Police v Shiu SINGH

The evidence 14The photographs annexed to the statement of Const. Knobel (Exhibit 7) clearly show the area of Dean Street around the ANZ Bank. 15The matter proceeded before me with the tender of a significant number of statements. There was brief cross-examination of only one of the witnesses, namely Ms Maree Salter who was at the relevant time the acting Branch Manager of the ANZ Bank in Dean Street, Albury. Both advocates have provided extensive written submissions, to which I will later refer. 16Ms Sue Miller on 8 June 2010 was working as a Business Banking Teller at the ANZ Bank at 579 Dean Street, Albury. Not long after the bank opened for business at 9.30am she saw an Indian man (it is uncontroversial that the man was the accused) sitting in a chair in the customer service area. When approached the accused indicated that he wished to see the Manager. Ms Miller at about 10.15am approached Ms Maree Salter who as at 8 June 2010 was employed as a Senior Personal Banker at the ANZ Bank. She was also acting as relieving Branch Manager. Ms Salter then went to where the accused was seated and introduced herself to him. She recognised him as a customer of the bank, and she invited him into her office, which invitation Mr Singh accepted. 17Ms Salter noticed that Mr Singh appeared to be holding his head with one of his hands. The following is then recorded in paragraph 9 of Ms Salter's police statement (Exhibit 32): "I asked Mr. Singh is everything okay and he said words similar to the effect of, 'I've just been robbed'. I recall that he also said he had been attacked. Mr. Singh kept telling me that they had hurt his finger by bending it backwards. He kept repeated the same words, "'my finger is sore and my head hurts'". 18It was Ms Salter who initially contacted the Albury Police Station and reported the alleged robbery. 19Before contacting the police Ms Salter inquired as to whether Mr Singh had a deposit book. Mr Singh produced a deposit book, which is Exhibit 35 in the proceedings. The deposit book relates to account [xxxx xxxxx] at the ANZ Bank at 177 Merrylands Road, Merrylands. The first entry in that book relates to a deposit made on 3 May 2010. There is a deposit slip and the stub thereof completed for 8 June 2010 for a sum of $4600. This is the amount of money that the accused maintains was taken from him by the assailant. The previous amounts deposited were $63.60, $257.05, $171.80, $350.00, $15.55, $350.00, $73.40, and $608.00. 20Ms Salter noticed that while speaking to the accused he did not have any "urgency" when he was talking to her. He was "agitated by did not have a sense of urgency considering the sum of money that was stolen". Mr Singh told bank staff a number of times that his head hurt and "they bent his finger back". He also told bank staff that he was carrying the money in a plastic coin bag. 21Ms Salter then recounts (paragraph 12 of her statement, Exhibit 32) that the accused told her that he parked his car across the road from the bank and then he walked across the road in front of the Albion Hotel, he got to the front somebody hit him from behind. She believes that the accused told her that his car was red. 22Further, Ms Salter recounts that she asked the accused if he wanted the police contacted. According to Ms Salter (paragraph 13, Exhibit 32) the accused said words to the effect that he felt uncomfortable speaking to the police and that he would walk around to the police station. She persuaded him that the police should be contacted. 23The accused told Ms Salter (see paragraph 16, Exhibit 32) that he was outside the Albion Hotel when he got hit on the head; the person that robbed him was wearing a black hooded jumper and jeans and was approximately 20 years old. He also said that after he was robbed the saw the person run towards the Botanical Gardens. 24Ms Salter in her statement made about 8 months after the events maintains that she thought the amount of money stated on the deposit slip was about $6,000 but conceded under cross examination that the deposit slip that she saw could well have been the one for $4,600 dated 8 June 2010 to which I have previously referred. She was not able to say for certain that Exhibit 35 was in fact the deposit book that she saw on the morning of 8 June 2010. 25Police and Ambulance Officers arrived at the scene. I will return later in these reasons to the observations of the emergency services personnel who attended the bank on the morning of 8June 2010. 26Senior Constables Krooglik and McCaig were the first police officers to speak to the accused - see Exhibits 5 and 6. The accused told those officers that he had a sore head at the back and that his hand was a bit sore. Constable Krooglik arranged for the attendance of the ambulance. When asked what happed, the accused told Constable Krooglik: "I was walking from my car to do some banking here and suddenly felt a big bump to the back of my head. It stunned me a bit and I saw a person on my left hand side. He was grabbing at my left hand where I had the banking money in a plastic coin bag and pulled it out of my hand and then ran away". 27When asked to describe his assailant, the accused told Constable Krooglik: "I'm not sure, he had dark clothing, a dark top with a hood, medium build, dark trousers and you could see the top of his underpants as he ran away". 28The accused told police that the money was from superannuation funds in Fiji. 29Detective Kelly extensively interviewed the accused about the allegation. The transcript of the interview is Exhibit 15. It is important to remember that this interview was made at a time when police believed the accused to be a victim of a robbery. Part of the answer to question 4 in the interview is: "Well, this morning when I was going to ANZ Bank to deposit case, $4,600, I parked my vehicle almost I think it was just before 10 o'clock near Albion Hotel and then when I got out, as soon as I started walking about a couple of metres from the car, somebody hit me from behind my head, I almost got unconscious. I had that cash in plastic bag in my left hand and the person who hit me forced to take that money out. Unfortunately I tried to pull back but he forced and during that I got my finger a little bit injured and because of the impact on my head I could see the stars and I couldn't do much, I just had to release the hand and the guy ran away with the money..." 30The accused repeated the description that he had earlier given to Constable Krooglik. He went on to tell police (q 29) that he had $45,000 in a term deposit, and that he had recently withdrawn $5,000. The account was opened in the Merrylands Branch of the ANZ initially with $72,000, which is what he had in Australian dollars after the conversion - see generally answers to questions 40 and following. He said he left home about 9.35am (q 58). In answer to question 83 he repeated what he had earlier said about being attacked within a couple of metres of his car. He did not see anyone in front of him (q 83). The accused said that he only ever saw his assailant from the back (q 162). 31In answer to question 94 the accused said: "And then I went to the bank, I was very painful but I told the bank then from the bank I did not want to report to the police but I thought it's not necessary to report because one time I pull over the car as I told you before, then I was told that it's not a police case, it's a big country and this kind of thing you need to take care of yourself". 32In the same vein, he said in answer to question 195: "It's my personal money. It's not a problem actually. I didn't want to give any problem to the police and no use reporting because its not even insured, I can't get anything, but because..." 33In answer to question 123 he said: "And it was very painful honestly speaking. And ah, I got almost unconscious but I just try to, you know, hold it on my right hand and I think because of that I got all this pain, pain again." 34Then at question 128: "No, because he was trying to take the, grab the bag but I hold it so hard, I could feel it because when I was hit I knew exactly that something is going to happen with me, the...I tried to hold...person really forced to take the money out." 35On a number of occasions the accused described a struggle with his assailant grabbing for the money and him resisting which was the means by which his fingers were injured. 36Further, on the issue of the actual assault on him the accused said in answer to question 245: "Because, because if the fist, I can fell that, I mean, fist that somebody hit there, bit it was just like some broke off piece of wood or something kind of thing, see, 'cause it was flat, hit like that there. Unless he got a very hard, you know, thump...I don't know" 37The answer to question 245 is quite unclear. The accused places a qualification on the issue of the use of a weapon by his assailant. I could not conclude that the accused was positively asserting that his assailant used a weapon of some description. 38In answer to question 213 and continuing the accused explained that the money he had was from withdrawals previously made, one in $1,500 and the other in $3,500. Exhibit 21 is a collection of bank statements in fact showing that the accused withdrew $1,500 on 3 May 2010 and $3,500 on 13 May 2010. This supports the version of the accused as to how he came by the money said to have been taken from him on the morning of 8 June 2010. 39One of the many curious aspects of this case is that the accused seemed reluctant to have the police involved. The clear import of the contents of paragraphs 13 and 14 of Ms Salter's statement (Exhibit 32) is that the accused was reluctant to have the police involved. When Detectives Martin and Kelly went to speak to the accused on 10 June 2010 he was clearly reluctant to talk to them. On 9 June 2010 the accused hand-wrote a letter addressed to Detective Kelly, which the detective obtained from the ANZ Bank. That letter is Exhibit 18. In the letter the accused requests that the police cease any investigation into the matter, that there were false reports on the local electronic media, that he is afraid that he will be recognised as there are very few Fijian Indians in East Albury. Further, there appears in the letter: "Anyway it was not me who rang the police, it was the courtesy of the ANZ Staff as I knew that it may cause unnecessary havoc". 40I now return to the evidence of Ms Maree Salter, the relieving Branch Manager at the ANZ Bank. The accused handed the letter a copy of which is Exhibit 18 to Ms Salter. The accused went on to say to Ms Salter that on the night of 8 June somebody went to his house and threatened him with the words, "drop the charges or else". It was put to Ms Salter in cross-examination that those words were not said, but she was not shaken on that aspect of her evidence. It was also put to her that the accused said that someone rang his house and said words to the effect of if you report this to the police your house will be burnt down. Ms Salter gave evidence to the effect that she did not remember the accused saying that. 41Dr Julian Dart examined the accused at the Emergency Department of the Albury Base Hospital at 11.13am on 8 June 2010 - see Exhibit 16. The accused was alert and oriented to time and place, there was no bruising or laceration to the scalp and the left fourth index finder was slightly tender. Photographs were taken of the accused (Exhibit 23) but those photographs are so unclear they do not assist in any way in determining an issue. 42On the issue of medical treatment, Mr Wayne Robinson, an ambulance officer treated the accused at the ANZ Bank on the morning of 8 June 2010. From the annexure to Mr Robinson's statement it appears that the call for assistance was received at 10.25am and the ambulance arrived at the scene at 10.44am. Mr Robinson examined the accused and found that he was alert, talking, orientated to time and place and was well perfused (had good colour). He examined the accused's head by running his fingers through his hair and over his head and could not feel any bumps. He could not see any bleeding or bruising to his head and face. It was recorded on the patient health care record, "nil haematoma or bleeding detected on head". 43Neither Dr Dart nor Mr Robinson were called to give oral evidence, and accordingly, the full extent of their evidence upon which I must make a determination is contained within their statements and the documents annexed thereto. For example there is no expert evidence as to the extent of force required to produce any observable injuries or bruising. The medical evidence it seems to me was potentially very important in this matter. This is one aspect of the case where I would have been very much assisted by oral evidence from either or both the treating doctor and ambulance officer. This is not a matter about which I can take judicial notice. Nor can I rely on my own knowledge obtained from my experience in other cases - see the decision of the High Court of Australia in Dasreef Pty Ltd v Hawchar [2011] HCA 21. It seems to me that this is precisely what the prosecutor is suggesting that I do. In Dasreef Pty Ltd v Hawchar, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [47]: Whatever may be the position with respect to other tribunals, the statutory requirement that, subject to certain limited exceptions, none of which was engaged here, the Dust Diseases Tribunal apply the rules of evidence compels the conclusion that the primary judge erred when he said that he was permitted to take his experience into account in determining what caused Mr Hawchar's silicosis. To the extent to which earlier decisions of the Court of Appeal concerning the Dust Diseases Tribunal hold to the contrary, they should be overruled. Under the rules of evidence the primary judge was permitted to take account of matters not proved in evidence in this case only if they were matters of which judicial notice could be taken. It was not suggested that the causes of silicosis were matters for judicial notice. The degree of force to produce any particular injury is likewise a matter about which I am unable to take judicial notice. If the prosecution were relying on this issue then either oral should have been called to expand upon the written statements and certificates, or additional and more comprehensive written statements should have been obtained. 44Exhibits 24, 25 and 26 are downloads of CCTV footage taken from the ANZ Bank, the Commercial Club and the Albion Hotel. The Commercial Club is on the opposite side of Dean Street to the ANZ Bank, and is further to the west. The Albion Hotel is on the same side of Dean Street, but a few doors to the west. The footage is neutral, and does not assist one way or the other. 45On 8 June 2010 police conducted a thorough canvass of personnel working in businesses in the near vicinity of the ANZ Bank. Nothing more could have been done in this regard by the police. The evidence of these people, namely Weronika Raczkowska, Kristine Reif, and Annette Wood do not assist one way or the other. Likewise, Mr Cunningham, a taxi driver who was in his vehicle at a rank opposite the ANZ Bank, did not see anything. The fact that those people observed nothing on 8 June 2010 does not prove that the robbery did not occur, nor does it allow such an inference to be made.

Submissions of the parties 46Both the prosecutor and counsel for the accused have provided extensive written submissions. Initially, the prosecutor points to a number of inconsistencies in the various accounts given by the accused. The accused is a Fijian Indian, and he told police in the electronic interview taken on 8 June 2010 that he had been the Circulation Manager for a newspaper in Fiji. It is tolerably plain from reading the interview that the accused, while obviously very fluent in English, does not speak perfect English. The inconsistencies are in my view minor. 47The prosecutor submits that it is significant that Ms Howard, an employee at Howard's Storage World, one of the nearby businesses says, "The man stepped on to the footpath and was walking in the direction of the ANZ Bank. The next time I saw this man was when he was receiving attention from Police and Ambulance officers." With respect, this does not in my opinion assist the prosecution case. The accused was in the bank complaining of the robbery at or about 10am. The ambulance was there at 10.44am. The situation with Ms Howard's evidence is the same as those of the persons who worked in other nearby businesses. The observations of those various persons are not such that a robbery as alleged could not have taken place. Again, the fact that they did not see something occur to Mr Singh cannot lead to an inference that nothing in fact occurred. 48Ms Salter observes that the accused did not appear to have any urgency. The accused was always reluctant to have the matter reported. 49The prosecutor then submits that Det. Kelly makes observations that Mr Singh does not have any obvious injuries. I merely repeat what I have earlier said in these remarks on the issue of medical evidence. The same observations apply to the submissions on the medical evidence and that of the ambulance officer. I also note that Dr Taylor was the author of the medical report, but it was another doctor who actually examined the accused. 50The prosecutor submits that "the court would have to question why Mr Singh did not add the $200 in his wallet to the amount of $4,600 making it closer to the full amount he wished to put back". It is further submitted that there are several issues relating to the banking habits of Mr Singh. A thorough examination of the banking records does not reveal any particular habit or pattern. Certainly, I agree with the prosecutor that there are some aspects of the financial records and dealings at the Commercial Club that are "strange". However, I do not think this greatly assists the prosecution. There many explanations as to why people do what they do with money. In dealing with this submission it is important to remind myself on the direction given earlier in these reasons on drawing of inferences, and further, that I cannot engage in speculation. 51I must however congratulate the prosecutor on very thorough, thoughtful and helpful submissions. Rarely does the court receive such assistance in matters before the Local Court. 52Mr Blackman's submissions are also very thorough and helpful. Perhaps one of the most important points made by Mr Blackman is that none of the CCTV footage that makes up Exhibits 24, 25, and 26 actually covers the area where the robbery is said to have taken place. This blunts the prosecutor's submissions about the likelihood of something of relevance being captured. 53It is submitted on behalf of the accused that the prosecution have not proved any motive. The prosecution do not have to prove any motive. In the recent decision of Chand v R [2011] NSWCCA 53, Hoeben J (McClellan CJ at CL, Blanch J agreeing) said [96]-[97]: In relation to whether a direction was required from his Honour as to motive, Coumbe v The Queen (1990) 101 FLR 466 is not authority that a motive direction needs to be given in every case that motive evidence is led. De Gruchy v The Queen (2002) 211 CLR 85 is to similar effect. What those cases make clear is that the question of whether a direction as to motive should be given depends upon the particular facts of the case. 97 In De Gruchy Kirby J said: "52 Judicial instructions on motive: It follows from the foregoing that a number of general propositions can be accepted to guide judges in the consideration of whether they should give instructions to a jury concerning motive, where that issue has arisen as a live one in the course of the trial, and if so in what terms: (1) No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessential^ a task for the jury, viewing questions about motive in the context of the evidence as a whole. (2) Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive and that the absence of a proved motive cannot as a matter of law be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation. (3) Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the notice of the jury, in fairness to the accused, given that "[t]he stronger the motive the more influence it is likely to have [on the jury]". On the other hand, the judge may also point out that proportion in such matters will sometimes be absent. To reasonable and law abiding citizens many serious crimes appear to have been committed upon trivial motives, wholly disproportionate to the gravity of the wrong. (4) Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime. (5) Where there is no evidence that the accused had a motive to commit the crime alleged, that is "always a fact in favour of the accused". There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury. However, especially in circumstances of a heinous crime, if a judge gives any direction about motive, it would generally be fair and prudent to draw to the jury's notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed: "the more heinous the act... the more important becomes the question of motive." If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard. (6) Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, "there may be a motive, and perhaps a strong one, but no evidence of it available". In Pointer v United States, the Supreme Court of the United States put it this way: "The absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favour of the accused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction."" 54Both parties submit that the reluctance of the accused to have the police involved assists their case. Constable McCaig noticed that the accused was upset, was crying and said, "this only happens in my country". The reluctance of the accused to have the police involved in the matter is one of the many strange and unusual aspects of this case. In the absence of any motive such as an insurance claim, the issue of the reluctance of the accused to have the police involved is of greater assistance to the accused. 55As Mr Blackman correctly submits, it is for the prosecution to prove beyond reasonable doubt that the robbery did not occur, not for the accused to prove on balance that it did. I merely observe that proving beyond reasonable doubt that something did not happen is a particularly difficult task to achieve. 56There are many strange and unusual aspects to this case, some in fact bordering on the bizarre. I must admit to a degree of prevarication and wavering in deciding this case. That in itself leads to a conclusion that I should entertain a reasonable doubt about the guilt of the accused. The matters urged by the prosecution, as set out in summary form at the conclusion of the prosecutor's submission are matters of significance, and give the court considerable cause to consider. There are three aspects in particular, however, that cause me have a doubt. One is the lack of medical evidence, secondly there is (in the context of this case) a lack of any motive to make a false complaint, and the other is the banking records indicating substantial withdrawals close in time to 8 June 2010, indicating a possible source of the funds the accused maintained he had with him on that morning.

Conclusion and formal orders 57There is most certainly a prima facie case, and I do not understand Mr Blackman to submit otherwise. However, after consideration of all of the evidence, the very thorough and helpful submissions from both advocates, and the various warnings that I gave myself at the beginning of these reasons, while I entertain considerable suspicion, I cannot be satisfied beyond reasonable doubt as to the guilt of the accused. Accordingly, the accused is entitled to an acquittal. 58My formal orders are that I enter a verdict and judgment of acquittal and the accused is discharged in respect of the matter before the court. Magistrate Lerve Albury Local Court 12 August 2011 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2011