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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
R v WTL  QChC 37
60 of 2020
Trial - Verdict
Childrens Court of Queensland at Townsville
19 November 2020
18 November 2020
Loury QC DCJ
The defendant child is not guilty on indictment 60 of 2020.
A Payne for the prosecution
Office of the Director of Public Prosecutions (Qld) for the prosecution
- The defendant child is charged with one count of armed robbery in company.
- At 8:50 am on 11 February 2020 15 year old Eli and his 14 year old girlfriend Olivia were walking outside of and towards their school. They both heard someone call out Eli’s name from a car. A car pulled up beside them. A young girl described as “small, skinny and white” got out of the car and approached the two young students. She was armed with a hammer and demanded Eli’s hat and his watch. Eli initially refused to hand over his property however became concerned for his girlfriend’s safety if he did not, so he gave the property to the robber. Eli and Olivia hastily entered their school and attended the office.
- The driver of the car was a tall, indigenous man. He has not been identified. Both Eli and Olivia described that man as reaching for the car door and something in the waistband of his pants at around the time that Eli refused to hand over his property. Both Eli and Olivia described the principal offender alighting from the rear driver seat of the car.
- Eli described there being another girl in the back of the car. He knew her as Alyiah. He thought she was 13 or 14 years of age.
- Eli did not see a third girl in the car although knew that Olivia had seen a third girl. Olivia saw Alyiah in the middle of the backseat and saw a third girl in the rear passenger seat. The prosecution alleges that girl (the third girl) was the defendant child. The real issue in the trial is one of identification of the defendant child as the third girl. There is a secondary issue (if satisfied of her identification) as to whether she was a party to the armed robbery.
- The defendant child elected trial by judge alone. It was admitted at the commencement of the trial that despite her being thirteen years of age at the time of trial and twelve at the time of the offence she had the capacity to know that she ought not do the act of robbing another person or aiding in such a robbery.
- Eli described the robber as having, blonde-brown hair, tied up in a ponytail wearing a cap and a black/maroon coloured t-shirt. He said she was between 14 and 16 years of age and probably around five feet, six inches in height. The girl he knew as Alyiah was 13 or 14 years of age. She was wearing a black t-shirt with a “Bob Marley” print on it. Alyiah did not get out of the car at any stage. Eli said that after he handed over his watch he heard Alyiah say if he didn’t “hand over his stuff they would get out and jump Olivia.”
- There was no dispute in the trial that both Eli and Olivia were honest witnesses who gave their best account of a frightening armed robbery that they were subjected to on their way to school. They each gave evidence by way of a section 93A statement. They were not cross-examined.
- The investigating officer who gave evidence in the trial, Constable Stephen Billiau, said that Eli did not identify the defendant child in a photoboard identification procedure that took place, however he did not know whether Eli had been able to identify any other person in photoboard identification procedures. Whilst there are two other girls charged in the same count as the defendant child, there was no evidence before me during this trial as to who those offenders were. I am aware that the two other girls have in fact entered pleas of guilty to the charge, however that information is not in evidence in this trial and is in any event irrelevant. I ignore the entry of those pleas from my consideration.
- The evidence of identification of the defendant child as the third girl comes from Olivia. She described the principal offender as being around five foot, six inches in height with blondish, brown hair which also appeared orange. Her hair was tied back in a bun or ponytail and she was wearing a black cap. She was very skinny and was wearing a purple coloured shirt. She knew the second girl, sitting in the middle of the back seat of the car as Alyiah. She had black hair which she was wearing in a bun with a fringe. She also described Alyiah as wearing a “Bob Marley” shirt. Her skin was light brown and her eyes dark brown.
- The third girl who on the Crown case is the defendant child, Olivia described as “really small” with “really curly hair, sorta messy, high up” in either a bun or ponytail. She had “sort of blonde streaks” in her hair and “real dark skin” and was wearing a black shirt. Olivia heard Alyiah and the third girl say “if you’re not gonna give the stuff just bash the girl, bash his woman” during the course of the robbery. The prosecution argues that by making that statement, the third girl was aiding or encouraging the principal offender to commit the robbery.
- At 4:53 pm Olivia participated in a photo board identification procedure. This was eight hours after the robbery. The defendant child was placed at position number two. There are 12 girls on the photoboard. There are two particular difficulties with the photoboard which in my view weakens the evidence of identification. The first is that there are only five of the girls on the photo board who could be described as having “real dark skin”. The photoboard has been compiled assumedly with photos of twelve indigenous girls. Little regard has been had to the description given by Olivia of a girl with “real dark skin”. The second concerning feature about the photoboard is that the defendant child’s image appears to be smaller than all other images on the photoboard which tends to depict her as being particularly small. Given that Olivia’s description of the third girl is that she was “really small” the manner in which the photoboard has been created draws attention immediately to photograph number 2.
- There is an inherent risk of error associated with suggestibility given the manner in which this photoboard has been compiled. Had an application been made to exclude the photoboard identification on the basis of unfairness I would have done so. The manner in which the photoboard has been created is my view, inherently unfair.
- Olivia said the following when shown the photoboard:
OLIVA: “I sort of recognise number 2. Like I said, I’m not quite sure off the top.”
OFFICER: “Okay, so, tell me why you think it may or may not be number 2.”
OLIVIA: “Um, it looks about the right, the same hair the same skin tone and the same eyes, same mouth, same everything. It’s just, I don’t want to say to have um, like, not quite sure just in case I go pick the wrong person and it’s not her, and she’s going to be told off for something she hasn’t done.”
- When asked to write on the photoboard what stood out to her about number 2 she said “I do not chose anyone placed on this photoboard. But number 2 stood out more than the rest. She has the same hair and the same build. Her skin colour also looks quite the same. Her facial features are almost identical”.
- Olivia was a very careful witness. Despite being very frightened by this event she paid close attention to her surroundings and had the presence of mind to take mental note of everything that she saw and heard. She impressed as not only an honest witness but a reliable one as well. That she conceded that she wasn’t quite sure herself in the identification of photograph number 2 adds to the inherent danger associated with the risk of suggestibility which arises from how the photoboard was prepared.
- The only other evidence which goes to the issue of identification of the third girl is evidence that when the defendant child was located by police at around 3:00 pm in the afternoon of 11 February 2020 she can be seen to have blonde streaks in her ponytail. She is however wearing a green, patterned shirt. She was located in a house with six other children and two adults. Of those six children, two were girls and four were boys. No evidence was led as to the identification of any of those people. It is unknown to me whether any of those persons were identified as the principal offender, or the second girl.
- There is nothing particularly unique about a girl having blonde streaks in her hair. It is not evidence in itself of identification. The prosecutor argues that her description of the clothing the third girl was wearing “black t-shirt, dark clothes” is consistent with the appearance of the defendant child some six hours later when located by police. The defendant child is wearing a green t-shirt. It is perhaps arguable that the shade of green might fit the description of dark clothes. However Olivia was in my view a very careful witness who, as said, paid close attention to her surroundings and provided extensive descriptions of the offenders and what they did. This evidence alone, that the defendant child had blonde streaks in her hair and was wearing a green shirt when located some six hours later does not provide sufficient evidence of identification for me to be satisfied beyond a reasonable doubt of the defendant’s involvement. Further it does not overcome the dangers associated with the photoboard identification procedure.
- For the defendant child to be found guilty of the offence, I would have to be satisfied beyond reasonable doubt on the evidence led in the trial before me of her identification as the third girl.
- Given the inherently unfair photoboard used and Olivia’s own concession as to her uncertainty, I cannot be satisfied to the requisite standard of her identification as the third girl.
- I find WTL not guilty on indictment 60 of 2020.
- Published Case Name:
R v WTL
- Shortened Case Name:
R v WTL
 QCHC 37
Loury QC DCJ
19 Nov 2020