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  • Unreported Judgment

R v Maguire

 

[2020] QDC 182

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Maguire [2020] QDC 182

PARTIES:

THE QUEEN

v

MONIQUE LOUISE MAGUIRE

(defendant)

FILE NO:

541/19

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland, Southport

DELIVERED ON:

4 August 2020

DELIVERED AT:

Southport

HEARING DATES:

17 and 18 June 2020

JUDGE:

Kent QC, DCJ

ORDER:

The defendant is found guilty and thus convicted of the offence

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where the defendant is charged with one count of burglary and stealing – where the co-accused and a female offender entered the dwelling of the complainant and stole a number of items – where the coaccused pleaded guilty to his role in the offending – whether the prosecution has proven beyond reasonable doubt that the female offender is the defendant.

CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – MODES OF IDENTIFICATION – OTHER VISUAL IDENTIFICATION – where a number of witnesses provided descriptions of the female offender matching the defendant’s appearance – where the female offender is captured on CCTV coming and going from the complainant’s residence – where the female offender is depicted on CCTV as having long blonde hair and a tattoo on her upper right thigh – where the defendant also has long blonde hair and a tattoo on her upper right thigh – where a police officer observed the female offender driving a vehicle linked to the offence – where the same police officer positively identified the defendant in a photoboard interview – where the defendant was located with the co-accused at premises linked to the vehicle after the offence – where some of the stolen goods were located at the premises.

COUNSEL:

J Guy for Director of Public Prosecutions R Pearce for the defendant

SOLICITORS:

Director of Public Prosecutions Gatenby Criminal Law

Introduction

  1. [1]
    This is a Judge alone trial heard in the District Court of Queensland at Southport on 17 and 18 June 2020.  The defendant is charged with one count of burglary and stealing. As submitted by the prosecution, the elements required to be proved are that the defendant
  1. entered or was in;
  2. the dwelling of another; and
  3. committed an indictable offence (stealing) in the dwelling.
  1. [2]
    Broadly the circumstances were that the defendant, with a man named Howell, is alleged to have gone to the complainant’s premises in Spendelove Avenue, Southport sometime after midnight on 14 January 2019, in an armed home invasion (although she is not charged with being armed). The elements are not contentious (in the sense that whoever was present did the things alleged) - the only issue in the case is identification; has the prosecution proven to the required standard of beyond reasonable doubt that the female who undoubtedly took part was the defendant?

The offence

  1. [3]
    The complainant was woken up by a dog barking, alerting her to someone at the premises.  She arose from bed and went to the front door where she saw Howell with a gun which had the appearance of a sawn-off shotgun at her front door.  There was some brief conversation between them and he spoke to someone else off to his left.  The complainant realised that someone may be going around her house to try to enter the back door.
  2. [4]
    Thus, the complainant ran to her back door and tried to close it and lock it, but was unsuccessful.  She retreated back into her house.  By that time Howell, armed with the gun had entered the house.  Then the female, who on the Crown case was the defendant, came into the house from the rear with a baseball bat over her shoulder.  That female is said to have been a woman with long blonde hair in a ponytail wearing a dark baseball cap and dark clothing.
  3. [5]
    The complainant fled the house, intending to raise the alarm.  This was very stressful for her, leaving her elderly and incapacitated father in the house together with her five year old son.
  4. [6]
    The complainant unsuccessfully attempted to arouse her neighbours.  She then continued down Spendelove Avenue to the nearby hospital where she was able to speak to a security guard who called the police for her.
  5. [7]
    Remaining in the area, she saw the man with the gun again, carrying what turned out to be property from her house to a dark coloured SUV vehicle.  The offenders drove off.  The complainant returned home to find that much of her property had been stolen.
  6. [8]
    The complainant’s description of the female offender was that she was taller than the complainant, apparently thin, wearing a cap and with long blonde hair below her shoulders.  The baseball bat was over her shoulder.  She was wearing what seemed to be a baggy jumper and may be a long skirt and running shoes.
  7. [9]
    The complainant said that the offenders’ vehicle was parked in a driveway in her street, but not her driveway.
  8. [10]
    In cross-examination, she said that police were able to return much of her property, but not all of it.  A substantial amount of jewellery was still missing.  She agreed that in a police statement she had said the female offender was wearing pants, whereas her version at the trial was that she was wearing a skirt (this is supported by security footage, exhibit 13).

Admissions

  1. [11]
    The parties made a number of mutual formal admissions which shortened the evidence in the case.  A copy thereof is attached to these reasons.  In short, it is common ground that the offence happened more or less as the complainant outlined and a significant amount of property was taken.  A black BMW X5 with the registration 014 YDL was used in the offence which was committed by Mr Howell, who pleaded guilty to burglary and stealing in this Court on 15 November 2019.  Police, acting on information, located the BMW at premises at 95 Corunna Crescent at Ashmore.  Those premises were surveilled by police between 1.04 am and 4.45 am on the morning of the incident.  By 4.45 am police towed the BMW, which was in the driveway, away for examination.
  2. [12]
    This produced DNA and fingerprint evidence connecting three females with the vehicle; the defendant, Carrie Sheridan and Sascha Webb.

Constable Leishman

  1. [13]
    The prosecution called Constable James Leishman, who was working that morning with his partner Sergeant Donaghy.  At 12.40 am in response to a call they attended the premises.  They stopped nearby Spendelove Street, in Queen Street, Southport to put their ballistic vests on (no doubt because of a report of a firearm).  Whilst parked there, the BMW X5 turned left from Ferry Road into Queen Street and drove past them with its headlights off.  It accelerated past them.
  2. [14]
    Leishman used his torch to look at the occupants of the vehicle as it went past and saw a male in his 20’s with dark hair and wearing camouflage clothing[1].  He correctly noted the registration of the vehicle as 014 YDL (the vehicle admitted to have been used in the offence). The male was the driver and the only occupant he saw[2]. The inference is that the BMW had left the offence scene, according to the complainant, turned left at Ferry Road, and left again into Queen Street when Leishman observed it, i.e. shortly after the offence. The headlights being off may thus be consistent with a desire to reduce the chance of being observed and identified.
  3. [15]
    He said the vehicle went out of sight.  He drove the police vehicle as far as Nerang Street (i.e. past the first available left turn, Tweed Street) and turned left.  Not seeing the BMW, he returned to Spendelove Avenue.  Patrols were made of the area looking for the BMW.  Police became aware of a connection to the Ashmore address and Leishman and his partner went there and set up the cordon previously referred to.  He saw the black BMW parked in the driveway.  He agreed that those premises were about 4 kilometres from the scene of the offence, a 7 or 8 minute drive.  By the time he saw the vehicle there about 25 minutes had passed from the first sighting.
  1. [16]
    In cross-examination he was asked about radio transmissions on the police network consistent with the above outline.

Sascha Webb

  1. [17]
    Ms Webb gave evidence.  She said that the vehicle was owned by an acquaintance of hers, Brendan Ellis.  She had borrowed it on occasions in December 2018 and January 2019.  At the time she had blonde hair, but had no tattoo on her right thigh.  She did not know the defendant and had never been to Spendelove Avenue and did not commit the offence (it is not suggested by the defence that she did).  She was shown some footage of the female from the offence and said it was not her.

Carrie Sheridan

  1. [18]
    Carrie Sheridan was called.  She also had been in the vehicle, with Ms Webb when her DNA had been left in it.  She did not know the defendant, did not commit the offence, and had no tattoo on her upper right leg.

Constable Bouloux

  1. [19]
    Andrew Bouloux was called.  He is now a Plain Clothes Senior Constable at Coomera CIB.  At the time of these events he was a Uniformed Constable.  He had commenced duties with the police in April 2015 and spent his first year of service at various stations on the Gold Coast.  Then he was in Cairns between 2016 and 2018, at which point he returned to the Gold Coast, serving at Southport doing general duties.
  2. [20]
    He had dealt with many females in his official duties, in the hundreds up to perhaps thousands. In evidence in chief he said he had no memory of dealing with Ms Maguire, prior to this offence.
  3. [21]
    On the morning in question he was at the Southport Station when the call came in for this event.  He attended with two other police in a vehicle.  The other officers were Coetzee and Threlkeld.  He attended in the vehicle which was assigned to the other two officers – Bouloux’s partner remained in the police station.
  4. [22]
    They arrived at the scene at 12.41 am and parked in a driveway at the hospital (i.e. west of the complainant’s premises, whereas the BMW had previously been parked further up the street, east of the premises, and thus closer to the intersection with Ferry Road) and the officers got out and began walking towards the scene of the offence.  Bouloux crossed over Spendelove Avenue to the southern footpath and began walking up the street.  He heard an engine behind him and turned to see a dark SUV with a female driving 6 to 7 metres away.  It slowed down for the pedestrian crossing in the area (where he had just crossed) which is also a speed bump.  He used his torch to illuminate the driver’s side of the vehicle and saw a female with a dark cap and a ponytail.  Her hair appeared to be bleached blonde.  She was wearing what appeared to be a dark long sleeved shirt.  He described her as skinny, about 30 years of age and with a pointy nose.  He had her under observation for 5 to 6 seconds[3].  He basically saw the right profile of her face. He did not recall whether there was a passenger.  He also noted that it was a BMW X5 and recorded the registration number accurately. 
  5. [23]
    The vehicle went to the corner of Ferry Road, at which point Bouloux lost sight of it.  Bouloux continued along the street in an easterly direction.  He came across a male in a hi-viz vest who was an employee of the hospital.  He eventually spoke to the occupier of the house, the complainant.

The identification

  1. [24]
    Later, on 31 January 2019, Constable Bouloux took part in a photo board identification process.  The investigating detective showed him the photo board, Exhibit 9, in a recorded encounter, the recording being Exhibit 8.  It is confirmed at the beginning of the recording that Constable Bouloux was one of the three first responders to the scene; that he had not been shown any photo or given any information about the identity of the offender prior to that interview; and he had not yet given a statement to investigating police.  He was shown the board and identified photograph no. 4, that is, Ms Maguire, as the driver of the vehicle he had seen that night.  The time taken to make the identification (from the twelve images) is about 11 seconds.  
  2. [25]
    My impression of that process was that Bouloux was both a confident and honest witness, and reasonably precise in his evidence.  He confirmed that the description of the driver was a female with a pointy nose, straight at the bottom, with pale skin, blonde hair and he had her under observation for about five to six seconds.  He initialled the photo board and confirmed that he had not been given any prior information about the alleged offender. The process of him selecting the correct image, in my observation, demonstrated no significant hesitation; a reasonable degree of confidence; and he unequivocally selected the defendant’s image.
  3. [26]
    In cross-examination, Constable Bouloux confirmed that his view of the driver on the night was largely in profile (from the right side).  Photograph 4, on the other hand, is a full face view with no profile, so that the possible distinguishing feature of a pointy nose was not visible.  It was pointed out that in the photograph Ms Maguire has a tattoo, apparently of a teardrop, underneath the corner of her left eye, and Bouloux confirmed that he did not see that on the night.  Of course, he would not have been in a position to observe this, given his description of the scene and the fact that he only saw her in profile from the right-hand side of her face.
  4. [27]
    He confirmed that he gave the statement three weeks after the event.  He was also referred to the incident log which recorded the various transmissions concerning the event.  He did not recall if he had looked at that when he was making his statement. He did not make a contemporaneous note of the description on the night of the events.[4]
  5. [28]
    He confirmed that his observation of the driver was with the assistance of torch light.  There was an overhead street light in the area, which was confirmed by an aerial photograph.[5]  He confirmed that the description recorded in his police statement was that the driver was “Caucasian; approximately 30; slim build, with a pointy nose; blonde, bleached blonde hair, tied up in a ponytail; wearing a dark coloured baseball style cap; wearing a dark coloured top with long sleeves”.  He did not recall a camouflage pattern on the top.  He said that in addition to the torch light there may have been some interior lighting in the vehicle in the form of reflection from the instrument lights.[6]
  6. [29]
    Constable Bouloux was cross-examined about whether the defendant may have reported to him on bail when he was on the counter at the Southport Police Station in 2015.  He said he did not recall ever meeting her previously, but it was possible that he had dealings with her which he did not recall.[7]  It was suggested to him that the defendant was reporting twice weekly to the Southport Police Station during 2015 and she encountered him on more than one occasion.  He responded that he did not recall her.  It was suggested that on at least one occasion she had queried him about the pronunciation of his surname.  He said that he did not recall this and “I’ve had that conversation a million times”.[8] His name, particularly in written form, may be considered by some to be unusual such as to attract comment; this is what Bouloux seemed to be explaining.
  7. [30]
    The possibility was suggested that he may have seen her in the Watch house after her arrest in relation to this offence on 14 January 2019.  She was in custody for 25.5 hours[9].  He said that he did not believe he had seen her during that time and he thought he would remember her if he saw her.[10] It was not positively put to him that he had seen her; this is understandable, because later the defendant, during her evidence, did not say she saw him during that time.[11]
  8. [31]
    Stuart McLean was called to give evidence.  He is a Plain Clothes Senior Constable from the Gold Coast CIB and the arresting officer.  He described the enquiries he had made and the fact that search warrants were obtained for the BMW X5 and the address at Ashmore.  The examination of the vehicle produced the fingerprints and DNA evidence referred to above.  Photographs of the premises at Ashmore were tendered. 

Photographs of the vehicle were tendered.  

  1. [32]
    Through the Detective, the CCTV footage from the house was introduced.  This has a number of recordings and Mr Howell can be seen coming and going, from 12.18am onwards.  He was wearing a beanie, a white t-shirt with an Adidas logo on the front (he is never seen in the footage wearing a camouflage type jacket) and shorts, carrying a gun. He appears to have heavily tattooed arms. In one image Howell can be seen carrying the gun and what appears to be the baseball bat from the premises. The female offender is also seen.  The images of the female offender show her wearing what may be described as a camouflage top.[12]  There is further footage of the female offender leaving the house, both slowed down and enhanced by being brightened.  This shows the female offender more clearly.[13]  In that exhibit, what appears to be a tattoo can be seen on the female offender’s right thigh, partially concealed by the hem of a skirt.
  2. [33]
    The detective explained that he executed a search warrant at Unit 2, 95 Corunna Crescent, Ashmore.  When they attended the police knocked on the front door with no response.  Dogs were barking.  Eventually they entered using keys provided by a real estate agent.   Police actually entered around 11.56am.[14]  The search process was the subject of an audio recording.[15]  The detective said that when police entered the unit the defendant and Mr Howell were in bed together in bedroom 1 as described on a diagram.[16]  In the bedroom the black gel blaster toy gun was found, which was the weapon (thought by the complainant to be a sawn off shotgun, which it resembles) from the offence.  The keys to the BMW were found in the bedside drawers on the same side as where the defendant was sleeping in the bed.  
  3. [34]
    In a second bedroom, the defendant’s handbag was found on a bed near other relevant property including property stolen from a complainant’s premises such as a laptop bag containing a number of electronic devices.[17]  Also found on the bed near the defendant’s handbag was the baseball bat; the association of those items is depicted in Exhibit 18.  Also on the bed was a red pillowcase containing a quantity of jewellery which belonged to the complainant and was again nearby the defendant’s handbag.[18]
  4. [35]
    Other property belonging to the complainant was found in the premises, although not all of the complainant’s jewellery was found.  Property was found on the dining room table including the complainant’s bankcard.  
  5. [36]
    Still images produced from body worn camera recordings during the search were tendered.  These show the defendant sitting on a couch and visible on her right thigh is a tattoo.[19]
  6. [37]
    Detective McLean conducted the photo board identification procedure with Bouloux, and had advised him not to look the defendant up on police records prior to that occurring.[20] Because the defendant has a facial tattoo near her left eye, a similar tattoo had in fairness been photoshopped onto the other images.
  7. [38]
    Another exhibit was a portion of the body worn camera footage from Officer Coetzee, which showed the BMW driving along Spendelove Avenue.[21]
  8. [39]
    In cross-examination, the detective agreed that he did not find any dark clothing or gloves at the premises, nor a baseball cap.  No camouflage coloured jacket was seized.  The detective agreed that the footwear seen on the female in the CCTV image was not found by police during the execution of the search warrant,[22] nor was there a skirt seized from the address.  The detective agreed that there was no evidence of any forensic connection (e.g. fingerprints or DNA) between the defendant and the items seized at the house.
  9. [40]
    Further mutual admissions were made at the end of the Crown case as to the contents of Constable Threlkeld’s evidence. He was on the footpath, heard the car, and turned and saw the black BMW X5 accelerating along the road towards him. He correctly recorded the registration number. He saw two occupants in the front seats, both with gloved hands and at least one wearing some clothing with a camouflage pattern. The car continued to the end of the road and turned right, heading south, meaning it was travelling on the wrong side of the median strip in Ferry Road, at least initially (being a 4wd with relatively high clearance, driving across the median strip may not have been a big problem).  He made a transmission about the car on his police radio.
  10. [41]
    The defendant gave evidence denying involvement in the offence.  Her evidence was that at the time she was prescribed Valium and she had taken a Valium tablet on the evening of 14 January 2019 and was sleeping from about 10.00pm onwards; i.e. she was sleeping rather than participating in the offence.  The Valium helps her sleep quite heavily and she is not easily woken.  The BMW X5 had been left in her care by its owner, in exchange for the loan of her utility; she was responsible for it[23].  She was asked about the footage depicting the female involved in the commission of the offence and denied that it was her.  She said she had no such skirt or footwear; rather her only available footwear was the runners she was wearing as seen in the search the following day.  Her only clothing was a bikini top and crop top with short shorts and her active wear.  She was only visiting the premises at Ashmore.  She did not have a baseball cap of any type or a camouflage jacket.
  11. [42]
    She gave evidence that she did recall having seen Senior Constable Bouloux previously, but really only remembered his name which is unusual.  
  12. [43]
    In cross-examination she said that at the time of the offence she was wearing a blonde wig and the hair went to a bit below her shoulders.  She agreed that she had a tattoo on her right upper leg which came to just above her kneecap.  Thus she agreed that in January 2019 she was 22 years of age with blonde hair below the shoulders or a blonde wig, of a slim build and with a tattoo on her upper right leg.  She said that she did not really remember Bouloux’s face, rather his name and name tag.  She said that she definitely could not have picked him out of a line up.[24]
  13. [44]
    She said that she was in the Watch house for slightly more than 24 hours and during that time did not recall seeing Officer Bouloux.  
  14. [45]
    She agreed that she had told police she was using the BMW for the night.  She had given the owner, Brendan, use of her green utility.  She was responsible for the

BMW.[25]

  1. [46]
    She agreed that she said to police during the search that Mr Ellis “has my car and I was using his last night. I didn’t – I sent him a text around 10pm last night when we got here, and we have not left the property since”.
  2. [47]
    She said that when she went to sleep her handbag was on the dining room table,[26] but seemed to shift ground and be uncertain as to this.[27]
  3. [48]
    She said that when she was awake, Mr Howell was still in the apartment and she was only enlightened recently that he was the person involved.[28] It seems surprising she had only discovered that fact recently, given Mr Howell’s much earlier plea of guilty; it is of course possible she had taken no interest in the matter, but this seems contrary to natural curiosity concerning a matter which is serious and directly affects her.
  4. [49]
    She said that she had parked the BMW on the street the night previously, rather than in the driveway or garage. She said the keys were in her handbag.
  5. [50]
    She said she was not in a relationship with Mr Howell, and he was just a friend.[29] She said that the car was left with her and she was told not to let Howell drive it.[30] She said that the tattoo on the leg of the woman in the footage was more or less in the same position as hers, but said that there were plenty of girls with similar tattoos.[31]

Defence submissions

Description of offender and CCTV images

  1. [51]
    The offender has a similar description to the defendant, including as described by the complainant. The defence submits that the evidence may give rise to suspicion, but not the required level of satisfaction to justify a finding that the defendant is the person depicted in Exhibit 13. It is pointed out that the footage was enhanced. It is submitted that the footage is not in focus; the facial features of the person are unclear; the leg tattoo is unclear and cannot be said confidently to be the same as Ms Maguire’s; the female in the video is of a smaller person than Ms Maguire; it is not possible to ascertain the height or any other usual distinguishing facial or bodily features of the female in the video; it is two dimensional and is not in colour.
  2. [52]
    It is submitted that the vision in Exhibit 13 is of poor quality so that it should not be relied upon. It is also submitted that other evidence points strongly to a conclusion that the person in Exhibit 13 is not the defendant.
  3. [53]
    In this regard, it is pointed out that none of the identifiable clothing in Exhibit 13 was located by police during the search but a few hours later. If she were the offender, the police would have been expected to find gloves, a baseball cap, a camouflage jacket, a skirt and relevant footwear, none of which was found. 
  4. [54]
    The evidence was that Ms Maguire’s association with 95 Corunna Crescent was fleeting. She only had limited clothing there with her. She insisted she did not own a baseball cap or a dark coloured jacket or a skirt.
  5. [55]
    Thus the defence points to the failure to find any of the relevant clothing items in the searches; it is therefore likely that she did not own them and was not wearing them at the time of the offence. It is also submitted that it is unlikely she would have selectively disposed of those items, given that proceeds of the offence were discovered at the property. The logic of the proposition is that one would not go to the trouble of disposing of the clothing, and some of the property, yet retain some of the stolen property. 
  6. [56]
    It is also submitted that there is no scientific evidence linking the defendant to any of the items. 
  7. [57]
    In relation to the missing property, the defence argues that this is also incongruous and suggestive of a conclusion that the female offender was not Ms Maguire, and the unknown female offender took with her the missing jewellery items and the missing clothing. It is argued that this hypothesis cannot easily be excluded and is consistent with innocence. 

Identification by Bouloux

  1. [58]
    In relation to the act of identification by Constable Bouloux, the submissions are that the quality of his evidence is not high when he was walking away from a vehicle as it approached and passed him; he had to turn his head to the side and behind him; the vehicle passed him at some speed; and he had a short time – the defence argue, less than two seconds – to observe the driver. It is also argued that the incident was at night time in less than perfect lighting, Bouloux could only have seen the driver’s profile, there was no contemporaneous note, there was a significant delay in the identification process and there was an absence of evidence confirming the timing and nature of any access by Constable Bouloux to the police computer database. It is also submitted that Bouloux did nothing to correct the situation report, recorded in the exhibit, made by Threlkeld almost immediately, that does not mention a female.
  1. [59]
    The risks of honest mistake in identification evidence were emphasised.[32]
  2. [60]
    The defence places considerable emphasis on Exhibit 26, the recording from the body worn camera of Coetzee, which, so it is argued, shows the BMW passing the scene relatively quickly, and demonstrates that Bouloux would have had no more two seconds to observe the driver. Further, it was submitted that the A pillar of the BMW could have interfered with Bouloux’s view during this time. This point was not raised in cross examination.
  3. [61]
    The defence submits that, assuming Bouloux was honest, his identification of the defendant from the photo board could be a matter of sheer coincidence, or the consequence of a displacement effect caused by his past engagements with the defendant. Further, it could be, despite Bouloux’s denials, that he did access the QPRIME database, and thus become familiar with the defendant’s photograph before seeing the photo board. As the defence notes however, Bouloux denied doing this; this is set out at the beginning of the recorded act of identification with McLean. The defence submits that there is no QPRIME audit trail corroborating Bouloux’s denials. 
  4. [62]
    It was also argued that the photoshopping of the tattoo onto the other female faces on the photoboard, while understandable, could have had the unintended consequence of prompting Bouloux’s memory – even unconsciously – as to his encounter with the defendant, years before, and thus (as I understand the submission) enhanced the chance of a displacement effect. I confess I found this reasoning process a little obscure, with respect, but have taken it into account.
  5. [63]
    It was also submitted that if Bouloux’s identification were not accepted beyond reasonable doubt, the balance of the circumstantial case does not justify a conviction.
  6. [64]
    The defence points out that the complainant, Constable Leishman, Constable Threlkeld or Constable Coetzee were not given an opportunity to view a photo board. This is suggestive of the investigating police forming a view that such an exercise would in each case have been unproductive. The defence submits that of that group of individuals, the limited opportunity for Constable Bouloux to make his observation was the least likely to have resulted in accurate identification.
  7. [65]
    Defence also submits that the observations of Constable Threlkeld, present in the form of a mutual admission, do not support Bouloux’s identification of the driver. The defence also points to the absence of Constable Coetzee as a witness, although Exhibit 26 was produced.
  8. [66]
    The defence also submits that Constable Bouloux did not observe any person wearing a camouflage patterned top, whereas both Leishman and Threlkeld observed such clothing within the BMW. There was a conflict with the evidence of Leishman that the driver was so attired. Further, the rhetorical question is posed, as mentioned earlier, as to what became of the camouflage jacket.
  9. [67]
    It is also submitted that, even if Bouloux’s identification is accepted, this is no more than circumstantial evidence, because it occurred shortly after the offending rather than during the offence itself, as in Festa v The Queen[33]. Thus if the identification were reliable, the prosecution case still depends on the drawing of an inference that the driver of the BMW is the same person depicted in Exhibit 13. It is submitted that there is no evidence that only two persons were involved in the commission of the offence. 

A reasonable alternative hypothesis

  1. [68]
    Accordingly the defence submits that there is a reasonable hypothesis consistent with innocence – i.e. the involvement of an unknown third party - which cannot be excluded to the required standard such that the defendant should be found not guilty. 
  2. [69]
    Indeed, the defence grappled with a proposition in which I canvassed with the defendant during her evidence, namely that, on her version, the true events must have been that Howell apparently 
  1. waited until she was asleep;
  2. without her consent took the BMW keys;
  3. went out with, or picked up, another unknown blonde woman of similar appearance (including, it seems, with a similar tattoo on her right thigh);
  4. committed the offence with that person;
  5. returned to the property having dropped off the unknown blonde woman;
  6. left the stolen property in plain view in the house;
  7. in association with the defendant’s handbag and the baseball bat;
  8. returned the keys to the bedside table on the defendant’s side;
  9. and went to bed with her;  all without telling Ms Maguire or her otherwise becoming aware of this activity.

In dealing with this, the defence points out that the defendant has no onus to prove her innocence or explain how Howell committed the offence, or who his unknown associates may have been. This is perfectly correct; the onus remains on the prosecution. It is submitted that Howell may well have other associates along these lines. The defendant’s association with the residence was fleeting and with Howell was tenuous; her unchallenged evidence was that he was merely a friend. Her evidence was that a number of people had come to the house that evening. The defence submits that the defendant’s evidence should not be rejected merely because it may appear unlikely, and in all the circumstances the evidence falls short of discharging the prosecution onus beyond reasonable doubt, and the defendant should be acquitted.

The defence submitted that the Crown case was, in effect, an exercise in cherry picking the facts which suited their theory, while ignoring inconvenient problems including the missing property and clothing, particularly gloves (there was little opportunity for someone to have left the Ashmore property with these items unobserved; and police should have located them in a small unit if they were present).

Prosecution Submissions

  1. [70]
    The prosecution submits firstly that the Crown case is a circumstantial one as there is no direct evidence of the defendant’s participation in the burglary. While there was a positive identification made by Officer Bouloux that evidence tends to prove the defendant was in close physical proximity to the offence location at the relevant time. If those facts are established, they form part of the basis for an inference that the defendant was the female offender. Given the Crown case is a circumstantial one a verdict of guilty cannot be returned unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.”[34]
  2. [71]
    It is submitted that a circumstantial case is not to be considered in a piecemeal fashion.[35] It is of critical importance that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether it is open to draw the ultimate inference of guilt. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.[36] I accept this is the proper approach. 
  3. [72]
    The prosecution submits that the relevant circumstances driving the required inference are as follows:
    1. (a)
      The complainant’s description of the female offender is consistent with the defendant’s appearance; 
    1. The complainant described the female offender as thin, wearing a baseball cap, a “jumper kind of thing,” a skirt and running shoes. The female also had blonde hair that “seemed to be in a ponytail” and if out it would fall below the shoulders.[37]
    2. The above observations were made in circumstances where there was sufficient lighting. When asked what the lighting was like at the front area of the house the complainant answered “[i]t’s good because of the hospital next door, so the street and security lighting and the area is quite light up.”[38] The complainant also explained that she left a lamp on in the kitchen and that provided light to “both ends of the house.”[39]
    3. The circumstances in which the complainant made the observations, that is in a heightened state when one might think details become important and in the close quarters of a single level home, also contribute to their reliability.
    1. (b)
      The female offender shown in the CCTV footage was physically similar to the defendant (see further below); 
    2. (c)
      The complainant ran from her house to the Hospital’s security guard who called 000. The 000 call was made prior to the offenders leaving the house. The first transmission heard over the police radio relating to the offence occurred at 12:39am;[40]
    3. (d)
      The complainant described that the male and female offenders entered a dark SUV type car and drove away from the scene towards Ferry Road;[41]
    4. (e)
      Officer Leishman received a call over the police radio about the offence at 12:40am while on the road. He was stationary on Queen Street in a “matter of minutes.”[42] A black BMW X5 with the registration 014YDL came from Ferry Road, turned onto Queen Street and travelled in the direction of Tweed/Nerang Streets.[43] The car’s headlights were turned off.[44] This evidence strongly suggests that the black BMW X5 seen by Officer Leishman was the car occupied by the offenders immediately after it left the offence location; 
  1. It is submitted that Officer Leishman’s evidence that he only saw one occupant and described that occupant as a male in his early 20s with dark hair[45] does not create any real concern in the chain of reasoning. It could have been that the male offender was driving and the female offender was unable to be seen at that point; the two later switching seats (there is time and space for this in the one block stretch of Tweed St between Queen St and Spendelove Ave). Alternatively, Officer Leishman could have actually seen the female offender driving as he described that person as wearing camouflage; the dark hair could be explained by the dark cap the female was said to be wearing (nevertheless, the conflict between his observations and those, shortly later, of Bouloux is at least curious).
  1. (f)
    First response officers saw the black BMW X5 with the registration 014YDL on Spendelove Avenue at approximately 12:41am.[46] That is shortly after the offending and likely after the sighting on Queen Street. The route taken by the car is what one might expect of offenders fleeing a scene and encountering police along the way (possibly not expecting a second police contingent to already be in Spendelove Avenue); 
  2. (g)
    Officer Bouloux, who saw the black BMW X5 on that occasion, identified the defendant as the driver of the car in a photo board[47] (see further below); 
  3. (h)
    Officer’s Bouloux’s description of the driver of the black BMW X5 is consistent with the defendant’s appearance and the description of the offender provided by the complainant. Officer Bouloux described the female as wearing her blonde hair in a ponytail; the blonde being described as “heavily bleach blonde.”[48] The female also appeared to be skinny, approximately 30 years of age and having a very pointy nose;[49]
  4. (i)
    Police linked the black BMW X5 with the registration 014YDL to 95 Corunna Crescent, Ashmore and subsequently attended that address at 1:04am.[50] Upon attendance police saw the black BMW X5 parked in the front yard.[51] That is, only 23 minutes after the black BMW X5 was seen in very close proximity to the offence location, it was seen by police at the address from which it was ultimately seized; 
  5. (j)
    From 1:04am until 4:45am 95 Corunna Crescent, Ashmore was under supervision by police and during that time no cars entered or exited the street;[52] 
  6. (k)
    Police executed a search warrant on Unit 2 of 95 Corunna Crescent, Ashmore at approximately 11:56am, that is only 7 hours after police ceased to have it under observation. Upon entering the Unit police located the defendant and Howell in bed together in bedroom 1 of the Unit.[53] During that search a number of items of property were located, significantly: 
  1. The key for the black BMW X5 with the registration 014YDL was located in the bedside table closest to the defendant in bedroom 1.[54]
  2. A gel blaster gun, similar to the one used in the offending and shown in the CCTV footage, was located in bedroom 1.[55]
  3. A baseball bat, similar to the one used by the female offender and shown in the CCTV footage, was located on the bed in bedroom 2.[56] The bat was in close proximity to the defendant’s handbag.[57]
  4. Police located a grey, white and black laptop bag containing electronic devices belonging to the complainant on the bed in bedroom 2.[58] That bag was in close proximity to the defendant’s handbag. 
  5. Police located a red pillowcase containing assorted items of jewellery belonging to the complainant on the bed in bedroom 2.[59] The pillowcase was in close proximity to the defendant’s handbag. 
  6. Other electronic devices belonging to the complainant were located in bedroom 2.[60]
  7. The green Woolworths bag containing various items of property and a cream purse belonging to the complainant was located on the dining room table, that is, a communal and visible area.[61]
  1. (l)
    The defendant’s statement to police that she had management and control of the black BMW X5, specifically, that “the person that resides here is using my car and I was using his car last night.” This was echoed in cross – examination when the defendant said “I was the one left responsible for the car;”[62] and 
  2. (m)
    The defendant’s association with Howell around the time of the burglary. This is developed as follows:
  1. In Festa v The Queen,[63] a circumstantial identification case involving two armed robberies on the Gold Coast, the Crown relied on the proven association between the male offender and Festa (the female offender) as a circumstance pointing to the latter’s guilt. In his summing up the trial judge outlined the evidence that suggested the two had a close association and went on to direct that it was open to the jury to conclude that where one of the accused was identified to their satisfaction, it was open to them to conclude that it was the other accused who was seen with him or her.[64] It was permissible to use the evidence in that way and no issue was found with the trial judge’s direction which did not invite the jury to consider alternate hypotheses. 
  2. Presently, there is an admission that the male that committed the offence was Howell. The identification of the male offender is therefore certain. 
  3. The defendant herself provided evidence of a close association existing between the pair immediately preceding the robbery. During the search the defendant said to police “[c]ause I kn-, I--Asked us to look after--A friend’s house—“;[65] this (presumably focusing on the pronoun “us”)  suggests the pair were jointly asked and responsible for being present at the Ashmore Unit, demonstrating a level of association. The defendant also told police “B-, yeah the, the person that resides here-- Has my car and I was l-, using his car last night. I didn’t, I sent him a text around 10 PM last night when we got here and we have not left the, the property since.”[66] In terms of their activities at the Unit that night the defendant explained “we just got out of there. We had a couple of J-Ds um, played some music.”[67]
  4. Plain Clothes Senior Constable McClean’s evidence that when police executed the warrant the following day the defendant and Howell were in bed together also demonstrates this association.[68]
  1. [73]
    The prosecution submits that in relation to the CCTV footage, the female offender depicted has significant physical similarities to the defendant.  This evidence is relied upon as “circumstantial identification evidence” that is, a circumstance that when considered with the other evidence points to the defendant’s involvement.[69]
  2. [74]
    The Crown does not submit that the Court should make a positive identification of the defendant from those images.  It is conceded there are limitations inherent to such footage capturing, in black and white, clothing geared perhaps towards concealing the offender’s identity at night-time which would prevent this, adopting some of the criticisms from the defendant’s outline.  However nevertheless the footage remains a compelling piece of evidence implicating the offender.
  3. [75]
    It is submitted that the first significant similarity between the two females is their physical build.  The female in the footage has a very slim build, this is particularly noticeable when looking closely at her legs.  The stills from the police body worn camera footage of the search at the Ashmore unit show the defendant to be of a similar build at the relevant time.[70]  Still no. 3 shows the defendant when standing, and it is submitted that there are clear similarities between the defendant’s legs and those of the female in the footage.
  4. [76]
    The still images from the body worn camera also show the defendant’s hair at the relevant time.  It is blond and also when up in the ponytail/bun style is very comparable to the offender’s hair shown on Exhibit 12.[71]  The offender’s hair is shown at approximately 6.48 of clip 2 on Exhibit 12, showing her walking away from the house.
  5. [77]
    It is further submitted that when - at approximately 6:45 of clip 2 on Exhibit 12[72] - the female offender is walking down the steps of the complainant’s house, the earring of the offender catches the light and shines.  The stills of the defendant on the next day show her wearing earrings that appear quite shiny at least to the extent that is visible from the still image.  What the prosecution submits is that an offender might be aware enough to remove or dispose of clothing that could be linked to an offence but it is less likely to change their personal jewellery (perhaps the submission is that this detail could be more easily overlooked by an offender).
  6. [78]
    The prosecution submits that the most significant similarity is the tattoo on the upper right thigh.  The stills from the body worn camera show the defendant’s tattoo in that area, ending just above the knee.  They show it from the side (when she is sitting) and from the front (when she is standing).  A tattoo on the female offender is visible on both the enhanced and unenhanced[73] versions of the CCTV footage.  This, so it is submitted, shows a dark area on the upper right leg/thigh ending just above the knee.  When viewed in motion it is clearly not a shadow but rather a tattoo.  The minute details of the female offender’s tattoo and the defendant’s cannot be compared, but this is submitted to be not significant.  Rather the significance is in the fact that there is a tattoo of a similar size and shape in the same area, particularly when considered in the context of the wider circumstantial case.

Submissions as to the Photo Board identification

  1. [79]
    The Crown submits that the identification by Bouloux was clear and compelling. Reference is made to a number of features:
  1. (a)
    The identification was made by a first response officer responding to a priority Code 2, meaning “urgent police response” “lights and sirens”.[74]

A person in that role and in this context would likely be focused on noting and recalling details for likely use.

  1. (b)
    The environment was comparatively well lit.  Both Bouloux and the complainant gave evidence that the hospital created a relatively significant amount of light in the area.  Street lighting also provided some illumination.[75]  Officer Coetzee and Threlkeld also shone their torches into the front of the car.  Ultimately, the body camera footage from Coetzee clearly demonstrated how well lit the area was at the time.[76]
  2. (c)
    Bouloux saw the car over a distance of about 35 metres.[77]  His attention had been drawn to the car by its revving engine, it travelled to a pedestrian crossing (which was also, in effect, a speedbump), slowed to cross it and then sped off.  He had it under observation for a short time (as I understood the submissions, perhaps as little as two seconds), nevertheless its probative value remains.
  1. (d)
    Bouloux was close to the car when he had it under observation.  It was in the middle of the road and he was near the gutter, no more than six to seven metres away.[78]  This is consistent with Exhibit 26.
  2. (e)
    Bouloux saw a relatively large portion of the female’s face.  His gestures indicated he saw all of the right hand side of her face including the hair and just past her nose on the left side.[79]
  3. (f)
    Bouloux was focused on the driver of the black BMW X5.  When asked about a passenger he said: “I don’t recall specifically anyone else in the car.  I was focused on the driver.”[80]  Because Buloux was evidently focused on the female driver’s face, this could explain why he did not describe her as wearing a camouflage jacket.  Instead he said that she was wearing a “dark coloured long sleeved shirt”.[81]
  4. (g)
    The prosecution submits that the identification was clear and without ambiguity.  He took sufficient time to look at the images and then made a relatively quick identification after about 11 seconds and he appeared confident (I have referred to this above); and
  1. (h)
    Officer Bouloux was an honest and reliable witness, the prosecution referring to his demeanour; he did not obfuscate or avoid unhelpful details and made reasonable concessions.  For example when asked by defence counsel if he made the radio call that gave the description of the occupants of the car wearing  gloves and camouflage clothing he said that he couldn’t recall “I don’t believe I gave that transmission, because it is not what I saw.”[82]  He did not deny that he had dealings with the defendant previously.  In this context the prosecution acknowledges that the authorities warn to treat identification evidence with care because of the possibility of an honest but mistaken witness.[83]  Thus the prosecution submits that honest concessions by Bouloux would tend to alleviate concerns about overstating the identification.  What is argued is that if he harboured any significant doubt he would have acknowledged this.  Conversely, when pressed about the possibility of mistake he said, “I believe that the person that I saw last night, identified, as that person MFI number 4.”[84]  Further in this context it is submitted by the prosecution that there is no reason not to accept Bouloux’s evidence that he did not access QPRIME and see the defendant’s photograph prior to the act of identification.  It is submitted that the contrary proposition was never put to Bouloux.
  1. [80]
    The prosecution submits that the identification being conducted 18 days after the observation was not immediate but not an overly lengthy delay.  Further, the circumstances in which it was made do not significantly detract from its probative value.
  2. [81]
    The prosecution also submits that the absence of evidence from Officer Coetzee is not concerning in the sense of giving rise to any adverse inference.  Further, Bouloux’s evidence as to his lack of any memory of previous dealings with the defendant alleviates the concern of a displacement effect.
  3. [82]
    It is submitted there is little risk of Bouloux having seen the defendant in the watchhouse prior to her release; there was, as outlined above, little opportunity for this to occur in the relatively short time, when overlapping with Bouloux’s shift was unlikely.  Bouloux said, “It is possible, but I believe I did not see her.”[85]  To this should be added, as outlined above, the fact that it was not put to Bouloux that he had seen her; thus, it can be inferred that if there was such interaction either the defendant did not see it or did not remember it. As I have mentioned, the defendant did not give evidence of having seen Bouloux in the watchhouse.
  1. [83]
    The prosecution acknowledges that Bouloux and the defendant may well have had a previous interaction in 2015 when she was reporting on bail.  He did not specifically recall this, as outlined above.  The defendant herself gave evidence that the whole process of reporting for bail was a quick one.[86]  The prosecution submits that if there was any such interaction it was not memorable and likely of short duration.  This is argued not to detract from the identification process significantly.  It was, of course, years earlier.

Submissions as to exclusion of other possible offenders

  1. [84]
    As outlined above, both Ms Sheridan and Ms Webb denied committing the offence, and are not suggested by the defence to have done so.

Submissions as to the defence case

  1. [85]
    The prosecution submits that there are reasons to reject the defendant’s denials.  Firstly, it is argued that her version is implausible.  Reference is made to the scenario as outlined at paragraph [69] above.
  2. [86]
    The prosecution also submits that to some extent the defendant’s was an evolving account.  Thus the defendant did not tell police during the search about having taken Valium, but raised this in her evidence at the trial.  When pressed on this she said, “I did not think I have to act defensively straight away”.[87]  She also said that, “If I recall it’s an edited clip.  A lot more was said from what was shown to the courts today.”[88]  The idea of some suspicious editing does not seem to have been advanced or pressed at the trial.  The prosecution submit that the defendant’s answers did change and were inconsistent with her conduct at the search.
  3. [87]
    The prosecution also submits that the defendant’s version was inconsistent.  These included what time she had gone to sleep.  During the search she told police that the last time she spoke to Brendan was about 10 pm, and also told police that when they were at the unit they had some JDs and listened to some music.  She later said, “I sent him a text around 10 pm last night when we got here.”  This leads, so it is submitted, to an implication that she went to sleep well after 10 pm.  However in evidence she said that she was sure that she went to sleep about 10 pm.  She seemed to accept that there was an inconsistency in the evidence and she referred to being frightened by the police and taking Valium.
  1. [88]
    The prosecution also submits that there was an inconsistency about the positioning of her handbag.  During the search the police asked the defendant if she had entered bedroom two and she responded, “Only last night when I was stumbling to find a bed and that’s why my handbag’s here.”[89]  In cross-examination the defendant was asked about the complainant’s belongings on the dining room table and said “where they should have found my handbag”.  Again she attributed the differing accounts to the Valium.[90]
  2. [89]
    The prosecution also submit that some aspects of the defendant’s version are simply unreasonable.  This includes the claim that she did not own a single skirt.[91]  This is said to be unlikely and unreasonable.  The prosecution also referred to the lack of detail in the defendant’s account and also her demeanour which was argued to be that of a non-genuine witness.  It was submitted that she provided limited details and only when challenged to provide further details, tending to support her position, and such details had a tendency to shift.
  3. [90]
    The prosecution did come to grips with some of the difficulties in the Crown case.  In relation to items of clothing worn by the female offender in the CCTV footage not being found at the Ashmore unit, and some of the complainant’s jewellery never being found, the prosecution submits that these do not raise reasonable doubt.  It is argued that it is conceivable they were simply not found by the police that were searching.  The prosecution points to the defendant’s statement that, “The place was a pig-sty.”[92]  The prosecution also submits that it is notable a camouflage jacket was not listed on the search warrant and as such those searching would not have been alerted to its significance.
  4. [91]
    As to the allegedly outstanding jewellery, the complainant herself could not reliably detail the items that were taken and could not say exactly what was outstanding.[93]  It is submitted that it would have been difficult for the police searching the Ashmore unit to identify and seize all the items of jewellery belonging to the complainant, where the complainant herself was unsure.  In relation to the defence argument that the missing female offender in fact took some of the jewellery with her, the Crown’s submission is that this would appear to be a very small cut of the proceeds for participation in serious offending.
  5. [92]
    It is next submitted that clothing could have been disposed of during the drive from the offence location to the Ashmore unit (if the drive is 7-8 minutes, there was a 23 minute window before police arrived).  It is submitted that this would not fly in the face of retaining the stolen property as is submitted by the defendant.  This is because the stolen property is of value and keeping it under the offender’s control is logical.
  6. [93]
    The prosecution also submits that the lack of forensic evidence linking the defendant to the stolen property is of little significance.  The female offender depicted in the CCTV footage was wearing gloves and thus physical evidence could not be expected.
  7. [94]
    In conclusion the prosecution submits that in all the circumstances the only rational inference is that the defendant was the female offender and should be found guilty.

Directions

  1. [95]
    There are a number of directions which I must take account of in considering this matter. They include Direction 26, where the defendant gave evidence; Direction 48, circumstantial evidence; Direction 51, identification evidence; Direction 112, the elements of the offence. Appended to these reasons are appropriately edited examples of these directions. I have taken them into account, as I hope the modifications and editing indicate. 
  2. [96]
    The prosecutor further submitted that care should be taken in relation to the evidence that the defendant was on bail in 2015, and that there should be a direction along the lines of perhaps the bad character/ previous convictions direction (Direction 43 in the present version of the Benchbook). I am not sure this is so; the fact the defendant was on bail in 2015 has little relevance, other than the purpose for which it was introduced by the defence (i.e. to canvass the possibility of a displacement effect). I am not aware of any conviction that followed from that period on bail, and the defendant is simply presumed innocent of whatever she was then charged with. The fact she was on bail in 2015 does not make it any more likely she committed this offence, nor does it impact negatively on her creditworthiness as a witness.

Discussion and Conclusion

Similarity of description including CCTV

  1. [97]
    As outlined above, the circumstantial case against the defendant is powerful. She was associated with the proven offender Howell, before and after the offence. She has the same description as the female offender, and physically closely resembles her, both from the description by the complainant, comparison of the images from the CCTV at the house and the search the following day, and comparison of the CCTV images of the offender and the defendant’s appearance in court, particularly the witness box. Although I was not struck by the degree of “pointiness” of her nose, I could also understand that would be a reasonable description of the feature. The identification by Officer Bouloux, if accepted, places her in the vehicle at the scene in close association with the time and place of the offence. The identity of the offending vehicle, which the defendant admits was her responsibility, is not in question.
  2. [98]
    The resemblance between the CCTV images and the defendant as shown on the stills from the body worn camera footage later that morning (Ex. 24) is strong. The CCTV shows what appears to be a skirt; however, possibly it could be the long singlet shown in Ex. 24, with a short fitting dark coloured top worn over the upper half. I have compared the two images a number of times and find this to be a distinct possibility; in saying this I am not purporting to identify the two items as being the same, rather the point is that the similarity detracts from the defence argument that there was a skirt which was not found during the police search. 
  3. [99]
    It was not suggested to Det. McLean that the search warrant parameters included a skirt[94]. There was, apparently, reference to dark clothing and gloves;[95] the detailed suggestions did not seem to go much further than this, and none of the relevant documents were tendered. It is, of course, perfectly correct that the gloves were not found at the house. There was time and space after the last sighting of the vehicle for them to be disposed of; there is, of course, no direct evidence this happened, and this is an anomaly to be taken into account in the weighing of the entirety of the evidence.
  4. [100]
    I accept, as the Crown submits, that the build of the two females in those images is similar, in particular the legs. The hair is similar. It is correct to say that both appear to be wearing earrings; one does catch the light on the CCTV as she descends the stairs. The leg tattoo is at least superficially similar and, in my view, reasonably distinctive, although I am not concluding that it is singular. There is no actuarial evidence as to the frequency of such tattoos (i.e. a large tattoo on the right thigh) in the female population. 
  5. [101]
    The footwear, when examined closely, could be at least similar. True it is that it appears light coloured in the monochrome CCTV footage; but so do other things which are likely dark, such as trees. It certainly could be a pair of athletic shoes, such as Nike runners[96], and the second image of Ex.24 shows fairly clearly the defendant wearing Nike runners, albeit black in colour. There is a probable difference in the footwear, but not as sharp a difference as the defence argues.
  6. [102]
    I do not purport to make a positive identification of the defendant from the CCTV footage (nor, of course, does the prosecution urge me to); rather the similarities amount to circumstantial identification evidence pointing to her involvement. It must be borne in mind that this is a circumstantial case where the “strands in a rope” analogy applies; each individual circumstance, taken alone (including the identification evidence of Const. Bouloux), might not be enough to satisfy the Crown’s onus, but collectively the result may be very strong.[97]

Photoboard identification

  1. [103]To all of this is added the photoboard identification. I do find it to be clear and compelling; as I have said, I formed the impression of Officer Bouloux that he was an honest, confident and reasonably precise witness, and one, as the prosecution submits, who made reasonable concessions. The 18 day delay is, of course, less than perfect but not excessive. He selected the defendant’s image confidently and unequivocally after an examination of the 12 images taking 11 seconds. I accept that he did not access QPRIME records to look at her photograph before the identification; that he did not see her in the watchhouse after her arrest; and that he did not recall her face from 2015 such as to give rise to a displacement error. He had perhaps two seconds or so to see the driver’s face as it passed him, at some speed, but in relatively good lighting, as Ex. 26 shows; he was alert to observe possible offenders considering his role; he was about 6-7 metres away at the closest point. Given he focused on the driver, it is understandable he did not remember any other occupant of the car.

Findings at the house

  1. [104]
    Other relevant circumstances include the findings at 95 Corunna Crescent. The BMW was there within 23 minutes of the offence and thereafter no-one was observed to leave the address, at least until 4.45 am when the car was towed. It seems an irresistible inference that the process of doing so would have been somewhat noisy, yet there was no challenge from the defendant (inside the dwelling where the driveway was), in whose custody the car was at the time. Her evidence that she slept through this is at least questionable. She also, on her version, slept through police knocking on the door, and dogs barking such as to alert the neighbours, at about 11.30 am.[98]
  1. [105]
    In any case, it is common ground that the search revealed the weapons, including the baseball bat. This was found with the defendant’s handbag and the complainant’s property, in the second bedroom. She was in bed with Howell, who committed the offence, in bedroom 1, and the keys to the vehicle were in her bedside table; as she said, she had been left responsible for the car. So the evidence shows a physical and temporal association between the defendant and
  1. The offender Howell
  2. The proceeds of the offence
  3. The weapons likely used in the offence
  4. The vehicle used in the offence
  1. [106]
    Further, the other evidence tending to establish the defendant as the offender include
  1. The similarity between her appearance and the description by the complainant
  2. The fingerprint connection with the vehicle (although she admits using it)
  3. The similarity between her and the CCTV images of the offender
  4. The identification by Bouloux of her as the driver shortly after the offence

The approach to a circumstantial case

  1. [107]
    The question is whether the various circumstances establish the vital fact of identification to the required standard. As submitted by the prosecution a verdict of guilty cannot be returned unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.”[99]
  2. [108]
    The referenced passage from Baden-Clay is as follows:

“Hypothesis consistent with innocence

The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused':  Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw':  Plomp v The Queen; see also Thomas v The Queen."

For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.” (citations omitted)

  1. [109]
    It is well settled, as the above quote mentions, that a circumstantial case is not to be considered in a piecemeal fashion.[100] I have already mentioned the “strands in a rope” analogy. I do not approach this as a case in which the identification by Const. Bouloux should be regarded as an indispensable intermediate fact which should be proven beyond a reasonable doubt, such that a Shepherd type direction applies. 
  2. [110]
    It is of critical importance that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether it is open to draw the ultimate inference of guilt. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.[101] I accept this is the proper approach. All of the circumstances are to be considered and weighed; not in a piecemeal way; and mere conjecture, or suspicion, is clearly not enough.
  3. [111]
    My conclusion is that on a consideration of all of the evidence, including the defendant’s sworn denial and the various features referred to by defence counsel as outlined, the prosecution has successfully excluded any inference consistent with innocence to the required standard of beyond reasonable doubt. The combined force of the relevant circumstances is very powerful, including as it does aspects of factual and temporal association with the offender and with the vehicle, the property and the weapons; and the bodies of circumstantial identification evidence, including a clear, and in my view honest, identification by Bouloux.

The defendant’s evidence 

  1. [112]
    The defendant’s evidence was not persuasive; it suffered from the weaknesses identified by the prosecution outlined above, in summary that it was implausible; to some extent it was an account which evolved; it contained the inconsistencies referred to; and it is unlikely she did not own a skirt. To this I would add some doubt about her version of sleeping through the vehicle being towed and the police knocking on the door and dogs barking. 
  2. [113]
    In particular, the involvement by Howell, without the defendant’s knowledge, of a third person so resembling the defendant, using the car which was the defendant’s responsibility, in all the circumstances listed in [69] above is so implausible as to be fanciful. I therefore find it should not be accepted. It is thus, according to the directions and the proper reasoning process, set to one side. I then return to the rest of the evidence which I do accept, to consider whether the prosecution has discharged its onus beyond reasonable doubt.

Conclusion

  1. [114]As outlined above I find the circumstantial case established by the evidence identifying the defendant as the female offender to be a strong one, and thus I find she is proven to the required standard to have been that person. The prosecution has thus proven the elements of the offence in question beyond reasonable doubt and I find the defendant guilty.

Directions R v Maguire

Elements of Burglary s 419(4);

The prosecution must prove that:

  1. The defendant entered or was in the dwelling of the complainant;
  2. She therein committed an indictable offence, namely stealing.  

Defendant Giving Evidence

Judgment-Image

The defendant did not have to give evidence, or call other people to give evidence on her behalf, or otherwise produce evidence.  That she has done so does not mean that she assumed a responsibility of proving her innocence.  The burden of proof has not shifted to her.  Her evidence is added to the evidence called for the prosecution.  

The prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.

Sometimes cases are described as ones of “word against word”.  I understand that in a criminal trial it is not a question of making a choice between the evidence of the prosecution’s principal witness or witnesses, and the evidence of the defendant.  

The proper approach in this case is to understand that the prosecution case depends upon my accepting that the circumstances establish the defendant’s guilt beyond reasonable doubt, despite the sworn evidence by the defendant. I do not have to believe that the defendant is telling the truth before she is entitled to be found not guilty.  

Where, as here, there is defence evidence, usually one of three possible results will follow:

  1. I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, the verdict would be not guilty; 
    or
  2. I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was.  If so, the verdict would be not guilty; 
    or
  3. I may think that the defence evidence should not be accepted.  However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt.  If I find the defence evidence unconvincing, I must set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question. 

Circumstantial Evidence

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Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly:  typically, when the witness testifies about something which that witness personally saw, or heard.  Both direct and circumstantial evidence are to be considered.

It is not necessary that facts in dispute be proved by direct evidence. They may be proved by circumstantial evidence alone, by direct evidence alone, or by a combination of direct and circumstantial: that is, both direct and circumstantial evidence are acceptable proof of facts. So I should consider all the evidence, including circumstantial evidence. 

Primary facts and inferences

Some evidence may directly prove a thing. Persons who saw, or heard, or did something, gave evidence about that from the witness box, including, importantly, the complainant and also Const. Bouloux. 

The documents, admissions, photographs and other things put into evidence as exhibits may also tend directly to prove facts. But in addition to facts directly proved by the evidence, I may also draw inferences – that is, deductions or conclusions – from facts which I find to be established by the evidence. If I am satisfied that a certain thing happened, it may be right to infer that something else occurred. That will be the process of drawing an inference from facts. 

I am, of course, familiar with the process and the rainwater example in the Bench Book.

There must be a logical and rational connection between the facts I find and my deductions or conclusions. I am not to indulge in intuition or in guessing.

To bring in a verdict of guilty based entirely or substantially upon 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 defendant not guilty.  This follows from the requirement that guilt must be established beyond reasonable doubt.

The evidence in this case consists of strands in a cable rather than links in a chain, thus it will not be appropriate to have regard to the establishment of intermediate facts beyond reasonable doubt.

Identification

Judgment-Image

The issue of identification is one for me to decide as a question of fact.

The case against the defendant depends to a significant degree on the correctness of one visual identification of her, which she alleges to be mistaken. I must therefore warn myself of the special need for caution before convicting in reliance on the correctness of that identification. 

The reason for this is that it is quite possible for an honest witness to make a mistaken identification. Notorious miscarriages of justice have sometimes occurred in such situations. A mistaken witness may nevertheless be convincing. Even a number of apparently convincing witnesses may all be mistaken.

In general, the powers of observation, and of recollection of observation, are fallible. And the risk of mistake is especially great with fleeting encounters, as this case was as far as Bouloux was concerned.

I must examine carefully the circumstances in which the identification by the witness was made. 

How long did the witness have the person, said to be the defendant, under observation? (About two seconds or so)

At what distance? (About 6-7 metres at closest)

In what light? (Relatively good night time street light aided to a degree by torches)

Was the observation impeded in any way? (Yes, it was in a moving car; there was also possible, although unexplored in the evidence, partial obstruction by the A pillar of the vehicle)

Had the witness ever seen the defendant before? (Possibly, but I accept he did not recall this; I accept that McLean told him not to look her up on police records before the identification and there is no evidence to suggest he did so and dishonestly concealed this. He denied being given any identifying material before the identification.)

If so, how often? (Unclear)

If only occasionally, had the witness any special reason for remembering the defendant? (Not at the time in 2015)

What time elapsed between the original observation and the subsequent identification to the police? (18 days)

Was there any material discrepancy between the description given to the police by the witness when first seen and the evidence the witness has now given? (None is put forward)

The evidence of each individual witness, while important in itself, should not be regarded by me in isolation from the other evidence adduced at the trial. Other evidence tending to implicate the defendant may be highly relevant, and may justify a conviction, while the evidence of identification, if it stood alone, would be insufficient.

Where evidence is given, as here, by a stranger to the defendant or a casual acquaintance, I should treat the evidence of identification with care. I should be cautious about concluding that identification has been established in such a case, and scrupulous to be satisfied first that the identifying witness is not only honest in his evidence, but also accurate.

The evidence capable of supporting the visual identification of the defendant is:

  1. It was made by a first response officer focused on noting and recalling details
  2. The lighting was relatively good, particularly with the aid of the police torches
  3. The period of observation was two seconds or so, over a period of 35m, within 6-7 m of the vehicle
  4. He focused on, and saw a relatively large proportion of, her face
  5. The act of identification was clear and unequivocal
  6. He impressed as honest and reliable

However, I must keep in mind the following specific weaknesses which appeared in that identification evidence:

  1. The time was brief – two seconds or less
  2. He was not familiar with her – the person was, in effect, a stranger
  3. It was at night, in a moving car, with possible obstruction by the A pillar
  4. He was walking away from the vehicle when it approached from behind him, and had to turn to observe the driver
  5. He only saw her profile
  6. He did not make a contemporaneous note and the identification was 18 days later

Circumstantial Evidence of Identification

The relevant circumstances include:

  1. The similarity of the defendant to the description of the offender, as given by the complainant, and as seen in the CCTV footage, including the hair, the build and the leg tattoo;
  2. Her association with the admitted offender Howell;
  3. The photoboard identification by Bouloux;
  4. The findings of property at the house where the defendant was, shortly after the offence, including stolen property being in close association with the defendant’s handbag and a baseball bat likely to have been used in the offence;
  5. Her admitted and forensic connection with the vehicle used in the offence.

Admissions

It is formally admitted by the parties that:

General

  1. Shortly after midnight on the morning of Monday. 14 January 2019. the residential dwelling at 17 Spendelove Avenue, Southport, was entered unlawfully by a male person and a female person.
  2. The male person was armed with what appeared to be a firearm. The female person was carrying a baseball bat.
  3. The male and female persons subsequently left the dwelling, taking with them various items of property belonging to Michelle Louise Robson. including:
  • a Nikon 5500 digital camera;
  • a Microsoft Surface Pro tablet;
  • a HP laptop computer,
  • a disk drive;
  • a white, grey and black-coloured laptop computer bag;
  • a red-coloured pillow case containing an assortment ofMweftay,
  • a gran coloured Woolworths shopping bag containing assorted items, including a car key, wallet and bank cards;
  • a cream-coloured purse;
  • plastic tubs containing a quantity of jewellery; and
  • a mauve-coloured jewellery box containing jewellery.
  1. Micas Leishman and Donaghy attended 95 Corunna Crescent. Ashmore at 1:04am on 14 January 2019 and saw the black BMW X5 with the registration 014YDL (later referred to as the BMW X5) at the address.
  2. From I:04am a cordon was established near 95 Comma Crescent during which time 95 Conmna Crescent and the BMW X5 was under supervision by police. The cordon near 95 Corunna Crescent was closed at 4:45am During the cordon police did not observe any cars enter or exit Comma Crescent.
  3. At 4:15am a tow truck arrived at 95 Comma Crescent and the BMW X5 was transported, with a police officer in attendance, to the Molendinar Holding Yard where it was lodged and later forensically examined.
  4. Some of the items listed at [3] were later located in Unit 2,95 Coruna Crescent, Ashmore when it was searched by police.
  5. At the time of the search of Unit 2,95 Comma Crescent, Ashmore on 14 January 2019 the only occupants were Ricky James Howell (date of birth: 22/11/51), and the defendant, Monique Louise Maguire.

DNA

  1. During the forensic examination of the BMW X5 DNA swabs were taken from the following locations:
  • Steering wheel (swab A);
  • Gear stick handle (swab B);
  • Internal handle of the from driver's side door (swab C);
  • Internal handle of the from passenger side door (swab D);
  • Mouthpiece of a Powerade bottle located on the back seat (swab E); and
  • Mouthpiece of an iccbreak bottle located on the back scat (swab F).
  1. Swabs A, C and D gave complex mixed DNA profiles with multiple contributors. The mixtures were not suitable for meaningful interpretation.
  2. Low levels of DNA were detected in the sample taken from swab B and it was not submitted for further DNA profiling.
  3. Swab E gave a DNA profile that indicated the presence of DNA from more than one contributor. Represented within the mixed DNA profile are some or all of the components of the DNA profile obtained from a DNA sample from Sascha Louise Webb (date of birth: 20/11/1971). Statistical analysis was not conducted.
  4. The DNA profile obtained from swab F indicated the presence of one contributor. The DNA profile was designated as unknown male I. The reference samples of Monique Maguire and Rickey Howl' were excluded as contributors to the profile.

Fingerprints

  1. Monique Maguire's fingerprints were located in the following positions on the black BMW X5:
  • outside the driver's side window;
  • petrol flap;
  • inside of the front passenger door frame.
  1. Rickey Howell's fingerprints were located on the rear driver's side panel of the black BMW XS.
  2. Carrie Sheriden's (date of birth: 4/11/1976) fingerprints were located on the rear driver's side panel of the black BMW X5.
  3. Michelle Louise Robson's fingerprints were located on the screens of the HP and Acer laptops referred to at [3].

Ricky James Howell

  1. On 15 November 2019, Ricky James Howell pleaded guilty in the District Court at Brisbane to an offence of Burglary and stealing, committed in respect of the dwelling at 17 Spendelove Avenue, Southport on or about 14 January 2019.

Additional admissions

It is formally admitted by the parties that

  1. While walking east along Spendelove Avenue. Southport in the early hours of 14 January 2019 Colorable ThrelkclJ heard the sound of an engine revving high from behind him. lie turned and saw a black SIN accelerating towards him. He shone his torch at the front of the car. he saw that it was a It SIW X5 with the registration 014YDL.
  2. Constable Threlkeld likened two occupants in the from seats. Both were wearing gloves on their hands and at least one appeared to be wearing some clothing which had a camouflage pattern on it.
  3. Constable Threlkeld waved his torch at the driver but the car sped past him and continued east on Spendelove Avenue. When it arrived at the intersection with Ferry Road he saw the tail lights turn to the right to head south. He knew that because of the raised concrete median strip, the car would have to travel south in the northbound lanes at this section of the road.
  4. Constable Threlkeld made a transmission about the car on his police radio.

Footnotes

[1] T1-36, ll 20-25.  

[2] T2-74, l 30.

[3] T1-58, l 30 – 1-59, l 10

[4] T1-67, l 6

[5] T1-69, l 44

[6] T1-71, ll 10-12.

[7] T1-76, ll 29-33.  

[8] T1-76, l 44.

[9] Exhibit 27

[10] T1-78,167.

[11] T2-37 11 12-30

[12] Exhibit 12.

[13] Exhibit 13.   

[14] T2-49, l 1.

[15] Exhibit 14.

[16] Exhibit 15.

[17] T2-52, l 30, Exhibit 17.

[18] Exhibit 19.

[19] Exhibit 24.

[20] T2-59, ll 35-45.

[21] Exhibit 26.

[22] T2-66, l 20.

[23] T2-89 ll19-20 

[24] T2-86, l 42.

[25] T2-89, l1 9-22.

[26] T2-92, l 13.

[27] T2-93, ll 1-7.

[28] T2-94, ll 5-8.

[29] T2-97, l 31.

[30] T2-98, l 7.

[31] T2-99, ll 5-15.

[32] Reference was made to R v Turnbull [1977] QB 224; also see the standard directions, appended hereto

[33] (2001) 208 CLR 593

[34] R v Baden – Clay (2016) 258 CLR 308, [46] – [47]; Peacock v The King (1911) 13 CLR 619, 634; Plomp v The Queen (1963) 110 CLR 234, 252.  

[35] The Queen v Hillier (2007) 228 CLR 618, [46] – [48].  

[36] Coughlan v The Queen [2020] HCA 20, [55].  

[37] T1 – 17-31

[38] T1-22 ll29-46; T1-23, ll1-17

[39] T1-23 ll11-14

[40] T1-55 ll17-18

[41] T1-25 ll8-9; T1-26, ll15-16

[42] T1-36 ll35-36

[43] T1-36 ll8-13, 43-46

[44] T1-36, ll21-26

[45] T1-36 ll23-25

[46] T1-55 l32

[47] Exhibits 8 & 9; T1-62 ll36-37

[48] T1-58 ll40-45; T1-59 l1

[49] T1-59 ll5-7

[50] T1-38 ll6-19; Admission 4 in Exhibit 1

[51] T1-38 ll21-23

[52] Admission 5 in Exhibit 1; T1-39 ll14-15

[53] T2-50 ll14-16, 34-36

[54] T2-51 ll33-45

[55] T2-51 ll7-22; Exhibit 16

[56] T2-53 ll1-2; Exhibit 18

[57] T2-52 ll11-15; Exhibit 18

[58] T2-53 ll19-30; Exhibit 17

[59] T2-53 ll15-29; Exhibit 19

[60] T2-53 ll39-47, 2-54 ll1-3; Exhibit 20

[61] T2-54 ll13-46; Exhibit 21

[62] T2-89 ll 18-19

[63] supra

[64] Ibid [105], [109]

[65] Exhibit 14, transcript, pp 18 l 59 – 19 ll1-4

[66] Ibid p9 ll54-59 and p10 l1

[67] Ibid p 14 ll50-54

[68] T2-50 ll14-36

[69] See Festa v The Queen (supra) at [54]-[56].

[70] Exhibit 24.

[71] See Exhibit 13, timestamp 10 to 11 seconds on Clip 1.

[72] Timestamp 7-8 seconds on Clip 1 of Exhibit 13.

[73] See Exhibit 12, Clip 2 from approximately 6:40.    

[74] T1-55, ll 11-15.

[75] T1-57, ll 41-47.

[76] Exhibit 26.

[77] T1-80, ll 21-22.

[78] T1-58, ll 7-9.

[79] T1-59, ll 9-45.

[80] T1-81, ll 6-8.

[81] T1-59, l 2.

[82] T1-73, ll 38-39.

[83] Festa v The Queen (supra) at [64].

[84] T1-78, ll 21-24.

[85] T1-78, ll 33-35.

[86] T2-85, l 35.

[87] T2-89, ll 46-48. 

[88] T2-90, ll 1-4.

[89] Exhibit 14, Transcript p 19, ll 5-24.

[90] T2-92, ll 25-47 and T2-93, ll 1-35.

[91] T2-95, ll 1-3.

[92] T2-92, ll 43-44.

[93] T1-30, ll 1-38.

[94] Although by that time McLean had seen the CCTV footage, albeit unenhanced; T1-86 l10.

[95] T2- 64 l28

[96] Det. Mclean conceded at T2-66 l15 that the footwear appeared “delicate” rather than “big, clunky sport shoes”; I am not sure this was a concession rightly made, or exactly what it meant, and in any case it is my view of the evidence which is decisive

[97] See R v Jones (1993) 1 Qd.R. 676 at 680 and the discussion by the Court of the comparison with the fourth category of case discussed by Dawson J in Shepherd v The Queen (1990) 170 CLR 573

[98] T2-48

[99] R v Baden – Clay at [46] – [47]; Peacock v The King (1911) 13 CLR 619, 634; Plomp v The Queen (1963) 110 CLR 234, 252  

[100] The Queen v Hillier (2007) 228 CLR 618, [46] – [48].  

[101] Coughlan v The Queen [2020] HCA 20, [55].  

Close

Editorial Notes

  • Published Case Name:

    R v Monique Louise Maguire

  • Shortened Case Name:

    R v Maguire

  • MNC:

    [2020] QDC 182

  • Court:

    QDC

  • Judge(s):

    Kent QC DCJ

  • Date:

    04 Aug 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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