T C v Director of Public Prosecutions

1. [1]

   WARD P: This is an appeal as of right by the appellant against his conviction on 18 December 2024 by the President of the Children’s Court of 11 property offences that occurred in the early hours of the mornings of 2 September 2024 and 4 September 2024. Her Honour gave ex tempore reasons for her findings following the hearing. Those reasons were discursive and addressed directly to the appellant.

2. [2]

   It is not in dispute that the primary issue at the hearing was identification of the appellant as one of the offenders on both 2 and 4 September 2024. The prosecutor relied on CCTV footage and the evidence of the Officer in Charge (Senior Constable Beer), as well as the location of various items of clothing, a torch and a knife corresponding to items observable on the CCTV footage. Her Honour was satisfied to the criminal standard of the appellant’s guilt on all but two of the 13 sequences of offences with which the appellant had been charged (the prosecutor having withdrawn a 14th sequence – sequence 8 – on the morning of the hearing).

3. [3]

   The appeal is brought pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (Crimes (Appeal and Review) Act), the Children’s Court being included in the definition of Local Court in s 3 of that Act. Such an appeal ordinarily lies to the District Court of New South Wales. However, as the President of the Children’s Court holds office as a judge of that Court, the present appeal is taken to be an appeal to this Court (see s 22A(2) of the Children’s Court Act 1987 (NSW), which is engaged by cl 4 of the Children’s Court Regulation 2024 – see PD v Director of Public Prosecutions (NSW) [2025] NSWSC 16 per Basten AJ at [11]-[12]).

4. [4]

   The appeal is by way of rehearing on the basis of the evidence given in the Children’s Court (see s 18 of the Crimes (Appeal and Review) Act), together with any evidence admitted by leave pursuant to s 18(2) of the Crimes (Appeal and Review) Act (see Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; 207 A Crim R 362 per Beazley JA, as Her Excellency then was, at [23], there referring to the observations of Mason P in Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39). It is not a hearing “de novo”, as made clear in McNab v Director of Public Prosecutions (2021) 106 NSWLR 430; [2021] NSWCA 298 (McNab) per Bell P, as the Chief Justice then was, at [23].

5. [5]

   Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the appellant’s name and the names of associated young persons mentioned in the proceedings is prohibited. For that reason, I simply refer to the appellant as such and I have anonymised references to the associated persons.

Background

1. [6]

   The background can be shortly stated.

2. [7]

   In the early hours of the morning on 2 September 2024, property offences were committed at a number of residential properties in the Newcastle area. CCTV footage was obtained at or near the various properties and a map was tendered at the hearing (Ex B) showing the location of the properties, which indicates the movements of the persons involved in the offending. The respondent says that the CCTV footage suggests that there were up to five persons involved but only two, or sometimes three, persons appear to have entered onto various of the properties.

CCTV footage

1. [8]

   The CCTV footage was reviewed by me both in Court and I have reviewed it carefully again later in chambers. It may be summarised as follows.

2. [9]

   The first of the CCTV footage does not relate to a charged sequence. It was taken at 1.52am on 2 September 2024, at an address in Carinda Avenue, Edgeworth, before the offence the subject of sequence 1 was committed. It shows a person, wearing a balaclava, approaching the door to the property and ringing the doorbell. I understand that it was relied on as showing the first of the locations visited in the CCTV footage of that day. Nothing useful can be discerned from this footage as to the identification of the person who approached and rang the doorbell. (There is a second file time-stamped 1.54.43 taken from this property, which appears to show a person wearing black gloves, cf the first file of footage from that date where the hand of the person is slightly visible (1.52.42-1.54.43), thus indicating two persons were at these premises.)

3. [10]

   The second of the CCTV footage relied upon from 2 September 2024, comprises a series of four files taken from footage obtained from a property at Durham Road, Edgeworth. It relates to sequence 1. That footage is time-stamped 2.51am. It shows a Skoda vehicle (described in Court as khaki-coloured) which, on the prosecution case, was stolen from the Durham Road address and then used in the offences that followed. The infra-red footage shows three persons at the property (2:52am). On the prosecution case, the appellant is the person wearing a balaclava, a jumper, tracksuit pants and footwear referred to as “slides”, and holding a torch.

4. [11]

   The third piece of CCTV footage is time-stamped 3.30am and was taken from a property at Gosford Road, Broadmeadow. It relates to sequence 2. This footage is in colour. Visible in the background of the footage is a Skoda vehicle. A person (who, on the prosecution case, was the appellant) can be seen wearing a balaclava, blue jumper or top with an Orange Nike tick on the front, grey tracksuit pants and black slides, as well as gloves.

5. [12]

   The fourth of the CCTV footage relied upon is time-stamped 3.40am and was taken from a property at Kenrick Street, The Junction and relates to sequences 3 to 4. Two persons can be seen walking in the front gate. The first person moving through the yard (on the prosecution case, the appellant) is wearing a blue jumper with an orange Nike symbol, grey Adidas tracksuit pants, grey gloves, black slides, a balaclava and is holding a knife in the left hand. The person moves towards a vehicle parked in the driveway of the property. A still image taken from that footage (CB p 66) provides the clearest view available of a portion of the left-hand side of the offender’s face (and was relied upon by her Honour when identifying this person as the appellant by reference to his eyes, the shape of his face and his brow – see judgment at p 7). The footage shows that the balaclava clad person approaches the back door and appears to attempt to open the door. The second person (on the prosecution case, the co-offender “R”), is wearing a grey Adidas jumper, a black hood, a face mask and black gloves. The footage shows that this person approaches a side door and covers the camera.

6. [13]

   The fifth of the footage is taken from another property at Kenrick Street, The Junction (two doors up from the first). Annexure 1 to the statement of Senior Constable Beer includes a time-stamp of 3.43am for this footage. It relates to sequence 5. This footage is also in colour. This footage shows two persons (one wearing a grey Adidas jumper, the other a Blue Nike jumper and balaclava) approaching a car in the driveway and the front door. Footage from the side door of the property shows the balaclava/blue Nike jumper clad person approaching a red car next to the side door from which a laptop bag was removed (see CB 67).

7. [14]

   The sixth of the footage, time-stamped 4.17am is taken from a property at Berner Street, Merewether, relates to sequences 6 and 7. The footage shows a vehicle arriving at the property and two persons walking down the driveway; one, wearing a balaclava (on the prosecution case, the appellant), the other (on the prosecution case, “R”), not wearing a balaclava but covering part of the face with a hand. The footage was infra-red so the colour of the clothing cannot be determined. Relevantly, the footage shows the person alleged to be “R” and the balaclava clad person standing closely together (4:19am), from which it can be seen that there is a conspicuous height difference between the two.

8. [15]

   Footage taken from the front door of the property shows “R” moving up to the camera. At 4.18.55, “R” moves away. Footage taken from various different angles show the balaclava clad person meeting up with “R” at the front of the house at 4.18.58 and the two moving off together and leaving the property at 4.19.18. In evidence there was a still photograph of the person alleged to be “R” taken from the footage from the front camera. On the CCTV footage from an overhead camera at the front of the house, the tracksuit pants, slides and balaclava are visible.

9. [16]

   The seventh of the footage is from a property at Merewether Street, Merewether, time-stamped 4.45am. This does not relate to a charged sequence but appears to have been the footage referred to by the President of the Children’s Court in her reasons at p 7, since it also provides a view of the balaclava clad person’s eyes and nose. The footage is in colour. It shows the person in the balaclava approaching towards the front door, wearing the blue jumper with an orange Nike tick, grey tracksuit pants, black slides, grey gloves and balaclava, and holding a knife in the left hand. Later footage shows the balaclava clad person leaving the front door, holding what appears (by reference to the photographs taken of items seized during execution of a search warrant at the house where the appellant was staying) to be a red and black handled torch. Still photographs taken from this CCTV footage are at CB 68.

10. [17]

    The final footage relied upon from 2 September 2024, is taken from a property at Lawson Street, Hamilton, time-stamped 4.52am, relating to sequences 11 and 12. Again, this is in colour. Two persons are visible, one wearing a blue jumper with an orange Nike tick, grey tracksuit pants, black slides, balaclava and gloves, and holding a knife. In the background there is a khaki vehicle which towards the end of the footage can be seen reversing (which the respondent points out indicates that more than two people were present at the scene).

11. [18]

    I turn to the CCTV footage as to the offending during the early hours of 4 September (relating to sequences 13 and 14).

12. [19]

    The first footage is taken from a property at Norfolk Street, Cardiff, time-stamped 1.34am, relating to sequence 13. Two persons are visible on the footage, one of whom (on the prosecution case, “R”) is wearing a black hooded top, shorts and sneakers, covering his face with his hand; the other (on the prosecution case, the appellant), is wearing a hooded top with contrasting (or two-toned) shoulder/hood and body of the top, grey tracksuit pants and black slides. The person alleged to be the appellant does not appear to be wearing a balaclava but that person’s face is covered by a hand. The person said to be “R” approaches the front door; the person alleged to be the appellant remains behind a car.

13. [20]

    The next set of files of CCTV footage are taken from two properties at Jubilee Road, Elemore Vale, the first of the files time-stamped 2.27am and the second time-stamped 2.34am. The first is in black and white, the latter in colour. The first file shows a person in a two-toned hooded top, covering the person’s face by hand, and wearing tracksuit pants and slides, walking behind a person wearing a hooded top, shorts and sneakers and also covering the face with a hand. The second shows more clearly the clothing of both persons. The second file also shows a third person who approaches the door first, wearing black tracksuit pants, a grey hooded top, black gloves and a cap or hat underneath the hooded top. That person covers the face with the hooded top (2.34.35-2.34.45).

14. [21]

    Finally, there was footage taken from a property at Aries Way, Elermore Vale, on 4 September 2024, time-stamped 3.14am. It relates to sequence 14 but is not taken from the property the subject of sequence 14. It shows a group of five people walking on the street. At 3.14.49am, the footage shows one of the two persons at the back of the group wearing black pants, a hooded top and black gloves. The other person is wearing a two-toned hooded top, trackpants and black slides.

Search warrant

1. [22]

   A search warrant was executed on 5 September 2024 at around 7am at a house at Roberts Close, Argenton, where the appellant was staying. In evidence was the property seizure form (CB p 83). A video taken when the search warrant was executed was also in evidence. From the video, it appears that there were six young persons, of similar age, at the house (a seventh person, an adult, signed the property seizure form), three males (including the appellant) and three females (including the co-accused “J”).

2. [23]

   The appellant was found in what was described as bedroom 1, with a female (“E”). In Court, the respondent indicated that the appellant was wearing a black shirt. Relevantly, the property seized included the following items.

3. [24]

   Item 2, seized at 7.20am, is a blue Nike jumper with an orange tick (see photograph at CB 69). It was found on a bed in the lounge room of the house (i.e., in a different location to the appellant) (see video at 6 minutes and 12 seconds). It clearly matches the blue Nike jumper that can be observed on various of the CCTV footage, as noted above. Relevantly, the police also located a photograph taken on 31 August 2024 (two days before the first of the offences) at 9.59pm on “E”’s phone (CB 64) showing “E” sitting on the lap of a male wearing a black cap, blue jumper (with part of an orange tick discernible, grey tracksuit pants and black slides). The respondent submits that this was the appellant. The appellant does not concede this (and says it was not conceded at trial).

4. [25]

   I note that there was also a photograph taken on 3 September 2024 on “J”’s phone at 9.08pm, (i.e., after the first set of offences) depicting a female wearing a blue jumper with an orange Nike tick and black tracksuit pants with a distinctive red/white coloured strip on the left-hand side across the top of the thigh (CB 63). The pants shown in this photograph match those seized at the Roberts Close premises (Item 12) and are similar to those worn by the person alleged to be “J” depicted in the CCTV footage taken from the two Kenrick Street properties at the Junction (and also on a still photograph at CB 60 described as taken from a property at Argyll Crescent, Edgeworth, although I was not taken to that CCTV footage in Court and cannot locate it on the USB stick of footage provided with the Court Book).

5. [26]

   Item 4 is a grey Adidas jumper (CB 62). This is consistent with the grey Adidas jumper worn by the person depicted in the CCTV footage on 2 September 2024 at Carinda Avenue, Edgeworth, Durham Road Edgeworth and the two Kenrick Street properties at The Junction (and the photograph at CB 60). The grey Adidas jumper was found in bedroom 1 (where the appellant was) (video at 12 minutes and 35 seconds).

6. [27]

   Item 5 is a pair of grey Adidas tracksuit pants (CB 70). On the prosecution case, these are the tracksuit pants worn by the appellant on both 2 and 4 September 2024. The grey tracksuit pants were found in bedroom 1 (again, as already noted, where the appellant was) (video at 12 minutes and 59 seconds).

7. [28]

   Item 6 is a grey and black Nike jumper (CB 74) found in bedroom 1 (where the appellant was found) (see video at 13 minutes and 20 seconds). This item matches that worn by the offender (on the prosecution case, the appellant) who appears in the Norfolk Street, Cardiff footage (see the still photograph taken from that footage at CB 72) and Jubilee Road, Elermore Vale footage (see the still photographs at CB 73).

8. [29]

   Pausing here, I note that Counsel for the appellant points out that there is a photograph (at CB 76) taken from “R”’s phone showing “R” wearing a top that is said to be “somewhat similar” to that seized on execution of the search warrant and shown in the photograph at CB 74. To my observation, there is only a passing similarity between the two items of clothing. The hood of the item seized is black; the hood of the item in the photograph is grey. There is solid colour across the top portion of the item seized; whereas the item in the photograph at CB 76 has a strip of grey in the centre of that portion. The item seized has two black zippers for pockets, whereas the item in the photograph at CB 76 appears to have no black zippers in that location. And the item seized does not have a contrasting strip horizontally across the top of the grey portion in contrast to the top in the photograph. It is not clear what the appellant makes of the asserted similarity between the two items. I can draw nothing from this.

9. [30]

   Item 7 is a pair of black Nike slides (CB 70) found under the bed in bedroom 1 (where the appellant was found) (video at 12 minutes and 40 seconds).

10. [31]

    Item 8 comprises two pairs of gloves (CB 70), which were found in bedroom 1 (again, where the appellant was found) inside the bedside table (video at 18 minutes and 50 seconds). I note that the respondent attaches significance to the fact that, within that same bedside table, police located (at around the same time as the gloves) medication with the appellant’s name on the label. While I accept that certainly permits the inference to be drawn that the gloves belonged to the appellant, the gloves themselves do not appear to be particularly distinctive.

11. [32]

    Item 10 is a pair of black “Hoodrich” tracksuit pants located in the bathroom (CB 63). This item corresponds to the tracksuit pants worn by “J” in the photograph at CB 63 and to the tracksuit pants visible in the CCTV footage from the properties at Edgeworth and The Junction, as previously noted.

12. [33]

    Item 11 is a black and red torch (CB 71) which was found on top of a dresser in the bedroom described as bedroom 2 (i.e., at a different location in the house from that where the appellant was found) (video at 30 minutes and 39). It corresponds to the torch that can be observed on some of the CCTV footage (see above).

13. [34]

    Item 12 is a black and silver knife (CB 71) found on a lounge in the bedroom described as bedroom 3 (again, in a different location from that where the appellant was found) which, on the prosecution case, is the same knife as that which can be seen in some of the CCTV footage (see above). It is not clear from my review of the search warrant video when the knife was found but Counsel for the appellant identified this as being at 4 minutes and 20 seconds (AT 16.7).

14. [35]

    The balaclava was not found nor were any of the sets of car keys that were taken. Indeed, there was no retrieval of any of the proceeds of the offences (two cars – the Skoda and a Kia; a laptop bag, car keys as well as garage keys taken from the bag, the subject of the charge, and a garage remote from one of the Kenrick Street properties).

Ex tempore reasons

1. [36]

   Although my task on appeal is to form my own judgment of the facts, recognising any advantage enjoyed by the President of the Children’s Court who heard the matter at first instance, (see McNab at [25]), it is permissible in the discharge of that appellate function to have regard to her Honour’s reasons for the conclusion that her Honour reached (see McNab at [36]-[41]). It is necessary here to do so in order to address the complaints made by the appellant as to errors by her Honour in the process of reasoning in which her Honour engaged.

2. [37]

   As already noted, her Honour’s ex tempore reasons were discursive in form, no doubt (as the appellant accepts) in order to explain to the appellant why it is that her Honour had reached the conclusion as to his guilt beyond reasonable doubt. This may well explain some infelicity in the manner in which her Honour described the task before her (which is the subject of specific complaint by the appellant – see below as to the submission that her Honour in effect reversed the onus of proof).

3. [38]

   Her Honour dismissed sequences 9 and 10 (relating to the offending at the Merewether Street property) on the basis that she was not satisfied that the offences were proved beyond reasonable doubt (because she did not know the timing of the CCTV footage and said that she could not link the location and the timing “even though it is a little suspicious”).

4. [39]

   Her Honour described the case as an “identification case only” (see at p 2), going on to caution herself as to the need to be careful in such a case and explaining this as follows:

5. [40]

   Her Honour went on to say (p 2):

6. [41]

   Her Honour then referred to the elements of the charges (pp 2-3), explaining that she was satisfied as to those elements, including the intention to steal.

7. [42]

   Turning to the question of identification, her Honour referred to the map showing the locations of the offending and the CCTV footage capturing the number of people (what they were wearing, how they were being transported) and posing the question as to how long it would normally take to get between the various places. Her Honour then said, noting in the course of this passage (not here extracted), that some of the CCTV footage was only in black and white:

8. [43]

   As can be seen, her Honour concluded that one of the offenders was a girl by reference to her frame, the way she moved and her big eyelashes (the last observation presumably by reference to the image taken from footage from one of the Kenrick Street properties (see still photograph at CB 61)).

9. [44]

   Having said that the person in the blue top was “probably” between 5 foot 8 and 5 foot 11, and that the person had broader shoulders and a leaner kind of bottom and legs (seemingly a comparison with the other “guy who is a bit bigger” – no doubt a reference to “R”), her Honour concluded that she was satisfied that the person on 2 September 2024 “is that person” (p 6). In context, it appears that what her Honour there meant, was that the person in the blue Nike top was the same person wearing the balaclava, knitted gloves and slides in all the footage taken on 2 September 2024.

10. [45]

    Turning then to the events of 4 September 2024, her Honour paused to ask counsel:

11. [46]

    The prosecutor initially expressed some uncertainty but then confirmed (as did Counsel for the appellant) that on both nights the other person in the puffer jacket was said to be “R”. (This exchange is the subject of complaint by the appellant in this appeal – see below.)

12. [47]

    Her Honour then said that this was “where the consistent height comes in” (this is again the subject of complaint by the appellant as I discuss in due course), apparently referring to the consistency of height of the offenders on 2 and 4 September 2024. Her Honour also said that the person in the two-toned top on 4 September 2024 (i.e., on the prosecution case, the appellant), had a very similar build to the person wearing a different top (in context, a reference to the blue top) on 2 September 2024.

13. [48]

    Again, her Honour cautioned herself as to the need for care when looking at the CCTV footage, saying at p 7:

14. [49]

    Here, it is clear that her Honour was placing weight on the CCTV footage from Kenrick Street and Merewether Street.

15. [50]

    Her Honour referred to the images taken of “J” obtained on execution of the search warrant and said that, having looked at those pictures and the CCTV footage and search warrant video, she was satisfied that the person there on the night of 2 September 2024 was “J”. Her Honour then said (at p 8) (about which the appellant here complains):

16. [51]

    Her Honour then referred to the clothes found in the execution of the search warrant (the blue top found where “J” had been sleeping, which her Honour noted from the photographs “J” was wearing on 3 September 2024) and the clothes and items found in the room where the appellant and “E” were together (bedroom 1). Her Honour noted that the torch and knife were found elsewhere in the house and then recorded that there was a photograph on “E”’s phone of the appellant wearing an outfit exactly the same as the outfit captured on the 2 September 2024 CCTV footage (p 8).

17. [52]

    Again, her Honour cautioned herself about identification and the need to be satisfied beyond a reasonable doubt:

18. [53]

    In that paragraph, her Honour added that she needed to take into account that this was not distinctive clothing on its own and her Honour apparently took judicial note that young people “all like to dress the same” and that Nike and Adidas clothes were “pretty consistent in how they look”.

19. [54]

    Her Honour referred to the fact that there were a lot of people in the Roberts Close premises and said that it was clear that clothes were being shared in that house. Her Honour also noted that no proceeds of crime were found, there was no forensic or DNA evidence, no fingerprints found, and no balaclava found; and said that “all I have got to go on is the CCTV imagery”. Her Honour then concluded (at p 9):

20. [55]

    The last two sentences in the above extract are the subject of complaint by the appellant – as I address in due course.

21. [56]

    The appellant’s primary contention is that the Court cannot be satisfied that he is the person depicted in the CCTV footage, particularly in circumstances where: none of the footage captures an unobstructed view of the person (the majority of the footage showing a person wearing a balaclava); there is no DNA or fingerprint evidence linking him to any of the crime scenes; there is no “recognition” evidence; he was arrested approximately 28 hours after the last of the offences; and none of the proceeds of the offending was found with him.

22. [57]

    The appellant further submits that her Honour made findings in her judgment that were not open on the evidence and that these discrete errors led to the erroneous conclusion as to his guilt.

23. [58]

    Addressing the asserted discrete errors first, they are as follows.

24. [59]

    First, the finding that the person in the CCTV footage on 2 September 2024 is the same person throughout the evening. The appellant submits that this finding could not be made to the requisite criminal standard.

25. [60]

    In this regard, the appellant submits that her Honour reversed the task before her when asking whether there was any reason that she would not say that the person who was in the blue top was not the same person (as the person wearing balaclava, grey pants, black slides and gloves) in the rest of the footage of that night. The appellant complains that her Honour is there seemingly commencing from the position that the person is the same.

26. [61]

    The appellant points out that the CCTV footage from both Durham Road, Edgeworth (sequence 1) and Berner Street, Merewether (sequence 6) is in black and white. While the appellant says that it does not allow for any discernible identification of clothing (noting that the “Nike” tick logo is not visible on this footage), I do note that the Adidas logo can be briefly identified on the CCTV footage from Durham Road, Edgeworth (driveway 1 at 2.51.19; front door at 2.51.55) and a small Nike logo can be identified in the top right corner of the puffer jacket worn by the person said to be “R” at 4.18.52 on the CTTV footage from Berner Street, Merewether.

27. [62]

    The appellant also points to the comparatively poor quality of the Durham Road, Edgeworth footage.

28. [63]

    Insofar as her Honour has relied on the height of the person in the blue top (judgment at pp 5-6), in support of her identification finding, the appellant argues that the terms in which the person’s height is identified (“probably between about 5 foot 8 and 5 foot”) indicate that the footage is insufficient to make accurate findings.

29. [64]

    Second, the appellant submits that her Honour improperly relied on the identity of “R” (judgment at p 6) to conclude that the offender in the 2 September footage is the same as the offender in the 4 September footage.

30. [65]

    The appellant submits that the exchange during the course of the ex tempore reasons (see above at [45]) was irregular. The appellant argues that while this may have been intended only to clarify the factual matrix, there is a difficulty in the question because the information subsequently assumed a “central” role in her Honour’s reasoning, her Honour referring to the “consistent height” of the persons on both nights.

31. [66]

    The appellant submits that, even assuming that it could be found that “R” was a consistent figure across both 2 and 4 September 2024, there is insufficient evidence to make any findings about the height of the person depicted in the footage in comparison to that of “R”, arguing that the four pieces of footage that show the alleged appellant next to “R” do not allow for any accurate finding about the height difference between the two persons.

32. [67]

    Third, as to the finding (at p 9) that “all of those clothes [in context, it seems, the clothing depicted on the person in the 2 September footage] were found together” at the place where the appellant was arrested (Roberts Close premises) the appellant points out that this is accurate only to the extent that it refers to the premises at Roberts Close, Argenton. The appellant notes that aspects of the clothing were found in different locations in the house (the blue Nike jumper in the lounge room, for example). Further, the appellant argues that the location of clothing loses any probative value in circumstances where various people were residing at the house and there was evidence as to the sharing of clothes.

33. [68]

    Fourth, the appellant contends that her Honour, having found that “J” was one of the persons shown in the CCTV footage of 2 September 2024, improperly relied on his association with “J” (namely, that he was found in the same home as her) to infer guilt by association.

34. [69]

    Fifth, the appellant contends that her Honour fundamentally mischaracterised her task (reversing the onus of proof) when making the statements at p 9 of the judgment extracted above (at [54]), to the effect that her job was to see whether there was any way that he could be innocent of the offences. The appellant accepts that her Honour properly identified the burden and onus of proof in the course of her judgment but says that her Honour’s mischaracterisation of the task before her (at p 9) “contextualises aspects of her Honour’s approach to the evidence”.

35. [70]

    However, as adverted to above, the appellant contends that the overarching error by her Honour is that the CCTV footage (whether alone or in combination with other evidence) does not allow for the identification of him as the offender to the requisite criminal standard.

36. [71]

    The appellant submits that no reliable identification findings can be made based on the Kenrick and Merewether Street footage, noting that in both, the offender is wearing a balaclava and faces or is in close vicinity of the camera for only a few seconds (in the Merewether Street footage, the offender faces the camera for no more than 5 seconds; in the Kenrick Street footage, the offender is in the close vicinity of the camera for no more than 7 seconds).

37. [72]

    The respondent submits that it is clear from her Honour’s reasons that the determination of the facts in issue was not limited to issues of facial identification; rather, that her Honour engaged in a process of circumstantial reasoning which involved close examination of the temporal and physical proximity of the offending, the presence of items seized at the premises where the appellant was staying and their apparent connection to the alleged offending, and photographic evidence which linked the appellant to items of clothing apparently connected to the offending.

38. [73]

    As to the discrete “errors” of which the appellant complains, the respondent submits the following.

39. [74]

    As to the first and second “errors” (amounting to a finding that the offences across the two days were committed by the same people), the respondent says that this did not require satisfaction to the criminal standard (although the respondent accepts the finding that the appellant was one of those people involved did require satisfaction to that standard). The respondent argues that, once her Honour had determined the connection between the two series of offences, it was open to her Honour to reason that, if the appellant was a participant on one of those occasions, then it was more likely that he was involved in the other. The respondent says that this was an available step in the process of reasoning, not a substitute for satisfaction beyond reasonable doubt.

40. [75]

    As to the third “error” (the finding in relation to the location at the Roberts Close premises of clothing matching that shown in the CCTV footage), the respondent points out that her Honour acknowledged that the clothing was not distinctive on its own, and that young people all like to dress the same, the Nike and Adidas clothing being pretty consistent in their look (as the appellant had submitted). The respondent says that the presence and similarity in these items of clothing were simply “strands in a cable” of circumstantial reasoning used (and available to be used) by her Honour and not determinative of the finding made.

41. [76]

    As to the fourth “error”, the respondent submits that her Honour did not engage in any form of “guilt by association” reasoning. The respondent argues that her Honour used, as one strand in her process of reasoning, the fact that “J”, a person with whom the appellant had been staying, resembled another of the participants captured in the CCTV footage; and says that her Honour’s reference to the eyelashes of that unidentified person was permissible as was the conclusion that the other person was likely female. Indeed, the respondent submits that such a conclusion was inevitable.

42. [77]

    As to the fifth “error”, the respondent submits that the submission that her Honour impermissibly reversed the onus of proof is not a fair reading of the judgment. The respondent emphasises that her Honour was conscious (and reminded herself throughout the judgment) of the onus and standard of proof, noting that her Honour had dismissed two of the sequences expressly on the basis that she could not be satisfied beyond reasonable doubt of the appellant’s guilt (sequences 9 and 10); and that her Honour had warned herself of the risks regarding identification evidence, including as to “cross-racial identification” and the limitations of CCTV footage.

43. [78]

    The respondent submits that the impugned comments were made directly to, and for the benefit of, the appellant and did not demonstrate a fundamental mischaracterisation of her Honour’s task, as the appellant asserts. The respondent says that, by the time of those comments, her Honour’s fact-finding role had concluded (given her Honour’s finding as to satisfaction beyond reasonable doubt that the appellant was the person involved on both 2 and 4 September 2024) and that her Honour was simply then attempting to communicate with the appellant in a sympathetic and relatable manner.

44. [79]

    As to the contention that her Honour erred in identifying the appellant from the available evidence, the respondent says that the identification findings were simply one aspect of the process of reasoning that led to the findings of guilt but submits that, in any event, the findings that were made about identification were open and available to her Honour as the tribunal of fact. Pausing here, the test is not whether the finding of fact as to identification was open or reasonably open to her Honour. The question is whether on all the evidence the finding was correct (see Hancock v R [2025] NSWCCA 213, there in the context of findings of fact on a sentence appeal).

45. [80]

    The respondent emphasises that her Honour was able to observe the appellant throughout the proceedings and could make observations about his height, weight, build and facial structure; that she could see his eyes, his brow and forehead; and to determine whether the person depicted in the CCTV footage shared these features with the appellant. The respondent says that this was “essentially an instinctive analysis of the CCTV footage”.

46. [81]

    Insofar as the respondent cavils with the appellant’s submission as to her Honour’s description (at p 7) of the features she observed from the Kenrick Street and Merewether Street CCTV footage, the respondent points out that her Honour also referred to matters such as height and build and the placement of other body parts and, again, the respondent says that those observations were simply one aspect of the determination of the matter. The respondent points out that in evidence there were, statements, photographs and maps of the relevant area; and that her Honour viewed the relevant CCTV footage (assisted by commentary by the prosecutor) and at times requested “run throughs” of the footage; as well as footage taken of the search warrant executed at the premises at which the appellant was staying (together with others, one of whom was allegedly involved in the offending); and that the appellant was present during that search and could be observed by her Honour in that context, as well as in his presence in court.

47. [82]

    Further, the respondent submits that, even if the identification finding is incorrect, there is sufficient evidence to find the appellant guilty based on the circumstantial evidence (linking the person in the footage with the items of clothing found in the home on the occasion of his arrest) (see AT 27.29).

48. [83]

    In McNab, it was made clear that in an appeal of this kind the appellant must demonstrate error (see Bell P at [24]; Basten and McCallum JJA at [90]), which may include but is not confined to errors of law. I am required to form my own judgment of the facts. In so doing, I of course must recognise any advantage enjoyed by the President of the Children’s Court who heard the matter at first instance but, in the present case, the only advantage that can be said to have been enjoyed by her Honour was that of being able to observe the appellant present in the court room. I refer to this in due course.

49. [84]

    What that means is that if I find that the evidence before her Honour was not sufficient to establish the guilt of the appellant beyond reasonable doubt, then error will have been established (see McNab at [25]). If I am satisfied that the judgment is wrong, I am obliged to give the decision which in my opinion should have been given at first instance (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]).

50. [85]

    At the outset, I accept that her Honour’s reasons should be read as a whole and that, as they were given ex tempore, they should not be scrutinised or parsed as if they were a statute (see Tukuafu v R [2024] NSWCA 84 at [133] per Huggett J, as her Honour then was (with whom Chen J and I agreed) citing MF v R [2024] NSWCCA 42 at [48]). Latitude should also be afforded in the consideration of her Honour’s reasons for the fact that they were evidently directed towards the appellant and there was clearly an intention to make those reasons understandable to him.

51. [86]

    I turn first to the discrete errors said to have been made by her Honour.

52. [87]

    First, as to the finding that the person shown wearing the blue Nike top in the CCTV footage from 2 September 2024 that appears in colour (the Gosford Road, Kenrick Street, Merewether Street and Lawson Street footage) was the same person appearing in the footage throughout the early hours of that day, I do not consider that her Honour erred. The footage from Durham Road and Berner Street is in black and white (as her Honour acknowledged). I have referred above to the limited visibility of logos on the clothing. I accept that the Durham Road footage is of comparatively poor quality, as the appellant submits. However, I consider that there is a sufficient correlation between the attire shown in the black and white footage (particularly noting that the slides are visible in each of the footage in question and the balaclava is similar in each) that, taking into account the respective time stamps of the Durham Road, Edgeworth and Gosford Road, Broadmeadow footage on the one hand and of the Kenrick Street, Berner Street and Merewether Street footage on the other hand, and the map showing the locations of those properties, it is highly implausible that the person at the locations where the footage was in colour was a different person from the person at the locations where the footage was not in colour.

53. [88]

    Having reviewed the evidence, I am satisfied beyond reasonable doubt that the person wearing the blue Nike top is the same person in each of the CCTV footage taken from 2 September 2024.

54. [89]

    While there is force to the complaint that her Honour reversed the task when posing the question whether there was any reason not to say that the person in the blue top was the same person (throughout all the CCTV footage of 2 September 2024), the correct question being whether it was established that the person was the same person, I do not consider that this led her Honour into error in making the finding that she did (and, as I have said, I consider that finding was correct). Rather, it seems to me that this was an unfortunate consequence of her Honour’s admirable concern to ensure that her Honour’s reasons were understandable to the appellant.

55. [90]

    As to the criticism of her Honour’s reference to the height of the person wearing the blue top as depicted in the 2 September 2024 footage, I have doubts as to the ability of her Honour to assess that height based only on the CCTV footage. While it is clear from the footage that there was a height differential between the person in the blue top and the other person (identified as “R”), I do not see how her Honour could accurately estimate the height of the former, even by reference to a range (as she did). Although her Honour said (at p 5) that height could be measured by “some standard things like the size of a door frame or a fence or a letterbox”, it is not clear from the reasons that this was how her Honour estimated the height of the person in the blue top (nor by what such object it had been estimated if she did). I certainly am not able to do so. Her Honour was able to observe the appellant in court but her Honour did not base her estimation on height on any such observation.

56. [91]

    I am also conscious of the caution to be exercised in the use of photographic evidence, which must also apply to the use of CCTV footage (see, for example, Blacktown City Council v Hocking [2008] NSWCA 144 (Hocking) per Tobias JA at [167]-[170], referred to by Beazley JA, as Her Excellency then was, in considering the principles relating to the use of photographic evidence in Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85 at [20]-[29] and by Giles JA in Hocking at [179]).

57. [92]

    Nevertheless, by reference to the matters referred to at [87] above, I have concluded that her Honour’s finding that the person wearing the blue top is the same person depicted in the footage throughout the events of 2 September 2024 was not in error.

58. [93]

    Second, as to her Honour’s reliance on “R”, I do not accept that the exchange with Counsel to which the appellant refers was, or was productive of, error. It is by no means uncommon for a judge delivering ex tempore reasons to pause in order to clarify particular issues. Here, her Honour was clarifying whether the parties accepted that the other person on the CCTV footage was alleged by the prosecution to be “R”.

59. [94]

    I do not accept that the identification of “R” being the other person on both nights was determinative (or assumed a “central role”, as the appellant suggests) in the finding that the person in the blue top depicted on 2 September 2024 was the same person as that depicted on 4 September 2024. Rather, her Honour seems to have relied on there being a consistency in the height of the respective persons in support of the conclusion that the person in the blue top was also the person shown in the CCTV footage on 4 September 2024. In other words, whoever was the second person on 2 September 2024, there was a consistent height differential between that person and the person wearing the blue top. That said, I accept the appellant’s submission that the footage which shows a height differential between the two persons does not permit an accurate finding as to what that height differential was (for the same reasons as I have referred to in considering the height issue raised by the first finding said to be in error).

60. [95]

    Further, I consider that the consistent height differential is of little weight in determining whether the person in the blue top in the 2 September 2024 footage is the same as the person wearing the two-toned top in the 4 September 2024 footage. I am not able to make such a finding beyond reasonable doubt based on the height differential or based on the similarity in build of the two persons (something to which her Honour also referred).

61. [96]

    Third, as to the finding of clothing at the Roberts Close premises (some in the bedroom where the appellant was found) matching the clothing visible in the CCTV footage, I accept that the reference by her Honour to “all those clothes found together” does not distinguish between clothes found in the bedroom occupied by the appellant and clothes found elsewhere. However, I read that description (“found together”) as referring to things found at the Roberts Close premises, since her Honour then went on specifically to refer to those items that were found under the appellant’s bed and in his bedroom (including the gloves that were found in the bedside table).

62. [97]

    Where I consider that her Honour erred was in according probative weight to the discovery of that clothing at the Roberts Close premises, given that her Honour appears to have accepted that the clothing was not distinctive on its own (p 8); that young people all like to dress the same and Nike and Adidas clothes are pretty consistent in how they look (p 8); and that there were a lot of (young) people in the house and that it was clear that clothing was being shared in the house (p 9). I would accept that the discovery of the gloves in a bedside drawer next to the bed together with the appellant’s medication gives rise to an inference that the gloves were his but the gloves do not appear to be distinctive and the bedroom seems also to have been occupied by another young person (“J”), so I am unable to draw much from that. Further, the fact that the blue Nike top appears to have been worn by “J” on 3 September 2024, (see the photograph at CB 63) reinforces my view that the sharing of clothes points against an inference being drawn beyond reasonable doubt that it was the appellant wearing that top on 2 September 2024.

63. [98]

    Fourth, as to the appellant’s association with “J”, leaving aside that her Honour identified “J” on the CCTV footage by reference to her eyelashes and gait (which seems to me difficult to do to the criminal standard) (and also leaving aside that I was informed by Counsel “J” was acquitted of the charges against her), I consider that the “association” between the two (which seems to have consisted simply of the fact that they were two of some six young people staying at the Roberts Close premises when the search warrant was executed) is not sufficient, even as part of a process of circumstantial reasoning (as the respondent says it was) to lead to the conclusion beyond reasonable doubt that the appellant was the offender in the blue top on 2 September 2024 and the two-toned top on 4 September 2024.

64. [99]

    Fifth, as to the alleged error based on a reversal of onus, there is no doubt that her Honour was conscious of the prosecutor’s onus of proof and of the criminal standard of proof – her Honour referred to those matters a number of times in her reasons. Indeed, the failure of the prosecutor to discharge that onus was the basis on which two of the charged sequences were dismissed.

65. [100]

    However, I accept that, in explaining her reasons to the appellant, her Honour did mischaracterise her task in a fundamental way. That task was not to look for reasons to find the appellant innocent; it was to determine whether the prosecutor had established his guilt beyond reasonable doubt. As is fundamental to our system of justice, in criminal matters there is a presumption of innocence unless and until one is proven guilty beyond reasonable doubt. However, I do not accept that the misdescription of her Honour’s task (which again I see as an unfortunate consequence of her Honour seeking to make her reasons understood by the appellant) led her Honour into error (and I note that it was not made clear what was meant by the appellant’s assertion that this contextualised the findings made by her Honour). I accept that her Honour was conscious of, and sought to apply, the correct approach and reached her conclusion as to guilt to the requisite standard.

66. [101]

    This brings me to the primary error asserted by the appellant, and the task that I have to undertake on a review of all the evidence, namely as to whether it was established beyond reasonable doubt that the appellant was the offender shown in the CCTV footage on both 2 and 4 September 2024 as the prosecutor contended.

67. [102]

    The identification issue, as her Honour appears to have accepted, consisted solely of the CCTV evidence (there was, for example, no fingerprint or DNA evidence; no witness identification evidence; and no recovery of any of the proceeds of crime). While her Honour was able to observe the appellant in Court (as I was not – that being the limited advantage that I accept her Honour had over an appellate court), in essence the question was whether a finding could be made beyond reasonable doubt that the appellant was the person captured on the CCTV footage. That footage (as well as the search warrant video) was available for viewing.

68. [103]

    Her Honour was clearly conscious of the risks of identification evidence. In Alexander v The Queen (1981) 145 CLR 395, Mason J, as his Honour then was, described such evidence (at 426) as “notoriously uncertain”. In the oft-cited Domican v The Queen (1992) 173 CLR 555 (Domican) (at 561), the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) discussed the “seductive effect of identification evidence” and noted the history of “proven miscarriages of justice” to which such evidence has led.

69. [104]

    Relevantly, in Domican, the Court emphasised (at 561-2), in the context of jury trials, the content of the warning as to identification evidence that must be given, saying that:

70. [105]

    The “seductive effect” of identification evidence was also referred to in Ilioski v R [2006] NSWCCA 164, where the Court emphasised (at [62]-[63] and [98]) that identification warnings must address the unreliability of such evidence (see also Kelleher v R (1974) 131 CLR 534; [1974] HCA 48 at 551).

71. [106]

    Of course, this was not a jury trial. However, the content of the kind of warning that should be given in jury trials informs the approach that a judge sitting without a jury should take; and, where a judge is required to take into account any warning that would otherwise be required of a jury (see s 133(3) of the Criminal Procedure Act 1986 (NSW) which applies to indictable proceedings without a jury), that warning must be demonstrably “taken into account” (see Hodgson v R [2022] NSWCCA 72 at [87]; Barwick v R [2023] NSWCCA 139 at [56]).

72. [107]

    In Domican, the question of identification was one involving identification by a witness. Here, the issue of identification involved comparison with CCTV footage and photographs, as well as the search warrant video. However, it is recognised that the same risks arise in this context.

73. [108]

    In R v Dodson (1984) 79 Cr App R 220 at 229, the Court emphasised that trial judges must direct the jury concerning factors such as the quality of photographs, the visibility of facial features, any changes in appearance, and the jury’s opportunity to observe the accused, saying that:

74. [109]

    More recently, in Pitkin v R [1995] HCA 30; (1995) 69 ALJR 612 (Pitkin), at 615, the Court observed that identification from photographs is generally less reliable than direct personal identification, because differences in appearance may be less apparent. Where photographs are used as a means of identification in jury trials, stringent warnings are required (see Pitkin at 38-9; Hannes v DPP (Cth) (No 2) (2006) 165 A Crim R 151; R v Campbell (2007) 175 A Crim R 79). The same must also apply to CCTV or video footage.

75. [110]

    I also note that in R v Clout (1995) 41 NSWLR 312, Kirby ACJ observed that the danger of mistaken identification also extends to inanimate objects, identifying the particular dangers inherent in such evidence at 321, referring to objects, such as knives, which are mass-produced “bearing similarity to thousands of other virtually identical objects”.

76. [111]

    In the present case, the warning her Honour gave herself as to the risks of identification evidence was general in terms, her Honour explaining this in the context of her observations as to confirmation bias (see at pp 2 and 7) and the risks inherent in cross-racial identification (p 2). However, her Honour did also point to the fact that some of the footage was in black and white (a feature to which the appellant here points as undermining the reliability of any identification based on that footage). Moreover, her Honour’s observations about the lack of distinctiveness of the clothing might also be understood as a recognition of the risks of identification of such objects.

77. [112]

    Faced with the task of forming my own view as to identification by reference to the CCTV footage and comparison with that footage and the appellant’s appearance when the search warrant was executed, I bear in mind that identification evidence is inherently unreliable (see Domican) and the caution to be exercised in the approach to and use of photographic or CCTV footage.

78. [113]

    The clearest of the CCTV footage, insofar as it shows facial features of the person in question, is that to which her Honour referred – the Kenrick and Merewether Streets footage. However, that footage permits only a partial view of the offender’s face (in the case of the Kenrick Street footage, a view from the left of the nose and left eye and eyebrow, in the Merewether Street footage brief glimpses of, first, the right eye and part of the nose; and second, the left), the rest being obscured by the balaclava that was worn.

79. [114]

    I have carefully reviewed the CCTV footage. I cannot conclude beyond reasonable doubt that the parts referred to by the judge (at p 7) (namely, eyes, shape of face and brow; and, in the case of the Merewether Street footage, the forehead) establish beyond reasonable doubt that the appellant was the offender. Nor does reference (at p 9) to the “key parts”, including height, build or the way the face is structured and shape of the face assist me to form that view. I readily accept that there may be seen to be a similarity in these features between the offender appearing on the CCTV footage and the appellant. But so too does there appear some similarity to at least one of the other young males in the house at the time of execution of the search warrant. I do not accept that the circumstantial case, based on the clothing that was found at the Roberts Close premises (whether or not the CCTV footage is taken into account) is sufficient to establish guilt beyond reasonable doubt (as the respondent submits).

80. [115]

    If the applicable test were the balance of probabilities, I would agree that it was more probable than not (when taking into consideration matters such as the location and timing of the offences and the location of the clothing and items found at the Roberts Close premises) that the appellant was the offender. But beyond reasonable doubt requires more certainty than that.

81. [116]

    I therefore have concluded, on my review of the evidence, that her Honour erred in finding that it was established beyond reasonable doubt that the appellant was the person in the blue top on 2 September 2024 and in the two-toned top on 4 September 2024.

82. [117]

    As I am not satisfied, on the review of the evidence, beyond reasonable doubt, that the appellant is the person who was depicted in the CCTV footage on either or both 2 and 4 September 2024, error has been established in the sense explained in McNab (at [25]). The appeal must be allowed and the appellant’s convictions set aside.

83. [118]

    For those reasons, I make the following order:

    1. (1)

       Pursuant to s 20(1)(a) of the Crimes (Appeal and Review) Act 2001, the Appeal is allowed and the convictions on sequences 1, 2, 3, 4, 5, 6, 7, 11, 12, 13 and 14 in matter no 2024/328979 are set aside.