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R v HAR[2021] QCHC 43

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v HAR [2021] QChC 43

PARTIES:

R

v

HAR

(defendant)

FILE NO:

116 of 2021

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Childrens Court of Queensland at Brisbane

DELIVERED ON:

26 May 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2021

JUDGE:

Dearden DCJ

ORDER:

I find the defendant guilty of the robbery in company, with personal violence.

CATCHWORDS:

CRIMINAL LAW – ROBBERY IN COMPANY WITH PERSONAL VIOLENCE – JUDGE ALONE TRIAL – Whether the defendant is guilty or not guilty of robbery in company, with personal violence – Whether the offence charged is proved beyond reasonable doubt – Whether the defendant had capacity to know that she ought not do the act the subject of the charge

LEGISLATION:

Criminal Code 1899 (Qld) ss. 29, 409, 644

CASES:

R v MMH [2020] QDC 70

COUNSEL:

A Vanenn for the Crown

A Cousen for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

YFS Legal for the defendant

Introduction

  1. [1]
    The defendant, HAR, is charged with one count of robbery in company with personal violence, in the following terms:

That on the 19th day of March 2020 at South Brisbane in the State of Queensland, HAR robbed SEJ, and HAR was in company with other persons, and at the time of the robbery HAR used personal violence to SEJ.

  1. [2]
    The defendant pleaded not guilty before me in a judge only trial on 24 May 2021.
Elements 
  1. [3]
    The prosecution must prove, beyond reasonable doubt, that:
  1. The defendant stole something;
  2. At the time of, or immediately before, or immediately after stealing it, the defendant used or threatened to use actual violence to any person or property. 
  1. [4]
    Any degree of violence is sufficient.
  2. [5]
    Use of violence means that some degree of force is used.
  3. [6]
    The use or threat of violence must be done in order to obtain the thing stolen, or to prevent or overcome resistance to it being stolen. 
  4. [7]
    Being “in company” requires proof that the complainant was confronted by the combined strength of force of two or more persons, including the defendant, or the force of two or more persons, including the defendant, must be used against the complainant.
  5. [8]
    It is not necessary that more than one participant actually strike the victim.  It is sufficient that the defendant and one or more other person or persons be physically present, for the common purpose of robbing the complainant and of physically participating as required. 
  6. [9]
    Personal violence in this context means bodily violence. 
Directions
  1. [10]
    In respect of the principles to be applied in a judge only trial, I refer to and respectfully adopt the exposition of those principles set out by Smith DCJA in R v MMH [2020] QDC 70, [7]-[10], supported by the cases and legislation cited in those paragraphs of his Honour’s judgment.
  2. [11]
    I set out the following further directions, with which I must conduct these proceedings in a judge only trial:
  1. I must reach my verdict only on the evidence, which I have detailed in these reasons. 
  2. In addition to facts proved by evidence I may draw inferences, but only reasonable inferences, and if there is more than one inference reasonably open, I must draw the inference that most favours the defendant.
  3. The burden rests on the prosecution to prove the guilt of the defendant, beyond reasonable doubt. There is no burden on the defendant, who is presumed to be innocent. I dismiss all feelings of sympathy or prejudice, regardless of who is involved, and regardless of the nature of the allegations or charges.
  4. I am required to assist the credibility and reliability of witnesses, and I may accept or reject such parts of the evidence as I see fit in fulfilling that fact-finding function.
  5. The defendant has not given evidence. That is her right.  She is not bound to give or to call evidence. The defendant is entitled to insist that the prosecution prove the case against her, if it can.  The prosecution bears the onus of proving the guilt of the defendant, beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against her.  It does not constitute an admission of guilt by conduct and it may not be used to fill gaps in the evidence led by the prosecution.  It proves nothing at all and I do not assume that because she did not give evidence that adds in some way to the case against her. The prosecution retains the responsibility to prove the guilt of the defendant, beyond reasonable doubt. 
  6. Much of the evidence in this trial is by way of written admissions agreed by the prosecution and the defendant, pursuant to Criminal Code of Queensland 1899 (Criminal Code) s. 644.  Those admissions are to facts only, and do not constitute an admission, in any way, to the indicted count. 
  7. The evidence of the complainant was substantially given through the assistance of a Korean interpreter.  I base my decision on the evidence presented by this translation into the English language, and on the brief passages of evidence where the witness responded directly in English.  I make no assumptions about the complainant because of her use of an interpreter to give evidence.
  8. The defendant is a person who, at the date alleged in the indictment, was under the age of 14 years.  The prosecution must prove, beyond reasonable doubt, that at the time, the defendant had the capacity to know that she ought not do the act, the subject of the charge. 
  9. The evidence relied on, in part, by the prosecution, in respect of the capacity of the defendant, is a record of interview between the defendant and police officers on 11 February 2020, in respect of unrelated criminal offending.  That interview is relied upon by the prosecution only in respect of the issue of the defendant’s capacity, pursuant to Criminal Code s. 29.  I direct myself that I must not draw any inference that because the defendant was being interviewed by police on that date in respect of other alleged criminal offending, then it is more likely that she committed the indicted criminal offence.
  10. The case against the defendant relies substantially on circumstantial evidence.  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 a witness testifies about something which that witness personally saw or heard.  Both direct and circumstantial evidence are to be considered.  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 that defendant not guilty.  This flows from the requirement that guilt must be established beyond reasonable doubt.
  11. The issue of identification of the defendant as the alleged offender is one for me to decide as a question of fact.  In this case, the defendant is not directly identified by the complainant as the offender, whether by photo board, dock identification, or otherwise.  The complainant, in her evidence, provided a description of the offender said to be the defendant.  To the extent that the description is relevant, I direct myself for the special need for caution, before convicting in reliance on the correctness of those details of the description. I direct myself that I should examine carefully the circumstances of the observations the complainant made of the alleged offender, in particular, that it occurred at night, on a pedestrian bridge, in a very brief encounter, before the alleged offender ran off.
The evidence
  1. [12]
    The complainant, SEJ, gave evidence before me with the assistance of a Korean interpreter, on 24 May 2021.
  2. [13]
    The balance of the evidence came in the form of nine sets of written admissions (Criminal Code s. 644(1) & (2)) marked exhibits A-I, and a series of discs containing CCTV footage (exhibit 1), photographs (exhibits 2-4, 6-8), and a video record of interview between police and the defendant on 11 February 2020, in respect of an unrelated investigation (exhibit 5).
  3. [14]
    The defendant, as was her right, elected neither to give not to call evidence. 
  4. [15]
    The admissions made, pursuant to Criminal Code s. 644(1) & (2), are as follows (in each case I have omitted the preliminary aspect of the admission being made, pursuant to the relevant section and subsections of the Criminal Code):
  5. [16]
    Exhibit A:
  1. That the defendant, HAR, was born on 26 December 2006.
  1. [17]
    Exhibit B:
  1. That the attached disc (exhibit 1) is a true and correct copy of the closed circuit television from the Goodwill Bridge in South Brisbane and the surrounding area.
  1. That the CCTV shows events from approximately 9.27 pm until 9.38 pm on 19 March 2020.
  2. That the other girl seen in the CCTV who has been involved towards the end of the robbery, wearing the black shirt, black pants and light shoes with orange/red shoelaces, is LAR.  LAR is the sister of the defendant.  
  1. [18]
    Exhibit C:
  1. That the attached disc (exhibit 2) contains true and correct copies of eight photographs taken of the complainant’s injuries.  The photographs were taken on 21 March 2020. 
  1. [19]
    Exhibit D:
  1. At approximately 8.40 pm on 21 March 2020, police executed a search warrant at [address redacted].  This is the home address of the defendant and her sister, LAR. 
  2. In a room shared by both the defendant and LAR, police located a Nike jacket.
  3. In the garage, police located a light pair of Nike shoes with orange/red shoelaces.  These were the shoes worn by LAR during the offending.
  4. That the attached disc (exhibit 3) contains true and correct copies of photographs taken of the jacket and shoes located by police.
  1. [20]
    Exhibit E:
  1. At approximately 9.45 pm on 7 February 2020 in Brisbane City, police located the defendant while the defendant was with her sister, LAR.  Police took a photograph of both the defendant and LAR.
  2. At approximately 1 am on 8 February 2020 in Brisbane City, police located the defendant.  Police took two photographs of the defendant. 
  3. That the attached disc (exhibit 4) contains true and correct copies of:
    1. (i)
      the photograph taken of the defendant and her sister;  and
    2. (ii)
      the two photographs taken of the defendant.
  1. [21]
    Exhibit F:
  1. At approximately 11 am on 11 February 2020, the defendant took part in an electronic record of interview with police, in relation to an unrelated matter.
  2. That the attached disc (exhibit 5) contains a true and correct … copy of that interview. 
  1. [22]
    Exhibit G:
  1. On the evening of 18 March 2020, police body camera footage showed five juveniles walking across the Goodwill Bridge in South Brisbane.
  1. One of the juveniles was the defendant’s sister, LAR.  LAR was wearing a white top, black skirt and light shoes with orange/red shoelaces. 
  2. That the attached disc (exhibit 6) contains nine stills from the body camera footage:
    1. (i)
      photograph 1 is of the five juveniles;
    2. (ii)
      photograph 2 to 5, are of one of the female juveniles;
    3. (iii)
      photographs 6 and 7 are of one of the male juveniles;  and
    4. (iv)
      photographs 8 and 9 are of the defendant’s sister, LAR.
  1. [23]
    Exhibit H:
  1. On 23 March 2020, the defendant was arrested in relation to this matter.  Two photographs were taken of her. 
  2. That the attached disc (exhibit 7) contains true and correct … copies of those two photographs.
  1. [24]
    Exhibit I:
  1. On 29 October 2020, police spoke to the defendant and her sister, LAR.  Police took a photograph of the pair.
  2. That the attached disc (exhibit 8) contains a true and correct copy of that photograph.
  3. Those admissions, in turn, identify each of the tendered exhibits, numbered exhibit 1-8.
Overview
  1. [25]
    At approximately 9.29 pm on 19 March 2020, the complainant was walking across the Goodwill Bridge from QUT in the direction of Southbank.  A group of five youths commenced walking across the Goodwill Bridge at 9.27pm, led by a young man with a bicycle, who had a bag with a red strap over his right shoulder.  With him is a young woman with a black top and dark long pants, a young woman with a white top and dark long pants, another two young women, also with dark tops and a young woman with dark hair in a ponytail, a jacket that is white on the top and navy blue or black below that, dark shorts and runners with a small light patch at the heel and some hint of that same light colour near the ankle (exhibit 1, CCTV #1). 
  2. [26]
    At 9.29 pm, one member of that group appears to snatch the complainant’s cap from her head and run up the bridge incline towards South Bank.  The complainant appears to be talking on a mobile phone when this occurs.  The person who snatched the cap returns and throws it to the ground in front of the complainant, near a grate that runs the width across the bridge.  The young woman in the white and navy or black jacket approaches the complainant from behind her right-hand side. 
  3. [27]
    The complainant reaches down and picks up the cap with her right hand.  The young woman in the white and navy or black jacket moves past the complainant, then doubles back, strikes the complainant, struggles with her, as another young woman in a dark top and dark long pants runs back towards the pair of them.  The woman in the white and navy or black jacket appears to snatch the phone from the complainant’s left hand, then the second young woman who had approached briefly struggles with the complainant, before kicking the complainant’s left leg out from under her, causing her to fall to the ground, as the second young woman runs off. 
  4. [28]
    Another young woman in a cap and white t-shirt approaches the complainant as the offender’s group runs off towards South Bank, and appears to render assistance (exhibit 1, CCTV #2). 
  5. [29]
    By 9:31:29 pm, there is clear footage of the group (which now appears to be six young persons) approaching the South Bank of the Goodwill Bridge.  The young woman in the white and navy or black jacket has a t-shirt underneath with the word “Adidas” and a white logo (with three petals) on it (exhibit 1, CCTV #4). 
  6. [30]
    The complainant gave oral evidence (translated by an interpreter) about this encounter before me, and I read the relevant part of the evidence into the record (transcript 1-9 L1-1-10 L31): 

MR VANENN:  Can you recall what you were doing when you were on the Goodwill Bridge?

INTERPRETER:   Yes.  I remember. 

MR VANENN:   Could you tell the court what happened when you were on the bridge? 

INTERPRETER:   Do I have to tell the court everything? 

MR VANENN:   Yes, please. 

INTERPRETER:   Yeah.  I was talking to my friend who was in Melbourne, over the phone.  So on the move when I was walking, four to five people [indistinct] approached me, and one of them had taken my hat, and they made fun of me.  I asked them to [indistinct] hat, but they didn’t do it and they just kept doing it.  They were making, just, fun of me, and then situation and the atmosphere even got worse [indistinct] and spitting on me.  I was angry and I was upset because of them, and then I did spitting on them, or on the person as well, and that person just decided to assault me – hit me [indistinct]  I was out of my mind and I fell to the ground.  I was on the ground and I had my mobile on my right hand and they took my mobile phone off me and then they ran off. 

MR VANENN:   You said someone spat on you and you spat back.  Can you tell the court what that person after you’d spat back? 

INTERPRETER:   Pardon?  Can you come closer to the [indistinct]

MR VANENN:   You told the court someone spat on you and you spat back.  Can you tell the court what that person did after you spat back? 

INTERPRETER:   Punching on my face several times continued. 

MR VANENN:   And where was your mobile phone when they were punching you? 

INTERPRETER:   I was holding onto my phone with my hands, but they, or that person forcefully had taken my mobile phone off me and then they ran off. 

MR VANENN:   That person who you say hit you, and ran off with your phone, can you describe what they looked like? 

INTERPRETER:   Ponytail and a big build, and a female with dark skin. 

MR VANENN:   You said their hair was in a ponytail.  Do you know what colour their hair was? 

INTERPRETER:   [indistinct] so quite dark. 

MR VANENN:   Do you recall if their hair was straight? 

INTERPRETER:   It was too long ago.  Sorry.  I can’t remember. 

MR VANENN:   That’s okay.  You said they were of a bigger build, do you know how tall they were compared to you? 

INTERPRETER:   [indistinct] about their height.  Maybe not very tall, but chubby build. 

MR VANENN:   Okay.  Did you – how old do you – did you think they were? 

INTERPRETER:   Between 15 and 16.  Definitely teenager.  Not older than that. 

MR VANENN:   And did you recognise what colour their skin was? 

INTERPRETER:   Not – dark skin.  Not Caucasian, white skin.  Aboriginal Australian, Aboriginal colour of skin. 

MR VANENN:   Did you consent to them hitting you? 

INTERPRETER:   Never. 

MR VANENN:   Did you consent to them taking your mobile phone? 

INTERPRETER:   No.  I have not. 

MR VANENN:   Did you sustain some injuries because of what happened? 

INTERPRETER:   Yes.  On my face and also scar – still I have scar on my left knee, and bruising on my limbs – legs and arms. 

  1. [31]
    The CCTV footage (exhibit 1) was played to the complainant.  She identified herself as the female using a mobile phone, in black colour – black colour clothing (T1-11, LL3-4), and recognised the girl with a ponytail, who took her phone, as “the one who started the assault” (T1-11, LL12-19). 
  2. [32]
    There was no cross-examination of the complainant. 
Discussion
  1. [33]
    There are just two issues in this trial. 
  2. [34]
    Firstly, am I satisfied, beyond reasonable doubt, on the Crown case, which both prosecution and defence agree is substantially a circumstantial case, that the young woman on the CCTV footage, who assaulted the complainant on the Goodwill Bridge at approximately 9:29 pm on 19 March 2020, and stole her mobile phone, wearing the jacket with a white top and navy or black bottom, and shorts, was the defendant, and that she was in company. 
  3. [35]
    Secondly, if I am so satisfied, am I satisfied beyond reasonable doubt, pursuant to Criminal Code s. 29, that the defendant, aged 13 at the relevant time, had capacity to know that she ought not do the act the subject of the charge. 
  4. [36]
    The Crown case on identification is set out in their very helpful written submissions (exhibit J) at paragraphs 12-33 and 35. 
  5. [37]
    For the purpose of delivery of these reasons, it is useful to read those comprehensive submissions into the record.  Where appropriate, the submissions are illustrated with copies of relevant photographs and CCTV stills. 

Identification

  1. [12]
    The circumstances pointing to the defendant as being the offender seen on the CCTV are the following: 
  1. (a)
    Clothing, namely: 
    1. Jacket of the offender; 
    2. T-shirt of the offender; 
    3. Shoes of the offender;
    4. Shorts of the offender; 
    5. Hairband of the offender;
  1. (b)
    Association, namely: 
    1. Association with the co-offender, LAR;
    2. Association with the boy with the red strap bag; 
  2. (c)
    General appearance.

Clothing

Jacket

  1. [13]
    On the night of the robbery, being 19 March 2020, the offender wore a black and white jacket.  In particular, there is a dark smudge on the left shoulder;

[a CCTV still from the night of the offending showing the dark smudge on the left shoulder is contained in the submission].

  1. [14]
    This appears to be identical to the jacket found in the defendant’s bedroom on 21 March 2020:

[a photograph of a Nike jacket found in the defendant’s bedroom on 21 March 2020 is contained in the submission]. 

  1. [15]
    The defendant had previously been photographed wearing this jacket on 7 and 8 February 2020:

[a photograph of the defendant wearing the Nike jacket on 8 February 2020 is contained in the submission]. 

  1. [16]
    During the defendant’s interview on 11 February 2020, she describes wearing a white and black, waterproof, Nike jumper [admission 6 (exhibit F) exhibit 5, 11/2/2020 13:30-1400].

T-shirt

  1. [17]
    On the night of the robbery, the offender wore a black Adidas t-shirt

[CCTV still from the night of the offending shows the t-shirt.]

[In my review of the evidence in this trial I have made note of that Adidas t-shirt which can be clearly seen as the offenders approach the South Bank end of the Goodwill Bridge].

  1. [18]
    This appears to be the same t-shirt worn by the defendant during her interview on 11 February 2020: 

[The submission contains a still of the defendant from the electronic record of interview on 11 February 2020 clearly showing an Adidas t-shirt with a logo above the word Adidas].  [exhibit F, admission: 6, exhibit 5]. 

Shoes

  1. [19]
    On the night of the robbery, the offender wore black shoes: 

[CCTV still from the night of the offending (exhibit 1)].

  1. [20]
    The night before the robbery, being 18 March 2020, there is body camera footage of a girl, who it is submitted is the defendant, walking along the Goodwill Bridge.  The defendant can be clearly seen on the stills of this body camera footage, and was in company with her sister, LAR.  However, of more importance are the shoes being worn on this date, which are consistent with the shoes worn by the offender.  [exhibit G (admission 7), exhibit 6.] 

[A body camera still from the footage of 18 March 2020 shows the black shoes worn by the young person the prosecution submits is the defendant]. 

  1. [21]
    These black shoes are consistent with the shoes the defendant was photographed wearing on 7 and 8 February 2020 [The submissions contain a photograph of the defendant from 7 February 2020 – exhibit B, admission 2, exhibit 1].

Shorts

  1. [22]
    On the night of the robbery, the offender was wearing black shorts [the submission contains a CCTV still from the night of the offending – exhibit B, admission 2, exhibit 1].
  2. [23]
    During the defendant’s interview on 11 February 2020, she describes herself as having worn black shorts the night before [exhibit G, admission 6, EROI 11/2/2020, 13:30-14:00].  The shorts she describes herself as previous wearing are consistent with the shorts worn by the offender on the night of the robbery.

Hair band

  1. [24]
    On the night of the robbery, the offender appears to be wearing a dark/green hair band.

CCTV stills from the night of the offending contained in the submission and as best as can be made out, there is firstly a hair band and secondly it appears to have a dark or a greenish colour.  [exhibit B – admission 2, exhibit 1.]

  1. [25]
    This appears to be consistent with a hairband worn by the defendant during her arrest on 23 March 2020 [exhibit H, exhibit 7].

Association

  1. [26]
    In Festa v The Queen [2001] 208 CLR 593, a circumstantial identification case involved (sic) two armed robberies on the Gold Coast, the Crown relied on the proven association between the male offender and Festa, 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.  [ibid [105], [109]]

Association with LAR

  1. [27]
    Presently, there is an admission that the other girl involved in the robbery, wearing the light shoes with orange/red laces, is the defendant’s sister, LAR.  [exhibit B, admission 2, para 3].
  2. [28]
    Not only is the defendant’s sister the other girl involved and shared a room with her, there is evidence of a close association between the pair, namely:
  1. (a)
    on 7 February 2020, the defendant was photographed with LAR in Brisbane City [exhibit E, exhibit 4];
  2. (b)
    on 11 February 2020, the defendant took part in an interview, where she described an unrelated incident where she was with LAR [exhibit F, exhibit 5];
  3. (c)
    on 18 March 2020, police body camera [footage] depicted LAR walking across the Goodwill Bridge with four other juveniles.  It is alleged that one of the other juveniles was the defendant [exhibit G, exhibit 6];  and
  4. (d)
    on 29 October 2020, the defendant was photographed with LAR by police [exhibit I, exhibit 8].
  1. [29]
    Not only is the defendant the sister of the other girl involved, she appears to have had a close association with LAR both before and after the offending.

Association with boy with the red strap bag

  1. [30]
    On the evening of 18 March 2019, five juveniles were seen on police body camera footage walking across the Goodwill Bridge [exhibit G, admission 7, exhibit 6] i.e., the same location where the robbery took place the next night.  One of the juveniles was the defendant’s sister, LAR.  It is alleged one [of the juveniles] was the defendant herself.  One of the juveniles was a boy wearing black shorts, black cap and a bag with a red strap:  two photographs are inserted in the submission of stills from police body worn camera footage from 18 March 2020 [exhibit G, admission 7, exhibit 6.]
  2. [31]
    On the night of the robbery, the offender is part of a group of six juveniles.  One of the boys in the group (although, not involved in the robbery) is wearing a black cap, black shorts and a bag with a red strap: 

[CCTV still from the night of the robbery is inserted, which clearly shows that boy with a red strap bag over his right shoulder and a bicycle, walking on the Goodwill Bridge, on the night of the robbery] [exhibit B, admission 2, exhibit 1].

  1. [32]
    It is alleged this is the same boy and shows yet another association between the defendant and one of the other people present during the robbery. 

Appearance

  1. [33]
    Finally, the defendant’s appearance is completely consistent with the appearance of the offender on the CCTV of the robbery:
  1. (a)
    particularly the hair, being her curly/frizzy hair;
  2. (b)
    the colour of her hair;
  3. (c)
    the apparent age of the offender;
  4. (d)
    the skin colour of the offender;  and
  5. (e)
    the general build of the offender.
  1. [34]
  2. [35]
    In terms of identification, when considering the evidence, the only rational inference that can be drawn is that the offender depicted in the CCTV is, in fact, the defendant mainly because of:
  1. (a)
    the clothing of the offender, being:
    1. jacket;
    2. t-shirt;
    3. shoes;
    4. shorts;
    5. hairband;
  2. (b)
    the defendant’s association, being:
  1. (i)
    her association with the co-offender, LAR;
  2. (ii)
    her association with the other boy present.
  3. (iii)
    the general appearance of the defendant being consistent with the offender.”
  1. [38]
    The defence case, simply put, is that I would not be satisfied, beyond reasonable doubt, that the offender on the CCTV footage [exhibit 1] is HAR.  It is submitted that the complainant’s description is that the offender had a pony tail, was a big build, was female with dark skin, but the complainant could not recall if her hair was curly or straight. 
  2. [39]
    The defence submits that the offender’s face is not clear on the CCTV footage;  that the jacket is a generic Nike jacket;  that the jacket HAR was wearing two days later was, at best, similar;  that the Nike jacket found in the defendant’s bedroom [exhibit 3] was in a room that was also shared with her sister, LAR, and that the photographs of HAR from 23/3/2020 [exhibit 7] when she was arrested, and the subsequent photograph from 29/10/2020 [exhibit 8] when she was spoken to by police with LAR, do not look alike, even though it is the same person in both photographs.  In short, the submission is that identification is not clear because of the concerns identified.
  3. [40]
    The defence argument in respect of association is that, effectively, association in the context of this trial is of minor relevance and does not assist in proving the defendant’s guilt, beyond reasonable doubt. 
Conclusions

Identification

  1. [41]
    I stress that in the conclusions I reach, I have carefully considered all of the admissible evidence in the trial, and done so in the context of the relevant directions that I have outlined.  I have reviewed all evidence, including the footage placed before me where appropriate, and the contained photographs. 
  2. [42]
    As the parties have identified, the Crown case is substantially circumstantial, and so I must be persuaded of guilt, beyond reasonable doubt, on the basis that guilt is the only rational inference to be drawn from the circumstances. 
  3. [43]
    With respect, the Crown case is, in my view, overwhelming.  Although, in one sense the various items of clothing worn by the offender on the CCTV footage from the night of the offence might be said to be generic, it is the combination of that clothing, its connection with HAR, and HAR’s association with her sister, LAR, before the offending, after the offending, and by way of sharing a bedroom with her, combined with her association with the young man with the red strap bag on the night before the offending, as well as his presence on the night of the offending, combined further with the fact that HAR’s general appearance at the relevant time is most clearly consistent with the complainant’s description [and I note the complainant’s description was given in respect of an incident that, as far as she was involved, took barely a few seconds before the persons who attacked her ran off] and further, my own observations of the CCTV, all of which collectively persuade me, beyond reasonable doubt, that the offender who attacks the complainant on the CCTV footage and steals the phone, is HAR. 
  4. [44]
    In reaching that conclusion, I consider it to be the only rational inference in the circumstances. I have considered other inferences consistent with innocence, and as I have indicated, in my view, the overwhelming assessment, once all of the matters outlined by the Crown which I have recited in detail from their submissions, is added together, the case clearly indicates, in my view, that the offender is HAR.

Capacity

  1. [45]
    The defendant was born on 26 December 2006 [exhibit A, admission 1] and was, therefore, 13 years and three months as at 19 March 2020.  The Crown must prove, beyond reasonable doubt, the defendant’s capacity, that is, that she knew that she ought not do the act, the subject of the indicted count [Criminal Code s. 29].
  2. [46]
    The record of interview of 11/2/2020 [exhibit F, exhibit 5] in respect of a completely unrelated matter (breaking into a shop and stealing, albeit with her sister, LAR) occurs approximately one month before the offence the subject of the indictments.
  3. [47]
    As the Crown identifies in its submissions, during that interview HAR made the following comments:-

(9) During the interview the defendant makes the following comments:

  1. (a)
    immediately after that offending she saw a police car and ran, suggesting she had capacity to know that it was wrong;
  2. (b)
    when asked whether she thought it was wrong, she agreed;
  3. (c)
    when asked whether what she did was okay, she said, “no”, because it was not her shop;
  4. (d)
    she said she wouldn’t have done it if police were watching;
  5. (e)
    she said she knew it was against the law;
  6. (f)
    she said she would say sorry to the owner of the shop, because she smashed up their shop.

[exhibit F, admission 6; exhibit 5]

  1. [48]
    In the context of that particular offending, the defendant clearly demonstrated that she knew that the stealing was wrong (stealing, of course, being an element of the indicted offence, along with the personal violence).
  2. [49]
    On the CCTV footage, the offender, whom I have concluded, beyond reasonable doubt, is HAR, runs away immediately after grabbing the phone, following the significant physical altercation between her and the complainant.  With respect, that action is also, in my view, clear evidence of capacity to know that what she had just done was wrong and ought not to have been done, and of course, she was absenting herself from the scene of the altercation.
  3. [50]
    Accordingly, I have no hesitation in concluding, beyond reasonable doubt, in the context of the record of interview of 11 February 2020, and the conduct that I have described by the offender on the evening of 19 March 2020, that the defendant had the relevant capacity, pursuant to Criminal Code s. 29.  I reached that conclusion while noting the submissions made by the defence, including that HAR struggled with some issues during the record of interview, including the name of her street, the spelling of her grandmother’s surname and identifying what the terms, “threat” and “promise”, meant.  It is quite clear, in my view, that HAR had no difficulties in understanding that her actions on the night in respect of the incident, the subject of the record of interview, and by inference, on the night of the offending of 19 March 2020, was wrong and that she ought not to have done the act or acts, which were the subject of the indictment.
Verdict
  1. [51]
    I am satisfied, beyond reasonable doubt, that it was the defendant, HAR, who used personal violence to obtain a mobile phone, which she stole from the complainant, and that she did so in company (another offender from the defendant’s group, identified as the offender’s sister, LAR, strikes and trips the complainant immediately after the defendant steals the phone, and I note further that both actions occur after another member of the group had, effectively, triggered the series of events by taking the complainant’s cap, albeit returning it to her shortly afterwards).
  2. [52]
    I am also satisfied, beyond reasonable doubt, that the defendant, HAR, had the capacity to know she ought not do the act or acts constituting the indicted offence [Criminal Code s. 29].
  3. [53]
    It follows that I find the defendant guilty of the robbery in company, with personal violence.
Close

Editorial Notes

  • Published Case Name:

    R v HAR

  • Shortened Case Name:

    R v HAR

  • MNC:

    [2021] QCHC 43

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    26 May 2021

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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