R v Maguire[2021] QCA 203

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 14 January 2019 the complainant was asleep at her home.  Also in the house was her elderly incapacitated father, and her five-year old son.
2. [2]
   She was woken up by a barking dog, alerting her to someone at her premises.  She got up and went to the front door where she saw a man (Howell) at her front door.  He had a gun which appeared to be a sawn-off shotgun.
3. [3]
   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.
4. [4]
   The complainant ran to her back door and tried to lock it but was unsuccessful.  She retreated inside.  By that time Howell, armed with the gun, had entered the house.
5. [5]
   Then a female, who on the Crown case was the appellant (Maguire), came into the house from the rear with a baseball bat over her shoulder.  That person is said to have been a woman with long blonde hair in a ponytail, wearing a dark baseball cap and dark clothing.
6. [6]
   The complainant fled the house, intending to raise the alarm.  This was very stressful for her as she left her father and son in the house.
7. [7]
   The complainant tried to awaken her neighbours but could not.  She then continued down her street to the nearby hospital where she was able to speak to a security guard who called the police for her.
8. [8]
   Remaining in the area, she saw Howell carrying what turned out to be property from her house to a dark coloured SUV vehicle.  Howell and the female drove off.  The complainant returned home to find that much of her property had been stolen.
9. [9]
   The complainant said that the offenders’ vehicle was parked in a driveway in her street, but not her driveway.
10. [10]
    As the offenders drove away, their black BMW X5 was seen by several police officers.^[1]  It went past the officers, heading east on the complainant’s street.  One of the officers, Coetzee, shone his torch on the driver, from the driver’s side.  So did a second officer, Bouloux, who was on the same side of the road.  He looked at the driver.
11. [11]
    Bouloux’s description of the driver was: 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; she was skinny, about 30 years of age and with a pointy nose.  He said he had her under observation for five to six seconds.
12. [12]
    About 18 days later Bouloux participated in a photo board identification.  He identified Maguire as the driver.
13. [13]
    Maguire was charged with one count of burglary and one count of stealing.  After a judge-alone trial, at which she gave evidence, she was convicted.
14. [14]
    She has appealed against the verdicts on the ground that the verdict is unreasonable and cannot be supported having regard to the evidence.  This ground is narrowly focussed and turns on the evidence of identification of Maguire by Bouloux.  The essential contention is that the interval available to him to observe the driver was too short, in the circumstances, to be reliable.  Consequently, Bouloux’s photo board identification should have been rejected as reliable, or at least left the judge with reasonable doubt as to her guilt.
15. [15]
    For the reasons which follow I would dismiss the appeal.

Legal principles – unreasonable verdict

16. [16]
    In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[2] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
17. [17]
    The role of the appellate court was recently restated in Pell v The Queen:^[3]

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

18. [18]
    The High Court restated the pre-eminence of the jury in R v Baden-Clay.^[4]  As summarised by this Court recently in R v Sun,^[5] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,^[6] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”^[7]
19. [19]
    In R v Miller,^[8] this Court recently emphasised the proper approach to an appeal where this ground is advanced:^[9]

“[16] In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen and which are consistent with early judicial appreciations of the limitations of an appeal against the verdict of a jury on a question of fact. It is fundamental that it is not sufficient for an appellant merely to show ‘discrepancies’ or ‘inadequacies’ in the evidence or to show that the evidence is ‘tainted’ or ‘otherwise lacks probative force’. It is necessary to demonstrate that such features appear in the evidence ‘in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted’.

…

[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s ‘weak point’ is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

20. [20]
    In a case where the trial was by a judge without a jury the principles are the same.  In R v Kelly^[10] this Court recently restated them:

“[3] In R v Harris, this Court recently considered the principles that govern an appeal against conviction in a judge alone trial on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence. Having considered the High Court’s decisions in Fleming v The Queen and Filippou v The Queen, Fraser JA (with whom Sofronoff P and North J agreed) concluded that each of the three grounds of appeal in s 668E(1) of the Criminal Code is capable of application to the verdict of a judge alone. His Honour stated:

‘Accordingly, in an appeal against conviction in a judge alone trial upon the ground that the verdict of the judge is unreasonable or cannot be supported having regard to the evidence, the Court must undertake an independent examination of the whole of the evidence at the trial and decide whether it was open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt.’

[4] That exercise ‘must take into account any advantage of the trial judge in seeing and hearing the evidence at the trial in the way described by the High Court in M v The Queen …’.”

Evidence of identification

21. [21]
    The sole ground of appeal turns on whether Bouloux’s identification of Maguire in the photo board process should have been rejected because the opportunity to see the driver on the night was just too brief to be a reliable basis for identification.
22. [22]
    As the learned trial judge noted, the Crown case was a circumstantial one, and there were a number of sources of evidence which, together with the photo board evidence from Bouloux, all went to identification of the offender.  The following synopsis of the evidence is taken largely from the published reasons for judgment,^[11] and the learned trial judge’s comments just prior to publication of those reasons.^[12]

The complainant

23. [23]
    The complainant’s description of the female offender was that she was: (i) taller than the complainant; (ii) apparently thin; (iii) wearing a cap; (iv) with long blonde hair below her shoulders; and (v) wearing what seemed to be a baggy jumper and maybe a long skirt and running shoes.  The baseball bat was over her shoulder.

CCTV footage from Maguire’s house

24. [24]
    CCTV footage from the house in which Maguire was located during the police search was tendered through a police officer.  It revealed:^[13]

    1. (a)
       from 12.18 am onwards, Howell moving around the house carrying a gun, and then carrying the gun and what appeared to be a baseball bat from the house;
    2. (b)
       the female offender had long blonde hair, apparently in a ponytail, and was wearing a dark baseball cap and dark clothing, and a camouflage top; and
    3. (c)
       she had a tattoo on the upper right thigh, partly concealed by a skirt.

CCTV from the complainant’s home

25. [25]
    CCTV footage from the complainant’s house showed the female offender descending the front stairs.  A tattoo was visible on her upper right thigh.^[14]

Bouloux

26. [26]
    Bouloux and two other police officers (Coetzee and Threlkeld) were called out to the scene on the night of the offence.
27. [27]
    They arrived there at the scene at 12.41 am and parked in a driveway at the hospital (west of the complainant’s house).  The officers got out and began walking towards the scene of the offence.  Bouloux crossed over the complainant’s street to the southern footpath and began walking up the street.
28. [28]
    He heard an engine behind him and turned to see a dark SUV with a female driving, six to seven metres away.  It slowed down for the pedestrian crossing in the area (where Bouloux had just crossed) which was 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 five to six seconds.  He basically saw the right profile of her face.  He did not recall whether there was a passenger.
29. [29]
    He also noted that the car was a BMW X5 and recorded the registration number accurately.
30. [30]
    Subsequently, on 31 January 2019, Bouloux took part in a photo board identification process.  The investigating detective showed him the photo board.^[15]  The process was recorded on video.^[16]  The video contained a confirmation at the start of the process that Bouloux: (i) was one of the three first responders to the scene; (ii) had not been shown any photo or given any information about the identity of the offender prior to that interview; and (iii) had not yet given a statement to investigating police.  He was shown the board and identified photograph no. 4 (a photo of Maguire), as the driver of the vehicle he had seen that night.  The time taken to make the identification (from the twelve images) was about 11 seconds.
31. [31]
    In cross-examination of Bouloux the following points emerged:^[17]

    1. (a)
       although he made contemporaneous notes on the night in his notebook,^[18] he did not make a note of his observations of the driver;^[19]
    2. (b)
       there was an incident log in which he made various entries;
    3. (c)
       he made his police statement three weeks after the event;^[20]
    4. (d)
       his description of the driver in that statement 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”;
    5. (e)
       his observation of the driver was with the assistance of torch light; in addition, there may have been some interior lighting in the vehicle in the form of reflection from the instrument lights;
    6. (f)
       there was an overhead streetlight in the area;^[21] and
    7. (g)
       his view of the driver was largely in profile from the right side.

What was discovered during the police search – evidence of McLean

32. [32]
    Police searched the house at 11.56 am.  The search was the subject of an audio recording.^[22]  Police discovered:^[23]

    1. (a)
       Maguire and Howell in bed together;
    2. (b)
       a black gel blaster toy gun that resembled a sawn off shotgun;
    3. (c)
       the keys to the BMW in a drawer on Maguire’s side of the bed; and
    4. (d)
       in another room, and on a bed, Maguire’s handbag, near to which was property stolen from the complainant’s house, a baseball bat, and a red pillowcase containing jewellery stolen from the complainant.
33. [33]
    A still photo from the body cam footage of the search shows Maguire to have a tattoo on her right thigh.^[24]  The learned trial judge found that Maguire’s tattoo was in the same position as that shown on the female offender in the CCTV footage.^[25]
34. [34]
    In cross-examination McLean (the arresting officer) agreed that:^[26]

    1. (a)
       he did not find any dark clothing or gloves at the premises, nor a baseball cap;
    2. (b)
       no camouflage coloured jacket was seized;
    3. (c)
       the footwear seen on the female in the CCTV image (from the complainant’s house) was not found by police during the execution of the search warrant, nor was there a skirt seized; and
    4. (d)
       there was no evidence of any forensic connection (e.g. fingerprints or DNA) between Maguire and the items seized at the house.

Body cam footage from Coetzee

35. [35]
    Coetzee’s body cam footage was tendered.^[27]  It revealed several relevant things:

    1. (a)
       as Coetzee turned towards the car, Bouloux was behind him and closer to the car, in the vicinity of the pedestrian crossing/speed bump;
    2. (b)
       Coetzee shone his torch directly at the car;
    3. (c)
       at that point the car was just before the pedestrian crossing/speed bump and Bouloux had turned towards the car;
    4. (d)
       Coetzee’s torch clearly illuminated the driver;
    5. (e)
       Bouloux’s torch was also shone on the car;
    6. (f)
       Threlkeld’s torch was also shone on the car, from the other side of the road; and
    7. (g)
       the driver was a female wearing a dark cap.

Evidence of Maguire

36. [36]
    Maguire gave evidence in her defence.  She denied any involvement, saying that she had taken a Valium and had been asleep.  However, she made some statements about her age and appearance at the time of the offence:^[28]

    1. (a)
       she was 22 years of age;
    2. (b)
       she was of a slim build;
    3. (c)
       she was wearing a blonde wig and the hair went to a bit below her shoulders;
    4. (d)
       she had a tattoo on her right upper leg which came to just above her kneecap; and
    5. (e)
       the tattoo seen on the female offender in the CCTV footage was more or less in the same position as hers.
37. [37]
    Maguire also said that the BMW that was used in the offence had been lent to her and she was responsible for it.^[29]  Moreover, she told police that “the person that resides here is using my car and I was using his car last night.”^[30]

Admissions

38. [38]
    Formal admissions were made.  They were:

    1. (a)
       a black BMW X5 with a specified registration number was used in the offence which was committed by Howell, who pleaded guilty to burglary and stealing on 15 November 2019;
    2. (b)
       Police, acting on information, located the BMW at premises at a specified address;
    3. (c)
       those premises were under surveillance by police between 1.04 am and 4.45 am on the morning of the incident;
    4. (d)
       by 4.45 am police towed the BMW, which was in the driveway, for examination;
    5. (e)
       the examination produced DNA and fingerprint evidence connecting three females with the vehicle, one of whom was Maguire.
39. [39]
    It was accepted at the trial that the other two women whose fingerprints were found in the car had no involvement in the offence.  Neither knew Howell, and neither had a tattoo on their upper right leg.

Admissions re Threlkeld’s evidence

40. [40]
    The parties made formal admissions as to Threlkeld’s evidence.  Relevantly, they were:^[31]

    1. (a)
       he was on the footpath, heard the car, and turned and saw the black BMW X5 accelerating along the road towards him;
    2. (b)
       he shone his torch at the front of the car;
    3. (c)
       he correctly recorded the registration number; and
    4. (d)
       he saw two occupants in the front seats, both with gloved hands and at least one wearing some clothing with a camouflage pattern.

Judge’s findings as to identification

41. [41]
    The learned trial judge, with the benefit of having seen and heard Bouloux, made the following findings about his identification of Maguire:^[32]

    1. (a)
       Bouloux was both a confident and honest witness, and reasonably precise in his evidence;
    2. (b)
       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;
    3. (c)
       he initialled the photo board and confirmed that he had not been given any prior information about the alleged offender; and
    4. (d)
       the process of him selecting the correct image demonstrated no significant hesitation, a reasonable degree of confidence, and he unequivocally selected Maguire’s image.
42. [42]
    His Honour’s findings were summarised this way in the course of finding Maguire guilty:^[33]

“My conclusion, for the reasons catalogued in the judgment, is that the circumstantial case against [Maguire] is a powerful one. 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 [Maguire’s] appearance in Court, particularly in the witness box. The photo board evidence is clear and compelling, in my conclusion.

The competing inference of Howell, unbeknownst to the Defendant, committing the offence with an unknown female of similar description and leg tattoo without [Maguire’s] knowledge, is not, in my conclusion, reasonable and has been excluded beyond a reasonable doubt. That leads to the conclusion, which is that the Prosecution has proven the elements of the offence beyond reasonable doubt, and [Maguire] is found guilty. I publish my reasons.”

43. [43]
    In the formal reasons delivered by the learned trial judge the following findings were made in relation to the sole issue in the case, i.e. identification:^[34]

    1. (a)
       the circumstantial case against Maguire was powerful;
    2. (b)
       she was associated with the proven offender Howell, before and after the offence; she was also associated with the proceeds of the offence, the weapons used in the offence, and the car used to commit the offence;
    3. (c)
       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 Maguire’s appearance in court, particularly the witness box;
    4. (d)
       the description of her having a “pointy” nose was reasonable;
    5. (e)
       the identity of the offending vehicle, which Maguire admits was her responsibility, was not in question;
    6. (f)
       the resemblance between the CCTV images and Maguire as shown on the stills from the body camera footage later that morning^[35] was strong;
    7. (g)
       the build of the two females in those images is similar, in particular the legs; the hair is similar; both appear to be wearing earrings; the leg tattoo is at least superficially similar and reasonably distinctive;
    8. (h)
       the footwear shown in the images, when examined closely, could be at least similar; and
    9. (i)
       the similarities amount to circumstantial identification evidence pointing to Maguire’s involvement.
44. [44]
    His Honour made specific findings concerning the photo board identification process undertaken by Bouloux:^[36]

“[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 [Maguire’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.”

45. [45]
    Finally, the learned trial judge, having reviewed the evidence, made the following finding:^[37]

“[111] My conclusion is that on a consideration of all of the evidence, including [Maguire’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.”

Consideration

46. [46]
    The submission by Mr Pearce of Counsel, appearing for Maguire, were that the appeal turned on whether this Court considers the learned trial judge’s acceptance of Bouloux’s photo board identification was a finding that was reasonably open.  Accepting that his Honour was in the pre-eminent position as arbiter of fact, and had formed a favourable impression of Bouloux as a witness of truth, nonetheless it was submitted that:

    1. (a)
       a fair and objective viewing of Exhibit 26 (the footage from Coetzee’s body cam) demonstrates that Bouloux was not in a position to have made an observation of the driver such as would support a positive identification some 18 days after the event;
    2. (b)
       in those circumstances, the acceptance of Bouloux’s evidence of identification as “clear and compelling” was unreasonable and was not supported by Exhibit 26;
    3. (c)
       on the basis of the video footage it was not reasonably open to the learned trial judge to accept beyond reasonable doubt that Bouloux had seen Maguire in the motor vehicle;
    4. (d)
       absent the photo board identification, the circumstantial case against Maguire was weak, and would not have supported a conviction; and
    5. (e)
       in this regard, the telling feature of the evidence was the failure of police to locate the distinctive items of clothing known to have been worn by the female offender, nor some other items known to have been taken by the female offender and co-accused.
47. [47]
    In support of those submissions this Court was urged to watch the video footage in Exhibit 26.  That was done.
48. [48]
    In my respectful view, these submissions must be rejected for a number of reasons which I shall attempt to articulate.
49. [49]
    First, Exhibit 26 cannot give a definitive picture of the time Bouloux had to see the driver of the car.  It records a view taken from Coetzee’s body cam.  Bouloux can be seen behind Coetzee, and therefore closer to the car.  The footage does not allow any precision as to when Bouloux first saw the driver; it simply records what the camera saw.  Even allowing that Bouloux’s estimate of five to six seconds might be wrong, and that of the trial judge’s (two seconds) is right, that is still an appreciable time for the brain to assimilate what is being seen.  In this respect it must be recalled that the officers had been called out urgently to a home invasion where a weapon had been used.  Some had even paused to put on body armour.^[38]  It is a natural inference that Bouloux was, in those circumstances, acutely alert and concentrating on the driver of the car.
50. [50]
    Secondly, whatever Exhibit 26 showed, the interval of Bouloux’s observation was sufficient to enable him to describe the driver in this way: “… she was wearing a dark coloured baseball style cap and had her hair in a ponytail … it appeared heavily bleach blonde … dark coloured long-sleeved shirt … appeared skinny, approximately 30 years of age, and she had a very pointy nose”.^[39]  There is no challenge to the finding that Bouloux was an honest and precise witness.  That description suggests that whatever the viewing interval was, it was sufficient to identify Maguire.
51. [51]
    Thirdly, Exhibit 26 starkly reveals that there was significant illumination of the driver as the car moved past.  Poor lighting could be, and rightly was, discounted by the learned trial judge.
52. [52]
    Fourthly, the learned trial judge had the advantage, which this Court does not, of having seen and heard Bouloux in the witness box.  Based on that his Honour found that Bouloux was honest, confident and reasonably precise in his evidence.  Further, as was conceded on the appeal, his Honour rightly rejected any suggestion that Bouloux’s identification of Maguire was tainted by previous association with Maguire, or accessing sources such as QPRIME records.
53. [53]
    Fifthly, when Bouloux’s identification is put together with the evidence otherwise, the case against Maguire was powerful, and more than enough to base a finding of guilt.  In that respect some unchallenged aspects of the evidence are:

    1. (a)
       Maguire was associated with the admitted offender, both before and after the offences; Maguire was in bed with Howell when police searched the house;
    2. (b)
       Maguire physically resembles the description of the female offender given by the complainant; she described the female offender as having long blonde hair in a ponytail, wearing a baseball cap, a jumper, a long skirt and running shoes;
    3. (c)
       the CCTV images of the female offender at the scene of the offence are very similar to the images of Maguire taken during the police search of the house where she was with Howell; in particular, the similarity of the leg tattoo is striking; Maguire accepted that she has a tattoo on her leg, and Exhibit 24 shows it, protruding below a long t-shirt to just above the right knee;
    4. (d)
       Maguire admitted that at the time of the offence she wore a blonde wig, and said that the images of her in Exhibit 24 show her wearing a wig; the wig she wore then had hair down “a bit below my shoulders”;^[40]
    5. (e)
       Maguire was associated with the car admitted to have been used in the offence; and
    6. (f)
       the police search revealed that Maguire was present where the weapons used in the offence were found, along with various items stolen that night from the complainant, including jewellery, electronic devices, her purse, car keys and bankcard; and the car keys from the BMW were in the drawer on her side of the bed.
54. [54]
    Sixthly, as the appeal recognises, the prosecution case was a circumstantial one.  A verdict of guilty could not be returned unless the circumstances were such as to be inconsistent with any reasonable hypothesis other than the guilt of the appellant.^[41]  A circumstantial case must not be considered in a piecemeal way; rather, all of the circumstances are to be considered and weighed in deciding whether it is open to draw the ultimate inference of guilt.^[42]  The approach urged on this Court effectively seeks that the evidence be taken piecemeal.
55. [55]
    In my view, it was open on the whole of the evidence to accept Bouloux’s identification of Maguire.  Exhibit 26 does not compel the conclusion that the opportunity to view the driver was so constrained that Bouloux’s identification from the photo board was unreliable.  And, the body of identification evidence otherwise was powerful, even though circumstantial.  The appeal should be dismissed.
56. [56]
    I propose the following order:

1. Appeal dismissed.

57. [57]
    MULLINS JA:  I agree with Morrison JA.
58. [58]
    BOWSKILL SJA:  I agree with the reasons of Morrison JA and the order proposed.