R v TD[2023] QCHC 5

CHILDRENS COURT OF QUEENSLAND

LOURY KC DCJ

DC No 73/23

THE KING Crown

v

TDDefendant

BRISBANE

3 May 2023

JUDGMENT

LOURY KC DCJ:

1. [1]
   TD is charged with entering the dwelling of CA with intent to commit an indictable offence in the dwelling with circumstances of aggravation that he was armed with an offensive instrument; that he was in company with other persons and threatened to damage property.
2. [2]
   TD has pleaded not guilty to the offence.  I heard evidence from the complainant and two police officers. Some photographs were tendered and some admissions made.  
3. [3]
   The complainant’s evidence was that she knew the defendant through friends.  She did not know him well and had only seen him five or six times.  She had never been introduced to him but others had told her who he was. 
4. [4]
   On the evening of 14 October 2021, she was at home when she heard people talking nearby her house. She was concerned it was a group of boys who had been asking her for money at the nearby park earlier in the day. She turned off the lights in the house and closed all the curtains. She heard people jumping over the back fence and saw a flashlight or torch (from a mobile phone) in her yard. A group of boys entered her house through a laundry door which she saw her brother open. 
5. [5]
   She sought shelter from them in her bedroom, closing the door. Five boys, which she said included the defendant, forced their way into her bedroom. The light was turned on.  The complainant stood on her bed with a knife she picked up from under her bed.  She was able to identify five of the boys as the defendant, TD; Josh; Najack; Awan and Steve.  Steve was armed with a baseball bat.  TD was armed with an object she described as being used to change tyres (which her counsel described as a steering wheel lock).  The boys demanded money from her and said that they would break the television in the living room if she did not give them money.  After 15 minutes or so, the police arrived and all the boys bar one fled the house.  The complainant said that her friend, Sally was in the room with her. 
6. [6]
   After the police had attended her home, the complainant located a steering wheel lock under the sheets in her bed.  She assumed the defendant hid it in her room when police arrived and he fled.  Photos were taken of the item some days later. It was not seized, nor subject to a forensic examination.  There is no explanation in the evidence for that not having occurred. 
7. [7]
   Two police officers gave evidence.  The first, Senior Constable Eliza Wheeler attended at a neighbouring property to the complainant.  This property was directly behind the complainant’s house. Ms Wheeler said that two men came from the vicinity of the side gate of this house.  She took up with one of them, [EM].  Her partner took up with the other unnamed person.  Whilst Ms Wheeler was speaking to [EM], the defendant approached her from behind from the vicinity of the same house and asked what was going on.  She spoke to him and confirmed his identity, taking a photograph of him.  She said that the defendant said that he had come from 13 Daryl Reinhardt Drive, which is the house behind the complainant’s home. The defendant was released.  No effort was made to confirm his account.  
8. [8]
   The second police officer, Plain Clothes Senior Constable Brooke Mair also gave evidence. She took over the investigation around nine months later.  She collected CCTV footage from neighbouring houses.  That footage, or even stills taken from it, was not tendered in evidence.  She otherwise collated statements.  In cross-examination she confirmed that she spoke to the complainant’s brother to try to get a statement from him.  In the end, she did not bother as it was too hard with her rosters to obtain a statement from him.  She did not attempt to obtain a statement from the complainant’s friend, Sally who the complainant said was inside her room during the incident.  She did not bother to follow up the defendant’s claim that he was visiting 13 Daryl Reinhardt Drive.  Ms Mair knew nothing about whether the weapon located in the complainant’s bed was seized or forensically examined. 
9. [9]
   The defendant’s case is that he was not present during the burglary, that the complainant is mistaken as to his identity. 
10. [10]
    In reaching a verdict, I must be satisfied of each of the elements of the offence beyond a reasonable doubt.   The real issue in the trial is one of identification. 
11. [11]
    In Domican v The Queen,^[1] the High Court held that a warning should be given to a jury in respect of identification evidence, the reliability of which is in dispute.  It is necessary to identify the factors that may affect the consideration of the identification evidence in the particular circumstances of the case and identify any weaknesses in the identification evidence. 
12. [12]
    The matters which may reasonably be regarded as undermining the reliability of the identification evidence are as follows:

• The complainant did not know the defendant well and had only seen him a handful of times, five or six.  She had not been introduced to him but knew through others who he was.   
• The complainant saw the defendant in the park earlier on the day the intruders  entered her house. The defendant was at the park with four of the intruders who entered her bedroom namely Steve, Najack, Awan and Josh.  I take from the cross-examination that the defendant is a man of Sudanese background and that others, if not all of the boys who entered her bedroom were also of African background.  The complainant described all of the males in the park as being dressed in the same way wearing Nike style clothing including a jacket or hoodie.  All of the males had similar styled hair.  The defendant’s hair is quite distinctive.  His hair in a photograph taken on the night of this event appears similar to the appearance of his hair before me.  I infer that the other males all had similar distinctively-styled hair. 
• There is a risk that the complainant, having seen the defendant with a group of males earlier in the day, four of whom were involved in entering her bedroom later that evening, has jumped to a conclusion that the defendant was one of those boys. She was unsure in her evidence precisely how many men/boys entered her room saying there were “about five or four of them or six”. 
• At the time of making her identification the complainant was scared. She described feeling panicked when she heard the intruders jumping the back fence. A significant number of men/boys entered her bedroom and demanded money from her.  Her fear is demonstrated by her having armed herself with a knife.  She admitted she was focused on the man with the baseball bat who is not alleged to be the defendant.  This might have added to the possibility of her being confused and jumping to a wrong conclusion.
• The complainant, when providing her statement to police, did not ever describe the defendant as being armed with any object. It was in a conference with the prosecutor on the morning of the trial that she said that it was the defendant who was armed with the steering wheel lock.  This change in her evidence adds weight to the possibility that her memory is unreliable and she might be mistaken as to the defendant’s presence. 

13. [13]
    I considered the complainant to be a careful witness and an honest one.  Her evidence was that she recognised the defendant as being one of the intruders present in her bedroom. There is some strength to her evidence given that it is evidence of recognition and not a case of her identifying a person unknown to her.  Nonetheless, there are weaknesses to the evidence of recognition which I have just identified.  
14. [14]
    The defendant argues that there are a number of material witnesses who were not called by the Crown, who could have shed light on the identification of the defendant and for whom there has been no reasonable explanation provided for their absence. 
15. [15]
    The evidence of the complainant tends to suggest that her brother let the intruders into the house.  That tends to suggest that he knew some, if not all of them.  He would likely have been able to shed some light on whether the defendant was present.  At the very least, he might have been able to describe the clothes worn by the intruders and identify the precise number of intruders so as to either support the identification of the defendant or exclude him as being present. 
16. [16]
    The complainant’s friend, Sally was also in the room when the intruders entered.  She too could have shed some light on the identification of the intruders and particularly as to whether the defendant was one of them.  Sally was present in the park with the complainant earlier in the day when the defendant and others were present. The police did not obtain a statement from Sally.  No explanation for why they did not do so was provided.   
17. [17]
    The evidence of the residents from 13 Daryl Reinhardt Drive is also material.  That person/s would have either provided support for the defendant’s account that he was at that house or established that the defendant was lying.  Either way, that evidence was particularly material.  One of the residents of that house was with the group of intruders and was identified by name by the complainant.  He remained in her bedroom when the intruders all fled.  No explanation for why he wasn’t called to give evidence, or the residents of 13 Daryl Reinhardt Drive, was provided.  
18. [18]
    The defendant argues that because there is an absence of any reasonable explanation for the state of the police investigation that I should draw an inference adverse to the Crown in relation to this evidence. 
19. [19]
    I consider the explanations given for the failure to call the complainant’s brother to give evidence or the complainant’s friend, Sally and the failure to call any of the residents from 13 Daryl Reinhardt Drive to be entirely unsatisfactory.  It would be reasonable for a prudent police officer to have obtained statements from each of these material witnesses and for them to be called at the trial of the defendant. The prosecutor has conceded that it would be open to draw an inference adverse to the Crown given the state of the evidence before me. 
20. [20]
    In this case where the central issue is one of identification/recognition, and taking into account the special need for caution before convicting in reliance on the correctness of the complainant’s identification, the failure to call material witnesses who could have shed light on this very issue means that I ought to entertain a reasonable doubt about the guilt of the defendant.^[2]
21. [21]
    I find the defendant not guilty.