Connor v Commissioner of Police [2023] QDC 235

DISTRICT COURT OF QUEENSLAND CITATION: Connor v Commissioner of Police [2023] QDC 235 PARTIES: CONNOR, Peter James (applicant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: Appeal No. 314 of 2022 DIVISION: Appellate Jurisdiction PROCEEDING: Section 222 Appeal ORIGINATING COURT: Magistrates Court at Hervey Bay DELIVERED ON: 12 December 2023 DELIVERED AT: Brisbane HEARING DATE: 15 June 2022 JUDGE: Devereaux SC CJDC ORDER: Application for extension of time refused. No order as to costs. CATCHWORDS: CRIMINAL LAW – APPEAL– appeal pursuant to s 222 of the Justices Act 1886 (Qld) – appeal against conviction and sentence – where the appeal period expired over 6 years prior – where a bottle shop was broken into after the alarm system was disabled and a significant quantity goods stolen – where circumstantial evidence at trial was sufficient to conclude beyond a reasonable doubt that the applicant committed the acts in question – where the applicant appealed on the basis of wide ranging submissions regarding the weakness of the evidence – whether alibi evidence provided by the applicant was cogent - whether the conviction was unreasonable LEGISLATION: Evidence Act 1977 (Qld) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) CASES: House v the King [1936] 55 CLR 499 R v Lewis [2006] QCA 12 R v Tait [1999] 2 Qd R 667 -- 1 of 18 -- 2 COUNSEL: The applicant was self-represented. K Droney for the respondent. SOLICITORS: The applicant was self-represented. Office of the Director of Public Prosecutions for the respondent. Background [1] On 9 December 2015, following a piecemeal trial in the Hervey Bay Magistrates Court, the applicant was convicted of one count of entering premises with intent to commit an indictable offence and one count of stealing property of a value exceeding $5,000.00. [2] The prosecution case was that, on 14 December 2013, the applicant and a co-accused disabled an alarm system and forcibly entered the premises of Mills Hotel Proprietary Limited, trading as River Heads Bottle Shop. An internal alarm system and computer were removed and stolen, as well as a sum of money, alcoholic beverages and safe. [3] Upon conviction, the applicant was ordered to pay compensation in the sum of $20,153.93 and serve a period of imprisonment of 12 months, with an immediate parole release date. Circumstances of Appeal [4] On 7 February 2022 the applicant filed a Notice of Appeal, together with a Notice of Application for an Extension of Time. The grounds of appeal are as follows: “Ground 1, the applicant was under the impression he could suffer a severer sentence if appealed, so chose not to appeal, since doing research and seeking advice, it was discovered that not to be the case. Ground 2, The applicant and family were being harassed by QLD police, and anticipated further harassment by police if the case was appealed. Ground 3, The applicant did not have legal representation and is not trained in law. Ground 4, The applicant did not have the funds at the time, and couldn’t afford legal representation.” [5] The appeal, pursuant to s 222 of the Justices Act 1886 (Qld), is by way of re-hearing, requiring a real review of the record rather than a fresh hearing of the matter.1 [6] The grounds of appeal address only the reasons for the appeal being out of time and attack neither conviction nor sentence specifically. The submissions were, nonetheless, wide ranging. Application for Extension of Time 1 Justices Act 1886 (Qld) s 225(1). -- 2 of 18 -- 3 [7] The one-month period for appeal of the Magistrates Court conviction ended 9 January 2016.2 The applicant filed the Notice of Appeal on 7 February 2022. The applicant applies for an extension of time on the same grounds as set out in the Notice of Appeal. The applicant provides a list of additional reasons for delay in an affidavit filed in support of reopening, including other legal matters, mental health issues and the ability to obtain Court transcripts.3 [8] The sufficiency of the explanation provided for the delay and the overall interests of justice are considerations in granting an extension.4 [9] The delay here is prolonged, over 6 years between the expiry of time to appeal and the filing of the Notice of Appeal. A prolonged delay is more difficult to excuse than a shorter one.5 [10] The applicant has canvassed various reasons for delay. However, no evidence has been placed before the Court to demonstrate how these grounds resulted in the extended period of delay. These grounds, even when taken together, do not provide a satisfactory explanation for the delay. [11] The application may still be granted if it can be demonstrated a miscarriage of justice will occur if it is refused.6 This requires at least some degree of assessment of the stretch of the evidence placed before the Magistrates Court and the prospects of success of the appeal. [12] What follows is a brief review of the trial. I attach a more comprehensive survey of the record, including the submissions made at trial and the reasons for conviction. Magistrates Court Trial [13] The original exhibits from the trial are no longer available. This issue was ventilated in the hearing of this appeal. It is an unfortunate result of the delay in filing the appeal. Nevertheless, with recourse to copies of some exhibits the appeal could be fairly heard. [14] It was admitted at trial that the Prosecution had provided sufficient facts to establish that, at the relevant time, the River Heads Bottle Shop was broken into, after the alarm system was disabled, and that a significant quantity of alcohol, cash, safe and computer equipment were stolen – valued at $20,153.93 in total. [15] The primary question before the Court at trial was whether it was the applicant who committed the acts in question. [16] The learned Chief Magistrate, was of the view there was a significant, albeit circumstantial, body of evidence, sufficient to conclude beyond a reasonable doubt that the applicant committed the acts in question.7 That conclusion was open on the evidence and, upon my own review of the available record, I reach the same conclusion. 2 Justices Act 1886 (Qld) s 222. 3 Affidavit of Peter Connor filed 17 May 2022, 1-2. 4 R v Tait [1999] 2 Qd R 667 at [5]. 5 Ibid. 6 R v Lewis [2006] QCA 12 at [3]. 7 Decision of Chief Magistrate Rinaudo 9 December 2015, 3. -- 3 of 18 -- 4 [17] The following evidence was not contested by the applicant. [18] The applicant was an expert in security systems. In cross-examination it was established he had installed and uninstalled them many times. His particular knowledge in this field supports the inference that he was capable of disabling the alarms in the manner which occurred. [19] Witness Pape Ngatai, an employee at the River Heads Bottle Shop, gave evidence that the doors had been locked and the alarms set, the evening prior to the acts. Jason William McHugh, from the security firm used by the business, gave evidence of attending the site and discovering cut telephone lines which had disabled the alarm system. [20] The applicant, whilst working in Brisbane, was home in Hervey Bay at the time of the offence. [21] The applicant also was connected with individuals who were connected to the River Heads Bottle Shop, namely Bradley Witchard and Trina Pollock. The prosecution theory was that the offence was motivated by retribution, on behalf of Bradley Witchard, illustrated by words written and a drawing made apparently by the intruders. Appeal Against Conviction [22] The applicant submitted in writing: “the sole ground of the appeal is that the verdict is unreasonable and cannot be supported having regard to the weakness of the identification evidence.”8 However, the applicant’s submissions ranged widely. DNA Evidence [23] Two water bottles were found at the River Heads Bottle Shop, from which DNA swabs were taken. This was compared with a reference DNA sample obtained from the applicant. Witness Penelope Taylor, a DNA expert, provided evidence at trial that the samples matched. [24] The applicant argued that a DNA Evidentiary Certificate, pursuant to s 95A of the Evidence Act 1977 (Qld), was not tendered during the trial, as was required.9 Section 95A is an enabling provision which, as I read the record, was not relied on by the prosecution. Rather, there was evidence of the identification of the water bottle, the taking of a swab, the taking of a sample from the applicant, the conduct of the swab and sample, the testing of both and the opinion of the scientist. [25] The evidence of witness Glen James Denhert is that that a DNA sample was taken by him, as an approved DNA sampler, on 6 May 2014 at Brisbane, after the applicant was arrested.10 The applicant also agrees that a DNA sample was taken from him on this date at Brisbane City Watch House.11 [26] The applicant asserts non-adherence to “Chain of Custody requirements”. On review of the record, I accept the evidence of witness Shane Coles that he marked each water 8 Applicant’s Outline of Submissions, 17. 9 Applicant’s Outline of Submissions, 3. 10 Transcript of Magistrates Court 29 June 2015, 5-6. 11 Applicant’s Outline of Submissions, 3. -- 4 of 18 -- 5 bottle with a forensic bar code and labelled them A and B. Penelope Taylor received these two bottles and conducted the DNA test from these samples. This was set out in her witness statement, which was tendered in the trial and provided by the applicant in this proceeding. The numbers which appear next to the forensic bar code in the photos correspond with those on the witness’ report. [27] The applicant asserts that the Queensland Police Service has committed a criminal offence by falsifying records.12 The applicant alleges that the photographs of the water bottles with markers on them are fabricated, as there was a delay in their being provided to him.13 The applicant provides theoretical scenarios including that his DNA may have been obtained and planted at the River Heads Bottle Shop. There is no evidence before the Court to substantiate any of these claims. [28] At the hearing of the appeal the applicant argued, based on a comment recorded as having been made by witness Penelope Taylor, that the complainant in the matter was the Fraser Coast Shire Council and that the prosecution had therefore “used the DNA from the Fraser Coast Shire Council”.14 The applicant states he had been a contractor there for 10 years and such evidence related to a different hearing. [29] The applicant appears to believe this comment is an indication of a mistake, if not conspiracy, whereby DNA evidence from the Fraser Coast Shire Council was used to match the reference sample provided. The applicant referred specifically to having other unconnected charges dropped prior to the commencement of the Magistrates Court trial, for which the Fraser Coast Council was the complainant. The applicant tendered photos of a screwdriver which appear to have been analysed for DNA during that investigation, which he contends has been used for the purposes of this investigation.15 [30] No evidence has been produced at trial nor on appeal to substantiate these claims. The learned Chief Magistrate rejected the proposition the witness was part of some larger conspiracy.16 On my review of the record, I form the same opinion. [31] Finally, the applicant submitted that the DNA evidence is of little weight unless the entire world population is tested, and particularly his family members.17 The applicant states that it is difficult to analyse “whether someone who has a matching DNA profile was living or frequenting the region with similar DNA”.18 He further states “while the alleged DNA profile match places the same DNA at the scene that is not to say that it places me at the scene of the crime, just the corresponding DNA.” 19 [32] The matching DNA found at the River Heads Bottle Shop may not alone determine with certainty that the applicant was an offender. However, the evidence of the expert evidence witness Penelope Taylor included: “it is estimated that the probability of the partial DNA profile occurring had the DNA in this sample come from someone other 12 Applicant’s Outline of Submissions, 5. 13 Appeal Hearing Transcript 15 June 2022, 41. 14 Appeal Hearing Transcript 15 June 2022, 23. 15 Appeal Hearing Transcript 15 June 2022, 29. 16 Decision of Chief Magistrate Rinaudo 9 December 2015, 4. 17 Applicant’s Outline of Submissions, 6. 18 Applicant’s Outline of Submissions, 7. 19 Applicant’s Outline of Submissions, 7. -- 5 of 18 -- 6 than and unrelated to Peter Connor is approximately one in 2.5 billion based on Queensland Caucasian data.”20 The evidence that DNA at the scene was consistent with the applicant’s DNA, as described, must be considered with the whole of the evidence. Boots [33] While executing a search warrant of the applicant’s address on 6 May 2014, police seized a pair of boots of close similarity to a shoeprint located at the River Heads Bottle Shop, in or about the area in which the telephone wires had been cut. [34] Sergeant Donna Marie Stewart gave evidence that analysis of a variety of shoes supported the inference that the type of boot seized had made the shoeprint. [35] The applicant states that Bradley Witchard, who was residing at the same residence as the applicant, took ownership of the boots during the search warrant.21 While I have not had the benefit of hearing the search audio, and witness Adam Quemard did not specifically address this in his oral evidence, I accept this to be the position. [36] The applicant therefore contends, as the boots did not belong to him, they cannot be used as evidence linking him to the acts. The argument fails to acknowledge the inference open from the boots being at his place of residence, even if they were not his own. [37] I notice that the learned Chief Magistrate commented that police were of the belief that Bradley Witchard was a co-offender in the matter, but “was unable to be found”.22 [38] On my review of the record, the finding of the boots in the applicant’s premises was not led to prove categorically that he wore them at the time of the offending. Rather, as the learned Chief Magistrate said, the boot found in the applicant’s residence “was shown as a footprint in proximity to where the alarms were disabled”.23 The learned Chief Magistrate did not misuse the evidence. Footage supplied by the Applicant [39] At the conclusion of the Prosecution case at trial, the applicant provided a memory stick containing footage which purported to show the applicant and his wife at home at the time of the events. The applicant relied on this as an alibi. It had not been raised previously. [40] Based on evidence provided following analysis of the footage, the learned Chief Magistrate ultimately concluded this evidence was fabricated. [41] The applicant argues that it was erroneous of his Honour to “ignore” the footage.24 [42] On review of the evidence, it was open to the Chief Magistrate to make the decision which his Honour did and reject the recording as cogent evidence of alibi. 20 Transcript of Magistrates Court Proceedings 29 June 2015, 27. 21 Applicant’s Outline of Submissions, 8. 22 Decision of Chief Magistrate Rinaudo 9 December 2015, 3. 23 Decision of Chief Magistrate Rinaudo 9 December 2015, 4. 24 Applicant’s Outline of Submissions, 17. -- 6 of 18 -- 7 [43] Witness Tim Woodcock, a Queensland Police Service electronic expert, provided evidence in relation to the memory stick. The witness could conclude that what was on the video was real but gave evidence that the record could be manipulated resetting the date and/or time on the computer, to display a different date. [44] There were other significant oddities raised in relation to the memory stick and its late production - at the end of the Prosecution case - was questionable. Evidence of Jason McHugh [45] The applicant makes various claims regarding the evidence of witness Jason McHugh. These include that the witness was not an expert witness, and that he was presented as such to the Court. He states that the witness had “limited knowledge and opinion”. 25 [46] On my review of the record, I am satisfied witness Jason McHugh was not presented by the Prosecution as an expert witness. The witness was working as part of the security team which monitored the premises and provided evidence of his involvement attending the premises after receiving a call the alarm system had failed to activate. [47] There is no evidence to support the applicant’s claim the witness, or anyone else, may have contaminated the crime scene. The claim relied in part on McHugh’s concession that he attended the underneath of the crime scene prior to the police arrived. The learned Chief Magistrate saw and heard the witness. Nothing in the record suggests a different conclusion to that reached by the Chief Magistrate – that McHugh was a reliable witness. Standard of Proof [48] The applicant makes a general claim in his written outline that: “the standard of proof which convicted the Applicant in his opinion was based on the balance of probabilities as opposed to the highest standard of proof being ‘beyond reasonable doubt’.”26 [49] There is no substance in this submission. The learned Chief Magistrate made clear in his Honour’s decision that he was “satisfied beyond reasonable doubt that the defendant is guilty of the offences.”27 Other Issues [50] The applicant raised other issues in the written submission or at the hearing. Some, I have dealt with in the attached survey of the trial. • Numbers attached to photographs of the water bottles at the crime scene are not in numerical order and the photographs appear to be slightly skewed. • Securing of the crime scene did not occur e.g. crime scene tape. 25 Applicant’s Outline of Submissions, 10. 26 Applicant’s Outline of Submissions, 6. 27 Decision of Chief Magistrate Rinaudo 9 December 2015, 5. -- 7 of 18 -- 8 • Applicant and the individual on CCTV do not match. • CCTV tendered by the Prosecution does not have a watermark or evidentiary certificate. • Applicant would not have been able to reach the area where the alarm was disabled due to medical issues. • Daren Carter has also claimed EFTPOS in the till takings and on the documents. • Evidence of the applicant’s wife, Julie Connor, was not taken into account by the Chief Magistrate. • Discussion at the hearing about three Evidentiary Challenge Certificates, which do not appear to be on the file. [51] Except for the complaint about the learned Chief Magistrate’s rejection of the evidence of Julie Connor, these matters were all part of the trial. They were dealt with properly by the court below. None represents new evidence which may be thought to undermine the conviction. Appeal Against Sentence [52] The applicant asserts the sentence imposed was decided on a clear factual error of substance,28 and that it was imposed not in accordance with law.29 [53] The ‘factual error’ relied on appears to be the statement that, while the prosecution case was that there was another offender, the applicant had been “left to carry the bag.”30 The applicant refers to the well-established principles in House v the King,31 which guide the exercise of discretion in sentencing. I do not conclude that the comment of the learned Chief Magistrate resulted in the erroneous application of any of these principles. [54] The sentence imposed by the learned Chief Magistrate was not excessive. Having regard to the factors on the record, including the applicant’s previous criminal history and the premeditated nature of the offence, it was within the discretion of the Chief Magistrate to impose the sentence which his Honour did. Orders [55] After full consideration of the grounds of appeal and other arguments advanced, the applicant has not demonstrated a reasonable prospect of success of the appeal such as to call for the grant of an extension of time to appeal against conviction or sentence. That is, it is not shown that the interests of justice require the extension of time. [56] The application for extension of time is refused. [57] The parties are to pay their own costs of the application. 28 Penalties and Sentences Act 1992 (Qld) s 188(1)(c). 29 Penalties and Sentences Act 1992 (Qld) s 188(1)(a). 30 Applicant’s Outline of Submissions, 1; Decision of Chief Magistrate Rinaudo 9 December 2015, 6. 31 [1936] 55 CLR 499, 504-505. -- 8 of 18 -- 9 Annexure [1] The trial commenced on 29 June 2015. Detection Senior Constable Glen Denhert investigated the apparent burglary of the Riverheads Bottle Shop on 15 December 2013. Among other things, he noticed a safe had been drilled out of the floor. CCTV from a nearby IGA store showed two persons apparently disconnecting lines outside the store. He noted the boots one of the two persons was wearing. [2] On 6 May 2014, he attended the applicant’s place of work at Newstead in Brisbane, arrested and charged him. He took a swab for DNA analysis and took it to the DNA processing unit in Brisbane. The applicant was working at a security installation business at Newstead. Denhert arranged for a pair of work boots, which had been obtained under a search warrant at the applicant’s address, to be examined in Brisbane by scientific staff. He gave evidence of the continuity of possession of the work boots including a running statement of the property being handled by multiple officers. [3] Denhert was cross-examined about whether he interviewed the applicant’s brother, Justin Fox, and other people named Witchard. The witness had not interviewed them. [4] Senior Constable Coles, a scenes of crime officer, produced photographs identifying light framing outside the IGA store next door to the bottle shop, partially pulled from the wall; damage to the slats on the side of the alarm system of the bottle shop and the front door of the shop being partially removed. Other photographs showed damage to the security alarm box outside the doorway. Photos taken inside the bottle shop showed the position of water bottles on a servery bench and some other bottles. An alarm system on the back wall had been forcibly removed exposing wires and damaging the wall. Coles saw what looked like a mess of barbecue sauce on a counter and an obscene message. A photograph showed a hole cut in the floor, where the safe had been removed. He took swabs from the two water bottles, one uncapped, one capped. He gave evidence of the labelling and coding of the samples and packaging. [5] Coles was later recalled to the scene. He took up with Jason McHugh, a security provider. He went under the building with McHugh, took some photographs including of a shoe sole impression in the dirt. He noticed the phone line had been cut. He took photographs including close-ups of the boot impressions. [6] Under cross-examination, the witness referred to an area on the service counter where there had been a computer hard drive; he conceded that no latent fingerprints were found in the shop nor on the water bottles. It was suggested that by the time that this officer arrived the crime scene had been contaminated. The witness conceded that was possible. [7] Penelope Taylor, Bachelor of Science majoring in biochemistry and employed by Queensland Health Forensic and Scientific Services in Brisbane, interpreted the DNA profiles. Her evidence was that a partial DNA profile obtained from a swab taken near the mouth of an uncapped water bottle could have come from the applicant – the probability of the partial DNA profile occurring had the sample come from a person other than and unrelated the applicant was approximately one in 2.5 billion based on Queensland Caucasian data. [8] Under cross-examination, the applicant referred to paperwork provided by the Queensland Police Service naming the victim as the Fraser Coast Shire Council. The witness could not respond to this issue. -- 9 of 18 -- 10 [9] Darren Carter was the General Manager of the Torquay Hotel. He was called to the hotel at about 7.30 on 15 December. His evidence was that the front door had been removed from the shop and there was no stock left inside. The safe was gone. The security system was gone. He said the safe contained six days’ takings. He was shown a photograph of the written comments found in the shop. The suggestion made by the prosecutor was that these were derogatory comments written in relation to the witness. He said he knew nothing about that. [10] The applicant cross-examined to the effect that he and the witness did not know each other and there was no reason he would hold a grudge against the witness. The applicant asked the witness about his knowledge of certain people, namely Trina Pollock, Brad Witchard and Jordan Witchard. The witness said Trina had worked for him for several years and Brad had done landscaping around his house. He knew Jordan only through Brad and Tina. He agreed that none had a reason to hold a grudge against him. [11] Papai Ngatai was an employee of the Torquay Hotel at the time. On the day of the offence he closed up the shop, placing takings in “the drop safe”. He did not leave a water bottle on the counter. [12] The witness was cross-examined about the security system and about the missing alcohol. The applicant also asked him about the basis on which he left the employment of the Torquay Hotel. The witness said it was amicable. About the security system as he found it, he said the security footage had been taken, wires had been ripped out of the wall. [13] Jason McHugh was, at the time, employed by Hervey Bay Security. He was called to the scene to investigate why the alarm system did not sound. That was very concerning for his company, as the provider of the alarm system. He gave evidence of damage to the siren outside the building and he noticed a star picket on the ground nearby. He noticed that the alarm panel had been removed from the wall. He said those things should have triggered the alarm but no signal was sent back to the company. He investigated underneath the building and noticed that a chainlike fence had been lifted from the bottom. He obtained some keys to investigate underneath and looked at the PABX box. He noticed some woodchip shavings (these were consistent with the hole in the floor of the shop where the safe was missing) and he noticed boot marks on the ground. He noticed the phone line had been “neatly cut actually in the wood”. He concluded that was why the company did not receive an alarm signal. [14] The applicant cross-examined this witness as to his awareness of “issues with Hervey Bay Security, Baywide, the owner and myself during 2000 and 2012?”. The witness did not know. The witness said he had heard that the applicant was a very good tradesman in terms of how he had installed alarm systems. The witness agreed he had not himself installed an alarm system. The applicant asked questions about the Bosch Alarm System pictured in one of the photographs and its features. The witness could not comment. [15] Detective Senior Constable Quemard executed a search warrant on 6 May 2015. A recording of that conduct was played to the Chief Magistrate. During the playing of the recording the police officer gave evidence he could be heard talking to Bradley Witchard in an open “sort of gravel area where cars were parking”. He identified -- 10 of 18 -- 11 photographs of shoes that were taken, with close-ups of tan boots, including the sole. During cross-examination the applicant asked whether the witness had interviewed “Brad and Jordan in relation to this break and enter”. He had not. [16] Sergeant Donna Stewart, from the Police Scientific section, tended a statement (exhibit 15) and said she was requested to conduct a shoe sole comparison between some photographs captured by a Scenes of Crimes officer and three pairs of shoes lodged at the Police Scientific section. Her examination showed that the shape and size of the boots examined and two particular boot impressions at the scene were consistent. There was the same pattern outsole, “But there wasn’t any individualising characteristics to give a more conclusive comparison.” The witness determined that the boots could have made the impressions as could any other shoe outsole that had the same sort of size, shape and pattern. Her information was that approximately 1100 shoes of that outsole pattern had been imported into Queensland. The brand in question was sold to Sunshine Hardware Group with deliveries in 2012 and 2013. The witness properly conceded under cross-examination that it is possible that it was another pair of boots with the same outsole, same size, same shape and pattern which caused the impressions at the scene. [17] At the close of the prosecution case, the applicant told the learned Chief Magistrate that he had CCTV footage from his home, apparently taken on the night in question. The applicant also raised the prospect of his father giving evidence in relation to the applicant’s knowledge of security systems and concerning his family’s DNA “from the murder trial of my mother”. The learned Chief Magistrate sought to understand what the applicant made of the DNA material. Asked whether it was that the DNA did not match, he said that the evidence was not detailed enough, that the report he held was more detailed. At this point the learned Chief Magistrate outlined the essence of the case against the applicant as his Honour then perceived it: there was evidence of the applicant’s knowledge of security systems which enabled him to disable the system; a water bottle found on the bench which had the applicant’s DNA; and a search at his residence produced a pair of boots which matched foot markings underneath the building. [18] During this interaction the applicant told the learned Chief Magistrate that the boots were not his and were not located where he resided, that they were admitted by Bradley Witchard to be his boots. The discussion about the CCTV footage continued, the applicant telling the Chief Magistrate it showed that he was at home and not at the scene. That is, he had an alibi. This was presented at the end of the prosecution case without notice. The learned Chief Magistrate resisted the applicant’s calling his father on the basis that “any evidence that he gives about your expertise is not going to help you”. The applicant seemed to accept this proposition (transcript 29 June 2015 1-99). The learned Chief Magistrate left open whether the applicant would have DNA matter tested and advised that the applicant would have to let the police look at any CCTV footage he relied on to prove an alibi. The trial was adjourned. [19] The next day, 30 June 2015, the proceeding was adjourned again because the police were unable to examine the recording disclosed by the applicant. [20] On 24 August 2015, the prosecution again sought an adjournment, explaining that the examination of the recording raised concerns about its authenticity. To allow further examination of equipment seized from the applicant’s residence, the hearing was adjourned. -- 11 of 18 -- 12 [21] The hearing resumed on 9 November 2015. The learned Chief Magistrate allowed, over the applicant’s objection, two amendments to the charge. They concerned the name of the complainant and the time of the offence. The latter was designed to cover the period from 6pm on 14 December 2013 to 7am on 15 December 2013, to accord with the evidence of Mr Ngatai. This amendment was appropriate. [22] The learned Chief Magistrate then, formally, allowed the prosecution to re-open to rebut the evidence the applicant had recently disclosed. As his Honour remarked, this would allow the applicant to understand the prosecution case before going into evidence. At this point, other than to provide the USB, there had been no evidence on behalf of the applicant. [23] Dehnert was recalled. He gave evidence that at the close of the Prosecution case on 30 June 2015, the applicant had provided a USB, saying it contained CCTV footage of “an alibi”. As a result, Denhert sought a search warrant for the applicant’s address, which was issued on the afternoon of 1 July 2015 and executed the next day. The witness gave evidence that the address of the applicant was several kilometres from the offence location, around five to six minutes if travelling by car. [24] Denhert’s evidence continued: the purpose of the search was to look for the CCTV footage, and during the search several hard drives and computers, as well as items of clothing were seized; he had multiple recorded conversations with the applicant; a field property receipt was provided for the seized goods; the issuing of the search warrant occurred in circumstances where the applicant and his wife had indicated they would refuse to permit the witness attend their address and participate in an interview in relation to the CCTV footage. [25] In cross-examination, the witness said that at the time of the original search of the property on 6 May 2014, the applicant was at work in Brisbane. During this search, the officers seized several shoes from that address. The witness could not say whether they were the applicant’s footwear. He said the company the applicant worked at was involved with the installation of security cameras. The applicant indicated this was not correct, and that the business was a wholesaler, rather than an installer. Evidence was given that, at the second search, Denhert did not observe any hardwired camera cables from the outside of the house. He accepted that there was no hardwired camera but there could have been evidence to suggest one had previously been there. The witness did not believe the CCTV footage was authentic, which was why he sought for it to be further examined. The purpose of the second search was to locate the original CCTV footage. [26] Expert witness Tim Woodcock, a senior forensic recording analyst with the Queensland Police Service, was then called. Through visual observation of the CCTV footage there was nothing in the content to suggest the recording had been tampered with. However, slight anomalies were identified in the naming of files which indicated the back-up process had not been automatic. The witness gave evidence that it “looks like it’s been done by hand … because the file names of the folders are slightly different.” The footage from a particular camera was also missing. His evidence included the assertion that the date and time of a recording could be “fabricated” by changing the settings of the computer, then making the recording. As I read the witness’s sometimes long and complicated answers, he did not purport to prove that the CCTV video was not created at the time shown on it, but asserted that -- 12 of 18 -- 13 the date and time shown would not necessarily be proof of when the video was recorded. He summarised by saying: Although the supplied files are consistent with the purported CCTV system, and overlooking the odd compilation of the file presented, the recorded time and date information displayed simply reflects the setting of the recording device at the time, and without additional verification, do not definitively indicate the date and time of the recording. [27] The applicant showed the witness a report from the manufacturer, Geovision, and told the court he had sent a copy of the ‘alibi’ video for verification. The witness did not challenge the apparent import of the report, which was that, by examining a watermark in the file it could be said that the video had not been edited after it was made. The witness said: I have no problem with it being valid as far as footage from their system. …. I didn’t believe it was edited. Referring to a statement in the report, “This suggests the files have not been modified after the files are recorded onto the storage.” the witness said this did not say anything about the time and date of the recording. [28] The prosecution closed its case. There followed a discussion in which the applicant informed the court he would call witnesses but did not intend to give evidence himself. The discussion continued about the prospect of the applicant calling his father, who was apparently in custody serving a sentence for the murder of the applicant’s mother. One matter the applicant sought to adduce from his father was the latter’s long experience in the security installations to support two submissions: first that little had changed for a long time and he was “aware of customers doing insurance rip-offs”, which was a reasonable alternative hypothesis; second, that a star picket could not breach or disable the external siren. [29] The applicant was encouraged to start his evidence with the option of returning on another day if he had forgotten something. [30] The applicant gave evidence that his foot size was 11½ (the boots seized were size 10). Reading from a prepared document, he said he had 21 years’ experience in the electronic security field; he produced the video footage from his home dated 15 December 2013 as proof that he was not at the scene of the offence and asserted the recording had not been altered and could be checked as it was “embedded watermark for proof of authenticity”. The prosecutor informed the court that the video was about 45 minutes long and showed the applicant sitting at a computer for a period from about 1.07 wearing shorts and a t-shirt. His wife can be seen entering, at about 1.40, in distinct, apparently unseasonal, clothes. The applicant gave evidence explaining his wife’s clothing. [31] Under cross-examination, the applicant said he knew Brad Witchard and Jordan Witchard, Brad’s son. Trina Pollock was Brad’s ex-partner. Jordan Witchard was at the applicant’s property on the weekend of 14-15 December 2013. The applicant denied knowing that Trina worked at the River Heads Bottle Shop. He accepted Brad knew where she worked. It was put, and denied, that the applicant knew there was a safe at the bottle shop; he knew because Brad had told him; he drove to the bottle shop, disabled the security system by cutting the phone line, disabled the siren using the star picket, drank water from a bottle which he left on the counter, took the -- 13 of 18 -- 14 hard drives which stored the security footage; that he with co-offenders took the safe and liquor and that he fabricated and staged the home ‘alibi’ CCTV. The motive put was that Brad Witchard believed Trina had slept with Darren Carter and the applicant and Brad Witchard committed the offence as revenge. The applicant replied, “definitely not”. [32] The applicant called his wife, Julie Connor. The learned Chief Magistrate allowed the witness to read from a statement she had written. It included the following: She recalled the weekend of Friday, 13 December 2013; the applicant drove from Brisbane, from work. He had a really sore back and was bedridden most of the weekend. She gave him painkillers and he went to sleep. He had hurt his back in 2012. She said he did not have a large stash of alcohol that weekend. The witness said that when the police raided her house in May 2014 there were approximately 10 bottles of spirits sitting in the kitchen. She gave evidence that the applicant was given rum and scotch by a customer who went overseas regularly. She said he drank bottled water - he did not like the town water. She referred to Brad and his son Jordan (Witchard) who were staying at their property. She said Brad asked if he could use the ute to pick up some of his stuff. Brad left in the daytime and came back in the morning with the ute. It is understood that the witness was referring to the day of the offence, suggesting that Brad Witchard had the applicant’s Ute and, perhaps, committed the offence. [33] To deal with the clothing the witness was seen in, in the CCTV footage, she explained that she had a gunshot wound to her left shoulder and thyroid medical issues. She is regularly cold and even in summer rugs up. She gave evidence that the applicant’s foot size was 11 to 11½. She knew that because she had purchased footwear for him. She identified the shoes which were photographed as belonging to Brad Witchard. Her evidence included that Jordan, Brad’s son, was staying in the donga on the property and Brad was in the shed. Brad Witchard was at the property to do renovations to the house. She confirmed the applicant had sold the business which settled in 2014. She also said that she and the applicant lent Brad around $10,000. [34] Julie Conner was cross-examined about two documents in evidence - one of them purportedly written by her, the other her affidavit, apparently handwritten. She was challenged on the difference between the hand writing in the two documents. At first, she denied any difference but eventually she conceded that there was different handwriting but insisted that she had signed both. She was cross-examined about her evidence that when police raided they did not take any alcohol. Shown the photographs of alcohol seized from the property, she replied “that wasn’t inside the house” and later “that didn’t belong to us”. She confirmed that Brad Witchard was a friend, Trina Pollock his ex-wife and Jordan was his son. She denied knowing Trina Pollock worked at the Torquay Hotel. She confirmed the applicant’s evidence that the CCTV footage was not fabricated and that she had already given explanations for the clothing she was seen wearing on the video. She agreed she had given alibi evidence for her husband before, which, she said, was the truth. It resulted in her husband being found not guilty. In re-examination, the applicant referred to medical records concerning his conditions. These were produced but, at this stage, not admitted into evidence, the prosecutor objecting on the basis that they -- 14 of 18 -- 15 were not signed documents. Despite the objection, the learned Chief Magistrate later received the documents (exhibit 27). [35] There was then another discussion about whether the applicant’s father, then in Maryborough Correctional Centre, could be called as a witness in the applicant’s case. It emerged the proposed witness had been incarcerated since 1997. The learned Chief Magistrate did not allow the applicant to call the witness. [36] The hearing resumed on 9 December 2015. The applicant presented an affidavit and, over objection by the prosecution, the learned Chief Magistrate was prepared to allow the witness to be called even though the evidence was expected to be in the nature of an alibi. However, the applicant then explained the witness had not come to court, apparently fearing police retaliation. In the circumstances, the application to admit the affidavit was refused. It was then time for addresses. Although the applicant had gone into evidence the learned Chief Magistrate asked the prosecutor to address first to allow the applicant the right of reply. [37] The prosecution case was that the applicant was one of two people on the IGA Store CCTV footage. The prosecutor submitted the offence had been committed by disabling the alarm system. The star picket was used to smash the siren on the outside and the applicant cut phone lines under the building. The door was removed, damaging it. The intruders entered the store, stole the stock and cash including the safe and stole the components of the security system from inside the door including computers. The only matter in dispute was the identification of the offender. The circumstantial case in proof of his involvement included the following facts: The applicant was in Hervey Bay at the time. Trina Pollock, the partner of Brad Witchard, worked with Darren Connor who was the manager of the bottle shop. The applicant admitted knowing Witchard and Pollock. This was relevant because of the writing inside the shop which suggested the offence was motivated by revenge on behalf of Brad Witchard. It was to be inferred that Pollock would have known the banking habits of the business including that the safe was emptied on Sunday. The prosecution case theory was that Brad Witchard was the co-offender. The applicant’s property was five or six minutes by car from the offence location allowing multiple trips to remove the large quantity of liquor. There were two vehicles registered to the applicant’s place capable of doing the work. The applicant had deep knowledge of installation of security systems and was employed in that industry having given evidence himself that he had installed and dismantled them for customers for years. This explained why the offenders knew to ensure that recordings could not be viewed and so took the equipment from inside the store. The applicant’s DNA was located inside the store on the water bottle. That is, Ms Taylor’s evidence was that the chance of a person unrelated to the applicant being a contributor to the samples was one in 2.5 billion. The offence occurred in December when it would have been hot, explaining the applicant taking a water bottle and drinking from it. (That happened to be consistent with the applicant’s wife’s evidence that the applicant drank bottled water.) The shoe impression matched a shoe located at the applicant’s property – by this stage it seemed the prosecution case had shifted from the applicant having worn the boot to the boot having been worn by Brad Witchard. The evidence about the limited number of boots available increased the attraction of the inference the prosecution sought to be drawn. -- 15 of 18 -- 16 [38] As to the defence evidence, the prosecutor referred to the expert evidence in rebuttal which allowed for the possibility that the applicant fabricated the recording by changing the date on his computer and recording the CCTV footage at a time after the incident. Also, the recording, being up to one hour in length, was an insufficient alibi for the commission of the offence between the time the store was closed and the time the alarm was raised in the morning. The prosecutor attacked the credibility of Julie Connor submitting that she gave evasive answers – referring to the handwriting evidence and the improbability of clothing she was apparently wearing in December being on the line a couple of days after the police came to the property in the middle of 2015. [39] The applicant made extensive submissions to the learned Chief Magistrate explaining why he did not give police the CCTV footage earlier. The reasons included his distrust of police as a result of the conduct of police investigation of his mother’s death. The prosecutor interjected and objected to the manner of the address but the learned Chief Magistrate expressly invited the applicant to continue, giving him latitude. The applicant referred to evidence of the forensic officer that the DNA sample was taken from the Fraser Coast Shire Council, not the Riverheads Bottle Shop, and so was irrelevant to the trial. He had established that the boots assumed to be his were not his; the CCTV from the IGA footage was not watermarked and although it showed two offenders, it did not identify him; given his back and neck injuries he could not move that quantity of alcohol; he has always been well employed and had sold his business with the cash coming through in April 2014 – there was no motive for him to commit an offence. The applicant also made a submission that the photographs did not match the bottles, that is the water bottles. His CCTV, he submitted, was authenticated by the expert witness and the prosecution answer was only an assumption that the date and time had been changed - there was no evidence of the change. He referred to the alibi evidence given by his wife. He asserted that defeating alarm systems by sabotaging telephone lines was a common means of enabling breaking and entering premises. This assertion was based on his experience attending properties after break and enters and discussions while in custody (on other matters) with other prisoners. He referred again to his wife’s clothing evidence and explained to the court that she had been shot by his father in 1996. This was the background to her medical issues. He said it was “actually impossible to alter the time and date on the CCTV by a layman” while admitting he had learnt how to, as a result of the expert’s testimony and report. As to the DNA evidence, he submitted his brothers would have similar DNA and had previously worked with him and also had vast knowledge of the installation and operation of electronic alarm systems. The police had not discounted these people and he referred to evidence that his vehicle was borrowed on the Saturday and Sunday – the weekend of the offence. One reasonable alternative hypothesis as to the identity of the offender was that the break and enter was an insurance job, evidenced by the business shutting down the next day and not reopening. Another theory seemed to be that Brad Witchard committed the offence without the applicant’s involvement. The prosecution’s motive applied to Witchard but not to the applicant. The applicant also pointed out that the building was unsecured for approximately 12 hours, enabling it to be interfered with. Any assertion that he had been uncooperative with police arose from his distrust of police which emerged from the manner in which they treated the applicant and his family – “the police totally bungled my mother’s murder case…..”. The applicant also posed the reasonable question, why was Brad Witchard not arrested if he is a co-offender? -- 16 of 18 -- 17 [40] Just after 11am the learned Chief Magistrate adjourned to 2.30pm, when his Honour gave reasons for finding the applicant guilty. [41] The learned Chief Magistrate’s reasons included a survey of the evidence which led to the inference, beyond reasonable doubt, of the applicant’s guilt. A key fact found by the learned Chief Magistrate was the water bottle was left on the counter, with a clear line of control to the DNA examination established and it matched the applicant’s DNA sample. [42] The learned Chief Magistrate rejected the only alternatives – that this evidence was fabricated and that the officer who tested the DNA samples, Ms Taylor, was part of some conspiracy. The other facts were – the applicant had the knowledge and opportunity to commit the offence. He had the ability given the cars at the property. The shoe which was shown as a footprint under the building was found at the property and alcohol was found in his premises. [43] The learned Chief Magistrate rejected the alibi evidence. It was raised late and the applicant’s explanations were insufficient. The evidence of Woodcock raised the prospect of it being created after the event, and the time on the recording coincidentally fitted with the CCTV footage of the shop. As to the applicant’s wife, the learned Chief Magistrate referred to the inconsistent evidence given in respect of the handwritten letters and the alcohol seized. His Honour did not accept her evidence. [44] After the reasons were given, the Police Prosecutor made submissions on sentence. The applicant was asked what he wanted to say on sentence. He told the learned Chief Magistrate that the witness who was unavailable in the morning was now at court. He explained he had managed to pick up the witness. He had the witness’s affidavit and explained what evidence the witness might give. Despite the fact that the learned Chief Magistrate had heard all of the evidence and given reasons, his Honour allowed the applicant to reopen. Jordan Witchard gave evidence. He was born 28 March, 1998 making him 15 years old in December 2013 and 17 at the time of giving evidence. His father was Brad Witchard. He recalled staying at the applicant’s property in a little donga which was about 50 to 10 metres from the house. He had known the applicant since he was a young child. He gave evidence that his father, Brad, was doing work for the applicant around the house. Asked when that was, he said “I think around 2013. Yeah.” He said he stayed at that house several times. Asked by the applicant whether on the weekend of December 2013 he recalled staying at the house, the witness said, “yeah”. Asked “Did you see me leave that property in my Ute”, the witness said, “Nuh”. After objection about the leading questions the learned Chief Magistrate asked the question, and the evidence followed. What can you tell the court about that night? – He never left the house. He stayed there all night. Brad took the Ute and went out for a while and yeah. Ok. And you know this from your own knowledge? – Yeah. I saw Brad leave and I never saw Pete leave there once. [45] Under cross-examination the witness said he was awake “pretty much most of the night” and did not hear any cars start up and leave other than when he saw Brad take off. He conceded he had a little nap at some stage for about an hour. He was pretty -- 17 of 18 -- 18 sure a car would have woken him up and repeated that “Peter didn’t go anywhere that night and he stayed at the house the whole time”. [46] The learned Chief Magistrate immediately dealt with the evidence, having already given a decision in the matter. He concluded the evidence did not change his decision. He noted that the witness was a young man and it was inconceivable that he would be able to give such cogent evidence of events that occurred so long ago. The learned Chief Magistrate was not impressed by the evidence. The proceeding continued to sentence. [47] The above survey of the record demonstrates the applicant, while self-represented, was able to conduct a fair trial with appropriate assistance of the learned Chief Magistrate. It was open to the learned Chief Magistrate to make the findings his Honour did. At this distance it is impossible upon the review of the record to conclude other than as the learned Chief Magistrate did. That is, that the case against the applicant, whilst circumstantial, was compelling and he was properly found guilty. -- 18 of 18 --