Director of Public Prosecutions v Atalalis

[2022] VCC 1515

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not  Restricted
Suitable for Publication

Case No. CR-20-01370

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONATHAN ATALALIS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	15 -19 August 2022
DATE OF JUDGMENT:	14 September 2022
CASE MAY BE CITED AS:	DPP v Atalalis
MEDIUM NEUTRAL CITATION:	[2022] VCC 1515

REASONS FOR DECISION
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Subject: Criminal law – trial by judge alone       

Catchwords: Pleas of not guilty to one charge of aggravated home invasion, one charge in the alternative of home invasion, one charge of intentionally causing injury and one charge in the alternative of causing injury recklessly – circumstantial evidence – inferences – reliability of witness – unavailable witnesses – forensic disadvantage – character evidence.      

Verdict: Acquitted of all charges.  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M Mahady with Mr P O’Halloran	OPP
For the Accused	Mr L Gwynn	Doogue and George

HER HONOUR:

1Jonathan Atalalis has pleaded not guilty to one charge of each of the following: aggravated home invasion, with home invasion as an alternative, and causing injury intentionally, with causing injury recklessly as an alternative.

2I have concluded that the required standard of proof of beyond reasonable doubt has not been met in relation to charge 1. This finding flows on, in part, to the other charges. I have addressed separately the third elements of charges 3 and 4, in order to clarify the prosecution and defence arguments.

3It follows that the accused is acquitted of all the charges.

4I set out my reasons for that decision.

Introduction

5A trial began on 26 April 2022, with a jury empanelled the next day. Closing addresses were completed on 4 May. On 5 May, after I had started charging the jury, an issue arose regarding a member of the jury, which necessitated the discharge of the jury that afternoon. An application was made and granted, under s.420E 0f the Criminal Procedure Act 2009, for the retrial to be conducted as a judge alone trial.

6This trial commenced on 15 August 2022. It was conducted almost entirely be the playing of recordings of the witnesses who gave evidence at the trial before the jury. The exception concerned two witnesses, Butler[1] and Simpson, who were cross-examined at the committal but were unavailable to give evidence at the trial. At the trial before the jury prosecution counsel read the committal depositions to the jury, and the recordings of that process were played during the judge-alone trial before me.

[1]A pseudonym.

7At the close of the case and before final addresses, a discussion under s.12 of the Jury Directions Act 2015 was held, and it was agreed that the same directions that would have been given to the jury, by agreement at the first trial, were applicable and I would be bound by them.

Background

8The parties differ as to an interpretation of two competing scenarios in this case. The prosecution case is that inferences can be drawn from the overall circumstances to establish guilt of the accused beyond reasonable doubt. The defence case is that the circumstantial evidence allows an innocent explanation which cannot be excluded, and therefore the accused should be found not guilty.

9The charges arose from an incident which occurred on 9 February 2019. The background to the offending is not in dispute.

10Mr Atalalis was a part owner with George Panagiotou of a DJ and Party Hire company called Love It Loud Pty Ltd. On 6 February 2019 George Panagiotou spoke by phone with Helen Butler who responded to the company’s advertisement. Using an alias of Sandra Callander and providing false details, she arranged to rent some DJ equipment from the company, for one day, at a cost of $250 with payment by direct transfer. An invoice was made out to one Garry Callender.

11At 5 pm that day the equipment was delivered to Mark Tremble, an associate of Butler’s, at the Monash University car park. Tremble took possession of the equipment, purporting to be Garry Callender and signed a hire agreement in that name.

12At 6.06 pm the next day, 7 February, George Panagiotou sent a text message to Butler requesting that the hired equipment be returned to his address as soon as possible.

13At 6.12 pm Butler replied requesting a further night’s hire, which was agreed to.

14On Friday 8 February at 3.29 pm Paul Simpson, an associate of Butler’s, contacted George Panagiotou, requesting the hire of DJ equipment. This was agreed to, at a cost of $330 for one day, with the hire to commence at 5 pm that day.

15At about 4 pm George Panagiotou’s brother John went to the home of Atalalis to collect some DJ equipment. Meanwhile attempts were made to contact Butler, unsuccessfully. An address for her was ascertained as being Unit 3, 81-83 Clayton Road, Oakleigh East.

16The equipment was delivered to Simpson at that address. Butler was also present but remained out of sight. The hire of the equipment was paid for in cash.

17Simpson and Butler set up the equipment and photographed it. A Gumtree advertisement was then created, advertising the equipment for sale at a price of $3,500. The two phone numbers provided were those used by Butler.

18Just after 6 pm Atalalis sent a text message to Butler asking for her to contact him regarding the return of the equipment. He and John Panagiotou tried to contact Butler and Simpson unsuccessfully throughout the evening.

Further undisputed evidence - the initial efforts to retrieve the equipment.

19At about 7 pm George Panagiotou and his mother, with Adam Papatheodorou, went to the Doncaster Police Station and reported the matter. They were told that as there was still time remaining on the rental agreement it was not a criminal matter. They were advised to come back if the equipment was not returned in the following days.

20Panagiotou asked the police officer if he could look up the address of the hirer on the police system, and his mother suggested they could go there, but the officer advised against that.

21Panagiotou commenced a search of Gumtree in relation to the DJ equipment. He messaged Atalalis that he thought the hirers had stolen the equipment, and they were going to the address, which he thought was a fake address.

22Tony Panagiotou messaged his son George saying the address was fake, and later that night Atalalis sent a message to Garry Callender asking him to explain what had happened to the equipment, and that they would have to file a police report for insurance purposes.

23A 10.30 pm John Panagiotou sent a text message to his father stating: “81-83 Clayton Road, Oakleigh East”. Later they confirmed with each other the mobile phone number of Butler as being the relevant number.

24At 11.11 pm that night the Panagiotou brothers and Atalalis went to the police station and spoke to a different officer. George Panagiotou said he wished to report the theft of the equipment and showed the officer a copy of the Gumtree advertisement. The officer said it was a civil dispute and that the fraudulent advertisement should be reported to Gumtree, which indeed had already been done. The three men left the police station with the impression that the police lacked the resources to take action, and that they needed a specific location. Atalalis told this to his work colleague Suratman, and included it in his email[2], sent to himself at 10.30 pm on the following night, 9^th February.

[2] Exhibit O

25The accused did not give evidence at the committal or the trial, and the email is the only evidence from him. I have attached no weight to the absence of oral evidence and the consequential inability of the prosecution to cross-examine him, except in so far as I have weighed the statements in the email according to the other evidence in the trial from witnesses who have been subjected to cross-examination, or evidence which is undisputed.

26It is convenient at this point to refer to the character evidence given on behalf of the accused, all of which was unchallenged.

27The good character of the accused was an important aspect of this case, lending support for the likelihood of his innocence, or, to put it another way, making it less likely he agreed to commit any criminal offence.

28He is a man with no prior convictions. Several witnesses gave evidence as to his good character generally. Each was a professional person of good standing in the community, who has known the accused and his family all or most of his life. They know him as reliable, honest and hard-working. None of their evidence was challenged. Butler’s description of her brief encounter with him was consistent, in so far as it goes, with the picture drawn by these witnesses. There is nothing to suggest a criminal disposition or propensity to engage in criminal conduct; indeed the opposite was suggested by this evidence.

29The appropriate weight to be given to this evidence is to lessen the likelihood that he committed any crime, and to increase the likelihood of an innocent explanation.

The areas of dispute

30I return now to the areas of dispute.

31As events wore on that evening, plans began to be made for the retrieval of the equipment, and it was soon afterwards that the facts as to what occurred became less  clear, although much of what occurred is not in dispute.

32A few minutes after leaving the police station, the Panagiotou brothers met with Atalalis in a McDonald’s car park and they remained there talking for about 13 minutes. This was captured on CCTV but without sound, and the footage is the only evidence of the meeting.

33The prosecution relies on this meeting as providing the basis, when considered with other evidence, for an inference to be drawn that the three men were planning to go to the premises in Oakleigh and retrieve the equipment by force if necessary.

34The defence position is that no such inference can be drawn, as there is no evidence of what occurred, to form the basis for such an inference.

35At 11.23 pm, minutes after leaving the police station, and just before the meeting in the car park, Atalalis discussed the matter by phone with his work associate, Samuel Suratman, who logged onto the Gumtree website and expressed an interest in buying the equipment, but he heard nothing in response.

36In the early hours of Saturday 9 February Atalalis again discussed with Suratman at work that the police could not do anything. At 2.30 am he left work and messaged Butler, using a different mobile phone than previously, pretending to be an interested buyer named Steven. He arranged to attend and view the equipment and confirmed that he could pay cash. Butler provided the address of 82 Clayton Road, East Oakleigh and they agreed that Atalalis would arrive there shortly after 5 am.

37After the text message exchange with Butler, Atalalis forwarded two screen shots of it to Suratman. He said he intended to meet with Butler and determine if the equipment listed for sale was his.

38Suratman gave evidence in the trial that he discussed with Atalalis a plan to get the equipment back. Suratman said the plan was for him to go with Atalalis and an associate, William Labas, to the address, to verify the ownership of the equipment and to take it away. He said the presence or the use of weapons was not discussed at all.

39Suratman presented as a reliable, credible and indeed impressive witness, and there is no reason to doubt any evidence he gave. Given his involvement throughout the evening, and his relationship with Atalalis as a work colleague of several years’ standing, it is likely he would have been told the truth about the plan. His evidence is consistent with the contents of the email written by the accused on the evening of 9 February, and sent to himself.

40He said Atalalis told him at about 4 am that he was going to the Oakleigh address to see if the equipment was his, and Suratman told him he did not want him to go alone at that hour, so he and William Labas offered to go with him. The plan was to go with him to make sure he didn’t walk into a dangerous situation. If the equipment was indeed his, the plan was to contact the police, who could then come and tell the people trying to sell it to give it back to the owners. That was why Suratman’s utility was driven there.

41Suratman said that on the way to the Oakleigh premises Atalalis told him that his business partners were also going to be there. On arrival, it was decided that Atalalis would call Suratman on his phone and keep the phone in his pocket, so Suratman and Labas could hear what was happening inside the premises, and if anything untoward happened they could call the police.

42The car containing George and Tony Panagiotou arrived at the location, and another car containing John Panagiotou, Marc Amad and Ameer Jarrah, along with a 16 year old boy, who played no part in what followed. Unbeknown to the others Tony Panagiotou had with him a sawn -off shotgun he had brought from his home.

43Suratman said that when these people arrived Atalalis went to speak to them. Labas, a witness equally as reliable as Suratman, said in evidence that he could hear bits and pieces of the discussion, including “confirming its mine” and “coming back out”.

44Atalalis then returned to Labas and Suratman and told them he was going in to check if the equipment was his.

45Atalalis approached the unit alone, and Labas saw that the other men were out of their cars and hovering around the top part of the driveway to the unit. After a while Labas could hear Atalalis on the phone saying to the occupant of the unit that he would go and get the cash.

46Meanwhile Butler let him in, as arranged, and her evidence was that he looked at the equipment and told her he would return with the cash. He left the unit, leaving the door unlocked, and perhaps even open. In cross-examination Butler said she wasn’t sure whether she had shut the door when Atalalis went out to get the cash, and agreed it could have been left open.

47The time frame at this point is a crucial part of the evidence. Butler gave evidence as to the presence of the accused in the unit after his first entry, and as to the second entry followed by the co-accused. Evidence as to the timing of the co-accused was crucial to the drawing of inferences about the intention of the accused at this time, and to the existence of any agreement from which complicity could be inferred.

48Butler said in her statements and in cross-examination that after a short time the man she described as the “interested buyer” returned and a very short time after him[3], 8 to 10 men rushed in. She said they all attacked Hutchings except the interested buyer and the man who shot him.

[3] Butler described the time gap in different ways in her statements and under cross-examination, as: “ a few seconds later;” “all of a sudden [they] came rushing in”; the time gap was ”a millisecond”.

49In a statement made at the police station some hours later she said two of the men had weapons - a metal bar and a crow bar that they used to hit Hutchings, and that all the men except the older man and   “the interested buyer” hit, kicked and punched Hutchings. She said the guy who came in first, the “interested buyer”, just stood back and didn’t say anything. The older man took a gun from under his jumper and shot Hutchings, fatally wounding him.

50Under cross-examination at the committal Butler said the “interested buyer” did not participate in the assault, but just stood around near the equipment. She said: “He was kind of the odd fish….like he was the odd one.” She added: “I just don’t think he is a violent person to any level.”

51In her first statement she had described him as well presented and looked well off, and in evidence she said he was pleasant and polite, and had no weapon.

52Butler gave different versions of how many of the men were armed with weapons, at first saying they were all armed, and describing a crow bar and a metal pole, but she was unsure about the number. The police later found an extendable baton which bore DNA matching that of George Panagiotou and a crow bar in the boot of the Holden driven by Labas, but bearing no fingerprints or other forensic material.

53The elements of charge 1, aggravated home invasion, are as follows:

1.John ATALALIS entered a home.

2.John ATALALIS entered the home as a trespasser.

3.John ATALALIS entered the home intending to assault.

4.John ATALALIS entered the home in company with two or more other people.

5.A member of the agreement had an offensive weapon with him when he entered the home.

6.At the time of entering the home, John ATALALIS knew or was reckless as to there being another person present in the home.

7.A person was present while John ATALALIS was in the home.

54It was agreed between the parties at the first trial, following closing addresses and before the commencement of the charge to the jury, that the check-list to be provided to the jury for their assistance would cover the elements of the charge as well as complicity. It was in the following terms.

Elements of charge 1

1.    That Atalalis agreed to commit a home invasion, and the   agreement remained in existence when the offence of aggravated home         invasion was committed.

2.That he acted to support this agreement.

3.     That a party to the agreement committed aggravated home   invasion in the course of carrying out the agreement to commit   home invasion.

4.     That when Atalalis agreed to commit home invasion, he intended                to commit an assault.

5.  That when he agreed to commit the home invasion, he was aware that    it was probable that an aggravated home invasion would be committed in the course of carrying out a home invasion.

55The charges against Alatalalis are based on complicity, which is reflected in the elements required to be proved, as I have set them out. If any of these elements are not proved beyond reasonable doubt, the accused must be acquitted.

56I shall examine the evidence in relation to the first element,  and because I have found that the first element cannot be proved beyond reasonable doubt, there is no need to consider the other elements individually.

57The first element requires, in order for the charge to be made out, that the accused agreed to commit a home invasion, and that the agreement remained in existence when the offence of aggravated home invasion was committed, at the time of the second entry by Atalalis and the entry of the other men.

58There are two parts to this element. First, the prosecution must prove beyond reasonable doubt that he agreed with at least one other person to commit the offence of home invasion and injury.

59The prosecution case is that this may be inferred from the surrounding circumstances. He must have agreed to commit a crime and not some other sort of activity, even if he and the others did not know that what they were planning to commit was a crime.

60Similarly, it is not necessary that all of the parties had the same purpose or intention when forming that agreement, or were all aware of the consequences of their actions. They do not need to have all agreed on the precise terms of the agreement. For this element to be satisfied, it is only necessary to find that they agreed to commit the particular criminal offence of home invasion together.

61The prosecution  alleges that this agreement was made after the failed visits to the police station, commencing in the McDonald’s car park  when Atalalis talked with the Panagiotou brothers. The prosecution says an inference can be drawn that the men were planning the visit to the address where they believed the equipment to be.

62Mr Gwynn for the defence submitted that there is no evidence of what the men discussed in the car park, and there can be no speculation about that. It was hours before the later conversations, after Atalalis had finished work in the early hours of the morning, when he spoke with Suratman and said he was going to the address to see if the equipment being advertised for sale was his, having made this arrangement with Butler.

63He then told the Panagiotou brothers of this plan, and later he told Labas and Suratman that his business partner and his father would be coming. On arrival at the address Atalalis told Labas and Suratman that he wanted it to appear that he was alone, and so they stayed in the back seat, while he got out of the car and went to the house.

64After Atalalis had come out of the house after his first entry, the evidence is that he was seen talking to the men from one of the cars and by then he knew Hutchings was in the house with Butler. The prosecution says that at this point the agreement to commit a home invasion became an agreement to commit an aggravated home invasion, because the inference can be drawn that Atalalis knew then that two of the men had weapons – the extendable baton and the crowbar.

65The prosecution case is that the inference can be drawn that he knew force was going to be used, and he intended that it would be and that Hutchings, (or a person present)  would be injured. That was his state of mind at the time, according to the prosecution argument. After this Labas and Suratman saw the other men run or move quickly towards the house.

66That was when the men all entered the door of the unit and the attack on Hutchings occurred. Tragically, it ended with a shot being fired by Tony Panagitou, resulting in the death of Hutchings.

67It was submitted on behalf of the accused that the inference cannot be drawn that there was an agreement to invade the home and assault someone, and that the accused knew about the weapons being present.

68The defence argument is that Atalalis had gone there only to establish that the equipment was his, and then if it was, he would report it to the police. Having reported it to the police, they would be able to take the equipment away with them. There was no plan to commit any home invasion. Atalalis was not aware of any weapons being taken there.

69The second part of this element requires the prosecution to prove that the agreement remained in existence when the offence was committed. The prosecution case is that the agreement continued and indeed became an aggravated home invasion. The defence case of course is that no such agreement ever existed.

70The prosecution case is based on two fundamental inferences, and other related inferences. Such inferences can only be drawn if guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect.  If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt, and he must be acquitted.

1. The McDonalds car park inference

71The first inference is that Atalalis and the other men began making the agreement in the McDonalds carpark. It can be inferred, says the prosecution, that the agreement made in the carpark was for Atalalis to go to the unit with the other men and to pose as an interested buyer and check the equipment. Once satisfied it was the equipment belonging to the business, he would leave the unit on the pretext of getting cash from his car, and re-enter with the other men to retrieve the equipment, by force if necessary.

72The timing of this meeting is relevant, in that it occurred immediately after the second visit to the police station, resulting in the understanding that the police could not help them. According to the evidence of police officer Singh, one of the group, possibly Mrs Panagitou during the first visit to the police station, had raised the question as to whether the group could go to the address themselves, and the police advised against this.

73In the email[4] written by Atalalis after the event, he made no mention of the meeting in the carpark, but referred to his actions in the early hours of 9 February in ascertaining the Oakleigh address and arranging with Butler to go there at 5 am. He also recounted his discussions with Suratman about going to the address, and the decision to go with Suratman and Labas for safety reasons. On the way there he had told Suratman that his business partners and their father were also coming. He stated that they were all extremely nervous as they had no weapons.

[4] Exhibit O

2. The inference as to the agreement at the unit

74Labas gave evidence that when he, Suratman and Atalalis arrived at the unit, Atalalis went and spoke with the occupants of the other two cars as soon as they arrived. The prosecution case is that this was an opportunity for the plan to be discussed with all the men being present. Labas could hear Atalalis telling them he was going in with the phone on to confirm the equipment was his and then he would come out. He could not hear the full conversation.

75The next inference to be drawn from the visit to the unit relates to Atalalis leaving the unit and speaking with the co-accused, the men from the two cars. The prosecution case is that it can be inferred that he informed the men that the equipment was indeed his, and that a man, as well as Butler, was present in the unit. It can be inferred, says the prosecution, that Atalalis knew at that stage, at least, that the men had weapons, but he did not know that Tony Panagiotou had a firearm concealed under his jumper. The further inference is that Atalalis knew, or ought to have known, that the men would use the weapons to cause an injury to someone present in the unit.

Defence case as to the inferences

76The defence case is that these inferences are not open to be drawn. There is no evidence as to what was said in the carpark and so there is no basis for the inference that the plan was discussed there, whatever the plan might have been. If the agreement was discussed there, but it was a plan to go and retrieve the equipment, it  was not a criminal plan.  Even when considering the whole of the evidence, says the defence, there is no support for the inference that the plan was a criminal one, and the requisite standard of proof beyond reasonable doubt is not met.

77Although the timing of the meeting was immediately after the second ineffective visit to the police station, it was several hours before the meeting at the top of the driveway at the Oakleigh address, thus potentially weakening any inference that the carpark meeting resulted in a criminal agreement. The defence says it is open to conclude that an innocent plan commenced then and did not become a criminal one at the unit, because Atalalis did not know of the weapons, nor did he know that the other men would follow him into the unit. He stated in his email that when he left the unit, ostensibly to get the cash, he told the group that because there was a man inside it was unsafe to go in and confront them (the thieves), and that he would go back inside, count the money and pretend he did not have enough, so that they could leave and call the police.

78The prosecution urged rejection of this explanation, but it is consistent with Suratman’s evidence and the accused’s email. There is some consistency with the evidence of Leah Atalalis, the sister of the accused, who gave evidence that the accused told her on the morning of the 9^th February that he had gone to the unit to see if the equipment there was his. Having done that he had no intention of anything negative happening. He said the plan was to go to the police and report it. She said he knew his business partners were going there, but did not know about their father.

79The timing of the entry through the door by Atalalis and the other men is important as it is relevant to whether Atalalis knew the other men were following him, in accordance with a criminal agreement that the prosecution alleges.

80Butler’s evidence is somewhat unclear. She may have been partly distracted by the fact that she was speaking on the phone to Simpson at the time. In her first statement made on 9 February she said that Atalalis came in first, then all of a sudden about 8 – 10 people came rushing in.

81When she was recorded speaking to police very soon after the incident she said Atalalis came back to the unit by himself, 5 minutes after leaving, and a few seconds later the door swung open and 8 -10 people came in.

82In cross-examination she said that when Atalalis came in he stood to the side, near the equipment, and she maintained that it was only milliseconds before the other men came in.

83Although there is some inconsistency in these versions, Butler was consistent in her evidence that Atalalis was separate from the others, did not join in the assault on Hutchings, and she never felt threatened by him. She added: “I don’t think he enjoyed the outcome either.”

84When describing the shock which appeared on the faces of all the men when Hutchings was shot, Butler said the interested buyer seemed more shocked than the others, and added: “He didn’t seem to fit with the others.” She  said he seemed extremely shocked.

85As to the presence of weapons, apart from the firearm, in her first two statements Butler did not say she saw the men armed with weapons as they came through the door, but that those who were armed started to bash Hutchings with metal poles and bats, while the others hit and kicked him. In evidence she said she did see the weapons as the men came through the door, adding that it was a matter of seconds, and that all the men were armed, except the older man and the “interested buyer.”

86Butler’s credibility and reliability are in issue, although Mr Gwynn conceded that some of her evidence was credible, but not all. He submitted that her unavailability at the trial, meaning that her evidence at the committal had to be relied upon, presented the defence with a significant forensic disadvantage. There was no opportunity to cross-examine her on her evidence about the timing of the entry to the unit. For example, what she meant by “milli-seconds” and “all of a sudden” in reference to the time gap between the entry of Atalalis and that of the rest of the group, and whether she was distracted by the phone call with Simpson. There was no opportunity for assessment of her in the witness box.

87Her failure to disclose initially, and for many months afterwards, her drug use and involvement in the scheme to sell the equipment, are reasons to question her credibility. It is accepted generally that a witness may be credible in respect of some evidence but not all.

88Butler gave evidence that she was a longstanding functioning user of illicit drugs. On the morning in question she had used GHB and ecstasy before Hutchings arrived, and then used ice with him. She did not disclose this to police initially, and it was not until her statement of 8 December 2019 that she admitted this. In that statement she also disclosed her equal role with Simpson and Tremble in the hiring of the equipment, with a view to selling it.

89The late disclosure of those matters by Butler goes to her credibility as it indicates a tendency to dishonesty, but it does not, in my view, affect her overall credibility in the context of the other evidence she gave.

90Butler’s reliability when speaking to the police in the car after the incident is to be assessed bearing in mind the trauma of the incident she had just witnessed, and the fact that she was still, presumably, under the influence of the mixture of drugs she had used a short time before and contemporaneously with the incident.

91Despite her very recent trauma and drug use, Butler was able to give a coherent and apparently credible account of the incident, as can be observed in the video of her narrative in the police car. The transcript of her cross-examination at the committal shows she gave every indication of a witness doing her best to answer questions, in that she appeared to be following the questioning assiduously and giving considered responses. Having weighed all these matters I have concluded that her evidence generally was both credible and reliable.

92However, her inconsistent statements as to timing require me to weigh her evidence in so far as the versions differ. The lost opportunity for the defence to cross-examine her at the trial is significant.

93Certainly the speed of events unfolding in the unit as the men came through the door, her almost contemporaneous drug consumption, her possible distraction by the phone call to Simpson and the shock of the shooting are enough in combination to cast some doubt on her estimations of the timing of the entry, as Mr Gwynn submitted. By contrast, in his email Atalalis estimated the time gap to have been within 30 seconds, somewhat longer than Butler’s estimations.

94A possible additional conclusion is that a gap between the entry of Atalalis and the rest of the group, according to one possible interpretation of Butler’s evidence, contributed to her observation of the “interested buyer” being separate from the others, and so her evidence might be considered in that context also. In other words, the time gap could have been longer than she estimated in any of her accounts.

95The prosecution case is that when Atalalis emerged from the unit the first time and went to speak to the other men, he had no need to return because he had established that the equipment was his, and the police could then be called. That is a possible theory but that is all it is, and it would be speculation to conclude his re-entry and the entry of the other men was part of a plan with which he had agreed.

96The defence case is that Atalalis was not party to an agreement to enter the unit as a trespasser with the intention of committing assault. Suratman’s evidence in this regard is in effect limited to his observation of the other men. He said that once the music he and Labas had heard on the phone call, coming from inside the unit, had stopped, he assumed Atalalis had left the unit as planned. He then saw the group that he had seen arrive in their cars and who had assembled at the top of the driveway, move quite quickly down the driveway towards the unit. He did not observe them to be armed.

97Although the other possible inference is that it was part of the agreed plan that Atalalis would remain aloof from the group, it is not an inference which can be drawn, given the possible innocent explanation.

98I now turn to my conclusions in relation to the inferences the prosecution relies upon.

Conclusions as to inferences

99Proof of the accused’s criminality in this case is said to arise from his complicity in the crimes, and that inferences can be drawn as to his complicity.

100As I stated earlier, and it bears repeating, such inferences can only be drawn if the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect.  If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt, and he must be acquitted.

101My conclusion as to the inferences sought to be drawn by the prosecution in this case is that they cannot be safely drawn. They do not exclude a reasonable explanation consistent with innocence, that the accused’s plan was the one he told to Suratman and Labas.

102The inferences cannot be safely drawn, even when considering the whole of the evidence, both direct and circumstantial. In reaching this conclusion I have reasoned that there is insufficient evidence to be satisfied beyond reasonable doubt that an aggravated home invasion, or any home invasion, was planned and agreed to at the McDonald’s carpark. Similarly, the evidence as to what occurred outside the unit allows for the innocent explanation consistent with the stated intention of Atalalis in his email. If an innocent explanation is reasonably open on the evidence, a reasonable doubt exists and Atalalis is to be acquitted of Charges 1 and 2.

103Even if, on an objective view of the evidence in this case it might be concluded that the inferences as to an agreement could be drawn, the meaning of reasonable doubt is such as to exclude both the probability and possibility of guilt. In other words, even if a trier of fact were to consider that an accused person probably or possibly committed the criminal act, it is not enough for a finding of guilt.

104Charges 3 and charge 4 are also put on the basis of complicity. Having found that the prosecution case fails in relation to charges 1 and 2 because there was no agreement, it follows that the elements of Charges 3 and 4 which rely on those inferences, must also fail, for the same reasons.

105However, it is useful to set out the third element of each of those charges, concerned with intent (charge 3) and recklessness (charge 4).

106To satisfy the third element of charge 3, the prosecution must prove, beyond reasonable doubt, that at the time the person injured Hutchings, it was intended by Atalalis as part of the agreement.

107The defence case is that there was no agreement by Atalalis which included an intention to injure anyone. Whatever agreement there might have been about injuring Hutchings, it was between the other men and not Atalalis.

108To satisfy the third element of charge 4, the prosecution must prove that at the time the accused committed the aggravated home invasion, while not intending to injure anyone, he was reckless because he was aware that people had weapons and the acts of assault would probably result in injury. That is, the accused knew that the man he had seen inside was likely to be injured by the actions of one or more of the men he had just spoken with. The accused himself must have actually known of the probability of the injury. The defence says there was no such agreement, and no knowledge of the weapons.

109Having found that the inferences cannot be drawn that the accused was part of the agreement and had knowledge of the presence of weapons, the accused must be acquitted of charges 3 and 4.

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