Citation: ROSENBURG Joseph v R [2008] NSWDC 372
Court: District Court of New South Wales (Appellate Jurisdiction)
Date: 5 August 2008
Judge(s): Finnane QC DCJ
Background
The appellant, a convicted child sex offender, appealed against two convictions arising from events on 19 May 2007 at a residential property in Annandale, Sydney. Two girls aged nine and ten reported that a man approached the property, spoke to them on multiple occasions, offered them money for a bicycle, and sought to exchange telephone numbers, telling them to keep the encounter secret.
The appellant was charged with unlawful entry on enclosed lands under the Inclosed Lands Protection Act 1901 (NSW), and with loitering near a public place frequented by children while being a convicted child sex offender under the Summary Offences Act 1988 (NSW). The Local Court convicted him and imposed a fine of $250 plus $70 court costs for the first offence, and three months' imprisonment (commencing 27 July 2007) for the second offence.
The appellant, who was self-represented, challenged both convictions on appeal, arguing the evidence was insufficient to establish guilt beyond reasonable doubt.
Legal Issues
- Whether the evidence was sufficient to support conviction for unlawful entry on enclosed lands
- Whether the evidence was sufficient to support conviction for loitering near a place frequented by children as a convicted child sex offender
- Whether the appellant's explanations for his presence, and in particular for the presence of his palm print on the windowsill, raised a reasonable doubt
Decision
The central piece of physical evidence was a palm print found on the exterior brick windowsill of the bedroom from which the two girls had been watching the street. A fingerprint expert attended the premises the following day and developed the print. Other expert officers confirmed it matched the appellant's palm print.
The two girls had not identified the appellant from a photo array, which would ordinarily have weakened the prosecution's identification case. However, the District Court found that the palm print provided stronger and more reliable identification than any photograph could have offered, and was sufficient to place the appellant at that precise location.
His Honour found the appellant's explanations for the palm print were not credible. The account offered at trial, that a dog had run loose into some nearby property where the appellant happened to pick up a mobile phone from a windowsill, was rejected as implausible. The court also noted the appellant's police interview answers were evasive, and that his account changed materially between the police interview and his evidence at the original hearing.
Taking the palm print evidence together with the girls' account of the encounter, the District Court was satisfied the prosecution had established guilt beyond reasonable doubt on both offences. His Honour dismissed the appeal.
Orders Made
- Appeal dismissed
- Conviction confirmed for unlawful entry on enclosed lands (first offence); fine of $250 and $70 court costs confirmed
- Conviction confirmed for loitering as a convicted child sex offender (second offence); sentence of three months' imprisonment (commencing 27 July 2007) confirmed (noting the sentence had already been served by the time of appeal)
Key Takeaways
- A palm print recovered from the specific location described by child witnesses was held to constitute sufficient independent evidence to establish the identity of the offender beyond reasonable doubt, notwithstanding a failed photographic identification by the same witnesses.
- Where a defendant offers an explanation for incriminating physical evidence, the court will assess the plausibility of that explanation against all the circumstances; an account that changes between a police interview and subsequent evidence in court may be afforded little weight.
- Under s 11G of the Summary Offences Act 1988 (NSW), loitering near a place frequented by children while being a convicted child sex offender is a distinct offence that requires proof of the prior conviction as an element; the prosecution here met that requirement through evidence of the 1994 convictions.
- In dismissing the appeal, the District Court confirmed that a failure to make a photographic identification does not necessarily render identification evidence as a whole insufficient, particularly when corroborated by forensic evidence.
- Sufficient evidence of presence at a specific location, combined with credible witness accounts of relevant conduct at that location, can support conviction even where the defendant denies any knowledge of or connection to the scene.
Legislation and Cases Referenced
Legislation:
- Summary Offences Act 1988 (NSW), s 11G (loitering by convicted child sexual offender)
- Inclosed Lands Protection Act 1901 (NSW), s 4 (unlawful entry on enclosed lands)
Cases cited: No cases were cited in the judgment.