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  • Unreported Judgment

R v Harris

 

[2020] QDC 138

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Harris [2020] QDC 138

PARTIES:

THE QUEEN

v

COREY JAMES HARRIS

FILE NO/S:

Ind 590/18

DIVISION:

Crime

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

24 June 2020

DELIVERED AT:

Beenleigh

HEARING DATE:

8 and 9 June 2020

JUDGE:

Chowdhury DCJ

ORDER:

Not guilty on all counts

CATCHWORDS:

CRIMINAL OFFENCES – TRIAL BY JUDGE ALONE – CIRCUMSTANTIAL EVIDENCE - WHETHER THERE IS A RATIONAL HYPOTHESIS CONSISTENT WITH INNOCENCE

COUNSEL:

S. Muir for the crown

K. Hillard for the defendant

SOLICITORS:

Office of Director of Public Prosecutions for the crown

Aboriginal and Torres Strait Islander Legal Service for the defendant

  1. [1]
    The accused is charged with the following offences on indictment:

Count 1 – That on the second day of October 2017 at Springwood in the State of Queensland, he unlawfully used a motor vehicle without the consent of Elliot Richard Priddle, the person in lawful possession of it.

Count 2 – That on the second day of October 2017 at Springwood in the State of Queensland, he dishonestly made off knowing that payment on the spot was required for petrol lawfully supplied by 1 Riverside Quay Pty Ltd without having paid with an intent to avoid payment.

Count 3 – That on the day of October 2017 at Springwood in the State of Queensland, he unlawfully used a motor vehicle without the consent of Elliot Richard Priddle, the person in lawful possession of it and he used the motor vehicle to facilitate the commission of an indictable offence.

Count 4 – That on the third day of October 2017 at Springwood in the State of Queensland, he robbed Sagar Sharma and he was in company with another person and he was armed with a dangerous weapon and offensive instrument, namely a gun and a knife.

  1. [2]
    The accused pleaded not guilty to each of these counts. Pursuant to s 614 Criminal Code (“the Code”), the accused applied for a trial by Judge alone, which was granted pursuant to s 615 of the Code. 
  1. [3]
    The trial commenced before me on 8 June 2020, with the evidence and closing submissions of counsel concluding on 9 June 2020. The Crown Prosecutor in his opening address made it clear that the case against the accused was a purely circumstantial one. A critical circumstance is whether the accused can be positively identified as the man wearing distinctive clothing putting petrol into the unlawfully used motor vehicle at about 9.15pm on 2 October 2017.
  1. [4]
    The other essential circumstances are as follows:
  1. (a)
    the accused’s association with a woman named Leighlani Carkeet, who was clearly involved in the armed robbery that occurred at about 12.15am on 3 October 2017;
  1. (b)
    a distinctively coloured pair of shoes worn by the accused at his residence on 19 September 2017, said to be the same shoes worn by one of the armed robbers;
  1. (c)
    a pair of garden gloves found at the rear of the accused’s residence during the search of 19 September 2017, alleged to be strikingly similar to the gloves worn by one of the armed robbers;
  1. (d)
    a pair of Everlast brand grey tracksuit pants, alleged to have been worn by Ms Carkeet on 30 September 2017 at the Logan Central Shopping Plaza, being the same tracksuit pants worn by the armed gunman during the armed robbery, and alleged to be the same tracksuit pants found at the accused’s residence during the police search on 19 October 2017;
  1. (e)
    pairs of white, brown or beige pants similar to those worn by the robber armed with a knife, alleged to be similar to the pants worn by the man putting petrol into the stolen car on 2 October 2017, these pants having been located at the accused’s residence during the search of 19 October 2017;
  1. (f)
    a Chicago Bulls cap found at the accused’s residence on 19 October 2017 is alleged to be strikingly similar to the cap worn by the man putting petrol into the stolen car on 2 October 2017;
  1. (g)
    a distinctive jacket worn by Ms Carkeet during the armed robbery on 3 October 2017 was located at the accused’s residence during the search of 19 October 2017;
  1. (h)
    a distinctive singlet worn by the person alleged to be Ms Carkeet at Logan Central Plaza Shopping Centre on 30 September 2017 was used as a mask by the armed gunman on 3 October 2017.
  1. [5]
    It is important to set out the evidence in detail.

Police search of accused’s residence on 14 September 2017

  1. [6]
    Senior Constable Shaun Allen gave evidence that on 14 September 2017 at 8:30pm he and other police attended the accused’s residence at 6 Altair Street, Kingston. He was investigating a suspected unlawful use of a motor vehicle offence. He located six people inside the residence, and he entered to do a name check with all of those persons. The persons at the residence were Leighlani Carkeet Brennan, Jayke Dempsey-Mitchell, the accused, Seth Morris, Courtney O’Connor and Aiden Rommel.
  1. [7]
    Senior Constable Allen in cross-examination stated that Ms Carkeet provided her residential address as a unit in Arac Street, Woodridge. Mr Dempsey-Mitchell provided an address at 41 Mason Street, Yarrabilba.

Police search at the accused’s residence on 19 September 2017

  1. [8]
    Plain Clothes Senior Constable Joel Bonnett gave evidence that he and other police attended the accused’s residence on 19 September 2017 at 10:00am. One of the officers was wearing a body worn camera, and the search was therefore digitally recorded. That recording was tendered and became Exhibit 5. At the rear of the house was a ramp leading to the back door; on a table at the back of the house near the ramp is a pair of garden gloves, with white palms and blue backs. A still photograph of those gloves in situ became Exhibit 6. 
  1. [9]
    The search continued in the house, and the accused was located sitting on his mother’s bed in the main bedroom next to Jayke Dempsey-Mitchell. The accused is wearing black shorts with a white stripe down the side, a blue shirt, and sandshoes. A still photograph from the digital footage became Exhibit 7. The shoe on the left foot is the only one visible; it has a white sole, with a blue upper. On the side of the shoe there is a red and possibly white logo, showing some similarity with an Asics symbol. Mr Dempsey-Mitchell is wearing light tan or beige pants with a dark long sleeved top.
  1. [10]
    During the search that was recorded by the digital camera, at one point the woman, Courtney O’Connor, entered the main bedroom. At one point Mr Dempsey-Mitchell was asked where he lived; he stated that he lived at Forest Lake. The officer conceded that there was no record of Leighlani Carkeet being present at the house on 19 September 2017.

Police interaction with three women at Logan Central Shopping Plaza

  1. [11]
    Senior Sergeant Matthew Scott gave evidence that at around 4:00pm on 30 September 2017 he and his partner were tasked to attend the Logan Central Shopping Plaza in regards to an allegation from a security officer that three women may have been involved in stealing. The police interaction was also recorded by a digital body camera; that footage became Exhibit 9. It is clear during the recording that Senior Sergeant Scott identifies a woman wearing a singlet with a white back and a black, orange and yellow front with a number of faces in a montage, and also wearing grey Everlast tracksuit pants as Leighlani Carkeet. Senior Sergeant Scott maintained in court that that woman wearing that clothing was Leighlani Carkeet. A still picture from that footage became Exhibit 10, which shows the woman alleged to be Leighlani Carkeet side on, wearing the distinctive singlet, and grey Everlast tracksuit pants with the legs pulled up to both knees. A further still image was tendered which became Exhibit 11, showing the three women standing next to each other. The young woman in the middle wearing a black jumper and long grey pants carrying two shopping bags was said by Senior Sergeant Scott to be Shanyka Whettom.
  1. [12]
    In cross-examination Senior Sergeant Scott stated that Ms Carkeet was “somewhat known to police”.[1]  He knew that the Carkeet family was a large family, and that there was a house in Woodridge that Ms Carkeet was known to frequent or live in.  He believed that house to be at Cassius Street, Woodridge. 
  1. [13]
    Senior Sergeant Scott was questioned whether he had mistakenly identified the woman in the footage as Ms Carkeet. It was put to him that the woman wearing the distinctive singlet had dark coloured skin or tanned coloured skin; he replied that he thought her skin was of a “lighter skin indigenous girl”.[2]
  1. [14]
    At the request of the accused’s lawyer, the prosecution tendered watchhouse photographs of a person said to be Leighlani Carkeet, which became Exhibit 12.[3]  These watchhouse photographs were taken on 13 December 2017. 
  1. [15]
    Senior Sergeant Scott rejected the suggestion that the woman that he stopped at the Logan Central Shopping Plaza was not Leighlani Carkeet.
  1. [16]
    Senior Sergeant Scott did not have any information whether Leighlani Carkeet had any identifying tattoos. He accepted that the woman wearing the distinctive singlet had some markings near her elbow, although he could not say if they were a tattoo.[4]
  1. [17]
    In re-examination Senior Sergeant Scott said that there were a number of occasions when he had encountered Leighlani Carkeet.

Unlawful use of a 2014 Toyota Camry Altise

  1. [18]
    Elliot Priddle gave evidence that on 2 October 2017 he was in lawful possession of a 2014 Toyota Camry Altise, graphite grey in colour with registration 441 WEX. That vehicle was registered to him. He was living at an address in Daisy Hill.
  1. [19]
    On the morning of 2 October 2017 he woke up at around 6:30am, and went to get something to eat. He noticed his car to be in the driveway. He then went back to bed, and awoke again at around 10:30am or 10:50am. He went to make some breakfast when he saw that a window had “been kind of put through”. He then saw his car was not in the driveway. He then noticed his keys and his wallet on the dresser were also missing.[5]
  1. [20]
    He did not give permission to anyone to take his car that morning.
  1. [21]
    In cross-examination, he agreed that a number of bankcards were in his wallet that were taken, which were then later used in a number of transactions. In particular there were the following transactions:
  • Two transactions at a 7-Eleven at Logan Central;
  • Two transactions at a 7-Eleven at Kingston;
  • An Optus phone bill was paid;
  • One transaction at the McDonalds store at Underwood;
  • Two transactions at the Kmart Store at Woodridge;
  • Three transactions at Coles at Woodridge.
  1. [22]
    The total of those transactions was around $1,000. Mr Priddle cancelled his cards after he discovered those transactions.
  1. [23]
    He accepted that part of his complaint to the police was that a pair of grey and orange Nike gym shoes were taken from the doorstep of his house. He accepted that the shoes had the Nike “Swoosh” logo on them, he couldn’t recall what colour the logo was but thought it was orange.
  1. [24]
    He believed that a forensic police officer came to dust for fingerprints. The car was later found in a burnt out condition at the Springwood High School.

Appearance of the stolen car at McDonalds Restaurant

  1. [25]
    Security footage from the McDonalds Restaurant at 12 Kingston Road Underwood became Exhibit 13. The footage was around 9:30am on 2 October 2017. Three stills from that footage were tendered and became Exhibit 14. There is no dispute between the parties that the driver of the stolen Toyota Camry is Leighlani Carkeet; the person in the passenger seat behind the driver who pays for some food is a man by the name of Harley Look.

Appearance of the stolen car at the BP Service Station, Springwood

  1. [26]
    The prosecution tendered security footage from the BP service Station at 3388 Pacific Highway Springwood, which became Exhibit 15. Relevant footage commences around 9:13:40pm, and continues until 9:16:10pm. In addition, still images from that security footage became Exhibit 16.
  1. [27]
    It is clear that a man gets out of the front passenger door and puts petrol into the tank of the stolen car. Both the video footage as well as the still images show that this man is wearing distinctive clothing: a tan coloured cap, a black sweater or tracksuit top with distinctive white stripes down the centre of each arm, and a distinctive logo in the centre of the chest, light brown or beige pants, and shoes which have a white sole, blue upper and a distinctive logo of red with white flashes.
  1. [28]
    The man finishes putting petrol into the stolen car, jumps back into the car and the car quickly drives off without paying for the fuel. The registration number is clearly visible, and it is the same registration number as Mr Priddle’s car.

Armed robbery at 7Eleven Store at Springwood

  1. [29]
    Mr Sagar Sharma gave evidence that he was working in the early hours of 3 October 2017 at the 7Eleven Store at 1 Cinderella Drive Springwood. After midnight a lady entered the store, and then two disguised and armed men ran into the store. They came straight at the counter and demanded money and cigarettes. He handed over all of the money in the till, and then one of the men armed with a knife took cigarettes. When asked if he could remember if anything was said to him, he said as follows:

“Not really.  Just they showed me a knife, ‘we’ll shoot you or we’ll hit by knife if you don’t give me the money or anything’.  That’s it, simply, while the robbery goes on.”[6]

  1. [30]
    Mr Sharma confirmed that both were armed, one with a gun and the other with a “small knife”. He described both robbers as men.
  1. [31]
    Mr Sharma stated that he did not give either man permission to take the money and the cigarettes. He said that about $220 was stolen.
  1. [32]
    Security footage of the armed robbery became Exhibit 18. The exhibit included footage from two separate cameras.
  1. [33]
    Still images taken from the security footage became Exhibit 19 and Exhibit 20. Earlier in the proceedings a single photograph taken from the security footage was tendered and became Exhibit 2, showing the armed robber with the knife entering the store wearing the same distinctive clothing that was seen in the security footage at the BP Service Station; it also shows the robber with the gun with his arm extended wearing a distinctive black glove, and grey pants.
  1. [34]
    In cross-examination Mr Sharma acknowledged that he told police that the car that the robbers had got into drove off in the direction of Brisbane.[7]  He also said that while the robbery was occurring he could see the brake lights illuminated at the back of the car.[8]

Search of the defendant’s house on 19 October 2017

  1. [35]
    Detective Senior Constable Rowan Kerr gave evidence that he was the lead investigator in the case. He and other officers executed a search warrant at the defendant’s house at 6 Altair Street Kingston on 19 October 2017. One of the police officers had a body worn camera which was activated; Detective Kerr had a digital recorder which he activated. The body worn camera footage was tendered and became Exhibit 21.
  1. [36]
    At 7:29:25pm of the footage, the defendant is seen in the corner of the room. At 7:34:53pm in the search moves to a bedroom at the rear of a hallway; the defendant moves down the hallway to stand at the entrance of the bedroom – he is topless at the time. During the course of the conversation he mentions that his girlfriend, Courtney O’Connor, is in the lounge room. Amongst the items of clothing that are looked through in the bedroom, a pair of beige pants and a Chicago Bulls cap were found. The defendant says on the recording that those items are his. A photograph of the Chicago Bulls cap was tendered and became Exhibit 22. Another pair of brown pants were found, the photo of which became Exhibit 23. The police also found a pair of grey Everlast tracksuit pants, the photos of which became Exhibit 24. The tag on the waistband of the Everlast pants states that it is size 16.
  1. [37]
    During the course of the search the defendant asked “what are you investigating”. A police officer responded – “an armed robbery at the 7-Eleven on Cinderella Drive”. The defendant then said “I just come here that night.” He then goes on to add that “the coppers come here that night – they come here every night.”
  1. [38]
    A bandana is pointed to by police during the search, to which the defendant said it belonged to his girlfriend. In respect of the brown pants in Exhibit 23, the defendant said that they were his cousin’s clothes.
  1. [39]
    During the search a pair of black gloves was found; photographs of those gloves became Exhibit 25. The defendant said that he had never seen those gloves before, adding that he had picked them up that morning and threw them on the bed. He added “I don’t know nothing about them.”
  1. [40]
    The search then moves to the mother’s room, and the bed is covered in laundry. The defendant admitted that some of his washing was in the room. The police located a pair of light brown or tan trousers with a black drawstring. Photographs of those pants became Exhibit 26. The defendant told police that he didn’t wear those pants.
  1. [41]
    A pair of black and white sneakers were found near the back door. Photograph of those shoes became Exhibit 27. The shoes were said by the defendant to belong to his mother.
  1. [42]
    Detective Kerr was asked about the time of the conclusion of the search, as the time stamp on the body camera footage indicates it ended at 8.30pm. The light in the sky clearly indicates an earlier time. Detective Kerr considered that the search ended more around dusk.
  1. [43]
    A Slazenger jacket, coloured black white and maroon, was found in the dining room of the defendant’s room. Exhibit 28 is a photograph of that jacket.
  1. [44]
    A photograph of the defendant taken on 20 October 2017 became Exhibit 29.
  1. [45]
    Detective Kerr confirmed that the Chicago Bulls cap was found on top of a pile of clothes in the girlfriend’s bedroom.
  1. [46]
    In cross-examination, Detective Kerr agreed that the pants depicted in Exhibit 23 had a tag indicating it was an “L” size. Additional photographs of the pants became Exhibit 30.
  1. [47]
    Detective Kerr had said in his evidence-in-chief that the defendant was subject to a curfew in September and October 2017, and that police did curfew checks on 28 September 2017 and 5 October 2017. There was no record of police doing a curfew check on either 2 or 3 October 2019. Detective Kerr conceded in cross-examination that he could not positively exclude the possibility that police may have attended on nights other than those recorded.
  1. [48]
    Detective Kerr confirmed that Austin Harris was a real person. He did not make any enquires whether Austin Harris stayed at the defendant’s house the night before the search.[9] Detective Kerr was not sure of Austin Harris’ age at the time; in respect of his build he said it was proportionate, “as far as I researched into him.”[10]
  1. [49]
    In respect of the black maroon and white jacket found in the dining room, Detective Kerr had a vague recollection that someone may have said it was a school jacket. The defendant’s girlfriend, Courtney O’Connor, was not asked whether the grey Everlast tracksuit pants belonged to her.
  1. [50]
    Detective Kerr confirmed that the distinctive black and white Adidas top worn by the robber armed with the knife was not found at the defendant’s house, nor were the shoes depicted in the security footage. No gun was located, nor a knife consistent with the one used in the armed robbery.
  1. [51]
    Detective Kerr was shown a still photograph of security footage taken from a Kmart store and a Coles store in respect of the fraudulent use of bank cards belonging to Mr Priddle.  In respect of the images, Detective Kerr identified the male person as Harley Look.  The photographs from the security footage at Kmart and Coles became Exhibit 32.  In respect of still photographs taken from security footage of a McDonald’s restaurant that became Exhibit 33, Detective Kerr identified Harley Look as a person in the rear of a car who paid for food at the McDonald’s drive-through and confirmed that the driver of the stolen car in the McDonald’s drive-through was Leighlani Carkeet.[11]
  1. [52]
    It was put to Detective Kerr that Jayke Dempsey-Mitchell had a similar appearance to Corey Harris in the face. Detective Kerr said: “A similar appearance?  I mean, I’d say it’s subjective.”[12]  Detective Kerr confirmed that Jayke Dempsey-Mitchell was a potential suspect in the armed robbery, however it was hard to locate a fixed place of abode for that person and they were unable to execute a search warrant.  He confirmed that warrants were obtained for them, but they were not able to be executed.
  1. [53]
    Detective Kerr confirmed that the clothing used as a mask to disguise the gunman was never found, nor was any of the other clothing worn by the gunman. Still photographs taken from the security footage of the armed robbery were tendered and became Exhibit 34.
  1. [54]
    Further evidence of Detective Senior-Constable Kerr
  1. [55]
    Detective Kerr was recalled to give evidence on the morning of 9 June 2020. He agreed with the suggestion that he was aware in 2017 that Leighlani Carkeet was in a relationship with a man called Seth Morris. Police enquiries made by Detective Kerr revealed that Seth Morris was in custody on 2 and 3 October 2017.[13]
  1. [56]
    Detective Kerr confirmed that he was aware in 2017 that Jayke Dempsey-Mitchell was in a relationship with Shanyka Whettom.
  1. [57]
    The defence case
  1. [58]
    The defendant elected to give and to call evidence. The defendant gave evidence, stating his date of birth was 17 May 1997. He confirmed that in September and October 2017 he was living at 6 Altair Street, Kingston with his mother and his two younger brothers, Aiden Rommel and Braxon Harris. He confirmed that at that time he was in a relationship with Courtney O’Connor, although that relationship ended sometime in 2019.
  1. [59]
    He confirmed that he was present at his house when the police did a “street check” on 14 September 2017 and that Leighlani Carkeet, Jayke Dempsey-Mitchell, Seth Morris, Courtney O’Connor were at the house. He described his relationship with Mr Morris as a “close mate”. He confirmed that Mr Morris was in a relationship with Leighlani Carkeet. He said that in 2017 he would see Leighlani Carkeet “like once a day, maybe.” He conceded that there were occasions when he would see Leighlani Carkeet without Seth Morris.[14]
  1. [60]
    He described Jayke Dempsey-Mitchell as a “close mate as well.” He stated that in September and October 2017 he would see him three or four times a day, at the defendant’s house. He said that Jayke Dempsey-Mitchell would sometimes stay at his house for a night or two.
  1. [61]
    The defendant was asked about the coloured shoes he was wearing depicted in the photograph that is Exhibit 7. He said in evidence that they were not his shoes, that he did not know who they belonged to, and they were simply at his house on 19 September 2017 so he put them on. He acknowledged that the shoes fitted him.[15]
  1. [62]
    In respect of the garden gloves depicted in the body camera footage of 19 September 2017, he believed that they belonged to his mother, and that he had not used them.
  1. [63]
    The defendant was asked about visits by Jayke Dempsey-Mitchell in September and October 2017. He said that he had not seen him around the beginning of October 2017. I sought clarification of that, and the defendant said that the last time he had seen Jayke Dempsey-Mitchell was about a week before the end of September 2017.[16]
  1. [1]
    The defendant was asked to clarify what he meant when he said that Jayke Dempsey-Mitchell would come around and drop things off.  The defendant said “yeah, like, jewellery and that.[17]  The defendant said he did not know why Jayke Dempsey-Mitchell would be dropping jewellery to his house.  He said that Jayke Dempsey-Mitchell would come to get clothes, because he did not have any of his own.  He then changed his answer to indicate that in fact Jayke Dempsey-Mitchell did deliver clothes to the house.[18]
  1. [64]
    The accused was shown by his counsel a series of screenshots taken from the Facebook page of Leighlani Carkeet and the Facebook page of Jayke Mitchell-Dempsey; these Facebook posts became Exhibit 37. The Facebook posts from Mr Mitchell-Dempsey’s account show pictures of him standing with Seth Morris, according to the accused. There are two pages of the exhibit that the accused said depict Mr Dempsey-Mitchell with the woman Shanyka Whettam. The last page in that exhibit is a photograph of three men in a car. The accused identified Mr Dempsey-Mitchell as the person on the far left margin wearing a Nike jacket; he could not recognise the other two men. In particular, he did not know the man wearing a black glove on his right hand.[19]
  1. [65]
    In cross-examination, the accused was shown the still photographs in Exhibits 1 and 2. The following exchange took place at R2-25:

“His Honour: Ok. All right.  Sorry just want to clarify your evidence, Mr Harris: you say that’s not you pumping petrol into the Camry?

A: Yes.

His Honour: Ok.  All right.  And it’s not you, masked, entering the service station in Exhibit 2. Right?

A: Yes.

His Honour: Ok.  Thanks, Mr Muir.

Q: Thank you, your Honour.  Mr Harris, do you know who it is in the footage?

A: No, I don’t know.

Q: So you don’t know who committed these crimes?

A: No. I don’t know.

His Honour: Sorry.  You don’t recognise the person pumping petrol?

A: No, I don’t.

His Honour: Do you recognise the Adidas jacket?

A: I’ve seen it.  Yes.

His Honour: Where have you seen the jacket?

A: With Dempsey-Mitchell.

His Honour: So you’ve seen the jacket with Dempsey-Mitchell?

A: Yes.

His Honour: Is that right?

A: Yes.

His Honour: Is that Jayke Dempsey-Mitchell?

A: Yes.

His Honour: I thought you said you couldn’t recognise who it was?

A: I didn’t say who it was.  I said I’ve seen the shirt before.

His Honour: Mr Muir, you can take it from here.

Q: So, Mr Harris, so you are not saying that the person there is Jayke Dempsey-Mitchell?

A: No, I’m not saying that.

Q: You’re not saying that.  What you’re saying is that…

A: I’ve seen the shirt before.  I’m not saying that’s Jayke Dempsey-Mitchell.

Q: I understand.  You’re just saying that that particular shirt with the black and white Adidas…

A: It’s common.  Yeah.  I’ve seen it before.  Yes. 

Q: And you saw, at some point, Jayke Dempsey-Mitchell wearing it?

A: I’ve seen him wear one.  Yes. 

Q: Right.  Have you seen any other person you know wearing that shirt?

A: I can’t recall.  No.

Q: Can you see the shoes?  Probably best on the feet of the 7-Eleven robber there?  I’ll pull up a better photo of that.  Can you see those?

A: Yes.

Q: Have you seen those shoes before?

A: No.”

  1. [66]
    In respect of the cap being worn by the man putting petrol into the stolen Camry, the accused said he had not seen that cap before. The following exchange took place between R2-25 to R2-26:

“His Honour: Thank you.  Just having a look at that photo again, that’s not Jayke Dempsey-Mitchell.  Is that right?

A: It is not.

His Honour: Ok.  You don’t know who it is?

A: I don’t know who it is.  Yeah.

His Honour: All right.  Thank you.

Q: But you know it’s not Jayke Dempsey-Mitchell?

A: No, I don’t know that.

Ms Hillard: Well, your Honour, I don’t that that’s a particularly fair question.  There’s a difference, isn’t there, between, ‘do you recognise who that person is?’ or, ‘you know that he’s not a particular individual’.

His Honour: Sorry, I thought he just answered my question and - - -

Ms Hillard: Well that’s true.

His Honour: - - -  said that wasn’t Dempsey-Mitchell.  Is that – I mean, we can clarify this.  I don’t want there to be any confusion, Mr Harris.  You can see the photo again?

A: I don’t recall – I don’t want to answer that question.

His Honour: Well, no, I’m just asking you - - - ? [the accused mumbles something at this point]  Can you say whether the person putting petrol into the Camry is Jayke Dempsey-Mitchell or not?

A: No.

His Honour: It’s not him?

A: It’s not him.

His Honour: All right? 

A: [indistinct], Yeah.  No.

His Honour: All right. 

Q: All right.  So  - - -

A: I don’t – I don’t recognise the person pumping the fuel and I don’t – I can’t recognise – and I don’t recognise the person doing the 7-Eleven – in the 7-Eleven doors.”

  1. [67]
    The accused admitted that the woman entering the electronic doors of the 7-Eleven store that was the subject of the armed robbery was Leighlani Carkeet. He said he had no conversation with Leighlani Carkeet about the robbery, even though in the period of time between September and October 2017 he was seeing her at least once a day. He did not recognise the jacket worn by Leighlani Carkeet at the time of the armed robbery.[20]
  1. [68]
    The accused said that he would give clothes to Jayke Dempsey-Mitchell because he barely had any; he would come back and drop clothes off so that they could be washed. He would give him clothes from his cupboard to let him wear, and then he would come back and drop them off. That arrangement had been on foot for about two months before 2 and 3 October 2017. He did not lend his clothes out to anyone else, nor did anyone else drop their clothes to his house.[21]
  1. [69]
    The accused said he had no memory of either 2 October 2017 or 3 October 2017. At that time he was in receipt of Centrelink benefits.
  1. [70]
    The accused said that he did not really have a daily routine in September and October 2017. On occasions he would walk to his uncle Rodney Harris’s house at Brownhill Street in Logan Central, and near the Logan Central Police Station. He said it would take him about 20 minutes to walk there.
  1. [71]
    A photograph that became Exhibit 36 was shown to the accused. The accused said that the woman on the left of the photograph was Michaela Harris, the man in the centre holding the baby was his cousin Austin Harris, and the lady on the right was Austin Harris’s girlfriend, Raquel Brown. The baby in the photograph was the newborn infant of Austin Harris and presumably Raquel Brown.[22]
  1. [72]
    The accused said that Austin Harris was always of a large build, and the way he appeared in the photograph that is Exhibit 36 was the same as he appeared in October 2017.
  1. [73]
    The accused said that the pair of brown pants found in his room by police on the search of 19 October 2017 belonged to his cousin Austin Harris. He admitted that he had told police that all the clothing in that room belonged to him, but claimed he had made a mistake in respect of those pants.
  1. [74]
    The accused was shown Exhibit 10, the photograph of three women at the Logan Plaza Shopping Centre. He did not recognise anyone in that photograph.[23]  He did not recognise the Everlast tracksuit pants worn by one of the women depicted in Exhibit 10, nor had he seen the singlet depicted on the woman wearing the Everlast tracksuit pants. 
  1. [75]
    Cathryn Harris, the mother of the accused gave evidence. She said that in September and October 2017 she was working as a cleaner for a cleaning company called Trident. During those two months she would work mostly in the evening, working 6.00pm to 10.00pm shifts. She was unable to find any payslips for that period.
  1. [76]
    She was asked if she could “actually independently remember” the evening and early morning of 2 and 3 October 2017. She replied, “I – not – kind of.  I’m not sure.  Yeah.”
  1. [77]
    Ms Harris said that if the 2nd of October was a Monday she would have been working, from 6.00pm till 10.00pm.  She would drive to work, clean everything up, put items away and then drive home. 
  1. [78]
    Ms Harris knew Jayke Dempsey-Mitchell, and she would see him at her house, although not every single day. She was not aware of whether he stayed overnight. When pressed on that issue, she said that Jayke Dempsey-Mitchell did not stay overnight at her house. In respect of her nephew Austin Harris, she said that he did stay overnight, although she could not recall when he had stayed around the time of the search of 19 October 2017.
  1. [79]
    Ms Harris was shown Exhibit 12. She identified the person depicted as Leighlani Carkeet. When asked if Leighlani Carkeet came to her house, she said: “Not a lot.  Once or twice I’ve seen her there.”
  1. [80]
    Ms Harris identified the black shoes in Exhibit 27 as her work shoes. She said that they would normally be kept outside the house.
  1. [81]
    Ms Harris was shown the Slazenger jacket in Exhibit 28. She did not recall whether the police had seized that jacket during the search of 19 October 2017. When asked if she recognised the jacket, she said: “I don’t.  Not completely.”  When pressed on that, she said she did recognise it, but she did not know to whom it belonged.  She was asked if during the police search there was talk of the jacket being a school jacket, she said: “Yes.  I don’t know if it was me.  I remember saying to them that it could belong to my niece, Paige, because I thought it was a school jacket.”[24]
  1. [82]
    Defence Counsel asked Ms Harris if she could remember whether she picked up the accused from his uncle’s house on the evening of either 2 or 3 October 2017. She said that she did pick the accused up. When asked if she could specifically remember those dates now, she said: “I – I – yeah, I – I don’t completely remember the dates. Yeah.”  Defence Counsel asked if she could actually remember independently those two specific dates.  The following exchange took place:

“His Honour: So ‘independently’ means you have a distinct memory now sitting there today.

‘I can remember those two nights: Monday the 2nd of October 2017 into Tuesday, the 3rd of October 2017’?

A: Ok.  Yes. 

His Honour: You can remember those?

A: Yes, only because of the things surrounding those – like, just the raid.  That made me – because I tried to tell them that I’d picked him up on the day of the raid.

Q: Ok.  You had a conversation with police after the search finished on the 19th of October, didn’t you?

A: I think so, yeah.

Q: And did you attend the police station, did you question Mark?

A: I don’t think so.  I can’t remember.

Q: Alright.  Without going into details, were you a support person while Corey did an interview?

A: Yes.

Q: Right?

A: Yes.

Q: OK.  Now, but you never provided a statement to police?

A: No.

Q: Alright.  And did they write any of this information down at all?

A: Yeah.

Q: So I just want to be clear that I understand what your evidence actually is.  When – you’re saying to me that you told them on that time that there was information that you had picked him up from work ---?

A: Yeah.

Q: ---after your work.  Who did you tell that to?

A: To one of the detectives there.

Q: Right.  Did the detective write it down?

A: He wouldn’t – no, he wouldn’t listen to me.

Q: OK.  And do you know who that detective was who you --- ?

A: No.

Q: ---spoke to?

A: No.

Q: Right.  And you didn’t give them any other information or any other documents; is that right?

A: No.[25]

  1. [83]
    Ms Harris said that she had collected the accused from his uncle’s house. She said it was a 10 minute drive from the uncle’s house to her house. She recalled that she picked up the accused sometime between 10.15pm and 10.30pm, and went straight home.[26]
  1. [84]
    In cross-examination, Ms Harris admitted that in the Toowoomba Magistrates Court on 21 April 1998 she was convicted for unauthorised dealing with shop goods. She thought that was jewellery. In respect of a conviction for fraud on 7 February 1998, she thought that was for using a key card that had no money on it. She was then asked about a conviction in the Toowoomba Magistrates Court on 15 May 2012 for obstructing police. When asked what her recollection of that offence was she said: “I don’t know.  Lying to the police.
  1. [85]
    In respect of that conviction she accepted the suggestions from the Crown Prosecutor that the circumstances of the obstructing police involved her being in a car with her brother, Michael Keven Harris, and telling police when stopped that in fact Michael was her other brother, Rodney Harris.[27]
  1. [86]
    Ms Harris agreed that she had been convicted in the Supreme Court on 19 August 2019 for supplying methylamphetamine and buprenorphine into a prison for a man with whom she had been in a relationship. In response to this suggestion by the Crown Prosecutor that she was happy to break the law to help people she cared about, she said: “I was at a low.  That the lowest point of my life.  It’s a stupid thing to do.”
  1. [87]
    In respect of lying to police about the identity of her brother, she said that was so her brother Michael could see his children before he got locked up. In response to my question that she was prepared to lie to help out her brother she said: “I regretted it straight away, but yes.”
  1. [88]
    Ms Harris said that it would take about 20 minutes to walk from her house to her brother Rodney Harris’ house in Brownhill Street, Logan Central. She maintained that she could recall picking the accused up from her brother’s house sometime between 10.15pm and 10.30pm on 2 October 2017, and that she recalled that the accused looked tired.[28]  She said that she would collect the accused from her brother’s house once or twice a week, possibly three times a week at the time in question.
  1. [89]
    When asked how she could specifically remember collecting the accused from her brother’s on 2 October 2017, she said it was something from the raid that triggered her the memory. The following exchange took place:

Q: So what was it that made you particularly remember this, that you did pick him up on 2 October?

A: They had said that he had done something, and I said I’d picked him up that night.

Q: Right.  So it was in response to the police saying that he had done something wrong --?

A: Yep.

Q: ---on 2 October?

A: Yeah.

  1. [90]
    Ms Harris accepted that she could not account for the whereabouts of the accused between 9pm and 9.30pm on 2 October 2017, nor could she account for where the accused was between midnight and 12.30am on 3 October 2017, because she was asleep.[29]
  1. [91]
    Ms Harris said that her niece Paige was 11 years old in 2017. Her niece was not particularly big for her age, she was just an average 11 year old girl. She accepted that Leighlani Carkeet was obviously older than her niece, and she thought that she was taller than her niece.[30]
  1. [92]
    In re-examination, counsel for the accused played Exhibit 5, the digital footage of the police search of 19 September 2015. Ms Harris acknowledged that the child sitting at the table depicted in that footage was her son Braxon, and that he was four years old at the time of that search. She acknowledged that he was a big child, and when asked how he compared to her niece Paige, she said: “So much more than Paige.”  Later she said that Paige in 2017 was about the same build as her four year old son Braxon, with Paige being a bit taller, “yeah”.[31]
  1. [93]
    Under re-examination counsel for the accused clarified with Ms Harris the precise circumstances of her conviction for obstructing police. In fact Ms Harris was not in the car being driven by her brother Michael at the time it was pulled over by police. The police had requested Michael Harris to produce his identification, and he rang Ms Harris to bring some identification to the scene. Ms Harris arrived at the scene in another vehicle and gave to Michael Harris a birth certificate to show police. Ms Harris advised the police that Michael Harris was in fact her brother, Rodney James Harris and that she had known him her whole life.[32]
  1. [94]
    It was specifically put to Ms Harris that she did not collect the accused from her brother Rodney’s house on the night on 2 October 2017; she rejected that suggestion.[33]
  1. [95]
    Rodney Harris gave evidence via telephone. He did not specifically recall the night of 2 October 2017 nor 3 October 2017. He did remember that sometime in 2017 the accused was subject to a curfew. He “vaguely remembered” that the accused would come to his house before his curfew expired, and that his mother would come after work sometimes to pick him up.  He could not remember what days or dates that was in 2017.[34]
  1. [96]
    The accused’s solicitor, Katherine Elizabeth Peisley, gave evidence to prove that she had done the Facebook searches for the exhibit that became Exhibit 37.

Closing submissions of the accused

  1. [97]
    Counsel for the accused made the following essential submissions:
  • In respect of association evidence with other offenders, it was submitted that while there was evidence that Leighlani Carkeet had been to the accused’s house, and was present on 14 September 2017, the accused never saw Leighlani Carkeet at his house again after Seth Morris had been placed in custody.  There’s no evidence that the accused was associated in any way with Harley Look or other persons who are seen in the stolen Camry in the McDonald’s drive-thru.
  • It was submitted that despite Senior Sergeant Scott’s evidence, the woman seen in the Logan Central Shopping Plaza car park on the body camera footage of 30 September 2017, and the still photographs in Exhibits 10 and 11, wearing the grey Everlast tracksuit pants and the distinctive singlet is clearly not Leighlani Carkeet, when one did a proper comparison of Leighlani Carkeet from the watchhouse photographs that is Exhibit 12.
  • It cannot be positively determined from the security footage at the BP service station on 2 October 2017 at around 9.15pm that the person putting petrol into the stolen Camry is the accused.  The footage is simply not close enough to allow proper examination of the facial features of that person.
  • In respect of the police search of 19 September 2017, Jayke Dempsey-Mitchell is on the bed in the main bedroom seated next to the accused.  There is a striking similarity between the two, and Jayke Dempsey-Mitchell is wearing light coloured pants.  Significantly Leighlani Carkeet was not at the accused’s house on 19 September 2017. 
  • The police conceded that Jayke Dempsey-Mitchell was a suspect in respect of the armed robbery, and it cannot be excluded that he may be the person wearing the distinctive clothing at the BP petrol station, and then committing the armed robbery at the 7-Eleven store.  No search warrant was able to be executed at Dempsey-Mitchell’s residence, due to his itinerant lifestyle and it cannot be excluded that those items may have been found somewhere other than the accused’s house.
  • In respect of the still photographs of Exhibit 15 and 16, taken from the security footage of the incident involving a petrol “drive off” on 2 October 2017, one could not conclude that the cap being worn by the person putting petrol into the Camry is the same Chicago Bulls cap as found at the accused’s house.  There is no logo on the top of the cap, there is no sticker on the peak of the cap, nor is there any logo on the back or side of the cap.  It was submitted that the person putting petrol into the stolen Camry was taller than 1.65 metres, being the height of the accused.  It was submitted that the shoes being worn by the person putting petrol into the Camry, and the shoes worn by the knife man in the robbery, are different from the shoes seen to be worn by the accused during the police search of 19 September 2017.
  • The brown pants depicted in Exhibit 23 are a “large” size, as indicated by the clothing tag, and likely to have been worn by the accused’s cousin, Austin Harris, rather than the accused, who is much thinner. 
  • The black shoes, the black gloves and the grey Everlast tracksuit pants are common items and there is nothing to indicate that those items found at the accused’s residence on 19 October 2017 are the same as depicted in the security footage of the armed robbery.
  • In respect of the gloves worn by the knifeman involved in the armed robbery, one of the gloves is a distinct blue colour which is not the same as the gloves found at the back of the accused’s house during the search on 19 September 2017.
  • The jacket worn by Leighlani Carkeet in the course of the armed robbery on 3 October 2017 is similar to the jacket found at the accused’s house on 19 October 2017, as depicted in Exhibit 28.  However the court could not conclude it was one and the same jacket, as there was evidence that the jacket at the accused’s house was possibly a school jacket belonging to the niece of Ms Harris.
  • It was submitted that the colour of the shoes worn by the knifeman during the course of the armed robbery were different from the shoes worn by the defendant as depicted during the search on 19 September 2017. 
  • No cigarettes were found at the accused’s house, nor was the knife or firearm used ever found at the accused’s house.
  • The accused expressly denied being involved in the armed robbery, as well as the earlier “drive off”, that evidence should be accepted.  While there are inconsistencies in his evidence over the identity of the person putting petrol into the stolen Camry, ultimately he did not recognize the man.
  • The case against the accused is entirely circumstantial, and the prosecution simply could not exclude the rational hypothesis consistent with innocence that someone other than the accused was involved in both offences.

Closing submissions of the prosecution

  1. [98]
    The prosecution made the following essential submissions:
  • It was conceded that the case against the accused was purely circumstantial.  Reference was made in the course of the submissions to the following decision: R v Doyle [2018] QCA 383.
  • The Court should accept Senior Sergeant Scott’s identification of the woman wearing the Everlast tracksuit pants and distinctive singlet as Leighlani Carkeet, and that there were similarities between that woman seen on the security footage as well as the watch house photograph in Exhibit 12 of Leighlani Carkeet. 
  • The person putting petrol into the stolen Camry on 2 October 2017 was strikingly similar in appearance to the accused.  There was the proven association with Leighlani Carkeet, the person was wearing the same shoes as worn by the defendant on 19 September 2017, and the shoes showed the same distinctive pattern.  The cap was strikingly similar to the Chicago Bulls cap found at the accused residence on 19 October 2017.  The sticker on the visor and the logos may not be seen on the security footage due to glare from the overhead lights of the petrol station. 
  • There are distinct differences in appearance between the accused and Jayke Dempsey-Mitchell.  Jayke Dempsey-Mitchell’s hair was darker at the relevant time, whereas the offender at the BP petrol station on 2 October 2017 had lighter hair consistent with that of the accused. 
  • The gloves worn by the knifeman in the armed robbery at the 7-Eleven store were strikingly similar to the gloves seen at the back of the accused residence during the search of 19 September 2017.
  • The same grey Everlast tracksuit pants worn by the gunman were found at the accused residence on 19 October 2017, as was the distinctive jacket worn by Leighlani Carkeet in the course of the robbery. 
  • It was submitted that the accused was not a convincing witness, and his denials of involvement in the offences should be rejected.  In his evidence he did acknowledge that the Chicago Bulls cap belonged to him, and that Dempsey-Mitchell would take clothes from the accused and then return them.  There was an important concession by the accused that he had seen Dempsey-Mitchell wearing a distinctive Adidas jacket as seen by the offender armed with a knife. 
  • No curfew check was done by police on either 2 October or 3 October 2017, therefore the accused had a real opportunity to commit the offences. 
  • It was submitted that Ms Harris’ evidence was unconvincing and vague, and that she did not have a genuine memory of collecting the accused from his uncle’s house on the evening of 2 October 2017.  Her past criminal convictions cast doubt on her credibility. 
  • It was submitted that clearly more than three offenders were involved in the armed robbery at the 7-Eleven store.  There were the two armed robbers themselves, Leighlani Carkeet and someone driving the stolen Camry. 
  • The total accumulation of individual circumstances established the prosecution case beyond reasonable doubt; there was no rational hypothesis consistent with innocence. 

Fundamental legal principles

  1. [99]
    I have directed myself on the following matters:
  1. That the accused is presumed to be innocent of the charges, unless and until the prosecution have proved his guilt beyond reasonable doubt.
  2. That the onus is at all times upon the prosecution to prove the guilt of the accused.
  3. That the standard of proof that the prosecution must meet is proof beyond reasonable doubt.
  4. The accused in this case elected to give evidence and to call evidence.  He was under no obligation to do so.  That he has done so does not mean that he has assumed a responsibility of proving his innocence.  The burden of proof has not shifted too him.  For reasons that I will set out below, I do not consider that the defence evidence should be accepted.  However, I must be careful not to move from that view to an automatic conclusion of guilt.  The defence evidence should be set to one side, and I need to consider on the evidence that I do accept whether I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offences in question.

Special directions

  1. [100]
    As is acknowledged by the prosecution that this case is purely circumstantial, I need to direct myself on the appropriate law on circumstantial evidence.
  1. [101]
    In brief, circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. To bring in a verdict of guilty based entirely or substantially on circumstantial evidence, it is necessary that guilt should not only be a rational inference, but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is my duty to find the accused not-guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.
  1. [102]
    In R v Doyle, supra, Sofronoff P said the following:

[28] It was submitted that it could not be concluded that the appellant must have known whenever somebody else was using his car.  It was submitted that there was no evidence that the appellant had any capacity ‘to perpetually know where his car was’ and, as already discussed, the car might have been lent or sold. 

[29] In my respectful opinion this submission misunderstands the well-established proposition that, in a circumstantial case, in order to secure a conviction the Crown only has to exclude every reasonable hypothesis consistent with innocence.  It is important to appreciate that the word ‘reasonable’ does not mean ‘logically open in theory’.  Many inferences might be open as a matter of theoretical logic but which, in truth, are entirely unrealistic.  Various terms have been used to describe such unreal, but theoretically possible, inferences.  They have been called ‘light’ or ‘rash’ and they have been described as ‘mere conjecture’.  An alternative hypothesis must be a reasonable one in the sense that it rests on something more than a theoretical possibility or, if one prefers, upon ‘something more than mere conjecture’.  It must be based on evidence.”

  1. [103]
    In Shepherd v The Queen (1990) 170 CLR 573, Dawson J, with whom Toohey and Gaudron JJ agreed, said this at 579:

Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts.  It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the evidence sought to be proved.  The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused.  However, in most, if not all cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not.  Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and may itself be a matter of inference.  More than one intermediate fact may be identifiable; indeed the number will depend to some extent to how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements.  For example, with most offences it is a necessary fact that he accused was present when the crime was committed.  But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond a reasonable doubt form evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.

 

On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a change of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character.  If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn.  But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 in (Chadbourn Rev. 1981), par. 2497, pp. 412-414 – the evidence consists of strands and a cable rather than links in the chain, it will not be appropriate to give such a warning.  It should not be given in any event where it would be unnecessary or confusing to do so.  It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.

  1. [104]
    It was submitted by counsel for the accused that the identification of the offender putting petrol into the stolen Camry at the BP service station as the accused is a critical intermediate fact in the prosecution case. I accept this.
  1. [105]
    In Smith v The Queen (2001) 206 CLR 650 the critical issue is whether the appellant was the person depicted in photographs taken by a bank’s security cameras at the time of a robbery.  Two police officers gave evidence at the trial that they had previously dealt with the appellant on a number of occasions and recognised him as the person depicted in the photographs.  Apart from those photographs, there was very little evidence against the appellant.  The evidence of the police officers was held by the High Court to have been inadmissible.  The following was said in the joint judgment of Gleeson CJ, and Gaudron, Gummow and Hayne JJ:

[9] The only evidence led against the appellant in relation to that disputed fact was the evidence of the two police officers and the evidence that demonstrated that the photographs which were tendered in evidence had been taken by the bank’s security cameras during the robbery.  Neither police officers suggested that he had any basis for concluding that it is the appellant depicted in the bank photographs other than the knowledge that he had gained of the appellant’s physical appearance during those earlier encounters and whatever was revealed to a person who looked at the photographs that were produced in evidence.  There was no suggestion that the physical appearance of the appellant had changed materially between the time when the photographs were taken and the time of the trial, or that the police, by reason of their previous observations of the appellant, were at some advantage in recognising the person in the photographs.  It was acknowledged by counsel, in the course of argument in this Court, that, by the time the evidence had concluded, the jurors had probably spent more time in the presence of the appellant than had the police witnesses before they gave their evidence.  The police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors or, for that matter, some member of the public who had been sitting in court observing the proceedings.  If such a member of the public had been called as a witness, the same question of relevance would have arisen.  Thus, not only was the issue that was raised a very narrow issue, the data available to the jury for its resolution was no different in any significant way from the data upon which the police officers based their asserted conclusion.  The police officers conclusions and the jurors’ conclusion both depended upon combining their observation of the appellant’s appearance with their observation of the photographs.  (Having regard to the quality of the photographs we saw, it is not clear that the jury could not have compared them with the accused.)” (emphasis added)

  1. [106]
    In R v Hanson [1994] QCA 385, the appellant had been charged with taking part in a riot in prison, and wilfully and unlawfully damaging property.  The critical question at the trial was whether the appellant took part in that riot.  At the trial a prison officer purported to identify the appellant from a video recording of the riot as involved in two discrete acts in the course of the riot.  The Court of Appeal held that the evidence of the prison officer identifying the appellant from the video should not have been admitted.  Reference was made to an earlier Court of Appeal decision in R v Griffith [1995] QCA 159; (1995) 79 A Crim R 125.  Davies JA and Moynihan J in their joint judgment said the following at p 5:

The respondent submitted that there were two substantial advantages which, in terms of this Court’s decision in Griffith, Officer Wilson had over the jury in identifying the appellant on the video film.  One of these was said to be of more importance than the other.  The advantage of lesser importance was, it was said, that Officer Wilson had seen the film 30 or 40 times.  That, in our view, cannot be a substantial advantage of the kind of which the Court spoke in Griffith.  It must be seriously doubted whether one’s capacity for identification in such a situation could continue to improve up to the 30th or 40th viewing.  But in any event where it is a photograph of him which is the only means of identifying an accused, it is the jury who must make that identification and, in order to do so, be given whatever opportunities are necessary to determine that question.  If that involves playing the tape over to them many times then that should be done.  Whether that is necessary or not, it cannot place a witness in a position of substantial advantage over them simply because he or she has viewed the tape on more occasions than they have.

  1. [107]
    The Court of Appeal ordered a retrial, and Davies JA and Moynihan J at p 6 observed that:

The Crown may well be able to prove a case that the appellant took part in the riot by inviting the jury to view the video film and identify the appellant in it as taking part in one or both of the activities referred to above”.

Elements of the offences

  1. [108]
    I have directed myself on each and every element of the four counts charged against the accused. The critical question in this case is not whether offences have been committed, it is whether the prosecution can prove beyond reasonable doubt that the accused committed them.

Consideration

  1. [109]
    I found the evidence of the defendant to be unconvincing. He was a poor witness, who chopped and changed his evidence on critical issues, namely whether Jayke Dempsey-Mitchell would deliver clothes to his house at 6 Altair Street, Kingston, and whether he could say the person putting petrol into the stolen Camry was Jayke Dempsey-Mitchell or not. I do not accept his evidence that the Slazenger jacket depicted in Exhibit 28 belonged to his 11 year old cousin, Paige. It is a distinctive jacket that is clearly worn by Leighlani Carkeet during the armed robbery of the 7Eleven Service Station at Springwood. The size of that jacket found at the defendant’s house is clearly an adult size “S”.
  1. [110]
    Similarly, it was telling that when first asked by his counsel what Jayke DempseyMitchell would drop off at his house, he said “Yeah, like, jewellery and that.[35]  The defendant was unable to explain why jewellery would be delivered to his house by Jayke Dempsey-Mitchell.  I do not consider that the defendant was truthful in respect of that issue.
  1. [111]
    Similarly, I found his evidence concerning the shoes he was wearing during the police search of 19 September 2017 to be unconvincing. He claimed the shoes he was wearing did not belong to him, he did not know to whom they belonged, and they were simply at his house so he just put them on. It seems entirely coincidental that the shoes fitted him when he put them on. He claimed to have worn those shoes a couple of times.[36]
  1. [112]
    Relevantly, the defendant made some critical statements. In respect of the pair of pants depicted in Exhibit 26, he stated that he had worn them once or twice.[37]  Importantly, in respect of the distinctive black and white Adidas shirt that was worn by the offender who put petrol into the stolen Camry at the BP Service Station, and the offender wearing what appears to be the same distinctive Adidas shirt during the armed robbery at the 7Eleven Service Station, the defendant said that he had seen such a shirt before, worn by his associate Jayke Dempsey-Mitchell.[38]
  1. [113]
    The defendant’s evidence at the end of the day was simply not credible.
  1. [114]
    Similarly I do not find that Cathryn Harris was a credible witness. The evidence shifted from being unsure whether she could remember early October 2017, in particular the evening of 2 October 2017, to later saying she definitely had an independent recollection of that evening. Her credibility is affected by her admission that she had previously obstructed police by lying to police about the proper identity of one of her brothers, going to the extent of arriving at the relevant location with a birth certificate of her other brother Rodney Harris. It was quite apparent that Ms Harris was prepared to tailor her evidence to assist her son.
  1. [115]
    In contrast, I found Rodney Harris a truthful witness. That is not surprising given that he was called to give very brief evidence that on occasions the defendant would stay at his house when he had a curfew sometime in 2017. Unlike Ms Harris, he conceded that he could not remember what date or dates in 2017 the defendant would stay at his house.
  1. [116]
    I am not satisfied that the woman at the Logan Plaza Shopping Centre wearing the grey Everlast tracksuit pants and the distinctive singlet is the woman Leighlani Carkeet. I have closely looked at the watchhouse photographs in Exhibit 12 of Leighlani Carkeet, as well as the security footage of the stolen Camry being taken through the McDonalds drive-through at 9.32 am on 2 October 2017.  I viewed carefully the stills taken from that security footage which are Exhibit 14.  There is a resemblance between the woman in the distinctive singlet as depicted in Exhibit 10, which leads me to wonder whether the two women are related, perhaps sisters or cousins.  But in my view it is quite clear they are not the same person.
  1. [117]
    I consider that the shoes worn by the armed robber carrying the knife are very similar to the shoes worn by the offender putting petrol into the stolen Camry at about 9.15 pm on 2 October 2017, and are very similar to the shoes worn by the defendant during the police search of 19 September 2017.
  1. [118]
    I have looked closely at the live footage of the security camera at the BP Station from around 9.15 pm on 2 October 2017 Exhibit 15, and I have closely examined the extracted stills from the live security footage which are Exhibit 16, as well as the two still photographs that are Exhibit 1.  It is clearer on the actual video footage, that the cap worn by the offender putting petrol into the stolen Camry is similar to the Chicago Bulls cap found at the defendant’s house on 19 October 2017, but due to the glare of the overhead lights it is impossible to make a firm identification.
  1. [119]
    I have looked very closely at the security footage and unfortunately the camera is just too far away to make a positive identification. There is a strong resemblance of the offender to the defendant, who I had the opportunity of watching during the trial, as well as watching him during the various searches by police and viewing his facial features, body shape and movements. At its highest I can conclude that the offender putting petrol into the car has a strong resemblance to the defendant, but I simply cannot be satisfied to the requisite standard that it is him. Such a finding is an essential intermediate fact.
  1. [120]
    It is this critical factor upon which the prosecution case rests. There is a strong suspicion that the defendant was involved in these offences. The association with Leighlani Carkeet is a major factor, together with the fact that at various times the defendant has been in possession of clothing very similar to the clothing worn by the offender putting petrol into the stolen Camry, as well as some items of clothing worn by the armed robber with the knife at around 12.15 am on 3 October 2017.
  1. [121]
    In my view there is a rational hypothesis consistent with innocence, namely that the defendant may have been an accessory after the fact to the offences, with clothes left at his house, or that he lent items of clothing to associates that were later used in the offences on the indictment, without specific knowledge of the offences to be committed.
  1. [122]
    At the end of the day I cannot be satisfied beyond reasonable doubt that the defendant is guilty of any of the charges on the indictment. I therefore find the defendant not guilty on all counts.

Footnotes

[1]R1-21, l 40.

[2]R1-22, l 35.

[3]On the watchhouse photograph her first name is spelt “Leighalani”.

[4]R1-25, l 5.

[5]R1-27, l 35.

[6]R1-34, l 10.

[7]R1-41, l 45.

[8]R1-42, l 33.

[9]R1-55, l 38.

[10]R1-57, l 18.

[11]R1-59, l 15.

[12]R1-61, l 20.

[13]R2-4, l 40.

[14]R2-10, l 15.

[15]R2-11, l 40.

[16]R2-13, l 5.

[17]R2-13, l 16.

[18]R2-14, l 1.

[19]R2-20, l 25.

[20]R2-27, l 25.

[21]R2-28, l 25; R2-31, l 40.

[22]No evidence was given as to who was the actual mother of the baby.

[23]R2-36, l 20.

[24]R2-42, l 38.

[25]R2-43 – R2-44.

[26]R2-44, l 33.

[27]R2-49, l 40.

[28]R2-51, l 45.

[29]R2-54, l 15 and 45.

[30]R2-55.

[31]R2-57.

[32]R2-58.

[33]R2-59, l 30.

[34]R2-61, l 33.

[35]R2-13, l 18.

[36]R2-12, l 3.

[37]R2-17, l 10.

[38]R2-20, l 1, R2-24, 1 20.

Close

Editorial Notes

  • Published Case Name:

    R v Harris

  • Shortened Case Name:

    R v Harris

  • MNC:

    [2020] QDC 138

  • Court:

    QDC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    24 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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