R v MCLEOD

2 The accused is charged by the Crown that, on 30 August 2007, at Currarong, he: (1) entered the Currarong RSL Club with intent to commit the indictable offence of larceny; (2) stole nine bottles of alcohol from the Club; and (3) maliciously damaged a glass door at the Club.

3 I now set out the principles of law which I apply and the findings of fact which I make for the purpose of arriving at verdicts.

4 I am aware that the Crown has the task of proving the accused's guilt beyond reasonable doubt. In other words, the accused is presumed to be innocent of each count unless and until the Crown proves him guilty of that count beyond reasonable doubt. 5 Suspicion must play no part in my function as the judge of the facts. If I feel that the accused may be guilty and even if I feel that he probably is guilty, as long as I have a reasonable doubt about his guilt on any count, I must return a verdict of not guilty on that count.

6 I am aware that the Crown does not have to prove the truth of each statement of each Crown witness. What the Crown must prove beyond reasonable doubt is each legal element of each count (and the essential facts necessary to establish each legal element).

7 I am aware that the three counts are being tried together as a matter of convenience. They must be considered separately and separate verdicts must be returned.

8 I am aware that, in making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.

9 I agree with the parties that, as a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that the accused was one of two offenders who, on 30 August 2007, entered the Currarong RSL Club, stole nine bottles of alcohol, and damaged a glass door at the Club.

Elements of the Charges In relation to the first count, the Crown has the task of proving beyond reasonable doubt that: (1) the accused entered (went inside) the Club; (2) the Club was a building; and (2) the accused entered with intent to commit an indictable offence (larceny) in the Club.

10 In relation to the second count, the Crown has the task of proving beyond reasonable doubt that: (1) without the consent of the owner; (2) the accused (or an offender with whom he was in a joint criminal enterprise) took and carried away nine bottles of alcohol; and (2) the bottles were taken with intent to permanently deprive the Club.

11 In relation to the third count, the Crown has the task of prooving beyond reasonable doubt that: (1) the accused (or an offender with whom he was in a joint criminal enterprise) damaged a glass door; (2) he did so maliciously (intentionally and without lawful excuse); and (3) the property belonged to a third party (the Club).

12 When police spoke to the accused at the police station, after seeking legal advice, the accused declined to be interviewed. An accused person is entitled to exercise a "right to silence" and I can draw no adverse inference from his decision to do so.

13 Similarly, I can draw no adverse inference from the accused's decision to give no evidence in the trial. The accused's silence cannot be treated as an admission or as filling in gaps in the prosecution case. The accused bears no burden and his silence cannot be used to improve the prosecution case. The Crown bears the burden of prooving the accused's guilt beyond reasonable doubt.

14 There is undisputed evidence that, pursuant to a bail condition, the accused reported to Nowra Police Station at about 10.20am on 30 August (Exhibit 4). I draw no adverse inference from the fact that, at the time of the alleged offences, the accused was on bail.

15 There is undisputed evidence establishing that two men (one wearing a T shirt, the other wearing a long-sleeved two-tone jacket) committed the offences. It is the Crown case that the accused was the offender who wore a T shirt.

16 Exhibits 1 (statements of police and the Club secretary/ manager, 2 (CCTV images from the Club), and 3 (stills of the CCTV images) establish that, at about 2 am on 30 August 2007, two men arrived at the Club in a white Commodore station wagon. One man deliberately smashed a glass door of the Club while the other man was present. As the act was intentional and without lawful excuse, it constituted the offence of malicious damage to the door. The alarm was activated. Both men entered the premises (a building), went to the bar area and removed items from that area (later found to be nine bottles of spirits), then left in the vehicle. The time and circumstances in which they entered and left the Club and their conduct in going directly to the bar area establishes that their purpose in entering was the unauthorised removal of alcohol. They did remove nine bottles of alcohol, which have not been recovered.

17 The conduct of the men (they arrived and left together, both were present when the door was smashed and when bottles were removed from the bar area) establishes that there was an arrangement between the men amounting to an agreement that property may be damaged in order to gain entry, and that they would enter the property and steal alcohol, i.e. the conduct of each was in pursuance of a joint criminal enterprise and each is criminally responsible for the conduct of the other. I note that the accused accepted that there was a joint criminal enterprise between the men.

18 I am satisfied beyond reasonable doubt that each of the men committed each of the three alleged offences.

19 The contentious issue is whether the Crown has established beyond reasonable doubt that the offender in the T shirt was the accused.

20 On this issue, the Crown case relies on the following evidence.

(1) The circumstance that the offender wearing the Tshirt is said to resemble the accused, as observed in Court. (2) The circumstance that, at about 10 am on 30 August, the accused reported to the Nowra Police Station wearing a jacket that belonged to him and that jacket resembles the jacket worn by one of the offenders (see Exhibit 4). (3) Evidence from a correctional officer that, on the afternoon of 28 May, when the accused was being held in the Batemans Bay cell area in relation to the trial and he was in the adjoining charge room, he overheard someone, whom he identified as the accused, say to another inmate: "I've got court tomorrow. It was meant to be next week but they've brought it forward ... They've got me on TV footage but they can't use it cause of the new law. I've grown a beard, put on weight and let myself go...That's how I beat the last one, they couldn't positively identify be so they had to throw it out..." He was taken aback and, a couple of hours later, his spoke to the police prosecutor and inquired whether such a law existed. (4) Evidence from a second correctional officer who was in the charge room that he overheard the same statement and identified the speaker as the accused. He gave evidence that the accused said: "I've changed my appearance, let myself go, put on weight to change my appearance" and he understood that the gist of the statement was that the accused had changed his appearance in relation to police video evidence. 21 Immediately afterwards, he discussed the conversation with the first officer. They discussed what each had heard.

22 Each of the four sources of evidence on the contentious issue can be characterised as "identification evidence", requiring directions in accordance with ss 116 and 165 of the Evidence Act 1995. I am aware that there is a special need for caution before accepting any identification evidence and that I should consider the reasons for that need for caution. Both generally and in the circumstances of this case, I must consider the matters which may make the evidence unreliable.

23 At a general level, I note that special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may be mistaken in their identification. While it is relevant that two witnesses make the same identification, that does not necessarily mean that their evidence is reliable. Two honest witnesses may be mistaken. The experience of courts has demonstrated that identification evidence, however honestly given, may be unreliable.

24 The accused accepts that it is permissible to compare the offenders in the CCTV footage with the accused, as observed in the courtroom: R v Kirby [2000] NSWCCA 330 at [46] - [47].

25 I note that the image quality of Exhibit 3 is the same as that of Exhibit 2.

26 The appearance of the offender wearing the T shirt is generally consistent with that of the accused (as to general facial shape, general build, general age, and Aboriginality) but is also consistent with the appearance of many Aboriginal men.

27 The CCTV footage shows that the offender wearing the T-shirt had a close cropped beard. Sergeant Edwards gave evidence that, when arrested on 30 August, the accused did not have a beard, although he may have had a stubble. To the extent that Sergeant Edwards's evidence should be interpreted as being inconsistent with the CCTV footage, it is unhelpful to the Crown.

28 Approaching the evidence of visual resemblance with caution, I consider that any resemblance is so general that it is a circumstance that lends little, if any, substance to the Crown case.

29 A comparison of the jacket in Exhibit 2 (and Exhibit 3) with that in Exhibit 4 (which the accused admitted was his jacket) shows similarity in size, shape and the areas of light and dark fabric.

30 However, one cannot say that the jackets are identical in style or size, let alone that they are the same jacket. There is no evidence as to how many similar jackets may be in use in the Nowra community.

31 In the context that Exhibit 4 was photographed later on the morning of the offences, the similarity between the jackets depicted in Exhibit 2 and Exhibit 4 is a circumstance of some significance. However, it's significance is affected by the fact that, on the Crown case, it was the co-offender, not the accused who was wearing the jacket at the time of the offences.

32 The alleged admissions were the only direct evidence tendered against the accused on the contentious issue.

33 The accused did not question the honesty of the two correctional officers. I agree that their evidence was given honestly.

34 The issue is whether I can except beyond reasonable doubt that: (1) the voice identification was reliable; and (2) the officers' account of the substance of any statement was reliable.

35 In Festa v The Queen (2001) 76 ALJR 291 at [84], McHugh J. noted that: " The risk of mistake in identifying a voice is at least as great as in identifying a person."

36 In this case, each officer was adamant that he was able to identify the accused as the speaker. Within hours of overhearing the conversation, the first officer spoke to the police prosecutor. Further, there were only two other inmates in the cells, and the officers had had recent extensive discussions with one of those inmates, whose voice was described as "quite different" from that of the accused.

37 On the other hand, each of the correctional officers had spoken to the accused on only three or four occasions over the preceding five to eight year period. Annually, each dealt with hundreds of inmates. On the occasion in question, each had had a very recent conversation with the accused regarding his request for a shower and razor, but that conversation was brief. Although the officers were located only a few metres from the accused, there were two closed doors between the officers and the accused. One was a solid - perhaps metal - door (see Exhibit 7). The second was a perspex door with a slot to permit the passing of food and drink and a gap under the door (see Exhibit 8). Within the cell area, the hard surfaces caused sound to echo. There was no expert evidence as to the impact that the closed doors and the echoing may have had on a listener's perception of speech, but common sense dictates that sound would have been muffled and, perhaps, distorted.

38 As to the substance of what was heard, the evidence of the officers is quite consistent. However, there is a possibility that the recollection of either or both officers may have been influenced by their conversation immediately after the incident. Further, there are inconsistencies between the accused's alleged assertions and independent evidence. There was no "new law". As to the growing of a beard, although Sergeant Edwards said that the accused had no beard when he was arrested on 30 August, in the CCTV footage the man whom the Crown says is the accused does have a beard. The records of prisoner movements (Exhibits 6 and 10) are inconsistent with the accused going to court "tomorrow". These inconsistencies cast doubt on the accuracy of the officers' recall as to what was said. If the officers may be mistaken about what was said, they may also be mistaken about the speaker.

39 I think it very likely that the evidence of the officers was not only honest but also accurate. However, in the context of the special need for caution when considering identification evidence and for the particular reasons stated above, despite the two items of circumstantial evidence, I harbour a doubt both about the identity of the speaker and about precisely what was said.

40 In relation to each count in the indictment, there will be a verdict of not guilty.

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