Director of Public Prosecutions v Campbell - [2023] ACTSC 307

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Campbell
Citation:	[2023] ACTSC 307
Hearing Dates:	9 – 12, 17 October 2023
Decision Date:	30 October 2023
Before:	Taylor J
Decision:	The verdicts are as follows: 1․ Count 1: Attempted aggravated robbery – guilty. 2․ Count 2: Assault occasioning actual bodily harm – guilty. 3․ Count 3: Damage property – guilty. 4․ CC2022/4945: Possess weapon with intent – guilty
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment – judge-alone verdict – guilty – attempted aggravated robbery – assault occasioning actual bodily harm –damage property – possess weapon with intent – identity of the accused in issue – direct evidence of recognition of accused by complainant – reliability of complainant’s identification – supported by circumstantial evidence – CCTV footage – DNA evidence – Murray direction – complaint evidence
Legislation Cited:	Criminal Code 2002 (ACT), ss 310, 403(2) Crimes Act 1900 (ACT), ss 24, 381 Evidence Act 2011 (ACT), ss 60, 138 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 68 Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), ss 68B, 68C
Cases Cited:	R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315
Parties:	Director of Public Prosecutions ( Crown) Aaron Kenneth Campbell ( Accused)
Representation:	Counsel C Diggins ( Crown) K Musgrove ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Briggs Law ( Accused)
File Numbers:	SCC 235 of 2022 SCC 236 of 2022 SCC 238 of 2022

TAYLOR J:

Introduction

1․This is a trial by judge alone after the accused, Aaron Kenneth Campbell signed an election on 12 April 2022 to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).
2․The accused has been charged with the following offences on an indictment dated 24 October 2022:
(a)Count 1: Attempt aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (the Criminal Code).
(b)Count 2: Assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (the Crimes Act).
(c)Count 3: Property damage contrary to s 403(2) of the Criminal Code.

3․In addition one offence has been transferred to this court pursuant to s90B of the Magistrates Court Act 1930 (ACT):
(a)CC2022/4945: Possess weapon with intent contrary to s 381 of the Crimes Act.

4․On 9 October 2023 the trial commenced before me after the accused was arraigned and pleaded not guilty to all of the charges. On 17 October 2023 I retired to consider my verdicts and now provide the following reasons which, consistent with s 68C(2) of the Supreme Court Act, include the principles of law I have applied and the findings of fact that I have made.

Summary of the prosecution case

5․In the early hours of 11 February 2022 the complainant drove his vehicle to a car wash in Calwell, ACT. He arrived there expecting to meet with a person named “Chris”, having earlier received a phone call from “Chris” and arranging to meet with him. The complainant while sitting in his vehicle saw another vehicle arrive at the car wash and saw a person get out of the passenger side of the vehicle. The person started running towards the motor vehicle the complainant was seated in and when the person was metres away the complainant recognised the person as the accused, Aaron Campbell. The complainant saw the person he recognised as the accused raise a machete and swing it at the driver’s side window causing the window to shatter (this is the conduct relied upon to establish Count 3).
6․The complainant put his car into reverse and accelerated back, colliding with a pillar. He got out of the car and the accused asked him aggressively “where are the drugs” or “where are your drugs” while holding the machete (this is the conduct relied upon to establish Count 1). The accused struck the complainant with the machete hitting the left side of his head above his ear and his right hand causing bleeding to both areas (this is the conduct relied upon to establish Count 2). The complainant ran to a nearby Ampol service station and the accused gave chase before abandoning the pursuit of the complainant and fleeing the scene. The complainant sought assistance from the service station attendant who called police.
7․The accused did not give evidence. The interaction between the complainant and the person the prosecution allege was the accused was partially captured on CCTV.
8․The accused was not arrested until May 2022.

Issues

An application pursuant to s 138

9․At the beginning of the trial the accused made application to exclude evidence pursuant to s 138 of the Evidence Act 2011 (ACT) (the Evidence Act) on the basis that his arrest and some of the police conduct after his arrest, was unlawful. It was sensibly agreed between the parties that the evidence subject of that application would be taken on a voir dire during the trial, and I would rule on the admissibility of that evidence in this judgment.
10․At the completion of all of the evidence the prosecutor, reasonably and properly in my view, indicated that she did not press the admissibility of any of the evidence included in the s 138 application and would not submit that I should place any reliance on that evidence as part of the prosecution case. The parties agreed that the result of the position taken by the prosecutor was that I need not determine the application.
11․Accepting that I do not need to determine the application, I consider it nonetheless appropriate to observe that the evidence of the police about the arrest of the accused and some subsequent matters was entirely unsatisfactory. In particular the conduct of the arresting officer captured in body worn camera footage reflected a casual disregard for his obligations as an arresting officer as well as a level of unprofessionalism that should not attend to police engagement with members of the public, including those who are subject to an arrest. I recognise that one view of the conduct of the officer is that it was designed to develop something of a personal rapport with the accused in an effort to encourage and secure his compliance with the arrest. If that is indeed so, the execution of that effort was poor and almost entirely sacrificed professionalism. It certainly did not reveal substantive compliance with his obligations as an arresting officer. It may be that his conduct was also influenced by a lack of real detail on his part of the reason for the arrest of the accused, something that would have been cured by a proper and substantive exchange of information between the arresting officer and the case officer. I am satisfied that this did not ever occur. Whatever the motivation of the arresting officer, his conduct revealed in the footage significantly hampered the prosecutor’s ability to meet the accused’s application challenging the lawfulness of the arrest.
12․The evidence from all police officers involved in the arrest of the accused demonstrated confusion in relation to the status of personal property in an accused’s possession when arrested. Almost the entirety of the police evidence demonstrated, concerningly, a lackadaisical approach to contemporaneous note-making. This approach reveals a fundamental failure to appreciate the potential importance of recording matters with detail and precision at, or near to, the time they occur. It is a failure that demands further training and education. The position adopted by the prosecutor in relation to the s 138 application, given the effect of the evidence I have just described, was entirely proper and no reflection at all of her own diligence.
13․I make it clear that I have not taken any of the evidence about the accused’s arrest and the subsequent investigative efforts of police into account in reaching a verdict on any of the charges.

The identity of the assailant at the Calwell car wash

14․There was no contest that the outcome of the trial will turn on the resolution of the question of the identity of the person who attacked the complainant at the Calwell car wash on 11 February 2022. There is no challenge to the elements of the charges as particularised by the prosecution, or that the conduct relied upon by the prosecution is capable of establishing those elements beyond reasonable doubt.
15․In light of this approach, as will be seen, much of the evidence relied upon by the prosecution was not, in substance, challenged. There is no challenge that an incident occurred between the complainant and someone at the Calwell car wash in the early hours of 11 February 2022. This is in circumstances where the fact of the attack upon the complainant on that day, at the time the prosecution allege it occurred, at around 4:37am, is captured in large part on CCTV footage.
16․The prosecution submit that the collective effect of the evidence is the establishment beyond reasonable doubt of the accused as the Calwell car wash assailant. The evidence relied upon by the prosecution in support of this is:
a)the recognition of the accused by the complainant as the person attacking him at the Calwell car wash;
b)the result of DNA analysis of a DNA profile obtained from a black neoprene face mask located at the Calwell car wash, revealing extremely strong support for the accused as a contributor to that DNA profile;
c)phone records from a mobile phone account in the name of the accused recording a phone call to the complainant’s mobile phone number shortly before the Calwell car wash attack occurred;
d)a Hertz rental car agreement recording that the vehicle used to transport the accused to the Calwell car wash was hired by a person with the accused’s name and mobile phone number in December 2021 and not returned to Hertz rental car company;
e)on 17 April 2022 the accused was observed by Detective Sergeant (DS) Battye approaching the vehicle used in the attack, unlocking the vehicle and storing personal papers in the vehicle. DS Battye knew the accused and the accused identified himself to DS Battye as ‘Aaron Campbell’; and
f)the response of an unknown male voice in the background of the phone call from “Chris” when the complainant said he was going to see his ex-partner.

17․In summary, the accused submits that the prosecution case cannot succeed because the complainant cannot be accepted as a witness of truth, his recognition of the accused in the circumstances established by the evidence is unreliable and the other prosecution evidence cannot stand alone to discharge the burden the prosecution must discharge. Further, the accused argues that the other circumstances relied upon by the prosecution are equivocal when all the circumstances are considered.
18․The particular factors relied upon to undermine the credibility and reliability of the complainant are specifically addressed in the following reasons.

The evidence

The Calwell car wash and the Ampol service station

19․The complainant gave evidence that he was driving his vehicle, a Nissan pulsar, in the early hours of 11 February 2022 when he received a phone call between 1:00am and 2:00am from a male person who identified themselves as “Chris”. The complainant’s dog was in the vehicle with him. The complainant did not recall his own mobile phone number entirely. He did not recall the mobile phone number that called him or if it came up as an unknown number. He did recall that it was not a number saved in his contacts. He said he did not recognise the voice on the other end of the call and that he could hear another unidentified male voice in the background of the call. The complainant said he told “Chris” that he was going to see his “baby mama” and that he then heard the unidentified male voice say in the background “I don’t believe it”. The complainant gave evidence he was “curious” and a plan was made to meet “Chris” at the Calwell car wash. The complainant said that when he took the phone call he was travelling to go and see his child who lived with his ex-partner in Karabar, NSW for a pre-arranged visit.
20․The complainant said he went to the car wash and observed a silver or white car fly through the car wash and that he then drove into the car wash. He said, “I pulled in and then I watched the car circle around me twice before pulling up in front of me…directly in front of me but up the other end at the end of the other – other end of the bay.” The complainant described someone getting out of the left rear passenger door of the other vehicle and start running towards him. The CCTV footage does not capture the assailant getting out of the vehicle in the car wash bay or getting back into the vehicle when he later returns.
21․The complainant recalled that when the person was less than two metres away he recognised the person to be Aaron Campbell. The complainant described knowing the accused for some 10 years having been introduced to him by a person he named as Tyrone Carriage. He said that he also knew the accused by the nickname “Doggy” and that he and the accused had been in jail together at one point. He said in cross-examination that he told the police the accused’s name and that he was from Queanbeyan saying, “that’s where he hung out, so yeah”. The complainant also explained that he knew Aaron Campbell because he had previously been in a relationship with his ex-partner Rachel, who is the mother of his child. He said the accused was in a relationship with Rachel prior to his own relationship with Rachel. The complainant responded to a question about how he would describe his relationship with the accused as at February 2022 with “none at all”.
22․The complainant said he was sitting in the driver’s seat of his vehicle when the accused struck the drivers’ side front window with a machete and the window shattered. The complainant said he reversed his vehicle, striking a pillar before he got out of his vehicle. The accused then came towards him asking “where are the drugs?” or “where are your drugs?” while brandishing the machete. The complaint responded, “what the fuck are you doing, bro?” and the accused did not answer. The complainant could not recall the sequence but recalled a flurry of swings from the machete which hit him on the head and right hand causing bleeding. The accused told him not to say anything in a “frantic way”.
23․The complainant ran towards the nearby Ampol service station at Calwell.
24․CCTV footage captures the assailant, who is wearing a cap, chasing the complainant on foot from the car wash. The assailant can be observed holding something in his right hand. He is wearing dark clothing, shorts and a cap. While there is a close up view of the assailant, the resolution of the footage does not allow facial features to be clearly identified. The assailant appears to be a Caucasian man. There are no features that can be identified as belonging to the accused such as a neck tattoo or what was described as an eye that appears different to the other. There are no features that can be identified that would definitively rule out the accused as the assailant. The assailant abandons the chase and returns to the car wash. The assailant can be seen to approach the complainant’s vehicle closely before moving away. The vehicle that arrived to meet the complainant can be seen to leave the area.
25․The complainant arrived at the Ampol service station and approached the night desk counter and asked service station attendant on duty, Mr Parambil, to call police. Mr Parambil gave evidence that he was working inside the service station when he saw a black man who was bleeding, with his hands on his head, approach the night counter and ask him for help. He said he dialled 000 and contacted police. He saw the man sit near the pumps.
26․The complainant said after attending the service station for help he returned to his vehicle. His dog was still inside his vehicle and he moved the vehicle to the Ampol Service Station.
27․Detective Acting Inspector (DAI) Elizabeth Swain arrived at the scene at 4:57am shortly after hearing a police radio transmission about a request for police assistance at the Ampol service station. She interacted with the complainant and spent some time at the service station before going to the Calwell car wash. DAI Swain filmed a walk-through of the Calwell car wash recorded on the body worn camera she was wearing. During this walk-through, a black face mask, located at the scene, can be observed from timestamp 3:50 – 4:02.
28․As I have already mentioned, CCTV footage captured some of the incident described by the complainant. The footage is recorded from various cameras at different locations in and around the scene. The footage captures the incident as it occurs at the Calwell car wash area, though not entirely. In summary, the CCTV footage captures the arrival of the vehicles at the Calwell carwash, their movement around the car wash bays and the assailant approaching the complainant’s vehicle. The assailant approaches the complainant’s vehicle from the opposite direction of where his vehicle is stationary. The footage captures the assailant striking the driver’s side window with an object in his left hand, the complainant’s vehicle reversing away from the assailant, the assailant pursuing the complainant’s vehicle and moving around to the driver’s side door. The complainant can be seen to get out of the vehicle. From a perspective further away than that which captures the car wash bay area, the interaction between the assailant and the complainant around his vehicle can be observed before the complainant begins to flee and the assailable gives chase. The complainant was not shown the CCTV footage during the course of giving his evidence.
29․DS Battye attended the scene at 8:45am. He watched the CCTV footage. He observed the vehicle carrying the assailant and identified the number plate, which he described as follows:
The first letter was C, the next one was V, but I wasn’t sure if it was a V or a Y. Then 90MM and I think one of the letters I couldn’t be 100 per cent certain.
30․When he did a search on the numberplate they matched the vehicle in the footage which led him to make enquiries with Hertz Rental to determine who had rented the vehicle.

The naming of the accused by the complainant

31․DAI Swain gave unchallenged evidence that she asked the accused who had attacked him and he initially would not tell her. She recounted the version of events given to her by the complainant including the phone call, his attendance at the Calwell car wash and a person getting out of a vehicle and attacking him with a machete. She said this about the complainant naming the accused:
He kept mentioning that I would know the person who had attacked him. I questioned him about that. I said, “Well I don’t know who it was unless you tell me” and we went back and forth that way for a period of time and then he told me that the person was Aaron Campbell who lived in Queanbeyan.
32․Other police also attended the scene including officers Bishop, Slocombe and the Case Officer (CO), Mikali Hill. Constable Bishop said when he saw the complainant, he had a gash on his head and he was agitated, commenting that this was not uncommon for the complainant. The complainant was placed in an ambulance where a version of events was recorded by the body worn camera of Constable Peter Davis.
33․In that recording the complainant can be heard describing the incident:
Complainant: Making sure that my car was safe and ---

C/ Davis: Yeah.
Complainant: --- thank fuck my dog was all right.
C/ Davis: Yeah, yeah.
Complainant: And then, all of a sudden, I’ve turned around and I thought I can’t leave it there ---
C/ Davis: Yeah.
Complainant: Just in case they come back. So I’ve hopped in it and I’ve ---
C/ Davis: Okay, so ---
Complainant: Reversed and I’ve driven all the way back to here.
C/ Davis: Yeah. Alright. So your car was unattended for a short period of time?
Complainant: Yes, it was.
C/ Davis: Okay. Thanks, mate. Is there anything in there that they were trying to take off you or ---
Complainant: He did say ‘Oh where are the drugs?’ I said, ‘What the fuck are you talking about?’
C/ Davis: Okay.
Complainant: And then I’ve just turned around – that’s when he’s turned around – that’s when – but that happened after he had smashed me with the machete.
C/ Davis: Yeah. And did you have anything in the car that they were after? Like, did you have drugs in the car?
Complainant: No, no.
C/ Davis: Okay. Was there money in the car or anything?
Complainant: Like, I – I use drugs – I use drugs.
C/ Davis: Yeah, yeah.
Complainant: I’m not going to lie about that, but ---
C/ Davis: Okay.
Complainant: --- there was – like, yeah, I dunno what he’s talking about, though.
C/ Davis: Righto.
Complainant: Yeah. I dunno what idea he would’ve gotten (indistinct) ---
C/ Davis: Yeah. Do you owe him money or someone else money?
Complainant: No. I don’t owe him money.
C/ Davis: Okay.
Complainant: I have a kid. I have a child.
C/ Davis: Yeah.
Complainant: --- to his ex, ex-partner.
C/ Davis: Okay.
Complainant: You know what I mean? I’ve known – I’ve known that prick ---
C/ Davis: Yeah.
Complainant: --- ever since he started dating my friend’s, um, sister – one of my friend’s sisters ---
C/ Davis: Yeah.
Complainant: --- but that was when I was like, what, 11 years old.
C/ Davis: Okay.
Complainant: It was a long time – long – long time ago.
Yeah, yeah.
Complainant: So when I started getting – when I got with my missus ---
C/ Davis: Yeah.
Complainant: Like, ex – ex – with my ex-missus
C/ Davis: Yeah.
Complainant: There’s no reason for him to have turned around and gone, ‘Oh , I love her still.’ This, this, that. Fucking, fuck off.
C/ Davis: Yeah, right. And how do you ---
Complainant: Like, he’s not my mate.
C/ Davis: I know it’s a silly question but how do you know it was him?
Complainant: What do you mean how do I know who it is him? He ran up to the car.
C/ Davis: Okay. And you’ve seen him, like, through the front window or something as he ran up to the car?
Complainant: No. When he’s ran up to the car, I was looking at him going who the hell’s this ---
C/ Davis: Yeah.
Complainant: --- because I went back to clean my – clean my car.
C/ Davis: Yeah.
Complainant: When I’ve looked, I’ve gone who the hell’s this? I’ve looked to the left – looked to the right ---
C/ Davis: Yeah.
Complainant: --- as he’s come to my door. And then I’ve looked and then I realised who it was, but, by then, he’s already swung a machete through the window.
34․Sergeant Slocombe and CO Hill attended The Canberra Hospital (TCH) later that morning to speak with the complainant. The complainant did not provide them with a formal statement but did hand over his mobile phone for them to inspect.

The complainant’s mobile phone number

35․In evidence in the proceedings the complainant said he thought his mobile phone number at the time began “0-4-6-1 maybe” saying “it’s (sic) had 6-1 in it. I can’t recall. I’ve had a few numbers””. On 24 February 2022 the complainant attended Woden police station with his father. Acting Sergeant (AS) Flint met with the complainant and began the process of taking a formal statement from him. The complainant did not complete a statement that day, or ever. He left, AS Flint said, because he was “agitated” that the process was taking too long. On that day AS Flint recorded the complainant’s mobile phone number as 0422 616 061. AS Flint did not ask whether this was the same mobile phone number that the complainant had on 11 February 2022. CO Hill explained the complainant’s reluctance to commit to a formal statement arose from what she said were concerns he expressed to her at some point about “repercussions” from the accused.
36․On 6 October 2023 Officer Polasak made an enquiry of the complainant in relation to his mobile phone number. The complainant told him it was a Telstra number ending in “6-0-6-1”.

The crime scene and the DNA evidence

37․DAI Swain established a crime scene at the Calwell car wash. She did so after spending “easily” 18-20 minutes at the service station, first arriving at 4:57am. The incident occurred, she agreed, at 4:37am. DAI Swain said there were no other police at the car wash crime scene prior to her arrival there.
38․Sergeant Slocombe arrived at the car wash crime scene around 7:00am. He saw the black neoprene face mask and identified photos of the mask taken at the scene during his evidence (exhibit P6, photographs 2, 5, 6, 11, 15). He remained at the crime scene with other officers before attending TCH at 8:18am to speak with the complainant.
39․The black neoprene mask was taken from the crime scene and later forensically examined. Senior forensic examiner Mr Andrew Preston prepared a statement which was tendered by consent (exhibit P7). In that statement he describes conducting a tape lift of all accessible surfaces of the mask and providing it to the AFP biology team. An analysis of the material obtained by the tape lift was conducted by forensic biologist Ms Ashley Murray.
40․Ms Murray prepared a ‘Biology Court Report’ tendered by consent (exhibit P9). Ms Murray set out in her report that the black neoprene face mask found at the crime scene was examined for trace DNA. The results revealed a mixed DNA profile from a minimum of three individuals. The results could not exclude Aaron Kenneth Campbell as a contributor. The report records the date of birth of Aaron Kenneth Campbell as 10 June 1986. Two unknown persons also could not be excluded as a contributor and the remainder of the profile was not suitable for identification purposes. The likelihood ratio for the proposition that the accused was one of the three contributors to the mixed DNA profile obtained, is expressed in the report as at least 100 billion times more likely if the accused is one of three contributors to the mixed DNA profile than if the profile originated from three unknown individuals selected at random from the Australian Caucasian sub-population. Ms Murray concluded that this provided “extremely strong support” for the proposition that the accused was a contributor to the DNA profile obtained from the black neoprene face mask. The appendix in the report provided the likelihood ratio for this verbal scale, as greater or equal to 1,000,000 times more likely.
41․Ms Murray gave evidence at trial and elaborated on the above findings in her report, stating:
(a)That the DNA of the third person who contributed to the profile was at insufficient levels to draw any reliable conclusions, so was not suitable for further interpretation;
(b)That if there is no information indicating the ethnicity or race of the accused, then forensics will use the population that represents where the incident has occurred (being the ACT in this matter). As the majority of the ACT is made up of an Australian Caucasian population, this was the data set used;
(c)That if other information had been provided at the time it may have been possible to use an alternative population other than the Caucasian sub-population, if that population data set had been available ;
(d)That the verbal scale she had used, being ‘extremely strong’ was at the highest end of the scale used uniformly across jurisdictions and that it was the highest she could express the conclusion; and
(e)That the result of the DNA analysis does not indicate how DNA may have come to be on a particular item or surface.

42․Ms Murray could not say whether the source from which the DNA profile was obtained was a certain type, for example sperm, blood or something else. She explained that research suggests that there are some individuals who have a tendency to shed DNA ‘better’ than others and this depends on a number of factors such as frequency of handwashing, the dryness of someone’s hands, or whether someone is stressed and perhaps sweating more than usual.
43․During cross-examination Ms Murray agreed that you are unable to tell the mode of transfer of DNA from analysis of a DNA profile, that indirect transfer of DNA can occur, that there is no way of knowing where a particular sample of DNA was specifically located on an item as the tape lift comes from all over the item, that there is no way of knowing how long the sample was on the item and that it is possible there were more than three individuals who contributed to the DNA profile obtained. She also explained that as well as secondary transference of DNA there can be tertiary and further transference, though the amount of DNA lessens with each subsequent transfer.

The Hertz rental car

44․Mr Ishanka Warnakulasooriya is a customer service supervisor with Hertz Rental, who joined the company in 2018. He gave evidence that in September 2022 he was approached by the AFP in relation to a white Hyundai i30 with license plates ‘CV90MM’. He searched the company’s online system where details regarding any rental are stored. He was not the Hertz employee who rented out the vehicle, however he was able to give details regarding the rental as per Hertz’s records and about the company process for renting out a vehicle in their fleet.
45․The Hertz database recorded that another Hertz employee, Ms Connie Leung had rented the car out on the 23 December 2021 to a person identified as Aaron Campbell.
46․Mr Warnakulasooriya described the Hertz process that accompanies renting a vehicle as requiring the Hertz employee to view the person’s drivers’ licence and credit card. The licence details are then directly entered into the Hertz system at the time of pickup in front of the customer. The employee will also compare the driver’s license to the actual appearance of the customer as a form of identification verification.
47․The prosecution tendered the Hertz rental agreement (exhibit P11). It contained the following details:
(i)Name: Aaron Campbell;
(ii)Date of Birth: 10 June 1986;
(iii)Phone number: 0402 748 441; and
(iv)Address: 7 Khull Crescent, Kambah, ACT, 2902.

The agreement also listed the pick-up date as 23 December 2021 and a return date of 25 February 2022. However, the witness gave evidence that while the agreement was to return the car by 25 February 2022 the car was not returned and so the rental was not closed. The tax invoice states the return date as 29 March 2022 at which point the car had still not been returned and the rental was closed in order for the matter be passed onto another department who would begin the process to recover the car. The witness gave evidence that based on the records he accessed, Hertz had attempted to contact the customer, Mr Campbell, several times on the phone number provided and by email, without success. Thereafter the matter was reported to police. It was noted by the witness that the rental booking was in fact, booked by an insurance company, but the name of the person who attended and picked up the car was recorded as Aaron Campbell.

48․In cross-examination the witness agreed that while it is the usual process for an employee to check the driver’s licence against the person picking up the car, he was not there at the time and therefore could not say if Ms Leung in fact adopted that process. He also agreed that the booking came from an insurance company who provided the name of the person, being Aaron Campbell, but not the licence number. He unsurprisingly agreed that it was not possible to tell if someone other than the person who rented the car was driving the car at any point after pick up, and that it could be anybody.

The phone records

49․The prosecution tendered the results of an Integrated Public Number Database (IPND) Enquiry (exhibit P21) made by CO Hill regarding the number 0402 748 441. The enquiry revealed that that carrier was Optus and that the number was associated with Mr Aaron Kenneth Campbell, with a service address of 7 Khull Crescent, Kambah, ACT, 2902.
50․The prosecution also tendered call charge records in relation to the number 0402 748 441, requested by CO Hill. CO Hill explained in her evidence that this record showed an entry on the 11 February 2022 at 04:19:30am, which was an outgoing call to the number 0422 616 061. The call duration was 4 minutes and 19 seconds.

The April 2022 sighting of the accused

51․DS Battye gave evidence that on 17 April 2022 at about 8:55pm, he and Senior Constable Troy Lawrence attended an address in Ainslie for an unrelated matter. While there at about 9:15pm they observed the accused and his partner, walking up to a white Hyundai i30 with the number plates ‘CV90MM’. DS Battye described the accused unlocking that vehicle with a key fob he had in his possession. DS Battye gave evidence that he had interacted with Mr Campbell several times before this interaction and that he and SC Lawrence approached the accused, asked him his name, and arrested him for an unrelated matter, being a breach of bail. The accused then informed the officers that he was not in breach of bail. The accused’s partner retrieved some paperwork from the vehicle which had his name on it and showed that his bail conditions had been amended and he was in fact not in breach of bail at that time. Consequently, the accused was “un-arrested”.
52․DS Battye remarked that it “was obvious” the person they were talking to was Aaron Campbell and additionally, the person told them he was Aaron Campbell.
53․In cross-examination, DS Battye explained how he recognised the person as the accused. He referred to his 20 years of policing experience and said that he has interacted with the accused several times. DS Battye added that he recognised the accused because of his familiarity with him from those previous interactions and also because the accused has an irregularity with one of his eyes. He described this irregularity as “one of his eyes is a little bit different”. He also gave evidence that the address he had listed for the accused in his police notebook was 1/6 Howe Street, Ainslie, which he believed to be the accused’s partner’s address; but that the accused’s address on his bail paperwork was a different address in the ACT. There was no further evidence about the detail of that “different” address.

Directions

54․The parties agree with the form and content of the directions that follow. I have taken these directions into account in reaching my verdicts.

Onus and standard of proof

55․The prosecution bears the onus to prove the guilt of the accused. The accused is presumed innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. If the evidence which I accept fails to satisfy me beyond reasonable doubt of the accused’s guilt then I must find him not guilty.

Fact finding and inferences

56․The facts I find must be based on the evidence. I must bring an open and unbiased mind to that evidence. I must view the evidence clinically and dispassionately and I must not let emotion enter into the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence. I must determine the facts according to the evidence, considering it logically and rationally. I may use my common sense, my individual experience and wisdom in assessing the evidence. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
57․I may draw inferences from the facts that I find have been established by the evidence. I must examine any possible inference to ensure that it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

The accused did not give evidence

58․The accused did not give evidence in the proceedings. There is no obligation on him to give or call evidence in a criminal trial. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus they bear, to the standard required. I cannot take into account the accused’s decision not to give evidence in any way. I cannot use the absence of any evidence from him to fill any gaps in the prosecution case nor can I use it as strengthening the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence.

Evidence by audio-visual link

59․The complainant gave evidence from a location remote from the courtroom connected to the proceedings by audio-visual link. This is usual practice. I must not draw any inference adverse to the accused and I must not attach any greater or lesser weight to the evidence of the complainant because this practice was followed: s 68 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Murray Direction: R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 at [19]

60․The complainant was the critical prosecution witness and the only prosecution witness who gave direct evidence identifying the accused as his assailant at the Calwell car wash on 11 February 2022.
61․I must examine the complainant’s evidence carefully to satisfy myself that I can safely act upon his evidence to the high standard required in a criminal trial. I must be satisfied beyond reasonable doubt that the complainant is both an honest and an accurate witness. As in any criminal trial where the prosecution relies solely or substantially on the evidence of a single witness I must approach that evidence with particular caution because of the onus and standard of proof placed upon the prosecution.

Circumstantial evidence

62․It would be inaccurate to describe this case as entirely circumstantial. The prosecution relies on the direct evidence of the complainant. The prosecution also relies on a number of circumstances in support of that direct evidence. The prosecution submits that the combined effect of the direct evidence and the additional circumstances is the establishment of the accused’s guilt beyond reasonable doubt in relation to all three counts on the indictment and the transferred offence. I must examine all of the evidence, direct and circumstantial, to determine whether in combination they prove the accused guilty of the offences to the requisite criminal standard.
63․The requirement for the prosecution to prove the guilt of the accused beyond reasonable doubt means that I must be satisfied not only that the evidence shows the accused is guilty but that the conclusion of guilt is the only conclusion reasonably compatible with the circumstances.

Identification evidence

64․There is an important direction I give myself concerning the evidence of the complainant where he identified the accused as the person responsible for attacking him at the Calwell car wash. This direction relates only to the reliability of the evidence given, not to the complainant’s honesty. I must separately be satisfied beyond reasonable doubt of his honesty.

65․Identification evidence may be unreliable and there are a variety of reasons why that is so. I must approach the complainant’s evidence identifying the accused with special caution before I accept it as reliable. A witness may be honest, but that does not necessarily mean that the witness will give reliable evidence. Because a witness who gives evidence of identification honestly and sincerely believes that their evidence is correct, that evidence will usually be quite impressive, even persuasive. So here, even if I conclude that the complainant was entirely honest in the evidence he gave, I must still approach the task of assessing the reliability of his evidence with special caution.
66․Special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of the person accused of a crime. The experience of criminal courts over the years, here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.
67․I must carefully consider the circumstances in which the complainant made his observations of the accused as those circumstances may affect the reliability of his identification evidence.
68․There are a number of matters that have been specifically raised in this case that require consideration:
(a)What opportunity did the complainant have to make his observation of the person?
(b)The circumstances of the observation, in particular the effect of any medication or drugs the complainant had consumed as well as the amount of sleep he had in the lead up to the observation he says he made.
(c)Did the complainant focus his attention on the person or was it just a casual sighting that did not have any significance for the complainant at the time?
(d)In what light was the observation made?
(e)Was there anything about the person observed which would have impressed itself upon the complainant?
(f)Was there any special reason for remembering the person observed?
(g)Was the complainant under any stress or pressure at the time of making the observation? If so how might that have affected his ability to accurately observe the person and store the image of the person’s appearance in his memory?
(h)Does the complainant come from the same racial background as the person identified?
(i)When did the complainant first identify the accused as the person who attacked him?
(j)The length of time between the complainant’s observation of the person and the identification of the accused to police.
(k)The complainant gave evidence that he recognised the accused. Errors may occur even where a witness has previously known the accused. Mistakes have been known to be made by friends and even by relatives of a person who thought that it was their friend or relative whom they had seen. This is something I must bear in mind. Just because the complainant claims to know the accused there remains a possibility of mistake.

69․I must give consideration to each of those matters. Any one of those circumstances may possibly lead to error.

Complaint evidence

70․The prosecution relies on the evidence of the complainant describing the incident when speaking with DAI Swain and C/ Davis. This evidence is referred to as ‘complaint evidence’. There was no challenge to the fact that the complainant made those complaints.
71․If I accept that a complaint or complaints were made, the following directions apply as to how the complaint evidence may be used.

Section 60 (Evidence Act) use

72․The first way in which the evidence may be relevant is that it can be regarded as additional evidence that the complainant was assaulted in the way he described. That is, in addition to the evidence given by the complainant in court there is the description of the events he gave to DAI Swain and C/ Davis.
73․I must have regard to all the circumstances relevant to the making of the complaint including the consistency of the complaint made to DAI Swain and C/ Davis with the evidence he gave in court. If there are discrepancies, I must consider why that may be so and whether I consider that has a bearing upon whether to treat the complaint evidence as additional evidence of the complainant being attacked by the accused in the way he described.

Credibility use

74․The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of the complainant’s evidence in court. The prosecution submit that the timing and manner of the complainant’s complaint makes it more likely that the complainant is telling the truth about the matters he complained of including his recognition of the accused.
75․I must consider whether the complainant’s conduct was consistent with the allegation. In other words, did the complainant act in the way I would expect him to act if he had been assaulted as he claimed? Relevant considerations might be the timing of the complaint and the way the complainant appeared when making the complaint.
76․In considering whether there was consistency between the allegations and the complainant’s conduct in complaining I bear in mind that different people have different personalities. In a given situation they might not all behave in the same way. In this case I am being asked to consider the complainant and the way he reacted to the experience he says he had.
77․I must also bear in mind that just because a person says something on more than one occasion it does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.

Evidence in relation to the accused being on bail and in prison

78․The prosecution adduced evidence to support the recognition evidence from the complainant and DS Battye. The complainant referred to spending time in prison with the accused and DS Battye referred to the accused being on bail as at April 2022 in relation to “unrelated matters” and having numerous previous interactions with the accused. I make it clear that I have not used this evidence to draw any adverse inference against the accused in relation to his character or in any other impermissible way. The prosecution made it plain that the only purpose of that evidence is to give context to the recognition purportedly made by the complainant and DS Battye. I place no reliance whatsoever on the specific references to bail, police interaction or prison.

Elements

79․The parties provided elements as agreed between them, and these are as follows:
Count 1 – Attempt aggravated robbery:
(i)The accused carried out conduct that is more than merely preparatory to the commission of the offence of aggravated robbery;
(ii)The accused intended to carry out the conduct that is more than merely preparatory;
(iii)The accused intended to appropriate something;
(iv)The accused knew the thing to be appropriated was property;
(v)The accused knew that the property belongs to another person;
(vi)The accused knew the appropriation was dishonest according to the standards of ordinary people;
(vii)At the time of appropriating the property, the accused intended to permanently deprive the person to whom the property belongs of the property;
(viii)The accused intended to commit theft when threatening to use force; and
(ix)The accused knew he had or intended to have an offensive weapon with him at the time of committing the robbery.

Count 2 – Assault occasioning actual bodily harm:
(i)The accused applied force to another person;
(ii)The accused intentionally or recklessly applied force to or on another person;
(iii)The application of force caused ‘actual bodily harm’;
(iv)The application of force was without consent; and
(v)The application of force was otherwise unlawful.

Count 3 – Damage property:
(i)The accused engaged in conduct;
(ii)The accused intended to engage in conduct;
(iii)The accused’s conduct caused damage to property;
(iv)The accused intended to cause damage to the property or any other property belonging to someone else, or the accused was reckless about causing damage to property or any other property belonging to someone else;
(v)The property belonged to someone else; and
(vi)The accused was reckless as to whether the property belonged to someone else.

CC2022/4945 – Possess offensive weapon with intent:
(i)The accused possessed an item;
(ii)The accused intended to possess the item;
(iii)Without reasonable excuse;
(iv)That item was an offensive weapon; and
(v)The accused possessed the item in circumstances indicating intent to use the weapon or commit an offence involving actual or threatened violence.

Analysis

Credibility and reliability of the complainant

80․The complainant was cross examined about several matters relevant to his credibility and his reliability, the effect of which the accused submits, is to render the complainant’s evidence unable to be relied upon.

Mental health and amphetamine use

81․The complainant gave evidence that when he was taken to hospital immediately after the car wash attack he was admitted and remained in hospital for a period of time because he tested positive for Covid-19. In cross examination he accepted that part of the reason he remained in hospital was because he was involuntarily detained so he could receive treatment for his mental health. He agreed that he was on risperidone at the time the incident occurred, that he had used amphetamine on the morning of the attack and he offered that he had not slept for 2 days prior to the incident. The complainant accepted these things could have impacted his “thinking” on the night and described risperidone as making him “drowsy”.
82․The complainant also agreed that a psychiatric treatment order (PTO) was “made” in February 2022 and that he had in July 2021 experienced a drug induced psychosis. He also agreed that at the time he was giving evidence he was subject to a PTO and consequently in receipt of monthly medication injections. He denied any impact of that medication upon his memory. The complainant rejected any suggestion that he was suffering hallucinations in February 2022 or that he had a definitive diagnosis of schizophrenia in February 2022. He agreed that he missed an assessment with the ACT Civil and Administrative Tribunal (ACAT) in early February 2022, prior to the incident occurring.
83․The complainant accepted that he told police on the night while he was in the back of the ambulance that his ex-partner had said she wanted to kill him; the same ex-partner he was intending to visit that morning. He said this comment was taken out of context saying, “you haven’t heard the full story, so – you’re taking it out of context by even asking that question, because it’s irrelevant to the case.”

The purpose of the car wash meeting and the recognition

84․The complainant maintained in cross-examination that:
(i)it was his plan to go and visit his young child in the early hours of the morning when the incident occurred;
(ii)he was not being untruthful when he told police he intended to use the car wash;
(iii)it was curiosity behind the decision to go and meet with “Chris”. He denied he was going to meet “Chris” for a drug deal; and
(iv)he did not have any weapons with him and he did not he use a tire iron from his vehicle to threaten his attacker.

85․While the complainant agreed that the incident occurred very quickly he unequivocally dismissed the suggestion that he not ever had any face-to-face interaction with the accused, responding, “of course I have”. He did not appear to me to be defensive about or highly invested in the acceptance of his account. He maintained that the person who attacked him was the accused, that he knew him to have the nickname “Doggy” and to hang out around Queanbeyan.
86․The complainant accepted he told police he was wearing a cap when the incident occurred, that the windows of the vehicle he was driving were tinted and that the person who attacked him was also probably wearing a cap. He accepted that he observed the person at his window momentarily, though disagreed the area where he got out of his vehicle was darkened. He rejected the suggestion that his view was obscured and said he was able to recognise the accused.
87․The accused contends that the recognition of him by the complainant was not supported by evidence about the nature and context of their previous interactions. The accused highlighted that the complainant did not recognise the voices in the phone call from “Chris” and that the complainant did not mention his eye irregularity or a neck tattoo or rat’s tail referred to by police witnesses when describing the accused.
88․The evidence does not include any description of the number or the nature of interactions between the complainant or the accused over the period of time he claimed they had known each other. That said, the complainant was specific about the circumstances of their introduction, providing the first and last name of the person who introduced them. He nominated the accused as a previous partner of his ex-partner. He said they had spent time in prison together. The complainant offered a number of ways in which they had a previous connection as the foundation for his ability to almost immediately recognise the accused as the person who attacked him. I do not consider his answer to the question about his relationship with the accused in early February 2022 to be an expression of uncertainty in relation to that recognition. It presented as a frank assessment of the nature of the connection between them at the time the incident occurred. It also seemed to me to be an opportunity for the complainant to suggest a reason for the accused to attack him. The complainant did not take that opportunity.

History of dishonesty offences

89․The complainant readily conceded that he was sentenced in 2015 in this court for a range of charges including attempting to receive stolen property, receiving stolen property, money laundering and possessing property being the proceeds of crime. He agreed those offences occurred in 2014 and that they involved the withdrawal of cash that did not belong to him from his bank account. He accepted that the conduct was dishonest and that it involved a degree of planning and premeditation. Further the complainant agreed that he was again sentenced in this court in 2016 in relation to 4 charges of obtaining property by deception and that they were drug-related. He volunteered that he may have been using drugs at the time he committed the 2016 offences.

Assessment of credibility and reliability

90․Dealing first with accused’s submission that the explanations provided by the complainant in relation to the reason for, and purpose of, his attendance at the car wash together with the plan he said he had to visit his young child in the very early hours of the morning are incredible in the circumstances and impact his credibility. In combination with his history of dishonesty offences, the accused submits these factors are devastating to the complainant’s credibility.
91․Turning first to the explanations and the plan to visit his child, it did seem to me that the complainant’s evidence about “curiosity” being the motivation for his willingness to meet with “Chris”, a person unknown to him in the early hours of the morning was somewhat incredible. It also seemed to me that the complainant’s suggestion to police that he was there to use the car wash was inconsistent with the stated purpose of the visit to the car wash being to meet with “Chris”. The complainant’s plan to visit his very young child around the time he received the call from “Chris” was also incredible. I am satisfied that the complainant was not entirely forthcoming about the motivation and purpose of the meeting with “Chris” and in relation to the reason he was driving around in the very early hours of the morning on 11 February 2022.
92․That said, the complainant was entirely frank about his own use of drugs when he spoke with police at the scene. In the same way, he was frank with the Court about his use of amphetamine at the time of the incident and his probable drug use when responding to questions about his criminal history. There is no evidence before me that he was at all perturbed at the idea of police inspecting or photographing his vehicle when they attended the scene. In the face of the suggestion that the real purpose of the meeting with “Chris” was to engage in a drug deal, denied by the complainant, there is no evidence that any drugs were located either in the complainant’s possession or in his vehicle. This does not preclude that the complainant was there to purchase drugs from, rather than sell drugs to, “Chris” but this proposition wasn’t specifically put to the complainant. The complainant’s refusal to accept that a drug deal was the real purpose of the meeting is at odds with his otherwise frank evidence about his use of drugs.
93․There might any number of reasons the complainant was not entirely forthcoming about the purpose of the meeting. It is not for me to speculate. Rather it is for me to determine whether my assessment of the aspects of his evidence where I consider he was not entirely truthful affect my assessment of other aspects of the evidence he gave.
94․The complainant did not attempt to evade or justify his criminal history. He openly and frankly conceded those matters from his past. Indeed during the course of the entirety of his evidence he accepted, and in some cases, offered, information that was not necessarily in his own interest. For example, that he used amphetamine on the morning of the incident and that it could have impacted his thinking; that he was unsure about the timing of the incident and the colour of the vehicle his attacker was travelling in; that he could not recall the mobile phone number of the phone from which he answered the call from “Chris”; that he “was a bit all over the place” when he spoke to police; that he had not slept for two days prior to the incident; and that he may have been using drugs in 2016.
95․The nature and age of those matters in his criminal history as well as his frank and immediate acceptance of them in cross-examination does not lead me to have any concern about the complainant’s credibility or reliability because of those offences in his criminal history.
96․The accused submits that the effect of the complainant’s evidence and concessions in relation to a number of factors casts doubt on the reliability and accuracy of his purported recognition of the accused. Those factors include:
(i)his lack of sleep;
(ii)his use of amphetamine and risperidone;
(iii)his involuntary admission to hospital close in time to the incident because of concerns in relation to his mental health; and
(iv)the circumstances and basis upon which the recognition was made.

97․The accused submits that the evidence from the complainant about the length of time he has known the accused is “internally inconsistent”. In support of this he cites the reference the complainant made in his evidence to knowing the accused for “well over 10 years” and the version he gave to C/ Davis in the back of the ambulance where he said he has known the accused since he was 11 years old. The only evidence in relation to the complainant’s age is contained in the hospital records tendered by the prosecution by consent (exhibit P25). The complainant is recorded as being 30 years old in an emergency department discharge letter dated 11 February 2022. In his evidence the complainant described meeting the accused “a long time ago but, yes some years back now” before going on to specify a period “well over” 10 years. If the complainant was introduced to the accused when he was 11 then this is a period that could be considered “well over 10 years”. I do not consider this aspect of his evidence to be internally inconsistent.

98․The accused suggests that the complainant referring to him as “Aaron Campbell who lived in Queanbeyan” is further reason to doubt the accuracy of his recognition. The accused asserts that the evidence establishes that he did not live in Queanbeyan, citing the Hertz rental agreement and the phone records both recording an address in Kambah and DS Battye observing him at an address in Ainslie. The difficulty with this assertion as a factor relevant to the complainant’s reliability is that there is no evidence that would allow a determination to be made about the period of time the accused lived in Kambah, that he was living at the Kambah address in February 2022 or any other detail that would definitively determine that the complainant was wrong about the Queanbeyan assertion when he made it in February 2022. The IPND enquiry records the ‘service status date’ of the number as 10 September 2021 the significance of which is not explained in the evidence, in particular in relation to the address connected to the account. I also note that it was DAI Swain who said the complainant identified that the accused ‘lived” in Queanbeyan. The complainant’s evidence in the proceedings was that the accused “hung out” in Queanbeyan. DS Battye said the Ainslie address was the address of the accused’s partner. In my view the evidence about the accused’s residence is equivocal and not a basis, in either isolation or combination, to reject the complaint’s recognition of the accused.
99․It can also be observed in the CCTV footage that the interaction between the assailant and the complainant after the complainant gets out of his vehicle puts them, in particular their faces, at very close proximity to one another providing opportunity for the complainant to observe his attacker face-to-face. The footage, consistent with the concessions made by the complainant captures an interaction that lasts for a short period. It is an interaction where the complainant was the subject of an attack upon him and that would undoubtedly have been frightening and stressful.
100․That said, the period captured in the footage is certainly long enough, in particular the interaction after the complainant gets out of the vehicle, for a person who knows the assailant to recognise them. This is, in my view, even in circumstances where adrenaline is “pumping” as the complainant accepted his was, and in circumstances where they appear to be of different racial backgrounds and in circumstances where the complainant was under stress. I address the lighting of the scene below.
101․The significant consistency of the version the complainant told to police and described in court with the CCTV footage is at odds with the suggestion that his reliability and credibility was affected by poor mental health and/or drug use and/or lack of sleep. The idea that the complainant would be highly accurate in relation to his description of what occurred but because of the influence of the factors I have just identified be unreliable only in relation to his recognition of the accused defies common sense. Of course it is trite to say that a fabricated or inaccurate assertion, repeated, does not convert it to truth but here the complainant’s assertion about what occurred is clearly supported by the CCTV footage.
102․Much was made of the assailant wearing a hat. The CCTV demonstrates that to be so. The footage also demonstrates that the hat did not obstruct the assailant’s face in any significant way. Indeed had the CCTV footage been of sufficient quality in particular when it captures the assailant walking back in the direction of his vehicle having abandoned his pursuit of the complainant, the presence of a hat on his head would not have prevented in any real way a direct and clear observation of his facial features. In my observation the assailant wearing a hat did not undermine the capacity for him to be definitively recognised by somebody who knew him or for any person to observe his face and facial features.
103․The complainant’s evidence in relation to the recognition of the accused was straightforward and consistently maintained from the moment he informed DAI Swain that it was Aaron Campbell who attacked him. The initial reluctance described by DAI Swain from the complainant to name the accused is inconsistent with a suggestion that his identification of the accused is borne of some ill will between them. The complainant did not take opportunity to embellish or enhance the basis of his recognition of the accused. I do not consider it significant that he did not provide a comprehensive physical description of the accused. Firstly, there is no evidence he was asked by police at the scene to do so and secondly, there was no real reason for him to describe the accused when he had identified him as somebody he knew and consistent with that assertion provided a first and last name to investigating police. The complainant agreed in cross-examination that in the statement AS Flint unsuccessfully attempted to complete with him, he provides a generic description of the accused:
Q: Okay. Now, in your statement you said to the police officer:
I would describe him as Caucasian in appearance, with longish, brown coloured, crew cut hair with a medium build.

Q:That’s the extent of the description you gave of the person that you say attacked you. That’s correct?
A: Yes. And that and there abouts.
104․This is without reference to the features identified by other witnesses as particular to the accused. That said there is no evidence before me about when the accused acquired a neck tattoo or a rat’s tail such that I can be satisfied that he had both of those features on 11 February 2022.
105․The evidence about the complainant’s mental health, his use of risperidone and amphetamine and the lack of sleep he readily identified he was suffering from, are factors that might in combination or indeed in isolation, provide a basis to be cautious about relying on the complainant’s version of events including his identification of the accused. There is, though, a compelling piece of evidence that to a significant degree points to the reliability and accuracy of the version of events the complainant maintained. This evidence is the CCTV footage. Watching the footage reveals the version provided by the complainant initially to police and recalled in evidence before the court some 20 months after the event to be an accurate description of what can be observed unfolding in the CCTV footage.
106․The CCTV footage also reveals that the lighting in the car wash bay where the complainant says he first recognised the accused was excellent. Indeed it can be observed that the area of the car wash bay is completely and brightly illuminated. While the area where the complainant can be observed stopping his vehicle after reversing out of the car wash bay is darker than the directly illuminated area it is not in my observation “darkened” or even “dark”. The lighting from the car wash bay provides ample lighting of the area sufficient to clearly observe a person in close proximity, as the accused was to the complainant. The footage also demonstrates that the headlights of the complainant’s vehicle are also on. This is consistent with the complainant’s rejection of the suggestion that the area where he got out of his vehicle was darkened and impacted his capacity to recognise the accused.
107․The complainant did not demonstrate a preparedness to engage in exaggeration during the course of giving his evidence. While as I have already observed I am satisfied he was deliberately careful in describing his reason for attending the car wash his evidence did not otherwise present as carefully contrived or rehearsed.
108․The complainant is the only source of direct evidence about the identity of the person who attacked him. I am entitled to consider that direct evidence in light of other evidence that I determine to be credible and reliable that might support the evidence of the complainant.

The evidence that supports the recognition/identification of the accused by the complainant

The black neoprene mask at the crime scene

109․The evidence establishes beyond reasonable doubt that the black neoprene mask was found at the car wash. Crime scene photographs 2, 3, 5, and 6 capture the black neoprene mask where it was located consistent with the body worn camera footage of DAI Swain. The black neoprene mask was not just found in the general vicinity of the car wash but specifically in the area of the bay where the CCTV footage captures the assailant approaching the complainant from. It is the same area the complainant described the assailant getting out of the vehicle. It is not an area where the complainant is seen to stop or get out of, his vehicle.
110․The accuracy or reliability of the forensic evidence was not challenged. Rather the submission was advanced that there is no evidence that establishes the mask was not there prior to the incident or left there after the incident but prior to the time DAI Swain established a crime scene. Both scenarios provide an alternative explanation for the presence of the mask. Were the forensic evidence the only evidence tying the accused to the scene those alternative explanations would be fatal to the prosecution case. This is not a matter though, where the mask and the resultant DNA analysis stand alone as the only evidence the prosecution relies upon to establish the case against the accused.
111․I do not consider that I need to be satisfied that the assailant was wearing the mask on 11 February 2022 in order to take the forensic evidence into account as part of the circumstantial factual mix. The inference available is that the mask was dropped by the assailant either from his person or from the vehicle as he was getting out of it. The effect of the evidence in my view is the same whether I am satisfied he was wearing it, carrying it in his pocket or that it was inside the vehicle and inadvertently moved outside the vehicle by the assailant.
112․I am satisfied that the black neoprene mask came from inside the white Hyundai i30 and was dropped to the ground when the assailant moved from that vehicle to the complainant’s vehicle. I am satisfied that the black neoprene mask had on its surface DNA material deposited there by the accused.

The phone records

113․The phone records provide a connection between the accused and the complainant within a short period leading up to the attack.
114․Evidence of the complainant’s mobile phone number comes from several sources:
(i)The complainant identifying that while he could not recall precisely his mobile phone number at the time it contained the series “6-1”;
(ii)The evidence from AS Flint that 13 days after the incident the complainant told him his mobile phone number was 0422 616 061;
(iii)The evidence from C Polasak that in October 2023 the complainant told him his mobile number was 0422 616 061.

115․Relying on the combined effect of that evidence I am satisfied that on 11 February 2022 the complainant’s mobile phone number was 0422 616 061. Further I am satisfied that a mobile phone with the number 0407 748 441 called the complainant at 4:19am in the lead up to the attack at the Calwell car wash.
116․I am also satisfied of two further matters. Firstly, that mobile phone number 0407 748 441 was the number of an account held in the accused’s name and secondly, that this mobile phone number was provided as the contact number for a person with the accused’s name who rented a white Hyundai i30 in December 2021.

The motor vehicle

117․The CCTV footage captures the vehicle carrying the assailant. DS Battye gave evidence that he observed the number plate on the CCTV footage to be, ‘CV90MM’. He said he was not sure if it was a ‘V’ or a ‘Y’ but he realised when he did checks on the plate that “the plate actually matched the car, which was a white Hyundai i30. It was a newish looking hatch.”
118․I am satisfied, having had the opportunity to view the footage and a screenshot of the vehicle’s numberplate, that the numberplate of the vehicle was accurately identified by DS Battye. This view is supported by the matching of the numberplate with the make and model of the vehicle that can be observed in the footage.
119․The numberplate and the model of the vehicle led DS Battye to Hertz rental to investigate who had rented the vehicle. The Hertz rental agreement establishes that a person with the accused’s name rented that vehicle in December 2021 and did not return it as agreed by the rental agreement. The car then, was not in the possession of Hertz rental company when the incident occurred on 11 February 2022.
120․I am satisfied that the vehicle used in the Calwell car wash attack is the same vehicle rented to a person with the accused’s name and mobile phone number in December 2021 and the same vehicle DS Battye observes the accused unlocking, accessing and storing personal papers inside two months later in April 2022.
121․I am further satisfied that the accused is the person who rented the vehicle from Hertz on 23 December 2021.

The reaction from the unidentified male voice to the “going to see my baby mama” comment

122․Bearing in mind the need to consider circumstantial evidence together, in my view the evidence from the complainant about the “I can’t believe it” comment from an unidentified male voice in the background of the phone call he had with “Chris” is of limited probative value. Accordingly I have not taken it into account in determining the strength and effect of the circumstantial evidence.

Conclusion on the complainant’s evidence

123․I have carefully considered the evidence of the complainant and have firmly kept in mind the specific directions I must observe including the special caution required in the assessment of identification and recognition evidence. After careful consideration I have formed the view that while I am satisfied that the complainant was not entirely forthcoming in relation to some aspects of his evidence (described above at [95]-[96]) this does not cause me to have any hesitation about the accuracy or reliability of the complainant’s version of events about what occurred at the Calwell car wash, including his recognition of the accused. I am of that view taking into account the direct evidence of the complainant and the other evidence in support of the complainant’s version.

Findings

124․Having accepted the evidence that I have, I make the following findings:
(i)I am satisfied beyond reasonable doubt that a male person travelled to the Calwell car wash on 11 February 2022 at around 4:37am in a white Hyundai i30 with number plate ‘CV90MM’ to meet with the complainant.
(ii)I am satisfied beyond reasonable doubt that a male person got out of that vehicle in possession of an offensive weapon, being a machete, and approached the complainant’s vehicle intentionally smashing the driver’s side front window with the machete.
(iii)I am satisfied beyond reasonable doubt that person still in possession of the machete pursued the complainant and said words to the effect of “where are the drugs?” or “where are your drugs?”. Further I am satisfied beyond reasonable doubt that these words were a demand for the complainant to identify property in his possession that the person intended to dishonestly and permanently appropriate from the complainant. I am satisfied beyond reasonable doubt that the person knew they were in possession of a machete at the time of making the demand and intended to commit theft of the property. I am satisfied beyond reasonable doubt that this conduct was intentionally more than merely preparatory.
(iv)I am satisfied beyond reasonable doubt that the male person then intentionally struck the complainant with the machete, striking him on the head and hand, causing actual bodily harm to him.
(v)I am satisfied that the conduct relied upon to establish each element of counts 1, 2, 3 and the transferred offence (as set out above at [83]) has been proven beyond reasonable doubt.

Conclusion on the identity of the assailant

125․The entirety of the evidence relied upon by the prosecution that I have determined to accept establishes a compelling case in relation to the assailant’s identity. The CCTV footage, the DNA results, the phone records and the evidence tying the accused to the motor vehicle used in the attack, in combination with the direct evidence from the complainant, provides a very strong basis to be satisfied beyond reasonable doubt that the assailant was the accused, Aaron Kenneth Campbell. After careful consideration of the evidence, taken as a whole, I am satisfied beyond reasonable doubt that the accused committed the acts and that this is the only conclusion available on the evidence.

Verdicts

126․For the above reasons, I return the following verdicts:
1.The accused is guilty of Count 1.
2.The accused is guilty of Count 2.
3.The accused is guilty of Count 3.
4.The accused is guilty of the transfer offence of CC2022/4945 (possess weapon with intent).

I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate: A Turner

Date: 30 October 2023