Director of Public Prosecutions v Whitfield - [2025] ACTSC 425

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Whitfield
Citation:	[2025] ACTSC 425
Hearing Dates:	28, 30 – 31 July, 1 August, 1 – 2, 4 September 2025
Decision Date:	18 September 2025
Before:	Kelly AJ
Decision:	The verdicts are as follows: (1) Count 1 (CC2024/6756) - Aggravated robbery – guilty. (2) Count 2 (CC2024/6757) - Aggravated burglary – guilty.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – aggravated robbery and aggravated burglary at the Old Canberra Inn – knife used – CCTV footage – visual and voice identification – identity of offender sole issue for determination
Legislation Cited:	Criminal Code 2002 (ACT), ss 310(b), 312(b) Evidence Act 2011 (ACT), ss 114, 135, 137, 165 Supreme Court Act 1933 (ACT), s 68B
Cases Cited:	DPP v Holder [2022] ACTSC 336 DPP v Cross (No 3) [2025] ACTSC 292 Fantakis v R [2023] NSWCCA 3
Parties:	Director of Public Prosecutions Andrew Whitfield ( Accused)
Representation:	Counsel M Lucero ( DPP) S Jerome ( Accused)
Solicitors ACT Director of Public Prosecutions Jeffrey Silk ( Accused)
File Number:	SCC 417 of 2024

KELLY AJ:

Introduction

This is a trial by judge alone after the accused Andrew Whitfield signed an election on 25 March 2025 to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT).
The accused has been charged with one count of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT) and one count of aggravated burglary contrary to s 312(b) of the Criminal Code 2002.
As the accused elected to be tried by judge alone, I must include the principles of law applied by me, and the findings of fact on which I rely on in this judgment. I am also required to consider any direction or warning that might be given to a jury when considering the verdict.

Elements

Aggravated robbery

The elements of aggravated robbery are as follows:
1.The accused appropriated something; he intended to appropriate something;
2.That which was appropriated was property;
3.The accused was reckless about whether that which was appropriated was property;
4.The property belonged to another person;
5.The accused was reckless to the fact that the property belonged to another person;
6.The appropriation was dishonest according to the standards of ordinary people;
7.The accused knew that the appropriation was dishonest according to the standards of ordinary people;
8.At the time that the accused appropriated the property, the accused intended to permanently deprive the person to whom the property belonged of that property;
9.While committing the theft or immediately before committing the theft or immediately after committing the theft the accused used force on someone else or threatened to use force then and there on someone else;
10.The accused intended to commit theft or escape from the scene when using force or threatening to use force;
11.The accused had an offensive weapon with him at the time of committing the robbery; and
12.He intended to have that offensive weapon with him.

Aggravated burglary

The elements of aggravated burglary are as follows:
1.The accused entered or remained in a building;
2.The accused intended to enter or remain in a building;
3.The accused was a trespasser, that is, he had no permission to enter or remain in the building;
4.The accused was reckless as to whether or not his entering or remaining in the building was without permission;
5.At the time of entering or remaining on the property, the accused intended to commit an offence that involved causing harm or threatening to cause harm to anyone in the building;
6.The accused had an offensive weapon with him at the time he committed the burglary; and
7.The accused intended to have an offensive weapon with him at the time he committed the burglary.

General directions

I have taken the following generally applicable directions into account in reaching my verdicts.

Onus and standard of proof

The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. That burden does not ever shift to the accused. The accused is presumed to be innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. I must find him not guilty if the evidence which I accept fails to satisfy me beyond reasonable doubt of the accused’s guilt. Each element of the offence must be proved beyond reasonable doubt.

Fact finding and inferences

I must find the facts of the case based on the evidence presented. In assessing the evidence, I must bring an open and unbiased mind. I must consider the evidence clinically and dispassionately, without letting emotion enter the decision-making process. I may use my common sense, and individual life experience and wisdom in assessing the evidence.
I must determine whether each witness called is reliable. That is, whether the witness has an accurate and reliable memory of the events in question, about which the witness has given evidence. I am not required to accept a witness’ evidence wholly or to reject it wholly. I can accept everything said by a witness if I consider it worthy of acceptance, or reject it if I consider it entirely unworthy of acceptance, or I can accept part of what a witness has said and reject other parts of what they have said. A witness can be truthful but wholly unreliable, or a witness can be truthful but only partially unreliable.
I may draw inferences from the facts that I find to have been established by the evidence. I must examine any possible inference to ensure that it is justifiable, and I must not draw an inference from any direct evidence unless it is rational in the circumstances.

The accused did not give evidence

The accused did not give evidence in these proceedings. The accused has no obligation to call or give evidence, and I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing, and it is for the prosecution to prove his guilt according to the requisite standard, namely, beyond reasonable doubt. I cannot use the absence of evidence from the accused to fill in any gaps in the prosecution case, nor can it be used to strengthen the prosecution case. I cannot speculate about what might have been said by the accused in evidence, had he been called to give evidence. In short, I cannot take the accused’s decision not to give evidence into account in any way in deciding this case.

Evidence given by audio-visual link

Multiple witnesses gave evidence from a location remote to the Court, connected to the proceedings by audio-visual link. This is the usual practice, and I must not draw any inference adverse to the accused, or attach any greater or lesser weight to the evidence of the witnesses because of the means by which they gave their evidence.

Additional directions

Markuleski direction

I do not consider that it is either appropriate or necessary to direct myself in relation to the two separate counts here. Both counts of aggravated robbery and burglary, in the particular circumstances of this case, stand or fall together. The only issue is whether on the evidence before me, I can be satisfied beyond reasonable doubt that the robber is the accused.

Mahmood direction

Counsel for the accused, Ms Jerome, submitted that I should take into account the fact that there is no evidence that the police made any enquiries from staff members who were present that night and other patrons who left the hotel via the same door only minutes before the robber entered.
Ms Jerome submitted I should take the absence of any evidence from those witnesses into account when deciding whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
In Fantakis v The Queen [2023] NSWCCA 3, the Court relevantly observed in relation to a similar complaint on appeal, where a potentially relevant witness had not been called, that there had been no application by the accused to call that witness at any stage of the proceedings and therefore the circumstances did not require a direction to the jury in terms of the Mahmood direction.
Relying on that decision, counsel for the prosecution submitted there is no need for me to give myself such a direction in relation to the absence of the potential witnesses referred to by Ms Jerome. The accused had been on notice for some time of the witnesses proposed to be called by the prosecutor and at no stage applied for any of those persons to be called.
I appreciate that where the prosecution has failed or been unable to obtain evidence which might have assisted me in assessing whether the accused is guilty of these offences, I must bear in mind that it is harder to be satisfied of the accused’s guilt beyond reasonable doubt.
However, I do not regard the absence of other bar staff and patrons as witnesses in this trial is a relevant failure on the part of the police. None of those potential witnesses were present during the robbery and I cannot and do not speculate about what, if any relevant evidence they may have given.
The critical issue for me is whether I can be satisfied beyond reasonable doubt, on the basis of the evidence which the prosecution has called, of the accused’s guilt on these charges.

Circumstantial evidence

The evidence in this case includes both direct evidence and circumstantial evidence. The prosecution relies on a number of circumstances in support of the allegations, including the direct evidence of Mr Ryan and Mr Eaton who were present during the robbery. The prosecution also relies on a number of other circumstances including the CCTV footage earlier in the night depicting the accused, CCTV footage of the robbery occurring and other items seized by the police. The prosecution submits that the combined effect of the direct and circumstantial evidence is sufficient to establish the accused’s guilt beyond reasonable doubt.
I must first consider the evidence put forward by the prosecution, and determine which facts I find have been established on the evidence. Only the elements of the offences need be proved beyond reasonable doubt. I must then, considering those facts as a whole, determine whether I can conclude from those facts that the accused is guilty of the offences charged. I must consider the facts as I have accepted them as a whole, and not by a piecemeal approach (DPP v Cross (No 3) [2025] ACTSC 292 at [350]). Once I am satisfied that such a conclusion is reasonable to be drawn, I must then also be satisfied that a conclusion of guilt is the only conclusion reasonably open on the evidence. In other words, “the prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused [was the robber] is the only rational inference that can be drawn from the whole of the circumstances actually established to my satisfaction by evidence I accept” (DPP v Holder [2022] ACTSC 336 at [63]). If there is any other reasonable conclusion open on the facts which is inconsistent with a conclusion of guilt, then the prosecution’s circumstantial case has failed.
I direct myself that a case reliant on circumstantial evidence is not weaker than one involving direct evidence only.
Taylor J detailed the considerations relevant to a circumstantial case in DPP v Cross (No 3) at [351]:
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.

Expert evidence

Mr Jason Betts was called as an expert witness in this case. An expert witness has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise.
I direct myself that the value of any expert opinion will depend upon the reliability and accuracy of the material which the expert used to reach his or her opinion. It will also depend upon the degree to which the expert analyses the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.
In light of the conclusion I have reached about the evidence of Mr Betts, I do not consider it necessary to give myself any further warning.
Evidence from Mr David Ringrose, a police officer, was admitted to provide information about the still frames that were extracted from the CCTV footage of the Old Canberra Inn (OCI), including any degradation in quality or limitations to their accuracy. Mr Ringrose also explained the process by which they were extracted and processed. This evidence was led in the context of explaining how the photograph tendered at trial was selected for comparison. Having heard from Mr Ringrose, I do not consider that his evidence is to be characterised as expert evidence as he did not express any opinion based on any expert knowledge.

Visual and voice identification evidence

Before dealing with the evidence of the eyewitnesses I need to say something arising out of the nature of their evidence.
There were only two witnesses called (Mr Sean Ryan and Mr Thomas Eaton) to identify the accused and it is therefore necessary to remind myself of the need for caution in deciding whether I can accept their evidence that they recognised the robber as the person they had seen earlier in the evening. Both witnesses purported to identify the accused by reference not only to his appearance, but by the timbre of his voice together with the clothing worn.
There is a particular need to heed that warning in the circumstances of this matter as they are the only two witnesses who purport to identify the accused and they did so in circumstances where they had only met the accused approximately two hours before the robbery. That was at a time when they were both still working and attending to their duties in the OCI as barman and manager, respectively.
As identification is the critical issue in this trial, it is even more important that I remind myself why the evidence of visual and voice identification might be unreliable. Although I have no hesitation in accepting the honesty of both Mr Ryan and Mr Eaton and I accept they did their best to give truthful, accurate and honest evidence, nevertheless, it is the experience of criminal courts over the years that identification of whatever kind may turn out to be mistaken.
There is no distinction between visual, voice and object identification for the purpose of warning myself of the dangers of making a mistake with respect to this evidence.
There have been some notorious cases in more than one jurisdiction in which witnesses have given evidence of identification, which has later been demonstrated to be wrong and innocent persons have been convicted. This warning applies equally to visual and voice identification evidence.
In the particular circumstances of this matter in which both witnesses claim to have seen and heard the accused speak only two hours before the robbery, it is particularly significant that both witnesses were present at the same time as the robbery was committed and were in a position to discuss it for at least some time in the immediate aftermath of the robbery. Furthermore, it is not in dispute that at least Mr Ryan had access to the CCTV footage of patrons attending earlier that night, as well as of the actual robbery itself, before he provided a statement to the police that night.
Counsel for the accused pointed to a number of factors which she says affect the weight of the evidence which both witnesses have given and also affect its reliability:
(a)She pointed to the fact that the accused was not known to either of the witnesses before that night. Both witnesses were in the middle of performing duties at the OCI at the time when the accused entered the hotel with his friend prior to the robbery and had only limited opportunity to observe the accused.
(b)At best, the accused spoke only one or two sentences in the presence of those two witnesses, either separately or when they were together.
(c)The lighting in the hotel at the time was dim.
(d)The robbery occurred two hours after the accused had been at the hotel.
(e)Both Mr Ryan and Mr Eaton were friends at the time and continue to be friends. All three of the staff members who were present at the robbery had the opportunity to discuss amongst themselves immediately after the robbery.
(f)Both witnesses agreed with each other during the period of time before the police arrived that the robber was the man they had seen earlier that night.
(g)Both witnesses had the opportunity and did speak about the robbery after the event.
(h)Both the witnesses had just ‘knocked off’ after working long hours and were tired.
(i)It was an extremely frightening encounter and both were shocked and frightened.
Just because a witness claims to know the person does not mean that there is no possibility of mistake. This is particularly so when the previous meeting, as here, only two hours earlier, was brief and transitory.
I also remind myself that even though there were two eyewitnesses who purport to identify the accused, that does not necessarily mean that there is less chance of a mistake, particularly in circumstances where they were both together for some time, immediately after the robbery. It is a distinct possibility that both witnesses could be mistaken.

The ruling as to the admissibility of the identification evidence – ss 135 and 137 of the Evidence Act 2011 (ACT)

At the conclusion of argument at the beginning of the trial, I determined that the evidence of identification by Mr Ryan and Mr Eaton in their recorded evidence in chief interviews (EICI) was not inadmissible by the reason of s 114 of the Evidence Act 2011 (ACT) (Evidence Act). However, I determined at that stage to admit their evidence provisionally and deferred my ruling as to whether their evidence should nevertheless be excluded on either of the bases under ss 135 and 137 of the Evidence Act. That is to say, whether the evidence of their identification of the accused as the robber is so prejudicial that it outweighs its probative value and in any event, in the circumstances here it is so inherently unreliable that it should not be admitted at all.
Sections 135 and 137 of the Evidence Act are as follows:
135General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.

…
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Ms Jerome pointed in particular to the limited verbal interaction each witness had with the accused at 9:30 pm that night, their limited opportunity to observe him for the hour that he was at the hotel, and the fact that they were prejudiced against the accused from the outset by reason of his entry into the hotel with a bottle of beer in his hand. At the time when he was at the hotel they did not say he was “gurning” or had bulging eyes. Further, the accused was not so intoxicated that they refused him alcohol and they did not ask him to leave.
In view of the inherent unreliability of their identification evidence, Ms Jerome submitted that their opinion of who they thought the robber was would unfairly influence the fact-finder’s analysis of the evidence.
With the benefit of having seen and heard their evidence, I do not agree that either of the witnesses’ evidence was so inherently unreliable that it should be excluded.
The prosecution have not suggested that I can identify the accused as the man seen in the CCTV footage shortly after 12:17 am only from his facial features or his body shape. Instead, it says I can identify the man as the accused by reference to his voice, the clothing he was wearing, including the jacket, pants and shoes worn by the robber which the prosecution suggests are identical or similar to the clothing and shoes worn by the accused earlier on the night of the robbery, and the shoes found by the police at the accused’s property the next day. Both said they recognised the accused’s nasal tone and slurred speech.
For the purpose of this ruling, I acknowledge that although I need to be cautious before I accept the prosecution submission, the warnings I can and do give myself will ameliorate the risk of making a mistake.
Identification evidence is defined in the Evidence Act as:
identification evidence means evidence that is—
(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—
(i) the offence for which the defendant is being prosecuted was committed; or
(ii) an act connected to the offence was done;
at or about the time at which the offence was committed or act was done, that is an assertion based completely or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report (whether oral or in writing) of the assertion.
Although s 165 does not apply to objects, I have nevertheless included those features of the identification evidence in the warning I give myself as to the voice and visual identification because of the importance the prosecution place on the identification of those objects and features.
I recognise that mistakes about the identity of objects can be made in a similar way to the making of mistakes about the visual and voice identification of a person. That is so, particularly where, as here, objects of that kind are commonly worn by others. Indeed, as seen on the CCTV footage, similar clothing including jackets, pants and shoes was being worn by other patrons at the hotel between 9:30 pm and 12:30 am that night.
At this point, it is relevant to note that both Mr Ryan and Mr Eaton had the responsibility to keep a look out and make observations of patrons coming into the venue. The accused immediately attracted attention, not just because of his appearance, but because he came into the hotel with prohibited alcohol. To say the witnesses “did not like the accused” belies the reason that they both had to take particular notice of the accused whilst he was in the hotel. That is indeed why Mr Ryan followed him to the toilet.
Their dislike or suspicion, however it is characterised, is the very reason both witnesses had, to keep him under discrete surveillance. That is exactly what Mr Ryan did. That in itself is sufficient to allay any concerns that the meeting that night was fleeting and brief.
While the events that night all occurred within a short space of time, the identification of the robber as the accused by both witnesses was an instantaneous reaction by both of them, and was within seconds of the robber’s departure. They exclaimed to each other words to the effect that he was the “mohawk man”.
Notwithstanding the criticisms made by counsel for the accused that neither witness heard the accused utter more than a few words, Mr Ryan at least, could hear the background chatter as they sat in the corner of the bar. Both witnesses identified his voice as having a distinctive nasal quality, and both had reason to pay particular attention to the accused.
These features, to my mind, enhance the reliability of their evidence, rather than detract from it. In other words, the same features relied on by the accused’s counsel to submit that the evidence is too unreliable to admit, can also be viewed as enhancing the reliability.
It is for these reasons I accept the prosecution submission that, providing I heed the strong warnings about this evidence, there is no unfairness to the accused in admitting it.
It is not overestimating the identification evidence to say it is the crucial evidence on the prosecution case. Therefore, it is highly probative. Of course, highly probative evidence will always be prejudicial to an accused but that is not to say the evidence must be excluded either under s 135 or s 137. Just because evidence is highly probative does not mean it is unfairly prejudicial.
It is for these reasons that I admitted the evidence of both the witnesses Mr Ryan and Mr Eaton as to the identification of the accused as the robber, and I have used it in my assessment of all of the evidence at the trial.

The prosecution case

The prosecution case is that at around 12:14 am on 30 June 2024, the accused entered the OCI in Lyneham as a trespasser, threatened three staff members with a knife and stole over $25,000 in cash. The prosecution submits that there is no dispute that an aggravated burglary and aggravated robbery took place on this day. The sole issue in this trial is whether the accused, Mr Whitfield, was the man who committed these offences.
It is not in dispute that Mr Whitfield was the man who entered the OCI at approximately 9:30 pm that night in the company of a man, Mr Van Duren.
I heard evidence from a number of witnesses at the trial, including from the three staff members that were present at the OCI (Mr Sean Ryan, Mr Thomas Eaton and Mr Rex Michelson).
A number of materials were also tendered and played during this trial, including:
(a)EICI with Mr Ryan, Mr Eaton and Mr Michelson.
(b)Record of emergency call made by Mr Ryan.
(c)Receipt from the OCI dated 29 June 2024.
(d)Various CCTV Images from the OCI.
(e)Crimes Scene Continuity Report of DNA from the till and the desk at the OCI.
(f)Bundle of 42 photographs of OCI and surrounds.
(g)Three property seizure records relating to black Adidas Weltmark sneakers, black swan CCTV box and $190.
(h)Video showing $190 of cash being counted.
(i)Six photographs depicting the accused.
(j)Bundle of twelve photographs taken at 123 Duffy Street on Monday 1 July 2024.
(k)USB of footage from the Swan CCTV from the accused’s mother’s house.
(l)USB of footage from a CCTV camera in Mouat St, approximate to the OCI.
(m)Two forensic reports as to DNA taken from till and desk dated 4 September 2024 and 5 December 2024.
(n)Document titled Map of Locations of Interest, Telecommunications Data Cell Tower Locations and Open Source Cell Tower Locations.
(o)Google Map of the OCI Pinpointed.
(p)Statement of Samuel Vesper dated 9 September 2024.
(q)Statement of Daniel Sparks dated 12 October 2024.
(r)Pair of shoes.
I have considered all of this material.

Evidence

Sean Ryan

Sean Ryan at the relevant time was the second in charge manager at the OCI. He described his duties as implementing the responsible service of alcohol certificate which he explained is a course which needs to be completed prior to working in the hospitality industry. It is designed to ensure that a person can observe customers, keep track of how many drinks a person has, the number and percentage of alcohol by volume of the drink consumed in order to make good decisions about the safety of patrons. He last completed that certificate course in February 2024.
Mr Ryan said he was trained to be aware of signs that a patron may be intoxicated, such as slurred speech, impaired motor functions, or any kind of abrasiveness such as shouting. In his line of work, he had often observed people under the influence of drugs. The signs he looks for to decide if a person is under the influence of drugs are features such as hyperactivity, facial movements, sweating, or enhanced breathing, which are not typical signs that are associated with being under the influence of alcohol.
He said that he immediately noticed the man with the mohawk because he was carrying a bottle of beer, which was not sold at the OCI. He thought that both men may have been drinking and doing what he described as some “extracurriculars” beforehand. By extracurricular he meant drugs.
Mr Ryan said that the facial movements including grinding of the teeth and movements of the jaw are typical signs of someone who is under the influence of drugs. He first noticed that feature in respect of the mohawk man when he went to stoke the fireplace a little later on.
It was on that basis that when the mohawk man went to the bathroom he suspected that he might be going there to consume more drugs, so he followed him into the bathroom.
At the time when the two men first arrived, Mr Ryan went over to him and told him he could not drink the beer in the inn. The man then “downed” the rest of the beer in front of Mr Ryan and handed the bottle to him.
Mr Ryan observed that one of the males was less intoxicated than the other. This man was a bit older than the more intoxicated one with the mohawk. He said the more intoxicated one took off his black jacket which revealed a white t-shirt underneath.
In the EICI which commenced at 2:14 am on 30 June 2024, Mr Ryan described this man as:
So … definitely kind of similar height as the first person I mentioned. A lot more slim. A little bit more gaunt in the face, ah, which was noticeable. Um, entered the venue wearing a hat. I believe it was, you know, a beanie or a cap, I don’t – I don’t remember. Um, again, like took it off almost straight away. Um he had a – like a mohawk style haircut which was basically just his sides shaved with the centrepiece down the middle. Um, and he was, yeah, visibly more intoxicated than the first guy. …
… similar height, as I said, five ten, five eleven. Had kind of brown, dark eyes, like hazel eyes. Um, yeah, Caucasian again. He was a little bit more darker tone than the first guy. Um, yeah, but as I said before, so um, like more slim, you know, so kinda looked – looks taller but probably was the same height. Um, was wearing a black puffer when he walked in. It might’ve been the same puffer he was – you know, as the same guy who walked in later. But anyway, um, … they looked similar. Um, yeah, definitely didn’t have a basey tone to his voice. Ah, it was kind of like a mid-range kind of voice that he was speaking with. Um, hard to tell where he was from just because, you know, he’d definitely had a few drinks. Yeah, maybe like early to mid-thirties, yeah.
He accurately described the accused’s mohawk haircut as “like it was probably a buzz one or two, like, you know, and then the sides were basically bald, you know. So it was more of a kind of like thin strip rather than a mohawk…”
Later in the interview he amplified the description of his voice.
I think it was more … he wasn’t speaking from, you know, his – the back of his throat or his chest. It was kind of more nasal in a way. Like it was more kind of front of the mouth, nasal tone, you know. … just didn’t have a kind of basey tone to it, you know. It was more kind of mid-frequency, if you will.
…
Around five ten, five eleven. Brown hazel eyes.
Later he explained,
when I saw the person on the second encounter later on in the night after we closed and I saw his eyes and I just recognised them, you know. Like a – it’s like a – almost like a subconscious memory of, you know, being like, I recognise that, you know. Um, obviously not something that I clocked, it being what I’d consider like kind of slightly mundane, you know, interaction in the first place, you know. It’s like not out of the ordinary, but when I saw the eyes the second time I recognised them immediately, you know.
… that paired with the – the voice that I heard ---
…
--- You know, it was kind of a dead giveaway for me.
When he was asked how he could see the eyes of the robber he explained that there were two eyeholes cut out of the balaclava, along with a mouth cover. He said that the man with the mohawk took off the puffer jacket when he sat down. The jacket seemed quite big for him, a size too large.
He explained that the man sounded intoxicated because he was slurring his words, his lips did not seem to be going in the right way and he formed the view that he might have taken drugs as well. He also added:
Kinda looked like he was gurning a little bit …
…
Like grinding his teeth maybe, or his, you know, his jaw was – was swinging a little bit, you know, moving from side to side.
When he was asked about some of the things that he recognised between the man with the mohawk earlier and the robber, he said:
Are you saying timbre, sorry?
Timbre, yeah.
… Yeah. Like not very basey, yeah. Yeah, the eyes as well. Like the eyes, as I said, like kind of darker eyes and I recognised them kind of immediately. That, like paired with the voice and the shape of his mouth, you know, it was, yeah, like I looked at him and I was like that’s got to be you from earlier, yeah. And as I said before, like his mouth, you know, kind of swinging, gurning from maybe whatever he had taken earlier. Like same thing was happening. Um, and I guess, yeah, like it’s like secondary things like his height. He looked more kind of life, you know, skinny in the face under the balaclava. But again, like that detail I might be adding on. You know, I might be just wrong about him. It’s hard to say, really.
…
Like, you know, your memory gets a bit foggy after a while.
During the EICI, Mr Ryan was asked what CCTV footage he had downloaded. He identified three different cameras from which he had downloaded footage: the main bar camera which gave a view of the couch the two men sat on, the footage from the main bar and when the robber entered later in the footage from the office where the money was handed over to the robber.
In cross-examination, he agreed with many of the propositions which were put to him and made concessions about matters where he was wrong.
He agreed that he had mistakenly said the mohawk man took his jacket off when in fact it was the older man who took his jacket off. He agreed with the proposition that it was the older of the two males who did most of the talking, he agreed he was suspicious of them after they entered and he agreed that he had followed the man with the mohawk into the toilet to check on him.
He agreed that he was wrong about the mohawk man wearing a beanie.
He was also closely cross-examined about his observations of the facial movements of the man he thought was under the influence of drugs.
He was asked whether he panicked at the time of the robbery and replied:
I tried to remain as calm as possible. You know, I was very focused on diffusing the situation rather than panicking. But I was definitely shook. But I was trying to remain in control of the situation and just make sure everybody got out of there safe.
It is relevant to note at this point that Ms Amy Linden, when she spoke to Mr Ryan at about 12:42 am, said he sounded “petrified but he seem[ed] – he seem[ed] relieved that it was over when the police had arrived”.
He acknowledged that in downloading the footage for the police on the night he needed to watch some of the footage, at least to identify the start and end points to be downloaded.
He agreed he had spoken with his friend Mr Eaton on numerous occasions since that night.
He explained the reason why he made the comment in the EICI that he “might just be wrong” was because that was coming off the back foot of an extremely traumatic event and his brain was a bit foggy at that point too. It was late at night, he was tired and he had answered a lot of questions from the police officer.
Notwithstanding those concessions, he denied he had been mistaken about the identity of the robber because of the trauma on the night.
In re-examination, he reiterated that he distinctly remembered being behind the bar for a lot of the night as well as being on the floor just walking around and he could remember distinctly looking at the two men from the behind the bar when he was there.
He agreed that the identification by himself and Mr Eaton immediately after the robbery was made almost simultaneously. He said, “I believe around the same time it was kind of an agreement, you know, more so than us influencing each other”. However, he could not remember who spoke first.

Assessment

Counsel for the accused challenged the reliability and credibility of Mr Ryan. She submitted that the witness only had a limited opportunity to observe the accused when he and his friend entered the OCI shortly after 9:30 pm and even less opportunity to observe the robber in the 10-minute period between 12:15 am and 12:25 am.
The main criticisms relied on by counsel for the accused to support the submission that his evidence of the identification of the accused as the robber cannot be relied on can be summarised as follows:
(a)The interactions which the witness had with the accused earlier in the night was fleeting.
(b)The witness was close friends with the only other witness to the robbery, Mr Eaton. Both Mr Ryan and Mr Eaton discussed the identity of the robber and agreed it was the man they had observed earlier in the night.
(c)Mr Ryan viewed CCTV footage prior to the police interview.
(d)The CCTV footage does not support Mr Ryan’s evidence that he first observed the accused’s pronounced and repetitive facial movements when he stoked the fire. That was because the CCTV footage depicts that Mr Ryan spoke only with the older man at that time and only fleetingly glanced at the accused.
(e)The witness admitted he was suspicious of the accused from the outset.
(f)He only heard the accused utter a few words during the whole time he was at the OCI.
(g)During the whole of the time the two men were in the OCI he had limited opportunity to observe the man and he had limited opportunity to observe the robber as his back was turned for most of the time was the robbery took place.
(h)He was incorrect about a number of his earlier observations, including the removal of the jacket, whether the accused was wearing a beanie and the description of the other male as having white silver hair when in fact he was bald.
(i)By making the comment at the end of the police interview, “You know, I might just be wrong about him”, he was acknowledging that he himself doubted his identification.
(j)The interviewing police Officer Dick failed to specifically focus the witness’ attention on his own independent recollection of the robber independent of what he had seen on the CCTV footage and therefore this Court cannot be satisfied that the witness was describing what he recalled first hand, but he may have been describing the person he saw on the CCTV footage.

I have had the opportunity to observe Mr Ryan both when he gave evidence by audiovisual link in court and also on the EICI on the night in question. Additionally, I have been able to see in real time Mr Ryan going about his duties at the hotel during the period between approximately 9:30 pm and 10:30 pm when the two men left and in the 10 minutes during the robbery.
He impressed me as an intelligent, astute young man who took his job as a manager of the hotel seriously.
Contrary to the submissions made by counsel for the accused, I do not consider that the witness’ evidence was tainted by his prejudice against the accused. I consider that as a vigilant manager he was doing no more than keeping an eye on both men after their entry into the hotel with a banned bottle of alcohol.
I have watched all of the CCTV footage which was tendered at trial. In that footage Mr Ryan presents as a capable, energetic employee who was obviously keeping an eye on the accused and his friend during the time they were sitting in the hotel.
The fact that he did not look across at the two men on some of the occasions when he walked in and out of the main bar, lounge area is neither here nor there, as he himself explained he does try not to stare at any patron for too long.
However, it is plain from the footage and from Mr Ryan’s own evidence that he was keeping them under discrete surveillance. That is a factor which militates towards the reliability of his evidence of identification, not against it.
It is plain between 9:39 pm and 10:32 pm, the witness had ample opportunity and good reason to observe the features of the accused, which he later described to the police.
I note the witness’ evidence that he was able to hear the tone of the accused voice as the two men chatted in the background at times when he was behind the bar. The CCTV footage supports his evidence about that. For much of the CCTV footage the witness is absent. However, his exits and entry to the area where the men were are consistent with him being behind the bar during his absences or at least for some of that time.
I have had the opportunity to observe the accused speaking to police on the body worn camera in the footage taken the following day. Mr Ryan’s description of the voice of the accused as nasal and mid range is consistent with what I heard on the footage.
I consider it to be very telling that when Mr Ryan first saw the robber he thought it was one of the kitchen staff who sometimes rode home wearing a balaclava. It was not until he spoke that Mr Ryan recognised by the timbre of his voice that it was the same man who had been in earlier. In addition, he also relied on seeing the robber’s mouth and eyes while in the office through the slits in the balaclava to identify him. Once again the CCTV footage from the office camera supports Mr Ryan’s evidence that the eyes and mouth of the robber can be seen through the holes in the balaclava.
I consider it to be equally telling that in the emergency call to police, before he saw any of the earlier footage, within seconds of the robber’s departure from the office, Mr Ryan said, “I know who it was, he was in here earlier … he came in in a balaclava …”.
Ms Jerome was critical of what she claimed was a failure on the part of the police officer, Mr Dick, to specifically focus the witnesses’ mind on the recollection of the robber, independent to what he had seen on the CCTV footage. She submitted that this failure impairs Mr Ryan’s reliability in the EICI. That interview commenced at 1:20 am. The preamble to that interview reveals that the police officer made it perfectly clear to the witness that he was seeking his own independent recollection of the events that had occurred only one hour previously. Furthermore, the fact that Mr Ryan made a number of errors in respect of some matters, namely whether the accused had a cap, whether it was Mr Van Duren or the accused who took their jacket off, and whether Mr Van Duren had silver hair or any hair, all suggests that Mr Ryan had not watched the CCTV footage before he gave the EICI, or at least not in any depth.

Thomas Eaton

Like Mr Sean Ryan, Mr Thomas Eaton had worked in the hospitality industry for some six or seven years before 30 June 2024. Like Mr Ryan, he was one of the managers at the hotel on the night in question.
In examination in chief, Mr Eaton was asked how closely he observes customers.
And in your line of work, how closely do you observe your customers?---Extremely closely, I'd say. I've got - - -
And what's the reason for that? Sorry?---It's because I have to. It's part of my job as a manager. It's part of what you have to do legally with an RSA and it's just making sure everything's sort of a - I like to think I have eyes everywhere. I try and have eyes everywhere just so I know what's going on at all times and I can manage - manage the - sort of closely to.
What are you looking for in customers? What sorts of things are you looking at?---In customers, that everyone mainly is having a good time and there's no sort of a - there's no‑one there that's going to cause any issues and you sort of get an inkling if anyone's sort of a bit, you know, off the bat or what not and just to keep an eye on and have a bit of extra due care and attention to what they may be doing.
And so what was the expression that you used a minute ago? Off the - - -
?---Off the bat.
What do you mean by that?---Just a - not - not your run of the mill for the clients out in the said venue. Put it that way.
And what are your responsibilities in terms of serving alcohol to your customers?---Making sure they're coherent and, you know, they're not - they're not going to upset not only themselves but other people in the venue, and that, you know, they're not going to be a danger to anyone or themselves.
And you mentioned your RSA. That's your responsible service of alcohol; is that right?---Yes. Yes, correct.
Have you done that certificate?---Yes.
And when was the last time you did it?---Around two years ago.
The witness explained that he formed the view that the man with the mohawk was under the influence of drugs because of his previous experience. He had worked in the United Kingdom with the homeless community, and he said he had seen enough from his work in Canberra as well to know what the difference is between alcohol affected persons and drug affected persons.
In examination in chief, Mr Eaton explained in detail his observations which he first reported to the police on the night in question about the two men while they were seated in the corner of the lounge area of the bar.
And while they were seated in the corner, how closely did you observe them?---I had from the two points of contact initially probably around let's say 20 foot from where the table was. And the second instance where they were both together, probably a few feet. Probably like 5, 6 feet maybe because I was at the table. And then, out the back of the - when I saw them again out the back of the toilets, that was again like - yes, probably like to say less than 10 foot. Probably like again 6, 7 foot.
And you took them their food as you've told the police. Did you get a - did you look at their faces when you took their food - got them their food?---Yes, I looked at their faces. I didn't stare too long, but I looked at their faces.
Did you notice anything in particular when you looked at their faces at that point?---They - yes. Eyes bulging, bit rough and ready. I just sort of got a quick, you know, glance of a few seconds. But eyes bulging, sort of a - yes skinhead mohawk, tattoos on the neck.
Which one are you talking about, sorry? Both or - - -?---Male number one.
The one with the mohawk?---Yes.
And did you notice anything else about his face at that point?---I - no, I don't think so.
Anything about his mouth or jaw?---Gurning. Quite intense jaw so like teeth sort of protruding out, I guess.
HER HONOUR: What did you say then? What was the first word?---His teeth - - -
No, what was the first word you gave in that answer? Gurning?---Gurning, yes. So his - - -
What does that mean?---His jaw was kind of clenched and - it means your jaw is clenched. It's usually when people have had drugs. Their jaw sort of loses motor skills. It's really kind of - - -
Mr Eaton said that the only alcohol he had consumed that night was one 30ml shot of liquor at about 6:00 pm and after knocking off and during his meal he ‘downed’ half a glass of mulled red wine that was left in a glass. He did not feel intoxicated.
Mr Eaton was interviewed by the police at 2:00 am on the morning of 30 June 2024.
He said he recognised the robber as soon as they were in the office while Mr Ryan was getting the money. In the EICI with the police he said:
Seans doing his thing. He’s going in the safe, and at this point he goes, (laughs), ah, he goes ‘Don’t look at me. In fact’ – and they go ‘Both of you, put your faces against the shelves.’ … when he came and said that to me, and he stood from me to you away now with that balaclava on, so I’ll do it for the camera so you can see me. It was probably, like, eyes like that, so I could see his face and his eyebrows, and the mouth was, you know, good enough. I just – I knew who we was straightaway. Ah, like, I – I – it’s – it’s – you’re wearing the same fucking clothes.
Okay.
Like, you’re wearing the same outfit and he – the same mannerisms. You got the same wide, like, from meth-head eyes and, like, sniffly noses, and that slurred action. Ah, I’m thinking, ‘Are you nuts? You can’t be that thick.’ So anyway, he’s still in there, so then I’m kind of, like, ‘Fucking hell, like, he’s not’ – at this point, he’s given us all these threats as well. He’s like, ‘If you’ – he keeps saying, ‘If you try anything, any of you, this is the sharpest knife in the world. I’ll split you all open. I’ll kill you. I’ll end your lives,’ and stuff like that.
…
And the guy went, ‘All right. Cool.’ He’s like, ‘I’ve never seen you, you’ve never seen me.’ And then he run out the door of the office, and then I’ve shut the door right away and locked it, and as soon as I did that, I went, ‘I know who that is,’ and Sean went, ‘I know who that is.’ And we knew who he was. We both knew who he was straightaway. Um, we don’t usually get people like that in here, and to see that person so close up twice in the space of a few hours.
Yep.
All right. One time his face was, like – like, obstructed, obviously, the nose and that, but - - -
Yep.
Um, and I don’t know – as I say, I was more take – I was more, sort of, taken aback at he’s just that stupid. It – it blew my mind. I thought, ‘You’ – I don’t know. ‘You must be on something strong, because you must think I have a very short memory. You’re not inconspicuous. You did not blend in at all.’
He described the other man as Polish looking. He described the man with the mohawk’s clothing as follows:
He just had jacket, hood – I think – did he have a hood in, yeah, the jacket. I think he had a hoodie under the jacket, trackies, shoes, everything black. And then he had a very distinctive haircut. He had, like, a complete, like, zero grade buzz cut, but then, like, the middle stripe was, like, probably a one, like a mohawk, and it was like a box. It was, like (demonstrates audibly).
He said that the man with the mohawk was swaying when he came into the OCI and when he observed him going to the toilet.
When he served them the food he noticed the man’s bulging eyes and the fact that the jaw was tense and gurning. He said it was that observation together with the fact that they came into the hotel with banned alcohol and did not eat much which heightened his suspicion that they might be ‘scoping the joint’.
At the time of the robbery, he noticed that the robber had the same build, the same clothes and the same bulging eyes as the mohawk man. He was within a foot or two of the robber at the time when he made these observations.
Immediately after the robber left he said that he thought he spoke first, saying to Mr Ryan, “I know who that is.” Mr Ryan replied, “so do I”.
In cross-examination, the witness agreed that he was tired and shocked by the incident at the time he spoke with police. He could remember that he had spoken with Mr Ryan briefly immediately after the robber left but said he could not remember what else they spoke about in the hour before the police arrived to interview them both. That part of it he said was all a bit of a blur.
He agreed that there were at least two to three hundred patrons at the hotel that night and a lot of them wore puffer jackets.
Mr Eaton agreed that at 9:30 pm, the lights were somewhat dimmed. He reiterated in cross-examination that he had noticed them immediately when they came in first, because they bought their own alcohol, they were stumbling and also because their dress was not the norm for that hotel. He was closely cross-examined about those observations. However, he maintained his evidence that it was the combination of those factors that caused him to notice the accused earlier in the night.
He was also closely cross-examined about his observation of the man as “gurning”.
He agreed that he was intimidated by the mohawk man during the time the two men were in the hotel for the hour after 9:30 pm.
The evidence of this witness was heavily criticised by counsel for the accused. She submitted that the CCTV footage does not depict the accused with bulging eyes or protruding teeth.
Similar to the submission made in the case of Mr Ryan, counsel for the accused submitted that Mr Eaton’s observations are significantly discredited by a number of factors including:
(a)His very limited opportunity to observe the accused at 9:30 am and even more limited during the robbery when he only got a good look at the robber for 20 seconds or so.
(b)He made some gross exaggerations in his evidence when describing the accents of Australian people and by implication the accent of the accused and in his evidence that the second man looked like a Polish person because his head was shaved.
(c)It was also suggested that his evidence was undermined by the fact that Mr Mickelson did not support the evidence of either Mr Eaton or Mr Ryan because Mr Mickelson did not recognise the robber as the accused.

Assessment

Although Mr Eaton was closely cross-examined, there was nothing in his evidence either in chief or in cross-examination which causes me to doubt the reliability of his initial observations made to the police on 30 June 2024.
As in the case of Mr Ryan, I was equally impressed by the evidence which this witness gave.
For the reasons which I discuss elsewhere in this judgment when discussing the evidence of Mr Ringrose, there is nothing in the CCTV footage generally which I find to be inconsistent with the evidence of Mr Eaton, or for that matter, Mr Ryan.
However, parts of the CCTV footage are quite grainy, sometimes blurred and at times too far away from the camera to be of much assistance in assessing the observations of Mr Eaton of the witnesses’ facial movements and appearance on the night.
In so far as Mr Ringrose produced enlarged images of the accused’s face from some stills taken from the CCTV footage, they do not assist me one way or another in respect of my assessment of this witnesses’ observations of the jaw movements of the accused at the time.
The footage of the accused seen walking into and away from the hotel and going to and from the toilet during the hour when the accused and his friend were at the hotel, however, is not inconsistent with the description which this witness gave of the accused’s gait, in particular, his evidence that the accused was swaying.
As to the accused’s facial features, I have had ample opportunity to observe him during the trial. I consider that he does have a somewhat defined jaw which gives the impression of protruding slightly.
I also consider that this witnesses’ description of the voice and accent of the accused is not inconsistent with the accused’s voice which I listened to on the body worn camera footage from the day after 30 June 2024.
Nor do I regard the fact that Mr Mickelson did not make the same observations as either Mr Eaton or Mr Ryan as significant. He was a casual employee, without either the responsibilities or the training of both Mr Eaton and Mr Ryan. Furthermore, with the greatest respect to him, he did not strike me as a particularly astute young man. I observed on the footage of the CCTV at the very beginning of the robbery in progress that this witness seems to have been the last of the three witnesses to appreciate the gravity of what was happening in front of their eyes.

No corroboration

Counsel for the accused submitted that I could not be satisfied beyond reasonable doubt of the guilt of the accused, because there is no corroborating evidence in this matter.
The police found no significant cash, no balaclava, no gloves or any knife during the search of the accused at the time. There was no DNA of the accused found on any of the swabs obtained from the cash till or the desk drawer of the till.
The police did not interview any other bar staff who serve the accused at 9:30 pm, who might potentially have seen what money was in his wallet.
The CCTV footage is not a complete record of the shift at the hotel on 29 June 2024.
All of this is true, however, it is neither here nor there that there was no DNA found on the swabs from the till or the draw. The robber was wearing gloves.
The footage taken from the accused’s mother house is relevant to some of these criticisms. The police seized CCTV footage during their search of the accused mother’s house.
Taking into account that CCTV footage, it is evident that the accused left his mother’s house earlier on the evening of 29 June 2024 wearing a puffer jacket with a hood carrying a backpack and a gym bag over his shoulder, both of which appear to be full. At 8:25 pm, he left in a motor vehicle apparently driven by his friend who resembles the man who arrived at the hotel with him later.
The next morning at approximately 11:22 am, the accused was dropped home by the same vehicle no longer wearing any puffer jacket and no longer carrying any of the bags he left with.
The companion’s other address was later found to be in Lyneham which is in the same suburb as the OCI.
Although this evidence is at best neutral, it does explain why the search of the accused mother’s home was not fruitful.
So whilst it is correct that there is no corroboration in the strict sense of that word, I consider that the accounts given by Mr Eaton and Mr Ryan less than two hours after the robbery are both reliable and accurate. Their respective accounts are to some extent supported by the CCTV footage, all of which I have watched. I consider both witnesses had ample opportunity to observe the appearance of the accused and listen to his voice. There is nothing in any of the material I have viewed or in any of the other evidence which undermines the credibility and reliability of Mr Ryan and Mr Eaton.

The telephone evidence

The accused did not dispute that the mobile telephone seized from his mother’s home was his number.
The prosecution called a witness from Telstra to give evidence concerning the location of that telephone during the relevant period on the night of 29 June to 30 June in the early hours of the morning.
The prosecution tendered a number of documents, including certificates and records together with the oral evidence from Mr Jason Betts to suggest that the accused’s mobile phone, and by inference, the accused was in the vicinity of the OCI between 9:23 pm on the night of 29 June 2024 and 9:29 am on the morning of 30 June 2024.
To support that evidence, I was taken to a number of events based monitoring records data provided by Telstra to the police.
Mr Betts was unable to give an exact or even approximate distance between a particular device and its proximity to the nearest cell tower.
I have to confess, without meaning any disrespect to the witness, that I found much of Mr Betts’ evidence unintelligible. It is certainly no fault of his, but no expert who might have been able to give evidence as to the exact or approximate distance between a device and the nearest cell tower was called to give evidence.

Furthermore, the maps tendered as Exhibits P23 and P24 did not disclose the full list of locations for Telstra towers, nor had it been updated since 2018, according to the Aussie Maps website. It is simply unknown how many other cell towers were in existence on 29 and 30 June 2024 and if those cells were all working that night.
These factors, together with the fact that there seems to be no dispute that the address of the accused’s friend who picked him up on the night of 29 June 2024 from his mother’s house is in the same suburb as the OCI in Lyneham, lead me to doubt the probative value of any of this witness’ evidence.
Either way, I accept the defence submission that based on the phone evidence, I could not conclude that the accused was in the proximity of the OCI at the time of the robbery in the early hours of the morning of 30 June 2024.
All I can conclude is that the accused was in the OCI and using a phone between the hours of 9:30 pm and 10:30 pm on 29 June 2024, and this is not because of the evidence of Mr Betts.
For this reason, I have not admitted the evidence of Mr Betts, or any of the exhibits admitted on the voir dire which include VDP1, VDP1(a) and (b), VDP2, VDP2(a), (b), (c), (d) and (e).
I have not used any of that evidence in any way in reaching my conclusion about this matter.

The clothing worn by the robber

The accused submitted that the clothing worn by the accused is not distinctive. There were many other patrons at the OCI that evening who wore dark patterned jackets and dark pants.
Moreover, the police failed to compare the shoes worn by Mr Van Duren, the accused’s companion on the night or any other jackets or shoes worn by other patrons that night.
The CCTV footage was not used by the police to compare any other patron with the robber.
Mr Ringrose viewed nineteen CCTV files and identified the ones he considered best depicted the accused’s facial features, clothing, including the jacket, and shoes worn by the accused earlier in the evening. He did the same with regard to the images of the robber depicted on the CCTV footage.
These images were tendered as Exhibits P7A, 7B, and 7C. In addition, six photos of the accused after his arrest were tendered as Exhibit P17.
In the CCTV images, the accused can be seen wearing a black puffer jacket, black trousers and black shoes. Some of the features on the black puffer jacket worn by the robber appear similar to some of the features seen in the CCTV footage of the jacket worn by the accused.
I am unable to conclude that the jacket is the same as the one worn by the accused earlier in the night. I have though, concluded that there is nothing in the shape, apparent thickness, collar, seam patterns of the jacket worn by the robber which is glaringly inconsistent with the jacket worn by the accused earlier.
I acknowledge, of course, that it is a very commonly worn jacket and rather generic in its overall appearance. There are obvious limitations in making comparisons because some of the images on the CCTV are blurred, some are affected by infrared lighting so that it is not possible to see fine detail on the jacket and some of the images are blurred by movement.
Nevertheless, after carrying out my own comparison, while it is impossible to conclude that the jacket worn by the accused is the same jacket worn by the robber, I have concluded that for all practical purposes the appearance of the jacket worn by the robber appears to be identical to the jacket worn by the accused earlier in the evening.
The same limitations in relation to the CCTV footage applied to my comparison of the tattoo on the accused’s arm depicted in Exhibit P17 photo six, and the photo of the robber taken in Exhibit P7(b) frame 328. Both images depict the right forearm of the accused and the robber. All that can be said is that there is nothing glaringly inconsistent in the photo of the accused’s forearm in Exhibit P17, compared with the mark depicted on the robber’s forearm in frames 3 to 5 of P7(b).
The shoes on the other hand, are interesting. I have had regard to a number of images of the shoes, including a pair of black shoes seized from the accused at his home the next day.
As Mr Ringrose explained, because the camera in the main bar area automatically changed to infrared recording at approximately 10:25 pm, the shoes worn by the accused at the hotel earlier in the night can be seen in both regular light and infrared light. The shoes worn by the robber are only seen in infrared light in the relevant images.
Despite the fact that the shoes in regular light appeared to be black, under infrared light, they appear to be white with black soles, thicker towards the heel. There are five stripes on the outside of the shoe with the three in the middle being slightly finer. A black horizontal strip at the heel of the shoe is evident as is a a line of small black squares into which the laces appear to feed.
Again I acknowledge that it is necessary to be guarded about the similarities between the images from the CCTV and the images of the shoes and the physical shoes seized from the police because the images on the CCTV are not detailed and in some images, due to the angle of the camera position, the view is quite limited.
Nevertheless, after completing my own comparison of the images in Exhibits P7(b) and P7(c) and the physical shoes, I conclude that the shoes depicted in the CCTV images worn by the accused earlier in the evening for all practical purposes appear to be identical to the shoes worn by the robber and the shoes seized from the police. I can discern no difference in the colour, pattern, stripes, or the images on the sole of the shoe as compared with the photo in Ex P7(c) image 1448.
All of this evidence of Mr Ringrose and the images taken from the CCTV footage does not amount to any corroboration; however, it does not contradict any of the evidence given by Mr Ryan and Mr Eaton.

Conclusion

I found the evidence of both Mr Ryan and Mr Eaton to be plainly relevant and highly probative. For the reasons I have already explained, I have also found their evidence to be reliable and truthful.
Both witnesses had an advantage in the sense that they were present at the time the accused came into the hotel that night and for reasons which I have accepted, had a very good reason to keep the accused and his friend under surveillance.
Even though they were both in a very high-pressure environment in the presence of the robber during the robbery, who was wielding a knife and repeatedly threatening them over a period of ten minutes, their simultaneous exclamations to each other that they recognised the robber as the man with the mohawk who had been in the hotel earlier, are cogent. At the time of this comment, he plainly had no opportunity to have looked at any CCTV footage. His comments to Ms Amy Linden at 12:42 am that “the idiot was drinking at the pub. … I think the police know who it is”, were made at a time when less than fifteen minutes had elapsed from the robbery and are similarly cogent. At the time of this comment, he plainly had little opportunity to look at any CCTV footage.
Neither witness relied on any one particular feature of the accused’s appearance and presentation that night to make their identification. They relied on the robber’s whole presentation, including his clothing, his gait, the timbre of his voice, his eyes and some of his facial movements (albeit observed through a loose fitting balaclava).
I did not have that same advantage as both the witnesses did of observing the man with the mohawk at a close distance. Nor did I have the advantage of hearing the man speak, nor was I present during the robbery that night.
Nevertheless, after taking into account the whole of the evidence which includes the evidence of both Mr Eaton and Mr Ryan, and the evidence which I have been able to view of the CCTV footage, and after making my own comparisons of the tendered materials, including the still photographs even given all of the infirmities of the CCTV footage to which I have referred, I am left in no doubt that the robber is the accused.
My conclusion after considering the whole of the evidence in this matter is that it is plainly obvious that the robber is the accused. There is no other available inference on the evidence.
In light of the fact that there was no dispute that a burglary and a robbery occurred that night, as depicted on the CCTV footage, it follows that I am satisfied beyond reasonable doubt of the accused’s guilt on both charges.

Orders

For those reasons, the verdicts are as follows:
(1)Count 1 (CC2024/6756) - Aggravated robbery – guilty.
(2)Count 2 (CC2024/6757) - Aggravated burglary – guilty.

I certify that the preceding one hundred and seventy-eight [178] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly.

Associate:

Date: 18 September 2025