Director of Public Prosecutions v Sullivan (No 2)
[2024] ACTSC 296
•25 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Sullivan (No 2) |
Citation: | [2024] ACTSC 296 |
Hearing Date: | 10 September 2024 |
Decision Date: | 25 September 2024 |
Before: | Taylor J |
Decision: | The verdicts are as follows: 1. Count 1: Aggravated robbery – guilty. 2. Count 2: Aggravated robbery – guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – aggravated robbery – extensive agreed facts – circumstantial case – coincidence evidence – identity of offender only issue for determination – CCTV footage |
Legislation Cited: | Criminal Code 2002 (ACT) s 310(b) Criminal Procedure Act1986 (NSW) s 161A Evidence Act 2011 (ACT) s 191 Supreme Court Act 1933 (ACT) s 68 |
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 Hillier [2007] HCA 13; 228 CLR 618 Selby v R [2017] NSWCCA 40 |
Texts Cited: | Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (last updated Update 77, June 2024) |
Parties: | Director of Public Prosecutions ( Crown) Joshua Sullivan ( Accused) |
Representation: | Counsel C Muthurajah ( DPP) E Chen ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Accused) | |
File Number: | SCC 126 of 2023 |
Taylor J:
Introduction
1․This is a trial by judge alone after the accused, Joshua Sullivan, signed an election on 15 February 2024 to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).
2․The accused was charged with the following offences on an indictment dated 23 June 2023:
(a)Count 1 (CC2022/11479): aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT) (the Criminal Code).
(b)Count 2 (CC2022/11463): aggravated robbery contrary to s 310(b) of the Criminal Code.
3․On 10 September 2024, the trial commenced before me after the accused was arraigned and entered pleas of not guilty to each charge. The matter proceeded by way of a “hand-up brief” and no witnesses were called to give oral evidence. On that day closing submissions were made and I reserved my decision.
4․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.
5․For the reasons that follow, the accused is guilty of each count on the indictment.
Prosecution case
6․In summary, the prosecution alleged that it was the accused who robbed the ‘IGA Drakeford’ on 13 November 2022 (“Robbery 1”) and the ‘Manuka Newsagency’ on 20 November 2022 (“Robbery 2”). Both offences were aggravated by the offender’s possession of an offensive weapon.
7․On 3 November 2023, Berman AJ ruled on a pre-trial application permitting the prosecution to adduce coincidence evidence. Accordingly, the prosecution relied on coincidence reasoning arising from a third aggravated robbery, committed at the ‘Friendly Grocer Gowrie’ on 20 November 2022 (“Robbery 3”), approximately three hours after Robbery 2 at the ‘Manuka Newsagency’.
8․In relation to Robbery 3, the accused was apprehended by members of the public while attempting to flee the scene and has since entered a plea of guilty to that offence. The prosecution relied on various similarities between Robbery 3 and Robbery 1 and Robbery 2, and the improbability of those similarities existing by coincidence to establish beyond reasonable doubt that the accused was the offender in each instance. The sole issue for determination in this trial is the identity of the offender who committed Robbery 1 and Robbery 2. Sensibly, there was no dispute that the conduct engaged in by the offender for Robbery 1 and Robbery 2 established the elements of the offence of aggravated robbery contrary to s 310(b) of the Criminal Code.
Agreed facts
9․Pursuant to s 191 of the Evidence Act 2011 (ACT), the parties agreed the following facts.
Background
10․The IGA Drakeford is located at 13/9 Jenke Circuit, Kambah in the Australian Capital Territory (ACT). The IGA Drakeford was robbed by a male offender on 13 November 2022.
11․The Manuka Newsagency is located at 36 Franklin Street, Griffith in the ACT. The Manuka Newsagency was robbed on 20 November 2022.
12․The Friendly Grocer Gowrie is located at 1 Jeffries Street, Gowrie in the ACT. The business is now known as ‘Supabarn Express’ at the same location. The business was robbed by the accused on 20 November 2022.
Robbery 1 – IGA Drakeford (Count 1)
13․At about 2:20pm on Sunday 13 November 2022, a gold-coloured sedan drove along Jenke Circuit in Kambah. [Redacted] saw the sedan slow as it passed the Drakeford IGA located at 13/9 Jenke Circuit, Kambah as he drove behind it. [Redacted] followed the sedan as it circled through the adjacent carpark before re-joining Jenke Circuit and driving left towards ‘Storage King’.
14․[Redacted] parked his car and walked into the IGA.
15․At around 2:20pm, a male ran from the Jenke Circuit exit of the Drakeford IGA side carpark and into the Drakeford IGA (‘the male’).
16․Inside the Drakeford IGA, [redacted] was working at the cash register when the male walked into the store holding a black axe.
17․The male walked to the tills where words to the effect of the following conversation took place:
Male: Give me all the money.
[Redacted]: I can’t open the tills. The manager has to do it.
Male: I’m pretty sure you can open the tills.
18․The male leaned towards the registers as [redacted] moved back towards the wall and motioned to the duty manager [redacted] to come to the counter. [Redacted] was in the liquor freezer in the store. [Redacted] approached the counter where he saw the male. The male walked towards [redacted], pointed the axe at him and said words to the effect of “all the cash out of the register”.
19․[Redacted] took all of the money from the till closest to the entrance and put it in a white plastic shopping bag belonging to IGA Drakeford and handed it to the male. During this time, the male slammed his hands onto the glass partition separating the counter from the customer entrance.
20․The male then moved to the second register and [redacted] took money out of the register and put it into the white shopping bag the male was holding. Nine hundred and seventy eight dollars in total was emptied into the bag.
21․After [redacted] had emptied the second till, the male ran out of the store towards the carpark adjacent to the IGA.
22․At this time, [redacted] was seated at the bus stop on O’Halloran Circuit when he saw the male run through the carpark and get into the front passenger side of the gold sedan, which drove off.
23․While [redacted] was shopping, he saw the male in front of the registers holding the axe in his right hand. [Redacted] moved to the alcohol aisle and tried to call 000 but got distracted and hung up.
24․[Redacted] ran after the male. Pedestrians pointed [redacted] to the right. [Redacted] ran around the corner and saw the gold sedan speed away in a westbound direction on Jenke Circuit.
25․[Redacted] got into his car and drove right onto Jenke Circuit before entering O’Halloran Circuit to find the gold sedan but lost sight of it. After he lost sight of it, [redacted] returned to the shops and waited for police.
26․[Redacted] and [redacted] both noticed that the male had white skin and spoke with an Australian accent.
27․Closed Circuit Television (CCTV) footage captured the incident.
Robbery 2 – Manuka Newsagency (Count 2)
28․At around 6:22am on Sunday 20 November 2022, a male ran eastbound on Furneaux Street, Manuka in the ACT (‘the male’).
29․The male turned right and ran down Franklin Street towards the Manuka Newsagency located at 36 Franklin Street.
30․During his time, [redacted] was working at the Manuka Newsagency. At about 6:30am, the male entered the shop and asked [redacted] to open the till. A conversation to the effect of the following took place:
[Redacted]: How you doing, mate? I’ve got 25 in the till.
Male: Open it.
[Redacted]: There’s not much.
Male: Open it up.
31․The male raised a hammer and leaned towards [redacted]. [Redacted] walked behind the counter, opened the till and gave the accused about $40. The male told [redacted] to open the safe. [Redacted] replied that he did not have a key.
32․The male hit [redacted] right thigh with the hammer. [Redacted] told the male that there were cameras everywhere and directed him to get out. The male remained at the counter. [Redacted] moved towards him. The male used the hammer to knock over items on the counter. The male left the newsagency, turned left and ran towards Furneaux Street.
33․[Redacted] noticed that the male had white skin and spoke with a “standard local” accent.
34․The incident was captured on CCTV footage.
35․The CCTV footage from Manuka Newsagency is out of time by approximately 29 minutes and 39 seconds.
36․The CCTV footage from ‘Fitness Grand’ in Manuka is out by approximately 54 minutes and 13 seconds.
37․The CCTV footage from ‘Belluci’s Restaurant’ is out by approximately 3 hours and 6 minutes.
Robbery 3 – Friendly Grocer Gowrie
38․The accused robbed the Friendly Grocer Gowrie by approaching the counter and threatening [redacted] with an axe while saying words to the effect of “money”. [Redacted] opened the registers and put cash into the accused’s plastic bag. The accused ran out of the supermarket.
39․CCTV footage captured the incident.
40․The accused was chased by a number of civilians.
41․The accused threw money and cash register dockets onto the ground during the pursuit, which [redacted] collected and handed to police. There was $30 in $5 denominations.
42․The accused was ultimately pinned down to the ground by a number of civilians, one of whom was an off-duty New South Wales police officer. That off-duty police officer informed the accused that he was under arrest for armed robbery. Within a few minutes, ACT police officers attended and took custody of the accused.
43․CCTV footage from the Friendly Grocer Gowrie and the nearby ‘Common Grounds Café’ was out by approximately an hour.
Arrest of accused
44․Police searched the accused and the surrounding area.
45․Police located an axe and a red “Lowes” branded plastic bag in situ in a garden on Castleton Crescent. These items were photographed.
46․Police also located $570 in Australian currency as well as a number of receipts from the Friendly Grocer Gowrie. Police seized and took photographs of the accused’s clothing.
47․The accused identified himself as Joshua Sullivan. His identity was verified by police. The accused told police he resided at [redacted].
Directions
Onus and standard of proof
48․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
49․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.
50․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
51․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.
Identification evidence
52․In this case the prosecution asks that I draw the conclusion that the offender captured in the CCTV footage on 13 November 2022 in Kambah and on 20 November 2022 in Manuka, is the accused. The prosecution case relying as it does on coincidence evidence additionally relied on footage taken of Robbery 3 and the accused’s subsequent apprehension. I must exercise special caution before I draw the conclusion that it is the accused in the footage of Robbery 1 and Robbery 2. Special caution is required because the experience of the law is that mistakes concerning identity are made and can be easily made.
53․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.
54․In circumstances where I am asked to make an assessment of the accused’s physical appearance in Court in order to compare it with the physical appearance of the person in the footage tendered, I bear in mind the particular risks of in-court identification which 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].
Coincidence evidence
55․By virtue of the pre-trial ruling the prosecution were permitted to rely on coincidence evidence. By agreement with counsel for the accused, the prosecution handed up a printout of the Judicial Commission of NSW: Criminal Trial Courts Bench Book “[4-237] Suggested direction where coincidence evidence admitted as part of a circumstantial case”, identifying it as the appropriate direction for the use of such evidence.
56․The NSW direction refers to s 161A of the Criminal Procedure Act1986 (NSW) which dictates the directions to be given to a jury regarding tendency and/or coincidence evidence and the standard of proof required. That provision identifies the circumstances in which a jury ought to be directed as to the requirement for proof beyond reasonable doubt in relation to tendency or coincidence evidence. In effect the provision dictates that a jury must not be directed that coincidence evidence needs to be proved beyond reasonable doubt, except where there is “a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt and evidence of the act or omission has been adduced as tendency evidence or coincidence evidence”. There are no equivalent provisions in this jurisdiction. Neither party sought to make submissions on the issue, nor any amendment to the direction noting the various iterations of it in the version handed up by the prosecution.
57․As I have already set out, the identity of the offender for the two robberies on the indictment is the key issue for determination. The prosecution seeks to prove the accused as the offender by reference to the third robbery offence where he was apprehended at the scene and to which he has pleaded guilty. The question of the standard of proof required is not a matter of any consequence in this case, as where I am satisfied as to the facts established by the prosecution case including with respect to the coincidence evidence, I am satisfied beyond reasonable doubt.
58․Coincidence evidence permits the prosecution to rely on the occurrence of two or more events to prove that it was the accused who did an act on the basis that having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events happened coincidentally.
59․That is to say, where there is significant similarity between the acts, and the circumstances in which they occurred, it can be reasoned to be highly improbable that the events occurred simply by chance; that is, by coincidence. The improbability of two or more similar events occurring by chance or coincidently, may lead to a conclusion that the accused person committed the act the subject of the charges.
60․In this case, the prosecution submitted that the acts and circumstances in which the accused committed Robbery 3 were so similar to the acts and the circumstances involved in Robbery 1 and Robbery 2, that I would conclude beyond reasonable doubt that the accused must have committed Robbery 1 and Robbery 2. The anchor of the prosecution case in relation to the identity of the offender for Robbery 1 and Robbery 2, is the accused being the known perpetrator of Robbery 3.
61․The evidence as to the similarity between events can only be used in the way the prosecution seeks, if I am satisfied as to two matters: first, that the accused committed Robbery 3; and secondly, that Robbery 3 is so similar in act and circumstance to Robbery 1 and Robbery 2 that I would find it improbable that Robbery 1 and Robbery 2 were committed by a different person. If I accept those two matters, then I can use that evidence, together with any other evidence in the prosecution case, to be satisfied beyond reasonable doubt that the accused committed Robbery 1 and Robbery 2.
62․I cannot reason that because the accused committed Robbery 3, he is the type of person who will commit criminal activity generally or that he is a person who is likely to have committed Robbery 1 and Robbery 2. The evidence is not before me to support that type of reasoning. I cannot punish the accused for Robbery 3 by finding him guilty of Robbery 1 and Robbery 2.
Circumstantial evidence
63․The prosecution case against the accused is circumstantial. There is no direct evidence of the accused committing either of the offences before the Court. Instead, the prosecution asks me to draw the inference that the accused was the offender from all the circumstances which have been proved.
64․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.
65․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.
66․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, as 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.
67․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.
The prosecution case: similarities between Robbery 1, 2 and 3
Features common to Robbery 1, 2 and 3
68․Each robbery occurred in daylight hours on a Sunday. Each robbery occurred at a suburban shop in the south of Canberra. Each robbery was said to have been perpetrated by a male with white skin, an Australian accent and a slim build.
69․The offender wore white shoes and dark clothing during each robbery.
70․In all three robberies the entirety of the offender’s face was concealed with black fabric except for a small slit across his eyes which was left uncovered. The offender wore black gloves and used a plastic bag to carry the money stolen from each store.
71․On each occasion the male offender ran to and from the store. The offender demanded money to be given to him from the till by the shop employee.
72․The male carried a weapon in all three robberies. Although the type of weapon is not consistent across the three offences, in each instance, the weapon was held in the offender’s right hand and raised toward the victims during the robbery.
73․The offender in Robbery 1 wore mid-blue jeans. The accused was wearing mid-blue jeans beneath black “Ellesse” branded tracksuit pants when he was apprehended for Robbery 3. This can be seen in the footage depicting the accused laying on the ground, the tracksuit pants having slipped down to his mid-hip area exposing the mid-blue jeans beneath. It is made plain in the CCTV footage captured at the ACT Watch House where the accused was taken immediately after his arrest, where the tracksuit pants had by then slipped down around the accused’s knees with the mid-blue jeans worn underneath clearly visible.
74․In the footage that captured the offender running into the Manuka Newsagency to commit Robbery 2, the offender can be seen holding onto the waistband of the pair of black tracksuit pants he was wearing. The prosecution submitted this action to be consistent with the offender wearing tracksuit pants that might slip down (as happened when the accused ran from the scene in Robbery 3) and with having another pair of pants underneath.
75․It can also be generally observed that in each robbery the physical movements of the offender can be carefully scrutinised on the CCTV footage. There is similarity between the physical movements and body shape of the offender and the accused when running toward and away from the scene of each robbery and during the robbery when inside each store.
Additional features common to Robbery 1 and Robbery 3
76․The offender brandished a tomahawk (a type of axe) in Robbery 1. The accused brandished a tomahawk in Robbery 3.
77․The CCTV footage demonstrated that the tomahawk used in Robbery 1 and the tomahawk the accused was carrying when apprehended having just committed Robbery 3 is the same shape, size and colour. More than that, the tomahawk in both events share striking similarity. The tomahawk in Robbery 1 and Robbery 3 had a distinctive feature being three holes in the blade side of the weapon as well as the opposite side to the blade being shaped like a hammer. The evidence revealed the tomahawk in Robbery 1 to be not just “strikingly similar” to the tomahawk in Robbery 3, but identical in appearance.
78․It can also be observed that the tomahawk was used by the offender in Robbery 1 and by the accused in Robbery 3 in the same way to facilitate the robbery. That is, the weapon is raised in the right hand as cash is demanded in each instance.
79․The prosecution highlighted the appearance of the offender’s gloves in Robbery 1, observable when the IGA Drakeford CCTV footage is paused at 1 minute and 35 seconds. The black full finger gloves worn by the offender appear to have leather or plastic detailing on the left fingertips of the glove, consistent with the detail on the glove worn by the accused at the time of his arrest, in evidence before me.
80․The black head covering worn by the offender in Robbery 1 and the accused in Robbery 3, appears to be tied at the back of the head in a knot-like fashion. In Robbery 1, this feature can be viewed in the CCTV footage from the Drakeford IGA. In Robbery 3, it can be seen approximately 50 seconds into the body-worn camera (BWC) footage of Constable Zachary Cash.
Additional features common to Robbery 2 and Robbery 3
81․Robbery 2 and Robbery 3 were committed on the same day approximately three hours apart.
82․The clothing and shoes worn by the accused in Robbery 3 were identical in appearance to the clothing and shoes worn by the offender in Robbery 2.
83․The clothing worn by the accused was seized by police after his arrest and some of the items were tendered in evidence at trial. The clothing worn by the accused in Robbery 3 consisted of a navy “Champion” branded hooded jumper, black “Ellesse” branded tracksuit pants and white “Nike TN” sneakers with dark socks worn over the top of them. The “Champion” logo was printed across the chest of the hooded jumper and the “Ellesse” logo on the tracksuit pants was at the front of the left upper thigh. The black socks over the white sneakers do not come all the way up the heel of the shoe, which is particularly noticeable on one shoe. That is, one black sock appears shorter than the other.
84․In Robbery 2 the offender was wearing a dark coloured “Champion” branded (across the front of the chest) hooded jumper, black tracksuit pants with a logo at the front of the left upper thigh, strikingly similar in appearance to the “Ellesse” logo on the tracksuit pants worn by the accused when he committed Robbery 3and white “Nike TN” sneakers with black socks worn over the top of them. Like the accused in Robbery 3, the black socks covering the white shoes do not come all the way up the heel of the shoe, which is particularly noticeable on one shoe, giving the appearance that one black sock is shorter than the other.
85․When the Manuka Newsagency CCTV footage is paused at 26 seconds, the logo and air bubbles visible at the bottom of the shoe are consistent with the pair of shoes seized from the accused which bear the “Nike TN” logo and have a clear bubble-like appearance in the sole of the shoes.
86․The prosecution submitted that the offender holding up his pants while running in Robbery 2, as depicted in the Manuka CCTV footage, is consistent with the male wearing a second pair of pants, namely jeans, underneath the black “Ellesse” tracksuit pants as later depicted when the accused is apprehended. This is consistent with what I have already noted about the observation of the accused in the ACT Watch House CCTV footage where it can be observed that the black “Ellesse” tracksuit pants appear to be loose fitting and have slipped even further down the accused’s body than that which can be observed in the footage from his apprehension near the scene of Robbery 3.
87․To add to the similarity between the offender in Robbery 2 and the appearance of the accused hours later at Robbery 3, is a black and white face covering. The accused wore a faded “Henleys” branded black and white t-shirt wrapped around his head as an improvised balaclava when he committed Robbery 3, the effect of which was a white line over the top of his eyes and a distinctive white square mark with dark detail above the line, over his left eye. The improvised balaclava left a slit between which the accused’s eyes, eyebrows and bridge of the nose were revealed. The improvised balaclava was seized from the accused and confirmed to be an inside out black and white t-shirt, wrapped around his head. The features that can be observed on the accused when he is wearing the t-shirt wrapped around his head are consistent with features on the seized t-shirt. The square white mark is a stitched “Henleys” label on the inside back neck of the t-shirt; the label is white with navy blue writing.
88․In Robbery 2, the same effect as that seen on the accused in Robbery 3 can be observed on the offender, upside down. That is, the white stripe is underneath the offender’s eyes and the same square white mark with darker details can be seen under the line, near the offender’s nose. The offender’s head and face in Robbery 2 is covered in the same way as the accused’s head and face in Robbery 3, with a slit remaining through which the offender’s eyes, eyebrows and the top of the nose can be observed.
89․A red and white “Lowes” branded plastic bag was seized with the tomahawk after Robbery 3. It can be seen in the footage from Robbery 3 to be distinctively wrapped around the base of the handle of the tomahawk held by the accused. This very feature appears in Robbery 2. That is, the weapon brandished by the offender in Robbery 2, though not a tomahawk, has a red and white plastic bag with similar brand markings to that of the seized “Lowes” bag from Robbery 3, wrapped around the base of the handle.
90․The red and white plastic bag remained wrapped around the handle of the weapon throughout Robbery 2. In Robbery 3, the plastic bag was initially wrapped around the base of the handle of the tomahawk however the accused then removed it after directing the employee at the Gowrie Friendly Grover to place the money from the till into the bag.
The hypothesis consistent with innocence
91․Counsel for the accused conceded that some of the similarities between the robberies are compelling, though ultimately contended that those similarities are insufficient to sustain a finding of guilt. The accused contended that an acknowledgment of the similarities between the three events nonetheless left open a reasonable hypothesis consistent with innocence that was not excluded on the evidence. That hypothesis is that the accused was a member of a criminal group and that one of his fellow group members was the individual who committed Robbery 1 and Robbery 2.
92․The accused made the following submissions in relation to the points of similarity advanced by the prosecution.
Similarities between Robbery 1 and Robbery 3
93․The accused submitted that the evidence does not sufficiently demonstrate that the tomahawk used in Robbery 1 and Robbery 3 are the same weapon. It was conceded that the tomahawks looked to be the same, however it was submitted that the three spherical holes in the blade may be an ordinary feature of that weapon and it may be available to purchase with this feature rather than being custom-made. The accused pointed to the absence of evidence before the Court as to whether tomahawks typically have this feature or as to how readily a tomahawk with this feature can be purchased.
94․The accused submitted notwithstanding that the tomahawk used in Robbery 1 and Robbery 3 appears to be the same weapon, this does not exclude an offender other than the accused being responsible for Robbery 1. The accused relied on the evidence of an eyewitness that the offender got into the front passenger seat of a gold sedan immediately after Robbery 1. The accused submitted this raised the reasonable possibility that the offender was part of a criminal group or syndicate and that while he committed Robbery 3, another member of the group committed Robbery 1 and Robbery 2. This reasonable possibility was submitted to greatly diminish the significance of the use of the tomahawk in both robberies as it leaves open the possibility that the accused was the “getaway driver” in Robbery 1, and only used the tomahawk himself in Robbery 3.
95․The accused pointed to the different clothing worn by the offender in Robbery 1 and the accused in Robbery 3, and submitted that any distinctive feature that might be observed about the gloves must be approached cautiously because of the quality of the CCTV footage.
Similarities between Robbery 2 and Robbery 3
96․The accused returned to the hypothesis he identified as open on the evidence and submitted that there “may be very good reasons as to why members within the group might wear identical clothing”.
97․The accused submitted that the hypothesis provided reasonable explanation for the similarities in the clothing and equipment across Robbery 1 and Robbery 3. It was submitted that members of the group wearing socks over shoes and sharing clothing and weapons could make individual identification more difficult, so too parking outside the view of CCTV cameras. These features were said to be reflective of a level of sophistication supporting the robberies as acts engaged in by an organised criminal syndicate rather than an individual acting alone.
Fact finding
98․I record the following findings in relation to the footage relied upon as part of the prosecution case noting the caution required approaching this kind of evidence. In each instance the footage recorded of Robbery 1, Robbery 2 and Robbery 3 (including the footage when the accused was apprehended and processed at the ACT Watch House) is clear and allows for careful observation of the offender and the circumstances of the offending. While close observations such as individual eye colour, ear piercings or uniform monograms cannot be identified with any certainty, other observations to which I refer can be made with certainty.
99․After careful consideration I am satisfied beyond reasonable doubt that the following facts have been established by the evidence.
Robbery 1
100․Robbery 1 was committed in daytime hours on a Sunday in November 2022 at a suburban store in the south of Canberra. The offender was male, had white skin, a slim build and spoke with an Australian accent. The male offender ran to and from the store, demanded the employees give him money from the tills while holding a distinctive black tomahawk in his right hand. The male offender got into the passenger seat of a vehicle following the offence and was driven from the scene.
101․The offender was wearing a dark hooded jumper and mid-blue jeans. The offender had his head covered with black fabric tied in a knot at the back of his head. The accused had the improvised balaclava tied in a knot at the back of his head when he committed Robbery 3.
102․The entirety of the offender’s head and face were concealed in Robbery 1 by the black, tied fabric save for a slit through which his eyes, eyebrows and bridge of his nose could be seen.
Shoes
103․The white sneakers worn by the offender in Robbery 1 are not the same as the white sneakers worn by the offender in Robbery 2 and the accused in Robbery 3 for the following reasons.
104․Firstly, the side profile of the shoes worn in Robbery 1 have a distinct change in colour midway along the outsole of the shoe. From the CCTV footage it can be observed that the outsole toward the toe is a stark white, from midway along the shoe and around the heel it appears grey. The white “Nike TN” sneakers seized from the accused have an outsole that is entirely white except for numerous transparent air bubbles. These air bubbles cannot be seen on the outsole of the shoes in the CCTV footage from Robbery 1.
105․Secondly, the sole of shoes worn by the offender in Robbery 1 are entirely flat to the ground from toe to heel. The pair of “Nike TN” sneakers seized by police have a distinct upwards curve midway along the side of the sneaker which cannot be seen on the CCTV footage from Robbery 1.
106․Thirdly, the sneakers depicted in the CCTV footage from Robbery 1 have a dark circular feature at the tip of the toe which is not present on the “Nike TN” sneakers. The “Nike TN” sneakers remain white across the front of both toe areas.
107․Notwithstanding the potential risks inherent in making specific and detailed observations from CCTV recordings, I am satisfied that the combination of these observations as to different features of the shoes mean that the shoes worn by the offender in Robbery 1 are not the same as was worn by the offender in Robbery 2 and the accused in Robbery 3.
Jeans
108․The mid-blue jeans worn by the accused when he committed Robbery 3 are consistent with the appearance of the mid-blue jeans worn by the offender who committed Robbery 1. The CCTV footage from Robbery 1 demonstrated that the wash of the denim on the front and back of the upper thigh appeared faded and is comparatively lighter in colour compared to the remainder of the jeans. This feature is consistent with the pair of jeans worn by the accused when he committed Robbery 3.
Gloves
109․The offender was wearing black gloves when he committed Robbery 1. In the frame of the CCTV footage when paused at 1 minute and 35 seconds, the offender has the palm of his left hand placed on the glass partition of the counter with his fingers spread. While the entirety of the glove depicted is black, there is a noticeable difference in the material wrapped around the sides of the palm and covering the sides and tops of the fingers. These parts of the glove appear shiny and reflective in comparison to the rest of the fabric.
110․The different material on the glove is consistent with the glove in evidence. It matches the placement of the plastic covering on the palm and fingers of the exhibit. While the frame of footage I have identified captured the glove comprehensively, there are various other frames of the footage which at least partially capture this same detail on the glove. One minute and 26 seconds into the CCTV footage, the offender has his left hand raised with his palm facing upwards. This frame shows that the entire underside of the glove has a shinier finish in comparison to the material with a matte finish on the opposite side of the glove.
111․The detailing on the left-hand glove depicted in the CCTV footage from Robbery 1 is consistent with the left-hand glove worn by the accused in Robbery 3.
Tomahawk
112․The tomahawk used in Robbery 1 is black, has three holes in the blade and is shaped like a hammer on the side opposite to the blade. This is identical in appearance to the tomahawk used by the accused in Robbery 3.
Robbery 2
113․Robbery 2 occurred just over three hours prior to Robbery 3 at a suburban store in the south Canberra. The offender ran to and from the store. The offender was a white male with a “standard local” accent who demanded that the store employee give him money from the till.
114․When the offender made the demand, he brandished the weapon in his right hand and around the base of it toward the handle was wrapped a red and white plastic bag.
Clothing
115․The outfit worn by the offender in Robbery 2 is identical to the outfit worn by the accused when he committed Robbery 3, hours later. The outfit is as has been described at [84].
116․The offender held up his tracksuit pants when running. Portions of the CCTV footage from Robbery 2 when the offender is not holding up his tracksuit pants, show a sliver of material exposed between the bottom of the offender’s jumper and the top of his tracksuit pants. This is particularly apparent as the offender is running away from the store, from 1 minute and 29 seconds. While the small amount of material exposed does not allow for a definitive conclusion as to whether it is a pair of mid-blue jeans underneath the tracksuit pants, it is sufficient to demonstrate that the material was blue in colour and consistent in appearance with the wash of the denim jeans seized from the accused.
117․The covering on the offender’s head is black and white with the same distinctive markings as the covering worn by the accused when he committed Robbery 3. The markings are the same as the “Henleys” branded t-shirt seized by police when the accused was apprehended after committing Robbery 3.
118․The offender’s entire head was covered save for a slit through which his eyes, eyebrows and the bridge of his nose could be seen.
Shoes
119․The shoes worn by the offender in Robbery 2 have the same appearance as the white “Nike TN” sneakers worn by the accused when he committed Robbery 3. The offender in Robbery 2 has black socks pulled over the white shoes in the same way as the accused did when he committed Robbery 3. The socks used to cover the shoes in Robbery 2 and Robbery 3 are uneven in length, with the result in each instance being that one of the socks sits further up the back of the heel of one of the shoes.
Plastic bag
120․The offender in Robbery 2 used a red and white plastic bag to wrap around the handle of the weapon. The bag has the same appearance as the plastic bag used three hours later by the accused in Robbery 3.
Consideration
121․I am satisfied beyond reasonable doubt that the elements of the offence of aggravated robbery contrary to s 310(b) of the Criminal Code have been established by the evidence in relation to both Robbery 1 and Robbery 2.
122․It is beyond any doubt that the accused committed Robbery 3.
123․Of course, I bear in mind the warnings I have already recorded as to the risks involved in identification evidence where I am required to make assessments from imagery. While not perfect quality, the CCTV and BWC footage in this matter is generally good quality. It is in colour. It is not blurred or especially grainy. In each instance the offender, including the accused for Robbery 3, is depicted for some time and this provides for scrutiny of that which is captured on the recording. The period over which observations can be made of the offender in each instance is not fleeting or momentary. I reiterate that I am satisfied that where I have drawn conclusions as to what can be observed in the footage, those observations can be made with certainty.
124․In this matter the prosecution case rests entirely on coincidence reasoning, there being no direct evidence that the accused was the offender for Robbery 1 or Robbery 2. Coincidence reasoning is based on an assessment of the improbability that similarity as between two or more events is merely a coincidence.
125․The certainty of the accused being the offender who committed Robbery 3, only hours after Robbery 2 was committed, is the anchor of the coincidence mode of reasoning relied upon to establish the identity of the offender for Robbery 1 and Robbery 2.
126․The accused sought to emphasise the features of the offending and of the offender in Robbery 1 and Robbery 2 dissimilar to the features of Robbery 3. That an event is not precisely identical, or that it features readily identifiable differences is not necessarily consequential.
127․As was observed in Selby v R [2017] NSWCCA 40 at [24] to [26]:
24. The questions posed by ss 98 and 101 ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or more) events bear some dissimilarities. Two (or more) events will always be dissimilar in some respects. The question is whether the dissimilarities undercut the improbability of something being a coincidence.
25. This point was made in El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [74], in a passage which concluded “[t]he question is whether the similarity is explicable by coincidence, not whether there are other points of difference.” The same point was made in Page v The Queen [2015] VSCA 357 at [59]:
“[O]nce the identified similarities can be said to raise the improbability of coincidence — and hence give the evidence its probative value — the existence of dissimilarities will not diminish that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position.”
26. The question instead is whether the dissimilarities are relevant in that they detract from the strength of the inferential mode of reasoning permitted by s 98. In El-Haddad the reasons continued:
“True it is that relevant dissimilarities may dilute the probative value of the evidence: see for example the quite different tendency evidence considered in Sokolowskyj v R [2014] NSWCCA 55 at [41], where the ‘marked dissimilarity’ was summarised as follows:
‘On the Crown case, key elements of the offence were a prepubescent victim and no public exhibition. The appellant is said to have latched the door to the change room (inferentially to achieve privacy) and then to have assaulted the complainant. The actions on which the tendency evidence was based had as their hallmark a public display with no prepubescent element in the victim. There was no active assault, rather the appellant’s actions were “passive”. Far from seeking to conceal his actions, the gist or thrill of the offences was the fact that they could be seen and were intended to be seen.’”
128․Having determined the similarity between the robberies I must turn to consider whether those similarities, taken together as a whole, provide a basis to conclude beyond reasonable doubt that the accused is guilty. As part of that assessment, I consider the improbability of the similarities occurring coincidentally. The accused cannot be found guilty unless there is no rational explanation for the circumstances established by the evidence other than the accused being guilty of the offences. If there is any other reasonable inference or conclusion open on the facts inconsistent with the guilt of the accused, then the prosecution case must fail. In R v Hillier [2007] HCA 13; 228 CLR 618 at [46], Gummow, Hayne and Crennan JJ expressed the test as “no other explanation than guilty is reasonably compatible with the circumstances”.
129․The difference as between the weapon used in Robbery 2 and Robbery 3 does not “undercut” the improbability of the acts being a coincidence. Acknowledging the difference between the weapons used in Robbery 2 and Robbery 3 does nothing to detract from the otherwise striking similarities as between the physical presentation of the offender, the circumstances of the events and the use of the weapon (including the unusual feature of the red and white plastic bag wrapped around the base of the handle). The nature and extent of the similarities between Robbery 2 and Robbery 3 are substantial and compelling.
130․The differences in Robbery 1 as between Robbery 2 and Robbery 3 being evidence of the use of a driver by the offender, different shoes and clothing to some extent, can in my view similarly be acknowledged without diluting the effect of the similarities in Robbery 1 to Robbery 2 and Robbery 3. The use of the identical tomahawk, the specific conduct of the offender, the kind of head covering used by the offender and the circumstances of the robbery remain substantial common features not displaced by the dissimilarities.
131․The accused draws on one feature of Robbery 1 in support of the existence of the reasonable hypothesis consistent with innocence that he submitted the prosecution has not excluded. The evidence from a witness at Robbery 1 established that the offender was picked up from the scene of the robbery in a vehicle very similar to a vehicle that can be seen on the footage apparently canvassing the carpark immediately prior to the offender running toward the Drakeford IGA.
132․This evidence was said to support the inference that the offender had the assistance of an accomplice; providing the basis for an inference that the similarities as between the three robberies arise from the accused’s membership of an organised criminal group. This leaves open the possibility, it was submitted, that while the accused was responsible for Robbery 3, he was not responsible for Robbery 1 and Robbery 2. Any similarity as between the events can be explained it was said, by the members of the organised group sharing tools of the trade, clothing and a modus operandi.
133․In support of the existence of a reasonable hypothesis consistent with innocence, the accused sought to highlight the generic nature of some of the items involved, the different weapon in Robbery 2 and the prevalence of some of the branded items of clothing. So much may be accepted. I also accept that there is no evidence as to the availability of the distinctive tomahawk used in Robbery 1 and Robbery 3. However, it is not a matter of scrutinising individual features of the offender and the offending to determine the force of that feature on its own. I must consider the entirety of the evidence and assess whether those features detract from the inferential mode of reasoning permitted with the admission of coincidence evidence.
134․I accept that the evidence of a “getaway driver” in Robbery 1 does raise the prospect that the offender was assisted to an extent to carry out that robbery. That the offender was transported to and from the scene by someone else does not undermine the strength of the evidence in support of the accused as the offender. There is no evidence of similar assistance rendered to the offender in Robbery 2 or to the accused in Robbery 3. The evidence demonstrated that the offender ran from the scene in Robbery 2, and in Robbery 3 the accused ran from the scene before he was captured by members of the public.
135․For an inference to be reasonable it must rest upon something more than mere conjecture or speculation. The extension of the evidence demonstrating the use of a getaway driver in Robbery 1 to a broader hypothesis whereby the accused is a member of an organised criminal syndicate who share weaponry, clothing and methods of effecting a robbery, is an exercise in speculation. One potential accomplice at one of the robberies is not an objective fact from which to infer the reasonable hypothesis consistent with innocence that the accused submitted has not been excluded.
136․The dissimilarity of the involvement of a driver in Robbery 1 is not a circumstance that I consider detracts from the combined strength of the evidence as to the common features of the offending that I have identified. The fact of the involvement of a potential accomplice for Robbery 1 does not undermine the strength of the evidence as to the substantial, striking similarities across and between all three events that point to the accused as the offender for Robbery 1 and Robbery 2. The nature and extent of the similarities that I have found beyond reasonable doubt are substantial and extensive. In my view, it is entirely improbable that coincidence explains the existence of those similarities across and between all three robberies.
137․Having carefully considered the evidence I am satisfied that the prosecution has excluded beyond reasonable doubt any reasonable inference inconsistent with the guilt of the accused.
138․There is no rational explanation for the circumstances established by the evidence other than the accused being the offender who committed Robbery 1 and Robbery 2. Accordingly, I am satisfied beyond reasonable doubt that it was the accused who committed Robbery 1 and the accused who committed Robbery 2.
Verdicts
139․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.
| I certify that the preceding one hundred and thirty-nine [139] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: O Ferguson Date: 25 September 2024 |
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