Roe v The State of Western Australia
[2015] WASCA 64
•30 MARCH 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 64
CORAM: McLURE P
NEWNES JA
MAZZA JA
HEARD: 15 DECEMBER 2014
DELIVERED : 30 MARCH 2015
FILE NO/S: CACR 168 of 2014
BETWEEN: RONALD WADE ROE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 1250 of 2013
Catchwords:
Criminal law - Application for leave to appeal against conviction - Circumstantial evidence as to identification - Witness selected two persons (including appellant) from digi-board as resembling offender - Jury not directed that offender could resemble other person - Whether direction made inadequate
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Ian MacFarlane
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Domican v The Queen (1992) 173 CLR 555
R v Hillier (2007) 228 CLR 618
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
McLURE P: I agree with Newnes JA.
NEWNES JA: This is an application for leave to appeal against conviction. The appellant was convicted after trial of one count of stealing, one count of aggravated robbery and one count of stealing a motor vehicle. He was sentenced to a total effective term of 3 years and 8 months' imprisonment, with eligibility for parole.
Background
The State case
The State case at trial was that at about 5.30 pm on Saturday, 15 December 2012, the appellant stole three bottles of spirits and two bottles of Coca Cola from the First Choice liquor store in the Bentley Shopping Centre on Albany Highway in Bentley. After the appellant left the store, he walked onto the road in front of a car being driven by Mr Ponggos. Mr Ponggos came to a halt and the appellant then got into the passenger seat of the car and asked Mr Ponggos for a lift, saying he had no money.
The appellant directed Mr Ponggos to stop at an intersection in St James. As the vehicle came to a stop, the appellant held one of the bottles of liquor over his head in a threatening manner. He demanded that Mr Ponggos give him the car keys and the car. Mr Ponggos immediately removed the keys from the ignition, jumped out of the vehicle and ran away from it. The appellant gave chase, catching up with him within approximately 30 m. He punched Mr Ponggos several times to the right eye, face and right shoulder. Mr Ponggos suffered a cut to his right eye as a result of the punching. The appellant then took the keys from Mr Ponggos, ran back to the vehicle and drove away. The vehicle was recovered some three weeks later.
The issue at trial was identification. The State case was based on circumstantial evidence.
The evidence on identification
Ms Lawrence, a bottle shop attendant at the First Choice liquor store, gave evidence that, at about 5.30 pm on 15 December 2012, she observed a man take three bottles of spirits from a display in the store and two bottles of soft drink from a fridge and leave the store without paying. Ms Lawrence said the man was about 180 cm tall. He was wearing black
shorts with a stripe on the side and a black and white chequered hoodie. The hood was covering his head. Ms Lawrence said that after he left the store she saw the man flag down a car and get into it. The registration number of the vehicle had '1CH' in it.
Mr Ponggos gave evidence that at about 5.30 pm on 15 December 2012 he drove to the Woolworths store in the Bentley Shopping Centre in his Mazda 2 sedan. He described the Woolworths store as being close to the First Choice liquor store. Finding the Woolworths store closed, he decided to return home. He said he was stopped by a man standing in the roadway. The man got into his car and said that he had no money. He asked Mr Ponggos for a lift. He described being subsequently assaulted by the man, who stole his car. Mr Ponggos described the man as about five feet eight inches tall, wearing a brown shirt and black shorts, and that he had short, black, curly hair. He was carrying a brown paper bag containing two or three bottles of liquor. A photograph of Mr Ponggos' car was tendered as an exhibit. The registration number of the car was 1CHO - ***.
Mr Ponggos subsequently identified two photographs (photographs 6 and 10) from a digi‑board as photographs of men who looked familiar to him as the person who committed the offences. One of the photographs, photograph 6, was a photograph of the appellant. Photograph 10 was not. The identification process was videotaped, and the videotape was played to the jury and tendered as an exhibit.
Evidence was tendered in the form of two pieces of CCTV footage and some still photographs. One showed the offence at the First Choice liquor store at 5.30 pm on 15 December 2012, the subject of the stealing charge against the appellant. The person who committed the offence was wearing a chequered hooded jacket and black shorts with a stripe on the side. The other showed a person who stole liquor from the Thirsty Camel liquor store in Balga later that day, at about 10.25 pm. The person who committed that offence was wearing a chequered hooded jacket and black shorts with a stripe on the side. It was not in issue at trial that that person was the appellant. The State case was that the appellant was also the person, in the same attire, in the footage at the First Choice liquor store.
On the stealing offence, count 1, the State led propensity evidence that the appellant had been convicted on his own plea of five offences of stealing alcohol from a bottle shop, four of those offences having been committed at the Bentley First Choice liquor store between 1 February 2013 and 3 February 2013.
The appellant did not give or adduce evidence.
The directions by the trial judge
The trial judge directed the jury that the selection by Mr Ponggos of photograph 6 was not evidence of a positive identification of the appellant as the offender. His Honour warned the jury of a special need to be cautious before convicting an accused in reliance upon their identification by a witness who, as in this case, did not know the accused, because of the risk of honest error. He directed the jury that in such a case it is necessary to closely examine the circumstances in which the witness saw the offender and the circumstances in which the witness later identified the accused as the offender. He directed the jury that they must also take into account the limitations of photographic evidence and the danger that a witness may subconsciously be influenced by the expectation that the offender is going to appear in one of the photographs in the digi‑board.
Against that background, the trial judge pointed out to the jury what his Honour described as the weaknesses in this case in the evidence of identification in the digi‑board procedure, namely: that Mr Ponggos had never seen the appellant before the incident; that Mr Ponggos was likely to have been surprised when he first saw the offender, standing in front of his vehicle; that while driving Mr Ponggos had limited opportunity to observe the offender; that Mr Ponggos was undoubtedly stressed when robbed and the assault may have affected his ability to recall the appearance of the offender; that there was a delay of about two months between the incident and the digi‑board identification; and that Mr Ponggos' evidence that the offender had short, curly hair may not match the appearance of the appellant in the digi‑board photograph.
In the course of summarising the defence case, the trial judge noted that in the digi‑board procedure Mr Ponggos had also identified the person in photograph 10, who was not the appellant, as being familiar to him as the offender.
The primary judge directed the jury that the evidence had to be considered as a whole and that they had to be satisfied beyond reasonable doubt that the only reasonable inference which could be drawn from the proven facts was that the appellant was guilty of each of the offences. No complaint is made about that direction.
The ground of appeal
The sole ground of appeal, as amended following the hearing of the appeal, was that the primary judge failed to adequately direct the jury as to the exculpatory nature of the circumstantial identification evidence by failing to direct that the offender could also resemble the person (not the appellant) depicted at photograph 10 of the digi‑board.
(I should note that it is not contended the trial judge should have directed the jury that the person depicted at photograph 10 was the offender, a ground of appeal to that effect having been abandoned after the hearing of the appeal when the appellant's counsel became aware that that person was in prison at the time of the offences.)
The disposition of the appeal
In my opinion, the appeal has no reasonable prospect of succeeding. In the circumstances of this case, the absence of a direction of the nature contended for by the appellant was not capable of giving rise to a miscarriage of justice.
The appellant's case at trial was not that the person in photograph 10 was the offender. There was no basis upon which that case could have been advanced. The defence case was simply that, on the basis of the circumstantial evidence, the jury could not be satisfied that the appellant was the offender.
The evidence that Mr Ponggos had identified the person in photograph 6, the appellant, as being familiar to him as the offender was, as the trial judge directed the jury, circumstantial evidence, not positive identification evidence. It was simply one of a number of strands of circumstantial evidence relied upon by the State on the issue of identification and was not an essential element of the State case, in that it was not 'an indispensable link in a chain of reasoning towards an inference of guilt' (see Shepherd v The Queen[1990] HCA 56; (1990) 170 CLR 573, 579).
The task of a jury, and of this court, in a case where the prosecution case relies on circumstantial evidence is clear. The circumstantial evidence must be evaluated in its entirety, not on a piecemeal basis, in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Shepherd (579 ‑ 580); R v Hillier (2007) 228 CLR 618 [48]. To focus on one discrete part of the circumstantial evidence, as the appellant seeks to do in this case, is to distract attention from the strength of the evidence as a whole.
The circumstantial evidence on identification, apart from the digi‑board evidence, was compelling. On count 1, the stealing charge, the CCTV and still footage at the Thirsty Camel liquor store showed the appellant wearing a chequered hooded jacket and black shorts with a stripe on the side at about 10.25 pm on 15 December 2009. The footage from the Bentley First Choice liquor store some five hours earlier the same day showed the person who stole the liquor wearing the same attire. There was, in addition, propensity evidence, admissible on this count, that on five other occasions within a short space of time the appellant had stolen liquor from a liquor store - on four of those occasions from the Bentley First Choice liquor store.
On counts 2 and 3, the evidence of Ms Lawrence was that the person who stole the liquor left the store and flagged down a passing car, bearing a registration number containing '1CH', which he then got into. Mr Ponggos' evidence was that at about that time he was driving his Mazda sedan, registration number '1CHO - ***', near the Bentley First Choice liquor store when he was stopped by a person, who then got into his car. That person subsequently threatened him with one of the bottles of spirits the person was carrying, assaulted him and took his car. In addition, in his first record of interview the appellant lied to police that he did not wear hoodies of the kind shown in a photograph of the offender in the Bentley First Choice liquor store, that evidence being admitted as evidence of consciousness of guilt.
His Honour gave appropriate directions to the jury that the evidence had to be evaluated as a whole and that in order to bring in a verdict of guilty the jury must be satisfied that guilt was the only rational inference that could be drawn from the evidence. His Honour also gave Domican warnings (see Domican v The Queen (1992) 173 CLR 555, 562 ‑ 563) and in summing up the defence case his Honour expressly referred to the fact that Mr Ponggos had also selected photograph 10 on the digi‑board. In my view, the directions the trial judge gave were adequate in the circumstances of the case.
Conclusion
No direction of the nature contended for by the appellant was necessary to ensure a fair trial or to avoid any perceptible risk of a
miscarriage of justice and no miscarriage occurred. Leave to appeal should be refused and the appeal dismissed.
MAZZA JA: I agree with Newnes JA.
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