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[2017] ACTSC 349
Supreme Court of the ACT
2017-11-21
Elkaim J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(i) The application dated 26 October 2017 is allowed.
(ii) The accused is found not guilty.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Verdict - Judge alone trial - aggravated robbery
CRIMINAL LAW - EVIDENCE - Judicial Discretion to admit or exclude Evidence - identification evidence - photo board - whether the probative value of the evidence outweighs its potential prejudicial effect
SCC 112 of 2017; SCC 113 of 2017; SCC 114 of 2017
1. The accused came before me for trial on 20 November 2017. The single charge on the indictment was that he committed aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT). He entered a plea of 'Not Guilty'.
2. The offence was alleged to have occurred on 26 December 2015 at the Red Hill Shops in the Australian Capital Territory. There is no doubt that an aggravated robbery occurred at this location, in the manner alleged by the complainant. Effectively, the only issue at trial was whether the offence was committed by the accused. Accordingly, the identification of the accused was the central issue.
3. The identification evidence was the subject of a pre-trial application, which I heard on the first day of the hearing. The application, dated 26 October 2017, was made by the accused. He sought an order that the evidence of the complainant relating to the identification of the accused be excluded. He submitted that the results of a photo board procedure should not be admitted into evidence.
4. I allowed the application and stated that I would give reasons in my final judgment.
5. The application was made pursuant to s 137 of the Evidence Act 2011 (ACT). This section states:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -
6. Subsection (a) was relied upon by the accused. The probative value of the evidence was challenged for four reasons:
(a) There was a significant lapse of time between the date of the offence, 26 December 2015, and the photo board identification, on 1 May 2016.
(b) The circumstances in which the initial perception occurred affected the probative value of the evidence.
(c) There was a "general indecision and lack of confidence of the complainant in making or attempting to make the identification" from the photo board.
(d) The array of photographs did not "accurately reflect the physical and other identifiable features described by the complainant of her assailant on 26 December 2015". In particular, the reference to the robber wearing a cap should have been reflected by the persons on the photo board also wearing caps.
7. The substance of the complaint was, therefore, that the probative value of the evidence was so weak that to allow it into evidence would inevitably result in it being unfairly prejudicial to the accused.
8. The application was supported by the affidavit of Ms Vogel, sworn on 26 October 2017. Notably, the affidavit annexes records of interview with the complainant before and during the photo board process. I was particularly concerned about the photo board process. I think it necessary to look at some of the questions and answers:
...
Q33. Okay. So do you agree that you've indicated photograph number nine in the photo board?
...
Q41 Can you state under what circumstance you have seen that person depicted as photograph number nine before?
...
Q46 Yep, you made eye contact, yeah.
...
Q50 Is this the person you described to police in your statement?
9. In my view, these questions and answers essentially demonstrate the complainant trying, no doubt to the best of her ability, to work out the photograph that was closest to her perception of the identity of her assailant. Added to this consideration are the following two questions and answers:
Q17. You must realise that the person who robbed you may not appear in the photo board, do you understand?
...
Q32. --- if you're happy to choose one, [who] would you go with? So ---
10. Notwithstanding the qualification given in question 17, there is, in my view, a suggestion in question 32, or perhaps at least an understanding based on the answer, that the complainant believed it was necessary to choose one of the photographs. Perhaps I am reading too much into the words "I would", but I think the danger that the complainant believed that she was practically obliged to choose a photograph was real. This is confirmed by the fact that the complainant appears to return to an evaluative process in her answer to question 33.
11. I also note that, consistent with this view, having apparently decided upon photograph nine, the complainant in her answers to questions 47 and 50 still seemed to be 'working out' photograph 9 as being the most appropriate.
12. I think there is also some merit in the accused's argument concerning the baseball cap, especially in light of the statement of Ms Hindmarch, who saw the person who was probably the robber, after the robbery (Exhibit C). When taken with the complainant's answers in the initial record of interview (Questions 21 and 22), if the person seen by the complainant was wearing a baseball cap, that would have had a possibly significant effect on her capacity to identify a person without a cap. Not only does a cap shade some features but it also totally blocks the view of a certain amount of a person's head. This is particularly relevant to the presence of, and style of, hair.
13. The reason that I have rejected the evidence is because of the 'evaluative process' that the complainant appears to undergo in reaching a decision as to the identification of the photograph of the accused. The effect of this process was, in my view, to render the photo board evidence of very little probative value. If admitted before a jury (including a judge sitting alone), its probative value would have the capacity to be significantly outweighed by its prejudicial potential. This is also to be tied in with what I would describe as the suggestion, perhaps subtle, that it was necessary for one of the persons in the photo board to be chosen.
14. Turning now to the balance of the trial, I note that the trial was conducted without a jury. It was conducted on a 'judge alone' basis, following an election by the accused made under s 68B of the Supreme Court Act 1933 (ACT).
15. Although perhaps not necessary because of the turn of events in this matter, I intend to give a short summary of the evidence that was called. I also note that it would have been necessary for me to remind myself of the legal principles that I would have applied.
16. These would have included that the prosecution must prove its case beyond reasonable doubt. An accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
17. Further, the prosecution does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
18. I would have reminded myself that the facts that I found must be based on the evidence; that is, the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I would have applied my common sense, doing so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.
19. The identification evidence relied upon by the Crown would have been approached with caution. Innocent people have been convicted on the basis of mistaken identification and it is necessary to pay close attention to the facts constituting the identification evidence.
20. I would also have reminded myself about the appropriate manner of drawing inferences and the principles to be applied in dealing with circumstantial evidence.
21. Turning now to the evidence that was called by the Crown. The first witness was Ms Lee. Although she was entitled to give evidence from a remote room, she requested that she give her evidence in the courtroom. I allowed her to do this.
22. Ms Lee was a patently honest witness. There were some inconsistencies between her evidence, her statement to police and the recorded interviews. For example, she said in her evidence that her assailant had black hair. In her record of interview, she said that she thought that he was wearing a baseball cap. Ms Lee immediately conceded that her recollection would have been more reliable at the time that she provided her statement to police.
23. On 26 December 2015, Ms Lee woke up with an upset stomach. She drove in search of a 24-hour pharmacy but the pharmacy she had in mind was closed. After obtaining $40 in cash from an ATM machine at a service station, she drove to the Red Hill shopping centre to await the opening of a pharmacy at 7:30am. She parked her Subaru Forester in the position that it can be seen in the photographs making up Exhibit 3.
24. After a few minutes, Ms Lee noticed a dark coloured four-wheel-drive vehicle had stopped behind her, effectively blocking her path. Its position can be seen in photographs 1 and 8 in Exhibit 3.
25. Ms Lee looked over her right shoulder through the driver's side front and rear windows and noticed the other vehicle had one occupant. He was in the driver's seat. He was dark and of "Aboriginal appearance". I note here that there is no evidence to suggest he is of Aboriginal heritage. Ms Lee said he had some stubble on his cheeks and black hair. He was wearing a black T-shirt. Ms Lee initially thought that his parking position might have been due to him being in a hurry. She looked at the other driver, for up to 10 seconds, on a number of occasions. At one stage, she saw him apparently looking for something in the back of his vehicle.
26. After some time, the driver emerged from his vehicle with a tea towel over his nose and cheeks. Ms Lee's description was reminiscent of a bandit in a 'Western movie'. He was wearing long shorts ending below the knee. He appeared to be holding something in his right hand. He approached the driver's door of the Subaru in a manner that suggested he was "jumpy and afraid". Mr Lee saw that the article in the man's hand was a small hatchet about 30 cm in length. By this time Ms Lee had become concerned.
27. The man was yelling for Ms Lee to hand over her wallet and perhaps also to get out of the car. She opened the door and gave him her wallet and then her mobile phone. He ordered her to lie on the ground which she did. He took her keys. Ms Lee, from her position face down on the ground, was able to see that he was looking through the vehicle.
28. The robber told her to stay where she was and he departed. She remained on the ground for a short period, fearful that he would return. She then went to the house of a friend nearby but the friend did not answer the door. She approached some passers-by who made a phone available for her to call the police. The police arrived soon afterwards and she provided a statement.
29. Ms Lee said that her telephone was not replaced for some weeks. She did not register a new phone that day. She was asked whether she has ever known the following persons: Ms Desmet, Ms Morales, Mr Chatfield, Ms Chatfield, Ms Chatfield, Ms Kennedy, Ms Davis and Mr Barlow. She said she had never known any of them.
30. Ms Lee's telephone had a tracking device which allowed her partner to identify it as having travelled to Bunnings and Queanbeyan later in the day.
31. Ms Lee's drivers licence was returned some time later, apparently by a Bunnings Store in western Sydney.
32. Under cross-examination, Ms Lee said that she thought the man had a thin physique, which she noticed after he had alighted from the vehicle. She did not think he was wearing gloves. She thought that he had touched the driver's side pocket of her Subaru.
33. I note here that no fingerprints or DNA were found linking the accused to Ms Lee's Subaru or to the vehicle allegedly stolen and used by the accused in the robbery (Exhibit 2). This vehicle can be seen in Exhibit 4.
34. The next witness was Ms Hindmarch. She lives in Chisholm. Sometime between 7:00 am and 8:30 am on 26 December 2015, she was standing in her front garden, cooling down after a run. She heard a loud noise and then saw a large vehicle coming down the road and travel on to the incorrect side of the road. It drove with one side on the gutter for about 30 metres and then stopped. Nobody emerged for about five minutes. A male then "jumped out" and went towards the Vikings Club. She indicated the direction of the club on photograph 6 in Exhibit 4.
35. Ms Hindmarch described the man she saw as having tanned skin, of small build, short stature and "fit". He was wearing a baseball style cap, shorts and a backpack. As I understood her evidence, she mostly saw the back of the man as he walked towards the club.
36. Without any disrespect to Ms Hindmarch, her observations could not be regarded as reliable. This may be explained by the almost two years that passed before she made a statement and perhaps also by her perception that any male under 6 foot in height was short. In addition, she based her assessment of the man's fitness on him being dressed in golfing attire. Ultimately there is very little in her evidence that assists the Crown.
37. Ms Scott was the next witness. In December 2015, she and her family were living in Sydney. They drove to Canberra on Christmas Day in their green Mitsubishi Pajero. They parked outside her sister's residence in Richardson leaving the car locked in the evening. It was missing the next morning.
38. The vehicle is the Mitsubishi that can be seen in Exhibit 4. It was reported stolen but later found by Ms Scott's husband who was searching the area. The police were informed and met Ms Scott on her street, where the vehicle was photographed and examined by a police forensic team.
39. Sometime later, the police asked Ms Scott if she would like a "bunny rug" that had belonged to her daughter returned to her. She declined. The rug broadly matches the description of the tea towel that Ms Lee had described as being worn over the face of her assailant. It had been found by the police on the front seat of the Mitsubishi. Testing of the rug was not productive (Statements of Mr Onarto and Ms Stone in Exhibit 2).
40. Ms Scott said that when the vehicle was returned to her she noticed that the driver's seat had been moved forward. It had last been driven by her husband who was 6 foot tall. There was also a body odour prevalent in the vehicle. The latter observation was of no relevance.
41. Based on the Crown's opening, it was anticipated that a number of witnesses would be called to establish that Ms Lee's driver's licence had been used to register a mobile phone shortly after the robbery. It was then to be the Crown case that the accused, using this telephone, made a number of calls to persons closely associated with him. They included his girlfriend. This person and other witnesses were to be called to establish the receipt of calls from the accused on the telephone registered with the stolen licence.
42. Before the conclusion of the first day of hearing, the Crown sought an adjournment to the following day because the contemplated witnesses were not available. Enquiries were to be made as to their whereabouts.
43. When the matter commenced this morning, the Crown informed me that it would call no further evidence and conceded that on the evidence available it could not prove its case. The Crown clearly appreciated that identification of the accused could not be made through the evidence of the witnesses that it had called. I can only assume that it did not believe its position would be advanced by the calling of any further evidence, assuming that further evidence was actually available.
44. The position taken by the Crown is a proper recognition that its evidence fell short of the evidence necessary to prove the accused's guilt beyond a reasonable doubt. I should add that, absent any evidence relating to the telephone registered using the stolen licence, the photo board evidence, had it been included, is unlikely to have assisted the Crown to the degree necessary for it to have proved its case.
45. I make the following order: The accused is found Not Guilty.
I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
R
Sampson [2017] ACTSC 349