Wade v The Queen
[2014] VSCA 13
•14 February 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0087 | |
| EDWARD WADE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES | NETTLE, REDLICH and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 February 2014 |
| DATE OF JUDGMENT | 14 February 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 13 |
| JUDGMENT APPEALED FROM | DPP v [Wade] (Unreported, County Court of Victoria, Judge Maidment, 23 April 2013) |
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CRIMINAL LAW – Conviction – Armed robbery and attempted armed robbery – Applicant sentenced to a 25 years Supervision Order pursuant to Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) – Indictment – Severance – Prejudice – Whether charges should have been severed – Verdict – Whether verdict unreasonable – Evidence – Whether secondary evidence of contents of lost CCTV recordings should have been excluded under s 137 of Evidence Act 2008 – Pitkin v R (1995) 130 ALR 35; Libke v The Queen (2007) 230 CLR 559; Festa v The Queen (2001) 208 CLR 593, referred to – Evidence Act 2008 s 137.
WORDS AND PHRASES – ‘Document’ – Whether judge erred in treating CCTV footage as document within the meaning of s 48 of Evidence Act 2008 –Taylor v Chief Constable [1986] 1 WLR 1480; R v Sitek [1988] 2 Qd R 284; Smith v The Queen (2006) 206 CLR 650 referred to.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
We shall grant leave to the applicant to amend his grounds of appeal and written case to accord with those which have been most recently filed.
On 27 February 2012, the applicant was found guilty at a special hearing of one offence of armed robbery and one offence of attempted armed robbery and, on 23 April 2013, he was sentenced therefor to a custodial supervision order with a nominal term of 25 years commencing on 31 July 2012 to be reviewed after 15 months. He now seeks leave to appeal against conviction on five grounds amounting in substance to that: (1) the judge erred in failing to sever the first charge from the indictment; (2) the findings that the applicant committed the offences are unreasonable and cannot be supported by the evidence; and (3) the judge erred in admitting evidence of Detective Senior Constable White as to his observations of images shown on CCTV security camera footage.
The Crown case
The Crown case on Charge 1 was that on 28 July 2012 the applicant entered the Liberty Petrol Station at 148 Mason Street, Newport at about 8.39pm and approached the store attendant, Manesh Gangi, asking for money. He then entered the counter area and threatened Mr Gangi with a capped syringe. Mr Gangi described the offender as a male, black African, about five feet and six inches or five feet seven inches in height, wearing jeans, dark shoes, carrying a bag, having short hair, or almost bald. The bag was a silver and black backpack. The offence was recorded on CCTV.
The Crown case on Charge 2 was that, at about 4.20am on 31 July 2012, the applicant entered the 7-Eleven Store at 35 Bourke Street, Melbourne, approached the store attendant, Vinod Thakur, and asked for money. The offender was wearing a red mask or handkerchief over his face and carrying a broken umbrella handle and a piece of steel piping. Mr Thakur pushed the offender away, moved towards the counter area, and called 000. The offender said: 'Do not call the police, you will die'. Mr Thakur described the offender as between five and six feet, dark in colour, with short hair, wearing a black jacket and blue jeans and holding a blue, possibly Coles branded, shopping bag.
A short time after the Charge 2 offence was committed, Constable Jolly saw a male matching the offender's description on the corner of Flinders and Russell Streets. He also noticed a blue cooler bag and a black backpack sitting next to the bin on the corner. The backpack had white zippers and white piping
A few minutes later, the applicant was apprehended in McGrath Street nearby and found to have a red bandana in his possession. He was wearing a black jacket, red hood under the jacket, blue jeans and black shoes, and a pair of pink gloves was located close by. Detective Senior Constable Triantafillou also located a broken umbrella and metal rod at the corner of Little Collins and McGrath Street.
The Charge 2 offence was captured on CCTV but the footage was later deleted by mistake. Detective Senior Constable White, however, had viewed the footage before it was deleted and, over objection, he gave evidence at trial of seeing on the footage a male entering the store wearing a red scarf or bandana over the lower part of his face and wearing pink gloves. He was holding a broken umbrella handle and steel pipe. He was also wearing a backpack and carrying a blue Coles bag. He had very dark skin, black hair with shaved sides and slight growth on the top of his head. He took the bandana off as he left the store.
As well as that footage, police obtained some CCTV footage from the Grand Hyatt Hotel en route from the crime scene to the point where the applicant was arrested. It showed a man matching the description of the offender, wearing a backpack like the one found in possession of the applicant at the time of his arrest, and striding purposively away from the direction of the crime scene only a few minutes after the commission of the offence.
Ground 1 ─ Severance
Originally, the Crown proposed to include in its proofs of Charge 1 evidence of Leading Senior Constable Warren of identifying the applicant from the Charge 1 offence CCTV footage. On the first day of the special hearing, the prosecutor informed the judge that he would not call that evidence because he had discovered that LSC Warren did not meet the applicant before she saw the CCTV footage. Apparently, she had based her identification on the applicant's reputation.
Under the heading of Ground 1, counsel for the applicant contended that, once LSC Warren's identification evidence was so excluded, there was virtually no evidence to connect the applicant to the Charge 1 offence and, therefore, that Charge 1 and Charge 2 should have been severed. Alternatively, in counsel's submission, Charge 1 and Charge 2 were each based on inherently weak identification and circumstantial evidence and, in those circumstances, there was such a distinct possibility that the jury would regard the evidence of one as having undue weight relative to the other as to be productive of a substantial miscarriage of justice. Either way, counsel argued, the judge should have severed Charge 2
Counsel for the Crown submitted to the contrary that the judge was correct in refusing to sever the indictment. She argued that, although the Crown did not contend at trial that there were sufficient similarities between the two offences to make evidence of one admissible as coincidence evidence in proof of the other, the Crown did rely in proof of Charge 1 on the evidence that, when the applicant was arrested after the commission of the Charge 2 offence, he was found to be in possession of a silver and black backpack with white piping and zippers, like the backpack in the Charge 1 offence CCTV footage and in the Grand Hyatt Hotel CCTV footage. Hence, it was open to the jury, it was submitted, as the judge directed them, to compare the backpack with the silver and black backpack shown in the Charge 1 offence CCTV footage and in the Grand Hyatt Hotel CCTV footage. To that extent, the evidence of each offence was cross-admissible and there was good reason for the two charges to be heard together.
Additionally, counsel for the Crown submitted, cross-admissibility was but one consideration in the determination of whether the charges should have been heard separately.[2] Ultimately, the question was to be decided according to the risks of any prejudice which might result from the two charges being heard at once. The judge was correct to rule, it was submitted, as his Honour did, that the risks of prejudice were capable of being eradicated by appropriate directions. And any risk of prejudice was in fact so eradicated by the judge's directions, twice given in the course of his Honour's charge, that the jury were not to take evidence which related to only one charge into account in support of the other. They were bound to decide each charge separately according only to the evidence adduced in support of that charge.
[2]Tognolini v R [2011] VSCA 394.
In my view, there is insufficient reason to conclude that the jury failed to heed the judge's very clear directions that they had to decide each charge separately according only to the evidence adduced in support of that charge and thus not to take into account evidence adduced in support of only one charge in deciding whether the applicant was guilty of the other. In particular, the judge made very plain that they were not to take into account in proof of Charge 1, evidence that the applicant had committed Charge 2 or vice versa. It follows that Ground 1 fails.
Ground 2 ─ Whether findings unreasonable as unsupported by the evidence
Under the heading of Ground 2, counsel for the applicant submitted that virtually the only evidence against the applicant on Charge 1 was that the applicant was of the same general description as the offender shown in the CCTV footage of the Charge 1 offence and, therefore, that the jury could not properly have been satisfied beyond reasonable doubt that the applicant was the Charge 1 offender. Counsel relied in particular on the decision of this Court in R v Clune (No 2)[3] in which Callaway JA (following the High Court in Pitkin v R[4]) observed that the fact that an accused person looks like a person who committed a crime is of itself insufficient to sustain a conviction of that accused of that crime.
[3][1996] 1 VR 1.
[4](1995) 135 ALR 35.
Similarly, in relation to the Charge 2 offence, counsel submitted, the only evidence against the applicant on Charge 2 was that he was a young African male dressed similarly to the offender, who was in the general vicinity of the scene of the crime at the time of the crime; and, therefore, by parity of reasoning, that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was the Charge 2 offender.
Dealing first with Charge 1, I do not think it correct to say that the only evidence linking the applicant to the offending was that he was of the same general description as the alleged offender. In addition to Mr Gangi's testimony ─ that the offender was a black African male of between five feet six inches and five feet and seven inches in height, wearing jeans, dark shoes, with short hair almost bald and carrying a silver and black backpack ─ there was also the CCTV footage of the Charge 1 offence in which the jury could see for themselves the commission of the offence and those features of the offender which Mr Gangi described, as well as the evidence of the items found in the applicant's possession at the time of his arrest following the Charge 2 offence.
The applicant's striking physical features, most of which can be seen in the Charge 1 offence CCTV footage, and the extreme improbability of another person having the same physical features, wearing the same clothes and also carrying a silver and black backpack apparently identical to the one seen in the Grand Hyatt Hotel CCTV footage, and found in the applicant's possession at the time of his arrest following the Charge 2 offence, represented strong circumstantial evidence of the applicant's involvement in the Charge 1 offence. That sets this case well apart from the fact situation in Clune(No 2) in which the accused was of relatively unremarkable appearance and was not found in possession of any incriminating items.
As Hayne J said in Libke v The Queen,[5] the test for these purposes is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt and thus whether the court considers that upon the whole of the evidence the jury was bound to have had a reasonable doubt.
... 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.[6]
[5](2007) 230 CLR 559, 597.
[6]Ibid [113] (citations omitted).
In view of the evidence to which I have referred, I think it clear that it is the applicant who appears in the CCTV footage of the Charge 1 offence and so I do not see any solid obstacle in the way of the jury reaching the same conclusion.
Turning to Charge 2, the position is perhaps even plainer. Assuming that Detective White's evidence as to the contents of the Charge 2 offence CCTV footage were admissible (to which question I shall return under the heading of Ground 3) there was strong circumstantial evidence of guilt comprised of Detective White's description of the offender shown in the Charge 2 offence CCTV; the tendered CCTV footage from the Grand Hyatt Hotel of a man of very similar description walking in the aftermath of the crime en route from the crime scene to the point of arrest; and the evidence of the applicant's arrest very shortly after that close by in possession of the same kind of hoodie and backpack as were shown in the Charge 1 offence CCTV footage and the Grand Hyatt Hotel CCTV footage and a bag of the kind described by Detective White as carried by the offender shown in the Charge 2 offence CCTV footage. Taken together that comprised a compelling circumstantial case of guilt of Charge 2.
In my view, Ground 2 should be rejected.
Ground 3 ─ Error under s 48(4) of the Evidence Act 2008
Proposed Ground 3 of appeal is that the judge erred in treating the CCTV footage of the Charge 2 offence as a document within the meaning of s 48 of the Evidence Act 2008 ('the Evidence Act') and so in admitting testimony of Detective White as secondary evidence of the CCTV footage.
I think that argument to be untenable. 'Document' is defined in Part 1 of the Dictionary in the Evidence Act as follows:
document means any record of information, and includes—
(a) anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph;
Note
See also clause 8 of Part 2 of this Dictionary on the meaning of document.
According to the plain and ordinary meaning of the words of that definition, CCTV footage of the commission of an offence is a 'document' because it is a medium from which images of the offence can be reproduced with the aid of an appropriate play-back machine.
Counsel for the applicant submitted to the contrary that, in order to amount to a 'document', an electronic record must be a 'record of information' and that 'information' in that context denotes 'the use of words, symbols or created images to express a record of information conceived of by a person … the key aspect being that a document records language of some kind'. In counsel's submission, that was supported by the common law's conception of a document which he submitted was of an object upon which is visibly inscribed intelligible writing or figures or more precisely something on which thoughts are represented by means of a species of conventional mark or symbol.
I reject that submission. Security camera footage of the commission of a crime is a photograph or perhaps more accurately a series of photographs comprising a 'visual and permanent record of what could have been seen by a person positioned where the camera was'.[7] As such, it falls squarely within the conception of 'photograph' in para.(d) of the definition of document. Whether or not that accords with common law conceptions of documentary evidence is largely immaterial. But, if it matters, I note that, even at common law, a video cassette was and is recognised as a document for some purposes.[8]
[7]R v Goodall [1982] VR 33, 37.
[8]Radio Ten Pty Ltd v Brisbane TV Limited [1984] 1 Qd R 113.
Additionally, even if there were any substance in the point, it would make no difference to the outcome of the case; as indeed counsel for the applicant ultimately conceded. At common law, security camera footage of the commission of an offence is real evidence of what occurred (albeit having some of the features of testimonial evidence).[9] Subject to considerations of reliability, prejudice and the exercise of discretion, it is permissible therefore for a witness who has seen the footage to give evidence of its contents as if the witness had been a witness to the crime. The point was explained by Ralph Gibson LJ, who gave the leading judgment in Taylor v Chief Constable,[10] as follows:
For my part I can see no effective distinction so far as concerns admissibility between a direct view of the action of an alleged shoplifter by a security officer and a view of those activities by the officer on the video display unit of a camera, or a view of those activities on a recording of what that camera recorded. He who saw may describe what he saw because, as Ackner LJ said in Kajala v Noble,[11] to which I have referred, it is relevant evidence provided that that which is seen on the camera or recording is connected by sufficient evidence to the alleged actions of the accused at the time and place in question. As with the witness who saw directly, so with him who viewed a display or recording, the weight and reliability of his evidence will depend upon assessment of all relevant considerations, including the clarity of the recording, its length, and, where identification is in issue, the witness's prior
knowledge of the person said to be identified, in accordance with well established principles.[12]
[9]R v Ames [1964–5] NSWR 1489, 1491; R v Sitek [1988] 2 Qd R 284; Police v Dorizzi (2000) 84 SASR 403, 411–4; Buttera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, 184–5.
[10][1986] 1 WLR 1480.
[11][1982] 75 Cr App R 149.
[12][1986] 1 WLR 1479, 1486.
In R v Sitek,[13] the Queensland Court of Criminal Appeal took the same approach in relation to evidence of a witness, Ms Eistrich, of what she had seen of an offence on a television monitor as the offence took place. Both Carter J and de Jersey J dealt with the matter at some length. After referring to Ralph Gibson LJ's observations in Taylor and to other English decisions, Carter J said:
In my view the evidence of the video tape itself and the evidence of Ms Estreich as to what she saw on the day in question on the monitor as well as her evidence given by way of explanation in court whilst the video was being played to the jury was admissible. She was in my view in the same position as an eyewitness when giving evidence of what she originally saw on the monitor; the video tape was admissible as real evidence; the evidence given by her in court when explaining the contents of the video was admissible on the same basis as that stated by Douglas J. in Schmidt v. Schmidt. In addition, as de Jersey J. has observed, it was permissible for the video to be played in the course of her evidence so as to permit her to refresh her memory of what she had seen at the time of the commission of the alleged offence.[14]
[13][1988] 2 Qd R 284.
[14]Ibid 288 (citation omitted).
To like effect, de Jersey J held that:
The evidence of Ms Estreich as to what she saw of the transaction by means of the monitor was admissible as eyewitness type evidence. Her evidence of what she saw of the transaction by means of the monitor was admissible, just as, for example, evidence of things seen through a telescope, which would not otherwise be noted, would be admissible (cf. R. v. Maqsud Ali [1966] 1 Q.B. 688, 701). Also analogous is the reception of evidence of what is heard over the telephone. It was permissible for Miss Eistreich to refresh her memory of what she witnessed at the time by reference to the contemporaneously produced video tape. Her evidence was led in an acceptable way. She was asked to give her recollection based on what she saw on the monitor on the evening of the offence, and was later asked, in effect, to supplement that evidence by refreshing her memory from the video tape. But all of her evidence appears to have been based on her actual recollection of what she saw on the evening, and was therefore admissible.[15]
[15]Ibid 292.
After Sitek was decided, the High Court held in Smith[16] that evidence of police officers as to what they had seen on security camera footage was irrelevant and, therefore, inadmissible, because the footage was tendered in evidence before the jury and hence the jury were in as good a position as the police officers to determine its effect. Arguably, the decision in Smith affects the validity of the conclusion reached in Sitek that Ms Eistrich's evidence was admissible (because, in Sitek, the monitor was also available to the jury). But, subject to that limitation, there is little reason to doubt Sitek. To the contrary, with respect, it is both logical and in accordance with precedent.
[16]Smith v The Queen (2001) 206 CLR 650, [10]–[11].
Accordingly, I reject Ground 3.
Ground 4 ─ Detective White’s evidence as to the Charge 2 offence CCTV video
The principal argument advanced under proposed Ground 4 was that, assuming Detective Senior Constable White's evidence of what he viewed on the Charge 2 CCTV footage were otherwise admissible, it should have been excluded because Detective White did not set down in writing what he had viewed until some weeks after the viewing and after interviewing and charging the applicant. Counsel for the applicant submitted that, in those circumstances, there was such a high risk of displacement effect and consequent inherent unreliability that the evidence should have been excluded pursuant to s 137 of the Evidence Act.
I do not accept that submission. The test for the judge under s 137 was whether the probative value of Detective White's evidence was outweighed by the danger of unfair prejudice. As the judge appears to have understood, in turn that depended upon whether Detective White's evidence was so inherently unreliable or alternatively there was such a risk that the jury would overestimate its reliability that the prejudicial effect of it outweighed its probative value. I do not consider that it did.
As the decision of this Court in Dupas[17] shows, while reliability is a relevant consideration in the determination of whether evidence is of sufficient probative value to warrant its admission, evidence which is otherwise of significant probative value is not to be excluded on the basis of a possibility of unreliability where there is no reason to doubt the ability and propensity of the jury to comprehend the risk of unreliability and deal with it accordingly.
[17]Dupas v R (2012) 218 A Crim R 507.
In this case, although it is true that Detective White might have been influenced in his recollection of what he saw on the video by what he later saw of the applicant, it is apparent that the jury were made aware of that possibility and were capable of taking it into account. Detective White did not give evidence of positive identification as such. His evidence was of what he had observed of the offender or, in other words, of a kind which McHugh J described in Festa v The Queen[18] as 'circumstantial evidence of identification'. Accordingly, it was not the kind of evidence for which a Domican[19] warning would have been required at common law and, perhaps for that reason, defence counsel did not seek that a warning be given under s 165 of the Evidence Act. Defence counsel, however, made detailed submissions to the jury as to the supposed shortcomings in Detective White's evidence, and the judge summarised them at some length in his Honour's charge. Thus, the jury were made aware of the risks and the considerations to be taken into account in the assessment of that evidence so brought specifically to their attention.[20]
[18](2001) 208 CR 593, [54]–[56].
[19]Domican v R (1992) 173 CLR 555.
[20]Cf R v Miletic [1997] 1 VR 593.
Counsel contended that in view of the High Court's decision in Domican, neither Taylor nor Sitek can any longer be regarded as applicable. I do not accept that submission. Domican established or rather confirmed the necessity for a judge to give a jury adequate directions as to the dangers of convicting on the basis of identification evidence which represents a significant part of the proof of guilt when the reliability of the evidence is disputed. As such, Domican was largely based upon and accords with similar requirements earlier laid down in England in R v Turnbull.[21] Both judges in Taylor, on which Sitek was based, expressly referred to Turnbull.
[21][1977] QB 224, 228.
Counsel further contended that the authority of Taylor was eroded by what he described as the failure of the court in that case to consider the quality of the video recording in question, and he sought to contrast that with the approach adopted in R v Dastagir.[22] That submission is, in my view, misplaced. As has been noticed, Ralph Gibson LJ gave the leading judgment in Taylor, and it can be seen that his Lordship expressly took into account the quality of the video evidence. Although it lasted only a few seconds, and showed only the back of the offender, Ralph Gibson LJ concluded that the Magistrates had not failed to appreciate how much those limitations went to the weight of the evidence. McNeil LJ was of the same view.
[22][2013] SASC 26.
Ground 5 ─ Discretion to exclude
Finally, under proposed Ground 5, counsel argued that the judge erred in his Honour's approach to s 48(4) of the Evidence Act by failing to appreciate that it called for an exercise of discretion. As counsel would have it, the judge proceeded on the basis that, once it was established that the original CCTV footage had been destroyed, secondary evidence of its contents was admissible unless excluded under s 137. In counsel's submission, the judge should have proceeded on the basis that, once it was established that the tape had been destroyed, it was for the judge to decide in the exercise of discretion whether the secondary evidence of it should be admitted. Further or alternatively, counsel said, the judge erred in the exercise of discretion in failing to exclude the recording.
I reject the first part of that submission. Section 48(4) is manifestly not discretionary in any sense other than enabling a litigant who satisfied its conditions to choose to prove the contents of a document by secondary evidence. As to the second part of the submission, for the reasons already given I consider the judge was correct to approach the matter on the basis of whether the probative value of Detective White's evidence was outweighed by the danger of unfair prejudice arising from its admission and I am not persuaded that the judge was in error in concluding
that the probative value of it was not outweighed by the risk of unfair prejudice. I do not consider that it was. In the result, I reject Ground 5.
Conclusion
It follows, from what I have said, that I would refuse the application for leave to appeal.
REDLICH JA:
I am also of the view, for the reasons given by my brother Nettle, that leave to appeal should be refused.
As to Ground 2, the test by which a Court of Criminal Appeal must determine whether a jury verdict is unsafe and unsatisfactory or, as that ground is expressed in the appeal statute 'is unreasonable or cannot be supported having regard to the evidence', has been stated and restated many times since the High Court's decision in M v The Queen.[23]
[23](1994) 181 CLR 487.
For example, in Libke v The Queen,[24] Hayne J (with whom Gleeson CJ and Heydon J agreed) described the test 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.[25]
[24](2007) 230 CLR 559.
[25]Ibid 596–7.
Provided the jury has been given appropriate and adequate directions of law by the trial judge to enable them to consider their verdict properly, that verdict is solely a matter for them. The verdict will only be interfered with on appeal if the
applicant can demonstrate that allowing for the special advantages that the jury had, no reasonable jury could properly have reached it upon the evidence before them.
Here, as the parties accept, with the exception of the evidence of Detective White, this Court is in as good a position as the jury to evaluate the strength of the evidence.
Applying the ordinary rule relating to circumstantial evidence, namely the rule that you cannot be satisfied beyond reasonable doubt on such evidence unless no other explanation than guilt is reasonably compatible with the circumstances, it was contended that the jury could not have excluded the innocent hypothesis that the offender on each charge was someone other than the applicant. In particular it was said that the evidence on Charge 1 could not support a conviction.
If the identity of an offender is to be proved by circumstantial evidence, facts must be established which are so connected to proof of his identity that the conclusion as to his identity follows as a rational inference. The evidentiary circumstances must bear no other reasonable explanation.
Nettle JA has identified the circumstantial evidence available in support of each charge. The relationship of those circumstantial facts to the issue of the applicant's identity consisted in such increased probability that those facts could not exist unless the applicant was the offender on each charge as to satisfy the criminal standard of proof.
There was, in my view, ample evidence to support the jury's verdicts that the applicant was guilty on both charges. None of the matters raised on his behalf suggest that there is anything unreasonable or unsafe about the jury's verdict.
As to Grounds 3, 4 and 5, I agree with Nettle JA that the CCTV footage was a document containing information within the meaning of s 48 of the Evidence Act 2008 and that upon its destruction, oral evidence as to its content was admissible.
The CCTV footage was, in any event, real evidence, the content of which could be adduced by viva voce evidence if it were destroyed.[26]
[26]Taylor v Chief Constable [1986] 1 WLR 1480.
In either event, the question for the trial judge was whether such evidence should have been excluded if the reliability of the oral description of that real evidence was attended by sufficient doubt.
The trial judge approached this matter in a way which properly reflected the issues that needed to be addressed. In his direction to the jury, he raised the issue of the reliability of the oral evidence. I see no error in the manner in which his Honour approached this question or in the directions which he gave the jury.
COGHLAN JA:
I agree that leave to appeal should be refused for the reasons stated by the learned presiding judge and the additional reasons of Redlich JA.
NETTLE JA:
The order of the Court is:
1Leave is granted to the applicant to amend his grounds of appeal and written case to accord with those most recently filed.
2The application for leave to appeal against conviction is refused.
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