Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Slater v R [2015] NSWCCA 310 Hearing dates: 16 November 2015 Date of orders: 16 November 2015 Decision date: 08 December 2015 Before: Johnson J at [1] Beech-Jones J at [44] R S Hulme AJ at [47] Decision: (1) To the extent it is required, leave is granted to appeal against conviction. (2) The appeal against conviction on Counts 2 to 8 is allowed. (3) The convictions and sentences on Counts 2 to 8 are quashed. (4) Verdicts of acquittal are entered on each of Counts 2 to 8. Catchwords: CRIMINAL LAW – appeal against convictions – Appellant convicted of a number of property offences – Crown case based entirely on CCTV footage – jury invited to compare person depicted in CCTV footage with photographs of Appellant – significant difficulties with quality of CCTV evidence – Crown concedes errors in trial and that verdicts were unreasonable – Court holds that verdicts were unreasonable and not supported by the evidence – appeal allowed, verdicts and sentences quashed and verdicts of acquittal entered Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: M v The Queen [1994] HCA 63; 181 CLR 487 Pitkin v The Queen [1995] HCA 30; 80 A Crim R 302 R v Harker [2004] NSWCCA 427 SKA v The Queen [2011] HCA 13; 243 CLR 400 Smith v The Queen [2001] HCA 50; 206 CLR 650 Texts Cited: --- Category: Principal judgment Parties: Richard James Slater (Appellant) Regina (Respondent) Representation: Counsel: Ms HL Cox (Appellant) Mr E Balodis (Respondent) Solicitors: Aboriginal Legal Service (NSW/ACT Limited (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/51339 Publication restriction: --- Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 28 May 2014 Before: Maiden SC DCJ File Number(s): 2013/51339 Judgment 1. JOHNSON J: The Appellant, Richard James Slater, was convicted following a trial before his Honour Judge Maiden SC and a jury at the Newcastle District Court of offences of aggravated break, enter and steal under s.112(2) Crimes Act 1900 (Count 2), being carried in a conveyance knowing it to have been taken without the owner's consent contrary to s.154A(1)(b) Crimes Act 1900 (Count 3) and five counts of obtaining property by deception contrary to s.192E(1)(a) Crimes Act 1900 (Counts 4-8). Count 1, on which the Appellant was acquitted, was another allegation of aggravated breaking, entering and stealing. 2. The Appellant was sentenced to terms of imprisonment for these offences. 3. In written submissions provided to the Court for the purpose of the appeal, the Crown acknowledged that a number of errors and deficiencies were apparent from the trial. At the hearing of the appeal on 16 November 2015, the Crown joined with counsel for the Appellant in submitting that the appropriate course was to quash the convictions and enter verdicts of acquittal on each count. 4. The Crown's approach to the appeal was both fair and appropriate. The Court was satisfied that it should make orders as proposed by the parties. At the conclusion of the hearing, the Court made the following orders: 1. (1) To the extent it is required, leave is granted to appeal against conviction. 2. (2) The appeal against conviction on Counts 2 to 8 is allowed. 3. (3) The convictions and sentences on Counts 2 to 8 are quashed. 4. (4) Verdicts of acquittal are entered on each of Counts 2 to 8. 1. The Court indicated that it would provide reasons for these orders at a later time. What follows constitutes my reasons for joining in these orders. The Crown Case Against the Appellant 1. The Crown alleged that, on the evening of 4 November 2012, the Appellant broke and entered the home of a family at Merewether and stole a wallet and handbag. It was alleged that the Appellant and another male drove away in a silver motor vehicle owned by the occupants of that house. The Appellant was found not guilty by the jury of the s.112(2) Crimes Act 1900 charge relating to these premises (Count 1). 2. In the early hours of 5 November 2012, a silver vehicle was used in a break and enter at an adult store at Sandgate and a quantity of synthetic drugs, some batteries and $1,000.00 in cash was stolen (Count 2). CCTV footage obtained from that store showed three offenders with covered faces getting out of the vehicle (Count 3). At one point during the CCTV footage, one of the men whom the Crown alleged at trial was the Appellant, returned to the vehicle, then exited with his face uncovered. 3. Later on 5 November 2012, a credit card stolen from the wallet taken from the Merewether house was used to make four withdrawals from an ATM located at a hotel in Newcastle West. CCTV footage from that ATM showed three men at and around the vicinity of the ATM. One of the men, whom the Crown alleged at trial was the Appellant, was seen in the CCTV footage apparently using the hotel ATM for a period of approximately eight minutes (Counts 4, 5, 6 and 7). 4. Later, still on 5 November 2012, the same credit card was used to purchase goods from a supermarket in Newcastle West. CCTV footage from the supermarket showed three men of similar appearance to the men seen in the hotel ATM footage conducting three separate transactions at the Coles Service Counter (Count 8). 5. It is not necessary to set out in any further detail, the Crown case against the Appellant. Some further factual aspects will be touched upon when considering the grounds of appeal. The Grounds of Appeal 1. The Appellant relied upon on a number of grounds of appeal: 1. Ground 1 - his Honour erred in failing to exclude evidence of CCTV footage and photographs of the commission of the aggravated break, enter and steal from the adult store on 5 November 2012 (Count 2). 2. Ground 2 - his Honour failed to give reasons for allowing the evidence of CCTV footage and photographs of the commission of the aggravated break, enter and steal from the adult store on 5 November 2012 (Count 2). 3. Ground 3 - his Honour failed to give any, or any adequate warnings to the jury as to the need to exercise caution in comparing the photographs of the Appellant to the person depicted in the CCTV footage and photographs of the commission of the aggravated break, enter and steal offence on the adult store on 5 November 2012 (Count 2). 4. Ground 4 - the verdicts with respect to Counts 2 and 3 should be set aside on the ground that they are unreasonable and cannot be supported having regard to the evidence. 5. Ground 5 - his Honour erred in failing to exclude evidence of CCTV footage and photographs taken from the hotel ATM at Newcastle West on 5 November 2012 (Counts 4, 5, 6 and 7). 6. Ground 6 - his Honour erred in failing to exclude evidence of CCTV footage and photographs taken at the supermarket at Newcastle West on 5 November 2012 (Count 8). 7. Ground 7 - his Honour failed to give reasons for allowing the evidence of CCTV footage and photographs from the hotel ATM on 5 November 2012 (Counts 4, 5, 6 and 7) and CCTV footage and photographs taken at the supermarket on 5 November 2012 (Count 8). 8. Ground 8 - his Honour failed to give any, or any adequate warnings to the jury as to the need to exercise caution in comparing the photographs of the Appellant to the person depicted in the CCTV footage and photographs taken at the hotel ATM on 5 November 2012 (Counts 4, 5, 6 and 7) and the CCTV footage and photographs from the supermarket on 5 November 2012 (Count 8). 9. Ground 9 - his Honour was in error in finding that there was a case to answer in respect of Counts 4, 5, 6, 7 and 8. In the alternative, the verdicts of the jury should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence. 10. Ground 10 - his Honour erred in prohibiting the jury from comparing the Appellant with the images of the offender (all counts). 1. As the outcome with respect to a number of these grounds is determinative and leads to the quashing of the convictions and acquittal of the Appellant, it will not be necessary to address in any detail all of the grounds of appeal. Ground 4 - Verdicts on Counts 2 and 3 Were Unreasonable and Not Supported by the Evidence 1. It is appropriate to commence with this ground of appeal, which the Crown conceded had been made good. It remains necessary for the Court to satisfy itself that the ground has been established, although the Crown's considered position is of great assistance to the Court. 2. The Crown case was that heavily disguised offenders, one of whom was the Appellant, attended the adult store at Sandgate in the early hours of 5 November 2012, driving the silver motor vehicle which had been stolen from the Merewether premises the previous evening. Three males got out of the vehicle and tried to push open the front door of the store. Entry was gained by reversing the vehicle into the door several times. The fourth attempt resulted in the vehicle gaining entry. The offenders stole the items referred to at [7] above. 3. The evidence relied upon by the Crown to establish the involvement of the Appellant was approximately four seconds of CCTV footage, wherein one of the offenders was seen without his mask. From this footage, two still photographs were extracted. 4. In support of Count 3, the Crown relied upon the evidence concerning Count 2. The Crown alleged that the person seen in the CCTV footage and the still photographs was the Appellant, and that the motor vehicle was the silver motor vehicle stolen from the Merewether house some hours earlier. 5. Ms Cox, counsel for the Appellant, submitted that there were a number of significant difficulties with this CCTV footage at the adult store, and the still photographs extracted from it. The Crown agreed that these criticisms were valid. 6. According to the stilted CCTV footage, the three offenders (somewhat improbably) appeared to be wearing matching pink/lilac outfits, an indicator of colour distortion in the footage. The colours of clothing on the same people appeared differently later in the footage. It was accepted, in this Court, that distortions of this type would affect the reliability of the images of events at night time, including the depiction of facial features. 7. The CCTV footage was blurry and indistinct. The image of the face (said to be the Appellant) suggested a pale skin colour, with eye colour not able to be determined. The face appeared long and thin and oval shaped, rather than round. These features were not consistent with the photographs of the Appellant taken upon his arrest on 21 November 2012, which the jury were asked to compare with the CCTV footage. In the arrest photographs, the Appellant's skin is brown and was described as being of "Aboriginal appearance". There were differences between the face depicted in the CCTV footage and in the arrest photographs. 8. For the purpose of considering this ground of appeal, the Court has examined the relevant photographs. This examination confirms the criticisms made by counsel for the Appellant, which were accepted by the Crown. 9. The Crown submitted that the face of the man on the CCTV footage, in some respects, looked like the Appellant. That said, the Crown acknowledged that a vague similarity of that type could not suffice to support the conviction: Pitkin v The Queen [1995] HCA 30; 80 A Crim R 302. The Crown acknowledged that the face of the man in the CCTV footage appeared thinner than the Appellant and was not obviously Aboriginal. 10. With respect to Count 3, the Crown acknowledged that the registration number of the silver motor vehicle was not visible in the CCTV footage. The Crown acknowledged that the time gap between the taking of the silver motor vehicle from the Merewether house and the aggravated break, enter and steal at the adult store in Sandgate was not sufficient proof that the silver motor vehicle in the CCTV footage was the vehicle stolen the previous evening. The Crown accepted that there was no evidence that the motor vehicle depicted in this CCTV footage was the stolen motor vehicle. 11. The Crown case with respect to Counts 2 and 3 relied upon flawed CCTV footage and still photographs extracted from it. At its highest, that footage did not support a conviction of the Appellant upon Counts 2 and 3. The relevant principles may be found in M v The Queen [1994] HCA 63; 181 CLR 487 and SKA v The Queen [2011] HCA 13; 243 CLR 400. I observe that the jury, in this case, was in no better position than this Court to consider the evidence, which was in the form of photographic evidence. I am satisfied that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the Appellant on Counts 2 and 3. The verdicts of guilty on Counts 2 and 3 were unreasonable and cannot be supported by the evidence for the purpose of s.6(1) Criminal Appeal Act 1912. 12. In light of this conclusion, it is appropriate to quash each conviction and enter a verdict of acquittal on each count. Grounds 1, 2, 3 and 10 - Other Suggested Errors Concerning Counts 2 and 3 1. In view of the conclusion reached with respect to Ground 4, it is not necessary to determine each of these grounds of appeal. It is sufficient to observe that there were a number of troubling features surrounding the approach taken by the trial Judge to the admission of the CCTV footage and directions given to the jury on that topic. 2. Having determined to admit the CCTV footage and photographs taken at the adult store, the trial Judge indicated that he would provide reasons later for that decision and that he would give the jury a direction as well on that topic at a later time (T5, 5 March 2014 - AB117). 3. Regrettably, his Honour did not provide reasons for this decision during or after the trial. Evidence before this Court indicates that efforts were made by the Crown to contact the trial Judge in late October 2015 seeking his Honour's reasons for this decision. His Honour's Associate responded on 12 November 2015 stating that "His Honour no longer has a memory of giving his reasons and no longer has his notes in the matter". 4. As the parties to this appeal submitted, the trial Judge was obliged to give reasons for the admission of this evidence and his failure to give reasons constituted error: R v Harker [2004] NSWCCA 427 at [58]-[61]. 5. Although his Honour indicated that directions would be given to the jury with respect to the CCTV footage referable to Counts 2 and 3, the direction ultimately given to the jury was that they should only compare the CCTV footage (and still photographs extracted from it) with the photographs of the Appellant following his arrest on 21 November 2012. The jury was prohibited from comparing the photographs with the Appellant who had been sitting in court throughout the trial (Ground 10). 6. Both parties submitted to this Court that this course was erroneous. No principle of law confined the jury to a comparison of the two sets of photographic images only. It was open to the jury, as judges of the fact, to take into account their own observations of the Appellant in court, to the extent that that may assist the resolution of this factual issue: Smith v The Queen [2001] HCA 50; 206 CLR 650 at 654-655 [9]-[11]. 7. That said, it was not submitted in this Court that an examination of the Appellant by the jury in court would have assisted the Crown case in any way. Indeed, the contrary seems to be the position. 8. The matters complained of in Grounds 2, 3 and 10 have force. If Ground 4 had not been established, these grounds of appeal would themselves have warranted the intervention of this Court. Ground 9 - No Case to Answer or Unreasonable Verdicts on Counts 4, 5, 6, 7 and 8 1. The Crown case on Counts 4, 5, 6 and 7 was based upon CCTV footage showing three men at and around the vicinity of the hotel ATM at a particular time. One of the men, whom the Crown alleged at trial was the Appellant, is seen in the CCTV footage apparently using the hotel ATM for a period of about eight minutes. 2. With respect to Count 8, the Crown case was based upon CCTV footage from the supermarket which showed three men. It was the Crown case that these were the same men as depicted in the CCTV footage from the hotel ATM. 3. The Crown submitted that there was evidence that the stolen credit card was used on 5 November 2012 at the hotel ATM and later at the supermarket. However, the Crown acknowledged that there was no evidence to link the use of the card to the time when the man was seen at the hotel ATM or later when the card was used at the supermarket. In these circumstances, regardless of the probative value of the CCTV footage evidence, the Crown accepted that the case against the Appellant on Counts 4 to 8 was not made out. 4. The Crown did not submit in this Court that there was a case to answer with respect to Counts 4 to 8 and submitted, in any event, that it was not open to the jury to convict the Appellant on Counts 4 to 8. 5. I am satisfied that the Crown concession with respect to Counts 4 to 8 is sound. Upon proper examination of the evidence, at the least, the verdicts of guilty on Counts 4 to 8 were unreasonable and could not be supported by the evidence (see [23] above). 6. Accordingly, it is appropriate to quash the convictions on these counts and enter verdicts of acquittal. Grounds 5, 6, 7, 8 and 10 - Other Alleged Errors Concerning Counts 4, 5, 6, 7 and 8 1. Once again, given the determinative significance of Ground 9 with respect to these counts, it is not necessary to dwell on other grounds challenging these convictions. 2. The trial Judge stated that he would give reasons at a later time for allowing evidence of the CCTV footage at the hotel ATM and at the supermarket (Ground 7), which had been admitted by his Honour (Grounds 5 and 6). Once again, his Honour did not give reasons for this ruling at a later time. This constitutes error of the type found with respect to Ground 2 (see [28] above). 3. With respect to Ground 8, his Honour once again directed the jury to confine consideration to a comparison of the different photographs and pieces of CCTV footage, with no comparison to be undertaken with the physical appearance of the Appellant in court. This was contrary to principle and inconsistent with the function of the jury as the judges of the fact (see [30] above). 4. Given the decision with respect to Ground 9, it is not necessary to say more concerning the other grounds of appeal. Conclusion 1. It was for these reasons that I joined in the making of orders on 16 November 2015 as set out earlier in this judgment (at [4]). 2. BEECH-JONES J: I have read the judgment of Johnson J. His Honour has encapsulated my reasons for joining in the orders made on 16 November 2015. 3. I had the opportunity to inspect the photographs and view the CCTV footage relied on by the Crown and referred to in Johnson J' s judgment prior to the hearing of the appeal. It was immediately apparent from that inspection and viewing that the evidence relied on by the Crown was not capable of demonstrating that the particular offender alleged by the Crown to be the Applicant was in fact him. This was appropriately recognised by the Crown in its approach to this appeal. 4. However the fact that the matter could have proceeded to trial much less conviction is deeply troubling. As best as I can ascertain the Applicant was in custody solely referable to the charges the subject of this appeal from at least 16 March 2014 until the entry of orders on 16 November 2015, that is 20 months. This incarceration was due to errors which were so obvious they simply should not have occurred. 5. R S HULME AJ: I agree with the reasons of Johnson J. I also agree with the additional remarks of Beech-Jones J. ********** 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: 08 December 2015