Director of Public Prosecutions v Weldon (No 2)

[2024] ACTSC 133

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Weldon (No 2)
Citation:	[2024] ACTSC 133
Hearing Dates:	29 April 2024 – 1 May 2024
Decision Date:	3 May 2024
Before:	Berman AJ
Decision:	(1)  I find the accused guilty of count 1 on the indictment

(aggravated burglary).

(2)	I find the accused guilty of count 2 on the indictment
(theft).
(3)	I find the accused guilty of count 3 on the indictment
(aggravated burglary).
(4)	I find the accused guilty of count 4 on the indictment
(theft).

Catchwords:	CRIMINAL LAW – TRIAL – Trial by judge alone – aggravated burglary – theft by way of joint commission – consideration of coincidence evidence – consideration of object identification
evidence – where CCTV footage of varying quality – where evidence consists of strands in a cable – verdict of guilty on all
counts
Legislation Cited:	Criminal Code 2002 (ACT) ss 45A, 308, 312 Evidence Act 2011 (ACT) ss 98, 165, Dictionary
Cases Cited:	Liberato v The Queen (1985) 159 CLR 507 R v Lowe (1997) 98 A Crim R 300 R v Stewart [2001] NSWCCA 260; 52 NSWLR 301
Parties:	Director of Public Prosecutions
Daniel Robert Weldon (Accused)
Representation:	Counsel
M Dyason (DPP)
T Jackson (Accused)
Solicitors
ACT Director of Public Prosecutions
Bevan & Co (Accused)
File Number:	SCC 317 of 2023
BERMAN AJ:
Introduction
1․	On 29 April 2024, the accused was arraigned on an indictment dated 28 November 2023
containing four counts. They were:

1.       Count one – entering or remaining in a building as a trespasser with intent to

commit theft of any property in the building in the company of another person,

contrary to s 312 of the Criminal Code 2002 (ACT).

2.       Count two – dishonestly appropriating property belonging to someone else with

the intention of permanently depriving it of the property, contrary to s 308 of the

Criminal Code 2002 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT).

3.       Count three – entering or remaining in a building as a trespasser with intent to

commit theft of any property in the building in the company of another person,

contrary to s 312 of the Criminal Code 2002 (ACT).

4.       Count four – dishonestly appropriating property belonging to someone else with

the intention of permanently depriving it of the property, contrary to s 308 of the

Criminal Code 2002 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT).

2․	Those charges arose from two burglaries which took place in the early morning of 2
October 2022.
3․	Mr Weldon pleaded not guilty to all counts.
4․	He had previously elected to be tried by judge alone. Before the trial started, he filed an
election signed by himself, and a certificate signed by his legal practitioner which stated
that the practitioner had advised Mr Weldon in relation to his election and that the election
was made freely. Accordingly, the question as to whether he is guilty or not of the counts
on the indictment is one that I will answer rather than a jury.
5․	There is no dispute that those burglaries occurred and that two people were involved.
The only issue for me to determine is whether I am satisfied beyond reasonable doubt
that this accused was one of the two burglars.
6․	My judgment must include the principles of law which I have applied and the relevant
warnings, directions, or comments that I have taken into account in considering my
verdict. I will therefore begin this judgment with a statement of basic principles which
apply to all trials, whether a jury trial or a trial by judge alone.

Principles of law and relevant directions

Onus and standard of proof

7․	The most fundamental direction I give myself is that it is for the prosecution to prove the
guilt of Mr Weldon if it can. The accused does not have to prove that he is innocent, nor
does he have to prove that he is not guilty. The onus of proof is on the prosecution.
Further, because what is alleged are criminal offences, the prosecution must prove the
accused’s guilt beyond reasonable doubt before I can return a guilty verdict.
8․	Mr Weldon started the trial enjoying a presumption of innocence. He continues to enjoy
that presumption even now. The only way in which the presumption of innocence is
removed from him is if I am satisfied beyond reasonable doubt that he is guilty. If I have
a reasonable doubt about his guilt, I must return a verdict of not guilty.

Rely only on the evidence in Court

9․	I have decided my verdict by examining the evidence presented to me in Court. That
evidence largely consisted of CCTV footage taken from the two premises that were the
subject of the burglaries and CCTV footage recovered from the accused’s premises
when they were searched by police.

Missing evidence

10․	That the prosecution bears the onus of proof beyond reasonable doubt has other
consequences too. In this case, there is a dispute about some things, the resolution of
which would have been aided by evidence which was not sought by police. For example,
a pry bar was not seized by police, and no CCTV footage from outside the premises
which were burgled was obtained. I must bear in mind that it is harder to be satisfied of
the guilt of an accused person beyond reasonable doubt where the police have failed or
been unable to obtain evidence which might have assisted me in assessing whether the
accused is guilty of these offences.

No sympathy

11․	There are a number of other things I have ignored. They include emotions. The decision
I have reached is based on a cold-hearted, unemotional analysis of the evidence
presented in this trial. I have made no outside enquiries about any matter which has
come up in the trial, relying solely on the evidence presented to me in Court.

Circumstantial evidence

12․	In this case, the prosecution relies on a number of circumstances in order to prove the
accused’s guilt. I will explain what they are later. But for now, I direct myself that in cases such as this, proof by the prosecution of the accused’s guilt beyond reasonable doubt
necessarily involves the prosecution proving that there is no reasonable explanation for
the circumstances it relies on which is inconsistent with the accused’s guilt.
13․	The prosecution filed a notice of intention to adduce coincidence evidence pursuant to
s 98 of the Evidence Act 2011 (ACT) (Evidence Act) on 23 June 2023. At a later date,
this trial was severed from others relating to the accused, and the accused conceded
that the prosecution is entitled to rely on coincidence reasoning. In particular, evidence
concerning the commission of one burglary can be used by me when I consider the
accused’s guilt on the other burglary.

Identification

14․	The prosecution does not suggest that I can identify the accused as being one of the
men in the CCTV footage of the burglaries from things such as his facial features or his
body shape. Instead, it says that I can recognise objects, such as the shoes worn by one
of the burglars being identical to shoes worn by the offender on the night of the burglaries,
which were found later during a police search at the accused’s property. There is,
however, no distinction in principle between visual, voice, and object identification: see
R v Lowe (1997) 98 A Crim R 300 at 317; R v Stewart [2001] NSWCCA 260; 52 NSWLR
301 at 323.
15․	Although s 165 of the Evidence Act does not apply to identification of objects (see the
definition of “identification evidence” in the Dictionary to the Evidence Act), I will give
myself a direction under that section because of the importance of the identification of
certain objects in the prosecution case. In an appropriate case, and I believe this is one
such case, a judge should recognise that mistakes about the identity of objects can be
made in a similar way to the making of mistakes about the identity of a person.
16․	Accordingly, I recognise that I must be cautious before I accept the prosecution’s
submission that the various objects seen in one set of CCTV footage are the same as
the objects seen in the other CCTV footage, or were the exact objects later found by
police.
17․	Caution is necessary because of the possibility that such a conclusion might be
mistaken. The experience of the law is that mistakes concerning identification are often
and easily made. True it is that that experience usually relates to the identification of a
person, not objects, but there is no reason to believe that identification of things is more
accurate than identification of people.
18․	The common experience of the criminal courts over the years, both here in Australia and
overseas, has demonstrated that conclusions drawn from identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which
evidence of identification has been demonstrated to be wrong after innocent people have
been convicted. I have to examine the evidence very carefully, conscious that there have
been many occasions on which conclusions about identification reached by judicial
officers have been shown to be wrong.
19․	I will be referring to specific aspects regarding the identification evidence later in this
judgment.

Liberato direction

20․	The accused gave evidence. The fact that he gave evidence does not mean that he
somehow has to prove something. He does not have to prove that his version is true. He
does not have to prove that his version is reasonable.
21․	If I believed what the accused said in evidence, I would acquit him on all counts. If I
thought what he said might be true, I would also acquit him on all counts.
22․	Even if I do not believe the accused’s evidence, then I just put that evidence to one side.
It does not follow that disbelieving the evidence he gave automatically means that he is
guilty. In accordance with Liberato v The Queen (1985) 159 CLR 507, even if I did not
believe a single word he said, the ultimate question for me still remains: has the
prosecution proved the guilt of the accused beyond reasonable doubt?

Evidence

23․	A great deal of CCTV footage from the premises that were the subject of the burglaries
was shown to me. The prosecution tendered footage from the CCTV system at an
address in Crace in the Australian Capital Territory (the Crace premises) showing the
accused’s, and others’, movements on 1 and 2 October 2022. A photograph taken of the
accused on 14 October 2022 was tendered. There were facts agreed between the
prosecution and Mr Weldon. The accused gave evidence and called evidence from his
partner. From that material, I draw a number of conclusions.
24․	In drawing these conclusions, I have borne in mind the warning I said I would give myself
regarding the identification of objects. I note that:

(a)	The CCTV footage was of varying quality.
(b)	Some was in black and white, and some was in colour.
(c)	When an object was being moved quickly, the image was sometimes blurred.
(d)	Whether because of the type of camera or the type of lighting, sometimes the

same thing appeared to be differently coloured when recorded or

photographed by different cameras in different locations.

25․	I will now describe the evidence in the trial and explain the conclusions I have drawn
from that evidence.

The first burglary – Brew and Brew

26․	At about 1am on 2 October 2022, two men entered a café called Brew and Brew in
Forrest in the Australian Capital Territory (Brew & Brew Café). They were both wearing
hooded jackets. The hood of one of the jackets was fur-lined. I will refer to the man not
wearing the jacket with the fur-lined hood as Man A. The prosecution case is that this
man was the accused. I will refer to the man wearing the jacket with the fur-lined hood
as Man B.
27․	Man A and Man B are seen in the footage inside Brew & Brew Café removing a safe
from the kitchen, taking a tip jar, and removing them from the premises. It is an agreed
fact that the safe contained about $6,500 and the tip jar contained about $1,000.
28․	Man A and Man B then return to Brew & Brew Café with a long pole and turn their
attention to an ATM inside the premises. I would describe the long pole as a ‘crowbar’ or
‘pry bar’. The men use the pry bar in an attempt to either remove the ATM from the
premises or to damage it enough so that they can gain access to the money inside. This
takes a long time. They are ultimately unsuccessful, and they eventually leave. The time
of their departure is recorded on the CCTV footage as 3:23am.
29․	It is important to observe that daylight saving time started at 2am on 2 October 2022
while the two men were in Brew & Brew Café, and so they left Brew & Brew Café about
1 hour and 23 minutes after they arrived.
30․	The CCTV footage I was shown of Brew & Brew Café came from 4 cameras. It was
monochrome. I was able to make the following observations:

(a) The pry bar was about 160cm long. It was straight, coming to a point at one

end. At the other end was a thick disc. It appeared to be bent (see the centre

photo on page 3 of exhibit 8).

(b) Man B was wearing a jacket with a fur-lined hood. He was wearing shoes with

3 stripes on their side with white or light-coloured socks.

(c) Man A was wearing shoes with a distinctive pattern on the uppers (the footage

is taken from above). On his right hand he wore a glove with a rectangular

strip which reflected the light. He was wearing a jacket with an unlined hood.

The second burglary – Questacon Atomic Café

31․	At about 4:05am on 2 October 2022, two men entered Questacon Atomic Café in Parkes
in the Australian Capital Territory (Atomic Café). This was about 42 minutes after Man
A and Man B left the Brew & Brew Café. Whilst in the premises, the men took money
from two tills and also stole a safe.
32․	I was shown colour CCTV footage from Atomic Café. Having viewed that CCTV footage
closely, I am satisfied beyond reasonable doubt that the men in Atomic Café were the
same men who were in Brew & Brew Café shortly beforehand.
33․	I make that finding for the following reasons, in combination:

(a) Two men entered Atomic Café relatively soon after Man A and Man B left

Brew & Brew Café.

(b) One of the men who entered Atomic Café wore a jacket with a fur-lined hood

while the other wore a jacket with an unlined hood.

(c) The man with the fur-lined hood was wearing shoes with 3 stripes on their

sides.

(d)	That man’s socks were white.
(e)	There was no discernible difference between the appearance of Man B at

Brew & Brew Café and the man with the fur-lined hood at Atomic Café.

(f) The other man at Atomic Café was wearing shoes with the same distinctive

pattern on their uppers as those worn by Man A at Brew & Brew Café.

(g) That man was wearing gloves, with the one on his right hand having a

rectangular patch which corresponded with the rectangular reflective patch on

the glove worn by Man A at Brew & Brew Café. It did not reflect in the same

way as the patch seen in the CCTV footage of Brew & Brew Café, but that is

likely due to the different lighting conditions or different cameras.

(h) There was no discernible difference between the appearance of Man A at

Brew & Brew Café and the man with the unlined hood at Atomic Café.

(i)       The two men were with each other at both locations.

(j) The two men were up to no good on both occasions.

34․	I should explain that last observation. It is one thing to contemplate the likelihood of two
men dressed remarkably similarly to two other men being out in Canberra in the early
hours of a particular day. But adding to the unlikelihood of that happening is that,
coincidentally, both pairs of men were engaged in a burglary.
35․	I should also explain what I meant about the different lighting conditions in the CCTV
footage from the two cafés. It is clear that the illumination was different. This is most
apparent from the way in which pinpoints of white light occasionally appeared in the eyes
of the men in Brew & Brew Café. They looked similar to the ‘red eye’ which appears in
some photographs taken of people using a flash, albeit the pinpoint light was white and
not red. An example of this can be seen in the left-hand photo on page 2 of exhibit 8. No
similar observation can be made in the CCTV footage from the Atomic Café. It is obvious
that either different types of light were used to illuminate the areas captured by the CCTV
cameras in the two cafés or that the two cafés used cameras with different sensors in
them.
36․	A good example of how objects can appear differently when photographed under
different conditions can be seen on page 1 of exhibit 8, where the same jacket
photographed on two different occasions looks vastly different in colour in the two
photographs.
37․	I am satisfied beyond reasonable doubt that Man A and Man B from Brew & Brew Café
were the men captured on the CCTV camera at Atomic Café.

A photo of the accused on 14 October 2022

38․	A photograph was taken of the accused at about 12:30am on 14 October 2022. It shows
the accused wearing shoes with the same pattern on their uppers as the shoes worn by
Man A in the CCTV footage from Brew & Brew Café and the CCTV footage from Atomic
Café.

The Crace premises CCTV

39․	Although the accused did not live at the Crace premises, his partner and children did.
Helpfully, as it turned out, the accused had installed a CCTV system there. The Crace
premises were searched by police on 14 October 2022. They seized CCTV footage
showing the inside and outside of those premises from 12 days earlier. Once the time
stamp on the footage was corrected to match the right time (accounting for daylight
saving time), that footage showed:

(a) The accused wearing shoes with the same pattern as Man A shortly before

Man A entered Brew & Brew Café.

(b) The accused carrying out of the Crace premises a tool so similar in size and

shape to the pry bar seen in the CCTV footage of Brew & Brew Café as to be

identical in appearance. In particular, it appears to be bent (see exhibit 6, file

“02 OCT - HRS0041-0054 - CAM04 Outside” at timestamp 00:47:10).

(c) The accused driving away from the Crace premises relatively shortly before

Man A entered Brew & Brew Café.

(d) The accused and another man arriving at the Crace premises after Man A and

Man B left Atomic Café.

(e) On his return to the Crace premises, the accused was carrying a jacket with a

fur-lined hood.

(f) The other man with the accused was carrying an item which was consistent

with the pry bar seen in the CCTV footage from Brew & Brew Café. In

particular, it was bent (see the left-hand photo on page 3 of exhibit 8).

(g) The accused was wearing shoes with a Nike “swoosh” on their sides.

40․	I should discuss the bend in the pry bar. In some of the CCTV footage and screenshots
taken of that CCTV footage, the pry bar appears straight. However, even a banana looks
straight when viewed from a certain angle. Mr Jackson, who appeared for Mr Weldon,
submitted that the bend in the pry bar in the screenshots taken of the CCTV footage may
be because “they are a screenshot of moving footage, when the screenshot is taken it
may be taken as it's buffering through the data, so that may also cause the effect of the
bend”.
41․	Although there was no evidence to establish the proposition that taking a screen shot
from a video can make a straight object look bent, I did go back to review the footage
itself rather than relying on the screenshots. When I did that, I found that the bend
appears in the video footage as well as the screenshots. The screenshots are accurate
still images of the video footage. There is no doubt that the footage from Brew & Brew
Café and the Crace premises show a bent pry bar.

Items found during the search of the Crace premises

42․	Found during the search of the Crace premises on 14 October 2022 were items which
included a pry bar, a pair of Nike Vapormax shoes, and a jacket with a fur-lined hood.
The shoes and the jacket were tendered.
43․	The pry bar matched the size and shape of the pry bar on the CCTV footage of Brew &
Brew Café, the tool carried by the accused as he left the Crace premises on 2 October
2022, and the tool carried by the second man when he and the accused arrived at the
Crace premises later that day. It was not seized by police. The photographs taken by
police of the pry bar in situ did not allow me to determine whether it was straight or not,
but it had the thick disc on one end that the pry bar at Brew & Brew Café had.
44․	In his evidence, Mr Weldon initially said that the pry bar belonged to his son but later
said that it belonged to a man he named, but whom I will call Mr Evans, and that he, Mr
Weldon, had taken his son’s pry bar with him when he left the Crace premises shortly
before midnight. He said that the one being carried into the Crace premises was Mr
Evans’, who had asked if he could store it at the Crace premises.
45․	The pair of Nike Vapormax shoes had the same distinctive pattern on their uppers as
seen in the CCTV footage from the two cafés and the Nike swoosh seen on the CCTV
footage from the Crace premises. In his evidence, Mr Weldon denied that the shoes
found by police were his shoes. Those shoes were a size US 9.5. Mr Weldon said he
wore a size 10 and could not fit into a size 9.5. In echoes of that famous moment in the
OJ Simpson trial where the prosecutor asked OJ Simpson to try on a leather glove during
cross examination (leading to “if the glove don’t fit you must acquit”), the prosecutor
asked Mr Weldon to take off the shoes he was wearing in the witness box to see what
size they were. They were a size 10.
46․	However, not too much can be made of this because when asked about the photograph
of him taken by police on 14 October 2022, Mr Weldon said that he owned a pair of
shoes similar to the ones found by police at the Crace premises. So, even if Mr Weldon
had never worn the Nike Vapormax shoes found in the garage at the Crace premises,
he did own an identical pair and was wearing them on 14 October 2022.
47․	The jacket with the fur-lined hood found by police at the Crace premises was of the same
style as that seen in the CCTV footage from the two cafés. For example, the placement
of the buttons on the jacket which was tendered was identical to the buttons on the jacket
seen in the CCTV footage from the two cafés (see most obviously page 3 of exhibit 8).
48․	In his evidence, Mr Weldon agreed that he carried a jacket with a fur-lined hood into his
premises, as captured on the CCTV footage from the Crace premises. However, he said
that this jacket belonged to Mr Evans and that he, Mr Weldon, washed it for him in the
washing machine at the Crace premises before hanging it up to dry, where it was found
by police on 14 October 2022.

Evidence of the accused

49․	I have already touched on what the accused said in evidence about some of the things
found by police at the Crace premises. I appreciate that what I am about to say involves
some repetition, but because of the importance of the accused’s evidence to his defence
against these charges, I will briefly summarise the accused’s evidence.
50․	His evidence was that he did leave the Crace premises as depicted in the CCTV footage
shortly before midnight. He said that he was carrying his son’s pry bar, which he needed to use to fix the fence at his home in Theodore – he needed to get rid of the concrete
around the fence posts. He said that he went straight home and when he got there, he
“did a bit of digging” at midnight before having a shower and going to bed.
51․	He explained the footage showing him returning to the Crace premises carrying a jacket
with a fur-lined hood and with another man carrying a pry bar this way:

(a) He used to work at Yeddung Mura as a “sort of health worker”. He would see

clients as part of a suicide prevention program.

(b) On the morning of 2 October 2022, one of his clients, Mr Evans, rang him up.

He picked up Mr Evans on his way back to Crace.

(c) He agreed in cross examination that the CCTV footage of the Crace premises

showed Mr Evans carrying a pry bar into the Crace premises but said “that’s

not the same one I had”. Mr Evans had apparently asked him if he could leave

his pry bar at the Crace premises for a few days. It did not cross the accused’s

mind to ask him why.

(d) It was Mr Evans’ pry bar which police found in the garage at the Crace

premises.

52․	Mr Weldon’s evidence about who owned the pry bar photographed by police at the Crace
premises changed over the course of his evidence. The prosecution submits that this is
a reason to find that his evidence is unreliable. In making that assessment however, I
will ignore this aspect of the accused’s evidence, mainly because, although it could
perhaps be the product of the accused telling lies, it may also result from the delay
between when the events happened and when Mr Weldon gave evidence about them.
53․	As far as the jacket seized by police from the Crace premises is concerned, the accused
said it belonged to Mr Evans. Mr Weldon gave him a change of clothes and washed Mr
Evans’ clothes, including his jacket. He hung the jacket up to dry, which is where the
police found it.
54․	His evidence was that far from committing two burglaries in the early hours of 2 October
2022, he was asleep in his home in Theodore.
55․	It has to be remarked at this stage that if Mr Weldon’s evidence is true there have been
some amazing coincidences. Within a few hours of Mr Weldon taking a pry bar away
from the Crace premises, a client of his asked him to store a pry bar, and nothing else,
at the Crace premises. No explanation for him needing to store the pry bar at the Crace
premises was ever offered. And included in the washing which Mr Weldon did for Mr Evans was a jacket which was simply left at the Crace premises after it had been washed
and which was identical to a jacket used in two burglaries that very morning.
56․	If Mr Weldon is to be believed, then there were two men committing burglaries in
Canberra that morning:

(a) One of whom wore a pair of shoes of an identical design to a pair owned by

Mr Weldon.

(b) The other of whom wore a jacket identical to a jacket carried by Mr Weldon

into the Crace premises a few hours after the burglaries.

(c) Who used a bent pry bar of identical shape and similar length to a pry bar

carried by Mr Weldon to his car shortly before the burglary in which the pry bar

was used took place, and of identical shape and a similar size to a bent pry

bar carried into the Crace premises by a man in company with Mr Weldon

shortly after the burglaries had been completed.

(d) Who started their burglaries shortly after Mr Weldon left the Crace premises

and who finished their activities shortly before Mr Weldon returned to the

Crace premises.

57․	For these reasons, I reject the exculpatory aspects of what the accused said in evidence.
It is not reasonably possible that they are truthful or accurate.
58․	However, as I directed myself earlier, that does not automatically mean that the accused
is guilty. I simply put his evidence to one side and look at the evidence I do accept and
examine that to see whether the circumstances established by that evidence are such
that they satisfy me that there is no reasonable explanation for them other than that the
accused committed these two burglaries.
59․	I do accept those things he said which were contrary to his interests, firstly being the
time at which he said he left the Crace premises. If the time on the CCTV footage from
the Crace premises is accurate, then it is agreed by the parties that the geography is
such that Mr Weldon could not have arrived at Brew & Brew Café by the time the CCTV
footage shows the entry of Man A and Man B. But Mr Weldon gave evidence that on 1
October 2022, he left the Crace premises at around 11:50pm which, again it is agreed,
would give him time to get to Brew & Brew Café in time to be one of the men who entered
those premises.
60․	The second matter about which Mr Weldon gave evidence, which I accept, concerns his
ownership of a pair of Nike Vapormax shoes.
61․	Mr Weldon also accepted the accuracy of the CCTV footage of the Crace premises which
showed him leaving with a large pry bar and returning with a jacket with a fur-lined hood.
62․	I should mention at this stage that although the jacket appeared not to be in a clean state
when it was tendered in Court, which would suggest that Mr Weldon’s evidence that he
washed the jacket shortly before it was seized by police might not be true, I have not
taken this into account in deciding to reject the exculpatory parts of Mr Weldon’s
evidence.
63․	Mr Jackson conceded that I was entitled to take into account my own assessment of
whether the jacket had been washed. My observation is that the jacket is dirty. There are
spots on the lining and the exterior surface is marked. However, I accept Mr Jackson ’s
submissions on this matter. There is no evidence of how good the washing machine at
the Crace premises is, nor do we know the quality of the laundry detergent or what cycle
was used. Perhaps most importantly, there is no evidence as to how the jacket was
treated after it was seized by police. In such circumstances, I ignore my own opinion of
whether the jacket appears to have been washed shortly before it was seized by police.

Consideration

64․	The evidence on which the prosecution primarily relies consists mainly of the three sets
of CCTV footage, the photograph of the accused taken on 14 October 2022, the
photographs of objects at the Crace premises during the police search, as well as the
jacket tendered by the prosecution.
65․	I have not had any regard to the Nike Vapormax shoes found during the police search
and tendered in the trial. They were not the accused’s size, and it is not necessary to
decide whether the accused was wearing those specific shoes when photographed on
14 October 2022 and when captured on the CCTV footage of the Crace premises. That
is because it matters not whether he was wearing the specific shoes seized by police –
what matters is that he was wearing shoes with that distinctive pattern on them shortly
before midnight on 1 October 2022 when he left the Crace premises.
66․	I have already explained why I am satisfied beyond reasonable doubt that the same two
men committed both burglaries.
67․	I am also satisfied beyond reasonable doubt that the accused was the man I have called
Man A. That is the only reasonable explanation available on the evidence before me.
68․	The circumstances which in combination satisfy me of the accused’s guilt are:

(a) When he left the Crace premises, he was wearing shoes which were identical

to those worn by Man A.

(b) When he left the Crace premises, he was carrying a bent pry bar identical in

appearance to the bent pry bar used by Man A and Man B.

(c) He left the Crace premises an hour or so before Man A entered Brew & Brew

Café.

(d) When he returned to the Crace premises, he was carrying a jacket which was

identical to the jacket worn by Man B.

(e) When he returned to the Crace premises, he was with a man who was

carrying a bent pry bar identical in appearance to the pry bar used by Man A

and Man B.

(f) He returned to the Crace premises a couple of hours after Man A and Man B

left Atomic Café.

69․	Not all of those circumstances are of the same importance in coming to the conclusion I
have reached. There was no evidence as to how common Nike Vapormax shoes are,
which effects the weight to be given to this circumstance. It may be that if this was the
only circumstance relied on by the prosecution, then the accused would be entitled to be
acquitted, but the shoes represent only one of the strands in the cable which is the
prosecution case. In this matter, not all of the strands are of the same strength, some,
such as the shoes, are weaker than others, such as the pry bar, which I believe to be of
particular significance.
70․	Mr Jackson, perhaps faintly, suggested the possibility that the man who arrived at the
Crace premises with the accused may well have been Man B who committed these
burglaries with someone other than the accused. I have little hesitation in rejecting that
scenario as not being reasonably possible, mainly because the pry bar which the
accused carried as he left the Crace premises is, I am satisfied beyond reasonable
doubt, the same pry bar which was used at the burglary at Brew & Brew Café, and which
was carried back into the Crace premises by the man with the accused after the
burglaries.
71․	The parties agreed on facts, which meant that the only matter for me to determine in this
case was whether the accused was one of the men in the CCTV footage from the two
cafés. It was agreed that if I was so satisfied of that matter beyond reasonable doubt, I
would also be satisfied to that level of the various elements which make up the four
offences on the indictment.

Orders

72․ For those reasons, I return the following verdicts:

(1)	I find the accused guilty of count 1 on the indictment (aggravated burglary).
(2)	I find the accused guilty of count 2 on the indictment (theft).
(3)	I find the accused guilty of count 3 on the indictment (aggravated burglary).
(4)	I find the accused guilty of count 4 on the indictment (theft).

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.

Associate:

Date: