R v WOODS

[2011] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WOODS

[2011] SASCFC 71

Judgment of The Court of Criminal Appeal

(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice David)

28 July 2011

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT AND BEING OR BEING FOUND WITH INTENT

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE

Appellant appeals against conviction following a trial before a jury - permission to appeal granted in Supreme Court - majority verdict of guilty by jury in relation to one count of aggravated serious criminal trespass in a non-residential building and one count of theft - aggravating factor is that appellant committed the offence in company with another person - sole ground of appeal is that the verdict was unsafe and unsatisfactory - trial involved circumstantial evidence in relation to identity of appellant.

Whether verdict unsafe or unsatisfactory - whether it was open to the jury to be satisfied of guilt beyond reasonable doubt - whether jury must, as distinct from might, have entertained doubt about the appellant's guilt.

Held: Appeal dismissed - not a case where the jury must have entertained a doubt about the appellant's guilt - open to the jury to be satisfied of guilt beyond reasonable doubt.

Criminal Law Consolidation Act 1935 (SA) s 134 and s 169(1), referred to.
R v Weetra [2004] SASC 337; Libke v R (2007) 230 CLR 559, applied.
R v Chamberlain (No 2) (1984) 153 CLR 521, considered.

R v WOODS
[2011] SASCFC 71

Court of Criminal Appeal:  Anderson, White and David JJ

ANDERSON J.

Introduction

1. The appellant was convicted following a trial before a jury of the offences of aggravated serious criminal trespass in a non-residential building contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and theft contrary to s 134 of the Act. The aggravating factor in relation to the trespass is that the appellant committed the offence in company with another person.

2. The sole ground upon which the appellant appeals is that his convictions on both counts were unsafe and unsatisfactory. The only issue at trial was that of the identification of the offenders. The prosecution presented a circumstantial case in relation to the identity of the appellant. The other offender was not apprehended.

3. There is no challenge to any of the evidence admitted in the trial and there is no challenge to any aspect of the summing up by the learned trial judge.

   Background

4. The complainant was working at her business late in the evening on 7 December 2009 when she saw two men wearing hooded jackets at the door of her business premises. They threw two pot plants through the front window of the premises. The complainant then ran to the rear of the premises and hid under a table. She was unsure as to where and when the offenders entered the premises or where they went when they first entered but she did hear one offender kicking various things in the room next to the room in which she was hiding. She decided to confront that offender and was backed into a corner by the offender.

5. She was not able to see the offender’s face clearly. There were fluorescent lights in the room but the offender had covered most of his face with his hooded jacket. The complainant did, however, see his eyes and the area immediately around his eyes when, she estimates, the offender was approximately 50 centimetres away from her. At that point she was face to face with the offender and although obviously concerned with her safety she says she was in a good position to at least see his eyes. From her evidence she probably looked straight at him for a number of seconds but probably not as long as a minute. She later selected a photograph of the offender’s face from 72 photographs presented to her. It was the appellant whom she eventually identified.

6. After a time, when the complainant and the offender were still standing face to face, the offender was then called by the second offender who had started the complainant’s car. The complainant ran to the front of the premises and saw the offender she had confronted run out through the broken window and get into the car which was already running. The offenders then drove away.

7. Six days later, the police in the course of their investigation seized shoes from the appellant and also searched a vehicle in Royal Park at an address apparently associated with the appellant from which they seized clothing from a bag in the boot of the vehicle. In particular two pairs of shorts were seized and tested. Both contained fragments of glass. The shoes also contained fragments of glass.

8. The circumstantial case put forward by the prosecution relied essentially on the following:

   1.The complainant’s identification of the eyes of the appellant from a police photo book. The complainant was shown a series of 72 photographs about five weeks after the incident and selected one which was in fact the appellant. There was no identification parade. The judge described that evidence as a partial identification.

   2.An imprint from the sole of the shoe left on a book cover on the floor of the complainant’s office which imprint matched the pattern on the sole of the shoe the appellant was wearing at the time of his apprehension. The jury had the photographs of the shoe mark comparison before it. The expert concluded that the accused’s shoe was capable of producing the mark on the book.

   3.Forensic evidence as to the similarity of the fragments of glass taken from both the shoe and the shorts compared with the fragments of glass from the broken window at the premises. Five of seven fragments from one pair of shorts had refractive indices which matched. One of two fragments from the shoes likewise matched.

   4.DNA evidence which linked the appellant with the shorts.

9. The complainant was also able to give the police a reasonable description of the offender, apart from his eyes. She described him as being about 6 feet tall and of slim build, which the appellant was. She also estimated his age as being in the twenties and up to 35. He was in fact aged 20 at the time of the offending.

10. As I have said, although the complainant gave evidence that she had the offender in her sight for some longer time, on the whole of the evidence, she probably had him under direct observation for less than one minute.

    The relevant principles

11. It is not sufficient for an appellant attacking a verdict as unreasonable to show that it is open to criticism: see R v Weetra [2004] SASC 337 at [28].

12. The test as set out in Libke v R (2007) 230 CLR 559 at 596 and 597 is as follows:

    But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

13. This is really a classic circumstantial evidence case. Each strand of the evidence, when combined with the other strands, gains some strength and the question is whether, notwithstanding that there is that additional strength, the verdict is unsafe and unsatifactory.

    The submissions of the appellant

14. Counsel for the appellant Mr Wickens made several important and well balanced submissions. He submitted that the evidence generally was weak. In relation to the shoe print he submitted that on the timing deposed to by the complainant it could not have been the offender who left the shoe print but more likely the co-offender.

15. The argument relies on the timing estimated by the complainant and in particular the complainant’s admission in cross-examination that there would not have been any time for the offender she confronted to go into the office room where the shoe print was found. The question raised is how the appellant, if he is one of the offenders, could leave a shoe print in the office area at one end of the building, given the complainant’s description that he followed her to the back room at the other end of the building immediately after entering the building and left the same way. Mr Wickens submits that the appellant could not have left the shoe print in the office area if he is the same person she confronted.

16. In relation to the glass fragments, Mr Wickens pointed to the evidence of the expert witness and submitted that it was not the strongest of evidence and was to some extent equivocal.

17. Mr Wickens submitted that the testing was limited to testing only the refractive index because the fragments were so small. He points to the evidence of the expert who contends that the refractive index testing is slightly supportive of the link between the fragments from the clothing and the control sample from the broken window, but did not strongly support an association.

18. There was also evidence of the glass particle on the shoe. This was the shoe that the appellant was wearing when he was arrested by the police.

19. The one sample that could be examined from the shoe was also tested, but again only for its refractive index. Mr Wickens submitted that the evidence of the glass fragments was not conclusive.

20. Mr Wickens submitted that the evidence relating to the identification of the eyes of the offender from photographs is also equivocal. He submitted that she was hesitant during the identification process and stated that she would have liked a full photograph showing the offender’s height and build. She was then unsure and equivocal before finally fixing on a photograph which it is agreed was of the appellant.

    The submissions of the respondent

21. Mr Press for the respondent argued that the glass fragments, on the expert evidence, were indistinguishable from the glass in the shop. They were on two different pieces of clothing associated with the appellant, together with his shoes.

22. Mr Press submitted that the complainant had sufficient opportunity to see the offender she confronted to enable her to give an accurate description of his eyes and identify a photograph of the appellant from 72 photographs presented to her based on his eyes. He submitted that it was open to the jury to conclude from the complainant’s evidence that the appellant was in fact the offender the complainant confronted.

23. Mr Press emphasised that the circumstantial evidence against the appellant is not simply limited to identification of the eyes, the shoe print and the evidence regarding the glass fragments because there is also the additional description by the complainant. This includes his height as nearly 6 feet, which the appellant is. It also includes his build as being thin, which he is, and finally the mere fact that there were glass fragments on his clothes at all, particularly his shoes, at the time he was arrested.

24. Mr Press frankly concedes that it was not what he calls an “overwhelming Crown case”. However, he submits that it cannot be said that a jury must, as distinct from might, have entertained doubt about the appellant’s guilt using the test referred to earlier in Libke.

25. In relation to the identification process, Mr Press emphasised the complainant’s reaction when she viewed the photograph of the appellant which she finally identified as that of the offender. She said to the police officers at that time that she was having heart palpitations and pushed the photograph away from herself. I have seen the video of that identification process and in my view it confirms the submission made by Mr Press.

26. As to the timing estimated by the complainant, Mr Press points out that the whole office and showroom was quite small and from the plan of the building which was tendered it is apparent that any movement around the building would have taken only a matter of seconds. Mr Press submitted that the complainant did not actually see the offenders enter the premises and faced difficulty in assessing the passage of time in such a stressful situation.

27. Mr Press submitted that when the jury came to assess the evidence of the glass fragments it would have taken into account that unless someone was near a breaking window it is unlikely that they would have glass fragments on their clothing. The offender would be expected to have some glass fragments on him given that glass travels backwards a couple of metres towards the person breaking the glass. The appellant had glass fragments indistinguishable from the glass at the shop on two separate pieces of clothing associated with him – his shoes and a pair of shorts. The jury would have also taken into account the evidence of the height and build of the offender as described by the complainant and the shoe print as I have previously mentioned.

28. Mr Press emphasised the extra strength of the circumstantial case by virtue of the combination of all the individual strands of evidence. He submitted that the jury considered all of the individual pieces of evidence and must have decided that the prosecution case gained strength as a result. In other words, it was the whole of the evidence which was considered. He referred to R v Chamberlain (No 2) (1984) 153 CLR 521 at 535 and 536 in support of his argument.

    Consideration

29. Mr Wickens’ submission in relation to the shoe print and who left it has some merit. However, in my view the jury may well have reasoned that the complainant was not strictly accurate in her estimates of time and that because she did not have the offenders in sight from the time she saw them break the glass, it was possible for the appellant to have left the print in the office. That in my mind is a classic jury question. It was something for the jury to evaluate. It was open to conclude that both offenders went into the office, one left and confronted the complainant and the other continued to search the office then took the keys and left the building and started the car.

30. In relation to the identification of the appellant’s eyes and Mr Wickens complaint of the inherent unreliability of such an identification, the fact of the matter is that the complainant was given 72 photographs and did, after considering two other possibilities, fix on the photograph of the appellant because of her perception that the appellant’s eyes were the same eyes as the offender she confronted.

31. She used various descriptions of the offender’s eyes.

32. She described the eyes as “staring at me”, as “dark beady eyes”, as “piercing eyes” and that she “looked right into them”. The appellant’s eyes do appear from the photograph to be quite distinctive. When one considers that she also got his age, height and build quite accurate, it gives some more weight to the identification of the appellant based on his eyes.

33. As to the glass fragments, the fact is that not many members of the population would generally be found with glass fragments on their clothing. If the offender was the appellant then the presence of glass fragments on the appellant’s clothing is consistent, on the expert evidence, with the splashback of glass fragments from breaking the window. The expert gave the opinion that the offender would have had to be within two metres of the glass to have any particles of glass on his clothing. The jury was quite entitled to reason along those lines.

    Conclusion

34. As I have indicated, this seems to me to be a classic circumstantial evidence case. It cannot be said that at the end of the prosecution case there was no case to answer. It may not have been a strong case but there was nevertheless a case to answer. The jury, properly instructed by the learned trial judge, came to a conclusion which in my view cannot be said to be unreasonable. It is not a case where it has been shown that the jury must have entertained a doubt about the appellant’s guilt. Rather, at most it has only been shown that the evidence is open to some criticism. That was all taken into account by the jury and in my view the appeal should be dismissed.

35. WHITE J.             I agree that the appeal should be dismissed for the reasons given by Anderson J.

36. DAVID J.              I agree that the appeal should be dismissed for the reasons given by Anderson J.