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District Court 5 June 2008

R v MCLEOD

[2008] NSWDC 188

Theft & property
JUDGE ALONE TRIAL LARCENY IDENTIFICATION EVIDENCE VOICE IDENTIFICATION

Citation: R v McLeod [2008] NSWDC 188
Court: District Court of New South Wales
Date: 5 June 2008
Judge(s): Murrell SC DCJ

Background

The accused was charged with three offences arising from a break-in at the Currarong RSL Club in the early hours of 30 August 2007. Two men arrived at the Club in a white Commodore station wagon, deliberately smashed a glass door to gain entry, stole nine bottles of spirits from the bar, and left together. CCTV footage captured the incident. The Crown alleged the accused was the offender seen wearing a T-shirt.

The matter proceeded as a judge-alone trial in the District Court on 3 to 5 June 2008. The accused did not give evidence and exercised his right to silence when spoken to by police.

The only genuinely disputed question was identity: whether the Crown had proved beyond reasonable doubt that the accused was one of the two men filmed at the Club that night.

  • Whether the Crown established beyond reasonable doubt that the accused was the offender in the T-shirt seen in the CCTV footage
  • Whether the visual resemblance between the accused and the CCTV footage was sufficient for identification
  • Whether the circumstantial evidence connecting the accused's jacket to the jacket worn by one offender supported identification
  • Whether voice identification evidence from two correctional officers, who overheard cell conversations, was sufficiently reliable to establish identity
  • The proper approach to identification evidence under ss 116 and 165 of the Evidence Act 1995, including the special need for caution

Decision

The Crown's case on identity rested on four strands of evidence. First, there was a general visual resemblance between the accused, as observed in court, and the offender in the CCTV footage. Second, a jacket the accused wore when he reported to Nowra Police Station on the morning of the offence resembled the jacket worn by one of the offenders. Third and fourth, two correctional officers gave evidence that, while the accused was held in the Batemans Bay cell area the day before trial, they each overheard someone they identified as the accused make statements suggesting he had deliberately changed his appearance to defeat identification from CCTV footage.

Murrell SC DCJ applied the requirements of ss 116 and 165 of the Evidence Act 1995, acknowledging the special need for caution with all identification evidence, including voice identification. The court noted that even honest witnesses can be mistaken in identifying a voice heard through two closed doors, including one solid door, in a hard-surfaced cell area that caused sound to echo. Each officer had spoken to the accused on only three or four brief occasions over a five to eight year period, and their discussion with each other immediately after the overheard conversation created a risk that each officer's recollection was influenced by the other's account.

The court also identified internal inconsistencies in the substance of what the officers reported hearing. The accused was said to have referred to a "new law" preventing use of CCTV footage (no such law existed), to having grown a beard (yet the CCTV showed the man the Crown alleged was the accused already had a beard on the night), and to having court "tomorrow" (prisoner movement records were inconsistent with that). Those inconsistencies in the content of the alleged statements cast further doubt on the accuracy of the officers' recollection, and, if they may have been mistaken about what was said, they may equally have been mistaken about the speaker.

Despite finding it very likely that the officers were honest and probably accurate, the court held that it retained a reasonable doubt about both the identity of the speaker and the precise content of the statements. That doubt, combined with the limitations of the visual and circumstantial evidence, meant the Crown had not proved identity beyond reasonable doubt on any count. Verdicts of not guilty were entered on all three charges.

Orders Made

  • Verdict of not guilty entered on Count 1 (entering a building with intent to commit larceny)
  • Verdict of not guilty entered on Count 2 (larceny of nine bottles of alcohol)
  • Verdict of not guilty entered on Count 3 (malicious damage to a glass door)

Key Takeaways

  • A reasonable doubt about the identity of a speaker can survive a finding that the identifying witnesses were honest and probably accurate, particularly where physical conditions (closed doors, echoing surfaces, infrequent prior contact) affected the reliability of voice recognition.
  • Under ss 116 and 165 of the Evidence Act 1995, courts must apply special caution to all identification evidence, including voice identification, and must actively consider the specific circumstances that may render a particular identification unreliable.
  • Inconsistencies between the reported content of overheard statements and independently established facts can undermine not only the accuracy of what was said, but also the reliability of the identification of who said it.
  • The District Court confirmed that an accused's silence at interview and at trial carries no adverse inference; it neither constitutes an admission nor fills gaps in the prosecution case.
  • Where the only contested issue is identity, the Crown must independently establish beyond reasonable doubt that the accused was the perpetrator; circumstantial evidence that is merely consistent with guilt is insufficient if a reasonable doubt remains.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 116, 165

Cases
- R v Kirby [2000] NSWCCA 330
- Festa v The Queen (2001) 76 ALJR 291