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1. This is a trial by judge alone after the accused, Emeka Okwechime signed an election on 23 November 2023 to be tried this way pursuant to s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).

2. The accused has been charged with the following offences on an indictment dated 15 May 2024: (a) Count 1 (CC2023/3851): aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 45A of the Criminal Code. (b) Count 2 (CC2023/5449): property damage contrary to s 403(2) of the Criminal Code by virtue of s 45A of the Criminal Code. (c) Count 3 (SCCAN 2023/133): theft contrary to s 308 of the Criminal Code by virtue of s 45A of the Criminal Code.

3. On 26 August 2024 the trial commenced before me after the accused was arraigned and entered pleas of not guilty to all charges. The matter proceeded by way of a “hand-up brief” and no witnesses were called to give oral evidence. On that day closing submissions were made and I reserved my decision.

4. In accordance with s 68C(2) of the Supreme Court Act, I now provide the following reasons which include the principles of law I have applied and the findings of fact that I have made.

5. For the reasons that follow, the accused is not guilty in relation to all three counts on the indictment. Prosecution case

6. In summary, the prosecution alleged that the accused was in company with Mr Bradley Flynn when the offences of burglary, theft and damage property were committed at the Southern Cross Club, Jamison on 3 March 2023. Mr Flynn admitted his involvement in the offending on 8 April 2024. His plea of guilty admitted that he was in company at the time of the offending, though did not admit the identity of his co-offender. The offending was largely captured on Closed Circuit Television (CCTV) footage recorded inside the Southern Cross Club Jamison (the “Club Footage”). The Club Footage recorded two people committing the offences. The sole issue for determination in this trial is whether the accused is the person (the second offender) in company with Mr Flynn when the offences were committed. The prosecution relied on an entirely circumstantial case to establish beyond reasonable doubt that the accused was the second offender.

7. Pursuant to s 191 of the Evidence Act 2011 (ACT), the parties agreed facts that were not in dispute.

Agreed facts

8. At around 5:09am on 3 March 2023, a white Mitsubishi utility vehicle (the Mitsubishi) attended the Southern Cross Club, Jamison, located at the corner of Catchpole and Bowman Streets, Macquarie in the Australian Capital Territory (ACT). The Mitsubishi parked on a footpath and two people exited the vehicle.

9. At around 5:11am on 3 March 2023 those same two people forced entry to the Southern Cross Club by breaking a glass door. Both people entered through the broken glass door. The forced entry did not set off any alarms.

10. On entry to the Southern Cross Club, the two people attended a Cash Redemption Terminal (the terminal) located within the Southern Cross Club, and caused damage to the terminal.

11. While the two people were inside the Southern Cross Club, and after attending the terminal, one of the people attended a desk and took a USB from a laptop. The USB contained information on the daily clearance amount at the Club from the day before.

12. The two people then picked up part of the terminal and carried it out through the broken glass door they originally entered through.

13. The two people loaded the terminal into the cab of the Mitsubishi and drove away, leaving about seven minutes after they had arrived.

14. The terminal was deemed irreparable and cost $37,125 to replace.

15. At around 5:59am on 3 March 2023 Emeka Okwechime and Bradley Flynn were captured on CCTV footage in each other's company in Phillip in the ACT.

16. Shortly after 7:00am on 3 March 2023 police were contacted by staff of the Southern Cross Club Jamison reporting a break in. Staff had arrived for work and entered the club and soon found the glass side door broken, and the door open.

17. Between 8:28am and 9:41am on 5 March 2023, Bradley Flynn (using mobile number [redacted]) and a contact described as "Mekka" (using mobile number [redacted]) exchanged a number of text messages.

18. Mobile number [redacted] was connected on 5 October 2022 under the customer name, “Chukwuemeka Okwechime”. The accused is also known as Chukwuemeka Okwechime.

19. On 8 April 2024, Mr Bradley Flynn entered a plea of guilty to, on 3 March 2023 in the company of another person, entering or remaining in a building, namely, the Southern Cross Club, Jamison at the corner of Catchpole and Bowman Streets in Macquarie, as trespassers with intent to commit theft of any property in the building.

20. On 18 April 2023 police executed a search warrant at [redacted] Bowes Street, Phillip in the ACT. The residence is a two bedroom, two bathroom apartment located within the 'Grand Central Towers' complex.

21. During that search warrant police located and seized the following: (a) A pair of black fingerless ‘Harbinger’ branded gloves located in “bedroom one” of the two bedrooms; (i) These gloves were later photographed by Constable Nathanael Holdsworth on 13 February 2024. (b) A pair of black ‘Skechers’ shoes located in “bedroom one”; (c) A black 'Nike' brand jacket located in “bedroom one”; (d) A black 'Nike' brand jumper with a tick, with a zipper made from neoprene fabric located in the laundry; and (e) An orange handled hammer located in a bag behind the driver's seat of a silver Nissan Navara which was parked in a car space allocated to [redacted] Bowes Street, Phillip in the ACT. (i) This hammer was photographed in situ by Senior Constable Michael Dawes on 18 April 2023. (ii) This hammer was later photographed by Constable Nathanael Holdsworth on 13 February 2024.

22. The silver Nissan Navara which was parked in a car space allocated to [redacted] Bowes Street, Phillip in the ACT on 18 April 2023 was recorded as naming Emeka Okwechime's partner, [redacted], as the responsible operator between 3 March and 18 April 2023.

23. Between 2 March and 18 April 2023, Emeka Okwechime resided at [redacted] Bowes Street, Phillip in the ACT with his partner [redacted].

Directions

Onus and standard of proof

24. The prosecution bears the onus to prove the guilt of the accused. The accused is presumed innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. If the evidence which I accept fails to satisfy me beyond reasonable doubt of the accused’s guilt then I must find him not guilty.

Fact finding and inferences

25. The facts I find must be based on the evidence. I must bring an open and unbiased mind to that evidence. I must view the evidence clinically and dispassionately and I must not let emotion enter the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will. I must determine the facts according to the evidence, considering it logically and rationally. I may use my common sense, my individual experience and wisdom in assessing the evidence.

26. I may draw inferences from the facts that I find have been established by the evidence. I must examine any possible inference to ensure that it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

The accused did not give evidence

27. The accused did not give evidence in the proceedings. There is no obligation on him to give or call evidence in a criminal trial. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus they bear, to the standard required. I cannot take into account the accused’s decision not to give evidence in any way. I cannot use the absence of any evidence from him to fill any gaps in the prosecution case nor can I use it as strengthening the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence.

Identification evidence

28. In this case the prosecution asks that I draw the conclusion that the second offender in the Club Footage is the accused. I must exercise special caution before I draw the conclusion that it is the accused with Mr Flynn in the Club Footage. Special caution is required because the experience of the law is that mistakes concerning identity are made and can be easily made.

29. Special attention or care is necessary because of the possibility I might be mistaken. The experience of criminal courts, over many years, both in Australia and overseas, has demonstrated that conclusions drawn about identification may turn out to be unreliable. There have been some notorious cases over the years in which identifications have been found to be wrong after innocent people have been convicted. I must examine the evidence very carefully, conscious that there have been many occasions where conclusions about identification reached by judicial officers have been shown to be wrong.

30. In circumstances where I am asked to make an assessment of the accused’s physical appearance in court in order to compare it with the physical appearance of the person in the Club Footage, I bear in mind the particular risks of in-court identification as it is “usually performed in circumstances that strongly suggest the answer that is ultimately given”: Festa v The Queen [2001] HCA 72; 208 CLR 593 (Festa) at 601 [18].

31. In the course of my consideration, I will refer to specific aspects of the evidence which may undermine the reliability of it with respect to identity.

Expert evidence direction

32. In this matter, a report containing the expert opinion of Ms Madeleine Gallo was tendered by consent.

33. The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.

34. In the present case, the expert evidence was admitted in the area of digital forensics, namely, in relation to image processing and enhancement of CCTV footage. This topic is within the witness’s expertise but is likely to be outside the experience and knowledge of the average lay person.

35. The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt.

36. I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue to which the expert evidence relates.

Circumstantial evidence – a link in a chain or a strand in a cable?

37. The prosecution case against the accused is entirely circumstantial. There is no direct evidence in support of the proposition that the accused committed the offences. Instead the prosecution asks me to draw the inference that the accused was the second offender from all the circumstances which have been proved.

38. The prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused was the second offender is the only rational inference that can be drawn from the whole of the circumstances established to my satisfaction, by the evidence I accept. Put another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances established by the evidence.

39. In a circumstantial case, all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative.

40. As Baker J observed in Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 at [65], for practical purposes sometimes a circumstantial case is described as a "link in the chain" case or as a "strand in the cable" case. Where the case falls into the former category, it may be necessary for the prosecution to prove some of the circumstances relied upon beyond reasonable doubt, because they are indispensable, intermediate facts.

41. The accused submitted that this case is properly characterised as a “link in the chain” case: Shepherd v The Queen [1990] HCA 56; 170 CLR 573 at [5]. That the tattoos on the accused are the tattoos on the second offender was said to be an intermediate fact constituting an indispensable link in the chain of reasoning towards an inference of guilt. The accused submitted therefore that it is necessary for the prosecution to prove, beyond reasonable doubt, that the marks on the second offender in the Club Footage are the tattoos on the hands of the accused. This fact was said to be an indispensable, intermediate step in the reasoning process towards an inference of guilt such that a doubt about it would constitute a missing link in the chain. Proof of an intermediate fact is typically essential to a conclusion of guilt beyond reasonable doubt.

42. Of assistance is Davidson v R [2009] NSWCCA 150; 75 NSWLR 150 where Simpson J at [74] adopted a useful test for assessing whether a fact relied upon by the prosecution is “indispensible”: Whether a fact on which the Crown relies as part of a circumstantial case is or is not “indispensable” may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not “indispensable”. Where the answer is in the negative, the fact is “indispensable” and the jury should be directed accordingly.

43. I have approached the assessment of the status of the tattoo evidence with that test in mind. In this case, the tattoo evidence is undoubtedly a significant aspect of the prosecution case. Without it, the prosecution case would be “considerably weakened”. So much was conceded by the prosecution. Nonetheless, without it there is still a prosecution case that incriminates the accused. The tattoo evidence is not an intermediate fact. This is a “strands in the cable” case; it is only the elements of the offence itself which need to be proved beyond reasonable doubt. This is because of the capacity of a body of evidence to have a cumulative effect. It is not necessary for the various factual "strands" to be proved beyond reasonable doubt before they can contribute to the cumulative effect of a body of evidence. While each individual strand may be of insufficient strength to support the weight of the prosecution case, when bound together the whole may be of greater probative force than the sum of its parts.

44. I remind myself that this case, reliant as it is upon indirect circumstantial evidence, does not result in a case weaker than one that relies upon direct evidence or eyewitness accounts. The question remains in either case; has the prosecution proved its case beyond reasonable doubt? Before I can determine that the prosecution has proved the elements of the offence to the requisite standard, I must be satisfied that the inference that the accused is the person who committed the offences has been proved beyond reasonable doubt. If I am not satisfied of this inference beyond reasonable doubt, I must acquit. Consideration

45. The central issue for determination is whether the prosecution have established beyond reasonable doubt that the accused was the second offender in company with Mr Flynn when the offences were committed at the Southern Cross Club, Jamison on 3 March 2023. There is no dispute that the conduct relied upon by the prosecution establishes each of the elements of all three offences on the indictment beyond reasonable doubt.

46. Counsel for the prosecution identified four categories of circumstantial evidence that the prosecution relied on as “strands in the cable” to establish beyond reasonable doubt that the accused was the second offender in the Club Footage. Counsel for the accused submitted that the circumstantial evidence relied upon by the prosecution did not demonstrate to the requisite standard that the accused was the second offender, in company with Mr Flynn.

47. The following four categories of evidence were relied on by the prosecution: (i) An association between the accused and the co-offender, Mr Flynn; (ii) The similarity between tattoos on the accused’s hands and markings on the hands of the second offender in the Club Footage and still images produced from that footage (the “still images”); (iii) The similarity between the offender’s appearance and clothing captured on the Club Footage on 3 March 2023 and the accused’s appearance and clothing captured on the CCTV footage from the lobby of the apartment building where the accused resided (the “Lobby Footage”) on 3 March 2023; and (iv) Items seized during the execution of a search warrant on 18 April 2023.

48. I will deal with each category in turn.

(i) The association between the accused and the co-offender, Mr Flynn

49. The Lobby Footage demonstrated that on the day of the offending the accused and Mr Flynn, together entered the lobby of the apartment complex where the accused lived, around 40 minutes after the offending. There is no evidence that established where Mr Flynn lived at the time of the offending.

50. The accused and Mr Flynn were texting each other approximately two days after the incident. The content of the text messages was not in evidence.

(ii) The similarity between markings on the offender in the CCTV footage and tattoos on the accused captured in forensic photographs

51. The prosecution submitted that the Club Footage and the still images, reveal marks on the right and left hand and left wrist of the second offender consistent with tattoos on the right hand and left wrist of the accused as revealed in forensic images taken of the accused on 18 April 2023.

52. Specifically the prosecution submitted that the still images provide a basis to be satisfied that the offender had: (i) a “cross” tattoo on the right pinkie finger; (ii) a shape similar to a “love heart” on the right fourth finger; (iii) a shape on the right middle finger that has two “prongs” extending from it; (iv) no tattoos on the right thumb; and (v) “markings” on the offender’s left wrist area.

53. When compared to the forensic images of the accused’s hands, the prosecution submitted that there is substantial similarity between the markings that can be observed on the second offender and the tattoos on the accused.

54. I remind myself of the special caution to which I have already referred. There are factors which bear upon the capacity for identifying features to be observed from the Club Footage and the associated still images.

55. The first matter to observe is that the Club Footage alone provides limited opportunity to identify with any degree of certainty specific features of the second offender. The Club Footage is not of high quality and does not allow for careful observation of the second offender’s hands. This is not a matter where the still images are informed by what can be observed in the Club Footage. The still images are the result of enhancement of the Club Footage. The still images are made better to the extent that they provide a closer view than the Club Footage but they nonetheless suffer the same quality deficiencies as the original footage.

56. I have approached an assessment of what can be observed in the Club Footage, and in particular the still images, mindful of the possible effect of the forensic images. I am conscious that an assessment of what can be observed in the still images of the second offender must occur based on what can actually be identified in those images. That is to say, a conclusion about what can be observed in the still images cannot be drawn from what is easily identified in the forensic images. I must be careful to ensure that a conclusion about what can be seen in the still images is not because I have already seen it in the forensic images. The forensic images cannot bolster any deficiency in the images from the crime scene.

57. The still images provide the opportunity for a more careful inspection of the second offender than the Club Footage. The still images are the result of freezing a particular frame of the moving imagery. The still images do enhance the opportunity for more careful observation of that which is captured in the still frame. The still images are very grainy and the imagery is blurred. Accordingly, the definition is poor. The still images do not capture either the offender’s right or left hand or left wrist in their entirety.

58. The prosecution submitted that markings can be observed on the left wrist area of the second offender in still images taken from the Club Footage directly above the coin machine the offenders damaged. The quality of the images is such that I cannot determine with any degree of certainty that any colouration darker than what appears to be the second offender’s skin tone is a mark on the skin as opposed to a shadow or material from the clothing or gloves being worn.

59. The prosecution also submitted that the still images demonstrate that the second offender did not have any markings on their right thumb. I do not agree. In my view that conclusion cannot be drawn by reference to the still images or the Club Footage. Indeed as I identify below, in one of the still images the second offender’s right thumb does appear to have some sort of mark below the nail.

60. The following observations can be made about the second offender’s hands from the still images: (i) the pinkie finger, ring finger, middle finger and index finger of the right hand appear to have coloured markings darker than the skin tone; (ii) the thumb of the right hand in ‘image 5, page 2, tab 9’ appears to have a light-coloured round-shaped, marking below the nail; (iii) the right pinkie finger in ‘image 7, page 2, tab 9’ appears to have a coloured marking darker than the skin tone with a longer line dissected by a shorter line; (iv) the ring finger and middle finger of the left hand appear to have a coloured marking darker than the skin tone; and (v) the skin tone of the second offender, by reference to the skin on his fingers and left wrist that can be observed, is light-coloured.

61. In contrast, the forensic images taken of the accused’s hands are bright and clear. The images generally capture the top surface of the accused’s hand and forearms, and there are no pictures of the palms or underside of the accused’s fingers, thumbs or forearms. The angle of the forensic images assists to carefully observe much of the surface area of the top of the accused’s right hand, right wrist, right forearm, left hand, left wrist and left forearm. The forensic images demonstrate that the top of the accused’s left and right hands are heavily tattooed as are the fingers of both hands. The forensic images make for ready identification of many of the individual features of the tattoos that can be observed on the top of the accused’s right and left hands, the fingers of both hands and on his wrists and forearms.

62. None of the forensic images reveal the entire top surface of either of the accused’s thumbs. The definition in the forensic images is such that tattooed writing and letters on the accused’s left wrist, forearm, and hand as well as his right wrist and hand can be identified. The forensic images demonstrate that the tattoos on the accused’s left and right hand fingers (not including thumbs) are dark coloured and in some instances do not have sharply defined edges.

63. In the forensic images the accused is wearing a large square ring on the fourth finger of his right hand. That ring takes up a large surface area of the space up to the knuckle on that finger. There are no forensic images of that finger without the ring. On the accused’s left ring finger is a bandage that covers the entirety of the knuckle and covers the bottom of the tattoo on the upper part of that finger. There are no images of the accused’s left hand without the bandage.

64. The top surface of the right thumb closest to the index finger can be observed and no tattoos appear on that surface area of the thumb. The outside top surface of the thumb is not visible in any of the forensic images. The accused has a cross symbol on the space above the knuckle and below the nail on his right pinkie finger.

65. The angle of the still images of the second offender’s right and left hand fingers and left wrist is different to the angle of the forensic images.

66. The only conclusion that can be definitively drawn as to similarity between the second offender and the accused is the marking in the shape of a cross on the right pinkie finger. Apart from the shape being generally in the shape of the Christian “cross” symbol there is nothing distinctive or unusual about it. That said, the image of the cross marking on the right pinkie finger of the second offender at “image 7: CCTV Image, Right Hand” does potentially have a small, clear circle at the place where the two lines intersect. The cross on the accused’s right pinkie finger does not have that kind of small, clear circle.

67. Identifying the shape, colour, outline, or indeed in some cases, even the presence of a marking on the second offender’s fingers or wrist area is an exercise in speculation.

68. It is readily apparent that the skin tone of the second offender is noticeably lighter than the skin tone of the accused. The accused has brown skin, easily noticed in the forensic images and in observation of him across the courtroom. The skin tone of the second offender in the Club Footage and the still images is noticeably paler.

69. In April of this year the accused made a pre-trial application before me that was ultimately abandoned. During the course of the hearing, I observed the difference in the skin tone as between the images. The prosecution pointed to the report provided by digital forensic examiner Ms Gallo.

70. In that report Ms Gallo explained that she produced the still images and that she “processed the selected CCTV frames using contrast adjustment, exposure and levels adjustments, white balance and cropping”.

71. At the pre-trial hearing the prosecution sought an adjournment to seek a supplementary statement from Ms Gallo to explain the effect of any of the tasks she performed on the appearance of the still images. No further statement was produced.

72. While there is reference in Ms Gallo’s statement to the processes she employed there is no explanation as to an effect of any of those processes on the appearance of any item captured in the still images. There is then no evidence that might explain any difference in skin tone as between the still images and the Club Footage and the accused’s skin in the forensic images. These are not matters of which I can take judicial notice.

73. On the state of the evidence before me, there remains a noticeable difference in the appearance of the skin tone of the accused and of the second offender. An explanation for the difference could be that the accused was not the second offender.

(iii) The similarity between the accused’s appearance and clothing captured in the Lobby Footage and the appearance and clothing of the assailant in the Club Footage.

74. The prosecution submitted that comparison between the Lobby Footage and the Club Footage demonstrates that the second offender is of a similar body shape to the accused and is wearing black trackpants and black sneakers with no socks like the accused. Further it was submitted that there are similarities between the shoes, namely: (a) The ‘loop’ (bootstrap) at the heel of the shoe is similar; and (b) There is a clear ‘bubble’ in the left shoe seen in both sets of footage.

75. It can be observed that the general body shape of the second offender and the accused are not inconsistent. That said, there is nothing particularly distinctive about the size, shape or movement engaged in by the second offender in the Club Footage or the accused in the Lobby Footage. The Lobby Footage alone would not allow for an identification of the accused with certainty.

76. It is accurate to describe the second offender in the Club Footage and the accused in the Lobby Footage as wearing black tracksuit style pants and black sneakers. The prosecutor made an attempt to identify a bubble in the sole of the black sneakers as common to both scenes. I was not able to identify as much with any certainty in the Club Footage or the Lobby Footage.

77. There is a black loop on the back of the black sneakers worn by the accused in the Lobby Footage and in the Club Footage.

78. There is nothing distinctive about the black trackpants or the black sneakers. There are no logos that can be observed nor any markings, rips, tears or any other unusual feature. (iv) Items seized from the accused’s residence

79. The prosecution submitted that three key items seized from the accused’s home are consistent with items seen in the CCTV footage from both the accused’s residence and the Southern Cross Club. These items were: (a) The ‘Harbinger’ fingerless gloves found in “bedroom one” of the accused’s home. (b) A hammer with a black and orange handle, found in the accused’s partner’s car parked at their residence. (c) The black ‘Skechers’ sneakers, found in “bedroom one” of the accused’s home.

80. The first matter to observe is that the second offender is wearing a pair of fingerless, black ‘Harbinger’ brand gloves in the Club Footage.

81. Next, potentially several tools appear to be used by the second offender during the offending. One of the tools looks like a hammer with orange on the handle.

82. Finally, the black ‘Skechers’ sneakers seized from the accused’s residence are similar to those worn by the second offender to the extent that they are black sneakers. In the image of the seized sneakers, it can be observed that there is a clear ‘bubble’ in the sole of the shoe and a black loop of fabric on the top of the heel of the shoe. This prosecution submitted that this feature can be observed in the Lobby Footage and the Club Footage.

83. The prosecution did not submit that there was anything particularly distinctive, unusual or rare about any of the items seized from the accused’s residence. Counsel for the accused highlighted the “commonplace” nature of all of the items seized at the accused’s residence six weeks after the offending occurred. Counsel pointed out that the hammer was found in a bag of tools with no other tool identified as being like any other tool that can be observed being used by the second offender in the Club Footage.

Consideration

84. I make it clear that an assessment of the strength of the evidence cannot be approached by weighing the likelihood of the points of similarity occurring as between the second offender and the accused. I must determine which facts have been established by the evidence. I then turn to consider whether all those facts, taken together as a whole, provide a reasonable basis to conclude that the accused is guilty. If there is a reasonable basis and guilt is the only reasonable inference or conclusion that can be drawn from the established facts, then the prosecution will have succeeded. If there remains a reasonable hypothesis consistent with innocence, then the accused is entitled to an acquittal.

85. Counsel for the accused submitted the four categories of evidence the prosecution sought to rely upon can be classed as “circumstantial identification evidence”, citing Festa at [56]: “Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence". It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.”

86. It is useful to revisit the following observations in R v Pikula [2020] ACTSC 265 at [61]- [66]: “61.The prosecution case is circumstantial. This means that the prosecution must first demonstrate that the inference or conclusion that it was the accused who robbed the store is a reasonable one to draw from the facts established by the evidence. The prosecution must then prove that the only reasonable inference or conclusion that can be drawn from the consideration of all the established facts, viewed as a whole, is that it was the accused who committed the robbery. 62. If there is any other reasonable inference or conclusion open on the facts that is inconsistent with that conclusion, then the prosecution’s circumstantial case fails and the accused should be acquitted. 63. In assessing the prosecution’s case, I must consider all of the circumstances established by the evidence, and weigh them up in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Hillier [2007] HCA 13; 228 CLR 618 (Hillier) at [46]. A circumstantial case is not to be considered in a piecemeal fashion: Hillier at [48]; see also Droudis (No 14). 64. The prosecution case is a “strand in the cable” case, so that the individual circumstances relied upon by the prosecution need not be established beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 579. 65. Circumstantial evidence is not necessarily less reliable than direct evidence. In El Hassan v R [2007] NSWCCA 148, Hunt AJA (with the agreement of Latham and Johnson JJ) said at [27]: It has been my experience that a circumstantial case can in some cases produce almost conclusive evidence of the accused's guilt. Circumstantial evidence does not usually depend to any great extent on the evidence of witnesses who could be either mistaken or maliciously false in their testimony: Regina v Cable (1947) 47 SR 183 at 184. Those cases I have in mind have all been of the ‘strands in the cable’ variety of circumstantial evidence case (see par [19] supra). It is a matter of common sense that the more strands in the cable, the stronger the cable is. The more circumstances pointing to the guilt of the accused, the less likely it is that there could be any reasonable explanation for those circumstances other than the guilt of the accused, and thus the stronger is the circumstantial case against him. As McHugh J pointed out in Shepherd v The Queen (at 582): There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in Regina v Kilbourne [1973] AC 729 at 758: Circumstantial evidence [...] works by cumulatively, in geometrical progression, eliminating other possibilities’.” 66. Additionally, it is appropriate to keep in mind, in approaching a circumstantial evidence case, what was said by the High Court of Australia (French CJ, Kiefel, Bell, Keane and Gordon JJ) in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [46]-[47] (footnotes omitted): The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said: “When the case against an accused person rests substantially upon circumstantial evidence the jury 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': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.” For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”

87. The prosecution sought to establish that the accused is the second offender via the cumulative effect of similar tattoos, clothing, objects, general appearance, and circumstance. I must consider all of the evidence, taken together. Individual items may draw strength from other items. That said, the quality of evidence relied upon to identify the second offender that is unreliable or weak cannot be strengthened by other evidence in the circumstantial case. In R v Razzak [2004] NSWCCA 62, Levine J (O’Keefe and Bell JJ agreeing) observed at [26]-[28]: “26. For myself, a greater degree of clarity attends the course both of the prosecution and the appeal, if the confusion in relation to “bolstering of evidence” can be eliminated. For the reasons stated above, poor quality identification evidence of itself cannot be improved by any other evidence. It stands or falls according to its own quality. What other evidence can do is bolster the Crown case, which includes the flawed evidence that the accused was the person who committed the offence of malicious wounding (that being the only issue here). 27. The appellant sought to rely upon the decision of the High Court in Domican v The Queen (1991-1992) 173 CLR 555 in support of the proposition, persistently advanced, that other evidence cannot be used to bolster flawed identification evidence to the point where the jury would find that despite the flaws in Mr Valu’s identification, Mr Valu in fact was correct. Domican, particularly in the well-known passages at 565-566, is concerned with the “directions” to be given to the jury solely in relation to identification evidence to the exclusion of any other evidence in the trial. The fundamental proposition for which Domican is authority cannot be converted by using the notion of “the exclusion of other evidence” to say that such other evidence cannot bolster the Crown case. Domican does not purport to propound any such proposition. 28. It is as much a matter of common sense, if not logic, as it is a matter of principle, to assert that other evidence, other circumstantial evidence, touching upon the issue of identification, cannot bolster flawed evidence of identification to the point where the flaws are eliminated and a finding can be made that that flawed identification is correct. For a most useful analysis of these propositions see R v Coxon (2002) SASC 165 per Prior J especially at para [55]. On any reasonable view it cannot be held that her Honour made any error at all in her judgment of 11 September 2002 in admitting relevant evidence constituted by, to put it starkly, flawed resemblance evidence from Mr Valu in relation to the video photograph array, in respect of which the principles in Alexander v The Queen (1980-1981) 145 CLR 395 and Pitkin could be relevant, and circumstantial evidence constituted by the video of the appellant.”

88. That is not to say that other evidence cannot lend strength to the prosecution case overall, such as that relied upon here, but that other evidence cannot operate to cure any weakness in the identification evidence: Domican v The Queen [1992] HCA 13; 173 CLR 555.

89. There are several considerations with respect to each of the four categories of evidence relied upon by the prosecution that influence an assessment of the combined strength of the circumstantial evidence.

90. Evidence as to the identity of the second offender to be found in the Club Footage is deficient in a number of critical respects.

91. First, the tattoos. The quality of the still images and the Club Footage is generally poor. I have already recorded many of the material features of the footage in support of that conclusion. There is only one similarity that can be identified with some certainty, that being the “cross” symbol on the right pinkie finger. Significantly the still images are so poor that none of the markings on the second offender’s fingers, save for the “cross”, can be readily identified. While it can be said that the second offender and the accused generally have in common marked fingers on both hands, there are material differences. In addition to those I have already catalogued at paragraphs [62]-[69], the middle finger of the right hand of the second offender appears to have more substantial markings than the accused’s right middle finger has in the forensic images. The accused’s right index finger has a distinctive round “eight-ball” tattoo that is not apparent in the Club Footage or in the still images. Significantly, on my careful observation there is a real possibility of a clear circle at the intersecting lines of the “cross” marking on the second offender, a feature not shared by the accused’s “cross” tattoo.

92. Of significance is the noticeably paler skin tone revealed as between the still images and the forensic images.

93. The similarity in the “cross” tattoo on the right pinkie finger must be considered in light of the points of difference that I have observed. The presence of a similar shaped tattoo must also be considered in circumstances where tattoos are now a common physical feature of many individuals in our community, and where the “cross” is an icon used by several iterations of the Christian religion.

94. Aside from there being no noticeable inconsistency between the body shape of the second offender and the accused, there is not anything distinctive physically about the second offender (to the extent that can be observed in the Club Footage and the still images) that could be attributed to the accused.

95. The Club Footage and the still images allow for confidence with respect to the second offender wearing black tracksuit style pants. This is consistent with the appearance of the accused 40 minutes later in the Lobby Footage. So too, the second offender wearing black sneakers with a “loop” on the top of the heel. The “bubble” submitted to be in the sole of the shoe is not, in my view, identifiable in the Club Footage nor the Lobby Footage. The Lobby Footage, carefully observed, might reveal an area of the shoe that is lighter than the rest of the shoe but whether this is the “bubble” effect or some other marking on the shoe could not be determined.

96. It cannot be definitively concluded that that second offender was not wearing socks. What can be observed is that there appears to be a gap between the top of the second offender’s shoes and the cuff of the black tracksuit pants not covered by any material. This is consistent with the appearance of the accused in the Lobby Footage.

97. The word ‘Harbinger’ can be clearly read on the fingerless gloves worn by the second offender. That word is on the gloves seized from the accused’s residence.

98. Next, I turn to the evidence in support of the association between the accused and Mr Flynn. The nature of their interaction, though limited, in the Lobby Footage is demonstrative of them being known to each other. The Lobby Footage has them in each other’s company 40 minutes after the offending occurred.

99. There is no footage of either the accused or Mr Flynn exiting the apartment complex. The Lobby Footage captured them walking into the lobby area together. It does not capture them arriving at the apartment complex together. There is no other footage or evidence that establishes how the accused and Mr Flynn either left the apartment complex or arrived at the apartment complex. There is no evidence as to Mr Flynn’s residence at the time the Lobby Footage was captured. The mere fact of the exchange of text messages between them two days after the offending does little more than establish what the Lobby Footage demonstrates; that they were known to each other at the time of the offending.

100. In the Lobby Footage the accused can be seen to facilitate the lobby doors opening upon their approach by holding up an item in his left hand near a mounted black panel immediately outside the doors. The Lobby Footage does not exclude the reasonable possibility that the accused went down to meet Mr Flynn to give him access to the building. Nor the reasonable possibility that the accused and Mr Flynn arrived separately outside the apartment complex and walked into the complex together. The accused is carrying a backpack in the Lobby Footage but there is no evidence before me about that item. I add here that CCTV footage taken from inside the lift to the apartment complex demonstrates the accused’s right ring finger has a shape on it consistent with the large square ring that can be seen in the same place, in the forensic images. That ring cannot be observed in any of the Club Footage or the still images. The fingerless gloves worn by the second offender appear to end below the knuckle, about where the top of the large ring would sit.

101. There is no evidence as to other access points to the apartment complex or the complex carpark arrangements, save to say that the accused’s partner’s vehicle was parked in a car space allocated to the unit when the search warrant was executed. There is no evidence of access pass records from the apartment complex that would establish whether any access passes registered to the accused were used on the day at any other time.

102. Now to the items seized in the search warrant. The search warrant was executed six weeks after the offending occurred at the residence shared by the accused and his partner. There is no evidence as to who, in addition to the accused and his partner, may have had access to the residence. There is no evidence that the accused had access to the vehicle registered in his partner’s name or if he did, the nature and extent of it. The footage taken from inside the lift demonstrates that Mr Flynn got out on the same floor as the accused when the lift stopped. There is no forensic evidence connecting the accused to the items seized.

103. There were two black ‘Nike’ brand long sleeve tops featuring zips at the front seized from the accused’s residence. One had a hood and one did not. The Club Footage established that neither jacket seized is similar to the black ‘Nike’ brand black long sleeved top worn by the second offender.

104. All of the seized items are typical of mass production and would be similar or indeed virtually identical to many shoes, fingerless gloves and hammers produced in such a manner: see R v Clout (1995) 41 NSWLR 312 at [321] per Kirby ACJ. While all items bear resemblance to the items seen on or used by the second offender, they are ultimately ubiquitous in nature. The “loop” on the top of the heel of the black sneakers is a common feature of many styles of sneaker.

105. The hammer was found in the accused’s partner’s vehicle in what the photos reveal was a large green and black bag full of tools. I note here that the accused’s partner’s vehicle is not the same model or make of vehicle that the two offenders were captured leaving the scene with. The Club Footage and the still images demonstrate that the second offender appeared to use more than one tool during the damage to the cash machine. The hammer was the only tool seized by investigating police. The seized hammer has a smaller portion of the handle which is orange and a larger portion which is black. While not inconsistent with a hammer used by the second offender, it is not entirely clear whether the colour proportions in the Club Footage or the still images are similar to the proportions of the hammer seized. In the Club Footage the second offender is carrying a green shopping bag out of which tools were retrieved. It is not the green tool bag located in the accused’s partner’s vehicle. In the still image identified as “(9) Change desk – 2023-03-04 5.11AM” – 309” and in the Club Footage, the second offender is holding a large mallet with a yellow handle. A tool like that was not seized and is not visible in the images of the open tool bag found by police.

Findings of fact

106. The offences as alleged were committed on 3 March 2023 by Mr Flynn and a second offender. The elements of the offence are established by the conduct engaged in by Mr Flynn and the second offender.

107. On the evidence before me I accept: (a) That the second offender wore black shoes with a “loop” and black tracksuit pants. There was a gap between the top of the shoe and the cuff of the trackpants not covered by material. (b) That the accused was wearing black shoes with a “loop” and black tracksuit pants 40 minutes after the offending occurred. There was a gap between the top of the shoe and the cuff of the trackpants not covered by material. (c) That a pair of black sneakers with a “loop” was seized from the accused’s residence. (d) That the accused, at his apartment complex, was in Mr Flynn’s company 40 minutes after the offending occurred and they were known to each other. (e) That the second offender used a hammer generally similar in appearance to the seized hammer. (f) That the second offender wore fingerless ‘Harbinger’ brand gloves similar in appearance to the fingerless ‘Harbinger’ brand gloves seized from the accused’s residence. (g) That the second offender had a “cross” shaped marking on his right pinkie finger. (h) That the accused has a tattoo on his right pinkie finger in the shape of a “cross”.

108. Those facts as I have accepted them do provide some basis to be satisfied as to the accused’s guilt. I am not satisfied though, that they exclude all reasonable hypotheses consistent with innocence.

109. The weight of the similarity of the “cross” shaped marking on the right pinkie finger is significantly diminished when viewed in light of the many points of difference I have identified as between the forensic images of the accused and the still images of the second offender. In addition, the quality of the images, together with the real possibility of a clear circle at the intersecting lines of the “cross” marking on the second offender, not seen in the accused’s cross tattoo, are compelling considerations.

110. Taken together with the warnings I have adopted about the dangers of identification evidence, the features of the markings of the second offender not present in the forensic images to which I have referred including the noticeably paler skin tone, the appearance of more substantial tattooing on one of the second offender’s fingers, the appearance of a clear circle when the lines of the “cross” on the right pinkie finger intersect and the lighter marking on the right thumb, all materially undermine the capacity of the “cross” tattoo to establish the identity of the second offender as the accused. There is a reasonable possibility in light of these factors that the second offender is not the accused.

111. Similarity between the markings on the second offender to the tattoos of the accused is a significant aspect of the prosecution’s circumstantial case; a substantial “strand in the cable”. The other evidence relied upon cannot bolster the deficiencies in that evidence. The extent of the evidence about the appearance of the accused in the lobby with Mr Flynn does not exclude hypotheses consistent with innocence in relation to the circumstances of their arrival together in the lobby.

112. Where the physical identification evidence is significantly diminished, and the inanimate objects relied upon as similar to those used by the second offender are ubiquitous, as is the case here, there may be a foundation for suspicion. However, suspicion is not the test. The evidence I have accepted leaves open a hypothesis consistent with innocence and that is, that the accused was not the second offender. Accordingly, the accused is entitled to an acquittal.

Verdicts

113. For the above reasons, I return the following verdicts: (1) The accused is not guilty of Count 1. (2) The accused is not guilty of Count 2. (3) The accused is not guilty of Count 3.

I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: Date: 4 September 2024