New South Wales Court of Criminal Appeal CITATION : Regina v Ross Magoulias [2003] NSWCCA 143 HEARING DATE(S) : 28/04/03 JUDGMENT DATE : 26 May 2003 JUDGMENT OF : Ipp JA at 1; Buddin J at 2; Smart AJ at 3 DECISION : Appeal dismissed CATCHWORDS : Detain with intent to carnally know - visual identification evidence unsatisfactory - strong circumstantial case - non-synchronisation of timing devices - common knowledge - ss 144 & 146 of Evidence Act 1995 LEGISLATION CITED : Evidence Act 1995 PARTIES : Regina v Ross Magoulias FILE NUMBER(S) : CCA 60505/02 COUNSEL : (A) M Buscombe (C) D C Frearson SOLICITORS : (A) Xenos Jordan (C) S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0406 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60505/02 IPP JA BUDDIN J SMART AJ Monday, 26 May 2003 REGINA v ROSS MAGOULIAS Judgment 1. IPP JA: I agree with Smart AJ. 2. BUDDIN J: I agree with Smart AJ. 3. SMART AJ: Ross Magoulias appeals against his convictions, following the jury's verdict of guilty, that on 7 July 2001 at Waterloo he did: (1) by force detain KB against her will, with intent to carnally know her. (s.89 of Crimes Act 1900) (2) assault KB and immediately after the assault committed an act of indecency on her, namely he put his hand down her pants (s.61L of Crimes Act). (3) maliciously inflict actual bodily harm on KB with intent to have sexual intercourse with her (s.61K(a)) of Crimes Act). 4. The judge sentenced the appellant on each count. The total effective sentence was one of 3½ years with a non-parole period of 2 years. There is no application for leave to appeal against sentence. 5. The appellant challenges his conviction on two bases, first, the judge erred in not directing the jury at the end of the Crown case to acquit him of all counts and, secondly, the verdicts were unreasonable or cannot be supported having regard to the evidence. As part of his first ground the appellant relied on s.146 of the Evidence Act 1995 which enshrines the presumption of regularity as to documents produced by a recording process and s.144 which deals with proof of matters of common knowledge. 6. There was no issue in the trial that KB was detained and assaulted. The issue was whether the appellant was the offender. The Crown case was a circumstantial one. There was no "identification evidence" which identified the appellant as the offender nor were there any admissions by him. He did not undergo a recorded interview with the police. Nor did he give evidence before the jury. The Crown relied amongst other things on the car allegedly used and the video and ATM records at a service station where the car carrying KB stopped. 7. The Crown Case KB, aged 31, gave evidence that about 6.00-6.30 pm on 7 July 2001 she was walking down Forbes Street from Oxford Street in Darlinghurst. A "blue to silver coloured car, Ford, Holden, four door sedan pulled up." The car was said to be an "older model". A man of "Mediterranean descent leaned over and asked her if she "was working." She indicated that she was. In response to his question she said that she did "oral sex with a condom for $50." (She could not quite see his face). He said, "Yes, that's fine" so she opened the door and got into the car. It was quite dark inside the car. He explained that he needed to go to the bank and get some money. At her suggestion he drove to the National Bank in Victoria Street which was just around the corner. He walked to the bank and then returned to the car explaining that the bank was closed. She estimated that he was 175 centimetres in height and that he was about her age, or perhaps a little older. He drove along South Dowling Street towards the airport, turned right into Cleveland Street and took the "first left" into a petrol station. On that journey he told her that he was Greek. She thought he spoke good English, without much of an accent. She touched his hair which she described as "very tight, woolly, very sort of dense kind of hair" and "quite short." She said that his hair was Afro-like. He was looking straight ahead. There was a slight amount of facial regrowth hair. She was not sure but thought the petrol station could have been a BP service station of some sort. It was, in fact, the Mobil Service Station situated at 475 Cleveland Street. 8. The car was parked away from the bowsers but "pretty much near the entrance" to the service station building. She mentioned that she needed to go to the toilet so they both got out of the car. She went first and walked up to the counter and asked the attendant where the toilets were. He gave her the key to the toilets and pointed to where they were. She could feel the driver of the car walking behind her but she did not turn around. She went to the toilet and then returned the key to the attendant at the counter. The driver was waiting outside the service station building near the entrance doors. She walked out of the building and they both got back into the car. She said that the driver was wearing a blue and white striped jersey and grey tracksuit pants. 9. She put her hand into her handbag and pulled out a condom and put it on the dashboard and said, "You do realise that this is French and French only, for $50?" The driver said "Yes." She asked to see the $50. He opened his wallet and she saw a $50 note. The driver drove into Bourke Street. She became anxious that they were going too far down Bourke Street. She told him that she "wasn't into it" if they went any further. He told her it was just around the corner and he pulled into a street, which she later learnt was Lachlan Street. That street is in Waterloo. She said, "Where are we going to? Stop the car." He hit her on the side of her face with the back of his hand and said, "Shut up bitch." 10. He drove towards the end of an alleyway, he grabbed at her belt and ripped open the buttons on her pants. He put his hand down her pants, reaching the top of her pubic hair. She was not wearing underclothes. He said "I am going to rape you and kill you, you bitch. Get into the back seat." KB replied, "Can't we be reasonable about this? Why are you doing this?" He said, "Shut up and just get into the back seat." She said there was a struggle as he tried to get her into the back seat. He grabbed her hair with his hand and physically tried to push her into the back seat and pull her there by her hair. He hit the right side of her face again, using his fist, and said, "Just get into the back seat, you bitch." She refused. She said that she ended up with a slight golf ball on the side of her head. 11. KB said that he switched off the headlights of the car. He got out of the car and rummaged around close to the nearby warehouse. He picked up a thick object about half a metre in length. The area was very dark. She was afraid of what he might do. She grabbed her handbag, got out of the car and ran. She felt a "huge whack" to the rear left hand side of her head. She nearly blacked out and felt quite faint but made her legs run. 12. She ran into a nearby park. She heard the engine of the car start up and the car backed up the street or alleyway. Eventually she ran out onto a busy street in front of a car, making it stop. She told the lady in the car that she had been attacked. The lady drove her to outside the house of the lady's brother, where it was noticed she was bleeding. The police were called and KB was taken to St Vincent's Hospital where she was treated. Two uniformed police officers came and spoke to her at the hospital. She told them some of what had happened. She could not remember what she said to them, she was very confused. She could not remember if they made notes. 13. KB said that the offender's car had a black dash and the radio had been ripped out of its position. The wires were hanging out. She said that the seat cover on the front seats was a square print, with different shades of blue and with some black. 14. On 12 July 2001 KB went to Redfern Police Station and made a statement. On 27 September 2001 she again went to that police station. She was shown about 20 photographs of males. As she was looking at them a video recording was made. That recording was played to the jury. In it she identified a man whom she believed was the driver of the car in the video. In cross-examination KB agreed that she told the police officers at the hospital, "It was an old blue Ford, may be ten years old. It might have been a Falcon or Telstar." She explained that she did not know cars. She agreed that in her statement of 12 July 2001 she said that the driver was wearing a navy blue football jersey. She claimed that she did mention to the police officer composing the statement that the jersey was striped. 15. KB also agreed that she said: "We drove into the first service station on the left hand side of the road. He got out of the car really quickly and went straight inside to the teller machine. I got out of the passenger side of the car and went and got the key to the toilet from the attendant and then I went to the bathroom. We both then got back into the car." She asserted that she was not intending to suggest that he went into the service station building ahead of her. It was then put to KB that she told the police at the hospital - "… we stopped at a service station where he told me he could get money from easily. Anyway when he was out of the car, I got a condom out of my bag and put it on the dash so that he knew I only did French. I went to the bathroom and washed my hands so I was clean and all that." She said she could not remember what she said to the uniform police as she was in a shocked state. 16. Constable Doherty gave evidence to the effect that KB used the words quoted. Constable Doherty related quite a lengthy conversation with KB in which she outlined what the driver of the vehicle had done to her. There were differences between what she said to Constable Doherty and her evidence but the essence of what she told the police and her evidence substantially corresponded. KB made a prompt complaint. Constable Doherty said that he made his notes of the conversation very shortly after it took place. He did not ask KB to sign the notebook. He said, "She was very upset, a bit all over the place." 17. The video recording of the photo identification parade on 27 September 2000 reveals that KB was shown 20 photographs and asked to indicate to Detective Yannakis if she could identify any person. She was told to take her time and go through the photographs one by one. She said that it was very hard because he was looking straight ahead all the time. She said "I think its that one (indicating number 7). (Photograph No 7 was of a man other than the appellant). She relied substantially on his hair, with the qualities earlier described, his Greek orientation, the eyes 'sort of', his smallish head. She said, "He wasn't so rounded in the face nor elongated, so if they were in all the right proportions I would say its him but I can't be quite sure." 18. She went through other photographs and put them aside. She came back to photograph 7 and said, "I think it's him, pretty sure but I don't know." She commented "I didn't get to see his face that much, I don't know, it's been a long time." She added, "If you had got me fresh off I would have (snaps fingers); it's been months." She again went through the photograph, putting aside those which were of persons who definitely did not attack her. She returned to a group of six photographs, one of which was the appellant. She touched the photograph of the appellant and said, "It's definitely not him. Remember he was looking straight ahead." When Det Yannakis remarked that she had narrowed it down to six photographs KB remarked, "I am going to narrow it down again because I can tell his hair was really tight, curly like that." (pointing to photograph number 7). She described the person in photograph number 7 thus, "which I think is the suspect." She further described the offender as having a small build and a smallish face and again placed weight on his "really tight … Afro curly kind of hair." 19. She eliminated the photograph of another man. As to the photograph of the appellant she said, "I think I will eliminate him because his hair looks too fine and I don't think his lips were that thick and he wasn't that big." She eliminated some other photographs, and returned to photograph number 7, stating, "I will have to say him." KB remarked, "This was left too long." She commented that the offender never looked her in the face. She repeated that the offender had a "smallish build, roundish face, smaller head." She added, "And that's the only reason I could think that it's him cause of the hair and the texture." 20. She again reiterated the difficulties of identification because of the darkness and the offender never looking at her in the face. KB said that she was about 80 per cent sure that the person in photograph 7 was the offender. 21. At the trial there was a major challenge to the credibility of KB. This was based on her evasive and sometimes contradictory answers in her evidence, and inconsistencies between what she had earlier said to the police and her evidence. There was also a major challenge to her contention that she had not had an opportunity to observe the offender's face in a good light. 22. Constable Doherty stated that there was lighting around the service station at the entrance and fairly bright fluorescent lights around the service station generally. 23. Mr R Khan was the console operator at the Mobile Service Station at 475 Cleveland Street, Moore Park on the evening of 7 July 2001. He said that the area inside the service station building and that immediately outside were reasonably well lit. The parking lot was also lit. 24. Mr Khan handed the police the video taken at the service station of people movements. The video tape showed KB getting the key to the toilet. She identified herself and the man in the right hand corner as being the man she was with in the car. 25. There was a time recording device attached to the video tape and it revealed: 18.37.18 KB first appears 18.37.20 a man appears and walks over to where the ATM machine is located inside the service station building; someone else is using the ATM machine and the man has to wait. 18.37.26 KB takes the key from the attendant and heads towards the toilet. 18.39.42 the man returns from the ATM, hesitates, and looks around – appears to be putting money in his wallet and walks towards the exit of the service station building. 18.40.25 KB drops the key back on the attendant's desk and walks toward the exit. The video tape further shows: 18.37.10 a woman goes to ATM 18.37.20 a grey haired or blond man goes to ATM 18.37.22 offender goes to ATM and waits in line 18.38.00 woman walks off 18.38.55 grey haired or blond man leaves ATM 18.38.58 offender gets to ATM 18.39.30 offender walks away from ATM but returns briefly 18.39.44 offender stands looking around and puts money into wallet 18.40.00 offender exits the service station building. These summaries overlap but the position is clear. 26. The auto bank card holder bill for the Commonwealth Bank ATM at the service station details twelve customers who used the machine between 6 pm and 7 pm on 7 July 2001. More particularly they show: 18.32.16 Andreas Setiawan accesses ATM and withdraws $50 18.39.27 A person other than the appellant accesses ATM and withdraws $100 18.40.13 A person other than the appellant accesses ATM and withdraws $500 18.40.59 Appellant accesses ATM and withdraws $50 18.43.33 Andreas Setiawan accesses ATM and withdraws $50. 27. Ms D Mills, a Compliance Officer with the Commonwealth Bank produced a record of the appellant's debit card history. That document indicated that a card with a specified number in the appellant's name was used at 18:40:59 on 7 July 2001. Ms Mills gave evidence that debit card accounts are accessed via a pin number. The account opening record showed the name and address of the appellant, date of birth and that he had sole access to the account. The chance of someone else operating the appellant's account was remote as that other person would have needed to know the appellant's pin number and have his card. 28. Andreas Setiawan was aged 20 years. His transactions were eleven minutes apart. It is highly improbable, if not impossible that in the space of eleven minutes after withdrawing the first $50 he could have traversed the numerous traffic lights, navigated through the traffic, collected KB, stopped at the ATM in Victoria Street and travelled back to the service station in Cleveland Street. 29. It is apparent that the timing devices on the service station video and the ATM machine were not synchronised. If the withdrawals by the appellant of $50 took place at 18.40.59 he could not have left the service station building at 18.40.00. The jury were entitled to use their common knowledge that timing devices frequently vary by small periods unless they are synchronised. One would not have expected the timing devices on the video machine and the ATM machine to be synchronised. 30. The statement of Michael Magoulias, the appellant's brother, was read to the jury by consent. It asserted that in July 2001 when his brother's green coloured Holden VK Commodore was broken into, the radio was stolen from the car. Further, at one stage, the seat covers were black and white leopard skin pattern but the appellant had changed them over a few times. 31. Appeal Ground 1 reads: "The trial judge erred in not directing the jury, at the end of the Crown case, to acquit the accused." 32. At the close of the Crown case the appellant asked the judge to direct the jury to enter verdicts of not guilty on all counts on the following basis KB had not only failed to identify the appellant as her assailant but had positively excluded him when she went through the photographs on 27 September 2001. The evidence from the video at the Mobil Service Station and the banking evidence did not support the inference that the person who assaulted the complainant withdrew $50 from the appellant's account and should be inferred to have been the appellant . The facial features of that person could not be identified on the video. The time recorded on the video as that when the person, whom the complainant said was the person who had assaulted her left the service station, was prior to the time recorded by the Commonwealth Bank ATM machine as the time of the withdrawal of $50 from the appellant's account. The inference which the Crown sought to draw from that transaction, namely, that it was the appellant who operated the account at the time that the complainant was in the service station did not arise on the evidence, in the absence of the Crown calling evidence to explain the time difference. Between 6.00pm and 6.50pm there were three withdrawals of $50 from that ATM which were not drawn on the appellant's account. It was around that time that KB was at the service station. 33. The judge after noting the time frames shown on the service station video tape and on the ATM records differed said: "There is a discrepancy between those two times but they are of such small magnitude … that the jury would be entitled to use their commonsense in appreciating that different timing mechanisms are not necessarily in synchronisation with each other. This disparity is not so great that this should be held … to be a basis upon which the trial should be taken away from the jury." 34. The judge regarded the problems arising from the identification evidence as more substantial. He held: "…within the Crown case, there is on one side the rejection of the accused's photograph which, if it were the only evidence in the trial, must necessarily mean the matter is taken away from the jury. But on the other side a combination of circumstances being the correlation of the complainant's evidence with the withdrawal of fifty dollars on the accused's Commonwealth Bank card from the ATM located inside the service station and her description of a motor vehicle from which the radio was missing and that evidence being consistent with the evidence of the accused's brother that the car owned by the accused had its radio stolen from it." 35. The appellant submitted that the judge erred in rejecting the argument concerning the significance of the time discrepancies. 36. The appellant relied on s.146 of the Evidence Act 1995 which provides: "(1) This section applies to a document or thing: (a) that is produced wholly or partly by a device or process, and (b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome (2) It is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome" 37. The appellant submitted that the video tape from the service station produced by the video recorder is a thing produced by a recording process which included the recording of the time when the images were recorded. The appellant further submitted that the Crown tendered the video at the Mobile Service Station on the evening in question and to some degree relied upon the time recorded in the video in doing so. It was contended that s.146(2) of the Evidence Act 1995 applies a presumption that the video and its timing device (or clock) operated accurately and that there was no evidence to suggest otherwise. It was pointed out that the presumption of accuracy applied to clocks at common law: Gorham v Brice 18 TLR 424; Nicholas v Penny [1950] 2 KB 466. Similarly, there was no evidence to suggest that the timing device (or clock) used by the Commonwealth Bank in its ATM machine was not accurate. 38. The appellant contended that in these circumstances the effect of the application of the presumption in s.146 of the Evidence Act 1995 was that the unchallenged evidence was that the person who assaulted KB had left the Mobil Service Station prior to the withdrawal of $50 from Magoulias' account. 39. The appellant complained that the judge had, in effect taken "judicial notice" that the video clock and the ATM were not synchronised. This was based on the judge's view that it was common knowledge that clocks were not necessarily in synchronisation with each other. The appellant relied on s.144 of the Evidence Act 1995 which provides: "(1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned (2) The juge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced." 40. The appellant submitted that the issue was not whether clocks sometimes are not synchronised but why there was a difference between the clock in the video recorder and that of the ATM. There was no "common knowledge" about that discrepancy. It was further submitted that that was a matter about which evidence ought to have been called by the Crown if it was going to dispute the accuracy of the time recorder on the video in a way which rebutted the presumption of accuracy. The police took possession of the video tape on the night of the assault and while it called the console operator it did not lead any evidence from him as to the accuracy of the video clock. It would be surprising if a console operator could give evidence of that kind. 41. The appellant's elaborate submissions must be ejected. It is a notorious matter of fact that reliable clocks or timing devices may show slightly different times. A clock may gain or lose ever so slightly and it may be some days before the difference becomes noticeable. When setting a clock or timing device there might be a very small error. Perhaps the clock from which the timing device is set is slightly astray. It is exceedingly well known that the timing of differing clocks needs to be synchronised if pinpoint accuracy is required. It is beyond argument that both KB and the appellant attended the service station on 7 July 2001. She can be seen on the video tape for about three minutes (18.37.18 to 18.40.25 according to the video tape timing device). That cannot be disputed. Nor can it be disputed that the appellant attended at the ATM and withdrew $50 (18.40.59 according to the ATM timing device). As earlier pointed out there was no direct evidence available to the jury that the timing mechanisms were not synchronised. If there had been the video tape would have recorded a person (the appellant) withdrawing $50 from the appellant's account at 18.40.59 (bank record time). The video does not show anybody near the ATM at that time. Thus there was no room for any presumption to operate in any useful way. 42. This is not the occasion for a detailed discussion as to the operation of ss.144 and 146 of the Evidence Act, 1995 in view of the direct evidence available which provided compelling evidence of the appellant's guilt. In view of the video tape and ATM records the visual identification evidence could safely be disregarded. Photo identification some 2½ months after the events was not in this case, having regard to KB's evidence, of value. This was a simple and straightforward case. 43. Ground 1 must be rejected. 44. Appeal Ground 2 reads: "The jury's verdicts were unreasonable or cannot be supported having regard to the evidence." 45. The appellant relied upon the following: (a) KB had positively excluded the photograph of the appellant and had chosen the photograph of another person as being her assailant. There was no evidence as to the whereabouts of that other person on the evening of 7 July 2001. (b) The service station video tape did not permit identification of the assailant. The clothing on the male person in the video said to be the assailant did not match the description provided by KB. (c) The service station video tape established that the person KB claimed had assaulted her had left the service station over a minute prior to the withdrawal of $50 from the appellant's account. The banking records indicated that there were three withdrawals of $50 from accounts other than the appellant's account between 6pm and 6.50pm, being the likely range of time. The other account holders were not excluded from the range of suspects. (d) the description initially given to police by KB of the vehicle in which she became a passenger did not match the car owned by the appellant. She said it was a blue coloured Ford and nominated possible models. He owned a green coloured Holden Commodore. The only significant matching description was the missing radio. The appellant's brother did not support the seat cover description supplied by KB. 46. The appellant submitted that there was another rational explanation available on the evidence, namely, that the assailant was one of the other persons who withdrew $50 from the ATM at the service station. The appellant further submitted that this was not a case in which the jury enjoyed any significant advantage in assessing the evidence. 47. It is erroneous to select a time period as broad as 6pm to 6.50pm. The correct period to consider is that between 6.30pm and 6.45pm. In that period there were only three withdrawals of $50 – Two of these were by Andreas Setiawan, some 11 minutes apart. Between his first withdrawal at 18.32.16 and his later withdrawal at 18.43.33 he could not have driven from the service station to Forbes Street, picked up KB, stopped at the ATM in Victoria Street and returned to the service station. This means that there was but one relevant withdrawal, namely, that of the appellant. I have earlier dealt with the obvious differences between the two time devices and their lack of synchronisation. The differences in the description of the vehicle were not of consequence. KB explained that she was not knowledgeable about cars. The visual identification evidence favoured the appellant but it was tentative and unsatisfactory. It did not give rise to a reasonable doubt. The difficulty which the appellant faces is that there was no other rational explanation available. When correctly assessed the video tape and banking records, taken in conjunction with KB's evidence and the missing radio, pointed conclusively to the guilt of the appellant of the offences charged. 48. I entertain no doubt about the guilt of the appellant. No jury, acting reasonably, should have entertained a doubt about such guilt. It was reasonably open to a jury acting reasonably to be satisfied beyond reasonable doubt of the guilt of the appellant of the offences charged. 49. I propose that the appeal be dismissed. ********** Last Modified: 05/27/2003 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.