R v Audsley [2004] VSCA 221

Court of Appeal (Vic)|2004-12-08|Before: ORMISTON, CALLAWAY and VINCENT, JJ.A.

CRIMINAL LAW - Attempted burglary - Whether verdict safe - Identification of accused from video tape and resulting photographs - Relevance of additional DNA and other evidence - Sentencing - Parity - Whether wrong characterisation of seriousness.

The facts surrounding the offence of attempted burglary charged against the applicant for leave to appeal against both conviction and sentence are simple but they have led to some convoluted arguments upon the hearing of the application. The applicant was found guilty after a trial in the County Court and was sentenced to imprisonment for a term of twelve months. His sole ground for leave to appeal against conviction is that the verdict was unsafe and unsatisfactory "in the sense that the jury, acting reasonably, should have entertained a sufficient doubt as to guilt". As to sentence the applicant complains that the learned judge erred, in the first place, by finding "that the purpose for which the sentence was imposed could not be achieved by a sentence that did not involve the confinement of the applicant". Secondly it is said that the judge erred in finding that the sentence imposed on the co-offender "should not be disregarded". Thirdly it is said that he erred in imposing a sentence "which is markedly disparate from that of the co-offender". Finally it is said that his Honour erred in "assessing the criminality of this offence as being higher than the half-way mark on a scale of offending in relation to attempted burglary".

The facts were briefly as follows. Some time after 4 o'clock in the morning of 20 February 2001 a large white Mazda tray truck obtained entry through the main gates to the premises of Surdex Steel Pty. Ltd. in Keysborough, apparently with the use of a key or at least without the need to damage the gates. Shortly afterwards it reached the side of the substantial warehouse used by the company to store steel sheeting and other products. A man, accepted as being a person[1]

other than the applicant, jumped from the side of the truck and started to force his way into the side of the warehouse by pulling off part of the outer sheeting to the extent that he was half-way in and half-way out when a security guard drove around the side of the building and then moved on foot to investigate further what was happening. As he reported the break-in to his control room he saw the driver, alleged to be the applicant, jump out and take off into the darkness while the former passenger came back to the truck to retrieve something before he also disappeared, with the security guard following vainly behind him. The guard was unable to get a sufficiently satisfactory view of the truck's driver and thus there was no direct identification evidence of the applicant for the purpose of the trial.

On the other hand, security cameras had been installed at the site which had taken video tape "footage" of the truck and the two would-be burglars. For some reason which is not entirely clear, the video tape was not played in evidence but a series of still images were downloaded onto a floppy disk and those eight images were in fact played to the jury as part of the Crown case. Of those, some three photographs in particular were said to show the applicant at the premises that night. The first was said to show him driving the truck and looking out through the window towards the camera's position, although the window rim obscured his hair and most of his body except his upper trunk and one arm which was holding the steering wheel. The next relevant photograph showed the applicant striding sideways to the camera with one arm outstretched and the other by his side. The third showed him only a moment later walking in the same direction again with one arm outstretched but on this occasion turning around almost facing the camera but glancing backwards. The other pictures showed the passenger and some parts of the premises. None of the images can be said to be perfect but the second and third[2] show a largish, well-built man with cropped hair and a medium beard moving purposefully across the yard.

At the trial the jury were invited to compare these photographs with a video tape of about a minute-and-a-half's length which showed him later giving a buccal swab for the purpose of DNA testing. Although taken some time later, while the applicant was seated, he was wearing similar clothing and both his hairstyle and beard were similar to those of the person taken in the security camera images. The jury were also invited to compare what they saw on those three images with the applicant in the dock during what turned out to be an eight-day trial.

The truck was left behind and was duly searched. Only two relevant items were found, a mobile phone and three cigarette butts. It was for the purpose of identifying who may have smoked the cigarettes that the DNA sample was taken and it turned out, through the calling of a number of witnesses whose evidence was much challenged, that the DNA on two of the cigarettes matched that of the applicant. As to the mobile phone, the applicant in a largely uninformative record of interview was prepared to say of that "it rang a bell". More especially, examination of the SIM card and the phone's memory showed that the most recently recorded calls had been made to the mother of the applicant's de facto, to a brother of the same de facto partner, to a person who had done recent repair work on the Mazda truck and to one Heather Audsley, who was the applicant's former wife. No evidence could be given as to when those calls had been made. The registered owner of the phone did not exist, nor did the address given by the person who had purported to be the owner.

The third item of forensic evidence consisted of fingerprint evidence taken from the outside driver's door of the Mazda vehicle. A comparison of fingerprints with various samples held by the police had first revealed no identifying link but later a comparison made with a second although earlier sample taken from the applicant revealed a positive match between them.

Although the forensic evidence was much challenged, and this took several days of cross-examination, there was in substance no other evidence of present relevance. The applicant did not give evidence.

The truck and its ownership should be mentioned. It had been bought about six weeks earlier but registered in the name of one Christopher Ford. Various checks seem not to have revealed the whereabouts of Christopher Ford and his name could not be traced in police records. However the address given was that of the mother of the applicant's son's de facto, who said she knew Mr Ford but could not provide any other information. Cross-examination of another police officer paled off into irrelevancies. The only significance of this material is that it does not appear that the truck was a stolen vehicle, so that, assuming the three items related to the applicant, it may have been driven or used by the applicant at some time before the attempted burglary.

As I have said, the facts were simple but the trial took an inordinate time. The principal issues were the reliability of the forensic evidence and, in particular, the continuity of the various items subjected to forensic analysis. As best one may discern, the sole issue before the jury was whether the driver of the truck had been shown beyond doubt to be the applicant. Essentially that issue had been presented to the jury as one of identification, but the evidence derived from the truck was put forward as supporting the Crown case but not relied upon independently.

The learned judge summed up in terms which have not been the subject of any criticism before this Court: certainly they form no part of any ground nor were any grounds sought to be added seeking to raise any question as to a misdirection by the judge. Obviously no witness was able to make any identification of the applicant (other than in respect of the videotape taken when the applicant gave the buccal swab), nor was any attempt made to give evidence of any other identification made by an individual. The jury were presented, both in the course of the trial and pursuant to the judge's directions, with the simple issue as to whether they could be satisfied beyond reasonable doubt of the applicant's identity as the driver by comparing the three images downloaded from the security video camera with the video tape of his giving the buccal sample, as well as being asked to compare the three images with the accused as he sat in the dock. Within that framework the judge gave detailed and appropriate directions to the jury, warning of the relevant dangers and difficulties[3] which, as I have said, have not been criticised. In addition, the jury were invited to "take into account", if satisfactorily proved, the three items of evidence obtained from a search of the truck. The judge was emphatic that none of these amounted to any more than supporting evidence and the jury was told that they were insufficient either singly or collectively to prove that the applicant was involved in the attempted burglary. As his Honour said: "They indicate no more than that the accused was associated with this truck on or before the date of the attempted robbery."

The argument presented by counsel for the applicant to this Court was, of necessity, brief and to the point. It was accepted that the test his client had to satisfy was to establish whether he could properly have been convicted on the evidence before the jury. As to that evidence it was conceded that it was open to the jury to find that the three items of evidence obtained from the truck were sufficient to show that the applicant had some "connection" with the truck brought onto the premises of Surdex Steel and abandoned there. No argument was put to this Court as to their inadmissibility but it was contended that a mere connection with the truck was not sufficient to show that he was present in it on the night in question.

The primary contention was that the three downloaded images were insufficiently clear for the jury to make any sufficiently reliable comparison of them so as to be satisfied beyond reasonable doubt of the applicant's guilt. Counsel said that, upon a proper examination of those images, the court ought to conclude "that the verdict [was] unsafe and unsatisfactory in the sense that the jury, acting reasonably, should have [in the sense of ought to have] entertained a sufficient doubt" such as to preclude them from bringing in a verdict of guilty. It was the quality of those photographic images which should induce this Court to conclude that there must always have been a reasonable doubt as to whether the applicant was one and the same person as the driver depicted in those images.

Questions of identification are not infrequently difficult, especially if an observer has but a limited time to see an alleged offender or the view of the offender is affected by poor light or other factors of that kind, many of which were directly referred to by the judge in his charge. In the present case the primary difficulty was not light or time but the nature and quality of a picture taken by a security camera. Nevertheless, although the images are clearly not perfect, they can be and undoubtedly were examined carefully by the members of the jury - they asked specifically that they could have a computer on which to view the floppy disk. Often in cases of this kind, at least in my experience, images taken appear at first to be obscure or incapable of presenting a true picture of the subject, but, if one has the advantage of seeing them a number of times, the various features of the individual shown, especially when viewed in conjunction, frequently serve to produce a better impression of that individual than a first glance might suggest. In the present case the first picture showing the truck driver in the cabin of the truck would probably never have served to form the basis of a proper and safe identification. But even from this picture certain characteristics of his face appear which are confirmed and emphasised by the later two pictures. Again the second picture may be said to contain a relatively unclear impression of the driver's face but, as he strides forward across the yard, one gains a firm impression of his size and other body characteristics. Finally, when one has the benefit of the third picture taken barely a second later but almost face on, those bodily characteristics are confirmed as are those of his face, especially if one has regard to the picture in the cabin.

The conclusion must essentially be a matter of impression, albeit a matter of impression which must convince the jury beyond reasonable doubt. Likewise it is a matter for this Court to determine whether those impressions could have been such that the jury might fairly have relied upon them to convict the applicant. I confess that when first I saw the photographic reproductions which were also tendered I thought that they were simply too blurry in quality for a jury to rely upon them. But that largely depended upon the quality of reproduction, as I discovered soon after when looking directly at the images on the floppy disk which, though by no means perfect, gave a far better and more detailed impression of the individual shown. Then, as time went by and those images, in particular, were viewed a number of times, the combination of them provided a much clearer impression of the individual than was first gained. As it turned out, by reason of the lengthy conduct of the trial, the jury also had considerable time to revisit and compare again the pictures and images on the floppy disk and it was thus open to them to reach the same general conclusion about those images.

One cannot, of course, know how the jury went about the process of deliberation but, attempting to place oneself in their shoes for this purpose, I am satisfied that it was open to the jury to be convinced of the identity of the driver with the applicant for the purposes of reaching a conclusion that he was guilty of the charged offence beyond reasonable doubt. I would not necessarily see the other three items of evidence taken from the truck as providing significant support for the Crown case, but it was open to the jury to conclude that the connection of the applicant with the truck must have been quite recent having regard to the finding of the fingerprints and cigarettes (although their age may be uncertain), and also to the finding of a phone which had frequently been used by its owner for various purposes to communicate with persons connected to the applicant. As I say, I may have not placed much weight on these matters, but, as it was put to the jury and not objected to either below or before this Court, this circumstantial material may have been used properly by the jury to establish the applicant's connection with the truck, at least at some time close to the commission of the offence.

I would dismiss the application for leave to appeal against conviction.

Although a number of grounds were relied upon, this application again raises no issue of complexity. The applicant received a sentence of twelve months for what might be said to be a well-planned attempt to commit a serious burglary.

Counsel concentrated more on alleged individual defects in the learned judge's reasoning process than on any assertion that the sentence was manifestly excessive. He complained in particular that it infringed the precepts of parity and disparity, inasmuch as the co-offender, one Nikodjevic, had earlier received from another judge a sentence of only nine months for the same attempted burglary. As part of the same complaint it was said that Nikodjevic, who had been sentenced in addition for some thirty other offences, was required to serve, by way of cumulation, only six months of the sentence. So it was contended that, although the applicant had pleaded not guilty and Nikodjevic guilty to the relevant offence, the difference could not be justified. Nikodjevic has also appealed against the sentence imposed upon him, but it will be seen, in the disposition of that application handed down today[4], the sentence on that count (as with those on virtually all of the other counts) is there thought to have been too light in the circumstances. In any event, having regard to the process adopted by the judge in the other case in dealing with Nikodjevic and to the applicant's not guilty plea in this case, I cannot be satisfied that there was any proper basis for comparison, so that I consider that this ground has not been made out.

I would add that the applications in the present case were heard immediately before that of Nikodjevic. Counsel for the applicant enquired, at the end of the hearing of his client's applications, whether he was obliged to stay during the hearing of that relating to Nikodjevic, but he was told that the court did not require him to do so, although he was at liberty to take what course he wished. He was likewise told that, if anything arose out of the hearing of the application in Nikodjevic relating to the latter sentence for attempted burglary, he was at liberty to make appropriate submissions. He was also informed that, as presently advised, Nikodjevic's sentence on that count seemed light and could well be increased. That would, of course, only have made the application of the present applicant the more difficult to sustain on this ground. As it turns out, that is the view which the Court still holds, so that there is no reason to reopen the present application because of the Court's decision in Nikodjevic's application.

Curiously a further ground (ground 2) of the present application was that the judge was wrong in not disregarding the sentence imposed on Nikodjevic. As I would understand it, what is here intended to be said is that the circumstances surrounding Nikodjevic's offending were far more serious inasmuch as it had been held that he was a professional handler of stolen goods engaged in stealing from warehouses and that this was not a correct analysis of the present applicant's criminality. Of course those specific findings were not directly relevant to the applicant, but it must be remembered that this was no casual, drug-driven breaking in and the applicant has a history of some twenty-one prior convictions, from seven previous court appearances, evidencing gradually increasing seriousness of offending, especially relating to his ten prior convictions for property offences, four of which were for handling and three of which were for burglary. Although, as is common, the precise circumstances relating to Nikodjevic's criminality and background were not the same, the judge was not in error in seeking to refer in passing to the sentences passed earlier.

Finally, it was said that the judge was wrong in stating that the criminality was "higher than the halfway mark on the scale of offending in relation to attempted burglary". I see no error in this characterisation of what was shown to have occurred. As already observed, this was no casual, impetuous attempt at burglary. Nor was it suggested that it flowed from drug addiction. The two offenders did not walk in off the street, nor does it appear that they stole a car for the occasion. They thought it necessary to obtain, in one way or another, a substantial tray truck of a kind which must have been intended to carry away large objects. Otherwise they would not have chosen such an obvious vehicle for their purposes. Moreover, not only had they chosen a factory or warehouse as the object of the burglary, but they

had obtained access to the premises without the need to break down the gates. Their further planning was evidenced by a decision to break through a wall of the warehouse, which was what they were engaged in at the time they were detected. Two experienced criminals were obviously indifferent to the possibility of being detected either by camera or guard, so they clearly had in mind a substantial burglary which made the risks worthwhile. I see no error in the judge's characterisation of this particular offence of attempted burglary. Indeed, in the circumstances, I consider that the sentence imposed was modest.

In all the circumstances the first ground raised, in effect that the applicant should not have been given a custodial sentence, cannot succeed. I have already referred to the applicant's record and the seriousness of this particular attempted offence. The applicant had been given a number of opportunities in the past and he seems on this occasion unable to claim remorse by reason of any admission that he was one of the offenders. In the circumstances the judge was entirely correct in ordering a sentence without any suspension.

I would likewise dismiss this application for leave to appeal against sentence.

I agree with the learned presiding judge that these applications should be dismissed and with his Honour's reasons except at [18]-[19]. I would not alter the sentence imposed on the co-offender Nikodjevic. Even so, I consider that the parity ground is unsustainable. The applicant, who pleaded not guilty, was sentenced to 12 months' imprisonment. The co-offender, who pleaded guilty, was sentenced to nine months' imprisonment. Whatever the amount of the discount given to Nikodjevic for his plea, and the transcript suggests that it was substantial, that is enough to explain the disparity.

I agree the applications for leave to appeal against conviction and sentence should be dismissed for the reasons given by Ormiston, J.A.

[1] In fact, by the trial he was known to be one Barney Nikodjevic, for he had earlier pleaded guilty to the same offence: see below para.[[].

2] The order of the images on the floppy disk was slightly different but it is clear that image number three was taken only a second after image number 2 (as I have described them).

[3] In particular a stringent warning was given as to making a comparison with the accused in the dock.

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