R v Weetra - [2013] SADC 115

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WEETRA
Criminal Trial by Judge Alone
[2013] SADC 115
Judgment of His Honour Judge Boylan
23 August 2013
CRIMINAL LAW
Accused charged with armed robbery. Sole issue: identification. Circumstantial case.
Verdict: Guilty
Firearms Act 1977 s.11; Evidence Act 1929 s.34R, referred to.

R v WEETRA
[2013] SADC 115

The accused, Colin Weetra, is charged with the offence of armed robbery. He pleaded not guilty and I heard his trial without a jury. I now set out the reasons for the verdict which I am about to deliver.
There is no dispute that, at about 3.00 o’clock pm, on 23 September 2011, a man armed with a pistol robbed the cashiers in the gaming room at the Bridgeway Hotel at Pooraka. The only issue for me is whether the prosecution has proved beyond reasonable doubt that the accused is the robber.
Outline of prosecution case
The prosecution case is almost completely circumstantial. The prosecution relies on the strong resemblance of the accused to the robber shown in hotel security footage and on photographic identification by an eyewitness to the robbery. Further, the robber wore a beanie and a ‘Russell Athletic’ jacket. Some months after the robbery, the accused was found in possession of a pistol similar to the one used by the robber and, when police searched the accused’s house, they found a beanie similar to the robber’s and a photograph of the accused wearing a ‘Russell Athletic’ jacket.
Outline of defence case
The accused’s defence is alibi: at the time of the robbery, he was at home nursing a broken thumb which had been examined and bandaged by his general practitioner earlier in the day.
The security film
The best evidence of the robbery is the film recorded by the hotel security cameras. It shows the robber wearing the beanie and jacket and with his face uncovered walk towards the cashier’s counter at which Mr Ross Larner, a customer, is standing. While one of the cashiers, Ms Reid, serves Mr Larner, the robber puts on a pair of sunglasses. As Mr Larner walks away, the robber bends, apparently taking something from a green shopping bag which he is carrying. He straightens up, now holding a pistol in his right hand and, with his left hand, pushes the bag towards Ms Reid, who responds by moving back from the counter. The second cashier, Ms McPartland, takes Ms Reid’s place. Ms McPartland puts money in the bag. Once he has taken the bag back, the robber walks away and, as he does so, pushes Mr Larner who is again walking near the counter. Mr Larner stops, turns and looks straight into the robber’s face. The robber then walks out of range of the cameras but eyewitnesses saw him leave the hotel through a set of double doors which open onto an outdoor balustraded landing. The robber bumped into the balustrade before walking down a short flight of steps and limping across the car park until he was out of sight.
The investigation
Police began investigating the robbery within minutes of it and, over the next few weeks, they made a number of enquiries and discounted a couple of suspects. Their enquiries went nowhere.
The searches
On 8 December 2011, the accused was driving his car on Frome Street in the city. His adult son was with him, sitting in the passenger seat. Police officers stopped the car for a routine traffic matter but ended up searching it after noticing a baseball bat within the vehicle. They found a number of balaclavas, a quantity of ammunition, a taser and, under the driver’s seat, a .45 calibre pistol. In the front console was a box of bullets capable of being fired from that pistol. The pistol is similar to the robber’s. Later, police officers searched the accused’s house and found, in his stepson’s bedroom, a beanie similar to the one worn by the robber. Elsewhere, they found a photograph of the accused wearing a zip-up ‘Russell Athletic’ jacket.
I pause here to deal with an evidentiary matter. I have ignored all of the items found in the car except the pistol and the ammunition found in the front console. The items which I have ignored are inadmissible because they are irrelevant to proof of the charge before me. I have not used the evidence of those items for any evidentiary purpose at all, including any propensity purpose. Despite the prosecutor’s submission to the contrary, the evidence of those items being found does not assist me in determining whether the prosecution has proved that the accused was in possession of the pistol under the seat. Nor, in determining that issue of possession, have I used the fact that the accused, in the Magistrates Court on a firearms prosecution, pleaded guilty to possessing the pistol. That plea is equivocal because of the definition of ‘possession’ in the Firearms Act.
The pistol was under the driver’s seat of a car owned by the accused and used almost exclusively by him and ammunition capable of being fired from it was in the console next to the driver. The accused must have been aware of the presence of the ammunition. In those circumstances I am satisfied that he was in possession of the pistol in the sense that he knew it was under his seat, that it was in his custody and that he intended to exercise control over it.
Reliability of evidence
Before returning to the various items of circumstantial evidence upon which the prosecution relies, I say something about the quality of the film and the reliability, or otherwise, of the evidence of eyewitnesses.
The film does not show the robber’s facial features or clothing with great clarity. It shows his build and, to the extent that one can gauge height from a film, it shows his height. In some frames it shows his lower face and jaw reasonably clearly. The film does not show him walking in ‘real time’.
All eyewitnesses were honest and the physical conditions for making observations were good. The cashier’s counter and the bistro area were well lit. All the witnesses who saw the robber had unobstructed views of him but their emotions may render the observations of some of those witnesses much less reliable.
Ms Reid observed the robber before she knew what he was up to and, therefore, at a time when she had no reason to be affected by fear or shock. But as soon as she went to serve him, he presented the pistol and pushed the bag towards her. She screamed and moved back a step or two. Thereafter, she watched what was happening but was terrified. Ms McPartland ‘served’ the robber and did not have her eyes on him for the whole time. She, too, must have been terrified from the time she first saw him.
Mr Larner saw the robber immediately after the robbery, but did not then know that there had been a robbery. As Mr Larner was again walking near the counter he felt as though he had been pushed in the back. He immediately felt apprehensive and turned to face the man who had pushed him. They were standing face-to-face and Mr Larner looked directly at the robber. The robber was then, of course, still wearing sunglasses. It was at that stage that Mr Larner saw the beanie and what was uncovered of the robber’s face. Although, when he first gave evidence, Mr Larner thought that he had looked at the robber for longer, it could have only been for a second or so, at most. He looked straight at him; there was nothing obstructing his view when he took that first look. He had never seen the robber before. After Mr Larner had looked straight at him, the robber, with a downward motion of his head, indicated the pistol. Mr Larner looked down, saw the pistol and then noticed the bag. It was then that he realised that there had been a robbery. In summary, even when Mr Larner first turned to look at the robber he was apprehensive and shortly thereafter was fearful.
The appearance of the robber
I observed the accused throughout the days of the trial as he sat in the dock and as he walked in and out of it. I have watched the film of the robbery very closely many times and I have been able to pause it and study individual frames. In general build, apparent height, body shape and face shape – especially the lower face and jaw line - the robber ‘matches’ the accused but the film is not clear enough for me to be able confidently to identify the accused as the robber. Accordingly, the resemblance is an item of circumstantial evidence.
In considering the resemblance of the robber to the accused, I have also taken into account the descriptions given by various eyewitnesses of the robber. Allowing for the variations to be expected when eyewitnesses give descriptions of a man whom they saw only fleetingly and, in some cases, when they were in fear, the descriptions of the robber very generally fit the accused. But, as I have said, the film is the best evidence and I have relied on it, not on the descriptions.
I return to the clothing
The beanie
Details of the robber’s beanie are not entirely clear in the film. It is tight fitting and black, or, at least, very dark coloured. It appears to have a square shaped area of pattern or decoration at the lower middle front. In some frames, the bottom section of that area appears red.
Two witnesses described the beanie. Ms McPartland remembered a thin bright red line about a half a centimetre wide which did not go the whole way around the beanie. Mr Larner described the beanie as being ‘tight fitting’ and with stitching around the bottom. He said:
It was just like a different colour embroidery stitching around it so it gave a band around – around the bottom.
Mr Larner added that the stitching went ‘all the way round’.
The beanie seized by the police from the accused’s premises was admitted as Exhibit P20. That beanie is black and would be tight fitting. It has, in the middle of the lower front, the Aboriginal flag: a square picked out in gold stitching with a solid yellow circle, also stitched in gold. The square is divided horizontally with a black section above a solid red section, the red section being somewhat thinner than the black and something over a centimetre wide. Above the square, again in gold stitching, is the word ‘Ngarrindjerie’, that word being slightly longer than the stitched upper side of the square.
The robber’s beanie is consistent with exhibit P20 and with the various descriptions of it given by the eyewitnesses, who, after all, could only have recorded impressions of the robber’s beanie or impressions of parts of it.
I do not know how common such beanies are.
The jacket
The robber wore 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 that word and in letters of the same size, the word ‘Athletic’. Between those two words, in some frames of the film, I could make out a mark on the jacket.
Police found, a photograph of the accused wearing what appears to be an identical jacket. In the photograph, which is very clear, the words and figures ‘Est 1902’ appear in between the words ‘Russell’ and ‘Athletic’ and in much smaller lettering. Although no such words and figures can be made out on the robber’s jacket, the mark to which I have referred is in the same position as the small writing and figures on the jacket which the accused is wearing in the photograph. The photograph does not show stripes on the sleeves but, in the photograph, the accused is holding his arms in such a position that one would not expect the stripes to be visible. I do not know when the photograph was taken. Only the photograph was found; no similar jacket was found. As in the case of the beanie, I heard no evidence about how common such jackets are.
The pistol
The pistol, Exhibit P8, looks the same as the one used by the robber and seen in the film but I cannot say definitely that it is the same pistol. I have considered the descriptions of the witnesses who saw the pistol on the day of the offence. Ms Reid said that Exhibit P8 looks like the same pistol. Ms McPartland described the finish of the pistol as being ‘like brushed metal’. She said it was not shiny but had a dull finish. She thought that the robber’s gun may have been a bit darker than Exhibit P8 but she was not sure about that. She went on to say that she did not remember the robber’s gun being any different from Exhibit P8. Mr Larner saw the robber’s pistol for a split second only. He described it as ‘a dirty chrome-plated pistol – bubbly, not in pristine condition.’ He said that the robber’s pistol looked dirtier than Exhibit P8 but that the two pistols were the same size. A patron of the hotel who saw the robber as he faced Mr Larner, Mr Nissen, said that the robber’s pistol was ‘darkish, sort of blackish’. He said that Exhibit P8 was very similar in size and colour to the robber’s pistol and that there was no difference ‘whatsoever’ that he could notice between Exhibit P8 and the pistol which he saw the robber holding.
Brevet Sgt DeLaine, a ballistics expert, examined the pistol and compared it with the robber’s. Sgt DeLaine studied still photographs prepared from the film and also studied the images on his computer screen. While Sgt DeLaine could find no points of difference between the two pistols, he was able to conclude only that the pistol found in the accused’s car is consistent with the one being used by the robber. His evidence was that the firearm which he examined, Exhibit P8, is not uncommon.
The photo board identification evidence
On 16 January 2012, nearly four months after the robbery, the two cashiers and Mr Larner were shown collections of photographs each of which included a photograph of the accused. 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 is of the accused. Ms McPartland selected a photograph but it was not of the accused. Mr Larner identified the accused as the robber.
Mr Larner was a careful witness. 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 accused on 16 January 2012, after having pointed almost immediately to the accused’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. Once assured that ‘none of the people in these photos were in the last one’ Mr Larner confirmed his identification of accused as the robber. He remembered the robber’s round head and jaw line. Mr Larner impressed me as an honest, careful, credible and reliable witness. Nevertheless, I warn myself about his evidence.
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. Ms Reid’s evidence is so weak and so dangerous that I have not used it at all.
The defence case
Mr Weetra did not give evidence. That was his right and I have drawn no inference against him for choosing to exercise that right. There may have been many reasons why he chose not to give evidence and I have not speculated about them. I have directed myself that the onus of proof is on the prosecution to prove its case beyond reasonable doubt. The accused does not have to say, do, or prove anything. Further, he is presumed innocent unless and until I am satisfied that the prosecution has proved each of the elements of the offence beyond reasonable doubt.
Although he did not give evidence, the accused called a number of witnesses. Before turning to their evidence, I mention the evidence of Dr Roy, who was called by the prosecution.
Dr Roy is the accused’s general practitioner. There is no dispute that on the morning of 23 September 2011, the accused 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. The accused did not complain of pain when moving his thumb about. Dr Roy arranged for an x-ray to be performed there and then. The x-ray showed a fracture to the distal joint of the left thumb. Dr Roy bandaged the accused’s left hand with a white crepe bandage, a bandage which, Dr Roy said, the accused could remove and replace himself. Dr Roy prescribed Panadeine Forte, to be used at night if there was throbbing pain; otherwise, Panadol or Nurofen. Before the accused left his surgery, Dr Roy certified that the accused was unfit for work for one week. The accused failed to return three days later for Dr Roy’s recommended review.
When questioned about the accused’s ability to work as a sports trainer, Dr Roy said that Mr Weetra would be capable of pushing and pulling heavy weights but such activity would give him ‘a little bit of pain’.
On 15 November 2011, the accused again attended for a medical certificate. On that occasion, he consulted Dr Roy about his thumb and about other health problems. On that occasion, too, Dr Roy bandaged the accused’s left hand.
I now go back a little in the accused’s medical history to 19 August 2011. On that day, the accused 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 accused was walking well and was not limping.
Ms Winifred Warrior, the accused’s de facto wife, gave evidence. Ms Warrior told me that, on the morning of the robbery, she drove the accused 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 back to her workplace for a 1.00 pm appointment. She left the accused at home with her then 17 year old son Luke Wilson and she did not return until about 5.30 pm.
Ms Warrior also gave evidence that the accused had had no hair for at least 10 years and had had some tattoos on his hands for about the same time, or longer. Ms Warrior did not know if the bandage on the accused’s hand on 23 September 2011 was brown or white. She said he could not put the bandage on himself and she had to assist him to put it back on after showering. When asked about the toe injury, Ms Warrior said that the accused had never limped as a result of that injury. When asked about the beanie and jacket, she said that she had never seen him wearing a beanie such as Exhibit P20 and that she did not recall seeing him in a ‘Russell Athletic’ top.
Luke Wilson is Ms Warrior’s son. He was a Year 12 student at the time and was having a day off school. He spent most of the day watching television in the lounge room of the accused’s house. Luke Wilson’s evidence was that the accused remained in his bedroom for the whole of the afternoon, not leaving the house at all. Mr Wilson said that he would have known if the accused had left the house. Had the accused left through the front door, he would have had to walk through the lounge room where Mr Wilson was watching television. Luke Wilson would not have seen the accused leaving through the back door but, had the accused done so, Luke would have heard the noisy roller door which the accused would have had to operate to leave the premises. Luke Wilson’s evidence was that the accused did not walk through the lounge room and that he did not hear the roller door.

Luke Wilson could not remember the colour of the bandage on the accused’s hand on 23 September 2011, saying that, ‘at a rough guess’ the bandage looked white or brown. He did not remember the accused ever limping owing to a toe injury and, while Luke Wilson knew that the accused had tattoos on one of his hands, he could not say on which hand.
Mr Wilson was asked about the possibility of his having confused the events of 23 September 2011 with a day in November when the accused may also have come home with a bandaged hand. He agreed that he might have been home from school in November but that he remembered the accused coming home with a bandaged hand on one occasion only. He went on to say that it was not possible that he had seen the accused with a bandaged hand in November but, then added that he was ‘not sure’.
Aaron Adams, Ms Warrior’s nephew, was also living at the accused’s house at the time. He arrived home from school at about 3.30 or 3.45 pm and said that the accused was there, with his hand bandaged.
The prosecution produced photographs of the accused’s house. It shows the roller door but it also shows, between the roller door and the front of the house, a wooden gate. Ms Warrior, Luke Wilson, and Aaron Adams all gave evidence that that gate was locked and the key lost a long time before the day of the robbery and that, therefore, the accused could not have left the house through that gate.
I do not accept Luke Wilson’s evidence that the accused did not leave the house. In rejecting his evidence, I do not suggest that Mr Wilson has been dishonest with the court. He was not asked about the accused’s movements on the day of the robbery until some six months later when the accused’s family realised that the robbery had taken place on the day of the appointment with Dr Roy. Mr Wilson said that he remembered that day. He may well have a memory of his stepfather returning from the doctor with a bandaged hand on some occasion. But, even if his memory is of 23 September 2011, Mr Wilson conceded in cross-examination that there probably were occasions when he left the lounge room during that afternoon. The accused could well have left the house on one of those occasions.
My rejection of the evidence is not a basis for a finding of guilt. The onus of proof remains wholly upon the prosecution.
I have considered all of the arguments put by Mr Richards, 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.
I have also considered the evidence about the robber having limped. Ms Reid gave evidence that he was limping before the robbery, as he approached the cashier’s counter. Mr Francis, the man sitting in his car in the car park, said that the robber was not limping before he went into the hotel but had a ‘slight limp’ as he made his way across the car park after the robbery. Mr Parham, a hotel employee, saw the robber run through the bistro but said that he did not notice any limp at that time. Mr Parham only saw the accused limping, and limping ‘very badly’, after flinging himself into the balustrade on the landing. Mr Parham noticed that the robber’s injury was to his right leg. I have already mentioned that Dr Roy had never noticed the accused limp on account of his toe injury. One of the accused’s work fellows, Mr Silvestri, who had seen the accused working in the gym at the accused’s workplace, also said that he had never noticed a limp. Only Aaron Adams said that there had been a time when the accused limped but it was not his evidence that he noticed any limp at about the time of the robbery.
Ms Reid’s evidence does not raise any doubt in my mind about the identity of the robber. Mr Francis after all, who had no reason to feel alarm at any stage, did not notice any limp as the robber walked across the car park before the robbery.
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.
I enter a verdict of ‘guilty’.
Discreditable conduct notices
The prosecution filed discreditable conduct notices. The conduct the subject of one of them was the presence in the accused’s car on 8 December 2011 of items which included a baseball bat, ammunition, balaclavas, a taser and gloves. As I mentioned earlier, I have used only the evidence of the ammunition found in the console next to the driver’s seat. I have not used the evidence of the other items for any purpose at all.
The presence of the ammunition in the console may be evidence that the accused is guilty of an offence other than the offence charged but I have not used it for any propensity purpose. The evidence has a permissible use, namely, as tending to prove that the accused was in possession of the pistol. Its probative value substantially outweighs any prejudicial effect and I have kept it sufficiently separate and distinct from any impermissible use and so removed any risk of its being used for an impermissible purpose.
I have directed myself that the evidence of the presence of the ammunition in the console cannot be used unless on the whole of the evidence, the facts in proof of which the evidence is admitted are established beyond reasonable doubt.
The discreditable conduct the subject of the second notice comprises the presence in the accused’s car of the pistol and ammunition suitable for use in it, and his pleas of guilty for the various offences against the Firearms Act. I have not used the evidence of the pleas of guilty for any purpose at all. I have ignored them completely.
I have already explained the only purpose for which I have used the evidence of the ammunition in the console, namely, as tending to prove that the accused was in possession of the pistol.
I have used the evidence of the accused’s possession of the pistol for one purpose only: as one piece of circumstantial evidence tending to show that the accused is the robber. I have not used the evidence for any propensity purpose. Its probative value substantially outweighs any prejudicial effect and I have been able to keep it sufficiently separate and distinct from any impermissible use to avoid any risk of its being so used.
In respect of the evidence of the possession of the pistol, I have, again, directed myself in terms of s.34R of the Evidence Act 1929.