Director of Public Prosecutions v Curtis-Hodge
[2025] ACTSC 373
•22 August 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Curtis-Hodge |
Citation: | [2025] ACTSC 373 |
Hearing Date: | 19 August 2025 – 20 August 2025 |
Decision Date: | 22 August 2025 |
Before: | Taylor J |
Decision: | See [106]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – trial by judge alone – identification – circumstantial case – aggravated burglary – joint commission theft – drive motor vehicle without consent – verdict – not guilty |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45A, 308, 312, 318(2) Evidence Act 2011 (ACT), ss 38, 128, 191 Supreme Court Act 1933 (ACT), ss 66B, 68C(2) |
Cases Cited: | Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 Festa v The Queen [2001] HCA 72; 208 CLR 593 R v Kirby [2000] NSWCCA 330 Wolter v Broomhall [2023] ACTSC 331 |
Parties: | Director of Public Prosecutions (Crown) Jay Lindsay Curtis-Hodge ( Accused) |
Representation: | Counsel C Muthurajah ( DPP) A Kernaghan ( Accused) |
| Solicitors ACT Director of Public Prosecutions Good Legal Lawyers ( Accused) | |
File Number: | SCC 295 of 2024 |
TAYLOR J:
Introduction
1․This is a trial by judge alone. The accused, Mr Jay Lindsay Curtis-Hodge, signed an election on 5 March 2025 to be tried by judge alone pursuant to s 66B of the Supreme Court Act 1933 (ACT).
2․The accused was charged with the following offences on an indictment dated 26 February 2025:
(a)Count 1 (CC2024/1729): aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT)
(b)Count 2 (CC2024/1731): joint commission theft contrary to s 308 of the Criminal Code by virtue of s 45A of the Criminal Code
(c)Count 3 (CC2024/6926): joint commission theft contrary to s 308 of the Criminal Code by virtue of s 45A of the Criminal Code
(d)Count 4 (CC2024/1732): drive motor vehicle without consent contrary to s 318(2) of the Criminal Code
3․The trial commenced before me on 19 August 2025. The accused was arraigned and entered pleas of not guilty to each count.
4․In considering my verdict, I must take into account any warning or direction which would have been given or any comment which would have been made to a jury in the proceedings, should this matter have been tried before a jury pursuant to s 68C(3) of the Supreme Court Act.
5․In accordance with s 68C(2) of the Supreme Court Act, I now provide the following reasons which include the principles of law I have applied and the findings of fact that I have made. For the reasons that follow, I have concluded that the accused should be found not guilty on each count on the indictment.
Prosecution case
6․In summary, the prosecution alleged that on 25 September 2023, the accused and co-offender Mr Craig Paterson entered an apartment in Braddon, ACT as trespassers. Mr Paterson was sentenced on 15 August 2025 after entering pleas of guilty in relation to charges arising from his part in the offending.
7․Whilst at the property, the men stole property belonging to Ms C, including jewellery and musical instruments. The particulars of the property stolen are listed in Annexure ‘A’.
8․Following this, the accused left the premises driving the complainant’s red Toyota Camry bearing the ACT registration [redacted]. Co-offender Mr Paterson left the apartment complex riding a bicycle.
9․On 21 January 2024 a search warrant was executed at the accused’s residence. During the search, police located an item of clothing worn by the accused during the offending, namely a blue and orange ‘Nike’ branded jacket.
10․On 27 September 2023, police conducted a traffic stop on the red Toyota Camry bearing ACT registration [redacted]. Mr Marc Axelby was driving the vehicle and Ms Leanne Terry was in the passenger seat.
11․Police conducted an interview with Mr Axelby and Ms Terry on 27 September 2023. Ms Terry provided an explanation for how she came to be in possession of the stolen vehicle which involved a man named “Chris Sanchez” who told her to tell police the vehicle had come from a man named “Jay” or “Jay Curtis”. Mr Axelby told police that Ms Terry told him that the vehicle came from a man named “Jay” or “Jay Curtis”.
Agreed facts
12․Pursuant to s 191 of the Evidence Act 2011 (ACT), the following facts were agreed:
(a)At all relevant times, Ms C resided at [redacted] in [redacted] Braddon (‘the [redacted] apartments’).
(b)Ms C left her unit on 14 September 2023 and did not return until 10.00pm on 26 September 2023.
(c)Ms C had two sets of keys/fob to her apartment building; one which she kept with her and the other locked in her letterbox.
(d)At 4:43am on 25 September 2023 two men riding bicycles arrived at the [redacted] Apartments. The two men started looking through the letterboxes, located at the entrance to the building.
(e)One man was wearing glasses, a black hooded jumper with the words ‘I ride sideways’ and dark jeans (‘Male 1’). Male 1 was Craig Alistair Paterson (‘the co-offender’). The other male (‘Male 2’) was wearing a two-tone blue and orange jacket with a grey hood underneath and black tracksuit pants.
(f)Male 1 obtained a key and fob pass to unit [redacted] from the letterbox of unit [redacted].
(g)At 4:51am both males enter the underground car park of the [redacted] Apartments using the fob pass obtained from the letterbox, riding bicycles.
(h)At approximately 5:09am both males used a lift in the underground car park to gain access to the floor level of unit [redacted].
(i)Whilst inside unit [redacted], both males stole a number of items belonging to Ms C annexed at Annexure A.
(j)At 6:19am Male 1 exited the underground car park via the basement roller door riding a bicycle. Male 2 followed driving a red Toyota Camry ([redacted]) (‘the red Toyota’) belonging to Ms C.
(k)Around 10.00pm on 26 September 2023 Ms C returned to the [redacted] Apartments. Upon arrival she noticed that her locked letterbox had been forced open and her spare key and fob were missing.
(l)Upon arrival to her unit, she noticed a number of items missing which are contained in annexure ‘A’.
(m)On 27 September 2023 police conducted a traffic stop on the red Toyota. At the time Marc Axelby was driving the vehicle while Leanne Terry was in the passenger seat.
(n)On 17 January 2024 police obtained a search warrant to search the residence at [redacted] 85 Northbourne Avenue, Turner.
CCTV footage from the [redacted] apartment complex
13․CCTV footage taken from inside the lobby area of the [redacted] apartment building was played by the prosecutor as part of her opening with the consent of the accused.
14․Footage recorded by a CCTV camera located inside the lobby area of the [redacted] apartment complex (‘the first footage’) captured two men attended the letterbox area at the entrance of the lobby. Both men were riding bicycles. The prosecution alleged that ‘Male 1’ was the co-offender, Mr Paterson and ‘Male 2’ was the accused.
15․The first footage captured an area that was well-lit, the footage was in colour and the imagery was clear. The two men on their bicycles were captured moving around in the letterbox area, moving from letterbox to letterbox and rifling around in them. They can be observed talking to and engaging with each other. It can be readily determined that the pair are known to each other.
16․Male 1 was wearing a black hooded jumper and was identifiably smaller in size compared to Male 2. Male 1 was smoking a cigarette. Male 2 was wearing a distinctive, blue and orange coloured jacket. Male 2 had a black backpack style bag on his back and a grey hood pulled over his head. The distance of the men from the CCTV camera did not permit any detailed observation to be made of their faces, though both could be identified as Caucasian in appearance. Neither man was wearing a face covering. Neither man was wearing gloves. At moments in the first footage the face of Male 1 was entirely revealed during the minutes spent in the letterbox area. He was wearing reading glasses. The face of Male 2 was partially revealed but not to an extent which permitted identification of any of his facial features. Both men spent some minutes opening, closing and apparently rifling around in numerous letterboxes before riding off together.
17․Another piece of CCTV footage (‘the second footage’) captured the men riding bicycles into the underground car park area of the [redacted] apartment block together. They could be observed communicating with each other. The face of Male 1 was entirely visible. The face of Male 2 was not. The area captured by the second footage was well-lit, the footage was in colour and was clear allowing for small details to be identified such as the switches on the wall, discoloration on the concrete and scratches on the interior wall. The two men in the second footage were inescapably the same two men from the lobby area of the apartment complex captured in the first footage.
18․Another piece of CCTV footage (‘the third footage’) captured the same two men at an internal lift area. The area captured by the footage was well-lit, the footage was in colour and was clear. Both men can be seen carrying bags that they were not carrying when they were recorded in the first and second footage. Male 1 was carrying a yellow and black “Rebel” branded bag on his back and Male 2 was carrying a very large duffle style bag on his back with the words “Gray-Nicolls” inscribed along the right side. Whilst in the lift area Male 2 moved so that his face was turned almost directly to the camera and his face remained visible for seconds.
19․Another piece of CCTV footage (‘the fourth footage’) captured Male 1 riding his bicycle out of the underground carpark in the apartment complex and interacting with the driver of a red vehicle which drove up behind him toward the exit of the car park area. The face of Male 1 is revealed entirely. Inside the vehicle the footage permits an observation of the driver to the extent that the same distinctive jacket worn by Male 2 in the earlier footage can be identified. A bicycle can be observed in the backseat of the vehicle as well as an item consistent with the large bag Male 2 was recorded carrying in the third footage.
Summary of the evidence
Craig Paterson
20․Mr Paterson’s evidence was brief. After immediately declaring that he was not going to give any evidence in the proceedings, Mr Paterson eventually confirmed that he had recently been sentenced for his part in a burglary and theft at the [redacted] apartments on the basis that he had committed it with “another male”. He indicated that he was not prepared to give any further evidence including the identity of the man with him when he committed the offences though did point to the accused in the court room and declare “I will tell you that it was not that man there, and that - nothing more”. Sensibly in the circumstances, the prosecutor did not pursue an application pursuant to s 38 of the Evidence Act 2011 (ACT). Mr Kernaghan did not require Mr Paterson for cross-examination and Mr Paterson was returned to custody.
Leanne Terry
21․Ms Leanne Terry recalled being stopped by police when she was a passenger in a red Toyota being driven by Mr Marc Axelby on 27 September 2023. She could not recall the registration details. Ms Terry said police informed them that it was a stolen vehicle.
22․Ms Terry said she first saw the vehicle in Tuggeranong when she collected it. Ms Terry thought she purchased the vehicle 3 or 4 days prior to being pulled over. She explained that she paid $500 to “Chris Sanchez” for the vehicle and she collected the vehicle on the day she purchased it.
23․Ms Terry said she received the keys to the vehicle from “Chris” at his house in Monash. She then went to a hotel “behind the Vikings Club” in Tuggeranong to collect the vehicle. No-one was with the vehicle when she collected it. “Chris” did not tell her where the vehicle was from.
24․Ms Terry said she sent an image to “Chris” of “all the police around” when the vehicle was stopped by police. The image was accompanied by the question, “what is this?”. Ms Terry said Mr Sanchez replied “Just don’t say me. Don’t say, like, I had any involvement and say this other person’s name”. Ms Terry said he told her to tell the police the name “Jay”. Later in her evidence Ms Terry said Mr Sanchez said “just don’t involve me and say this Jay Curtis – you bought the car off Jay Curtis”. Ms Terry recalled police taking an image of her phone of the messages she exchanged with “Chris” about the vehicle.
25․Ms Terry confirmed that she spoke to police about the vehicle. She said that she “assumed” that her conversation with them was being recorded. Ms Terry explained that she had been given a copy of the transcript of her conversation with police. Upon being provided with a copy of the transcript in the witness box Ms Terry agreed that she told police that she received the vehicle from “Jay Curtis”.
26․Ms Terry explained that she did not know a person called Jay Curtis and said that she “still doesn’t”.
27․In cross-examination Ms Terry confirmed that Mr Axelby was driving the vehicle when it was pulled over by police and that she was in the front passenger seat. She agreed police spoke to them and it was around this time that she began texting Mr Sanchez. She recalled Mr Axelby being outside the vehicle at some point. She was not certain if police noticed that she was texting. Ms Terry described being taken to a police station. Police took a photo of her messages with Mr Sanchez at the police station after she had participated in an interview. She said she presented the messages to police. Ms Terry said that she no longer owns the mobile phone and no longer has access to any messages from that mobile phone.
Marc Axelby
28․Mr Axelby could “vaguely” recall being stopped by police driving a vehicle on 27 September 2023. Mr Axelby objected to answering any further questions and without objection from either counsel he was granted a certificate pursuant to s 128 of the Evidence Act.
29․Mr Axelby recalled the vehicle as a red Toyota Camry. He did not recall the number plate. Mr Axelby said police told him the vehicle was stolen and arrested him. Mr Axelby said he first saw the vehicle out the front of his “mum’s house” in Rivett.
30․In the vehicle with Mr Axelby at the time it was stopped was his ex-partner Leanne Terry and a person he only knows at “Boonga”.
31․The prosecutor sought and was granted an application pursuant to s 38 of the Evidence Act to cross-examine Mr Axelby. Mr Kernaghan did not oppose it.
32․Mr Axelby could not remember what he told police. He said he was “under the effect of all sorts of substances” when he participated in an interview with police. He said he “must have been” well enough to interview with police. He agreed that he told police he was not under the influence of alcohol or drugs when he participated in the interview with them and that he was well enough to proceed with an interview. He did not agree that his memory of the event would have been better at the time he spoke to police.
33․Mr Axelby stated that he thought Leanne told him that she had got the car from a person named “Jay Sanchez, from Monash”. He agreed that he told police that Leanne told him that she got the car from “Jay” in Monash. He could not actually remember giving police this information, but he agreed that it was his answer recorded in the transcript of his interview with police.
34․Mr Axelby was provided with a copy of the transcript of his interview which did not assist him memory. He agreed the transcript recorded him telling police that “Leanne bought the car off, what's his name, Jay, Jay someone. Was it Jay? I think she said - no, it was some Jay lad, she said she bought the car off him” and that “the car was legit”.
35․Mr Axelby said that Leanne told him this when the police pulled the vehicle over and not before. Mr Axelby declared that “he did not think the car was stolen”.
36․Mr Axelby agreed in cross-examination that he said initially in his evidence that Ms Terry used the name “Jay Sanchez” in the vehicle when police stopped them. He confirmed this was his memory of what Leanne said in the car when they were pulled over.
37․Mr Axelby agreed that his memory of the event was that Leanne made a phone call while they were in the car. Mr Axelby said he thought Leanne was calling “Jay Sanchez” at the time she made the call in the vehicle. He could not recall whether she also “texted” someone while they were pulled over by police.
Christobal Sanchez
38․Mr Sanchez gave evidence that he knew Ms Terry in September 2023. He said he did not know the accused. Mr Sanchez could not recall selling a vehicle to Ms Terry in September 2023.
39․The prosecutor sought and was granted leave to cross-examine Mr Sanchez pursuant to s 38 of the Evidence Act. The application was not opposed.
40․Mr Sanchez rejected a suggestion that he sold Ms Terry a red Toyota Camry in September 2023. He said he advised her that there was a “car for sale” but he did not in fact sell it to her. The car he “advised” her about was a red Toyota Camry. He could not recall the number plate.
41․He said he came to learn about the vehicle for sale when he was “at the club one day” and an “old fella” named “Craig” told him about a vehicle that was for sale. Mr Sanchez then told Leanne about the vehicle that Craig was selling. He said “Craig” was an old friend of his. He said he did not tell Leanne about “Craig” he only told her about the vehicle. He rejected the suggestion that Ms Terry collected the keys to a vehicle from him at his house in Monash.
42․Mr Sanchez stated that he put Leanne in touch with “Craig”. When asked whether Ms Terry contacted him on 27 September 2023 “about the car”, Mr Sanchez answered “I’m not sure. I can’t remember. I don’t think so. Mr Sanchez accepted that “at some stage” Ms Terry told him that she had been “pulled over by police”.
43․The prosecutor asked Mr Sanchez, “and she asked you about where the car came from?” and Mr Sanchez replied “Yes. I had no idea”. Mr Sanchez said he told Ms Terry to ask “Craig” where the car “came from”.
44․Mr Sanchez rejected the suggestion that he told Ms Terry the vehicle came from “Jay Curtis”. He said he only told Ms Terry that there was a car for sale and that the only person he had ever mentioned to Ms Terry was “Craig” stating “that’s all I could tell her”.
45․He said he does not know a “Jay Curtis” or a “Jay Curtis-Hodge”. Mr Sanchez rejected the suggestion that he told Ms Terry that the vehicle “came from Jay Curtis”. He also rejected the suggestion that he was nominating “Craig” as the source of the vehicle in his evidence because he was “trying to protect him [Jay Curtis]”. Mr Sanchez said he did not “know him to protect him”. In response to a question about whether he knew Jay Curtis “now”, Mr Sanchez replied “No, I haven’t had anything to do with him really”.
Constable Andrew Spence
46․Constable Spence confirmed that he was the informant for these proceedings.
47․On 26 September 2023 he attended the [redacted] apartments in Braddon as a result a report that a burglary had occurred. There he met with the complainant and went inside her residence at Unit [redacted]. The apartment was in a state of disarray. The complainant advised him that many items had been moved, and a number of items were missing from the apartment. The complainant later provided a detailed list of items stolen from the apartment which became annexure ‘A’ (as reproduced at Annexure A).
48․Among his tasks Constable Spence updated a database to identify the complainant’s vehicle as having been stolen and obtained the CCTV footage from the [redacted] apartments. He produced two screen shots from the CCTV footage which were tendered.
49․Constable Spence obtained a search warrant for the residence of the accused. It was executed on 21 January 2024. Constable Spence was wearing a body worn camera (BWC) which was activated when he executed the search warrant.
50․A portion of the BWC footage was played. Constable Spence identified a bedroom in the unit on the BWC footage. The unit was a single bedroom unit, number [redacted] located in Havelock House, at 85 Northbourne Avenue in Turner. The unit was locked when police attended to execute the warrant and there was no-one present in the unit.
51․Constable Spence identified in the BWC footage the moment a jacket (exhibit P4) was discovered by police searching the bedroom of the unit.
52․Two photographs taken of the jacket when it was discovered were tendered.
53․Constable Spence identified the moment in the BWC footage when police located documents in the bedroom of the unit. The documents found were bank statements in the name of “Jay John Curtis” and “Jay Lindsay John Curtis”.
54․Constable Spence recalled that the jacket was found along with “numerous other clothing items” in a black bag found in a cupboard of the bedroom and he thought the documents were found on a small table in the bedroom on the unit “just sitting out and about”.
55․As part of his investigation Constable Spence obtained three photographs taken of the accused in August and November 2022 (exhibit 9).
56․In cross-examination Constable Spence identified a grey ‘Everlast’ hoodie style jumper that was not seized but was photographed during the search warrant. It too was located in the bedroom of the unit.
57․Constable Spence could not recall whether there was other ‘business’ documents located during the execution of the search warrant.
Directions and elements of the offences
58․The directions I have given myself as well as the elements of the offences are contained in annexure ‘B’ and ‘C’ to this judgment, respectively.
Consideration
59․At the outset of the trial, consistent with the agreed facts which came to be tendered, Mr Kernaghan for the accused identified that the only issue in contest was the identification of Male 2. Mr Kernaghan submitted that after a consideration of all the evidence in the prosecution case, I would be left with a doubt as to whether Male 2 was the accused.
60․The prosecution contended that the combined effect of the evidence was proof beyond reasonable doubt that the accused was Male 2 depicted in the CCTV footage.
61․The agreed facts lead to an inevitable conclusion that each element of each offence on the indictment has been established beyond reasonable doubt. There was no contest that the evidence established beyond reasonable doubt that the two men captured in the footage were acting in furtherance of an agreement between them to commit the offences. It is the only reasonable conclusion that can be drawn from the nature and extent of their conduct captured in the footage.
62․I am satisfied beyond reasonable doubt, by reference to the elements of the offences as set out in annexure ‘C’, that on 25 September 2023 the following offences were committed by Male 2:
(a)Aggravated burglary;
(b)Theft (by joint commission);
(c)Theft (by joint commission); and
(d)Drive motor vehicle without consent.
63․This remains only one issue to resolve.
Has the prosecution proved beyond reasonable doubt that ‘Male 2’ was the accused?
64․For the reasons which follow, I am not satisfied beyond reasonable doubt that the prosecution has established that Male 2 was the accused.
The civilian witnesses
65․The prosecution case included four civilian witnesses. I have formed the view that I cannot rely on any evidence given by Mr Paterson or Mr Sanchez.
66․Mr Paterson was immediately uncooperative after being brought to the witness box. He reluctantly followed my request to cooperate though after taking the oath in full added the words “except when I refuse to answer questions”. Mr Paterson confirmed his participation with another man in a burglary and theft at the [redacted] apartment complex and a sentence of imprisonment had been imposed upon him as a result. Mr Paterson’s rather dramatic assertion, after refusing to nominate with whom he committed the offences that “it was not that man there” pointing to the accused, cannot take on any significance. Mr Paterson’s assertion, whilst not the subject of challenge, must be viewed in the context of the limited evidence he was prepared to give about the person who was involved in the offending with him. He was unequivocal that he would say nothing further. His declaration that the accused was not involved, in those circumstances, cannot carry weight.
67․Mr Sanchez’s evidence in my view was entirely designed to distance himself from any direct involvement in the purchase by Ms Terry of the stolen vehicle. He was plainly constructing a narrative of events which he considered would achieve that end. His evidence was without any sense of conviction and at times, was internally inconsistent. For example, he first asserted that he only told Ms Terry about the vehicle, not about “Craig” and then immediately described putting Ms Terry in touch with “Craig” on the day “Craig” told him about the vehicle at the club. I did not believe him when he insisted that Ms Terry did not collect the keys to the vehicle from him because as will become apparent, I accept Ms Terry’s evidence about this interaction.
68․I am satisfied that Mr Sanchez’s evidence was unreliable because he was driven by a desire to limit his own involvement with the stolen vehicle, though he was not challenged as to his assertion that he did not know the accused. It was not put to him that he told Ms Terry to nominate “Jay Curtis” as the person from whom she purchased the vehicle because the accused was in fact his source of the vehicle.
69․Mr Sanchez was not asked if Mr Paterson or Mr Axelby are known to him. There is no evidence which might link him to the accused, or which undermined his assertion that he could not give evidence designed to “protect” the accused because he does not know him. Mr Sachez’s evidence was of no assistance in determining the sole fact in issue.
70․Similarly, Mr Axelby’s evidence was of no assistance to the resolution of the fact in issue. Any information he obtained in relation to the source of the vehicle was through Ms Terry. Ms Terry’s source in turn, was Mr Sanchez. There was no evidence linking Mr Axelby to the accused or to Mr Sanchez or to Mr Paterson. Mr Axelby was not asked whether any of these people were known to him. Whilst he gave evidence cautiously this seemed to be the result of a concern about his own knowledge of the stolen status of the vehicle and any potential repercussion for him. It was not suggested to him that he was motivated to protect the accused. I accept his evidence that at some point when the vehicle was pulled over Ms Terry identified to him that a person named “Jay” was the source of the vehicle because this was consistent with Ms Terry’s evidence, to whom I now turn.
71․Ms Terry appeared to be doing her best to give evidence. She did not appear to me to be equivocating or exaggerating. She did not seek to distance herself from involvement with the stolen vehicle. She did not hesitate in her answers and appeared to be giving evidence about the events as best she could from her memory. She readily explained the circumstances in which she came to be in possession of the vehicle.
72․I accept her unchallenged evidence that she paid $500 to Mr Sanchez for the vehicle, collected keys from him at his home and then collected the vehicle from a car park in Tuggeranong. I also accept her evidence that she messaged Mr Sanchez when the vehicle was stopped by police. I accept her evidence that Mr Sanchez told her to keep him out of it and to tell police that a person called “Jay Curtis” was the source of the vehicle. I am satisfied that this was what Ms Terry did.
73․I accept her unchallenged evidence that she did not know the accused at the time she purchased the vehicle and she still does not know the accused.
74․In the end though, Ms Terry’s evidence was of no assistance in coming to resolve the sole fact in issue.
75․Whilst I have accepted that she told police that “Jay Curtis” was the source of the vehicle, the source for the nomination of that person was Mr Sanchez. Ms Terry’s faithful recitation of what Mr Sanchez told her to tell police about the source of the vehicle says nothing about the truth of the assertion, where she herself had no knowledge of it.
76․Significantly there is a fine, though important point to observe with respect to Ms Terry’s evidence about the nomination by Mr Sanchez of “Jay Curtis”. Ms Terry’s evidence was not that Mr Sanchez identified “Jay” or “Jay Curtis” as the person who was his source for the stolen vehicle, rather her evidence was that Mr Sanchez told her to say to police that he was.
77․Whilst I am satisfied that Mr Sanchez did tell Ms Terry to “say” she “bought the car off Jay Curtis”, I am not satisfied that I can rely on that assertion for the truth of it. Whilst Mr Sanchez was entirely unreliable, he was not challenged as to his assertion that he did not know the accused. There was no evidence otherwise linking them or which would cast doubt on his claim not to know the accused. His entreaty to Ms Terry to say to police that “Jay Curtis” was her source for the vehicle was not a representation from him asserting that person in fact as the source of the stolen vehicle. In circumstances where Mr Sanchez plainly revealed his own desire to Ms Terry not to be identified to the police, his direction to her to say that she “bought the car off Jay Curtis” could have been for any number of reasons unconnected to the truth and the accused.
78․I cannot place any weight on the evidence adduced from the civilian witnesses in coming to resolve the sole fact in issue.
79․The effect of that conclusion is that the prosecution case rests on the footage obtained from CCTV cameras at the [redacted] apartment complex and the discovery by police of a jacket, identical in appearance, to the one worn by Male 2 when the offences were committed, at a residence connected to the accused some months later.
80․This is a matter where the prosecution requires that I assess the appearance of Male 2 captured in the CCTV footage, the accused’s appearance in images taken of him on 5 August 2022 and 29 November 2022, and the appearance of the accused in these proceedings. Those images are reproduced below.
The CCTV footage
81․I bear in mind the direction with respect to ‘identification’ and the need for special caution. Mistakes in relation to identity can occur even when people are known to each other. The accused is not known to me. My opportunity to observe his appearance arises from the three 2022 still images of him in evidence and when he has appeared before me over the two days of these proceedings and included occasions where he has been required to walk in and out of court.
82․I first observe that all the CCTV footage was good quality. The footage was clear, in colour and was not obviously distorted or blurred. All the CCTV footage captured areas that were well-lit. The clarity of the CCTV footage permits identification of smaller details such as some writing, the general appearance of signage, marks of the concrete surface and the illumination of the button to operate the lift.
83․It was the third footage which allowed the best opportunity to observe the face of Male 2. In all the other footage his face was either entirely or partially obscured. The third footage captured Male 2 turning to face the CCTV camera so that his face was almost entirely visible to the camera though not directly ‘front on’ to it. Male 2 was not wearing a face covering. Male 2 was wearing a hood and what appeared to be a baseball style cap. The hood was pulled up and over Male 2’s head. His hairline and hair were not visible.
84․From the third footage, a still image of the moment Male 2 turned to face the CCTV camera was captured and enhanced (‘the enhanced image’). The enhanced image, effectively ‘zoomed’ in on Male 2 so that he appeared closer to the camera that in the third footage. The result of that process was before me at exhibit P2. As I have already observed Male 2 was not directly facing the camera and was captured slightly side; the result of which was the left-hand side of his face not being entirely revealed because of the hood over his head. It permits some general observations to be made of the facial features of Male 2. For example, it was clear that the blue jacket worn by Male 2 had some writing or an insignia on the left chest area, but the quality of the image did not permit the identification of any words, letters or writing. Additionally, the left hand of Male 2 was visible in the enhanced image, but the individual fingers were not precisely outlined because of the poor clarity of the image.
85․The facial features of Male 2 in the enhanced image were blurred and grainy. There is a reduction in the sharpness of the image when compared with the actual footage. The result of wearing a cap was that only the face of Male 2 from just above his eyebrows was visible. The eyes of Male 2 appeared almost entirely white in the image with his left eye heavily shadowed. The line of his mouth, whilst generally identifiable, was not outlined to an extent that its shape could be accurately described. Male 2 appeared to be clean shaven. The nose of Male 2 appeared straight and his chin, small though perhaps slightly rounded. Male 2 appeared fairly tall and neither overweight, nor particularly slim.
86․The moving imagery from the third footage does not provide better opportunity to more closely or more precisely observe the physical characteristics of Male 2 even when it was paused at the precise moment Male 2 turned to face in the direction of the CCTV camera. Whilst the third footage was not blurred or grainy like the enhanced image, Male 2 is further from the camera in the footage which limits the clarity of the features which can be observed.
87․There were two images before me taken of the accused on 5 August 2022 and one image of him taken on 29 November 2022. The person in all three images matched exactly the appearance of the accused in these proceedings. I am satisfied that the three images taken in 2022 are images of the accused. The appearance of the accused’s face in these proceedings is not in any way different to the appearance of his face in the three 2022 images.
88․I have had a clear, unobstructed view of the accused over the two days of the trial. Consistent with the 2022 images, I have noted that he does not have any particularly distinctive physical characteristic such as a tattoo or any other kind of face marking or feature which is especially noteworthy, unique or memorable. That said, the accused’s facial features are such that he can be distinguished from another adult male.
89․The accused’s facial features are symmetrical and include a strong, straight nose with a tip that is broader at the base, small dark coloured eyes, high cheekbones, eyebrows set closely to his eyelids, a long oval shaped jawline which ends in a small, square chin with a distinctive straight edge. The accused has closely cropped greying hair, and he was clean shaven during the trial.
90․The accused’s build, depicted in one of the 2022 images and after observing him walk in and out of court as well as when he was seated in the dock, was not inconsistent with the build of Male 2. Male 2 did not move with any indicators of frailty, disability or have any distinctive feature of his gait. These observations are consistent with my observations of the accused though my opportunity to observe him moving around was limited.
91․The quality of the CCTV footage was good, but it did not enable a conclusion as to whether Male 2 was the accused. The enhanced image from the CCTV footage whilst providing better opportunity for a comparison between the appearance of the accused and Male 2, similarly did not enable a conclusion that the Male 2 was the accused. Nor did the CCTV footage and the enhanced image rule out the accused being Male 2.
92․I am satisfied that the CCTV footage and the enhanced image established that the appearance of the accused was not inconsistent with the appearance of Male 2.
The blue and orange jacket
93․On 21 January 2024, police executed a search warrant at a residence identified by the informant to be the accused’s residence. The residence, a single bedroom unit at Havelock House in Turner, was locked when the warrant was executed. Inside the unit police discovered a jacket identical in appearance to the jacket worn by Male 2 and two bank statements in a version of the accused’s name, being “Jay John Curtis” and “Jay Lindsay John Curtis”. The bank statement in the name of “Jay John Curtis” was for the period 14/12/22 to 16/6/23 and nominated an address in Harden, NSW. The other bank statement was for the period 01/01/23 to 14/06/23 and did not include an address.
94․The informant’s assertion that the residence was the accused’s was not the subject of direct challenge though there was no evidence adduced as to whether the accused was the only tenant of the single bedroom unit, the period over which he had lived at the unit and whether the accused was the only person at Havelock House with access to the unit.
95․The BWC footage extended over twenty-five minutes and forty-four seconds. In a portion of BWC footage not played when the informant gave his evidence but included in the footage which was tendered, the informant could be seen to access the room with a swipe card. There was no evidence as to how the informant came to be in possession of the swipe card or the basis upon which he understood the unit at Havelock House to be the accused’s premises. The BWC footage revealed the door to the unit to be one of a number along a hallway located in Havelock House. Once inside the small bedroom unit there was another door near the window on the opposite side of the entry door to the unit which was not subject of any evidence and does not appear to have been accessed in the search.
96․The blue and orange jacket was found folded in a black bag with numerous items of clothing. The sound on the BWC footage is turned on and off over the duration of the search. Any commentary by the officer as she unpacked the other items of clothing from the bag in which the jacket was found cannot be heard. No other items of clothing were seized by police and no other item connected to the burglary was located in the unit.
97․The blue and orange jacket was not the subject of any forensic investigations such as DNA testing.
98․The jacket seized from the unit at Havelock House was identical to the jacket worn by Male 2 when the offending at the [redacted] apartment complex with Mr Paterson occurred. I accept that the accused had, at some point prior to 21 January 2024, resided at the unit where the search warrant was executed. It has not been established that the accused was the only person with access to that unit.
99․Mr Kernaghan made an accurate submission that there was no evidence adduced as to the prevalence of the ‘Nike’ brand blue and orange jacket in the community. It was nonetheless, a distinctive item of clothing. That said, in my view the more significant point is that there was almost four months between the commission of the offences and the discovery of the jacket in the unit at Havelock House.
100․The discovery of the jacket in those circumstances in my view cannot add significant weight to the assessment of whether the accused was Male 2.
Conclusion
101․A circumstantial case requires consideration of the whole of the evidence to determine whether the only reasonable conclusion is the guilt of the accused beyond reasonable doubt. There are two ‘strands in the cable’ of this circumstantial case. The number of strands in the cable is of no moment and each strand need not be established beyond reasonable doubt; it is the cumulative effect or the combined strength of the strands that must be considered.
102․There was no forensic evidence or other connection adduced between the accused and the recovered stolen motor vehicle. Despite the CCTV footage demonstrating that neither man wore gloves when they touched numerous letterboxes at the [redacted] apartment complex, when they entered the underground carpark in the second footage and when they entered the lift in the third footage, there was no forensic evidence linking the accused to the [redacted] apartment complex or to the inside of the complainant’s apartment. There was no evidence adduced of any connection between the accused and Mr Paterson either before or immediately after the commission of the offences.
103․Neither separately nor in combination did the CCTV footage and the enhanced image enable a conclusion that Male 2 was, or bore close or striking resemblance to, the accused. The most that was established by the CCTV footage and the enhanced image, for the reasons I have outlined, was that the accused’s appearance was not inconsistent with the appearance of Male 2. Put another way, after comparison of the accused’s appearance to the appearance of Male 2 in the CCTV footage and the enhanced image, I am satisfied that Male 2 might have been the accused.
104․As a consequence of the circumstances in which the jacket was discovered, it did not lend substantial support for the accused being Male 2. This was the only other evidence adduced in the prosecution case which might have supported a conclusion that Male 2 was the accused.
105․After an assessment of the cumulative effect of the evidence I am not satisfied beyond reasonable doubt that the accused was Male 2. The evidence has not excluded a reasonable inference that the accused was not Male 2. It follows that the prosecution have not proved the offences to the requisite standard, and the accused is entitled to be acquitted of each count on the indictment.
Verdicts
106․For these reasons, I return the following verdicts:
(1)The accused is not guilty of Count 1.
(2)The accused is not guilty of Count 2.
(3)The accused is not guilty of Count 3.
(4)The accused is not guilty of Count 4.
| I certify that the preceding one hundred and six [106] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor .................. Associate: P Beohm Date: 22 August 2025 |
ANNEXURE A – list of stolen items
| Description of property | Value |
| Red Toyota camry | $9,000.00 |
| Phone charging cable | $35.00 |
| Blunt x Artist folding Metro umbrella | $149.00 |
| 2 x walking sticks | $100.00 |
| Bicycle - specialized Ruby women's road bike, white with blue trim | $2,500.00 |
| Belkin Magnetic Fitness Mount iPhone holder for bike | $49.95 |
| Bike lights - headlight | $85.00 |
| 2 x Bike light USB cables | $40.00 |
| Repair bag and contents including bag, spare tube, patches, pump | $150.00 |
| Bike lock keys | $95.00 |
| Apple computer keyboard | $279.00 |
| Apple magic trackpad | $179.00 |
| Phone and watch charger | $205.95 |
| Laptop adapter | $89.00 |
| iPhone cable | $59.95 |
| iPhone adapter | $58.00 |
| Laptop USB C cable | $49.00 |
| 4 USB port charger | $50.00 |
| 4 socket power board | $20.00 |
| 2 x Apple air tags and cases | $177.90 |
| JBL portable speaker | $158.00 |
| Clarinet - Buffet, plus black backpack case | $1,894.99 |
| Clarinet accessories: reeds, swab, grease | $69.93 |
| Kala spruce-top baritone ukelele with black padded case | $729.00 |
| Koaloha ukelele plus black hard shell case | $3,000.00 |
| Beyerdynamic DT 700 PRO X Closed Back Studio Monitoring headphones | $349.00 |
| Hi-Speed Usb-C To Usb-C Connect | $25.00 |
| Rode NT-USB MINI Studio Quality USB Microphone | $139.00 |
| Maton USB rechargeable clip-on guitar tuner | $29.00 |
| Diamond solitaire ring | $6,647.52 |
| Wedding band | $300.00 |
| Black Tahitian pearl pendant, gold setting, yellow and white gold or platinum chain | $8,357.82 |
| Engagement ring - three diamonds, white gold, 1930s style triple European-cut diamonds 1930s | $5,130.00 |
| Aquamarine ring - emerald cut, platinum | $300.00 |
| Ruby necklace, set in platinum or white gold | $14,493.36 |
| Ruby ring | $10,000.00 |
| Silver Linda Tahija stud earrings | $50.00 |
| Bunya pines artwork in white Ikea frame 40X40cm | $90.00 |
| Handmade frog toy - green fabric | 0 |
| Fairy lights - two sets | $60.00 |
| Wonder woman mousepad | $50.00 |
| Dogstar women's jacket | $400.00 |
| Large Osprey wheeled backpack, grey and black | $649.95 |
| 2 x vibrators | $120.00 |
| Chocolate Lindt block and half a box of Cadbury favourites | $10.00 |
| Canberra Summer gin | $80.00 |
| 4 x bottles of tonic water | $15.00 |
| Totalvalueofproperty: | $66,519.32 |
ANNEXURE B – directions
Onus and standard of proof
107․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
108․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.
109․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
110․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.
Circumstantial evidence
111․The prosecution case against the accused is circumstantial. There is no direct evidence of the accused committing the offences. Instead, the prosecution asks me to draw the inference that the accused was the offender from all the circumstances which have been proved.
112․The prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused committed the offences is the only rational inference that can be drawn from the whole of the circumstances established to my satisfaction by the evidence I accept. Put another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances established by the evidence.
113․In a circumstantial case, all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative.
114․As Baker J observed in Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 at [65], for practical purposes a circumstantial case is sometimes described as a "link in the chain" case or as a "strand in the cable" case. This case is properly characterised as a “strand in the cable” case and it is only the elements of the offence itself which need to be proved beyond reasonable doubt. This is because of the capacity of a body of evidence to have a cumulative effect. It is not necessary for the various factual "strands" to be proved beyond reasonable doubt before they can contribute to the cumulative effect of a body of evidence. While each individual strand may be of insufficient strength to support the weight of the prosecution case, when bound together the whole may be of greater probative force than the sum of its parts.
115․I remind myself that this case, reliant as it is upon indirect, circumstantial evidence, does not result in a case weaker than one that relies upon direct evidence or eyewitness accounts. The question remains in either case; has the prosecution proved its case beyond reasonable doubt? Before I can determine that the prosecution has proved the elements of the offence to the requisite standard, I must be satisfied that the inference that the accused is the person who committed the offences has been proved beyond reasonable doubt. If I am not satisfied of this inference beyond reasonable doubt, I must acquit.
Identification evidence
116․As Baker J pointed out in Wolter v Broomhall [2023] ACTSC 331 at [74] “although s 116 of the Evidence Act does not apply where the evidence requires a comparison by the Court rather than evidence of identification by a witness, the common law concerns about reliability of such evidence which underlie s 116 apply with added force to such evidence: see R v Kirby [2000] NSWCCA 330 at [43]-[44] and [57].”
117․In this case the prosecution asks that I draw the conclusion that Male 2 in the CCTV footage (from which the enhanced image was produced) was the accused by reference to three images taken of him in August and November 2022 and to a lesser degree by reference to his appearance in Court. I must exercise special caution before I draw the conclusion that the accused was Male 2 in the CCTV footage. Special caution is required because the experience of the law is that mistakes concerning identity are made and can be easily made.
118․Special attention or care is necessary because of the possibility I might be mistaken. The experience of criminal courts, over many years, both in Australia and overseas, has demonstrated that conclusions drawn about identification may turn out to be unreliable. There have been some notorious cases over the years in which identifications have been found to be wrong after innocent people have been convicted. I must examine the evidence very carefully, conscious that there have been many occasions where conclusions about identification reached by judicial officers have been shown to be wrong.
119․In circumstances where I am asked to make an assessment of the accused’s physical appearance in court as well as his appearance in still images and compare it to the physical appearance of the person in the CCTV footage (and the enhanced image), I bear in mind the particular risks of in-court identification as it is “usually performed in circumstances that strongly suggest the answer that is ultimately given”: Festa v The Queen [2001] HCA 72; 208 CLR 593 at 601 [18].
120․In the course of my consideration, I will refer to specific aspects of the evidence which may undermine the reliability of it with respect to identity including the quality of the images, the quality of the footage and any other limitations on the opportunity provided to assess the appearance of the person depicted.
ANNEXURE C – elements of the offences
Count 1 – aggravated burglary
121․The elements of the offence of aggravated burglary are:
(a)The accused entered or remained in a building
(b)The accused intended to enter or remain in a building
(c)The accused was a trespasser i.e. has no permission to enter or remain in the building
(d)The accused was reckless as to whether his/her entry into or remaining in the building is without permission
(e)At the time of entering or remaining on the property, the accused intended to commit theft of any property in the building
(f)The accused was ‘in company’ at the time of committing the burglary
(g)The accused was reckless as to the fact of being ‘in company’ with one or more persons.
Count 2 and 3 – joint commission theft
122․The elements of joint commission theft are:
(a)The accused and at least one other person entered into an agreement to commit an offence
(b)The accused intended that an offence would be committed under the agreement
(c)An offence is committed ‘in accordance with the agreement’ or an offence is committed ‘in the course of carrying out the agreement’ where:
1․ One or more of the parties appropriated something
2․ The something appropriated was ‘property’
3․ The property belonged to another person
4․ The appropriation was dishonest according to standards of ordinary people
(d)For an offence committed ‘in the course of carrying out the agreement’ the accused was reckless about the commission of the offence that another person in fact commits in the course of carrying out the agreement
Count 4 – drive motor vehicle without consent
123․The elements of drive motor vehicle without consent are:
(a)The accused drives a motor vehicle
(b)The accused intends to drive the motor vehicle
(c)The motor vehicle belongs to someone else
(d)The vehicle was dishonesty driven by someone else without the consent of the person to whom it belongs
(e)The accused is reckless as to whether the vehicle was dishonestly taken by someone without the consent of the person to whom it belongs
(f)The driving in the vehicle is dishonest according to the standards of ordinary people
(g)The accused knows the driving in the vehicle is dishonest according to the standards of ordinary people
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