wallet, hand over your wallet, otherwise I’ll cut your throat’.[7] Mr Spencer gave evidence that he responded by saying ‘look, all I’ve got is $1.80 in change’. He reached into his pocket and pulled out $1.80 and showed the person that was the only money he had in his pocket. Mr Spencer said the person continued jabbing the knife at him and said ‘look, hand over your wallet, hand over all your money, otherwise I’ll cut your throat’.[8] Mr Spencer said he responded by saying ‘look, I haven’t got it, look, this is all I’ve got, this is all I’ve got’.[9] The person then stopped, walked away and returned to his car.[10]
[2] T13, L29.
[3] T13, L31-34.
[4] T14, L1.
[5] T14, L10-18.
[6] T14, L22-28.
[7] T14, L29-34.
[8] T14, L36 - T15, L4.
[9] T15, L6-8.
[10] T15, L8-16.
Mr Spencer gave evidence he saw two other people in the car, one person was the driver and another person was seated in the back. Mr Spencer said the back seat passenger got out of the car to let the offender climb into the car, but Mr Spencer could not see his face. [11]
[11] T15, L18-21.
Mr Spencer said that once he had calmed down, he delivered the linen to the guests. He then heard the same person’s voice who had threatened him with the knife coming from the adjoining Old Lion Hotel carpark. The person was becoming quite aggressive saying he didn’t get any money. Mr Spencer said he heard the person argue with others as to why he didn’t get any money.[12]
[12] T17, L9-14.
In evidence, Mr Spencer described the offender as a male wearing jeans and a lighter coloured t-shirt.[13] He said the male was about six foot tall with short dark black hair and he was a bit unshaven.[14] Mr Spencer said the male was of a solid build and of Caucasian appearance.[15]
[13] T15, L34.
[14] T17, L17-18.
[15] T17, L23-26.
Mr Spencer described the knife the male had brandished as about 20cm long, very shiny with a sharp blade and a black handle.[16]
[16] T15, L37 - T16, L1.
On 11 December 2014, Mr Spencer participated in an identification procedure at his home address. Two police officers presented him with a series of electronic photographs. Mr Spencer selected a photograph of the accused as the person that attempted to rob him that night.[17] A disc of the identification procedure was received in evidence.[18]
[17] T18, L9-12.
[18] Tendered as P1
Mr Spencer was asked to look around the courtroom and see if he could identify the person who tried to rob him at the apartments in December 2014. He pointed to the accused seated in the dock and said ‘it was definitely him, no doubt about it’.[19]
[19] T20, L36.
The attempted robbery was captured on closed circuit cameras situated in the courtyard of the apartments. The Prosecution tendered a series of still photos taken from the CCTV.[20] The photographs disclosed the offender as wearing a dark long-sleeved top with a distinctive lighter motif on the front, light coloured three-quarter pants and white sneakers. The offender was depicted holding a knife in his left hand.
[20] Tendered as P2
In cross-examination, Mr Spencer agreed that the incident took place very quickly and over a period of a couple of minutes.[21] Mr Spencer agreed that when he first spoke to the police, early on Friday morning just after the incident, he described the offender as wearing a light coloured t-shirt and jeans, and that his description did not match what the offender depicted in the still photographs appeared to be wearing.[22] Mr Spencer agreed that the offender did not have any markings on his arms, tattoos or earrings.[23] Mr Spencer agreed that the only lighting emanated from some illuminated lamp posts in the court yard.[24] Mr Spencer agreed that the incident occurred very quickly and it was an upsetting experience for him.[25] He also agreed that he did not know and had never seen the offender prior to that night.[26]
[21] T22, L23-24, T24, L34-38.
[22] T22, L25-35.
[23] T33, L12-21.
[24] T21, L30-33.
[25] T25, L1-4.
[26] T22, L17-19.
In relation to the offender’s car, Mr Spencer said that after the incident he looked on the internet in an effort to see if he could identify the type of vehicle in which the offender left the scene.[27] He said he did this with a colleague at work, and not at the instigation of the police.[28] Mr Spencer agreed that he said in a police statement dated 18 December 2014 that the white vehicle had 4 doors, a loud exhaust and spoiler on the rear of the car.[29] He agreed he said: ‘I have seen pictures of cars similar to the white vehicle that I saw, the pictures I have seen are of Nissan Skyline’s, the vehicle I saw on Jerningham Street was very similar to the picture that I saw of a Nissan Skyline’.[30]
[27] T25, L28-29.
[28] T25, L23-32.
[29] T26, L4-6.
[30] T26, L8-12.
In respect of the identification procedure, Mr Spencer said that he was told by the police before he participated in the procedure that they might have some photos of a suspect to show him.[31] The accused was depicted in photo number 7.[32] Mr Spencer pointed to photograph number 7 as that depicting the offender.[33] In evidence, Mr Spencer said that he selected photograph number 7 because he could not get the picture out of his mind. He said ‘I went through each of those photos as you can see from the video, as soon as I saw that photograph I remembered that picture because I will never forget it’.[34] Mr Spencer agreed however, that he looked at the accused’s image three times before he indicated that it depicted the offender. He said he did so because he wanted to make doubly sure that he was correct.[35]
[31] T26, L33 - T27, L7.
[32] T27, L8-15.
[33] and shown in P1
[34] T27, L15-18.
[35] T27, L22-24.
In respect of his ‘in-dock’ identification, Mr Spencer said that he was expecting to see the man he had selected in the photographic identification in court because Constable McPhee had told him that the person he identified in the photograph would be present in court.[36]
[36] T28, L27 - T29, L8.
Ms Sally Hicks gave evidence. She was staying on the second floor of the Apartments on 4 and 5 December 2014. She said that at about midnight she could hear commotion outside the window, and upon looking outside her window, she saw two men in a scuffle.[37] She said one male was wearing a white hoodie and three-quarter pants and was aggressively pushing the other male around and saying ‘give me all your money’. Ms Hicks said the other male was saying ‘I don’t have any money’. The aggressive male with the white jumper said ‘I’ve got a knife, I’ve got a knife, give me your money’. The other male said ‘I don’t have any money, I don’t have any money’ and appeared scared and afraid. The aggressive male said words to the effect of ‘oh stuff it, screw it’ and ran off. Ms Hicks said the aggressive male jumped into a car which drove off. Ms Hicks said she yelled out the window to the remaining male ‘are you ok?’ and went down to console him.[38]
[37] T89, L18-20.
[38] T89, L20-37.
Ms Hicks said that the offender jumped into a car which was a white car, maybe a Subaru. She said someone else was driving and the male got into the front passenger door. Ms Hicks said the car did not make any unusual sound as it drove off towards Melbourne Street.[39]
[39] T90, L3-14 - T93, L15-20.
Ms Hicks said the offender was wearing a white jumper with a hood, and as he had the hood up, she couldn’t see his face. She said he wore dark coloured three-quarter pants that showed a bit of his ankle.[40]
[40] T91, L28-33.
In cross-examination Ms Hicks said the white jumper had no motif on it.[41] She could not remember the colour of his shoes nor could she say that there was anything unusual about the man’s voice.[42] She said she did not later hear men yelling in the carpark behind the Old Lion Hotel.[43]
[41] T92, L15-16.
[42] T92, L29-33.
[43] T93, L12-14.
Ms Rosemary Papillion also gave evidence. Ms Papillion said that on the evening of 4 December 2014, she was walking with a friend, Ms Patrine Quist from the Old Lion Hotel to her home residence.[44] Ms Papillion and Ms Quist were standing on the corner of Jerningham Street and Stanley Street, when a male person approached them from Stanley Street, grabbing Ms Quist’s bag and causing her to spin around. The person then approached her (Ms Papillion), and upon grabbing her bag said ‘I’ll take yours as well’.[45] The male then got into a waiting car positioned on Stanley Street facing in an easterly direction. The car immediately drove towards the city. She said the car was a light coloured sedan.
[44] T35, L9-23.
[45] T35, L37 - T36, L3.
Ms Papillion said that she was assisted by some people from a house situated diagonally across the road. Ms Papillion said that neither she nor Ms Quist gave any person permission to take their bags. Ms Papillion said her bag contained about $80 and a Medicare card, bank card and driver’s licence.
In evidence, Ms Papillion described the male offender as taller than her (although she could not inform the court of her height) with dark hair, an olive complexion, dark eyebrows, dark eyes, and close stubble on his face. She said the offender had a ‘quite athletic’ build. She said that his right fist was clenched but she could not see anything in it. The offender had her and Ms Quist’s handbags in his left hand.
On 11 December 2014, Ms Papillion participated in a recorded photographic identification procedure at her home, a copy of which was tendered to the court.[46] The accused was again depicted in photo number 7.[47] During the identification procedure Ms Papillion said (at pages 2-3):
[46] Tendered as P5 and the transcript as P5A
[47] See Exhibit P5.
AThere’s something about number five. That, um cause he had dark eyes and dark cropped hair. A bit of a beard there, just a similar shaped face to me. So number five I feel, so I will just keep. No, no, no, no. Ok I am going to go again. So number 7, its either 5 or 7, they look. There’s something about those faces that come at, trigger something to me. Number 5 and number 7.
AYeah that is all I can say.
QYep.
QAlright, you have identified numbers five and seven as being the person/s involved in the matter under investigation. I would now ask you to sign, date and write the time and image number you have selected at the base of this document, do you understand?
AYes.
QOk so you can sign that one there.
AWell to me they stand out but I can’t be one hundred percent certain. Sorry so sign there?
Q Sign there and the images numbers. It’s actually two you have picked. Is there anything in particular more than one or the other or…
AAh, (pointing to number 5) just the shape of his face he’s quite a hefty guy. Stocky, to me that shaped face, I think he had dark eyes. It was very dark in that corner down the road there. He had dark hair, you know, it’s just like. Yeah he’s got a different shaped face (pointing to number 7) he’s got the dark hair, it could be, dark hair, a bit of growth on the face, a bit of a moustache. It was all so quick, so I’m saying.
Q So the image number?
AI’m saying five and seven. So there it’s two image number. So mmm.
Q No worries at all. I will just get you to write your name in full there.
A Yeah
QNo worries the time is now, 7.17pm and that concludes this identification.
Ms Papillion agreed that it was very dark in the street corner where she was confronted by the offender.[48] Ms Papillion said that she thought the offender left the scene in a light coloured, four-door car.[49] Ms Papillion said that there was nothing about the way in which the car drove off that struck her as being of any note.[50]
[48] T 44
[49] T45, L14-21.
[50] T 45, 46 - 47
In cross-examination Ms Papillion said that the offender was wearing a black top with long sleeves which was plain with no motif. She agreed that it appeared like a long sleeved, tight fitting black t-shirt.[51] She said she thought his pants were light coloured, long pants but not jeans.[52] Ms Papillion agreed that in her police statement of 5 December 2014 she did not say the vehicle was a light colour.[53] In cross-examination, Ms Papillion reiterated that it was a light coloured car, and said she had always thought so, despite not saying this to the police when she provided a statement.[54]
[51] T45, L32-38.
[52] T46, L18-23.
[53] T46, L25-33.
[54] T 46
In respect of the photographic identification procedure, Ms Papillion agreed that she couldn’t be 100% certain that either of the two photos she selected depicted the male offender, and it was possible that those photographs were of men who looked similar to the offender.[55] Ms Papillion agreed that she did not know and had not previously seen the male offender.[56]
[55] T48, L2-3, L31-33.
[56] T48, L20-22.
Ms Teagan White also gave evidence. On the evening of 4 December 2014, she was spending time at a friend’s house located on the corner of Jerningham Street and Stanley Street.[57] Ms White gave evidence that at about 11.15pm she noticed a white 2 door Nissan Skyline do a burnout across the road on the southern side of Stanley Street.[58] She said the car headed in a south westerly direction along Stanley Street towards the city.[59] A few minutes later, she heard a woman crying from a position near where she had observed the car do a burnout. The crying woman and her friend crossed the street to the northern side of Stanley Street, and then across Jerningham Street, where Ms White comforted both women.[60] Ms White said this occurred about five minutes after the Nissan Skyline pulled away.[61]
[57] T49, L10-12.
[58] T50, L7-11, L21.
[59] T51, L1-4.
[60] T51, L18-29.
[61] T 52
Ms White said that prior to making her observations she had consumed about six glasses of alcohol consisting of wine and scotch.[62] She said she was ‘drunk’ but was not so intoxicated that she didn’t know what was going on around her. [63]
[62] T49, L39-32.
[63] T 49 - 50
In cross-examination, Ms White said that she did not at any stage see a small sedan parked in the vicinity of the church on Stanley Street.[64] In re-examination, Ms White said that the church on Stanley Street was in close proximity to where she saw the Skyline car do a burn out.[65]
[64] T54, L24-31; as shown in P2 photo 18.
[65] T54, L33-36.
I received evidence from a series of police witnesses who either attended at the scene on 4 and 5 December 2014, or, who were involved in the investigation of the matter. Firstly, the Prosecution tendered the statements of police officers Mr Gregory Vaughton dated 5 December 2014,[66] Mr Mark Wood dated 19 January 2015,[67] Ms Nicole Birbeck dated 5 December 2014[68] and Mr Corey John Pearson dated 23 February 2015.[69]
[66] Tendered as P6.
[67] Tendered as P7.
[68] Tendered as P8.
[69] Tendered as P9.
Detective Brevet Sergeant Ryan Rigano gave evidence. On Monday 8 December 2014, he spoke with a person called Mark Wood who had located a ladies handbag.[70] The contents of the handbag revealed that it belonged to Ms Quist (count 2).[71] There was no evidence as to the location at which Mr Wood had retrieved the handbag. In cross-examination, Detective Rigano agreed that the handbag was not subject to any forensic examination.[72]
[70] T62, L7-17.
[71] T62, L20-27.
[72] T65, L20-24.
The Prosecution presented the witness Senior Constable Lindsay McNie for cross-examination by defence counsel. Senior Constable McNie agreed that Mr Spencer had told her in the early hours of the morning on 5 December 2014 that the offender had left in a white Subaru type motor vehicle, possibly a WRX, with three male occupants.[73]
[73] T73, L18-21.
Detective Brevet Sergeant Germano Finoia gave evidence that he attended at the apartments on 5 December 2014 at about 2.15am.[74] He viewed the CCTV footage at the apartments, and did not recognise anyone from the footage.[75]
[74] T77, L14-18.
[75] T 77
Detective Brevet Sergeant Finoia also gave evidence of a ‘street check report’ made on 2 December 2014 concerning the accused, Mr Weetra, which was tendered in evidence.[76] The report said:
On Tuesday 2nd December 2014 officers spotted Jordan WEETRA 1/11/1992 of HILLCREST walking along Millbank Avenue GILLES PLAINS. He briefly went inside number 16 before walking to the nearby Wandana primary school to give his sister some money. He was searched and was in possession of approximately $150.00 but nil of interest. He then returned to address at GILLES PLAINS. Jordan’s hair has grown out slightly into a short afro style however he stated that he was off to get it shaved again today. He wore black shorts with luminous orange sides and a black singlet with white stripes at the side.
[76] Tendered as P10.
In cross-examination, Detective Brevet Sergeant Finoia agreed that the report was compiled and entered onto the system by a Senior Constable Woodhouse.[77] Detective Finoia said that the only information in the report he remembers is the accused having told him he was going to have a haircut.[78] Detective Finoia said that he cannot recall Mr Weetra’s hairstyle on 2 December 2014, or whether his hair was in fact curly at that time.[79]
[77] T99, L37 - T100, L1.
[78] T100, L30-31.
[79] T100, L37 - T101, L2.
On 6 February 2015, police officer Claire Cunningham arrested the accused.[80] The accused declined to answer any questions and through his solicitor denied the offences.[81] Police officer Cunningham agreed that a purple coloured Telstra mobile phone was located on the coffee table of that address. The mobile phone was seized on the assumption that it could have belonged to the accused.[82]
[80] T83, L21-22.
[81] T112, L35 - T113, L9.
[82] T83, L29-38.
Senior Constable Luke McPhee was the investigating officer. He gave evidence that in December 2014, he was stationed at the Holden Hill police station as part of ‘Operation Mandrake’, an operation targeting a group pf aboriginal recidivist offenders. He said he requested and obtained a photo pack in the form of a PowerPoint slide show from the state intelligence branch to use for the identification procedures.[83] An arrest photo of the accused taken on 1 October 2014 was used in the identification procedures.[84] Senior Constable McPhee gave evidence that the accused was a suspect before the identification procedures were conducted because of an anonymous phone call received through Crime Stoppers.[85]
[83] T103, L6-26.
[84] T 117, L9-12 - and the relevant photo is shown in P14.
[85] T111, L20-26.
Senior Constable McPhee said that there were two media releases in respect of these offences. The first media release occurred on 5 December 2014 and contained a screen shot of the CCTV footage taken at the apartments but made no reference to the accused.[86] A second media release occurred on 15 December 2015 (after the completion of the identification procedures) seeking the whereabouts of the accused, Mr Weetra.[87] The second media release described the accused as ‘being Aboriginal appearance, 22 years old, 170cm tall, 70 kilograms, with a slim build, short brown hair, brown eyes and has a tattoo on the back of his neck.’ It also included an arrest photo taken on 1 October 2014.[88]
[86] Tendered as P11.
[87] Tendered as P15.
[88] The arrest photo taken in October 2014 was tendered with the arrest photo taken on 6 February 2015 as P14.
Senior Constable McPhee said that no forensic testing was done in respect of Ms Quist’s purse because it was found in the open and Mr Wood had handled the item. Thus, in his view any evidence was potentially contaminated and of little forensic use.[89] The police did not interrogate the phone seized from Mr Weetra’s premises at the time of his arrest because it was a new phone and police were informed that Mr Weetra did not have the phone at the time of the robbery.[90] Senior Constable McPhee agreed that the clothing worn by the offender as shown in the CCTV footage stills had never been located. However, he said the accused was not arrested until some three months after the offence.[91]
[89] T112, L12-32.
[90] T112, L4-7.
[91] T114, L8-12.
Senior Constable McPhee gave evidence of the distance between the apartments where the attempted aggravated robbery the subject of count one occurred and the corner of Jerningham Street and Stanley Street where the aggravated robberies the subject of count two and three occurred as 238.27 metres.[92]
[92] T107, L9-13 - and shown on P12.
In respect of the ‘in-dock’ identification, Senior Constable McPhee agreed that Mr Spencer inquired whether the suspect would be in court during the trial. He said he had told Mr Spencer that the person the police had arrested and suspected of being involved in the offence would be present in court, but he did not tell Mr Spencer that the person was the man Mr Spencer had selected during the photographic identification procedure.[93]
[93] T114, L16-29.
No case to answer submissions
At the close of the Prosecution case, Mr Tonkin on behalf of the accused submitted there no case to answer on counts 2 and 3. Mr Tonkin contended that the Prosecution evidence did not establish beyond reasonable doubt that the same person committed all three offences but rather the evidence indicated that a different person was involved in the first attempted aggravated robbery (count 1) and the subsequent aggravated robberies (counts 2 & 3). Mr Tonkin argued that in those circumstances the evidence in support of count 1 (Mr Spencer’s positive identification of the accused as the offender) was of no probative value and inadmissible on counts 2 and 3, and the evidence of Ms Papillion alone was insufficient to found a case ot answer on counts 2 and 3. In the alternative, Mr Tonkin submitted there was no case to answer in respect of the aggravating feature alleged in respect of counts 2 and 3. Ms Papillion did not give evidence that the offender was armed with a weapon. The Prosecution did not argue against this contention.
As set out earlier in my reasons, I ruled there no case to answer on the aggravating feature of counts 2 and 3. However, I found a case to answer on the charges of Robbery simpliciter for counts 2 and 3. In my view, there was evidence to justify a finding beyond reasonable doubt that all of the offences were committed by the same person. Thus, there was evidence with respect to every element of counts 2 and 3, including the identity of the accused as the offender which if accepted could prove the offences beyond reasonable doubt.
Defence case
I turn to the defence case. The accused gave evidence in his own defence. The accused denied having committed the offences, and said he did not know who had done so. He denied that he was the person depicted in the CCTV or still photographs taken from the CCTV footage. He said that he had never owned clothing of the type shown in those photographs.
In cross examination, the accused agreed that on the afternoon of 2 December 2014, he was walking along Millbank Avenue, Gilles Plains to meet with his sister to give her some money. He said his sister worked at the Wandana Primary School, Gilles Plains.[94] It was suggested to the accused that he had not told the police that he was going to meet with his sister but rather had said that he was going to have his hair shaved off that afternoon.[95] The accused denied this and gave evidence that he had told the police that his brother was at the hairdressers while he was going to give his sister some money.[96] The accused denied that he had a haircut on 2 December 2014.[97]
[94] T122, L13-24.
[95] T122, L25-32.
[96] T122-123, L31 - T123, L12.
[97] T124. L2-4.
The accused said he then went to see his sister and gave her $100. He said the police were watching him. Once he gave his sister the money, the police searched him, looked through his bum bag and asked him where he got the money.[98] The accused told the court that the money was from a Centrelink payment.[99] The police did not seize the remainder of the money or arrest the accused at that time.
[98] T124, L27-32.
[99] T129, L25-26.
The accused said he can’t recall what he did on the following day, 3 December 2014.[100] He said he was staying at his mum’s address at Hillcrest.[101] The accused said he does not know what he did on Thursday 4 December 2014, as it was a long time ago, and he can’t remember what he was doing two weeks ago, let alone that long ago.[102] It was suggested to the accused that from the date of his arrest in February 2015, he knew it would be important for him to turn his mind to where he was at the time of the robberies. The accused said he was arrested two and a half months after 4 December 2014, and had not kept his movements on that day in his mind.[103]
[100] T125, L16-18.
[101] T125, L19-22.
[102] T125, L25-30.
[103] T125, L31-37.
The accused denied that he was involved in a theft of a Nissan Skyline on 3 or 4 December.[104] He said he did not have any mates that owned a Nissan Skyline at that time.[105]
[104] T127, L19-21.
[105] T127, L22-24.
The accused agreed that he failed to report for parole on 3 or 4 December 2014.[106] The accused said that he knew that as soon as he didn’t report, he would be in breach of his parole and liable to be taken back into custody.[107] I direct myself not to draw any adverse inference against the accused because he was on parole at the time of these alleged offences, or in other words reason that it is more likely that he committed this offence because of his criminal record.
[106] T134, L2-5.
[107] T134, L21-26.
The accused said he cannot recall what he did over Christmas 2014.[108] He said he didn’t celebrate Christmas day with his family.[109] He said he might have spent New Year’s Eve at his sister’s house at Modbury.[110] He does not know where he was in January.[111] The accused said that prior to being arrested in February 2015, he lived ‘everywhere and anywhere’.[112] The accused denied that from December 4 2014, he was ‘on the run’ because he had committed the robberies. He said that he knew that he had breached his parole and he didn’t want to go back to prison.[113] The accused conceded that he was aware of the media release alleging that he had committed some robberies.[114] He agreed he didn’t hand himself in. However, he said he didn’t turn himself in because he had just been released from gaol, he knew was in breach of his parole for failing to report, and he didn’t want to go back to gaol for breaching his parole. He said his failure to report for parole had nothing to do with him having committed the charged robberies. [115]
[108] T132, L4-6.
[109] T132, L5-6.
[110] T132, L15-18.
[111] T132, L19-20.
[112] T132, L26-31.
[113] T132, L34-35.
[114] T132, L36 - T133, L1.
[115] T133, L9-25.
Cross-admissibility
The Prosecution case is that one offender committed all three offences. If it is open for the trier of fact to reach a conclusion beyond reasonable doubt, that the offender on each occasion was the same person, then evidence that the offender was the accused on any one of the charged offences is relevant to the question of whether the accused was the offender on the other charged offences: Hirst v Police [2006] SASC 244. If the similarity between the offences are accepted as being such as to warrant a conclusion that the offender on each occasion was the same person, evidence that the offender was the accused on one of the robberies is material and has probative value on the question of whether the accused was the offender on the other charged robberies: Barnes [1995] 2 Cr App R 491; Downey [1995] 1 Cr App R 547 at 552.
Before the evidence of count 1 can be admitted in consideration of counts 2 and 3 and vice versa, the court is required to be satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant: s 34P(2)(a) of the Evidence Act.
If the evidence is capable of satisfying the court that one man committed all three offences, the evidence of each charged offence is relevant and probative of whether the accused was the offender in the other charged offences under consideration. The prejudice is the accumulation of numerous allegations in one trial before one trier of fact and the risk that the trier of fact will reason that the accused is more likely to be guilty of all counts.
In my view, the evidence is clearly capable of establishing beyond reasonable doubt one man committed all three offences, and I am so satisfied for the following reasons:
·the offending occurred in the same suburb about 238 metres apart;
·counts 2 and 3 occurred at the corner of Stanley and Jerningham Streets about 10 to 15 minutes after count 1 was committed at the apartments;
·the offender was unsuccessful in stealing any money during count 1 so therefore had a motive to commit counts 2 and 3;
·the offender left the scene of both offences in a white or light coloured Japanese sedan;
·the mode or style of offending was very similar during each offence in that the offender either demanded the victim’s wallet while uttering threats of physical violence or took the victim’s handbag with force;
·each eyewitness described the offender as a man with dark hair, unshaven or with stubble, and of an athletic or solid build.
I have taken into account the arguments by counsel for the accused that the evidence does not support a finding one man committed all offences, in particular that the witnesses on counts 2 and 3 do not describe the offender as armed with a weapon, nor do they describe the vehicle in which the offender left the scene as having a loud exhaust. They also describe the offender in counts 2 and 3 as wearing slightly different clothing from the clothing worn by the offender in count 1 as depicted in the still photographs. However, in my view, notwithstanding those differences, the evidence is capable of establishing beyond reasonable doubt one man committed all three offences.
The potential prejudice of admitting the evidence is clearly outweighed by the substantial probative value of the evidence as being directly relevant to the identity of the offender in respect of each charge under consideration. Furthermore, the permissible and impermissible uses can be kept sufficiently separate and distinct so as to remove any appreciable risk of the evidence being used for an improper purpose, in conformance with s 34P(3) of the Evidence Act.
Analysis
I begin with count 1. The Prosecution case in respect of this charge rests primarily on the evidence of Mr Spencer and his identification of the accused as the offender. Mr Spencer selected a photograph of the accused as the man who had attempted to rob him at the apartments. He made his selection from 8 photographs shown to him about 7 days after the incident. In evidence, Mr Spencer said that he selected the photograph which depicted the accused because he believed ‘as soon as I would see that picture again, I would know exactly who it was and it was the right person so I was confident that was the picture.’ Mr Spencer disagreed that his confidence in his identification of the accused was fortified by the police having told him (on his version) that the photograph of the man he selected was the accused now on trial for the offences.
Counsel for the accused did not suggest to Mr Spencer, or the court, that he was anything but an honest witness who had made a genuine mistake in his selection of the accused as the offender. I so find that Mr Spencer was a witness who gave his evidence truthfully and in a completely honest and forthright manner about what was a clearly traumatic event for him.
I am required to give myself the following directions on the danger of convicting on Mr Spencer’s evidence in which he identified the accused as the man who attempted to rob him, and the factors which may affect my consideration of that evidence in the circumstances of this particular case: Domican v The Queen [1992] 173 CLR 555. Mr Spencer’s evidence must be approached with special caution before I accept it as reliable. A witness may be honest, as I have found Mr Spencer to be, but that does not necessarily mean that the witness has given reliable evidence. Even if I thought Mr Spencer was entirely honest in the evidence that he gave, I must still approach the task of assessing the reliability of his evidence with special caution.
Such special caution is necessary because of the possibility that Mr Spencer may be mistaken in his identification of the accused as the person who committed the crime. The experience of the criminal courts over the years, both in Australia and overseas, has demonstrated that identification may turn out to be unreliable. I direct myself that there have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.
I must carefully consider the circumstances in which Mr Spencer made his observations of the offender. There are a number of matters which have been specifically raised as adversely affecting the reliability of his evidence. These matters include the circumstances in which Mr Spencer came to identify the offender and the discrepancy between his description of the offender and the accused’s recorded physical description. In particular, I have had regard to the following circumstances of his identification:
·Mr Spencer observed the offender for a very short time, over a period of 1 to 2 minutes. He made his observations in a poorly lit area of the apartments (as shown in the CCTV footage stills) and whilst frightened and understandably distressed by the offender’s threatening conduct. Mr Spencer also agreed that he did not know, and had never seen the offender prior to that night.
·Mr Spencer described the offender in evidence as about six foot tall with short dark black hair, a bit unshaven, of a solid build and of Caucasian appearance. There was no further examination, or elaboration of, what was meant by the term ‘Caucasian’. The commonly understood meaning of this term denotes a person of white appearance or European descent. Mr Spencer’s description of the offender bears little resemblance to the accused. The accused is clearly a man of Aboriginal descent, and is described in the second media release (issued on 15 December 2014) as being of Aboriginal appearance, 170cm tall, 70 kilograms, with a slim build, short brown hair, brown eyes and with a tattoo on the back of his neck.[116] The attached photograph taken in October 2014 supports this description to the extent that it is able to do so.[117]
·Mr Spencer agreed that when he first spoke to the police immediately after the incident, he described the offender as wearing a light coloured t-shirt and jeans. Mr Spencer’s description of the offender’s clothing did not match what the offender appeared to be wearing in the stills taken from the CCTV footage.
[116]
[117]
The Prosecution also relied on Mr Spencer’s in-dock identification of the accused. The difficulty with affording this piece of evidence any weight is that Mr Spencer gave evidence that he was advised by police that the man on trial was the man he had selected from the photographs as the offender. Senior Constable McPhee gave evidence that he said otherwise. Irrespective of what was said, it was clearly Mr Spencer’s understanding that the man on trial, and in the dock, was the man he had selected from the photographs as the offender. In those circumstances, I can place no evidentiary weight on Mr Spencer’s in-dock identification.
For all of the abovementioned reasons, I am not satisfied of Mr Spencer’s positive identification of the accused as the offender as sufficiently accurate or reliable so that I am able on that evidence alone to find the charge proved beyond reasonable doubt.
There is still the evidence of Mrs Papillion. Where there is evidence which establishes that both incidents of offending (that is count 1 on the one hand, and, counts 2 and 3 on the other) were committed by the same man, as I have found to be the case here, I am entitled to consider the admissible evidence relating to all three offences during my deliberations on each count. More than one piece of evidence of identification, even where each is of slight value, may be added together in the sense that regard may be had to their cumulative effect in considering whether the accused was the offender: Hirst v Police at [82]-[83]; R v Haidley & Alford [1984] VR 229.
Ms Papillion selected two photographs during the identification procedure, one of which depicted the accused. She said: ‘There’s something about those faces that come at, trigger something to me’; ‘Well to me they stand out but I can’t be 100% certain’; and (pointing at the accused’s photo) ‘he’s got the dark hair, it could be, dark hair, a bit of growth on the face, a bit of a moustache. It was all so quick’.[118]
[118] P5 and P5B at pp 2-3.
I remind myself of my earlier directions about the dangers of acting upon identification evidence, and in particular, that an honest convincing witness can be a mistaken one and a number of identifying witnesses can all be mistaken. Furthermore, in evidence, Ms Papillion agreed that it was very dark in the street corner where she was confronted by the offender, that the incident occurred quickly and that she did not know and had not previously seen the male offender. Ms Papillion properly and fairly conceded in cross-examination that she was not certain the accused was the offender and the photographs she chose could simply depict men who looked like the offender.
In my view, Ms Papillion was an honest and straightforward witness who described her observations carefully and articulately. However, she made her observations in a poorly lit area over a very short period of time and was not certain that the accused was the offender. Furthermore, while her description of the offender broadly matches the accused, it is a very general description and there are differences, in particular she described the offender as having a ‘quite athletic build’ which, on the evidence, the accused did not have at the time of this offence.
Both Mr Spencer’s identification of the accused as the offender and Mrs Papillion’s evidence that the photograph of the accused ‘stands out’ are to varying degrees unsatisfactory pieces of evidence of identification for the reasons articulated. Furthermore, the cumulative effect of the evidence is lacking such force, without any other supporting evidence, such that I am not satisfied beyond reasonable doubt that the accused was the offender on count 1.
I have also considered the accused’s evidence. While there were some aspects to his evidence which lead me to question his credibility, such as his inability to recall events around the time of the robberies, the unsatisfactory nature of his evidence cannot be a makeweight for the deficiencies in the Prosecution case.
The reasoning also operates in reverse and neither can I be satisfied beyond reasonable doubt that the accused was the offender on counts 2 and 3.
Accordingly I find the accused not guilty of each of the charged offences and I return verdicts of not guilty on all counts.