R v Williams - [2014] SADC 220

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLIAMS
Criminal Trial by Judge Alone
[2014] SADC 220
Reasons for the Verdict of Her Honour Judge Davison
24 December 2014
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
On 24 August 2013 the Plympton Post Office was robbed by a male holding a knife. The male demanded employees of the post office put cash from their tills into a blue shopping bag that he was carrying. The male then left the store with the bag. The incident was captured on CCTV footage inside the post office.
Verdict: Guilty.
Criminal Law Consolidation Act, 1935 (SA) ss 137(1), ; Juries Act, 1927 (SA), referred to.
Azzopardi v R (2001) 205 CLR 60; R v Weetra [2010] SASCFC 52; Murphy v The Queen (1994) 62 SASR 121; R v Coxon (2002) 82 SASR 412; R v White (2008) 102 SASR 35; Domican v The Queen (1992) 173 CLR 555; The Queen v Dorizzi (2000) 84 SASR 403; Barca v R (1975) 133 CLR 82; Doney v R (1990) 171 CLR 207; Chamberlain v R (No 2) (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619; R v Hillier (2007) 228 CLR 619; Shepherd v R (1990) 170 CLR 573; Hirst v Police (2006) 100 SASR 260; Strauss v Police [2013] SASC 3; R v Turnbull [1981] VR 611, considered.

R v WILLIAMS
[2014] SADC 220
Background

The accused is charged with one count of aggravated robbery. It is alleged that on 24 August 2013 at Plympton, he went into the Plympton Post Office and threatened to use force against CT and EB in order to commit theft of money. It is alleged that he took $2,930.25. It is further alleged that he used an offensive weapon, namely a knife, when committing the offence.
The event was captured on CCTV. The offender had a blue shopping bag into which the money was placed. A blue shopping bag was located in a park not far from the post office shortly after this event.
On 18 October 2013 the accused participated in a line up at the Elizabeth Police Station. CT and EB both picked him in a line up in which they participated. Neither of them was certain that he was the offender. A witness, OS, picked another person from the line up.
The charge
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Steven Malcolm Williams on the 24^th day of August 2013 at Plympton, threatened to use force against [CT] and [EB] in order to commit the theft of money in the amount of $2,930.25, and the threat was made at the time of and immediately before the theft.
It is further alleged that Steven Malcolm Williams used an offensive weapon, namely a knife, when committing the offence.
The trial
The trial proceeded as trial by judge alone. Both the accused and his former solicitor had filed the appropriate certificate pursuant to the Juries Act 1927 (SA).
General directions
The accused comes before this Court with the presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proven beyond reasonable doubt. The prosecution bears the burden of proof. The charge must be proven beyond reasonable doubt. The accused does not carry any onus of proof. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence, I must give the benefit of that doubt to the accused and find him not guilty of the charge.
If, after careful and full consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict must be one of not guilty.
In these reasons, where I indicate that I am satisfied of a particular fact or event, I mean satisfied beyond reasonable doubt.
In this case the accused elected not to give evidence. He was under no obligation to do so. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[1]
[1][1] Azzopardi v R (2001) 205 CLR 60 at [51] and R v Weetra [2010] SASCFC 52 at [67].
Where the case, as it is here, rests upon circumstantial evidence, I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. It is necessary that not only must his guilt be a rational inference but that it should be the only rational inference that the circumstances enable me to draw. I must determine the facts in accordance with the evidence considered logically and rationally without acting capriciously or irrationally. But I may use my commonsense and experience in assessing the evidence.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence the witness gives. I can reject or accept all or a part of the witnesses’ evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.
I remind myself that I must not draw any adverse inference against the accused for the fact that special arrangements for the taking of evidence of witnesses have been made, nor allow the special arrangements to influence the weight that I give their evidence.
In this case the witnesses, CT and EB, gave evidence with special arrangements in place.
Elements of the offence
The ingredients of the offence of aggravated robbery are:
1that the accused committed a theft. A theft is committed if the accused deals with the property of another dishonestly and without the owner’s consent and at the time that he dealt with the property he intended to either deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights;
2that the accused used or threatened to use force in order to commit the theft;
3that the force was used or threatened at the time of or immediately before the theft;
4the offence is aggravated if it is proven that he had an offensive weapon. That is an article that he has for the purpose of causing personal injury or incapacity or in circumstances in which another is likely to feel reasonable apprehension that he has it for the purpose of causing personal injury or incapacity.
Each element must be proved beyond reasonable doubt.
The Crown case
The Crown called Senior Constable First Class (SC) Lackovic. He is a crime scene officer at Sturt Police Station. On 24 August 2013 he went to the post office at Plympton. He arrived there at about 11.18am and had a conversation with some police officers. He then viewed some video footage before commencing the examination of the scene.[2] Having done that he then commenced taking a series of photographs. These photographs were tendered.[3] They showed the interior of the post office that is set up with the post office on the left hand side as you walk in and a newsagency on the right hand side. These photographs generally show the set up of the counter and where two the Crown witnesses were at the time when an offender entered the premises.
[2] TT 13.
[3] P1.
A series of photographs were taken on a reserve located on the corner of Birkalla Terrace and Osborne Terrace at Plympton. They show a blue shopping bag in situ and then close ups of the blue shopping bag including some coins that were located in it. This blue shopping bag was seized by the police officer and tendered at trial.[4]
[4] P3.
He was cross-examined. He was asked about the police property management system number and the exhibit number that he had attached to the blue bag. He was also asked about the CCTV footage but had little knowledge in relation to it. He did not see where the camera was located that filmed the CCTV footage.
CT was called. On 24 August 2013 CT was working in the Plympton Post Office. She started work at 8.15am. She was working with a fellow worker by the name of EB. Later in the morning she was working on terminal number 2 behind the counter in the post office. At about 11.00am she became aware that there was a person on the other side of the counter saying to EB “put it in, put it in”.[5] At that stage EB was to her right. When she heard these words she pressed the security buttons as quickly as she could and when the man said “put it in, put it in” she started putting money into his bag. The bag that he had was a blue bag and it was on the counter in front of her co-worker EB. It appeared to be a cloth Coles shopping bag.[6] There was no other conversation between the man and her or EB. It took about 30 seconds to put the money into the bag and he then left the store through the front door but CT did not see which way he went.[7] After he had left the store, EB told the girl at the newsagent side to call the police. The police were called and the front doors were closed effectively locking in any customers. The police then arrived.
[5]    TT 26.
[6]    TT 27.
[7]    TT 28.
CT gave evidence that she put both notes and coins into the blue bag. She looked at exhibit P3 and said that she could not recall the black “being on the bag”.
CT described the man as wearing a dark fleece jumper and a black beanie. He was of a medium height with brown hair and dark brown eyes. His skin was an olive tanned colour. She thought he may have had some moles on his face. He was a slim build. She could not detect any accent to his voice. She said she had him under observation for maybe one minute.[8] The lighting was on in the shop, she had nothing obstructing her view of him and the closest point that he got to her was over the counter and close to the scales that are visible in the photographs P1. She thought that he was aged late 20s to mid 30s.
[8] TT 30.
CT gave evidence that on 18 October 2013 she went to the Elizabeth Police Station. She participated in an identification parade. There were a number of men in the room. She was asked to identify who she thought was the robber.[9] She chose a particular person because he resembled the person that she saw at the post office. The resemblance was in his eyes, hair and skin. She picked out number 7. After she picked him out she was asked by the police officer “are you sure”. She responded “I’m not sure”. She gave evidence that after she had picked out number 7 he was asked to step forward. When he did step forward he was quite close to her. She became quite frightened and it just made her a bit unsure, she was not absolutely positive at that time. She was concerned that the colour of his hair was different. She thought it might have been a bit lighter when she saw him at the post office. Videotape of the identification procedure was played to the witness and the DVD was marked for identification.[10]
[9] TT 33.
[10] MFI P4.
The footage from the CCTV at the Plympton Post Office was also shown to the witness. The DVD was marked for identification.[11] The witness identified herself on that footage and her co-worker EB. She also gave evidence that she could see the man who had come to the counter on that footage.
[11] MFI P5.
She was cross-examined. She confirmed that she had not seen any weapon in the hand of the man. She said that she was frightened both at the time of the ID process and the robbery. She said that in the course of the identification parade she had expected that she would be able to pick somebody out. I was also under the impression that the police expected that she would be able to pick somebody out. She said she was very frightened throughout the whole of the identification parade despite the fact that there were police officers present and it was in a police station.
The prosecution called EB. On 24 August 2013 she was working in the Plympton Post Office. She was working on terminal one. During the morning she had been serving customers mainly doing the bills. She put a sign up on her counter to say ‘counter closed’ and was going through the bills and stapling receipts onto the bills when her job was interrupted.[12] The first thing she noticed was a blue shopping bag being thrown at her. The shopping bag had a black pattern on it. When this first happened she thought someone was being rude throwing something at her so she pushed it away without thinking. She then looked up and saw a person standing there telling her “put it all in”.[13] He repeated on a number of occasions “put it in, put it all in”. At this time the man was right up against the counter leaning over the counter towards her. He had his body pushed up against the edge of the counter[14] and she saw a blade, like a knife or something, poking out from his hand. It was then that she realised what he actually wanted. The blade, she described, stuck out just enough so that she could see it without him pulling it out; he was just showing her that he had something.[15] She demonstrated how he showed her the blade. The blade was about 3 cm long, slightly silver but looked a bit rusty and dirty.[16] After she saw the blade she grabbed some money, looked at her co-worker, CT, and put the money into the bag. They kept taking turns to put it in. She described it as “it was like slow motion but it was really quick”.[17] She put notes into the bag and she saw CT putting money in as well. EB said CT grabbed some notes and some coins and threw them in the bag. After they finished putting the money in the bag, the man walked towards the doors and ran towards Marion Road in a northerly direction.
[12] TT 50.
[13] TT 50.
[14] TT 52.
[15] TT 53.
[16] TT 55.
[17] TT 56.
She described the man as wearing fingerless gloves, a beanie and a grey and black or grey and navy long sleeved jacket. He looked a bit scruffy, slightly tanned with bits of his hair sticking out from underneath the beanie. He had brown hair, was aged 30s to 40s, medium build. It was difficult to judge his height because he was leaning over the counter, but she did not think he was very tall. She thought he was shorter than her and she estimated 164cm. She did not notice any accent.
On 18 October 2013 EB attended at the Elizabeth Police Station and participated in an identity parade. She selected number 4. That was the accused. She was very nervous and scared about being there. After she said his number, the police officer asked him to step forward and when he did she was asked how sure she was she picked the right number and she said “95%” accurate. She said this because she was scared and intimidated. She said she was just frightened.[18]
[18] TT 67.
EB was asked whether there were any differences between the man at the police station and the man at the post office. She said that the people at the police station were all neat and tidy and none of them had beanies on, they all looked neatly combed. There were no other differences that she could detect as being the man she selected at the police station and the man who came into the post office. She was shown exhibit P3, the shopping bag, and said that it looked like the bag that was used in the robbery.[19]
[19] TT 69.
EB was cross-examined. She agreed that there was a Coles supermarket just behind the post office. She marked it the location of the Coles supermarket with a ‘C’ on the exhibit. She was shown the CCTV footage from within the post office. This was the first time she had seen the footage. She agreed that the robbery had not taken very long. She said she could not see the blade on the video but she had seen it with her own eyes.[20] She disagreed that it could have been a belt buckle or some other metal item. She was asked whether she agreed that it could not be seen on the CCTV. She said “I don’t know. I didn’t really look”.[21] She agreed that the male had not “presented” the knife towards her, by that she meant pushed it up towards her physically. She agreed that at the line up she had been very frightened. She had an expectation that the person who came into the post office would be there and she was very scared of that. She agreed that she had said that she could not be 100% sure.
[20] TT 73.
[21] TT 73.
The prosecution called OS. At about 11am on Saturday 24 August 2013 OS went to the Plympton Post Office to buy ‘scratchie’ tickets at the newsagency. She was standing at the counter where the Lotto tickets are sold. That is a different counter to the post office counter. While she was waiting in line she looked around and she saw a male person at the post office counter. She only glanced at him briefly. He was facing towards the post officer counter but he turned his head and she could see his face. She saw him for about five seconds or so when he was three metres away from her. He was wearing a black beanie and a black jacket and had a blue bag with some black markings on it.[22] She thought it was a bag from one of the supermarkets. She thought he was about 5 foot 7 inches which is around her height or maybe a little taller and he did not look like he was overly big or smallish but the jacket concealed his build. She could not see much of his hair other than what was sticking out but thought that it might have been black. She remembered he had dark eyes and an olive complexion. It was his eyes that stood out to her. She thought he was about 30 years old. She heard him say, “put it all in there, put it all in there”. He repeated that twice.[23] She then saw the two ladies behind the counter putting money in the bag and that was when she realised that it was a holdup. She said it happened very quickly and he left the shop.
[22] TT 84.
[23] TT 85.
On 18 October 2013, OS went to the Elizabeth Police Station and took part in an identity parade. She selected a person who was not the accused. She said she found the process difficult because no-one was wearing beanies. She had only seen the person in the post office for a very short time.
OS was cross-examined. She was asked whether she agreed the person had an Australian accent. She said “yes”. She agreed that she did not see any weapons or objects in his hands. It was suggested to her that when she realised it was a robbery her senses could have been quite acute and she agreed with that proposition. She agreed with the proposition that this whole incident occupied a matter of seconds. She said he exited through the door and then went towards the left-hand side.
The prosecution tendered a statement of SD.[24] SD said she was in the post office and went to the counter. As she approached the counter she saw a male rush in from outside and walk straight up to the post office counter. She did not realise what was going on at first and thought he was pushing in. While he was standing to her left she heard him say, “I want the lot, give it all to me, put it all in”. She was not sure if they were his exact words but it was similar to that. She then saw him throw a blue shopping bag with a black hibiscus over the counter. She recognised it as a Coles bag. She saw one of the ladies who was wearing red, start to put money in the bag. It seemed to her that the man was becoming agitated. When she noticed this, she became worried about her young child and grabbed her child and started walking towards the rear of the shop to get away from him. She did not see him leave however after she heard a lady’s voice she turned around and saw the male jogging north on Marion Road through the car-park. She described him as being Caucasian, wearing a tracksuit.
[24] P7.

The prosecution called Anthony Sherry. He was the owner of the Plympton Post Office on 24 August 2013. He was not at the post office during this incident but received a telephone call from his daughter who works there and went straight to the post office.[25] He cross referenced the tills and said that $2,930.00 was stolen. He can tell this by doing a reconciliation. He gave evidence that there was a CCTV capability in the shop. There were four active cameras, one of which is just behind the tellers in the post office.
[25] TT 91.
When the police arrived they asked whether there was CCTV. Mr Sherry then checked the vision. Some of the police officers also had a look. Mr Sherry then downloaded a portion for them on to a memory stick and gave it to the police officers. He has since viewed the vision that was placed on the memory stick which has now been placed on to a disc. He confirmed that the disc contained the same material as the memory stick.[26]
[26] P5.
The prosecution called Constable Fraser. On 24 August 2013 just after 11am he received a tasking on the police radio. At that stage he was on mobile patrol on Streeters Road at North Plympton. He proceeded to go into the car-park on the corner of Anzac Highway and Marion Road where the Plympton Post Office is.[27] He was given information as to the description of the offender on the radio and was looking out for him. He did not see anyone on the streets that he drove down. He pulled up just outside the door to the post office and turned off his siren and remained there until 11.13am. He viewed some CCTV footage.
[27] TT 99.
The prosecution called Senior Constable First Class (SCFC) Mayger. He was on duty and received a tasking at about 11.15am on 24 August 2013. He was in the South Plympton area when he received information about a robbery at the post office. He then drove around the area to the western side of Marion Road north of Anzac Highway. At about 11.30am he saw a bag on the reserve on the southern side of Osborne Terrace. It was a blue bag that matched the description of the bag that had been used in the robbery. He parked his police vehicle and walked over to it, had a look at it and then maintained observations of it until the crime scene examiner arrived. SCFC Mayger identified the location of this bag by reference to the photographs, exhibit P1.
The prosecution called Detective Sergeant (DS) Sheldon. DS Sheldon organised the identification parade on 18 October 2013 at the Elizabeth Police Station. She confirmed that the accused Steven Williams was one of the participants in the identification parade. She described the process by which the identification parade took place. She confirmed that they had all been recorded on video and a transcript had been prepared of the procedures used. She confirmed that the procedures were contained on exhibit P4. The first of the parades was with the witness OJ. She selected a person other than the accused. The second parade was in relation to EB. She selected the accused. The third parade was in relation to CT. She also selected the accused.
DS Sheldon was cross-examined. She said that she had tried to locate people having a description of the accused. However, the description was “pretty generic”. She had been given a description by the investigating officer and she also had a description on the police systems of the accused at that time.
The prosecution called Pamela Fietz. She is a forensic scientist. She completed DNA testing in this matter. Her report was tendered.[28] She confirmed that the Forensic Science Centre had received the blue shopping bag[29] and a tape lift had been taken from the handles and upper part of the bag. A DNA sample was then obtained from this tape lift. This tape lift gave a mixed DNA profile consisting of two contributors. It was then compared against the reference samples supplied by the accused. She then evaluated two hypotheses from this evidence. The first is that the accused and a second person are the contributors to that DNA profile and the second hypothesis is that two unknown people are contributors of that DNA profile. The statistical weighting is 35 billion times more likely to obtain that mixed DNA profile if Mr Williams, the accused, and a second person are the contributors to that DNA profile than two unknown people. Both EB and CT were excluded as contributors. The second contributor was a female.
[28] P8.
[29] P3.
Ms Fietz was cross-examined in relation to the laboratory processes. She said the samples taken from the shopping bag had been done at a completely separate time to that of the reference samples and the testing and processing had been done at a completely different time.
In relation to the samples provided by EB and CT, and their DNA profiles being excluded from the shopping bag, she said that one explanation may be that they did not touch the area that had been sampled on the bag or that they had had no contact with the bag. She was cross-examined about whether it was possible that there were more than two contributors. She said there was no indication on the testing that there was, but she could not exclude the possibility. In terms of the statistical weighting that she had arrived at, she said it may change slightly if there were more than two contributors. However, because the statistical weighting in this case was 35 billion it might come back to 20 billion or alternatively it may be higher than 35 billion. Nevertheless, it would still be very high.
The prosecution called Detective Brevet Sergeant (DBS) Perkins. He is the investigating officer. He became involved in this matter on 26 August 2013. He was informed that a blue bag had been located in the vicinity. He organised for some doorknocks to be done in relation to the area around where the bag had been found. Nothing came of these enquiries. He attended at the Plympton Post Office that was closed at the time. He then walked the route that took him northern along Marion Road and then west along Lydia Street and southwest along what is known as the Linear Park to where the bag had been located. He estimated that that distance was 200-300 metres but it took him less than two minutes to walk it.[30] He also utilised the height charts that are provided by Australia Post on the doors of the post office. He checked these and found the beginning of the blue band was 173cm on the left door and the right door was 172cm. When the doors were closed they both measures 173cm.
[30] TT 131, 132.
A photograph was tendered of the accused at his arrest in 2012. His height appears to be between 170-180cm.
DBS Perkins confirmed that he took a buccal swab from the accused on 16 October 2013 that was later submitted to the Forensic Science Centre. On 17 October 2013 he took buccal swabs from EB and CT that were also provided to the Forensic Science Centre. He confirmed that he viewed the CCTV footage[31] and extracted some still images that were admitted into evidence as exhibit P10.
[31] P5.
DBS Perkins was cross-examined. He confirmed that there is no route out to Lydia Street on the northern side of the Coles supermarket and that the only access to the post office would be to go around the Coles building on the southern side. He was also cross-examined about the unidentified contributor on the DNA profile. He said that he had received information that that profile was not listed on the database held by SAPOL or on the national database.
The accused did not give evidence or call any evidence.
Ms Abbey addressed on behalf of the Crown. She submitted that the charge had been proven beyond reasonable doubt. She suggested that the facts were as follows:
There was a robbery at about 11am on 24 August 2013 at the Plympton Post Office where notes and coins were taken. These notes and coins were taken in a blue Coles bag. A bag matching that description was found 150 metres away as the crow flies or 200-300 metres via the streets. That route would take less than two minutes to walk. The bag located by the police in the reserve in Osborne Street had coins in it. The bag had a DNA profile obtained from it. That DNA profile matches Mr Williams’ profile. There was CCTV footage that showed the robbery taking place and a man carrying out that robbery who looked “very very very much like the accused”. She said in addition to this, there were still photos that showed a facial likeness to the accused that was “incredibly strong”. The description of all three witnesses in the post office is consistent with the appearance of the accused upon his arrest. That EB and CT had made positive identifications. She said that the case for the prosecution was overwhelming.
Mr Redford addressed on behalf of the accused. He reminded me of some important matters including the presumption of innocence, the burden of proof, the standard of proof, the fact that reasons are required and that in assessing the witnesses I can accept all or part or reject all of a witnesses’ evidence. He also submitted that I must exercise caution in dealing with identification evidence.
Mr Redford submitted that the witnesses CT and EB had not positively identified the accused as the offender and that the alleged presence of DNA that matched the profile of the accused could be coincidental and could not of itself prove the charge beyond reasonable doubt. He said that the person depicted in the CCTV footage cannot be said to be the accused beyond reasonable doubt and there was insufficient evidence to prove that the person who entered the post office and committed the robbery was carrying a knife. He said he did not have any issue to put in relation to the chain of evidence and submitted that although I did not have to analyse each circumstance of the circumstantial case, I should do so. He submitted that I must consider whether there are any rational inferences consistent with the innocence of the accused. If there was such a hypothesis then I must give the benefit of the doubt to the accused and find him not guilty.
Mr Redford said that in relation to the knife only EB had seen the knife, and that neither CT, OS or SD had seen the knife. EB could not be clear that it was on the CCTV footage and that I should be wary about accepting her evidence in respect to that point. He accepted that the CCTV footage speaks for itself. He also suggested that it would be very difficult for the robber to have held the knife and the bag in the same hand and that would therefore be unlikely. This, he said, militated against there being a knife in the hand of the perpetrator. He submitted that the Crown had not proven beyond reasonable doubt that there was an offensive weapon used by the perpetrator of the robbery.
In relation to the identification parades, he suggested that an unusual procedure had been adopted by the police in that the witnesses and the participants in the identification parade were all in the same room. He submitted that I should be wary in relation to the identifications as both CT and EB had expected to see the robber in the line-up. He said that the identification by CT had taken quite a long time. She had been in the room looking at the participants for 30 seconds before she then took an additional 30 seconds to scan the line before selecting the accused. He suggested that at the time of the identification, neither CT nor EB had been positive but that they had reinforced their own beliefs over time and I should be wary of accepting their evidence in court on this issue.
In dealing with the DNA evidence, Mr Redford said I should take into account the fact that no DNA of EB or CT was found on the bag. That may mean that this was a different bag to the bag used in the robbery. He also submitted that the DNA profile that matched his client may have been deposited in some other way such as his client having come in contact with another person who then touched the bag. He also submitted that the witnesses had seen the offender running off in a northerly direction and the quickest way for the offender to have dropped the bag in this location would have been to go in a southerly direction and then west.
Assessment of witnesses
CT gave her evidence in a very straightforward and convincing manner. She had an opportunity to observe the offender for some time in the post office. She had a good view of his upper body and face. The lighting was good, she was no more than two metres from him during the entire incident and her attention was focused on him during the time she was putting the money into the bag. There appeared to be no impediment in her view of him although looking at the CCTV footage[32] it is evident that she would not have had a good view of his hand or his arms at all times from where she was because there was a barrier in the form of a box that enclosed the rear of her terminal on the public side of the counter.
[32] P5.
When EB gave her evidence it was clear that she was very nervous, hesitant and possibly still traumatised by the events of 24 August 2013. Making allowances for these issues, her evidence was very convincing and consistent. What she described happening can be clearly seen on the CCTV footage.[33] There was nothing to indicate that her memory or her recollection of this event was faulty in any way when compared against the vision that can be seen of the events unfolding. I accept that she was very nervous when she went to the identification parade in October 2013.
[33] P5.
OS gave her evidence in a considered straightforward manner. She was prepared to concede when she was not sure about different things. She had seen the offender for a very short time. Her attention had not been focused upon his face during the course of the robbery and she had had only a fleeting look at him as she glanced around the post office. Nevertheless, her description of him was consistent with that of EB and CT and also consistent with what can be seen on the CCTV footage.[34]
[34] The CCTV footage from camera 1 shows her entering the post office after the offender and she could only have seen him very briefly.
Identification
As I have said the descriptions given by the three eyewitnesses in this matter are consistent with each other and are consistent with the presentation of the accused in court and in the photograph that was tendered of him upon his arrest in 2012.[35]
[35] P9.
CT and EB had the offender under observation for about one minute. At all stages he was within a couple of metres of them and the top part of his body was clearly visible. He wore a beanie that precluded them seeing most of his hair, although there did appear to be some of his hair protruding from the bottom of the beanie. The lighting in the area was good, it was daylight outside and their attention was focused upon him for that period of time.
CT and EB attended at the Elizabeth Police Station in October 2013 and participated in an identification parade. Both selected the accused as the person who came into the post office on 24 August 2013. Both were confident in court that he was the offender. Nevertheless, at the time of the parade neither of them was 100% sure that he was the offender. Both of them appear to have been frightened and scared at the identification parade. Neither of them was prepared to commit to the fact that he was the offender in front of him. For this reason I do not regard their identifications as positive evidence of identification. Rather I intend to use this evidence as a part of the circumstantial case.[36] In using this evidence as part of the circumstantial case, I warn myself that evidence of this type can be potentially unreliable.[37] People do have difficulties in recognising a person that they only saw fleetingly and at a time when they were under considerable personal stress as the robbery was in progress. People have different capacities to remember and retain an image of different individuals. The evidence must be subject to particular and careful scrutiny. I have subjected the evidence of EB and CT to scrutiny. I have borne in mind that a mistaken witness can be convincing and that a number of witnesses may be mistaken.[38] I am satisfied that the evidence is reliable and probative and the witnesses are credible.
[36] Murphy v The Queen (1994) 62 SASR 121; R v Coxon (2002) 82 SASR 412; R v White (2008) 102 SASR 35.
[37] Domican v The Queen (1992) 173 CLR 555.
[38] Hirst v Police (2006) 100 SASR 260; Strauss v Police [2013] SASC 3; R v Turnbull [1981] VR 611.
In relation to the evidence of OS, I have also considered whether her selection of someone other than the accused at the identification parade gives rise to a reasonable possibility that the crime was committed by someone else. I have also considered all of the aspects of her evidence in forming my opinion in relation to this. In particular, I consider that OS had a limited time to see the offender, that she was not in the same position as EB and CT in that she was further away, his face was not directed towards her except for a fleeting glance and that she did not have him under her direct observation for the entire time he was in the post office. I do not consider that there is a reasonable possibility that the crime was committed by someone else.
Evidence of CCTV
I have had regard to vision from camera 1 mounted within the store on the ceiling facing towards the entrance doors. The vision clearly depicts people coming and going from the shop during the relevant period. Camera 2 is mounted on the right hand side of the post office counter and shows clear vision of people approaching the counter, the workers behind the counter and also people approaching the Lotto counter on the other side of the post office. Camera 3 is mounted towards the rear of the shop on the ceiling showing the area in which the cards are displayed. For the purposes of this trial the vision from this camera is of no assistance. It does not have any vision of the relevant areas. Camera 4 appears to be mounted towards the left hand end of the Lotto counter, which shows vision of people approaching the Lotto counter and also has a clear view of the doorway and those entering and leaving the post office. You can also view people approaching the post office counter although the vision of them is obscured by some bunting across the ceiling. For the purposes of this trial I have had regard to the vision that is available on cameras 1, 2 and 4. Each of them records the relevant events shown from different angles. The content of this disc has been authenticated by Mr Sherry and also by CT and EB, to a more limited extent, by them being shown various passages then agreeing that that is what occurred during the course of this event.
The vision on CCTV is relevant to show the sequence of events, how the various witnesses reacted and what they were doing at various times. It is also relevant as it shows the appearance and the movements of the offender. In addition to this I have found it helpful in resolving the issue of whether the circumstance of aggravation has been proven.
The vision has its limitations and I have taken these into account. All the vision is taken from a higher point than that of the participants and therefore the vision looks down on them. There is no sound. It is of good quality although not crystal clear.
The offender can be seen entering the post office on camera 1 at 11.27:24. In addition to the vision on exhibit P5 there is also a still image that has been created. It clearly shows the facial features of the individual who committed this offence. There is nothing that distinguishes the facial features, physical attributes or any other feature of this offender from the accused. As I said the facial features can be clearly seen in the vision on camera 1 and also on camera 2. On camera 2 at 11.27:44, SD and her child are waiting at the counter to be served. At 11.27:46 the offender first enters the frame. At 11.27:50 to 11.28:58 a knife is clearly visible in the offender’s right hand. This right hand is for most of the time resting upon the counter. At 11.28:12-14 he leaves and appears to have something protruding from his right hand. This is less clear than when he is at the counter. This vision can and should be used by me to determine whether the crime has been committed and whether it was the accused who committed it. As Gray J observed in The Queen v Dorizzi[39]
It may indeed be a silent trustworthy, unemotional, unbiased and accurate ‘witness’ with a complete and instant recall of events. It may provide strong, convincing evidence that will demonstrate clearly either the innocence or the guilt of the accused. The weight that should be afforded to videotape evidence can only be assessed after viewing the particular tape. The degree of clarity and quality of the images are factors which go towards establishing the weight which a trier of fact might properly place upon the evidence. The time of recording may or may not be significant. Even if there are only a few frames which clearly show an assailant this may be sufficient for the purpose of identification. The trier of the fact is entitled to review the tape, to stop and then to study the pertinent frames and repeat the process as needed.
[39] (2000) 84 SASR 403 at [39], [40].

I have done this. I have reviewed the footage on cameras 1, 2 and 4 on numerous occasions. I have stopped the vision, I have replayed the vision. I have also, of course, had the advantage of having the accused in court. From Monday 15 December to the conclusion of this matter at 11.47am on Wednesday 17 December 2014. During this time I have had the advantage of seeing the accused standing up and moving around. I have observed his facial features and stature for that period of time. It was obvious what the issues were in this trial from a very early stage. I therefore paid particular attention to all of these matters as the trial progressed.
I have also closely examined the vision in relation to the question of whether the offender was armed. I can see a knife in his hand on the vision in particular in the frames from 11:27:50-54 on camera 2. At this point in addition to seeing the item in his right hand there is a glint of what appears to be a metal object. As the offender leaves he appears to still have something in his hand but this is less clear than when he at the counter. There is no doubt in my mind that the offender has a knife in his right hand when he is in the post office.
Circumstantial evidence
As I have determined not to use the evidence of EB and CT as positive identification evidence, this is a case that is entirely circumstantial in nature. As I referred to earlier in these reasons, a verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused.[40] If an inference or hypothesis consistent with the innocence of the accused is open on the evidence then the accused must be given the benefit of the doubt necessarily created by those circumstances. If there is a reasonable explanation for the circumstances which is consistent with innocence then the accused must be found not guilty. This is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence.
[40] Barca v R (1975) 133 CLR 82; Doney v R (1990) 171 CLR 207; Chamberlain v R (No 2) (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619.
The defendant’s guilt must be the only rational inference that can be drawn in the circumstantial evidence. In determining whether there an inference is reasonable I must consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts none of which viewed alone would support that inference.[41] While guilt must be established beyond reasonable doubt, the individual primary facts used to establish guilt need not themselves each be proved beyond reasonable doubt.
[41] R v Hillier (2007) 228 CLR 618.
I do not have to reject one circumstance because considered alone no reasonable inference of guilt can be drawn from it. I must consider the weight which is to be given to the united force of all the circumstances put together. One piece of evidence may resolve a doubt about another.
This is not a case in which any of the facts that make up the circumstantial case are an indispensible link in the chain of reasoning towards the inference of guilt such that I need to be satisfied of that fact beyond reasonable doubt before such an inference can be drawn.[42] Rather this is a case in which the accused’s guilt is proved by an accumulation of circumstances in which the individual circumstances need not of themselves be proved beyond reasonable doubt.
[42] Shepherd v R (1990) 170 CLR 573 at 579.
The items of circumstantial evidence
The items of circumstantial evidence relied upon by the prosecution to establish that the accused was the offender at the Plympton Post Office on 24 August 2013 are as follows:
1The appearance of the individual on the CCTV footage, exhibit P5, appears in all respects to be identical with the appearance of the accused both in court and in the arrest photograph, exhibit P9.
2The offender had a blue shopping bag. That blue shopping bag is clearly visible in exhibit P5. It is identified by each of the eye witnesses although CT cannot recall the black markings on it.
3A blue shopping bag matching this description was located about 180 metres as the crow flies or 200-300 metres from the Plympton Post office. This bag was located about half an hour after the incident. The bag contained a number of loose coins.
4A DNA profile was obtained from the bag.
5That DNA profile matched the DNA profile of the accused. The statistical weighting given to the hypothesis that it is his DNA and that of an unknown person rather than two unknown persons, is 35 billion:1.
6The description given by CT generally matches the description of the accused.
7The description given by EB generally matches the accused.
8The general description given by OS generally matches the accused.
9The description, although limited, given by SD is consistent with being the accused and there is nothing inconsistent about it.
10At the identification parade, CT indicated the accused as the person who entered the post office and committed the offence – although she could not be 100% sure.
11At the identification parade, EB nominated the accused as the person who entered the post office and committed the offence. She too could not be 100% sure.
12OS at the identification parade selected another individual. The circumstances of her viewing the accused at the time of the incident were very limited.
I have considered whether there is a rational hypothesis consistent with the innocence of the accused. In this regard, I have considered the fact that the DNA profiles of EB and CT where excluded from the profile obtained. I have also considered whether the fact that OS chose someone else gives rise to such a reasonable hypothesis either alone or with the other evidence. I have considered whether the DNA profile of the accused could have been deposited in some way other than he being the offender or whether the fact that there could possibly be a third or more contributors that would result in a different statistical weighting. In all I have considered all of the arguments put before me by Mr Redford.
I am not satisfied that there is a rational hypothesis consistent with the innocence of the accused.
I am satisfied beyond reasonable doubt that the CCTV vision shows that it was the accused who committed the offence. The balance of the circumstantial case supports and strengthens this finding.
In the circumstances of this case, I am satisfied beyond reasonable doubt that the accused was the person who entered the Plympton Post Office and who committed the offence of aggravated robbery. I have viewed the disc that contains the vision of the events. I am satisfied that the accused is holding in his right hand something that matches the description given by EB. It appears to be visible at a couple of times on the vision. The accused appears to be very conscious of this arm and at one stage appears to pull down the sleeve attempting to cover an item in his hand. I have no reason to think that the description given by EB of the blade that she observed in his hand, within a couple of metres of her, and that caused her to treat this matter seriously.
Conclusion
In the circumstances of this case I find that it was the accused who entered the post office at about 11am on 24 August 2014. At the post office he committed the theft of money to the amount of $2,930.25 and that at the time that he dealt with this property he did so dishonestly and without the owner’s consent intending to deprive the owner permanently of the property. I am further satisfied that he used force in order to commit the theft and that this force was used at the time of or immediately before the theft. I am further satisfied beyond reasonable doubt that the accused had in his possession a knife and he had this in circumstances in which another was likely to feel reasonable apprehension that he had it for the purpose of causing personal injury or incapacity. I am therefore satisfied that he had an offensive weapon in his possession at the time he committed the offence of robbery. I find the accused guilty.