Director of Public Prosecutions v Riek
[2020] VCC 1893
•30 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00963
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOSES RIEK |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 November and 24 November 2020 | |
DATE OF JUDGMENT: | 30 November 2020 | |
CASE MAY BE CITED AS: | DPP v Riek | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1893 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Judgment – Trial by judge alone – Aggravated home invasion – Aggravated burglary in the alternative – Issue in dispute whether the accused entered the home – Predominantly circumstantial prosecution case – CCTV footage
Legislation Cited: Crimes Act 1958 (Vic); Criminal Procedure Act 2009 (Vic); Jury Directions Act 2015 (Vic); COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic)
Judgment: Verdict – Guilty on charge 1
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr R. Pirrie | The Office of Public Prosecutions |
| For the Accused | Ms E. Clark | James Dowsley & Associates |
HIS HONOUR:
Introduction
The accused, Moses Riek, is charged on Indictment L10833110 with aggravated home invasion, contrary to s 77B of the Crimes Act 1958 (Vic) (‘Crimes Act’), theft, contrary to s 74 of the Crimes Act, and three counts of conduct endangering persons, contrary to s 23 of the Crimes Act.
On 23 November 2020, the accused pleaded not guilty to one charge of aggravated home invasion, and guilty to one charge of theft and three charges of conduct endangering persons.
Following consideration as to whether or not a charge of aggravated burglary, contrary to s 77 of the Crimes Act, is an alternative verdict in respect of a charge of aggravated home invasion, the prosecution filed over a further Indictment L10833110.1 containing one charge of aggravated burglary in the alternative to charge 1.
On 24 November 2020, the accused was rearraigned and pleaded not guilty to one charge of aggravated home invasion, guilty to one charge of aggravated burglary, guilty to one charge of theft, and guilty to three charges of conduct endangering persons. Following this arraignment, the prosecution indicated that it did not accept the plea of guilty to the charge of aggravated burglary in respect of the conduct relied upon to prove the charge of aggravated home invasion. Accordingly, it was agreed by the parties that the judge alone trial would proceed in relation to the charge of aggravated burglary and the charge of aggravated home invasion, but the accused ought not be found guilty of both of those charges.
The charges arise from events said to have taken place on 2 April 2020. The accused allegedly entered a home in Wantirna South with the intent to steal. It is alleged the accused was in the company of two or more co-offenders who had with them weapons, namely wooden sticks and a metal pole, and knew or was reckless as to whether there was or would be another person present in the home (charge 1, alternative charge 2). Four people were home. They were the complainants, Mina Birt and Jonelle Birt, and their two children.
The accused is alleged to have stolen a car belonging to Mina Birt. The car was a black C43 Mercedes (charge 3).
The accused is then alleged to have recklessly driven through an intersection against a red light, colliding with a Franna MAC25 Crane Truck, placing three people in danger of serious injury (charges 4, 5 and 6). Those people were Oliver Bana, Oscar Ranford[1] and Edwin Okot.
[1] Oscar Ranford is a pseudonym
The accused pleaded not guilty to charge 1 on the Indictment.
Trial by judge alone
The accused made an application to be tried by judge alone pursuant to s 420D of the Criminal Procedure Act 2009 (‘the CPA’). The accused’s application was heard and determined by her Honour Judge Gaynor and was granted on 9 November 2020.
Section 4A of the Jury Directions Act 2015 (‘JDA’) applies in this case by virtue of the introduction of s 420ZF into the CPA by the enactment of the COVID-19 Omnibus (Emergency Measures) Act 2020.[2] Section 4A of the JDA provides that the Court’s reasoning with respect to any matter in which Part 4, 5, 6 or 7 of the JDA must be consistent with how a jury would be directed in accordance with the JDA. Further, it must not accept, rely on or adopt a statement or suggestion that the JDA prohibits a trial judge from making, or a direction that the JDA prohibits a trial judge from giving.[3]
[2]Chapter 9 of the CPA which introduced trial by judge alone where set to be repealed following 6 months of its enactment. The CPA was further amended by the COVID-19 Omnibus (Emergency Measures) and Other ActsAmendment Act 2020 on 21 October 2020 to extend the time the mode of trial is available, with its repeal due on 26 April 2021 (see CPA, s 429ZN).
[3] JDA s 4A(2).
In hearing this matter without a jury, I may make any decision that could have been made by a jury. My decision will have, for all purposes, the same effect as the verdict of a jury.[4]
[4] CPA s 420E.
A judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied.[5]
[5] CPA s 420F. See also Douglass v R (2012) 290 ALR 699, 702; AK v Western Australia (2008) 232 CLR 438 at [107] per Heydon J.
As the judge of the facts and law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
Overview
It was accepted by the prosecution and counsel for the accused that the prosecution must prove, beyond reasonable doubt, that the accused himself entered the home in order to prove the relevant element of the charge of aggravated home invasion. It was further accepted by the prosecution, and on behalf of counsel for the accused, that it is not necessary for the prosecution to prove, beyond reasonable doubt, that the accused himself entered the house in order to prove the charge of aggravated burglary. It was agreed that, for the purposes of this charge, the accused may be convicted if the prosecution proved, beyond reasonable doubt, that a co-offender entered the house.
Prior to the calling of evidence, counsel for the accused indicated that the only element in issue in relation to the charge of aggravated home invasion was that the accused entered the house in company with two or more other persons. By his plea of guilty, in relation to the charge of aggravated burglary, the accused admitted all four elements of that charge.
It is the case for the prosecution that, at approximately 5.00am on 2 April 2020, the accused, in company with five co-offenders, drove a stolen Volkswagen SUV to Flora Grove, Wantirna South. Following arrival at that location, the accused, together with four of his co-offenders, conducted surveillance of the street and, in particular, a residence located at 13 Flora Grove, for approximately 12 minutes. Parked outside the premises was a black Mercedes Benz registration number BFA 266, and a white Jeep Cherokee registration number 1K0 2JZ.
The surveillance conducted by the accused was recorded by a CCTV camera located across the road from 13 Flora Grove at premises located at 18 Flora Grove. That footage depicts the movements of the Volkswagen SUV, the accused and his co-offenders in the street. The owner of the premises at 13 Flora Grove, Mr Mina Birt, also installed two CCTV cameras at his premises. One camera was located above the garage door at the front of the premises, and the other camera was located in the front doorbell. The cameras were battery operated and were turned on in “power saving mode”, meaning that there was a delay of “a few seconds” before the cameras were activated by movement in their field. The house and location of the cameras are depicted in booklets of photographs that were tendered in evidence during the trial. CCTV footage gathered by the camera at 18 Flora Grove was tendered in the trial, and excerpts of CCTV footage gathered by the two cameras located at 13 Flora Grove was also tendered in the trial.
At 5.05.16am, two offenders are recorded in the vicinity of the front door of 13 Flora Grove by the front door CCTV camera.
At 5.11.45am, three offenders are depicted entering the premises at 13 Flora Grove by the front door camera.
At 5.12.26am, the accused is depicted a short distance from the front door of 13 Flora Grove holding keys to the Mercedes Benz in one hand and a steel bar in the other. Another offender is immediately behind him. The accused is wearing black gloves and places the iron bar in the rear of the Mercedes Benz, gets into the driver’s seat, starts the vehicle and reverses it from the driveway.
Mr Birt and his wife were awoken by the offenders in the premises, and whilst he heard them talking and moving about, he did not see them inside the premises.
It is the prosecution case that five offenders, including the accused, entered the premises, and the accused himself was inside the premises for a total of 32 seconds. It is the case for the prosecution that the following items of circumstantial evidence establish, beyond reasonable doubt, that the accused did enter the premises:
(i)the accused was wearing a black hoodie intended to disguise his appearance;
(ii)the accused was wearing gloves intended to prevent the deposit of fingerprints or DNA;
(iii)the accused engaged in surveillance of the premises;
(iv)the accused was party to an agreement to enter the premises with his co-offenders;
(v)the accused is recorded on the garage CCTV footage a short distance from the front door of the premises;
(vi)the accused is depicted a short distance from the front door of the premises in possession of the keys to the Mercedes Benz, which had been left on the kitchen bench by Mr Birt;
(vii)the garage CCTV camera and front door CCTV camera were not activated by any activity or motion during the 32 seconds that all offenders were inside the premises; and
(viii)the accused is not recorded on the garage CCTV camera or front door CCTV camera outside the premises when the other offenders were inside the premises.
It is the case for the accused that I cannot be satisfied, beyond reasonable doubt, that the front door CCTV camera was operating in a manner that would have recorded any movements outside the premises during the period that the offenders were inside the premises, because the cameras did not record all the movements of the accused conducting surveillance of the premises prior to entry.
Furthermore, it was submitted on behalf of the accused that the front door camera does not depict him entering the premises, and it is reasonably possible that a co-offender took possession of the keys inside the premises and gave them to the accused outside the premises, where he remained as, in effect, a lookout.
Directions
General directions
In accordance with Part 7 of the JDA and the High Court’s decisions supporting the approach to set out the directions,[6] I direct myself in accordance with the general directions, including those mentioned below.
[6] Such as Douglass v R (2012) 290 ALR 699 and AK v Western Australia (2008) 232 CLR 438.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences as charged. The standard of proof of the prosecution case is proof beyond reasonable doubt.
The accused comes before this Court with a presumption of innocence in his favour. The accused is presumed by law to be innocent of the offences unless and until the evidence I accept satisfies me that each and every element of the charges has been proved beyond reasonable doubt.
If an accused does adduce any evidence which is consistent with his innocence, he or she does not have to prove it;[7] it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
[7] Unless exceptions apply.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offences charged, then the accused remains presumed innocent and I must find a verdict of not guilty on that charge.
I must decide the case solely on the evidence I have seen and heard in this trial; that is what the witnesses have said under oath or affirmation in answer to questions and the exhibits that have been produced. All of the evidence I have considered has been led in Court. What counsel have said during the trial is not evidence.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
In order to deliver a verdict in this case, I must form a view about the credibility of the evidence of each witness. I must only accept evidence that I find to be credible; that is honestly given and reliable. I may accept all or part of the evidence of any witness and disregard all or part of the evidence of that witness.
There is no need for all the verdicts to be the same. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, ‘am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?’ If the answer to the question is yes, I will find the accused guilty of that offence; if the answer is no, I will find the accused not guilty of that offence. [8]
[8]R vAB [2011] ACTSC 204 (16 December 2011) (Penfold J) 65.
The accused did not give evidence in the trial. The accused has a right to silence and I cannot draw any adverse inference from the fact. His silence cannot be used to fill in gaps that otherwise exist in the prosecution case and no inference can be drawn against him because he has not provided an explanation for the circumstantial case or refuted the evidence of other witnesses. Such an approach would be ‘incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial.’
Circumstantial evidence
I turn now to the directions on circumstantial evidence.
Where, as is the situation here, the case against an accused person rests, to a significant extent (albeit not entirely) upon circumstantial evidence, the jury or a judge sitting without a jury, cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.’[9] To enable me to be satisfied beyond reasonable doubt of the guilt of one or both of the accused, it is necessary not only that his guilt should be a rational inference, but that it should be ‘the only rational inference that the circumstances would enable [me] to draw.’[10]
[9]Peacock v The King (1911) 13 CLR 619 (‘Peacock’).
[10]Plomp v The Queen (1963) 110 CLR 234 (‘Plomp’).
Circumstantial evidence is different to direct evidence. The latter is, for example, what a witness says they saw or heard. In a direct evidence case, accepting direct evidence beyond reasonable doubt is capable of directly proving the guilt of the accused.
In a circumstantial case, the direct evidence is lacking. A case is not bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that ‘according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.’[11]
[11]Martin v Osborne (1936) 55 CLR 367.
I must remember that if there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, I must find him or her not guilty.[12]
[12]R v Hodge (1838) 2 Lew 277; Mannella v R [2010] VSCA 357; Knight v R (1992) 175 CLR 495; Shepherdv The Queen (1990) 170 CLR 573; Chamberlain v R (No 2) (1984) 153 CLR 521; Barca v R (1975) 133 CLR 82; Plomp v R (1963) 110 CLR 234; Thomas v R (1960) 102 CLR 584.
While this statement of principle is uncontroversial it is really ‘no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt.’[13]
[13]Knight v The Queen (1992) 175 CLR 495 at 502.
It is of critical importance to remember that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[14] Inferences are logical deductions or conclusions from facts. I must not guess or speculate about matters that are not in evidence or look for theories not supported by the evidence.
[14]Shepherd v The Queen (1990) 170 CLR 573.
However, for an inference to be reasonable it must rest upon something more than mere conjecture.[15] It is necessary to weigh and consider the totality of the evidence and in doing so the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.[16]
[15]Peacock.
[16]R v Micallef [2002] NSWCCA 480.
Therefore, I must identify the facts that I find established on the evidence. I must next determine what facts I consider may be inferred from a combination of the established facts. I must consider from the facts I find proved whether I can infer from those facts that the accused is guilty of the offence with which he is charged beyond reasonable doubt.
In drawing inferences or coming to conclusions against the accused I must be satisfied that the inference is the only reasonable inference that can be drawn from the proven facts.[17]
[17]The Queen v Baden-Clay [2016] (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [14]; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18]; Higton v The State of Western Australia [2016] WASCA 43 [17].
A reasonable inference is one that a reasonable person would draw from a consideration of all the evidence and the facts established by the evidence. An inference that is based on mere conjecture or speculation cannot be a reasonable inference.[18]
[18]The Queen v Baden-Clay (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [14]; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18].
Often in a circumstantial case there is evidence of matters, which looked at in isolation from other evidence, may yield an inference compatible with the innocence of an accused. But a circumstantial case is not to be considered piecemeal - I must consider and weigh the evidence as a whole.[19]
[19]R v Hillier (2007) 228 CLR 618 at [48]; The Queen v Baden-Clay [2016] (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [18] – [21]; Wark v The State of Western Australia [2020] WASCA 19 [275].
As was said in R v Chamberlain (No 2):[20]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence...
[20] (1984) 153 CLR 521, 535 (Chamberlain (No 2)).
Similarly, in a case depending on circumstantial evidence, the fact finder should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen.[21]
[21] See R v Hillier (2007) 228 CLR 618; R v Allen [2007] VSCA 97; Chamberlain v R (No 2) (1984) 153 CLR 521; Van Beelen; Thomas v R [1972] NZLR 34; Shepherd v The Queen (1990) 170 CLR 573).
And as Dixon CJ said in Plomp:[22]
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
[22]Plomp, 242.
Where competing inferences arise in a case, it is for me to determine as the finder of fact whether the inference of guilt arises, and if so whether it completely overcomes all other inferences so as to leave no reasonable doubt in their minds.[23]
[23]R v Plomp (1963) 110 CLR 234; Peacock v R (1911) 13 CLR 619.
In this circumstantial case, the ultimate fact that the Crown asks me to infer from the proven facts is that Mr Riek entered the home at 13 Flora Grove, Wantirna South, and that he is guilty of the offence of aggravated home invasion.
If, after I have considered all the evidence, and decided the facts I find proved from that evidence, I find that there is a reasonable inference open on the facts that is consistent with the accused's innocence, then I must draw that inference. In that case it is my duty to find the accused not guilty. That follows from the requirement that the Crown must establish the accused’s guilt beyond reasonable doubt.
I must not draw an inference that the accused guilty of the offence unless I am satisfied that inference is the only inference reasonably open on the whole of the facts I find proved.[24] If it is not, the Crown will have failed to prove Mr Riek’s guilt of the offence beyond reasonable doubt.
[24]Thompson v The State of Western Australia [2013] WASCA 1 [23]; Higton v The State of Western Australia [2016] WASCA 43 [16] - [18]; Roe v The State of Western Australia [2015] WASCA 64.
If I find an inference or hypotheses consistent with innocence is open on the evidence, I must give the accused the benefit of the doubt necessarily created by that circumstance and acquit him.
The law
In order to prove the accused is guilty of the offences with which he is charged beyond reasonable doubt, the Crown must prove each element of the offence beyond reasonable doubt.
Aggravated home invasion
In this case, the prosecution must prove five elements, namely:
(i)The accused committed burglary of a home;
(ii)The accused entered the home in company with two or more other persons;
(iii)At the time of entry the accused had with them an offensive weapon;
(iv)At the time of entry the accused knew or was reckless as to whether there was or would be another person (other than a co-offender) in the home while the accused is present; and
(v)While the accused was in the home, a person (other than a co-offender) was present in the home.[25]
[25]Crimes Act s 77B.
As I have already indicated, the only element of this offence that is in dispute, is element two. That is, that Mr Riek entered the home situated at 13 Flora Grove, Wantirna South in company with two or more other persons.
Prosecution’s evidence
The Crown called two witnesses, namely:
(i)Mina Birt; and
(ii)Detective Senior Constable Robert Baker.
Mina Birt
On 2 April 2020, Mina Birt was asleep with his wife Jonelle Birt, and their two children, in their home at 13 Flora Grove Wantirna South.
Mr Birt stated that he was woken by a loud bang, looked outside of his bedroom window and saw two people walking towards his Mercedes, which was parked in the driveway.
He yelled out to his wife “we’ve been robbed, we’ve been robbed” and together they proceeded downstairs to attempt to “scare them off”. Mr Birt said that he could hear people talking in the house, however, he did not see anyone in the house or leaving the house. He followed his wife out the front door, where he saw three individuals in his Mercedes, which was already on the street, and another individual in his wife’s white Jeep.
Mr Birt and his wife built the house and installed a CCTV system known as “ring doorbell”. The CCTV system consisted of two cameras, one located in a doorbell on the left hand side of the front door, and the other situated on the top left hand side of the garage.
The doorbell camera is a “battery operated camera”, which only activates when it picks up motion from the front of the house. However, being battery operated it has a power saving mode which causes a “few seconds” delay between any motion and the activation of the recording.
Mr Birt stated that if anyone was in the front yard of the property, it would be captured on the CCTV, by either the garage or the front door camera.
During cross-examination, Mr Birt accepted that his recollection of the events that occurred that morning may have been influenced by the content of the CCTV footage.
Furthermore, he accepted that he had never done any testing of the CCTV system.
Detective Senior Constable Robert Baker
Detective Senior Constable Robert Baker is the Informant in this matter.
The Informant identified the images of:
(i)The clothing worn by the accused on the morning in question;
(ii)The items that were seized from the Mercedes; and
(iii)The accused trapped in the Mercedes at the site of the collision.
The Informant was provided with the CCTV footage from 13 Flora Grove, and obtained further footage from 18 Flora Grove. The CCTV footage was played to the Court during the course of the Informant’s evidence.
The CCTV footage from 18 Flora Grove depicted the arrival of the offenders, and movement of them from the car in which they arrived and at 13 Flora Grove.
At first, the footage from 13 Flora Grove depicts two offenders out the front “casing” the property. The second clip shows three people entering the property, however, you only “get a glimpse” of the first individual.
The only individual that the Informant could positively identify was Mr Ranford, as he was wearing a “just do it” top. This footage continues for 32 seconds and does not capture an image of anybody in the front garden area of the property.
At the conclusion of that footage, it is not until 8 seconds later that the garage camera is activated by the motion of the offenders. The first image captured on that footage is Mr Riek, mid stride “one pace out of the – from the front door”, carrying the key to the Mercedes.
Assessment of the evidence and findings of fact
Crown’s evidence
The evidence of Detective Senior Constable Baker was not challenged in cross-examination and is uncontroversial. I found the witness to be a credible and reliable witness. I accept his evidence and make findings of fact in accordance with his evidence summarised above.
Mina Birt
I accept that Mina Birt was a truthful and credible witness. His account of the events in question was however affected by the fact that the events occurred in the early hours of the morning and he had been asleep. He installed the CCTV system at his house and was familiar with its operation but I accept that he was not able to conclusively state that it was operating perfectly. Furthermore, he accepted in Court that his evidence may have been influenced by the contents of the CCTV footage.
Submissions of counsel
Prosecution
In his closing address, the Prosecutor outlined the circumstantial evidence that I could rely upon to be satisfied beyond reasonable doubt that the accused entered the home. I have already listed this evidence in paragraph 22 of these Reasons.
Furthermore, the Prosecutor made the following submissions:
(i)The only way the accused could have possession of the car key to the Mercedes is because he took it from the house;
(ii)The accused is depicted on the CCTV footage a short distance from the front door leaving the premises;
(iii)The accused knew the keys were for the Mercedes and walked straight to it;
(iv)The accused was followed out of the premises by other offenders;
(v)The accused is not captured on the CCTV cameras outside the house when the offending occurred; and
(vi)There was no reason for a lookout.
Defence
In her closing address, Counsel for Mr Riek made the following submissions:
(i)The clothing that the accused was wearing was not a disguise. Rather, clothing that might be worn by a person on a wet morning;
(ii)The evidence does not exclude the possibility that someone else gave accused the car key outside the house;
(iii)The car key on its own doesn’t establish that the accused entered the home;
(iv)The wearing of gloves is consistent with not wanting to leave forensic evidence on the stolen vehicle;
(v)The need to proceed with caution in relation to the CCTV footage as there has been no evidence to confirm the reliability of the camera used to record it; and
(vi)It can’t be excluded that the accused was waiting at the front door with the weapon to be used to defend himself if necessary.
Consideration
I will address the charges the alleged conduct occurred close in time and I will address each count separately.
Count 1 – aggravated home invasion
The prosecution allege that the accused entered the Flora Grove home as a trespasser while there was a person present, knowing or being reckless as to that person’s presence, in the company of co-offenders and with offensive weapons.
Entered a home
It is in issue that the accused entered the home located on Flora Grove, Wantirna South.
Based upon the circumstantial evidence listed in paragraph 22 of these Reasons, I am satisfied beyond reasonable doubt that the accused entered the house at 13 Flora Grove Wantirna South. I do not accept that it is a reasonable possibility that the accused waited outside the premises and was given the keys to the Mercedes by another offender prior to being depicted in the CCTV footage in possession of the keys.
The front door CCTV camera recorded two offenders conducting surveillance at 5.05.16am and I accept that if the accused had remained outside the premises during the offending, acting as a “lookout”, he would have been captured by either of the CCTV cameras located at 13 Flora Grove.
Trespasser
It is not disputed that the accused did not have any right or authority to enter the building and that he knew that it was, at least, probably the case that he had no right or authority.
Intended to steal
It is not disputed that the accused intended to commit an offence of theft when he entered the home. In company of two or more people
In company of two or more people
It is not in issue that the accused entered the home in company with two or more other persons.
Weapons
It is not in issue that the accused had with him an offensive weapon, namely a steel pole, when he entered the home.
Knew or was reckless as to the person’s present
The fifth element is not in dispute. This element relates to the accused’s state of mind, namely whether he knew or was reckless as to whether a person was inside the building when the accused entered.
Persons present
This seventh element is not in dispute. Mina Birt, Jonelle Birt and their two children were present in the home.
Conclusion
I have carefully considered all of the evidence led in this case and the existence of any rational hypotheses consistent with Mr Riek’s innocence.
For the reasons set out above, I find Mr Riek Guilty of charge 1, aggravated home invasion.
Having found the accused guilty of aggravated home invasion, I do not need to consider the alternative offence of aggravated burglary (charge 2).
I publish my Reasons.
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