Higgins v The Queen

Case •

[2021] NSWDC 724

•

30 June 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Higgins v R [2021] NSWDC 724
Hearing dates: 28-29 June 2021
Date of orders: 30 June 2021
Decision date: 30 June 2021
Jurisdiction:Criminal
Before: Neilson DCJ
Decision:

Appeal against conviction dismissed.

Appeal against severity of sentence allowed in part. Non-parole period reduced from 18 months to 15 months.

Catchwords:

CRIME – APPEAL AGAINST CONVICTION.

EVIDENCE – IDENTIFICATION – Tribunal of Fact can identify offender in films without the need of there being other evidence – Identification by a former housemate (now a policeman) after 16 years of limited value.

ADMISSIONS – Admissibility of a statement made by the offender during a search of his property when he had not been arrested, nor was he a protected suspect within LEPRA. Offender cautioned before each admission relied upon.

LIES AS CONSCIOUSNESS OF GUILT – Denial of having a cap seen to be worn by him on CCTV in Mudgee shortly prior to offence where offender denied he was in Mudgee at the time. A cap of like name and type found in yard of offender’s residence. Attempt to set up a false alibi.

APPEAL AGAINST SENTENCE – Special circumstances to vary non-parole period.

Legislation Cited:

Crimes Act 1900

Evidence Act 1995

Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:

Edwards v R (1993) 178 CLR 193

Hunter v R [2011] NSWCCA 141

Robinson v Woolworths Limited [2005] NSWCCA 426

Texts Cited:

Stephen Odgers Uniform Evidence Law (15th edition 2020)

Category:Principal judgment
Parties: Appellant
Brendan Charles Higgins
Respondent
The Crown
Representation: Appellant
Toshi Weller-Wong
Legal Aid (NSW)
Respondent
Jesse Friend
Office of The Director of Public Prosecutions
File Number(s): 2020/00087528
Publication restriction: Nil.

Judgment

  1. HIS HONOUR: This is an appeal against two convictions recorded by Magistrate D Day, sitting in the Local Court at Mudgee on 2 February 2021. His Honour convicted the appellant of two crimes that were alleged to have been committed on 5 March 2020.

  2. The first of the crimes is known as “Sequence 1”. It was that on 5 March 2020, at Mudgee, he did break and enter the Federal Hotel, Mudgee and commit a serious indictable offence therein, namely larceny of a Cashpoint ATM machine, the property of the Federal Hotel, Mudgee, in circumstances of aggravation, namely that the appellant was in the company of another person or persons.

  3. The second offence that his Honour convicted the appellant of is known as “Sequence 4”. It is an offence contrary to s 154A(1)(b) of the Crimes Act 1900. The formal charge was that on 5 March 2020, at Mudgee, he did allow himself to be carried in a conveyance, namely a maroon Nissan Pulsar sedan registered number BP-97-MG, knowing that the said conveyance was taken without the consent of Shelbie Pearce, the owner of the said conveyance.

  4. There is no dispute that the Nissan Pulsar was in fact stolen and used in the commission of the aggravated breaking, entering and stealing at the Federal Hotel at Mudgee in the early hours of 5 March 2020. There is also no dispute that there was a breaking and entering of the Federal Hotel at Mudgee by three people, each being male who stole the ATM machine from the Federal Hotel.

Facts

  1. Ms Shelbie Pearce was the owner of the maroon Nissan Pulsar sedan registered BP-97-MG. She had bought that motor vehicle for $900. It was not comprehensively insured. On Wednesday, 4 March 2020, she picked up her domestic partner, Mr Hayden Attenborough, from his place of work, about 9pm and drove back to their residence in Maxwell Street, Wellington. She parked the motor vehicle out the front. She locked the car and took the keys inside the house with her.

  2. The following morning she was woken by her father, who lived in the same house, some time after 9:30am. Her father asked her where her car was. She looked out the window and saw that the car was not where she had left it parked. She had her domestic partner, Hayden Attenborough, ring the police because she was too “freaked out” to report the car as stolen. She posted on Facebook that her car had been stolen, seeking assistance in finding it.

  3. About 10.30am on the morning of 5 March, a friend picked her up so that they could go for a drive to look for her car. They drove to Geurie, thinking the car may have been dumped by somebody on the way to Dubbo. Whilst she was in Geurie, someone commented on the Facebook post, saying that the car had been seen in Wellington. She then drove back to Wellington and started looking for the car in that town.

  4. Whilst she was doing that, there was another posting by somebody on Facebook which caused her to go out to the Nanima Village, which is also known as “the Wellington Mission”, which was some five minutes drive out of Wellington. There she found her car. It was burnt out. According to Mr Attenborough’s statement, the posting on Facebook that indicated that the car had been set on fire was received between midday and 1pm. He drove out to the Nanima Village with Shelbie and they could see a cloud of smoke in the bush and they drove to the area where the smoke was and they saw that Ms Pearce’s car had been, to use the vernacular, “torched”. He then rang the police and told them where the car was and they came out a short time later.

  5. If this car were used in the commission of the breaking and entering and stealing, it can be seen that the car was stolen from Wellington, driven to Mudgee and then was driven back to Wellington, where it was set alight, perhaps to hide incriminating evidence.

  6. Nearly a fortnight later, on Tuesday, 24 March 2020, Mr Robert Cameron, a long-time resident of Wellington, visited an area known as “the Falls” which is at the Falls Road crossing of the Macquarie River near Wellington. There were people there undertaking a search for a missing person. Mr Cameron’s statement then says this:

“6. While searching the river in the kayak, I noticed part of an ATM machine in the water. It was mainly under water except for about 8 centimetres of it poking out. I grabbed it and threw it up on the riverbank. I told some Police Officers that were searching for the missing person that I had found it.

7. I would say that the location where I found the ATM part was up-river in the direction of the mission. It was around 2 to 3 yards up the river from the Falls Road crossing. It was in among some weeds.”

  1. The part of the ATM that was discovered in the Macquarie River, near Wellington, was found to be part of the ATM that had been stolen from the Federal Hotel, Mudgee, in the early hours of 5 March 2020. There is no dispute about that. Electronic components were recovered from the relevant piece of the machine which enabled the service manager of Cashpoint Solutions to print off records showing that it was the ATM from the Federal Hotel, Mudgee, installed there on 20 October 1999 and, according to those records, there were 170 $20 banknotes and 276 $50 banknotes, providing a total of $3,400 in $20 banknotes and $13,800 in $50 banknotes. The total of those sums is $17,200. There was, according to the records, a $20 banknote which was in the “reject bin” in the machine at the time that it was disconnected from the power supply at the Federal Hotel.

  2. The owner of the Federal Hotel at Mudgee was Mr Nicholas McKechnie. He confirmed that as far as he was aware there was $17,220 inside the ATM when it was stolen. Furthermore, the ATM was valued by Mr McKechnie at $9,000. In the process of breaking into the hotel, damage was done to a set of doors. Those double doors needed complete replacement. The cost of repairing the damage to the hotel was $5,440.

Was the appellant one of the thieves?

  1. The issue is whether the appellant was one of those people who arrived at the hotel at Mudgee shortly before entering it at 4:43am on 5 March 2020 and then breaking the pair of doors or forcing those doors, the closest to where the ATM was on the ground floor of the Hotel. Much of the litigation in the Local Court was conducted by the tender of statements and most of the makers of the statements were not required for cross-examination. The obvious implication of that is that a lot of what each of the witnesses said was completely uncontroversial.

  2. As to the vehicle belonging to Ms Pearce being used by those who broke and entered the Federal Hotel at Mudgee, Mr Hayden Attenborough’s statement of 24 March 2020 says this:

“8. Within a couple of days [of 5 March 2020], I was told that there was some footage on the Orana Mid-Western police district Facebook. The footage related to an ATM theft in Mudgee. I accessed Facebook and looked at an image involving three people trying to put an ATM into a car. I immediately recognised the car in the footage as being Shelbie’s. I have no doubt that it is Shelbie’s because [the] car had a small dent above the fuel cap the same as in the footage. Shelbie’s car also had a stock rear rim on the rear passenger side which I could see in the footage. [There] was also a spoiler on the boot of Shelbie’s car which I could see in the footage.

9. Shelbie’s car at the time it was stolen had custom rims on the right-hand side and stock rims on the left-hand side. The right-hand rims were silver in colour and the left-hand rims were black in colour.”

As I said, those statements went into evidence uncontested and the Court was right to conclude that the car in which the three persons arrived at the Federal Hotel at Mudgee shortly before the breaking and entering was the car stolen from outside Maxwell Street, Wellington some time after it was parked by Ms Pearce about 9pm on 4 March 2020.

  1. The Crown case relies, inter alia, on closed-circuit television footage exposed at the BP service station at Mudgee in the early hours of 5 March 2020. That CCTV footage was part of exhibit 5 in the Local Court. The other part of exhibit 5 is the CCTV footage from the Federal Hotel at Mudgee. I have watched the CCTV footage from the Mudgee hotel. The CCTV footage from the BP service station contains three tracks. The timing on the first track is inconsistent with the timings on the second and third tracks but little turns on this, a common defect in CCTV footage.

  2. Track 1 shows the person of interest arrive at 4:15:35. The person of interest appears from the right side of the film coming around a corner to the front of the service station. That person is carrying a bright red plastic jerrycan. He stops in front of the bowser closest to the entry doors to the shop that is part of the service station. He then appears to fill up the jerrycan with petrol from the petrol bowser. Once he has done so, he returns the nozzle of the bowser back to its receptacle and carries the jerrycan towards the entrance of the shop but he leaves it outside the shop near the entrance. He is then seen to enter the shop. According to the time count on the first track, at 4:18:40 the person of interest leaves the shop carrying a bag of purchases and he then picks up the jerrycan and departs out of view by going around back to the right-hand side of the angle of the camera.

  3. The second track shows people entering the shop. The person of interest can be seen to come from the right and walk towards the bowser in front of the entrance door of the shop. There is a rear view of this person filling up the jerrycan with petrol. He then enters the shop, according to the time count, at 4:22. The person of interest is clearly visible and easily identified. That person can be seen leaving the shop carrying a white plastic shopping bag at 4:23:56.

  4. The third track of film is from a camera situated behind the console operator and the console itself. That shows the person of interest entering the shop at 4:22am. He picks up two bottles of Coca Cola and one can of Red Bull. He is then standing in a short queue waiting to be served. When it is his turn to be served, he orders a number of chicken wings, which one can see the console operator remove from a heated tray and place in a white paper bag. The person places his purchases on the counter in front of him and hands the console operator a $50 note. The time that he leaves the shop is the same as the time shown on track 2, namely 4:23:56.

  5. Significantly, there is a cash receipt for this transaction obtained by the police. That bears date 5 March 2020 and is timed at 4:24am. It is clearly a computer-made receipt or tax invoice and the time is likely to be accurate. That shows the purchase of four Devil Wing Dings at a cost of $2.50 each, 13.29 litres of a low grade of petrol, one Red Bull energy drink and two bottles of Coca Cola, each being 600 mls. The total cost was $41.25 and there was change given of $8.75. I accept the timing on the receipt/tax invoice to be correct.

  6. Accordingly, it appears that the person of interest left the service station at 4:24am having purchased the drink and food to which I have referred and paid for the filling of the jerrycan of petrol. The person can be seen leaving the shop of the service station and picking up the jerrycan and then walking out of view to the right of the entrance to the shop.

  7. The question which has been the subject of a large number of submissions is: who is the person of interest? There was some evidence admitted about that but I will defer dealing with that at this time.

  8. In his reasons given on 10 December 2020, the learned magistrate, after discussing the identification evidence, said this:

“I also had the benefit of looking at the CCTV, both moving and the stills extracted therefrom, and seeing Mr Higgins… in the dock and forming some views in that regard.”

I have compared the person displayed in the CCTV footage at the BP service station with the undoubted CCTV footage of the appellant being interviewed by police at Wellington police station commencing at 1.35pm on Thursday 19 March 2020. The person being interviewed is Brendan Charles Higgins who identifies himself by giving the date of birth shown to be the date of birth of the appellant on court and police records. There is no doubt in my mind as the tribunal of fact that the person I have described as the person of interest shown on the CCTV footage at the BP service station in Mudgee on 5 March 2020 is the appellant. Clearly the learned magistrate was alluding to the same view in the piece of his judgment which I have quoted.

Evidence of Constable Blewitt

  1. There was in evidence also a statement of Constable Travis Noel James Blewitt. At the time he made the statement on 8 March 2020 Constable Blewitt was stationed at Mudgee. The substance of his statement is this:

“2. I am 37 years of age.

3. About 11am on Thursday 19 March 2020, I viewed CCTV footage of the Mudgee BP service station. The time on the camera showed 4.20am on 5 March 2020. Upon viewing the footage from three different camera angles, I recognised Brendan Higgins who was captured by the cameras.

4. I have known the Higgins family since 1996. Brendan and his brother Matthew lived with me at my house on Thornton Street, Wellington, during the year 2002 for a period of at least six months.

5. I moved from Wellington in the year 2004 and have not seen Brendan Higgins until I viewed the CCTV footage from the BP Mudgee.”

A number of things should be noticed from that statement. At the time it was made the appellant was 34 years old. He is three years younger than Constable Blewitt. In other words, Constable Blewitt is three years his senior. According to Constable Blewitt, he has known members of the Higgins family since the appellant was either 10 or 11 years old. In the year 2002 the appellant was 16 years old and the constable would have been 21. In the year 2004 when the constable left Wellington, the appellant would have been 18 years old. It can be seen, therefore, that the constable had dealings with the appellant for at least seven years between 1996 and 2004, and during that period of time they had lived together when the appellant was 16 and the constable was 19 years old.

  1. Constable Blewitt was required for cross-examination on the voir dire and eventually the magistrate admitted in evidence the statement being marked as exhibit 7, having been exhibit 2 on the voir dire. The learned magistrate also admitted the sworn evidence of the constable, although he appears to have limited that to “cross examination” since there was no examination of any moment in chief. Most of his evidence was given in cross-examination.

  2. He raised the question of “Brendan Higgins” because one of his duties at the commencement of a shift is to conduct certain checks around the police station. One of those checks involves checking the safe as the safe sometimes contains money. In the safe he found an exhibit bag containing money and the exhibit bag contained the name Brendan Higgins. He then raised the question of that person’s name with Detective Senior Constable Atkinson who is the officer-in-charge of the police investigation. The evidence is this:

“...so I checked the name on the exhibit bag which had the cash. I thought that’s odd, he lives in Wellington, why is Brendan Higgins’s name attached to anything in Mudgee. So I approached Detective Atkinson and said, ‘I noticed this. What’s that matter for?’, and when I was told that, yes, he was a suspect in the Federal ATM job and that’s as far as my knowledge went and I said - then it was raised, ‘How do you know him?’, being Brendan. I said, ‘Well, I basically grew up with him and his family, I guess, in the same town and I knocked around with his friends and brothers. He lived with me for some time’, and that was the end of the conversation as far as how I knew him.”

The constable was not asked to make a statement at that time by Detective Senior Constable Atkinson, but rather was asked later by Sergeant Holgate to do so.

  1. The cross-examination of the constable continued by his being asked questions about certain photographs which he was shown. In one he identified the appellant, but he could not remember his having had dreadlocks. He recognised Guy Higgins standing next to the appellant, Guy being his youngest brother. In the middle of the photograph was Matthew Higgins. That was the offender’s “oldest brother”. There was a man that the constable did not recognise in the photograph, but a gentleman on the far right was Mr William Higgins, the father of the three Higgins brothers. It is unfortunate that the constable used the superlative adjective when he ought to have used the comparative adjective to identify the younger and older brothers.

  2. The witness was then shown another photograph and he said that he recognised that person as being the appellant. The witness conceded, as is stated in his statement, that he had not seen the appellant since 2004, but he was unmoved by the suggestion that the appellant was only an adolescent male when he interacted with the appellant rather than a man in his mid-thirties as he was at the time that the CCTV footage was exposed.

  3. In his reasons the magistrate said this:

“I also direct myself with respect to the identification because there was some identification evidence and during or thereafter that was given by Senior Constable Blewitt I did make the observation that it was a long time since Senior Constable Blewitt had seen Mr Higgins and, whilst there was no evidence as to the changes in Mr Higgins, Mr Blewitt was satisfied that it was him. There was a suggestion that that was contaminated and I cannot dispel that and I did say that, given the passage of time, then the weight that I could place on the evidence of Mr Blewitt was diminished somewhat, but not completely.

With respect to Mr Blewitt, he had considerable prior familiarity, albeit 16 to 18 years ago, with the subject. There were no particular characteristics of Mr Higgins other than Mr Blewitt being very confident because he knew the Higgins brothers and could identify them clearly from a photograph he was shown in cross [examination]. The perception relied upon was the closed-circuit television at the BP in Church Street, Mudgee, and the camera angle was not ideal, typically from the roof or the ceiling.

Senior Constable Blewitt [sic] was familiar with Mr Higgins, but, as Mr Weller-Wong points out, became involved when he saw bank notes in the exhibit safe with Mr Higgins’s name on them and there was a chance of contamination, but not in the same way as photographic contamination and the time between perception identification is not relevant and it was not a subject to a formal identification process by way of photo board, et cetera, so there was some risk of displacement, but what was interesting is in the confidence that Mr Blewitt had and Mr Weller-Wong attacks that and says he would not even make that concession and he would not make that concession because he says Mr Higgins, remarkably, has not changed much in 18 years.”

  1. His Honour then made the observation of about what he had seen himself that I have quoted earlier in this regard. Clearly, the learned magistrate was impressed by the confidence with which Constable Blewitt identified the appellant as the person at the BP Service Station. Clearly, the weight to be given to that identification is to be diminished because of a lack of familiarity with the appellant for 18 years prior to the exposure of the CCTV footage. However, even 50 years after leaving school I can remember what my school mates looked like even though they have changed remarkably over the ensuing 50 years.

Identification

  1. In any event, the identification of the person in the CCTV footage is a question for the tribunal of fact. Here I can look at the CCTV footage exposed at the BP Service Station on 5 March 2020 and compare it to how the appellant was looking when interviewed by the police on 19 March 2020 and it is in my view beyond any reasonable doubt the appellant being the person in the CCTV footage exposed at the service station in Mudgee on 5 March 2020.

  2. How the appellant got to Mudgee cannot be explained in any way by those who represent him. That he was in company at the time with two others is permissible inference to be drawn from the fact that he purchased three drinks, not one, at the service station and purchased four chicken wings or whatever they may have been, each costing $2.50, enough for three people to each have a drink and a snack. That, of course, is of little weight.

  3. There is no visual identification of any person on the CCTV footage from the hotel. The CCTV footage is in black and white for most of the time and the offenders have disguised themselves by covering their faces with balaclavas or cloth masks or the like. However, still photographs have been take from the CCTV footage exposed at the hotel and from the CCTV footage exposed at the service station. I will come to that evidence early tomorrow, however, I should at this stage state what the CCTV footage shows.

  4. The car identified as the car belonging to Ms Pearce pulls up outside the Federal Hotel at Mudgee at 4:43:10. He parks rear-to-kerb. Three men leave it. They are each wearing hoodies and sweatpants and cover their heads. One appears to be wearing a reflector cap, or a cap part of which is comprised of reflective material. They spend most of their time forcing the doors of the hotel closest to the ATM open. They effect entry at 4:46:15. That is all on camera 10.

  5. Camera 13 is a camera in the inside of the hotel which is designed to capture persons using the ATM. The ATM was between a staircase going up, or, if one was on the first floor, going down, and a machine that was referred to by the employees of the hotel as the chocolate machine, but was referred to by the police as a gaming machine. The three offenders appear on footage in camera 13 at 4:46:18, that is, three seconds after entering the building. They enter from the right side of the camera. They can be seen to lean the ATM forward, pull it out of its space, pull it by its plug from the electrical socket into which the plug had been affixed, then drag it out.

  6. Going back to camera 10, the camera outside the hotel, they can be seen first appearing leaving the hotel at 4:46:30. The first person to appear is dragging the ATM behind himself. He is walking backwards so he is facing towards one end of the ATM. It is then dragged along the brick paved footpath to where the Nissan Pulsar had been parked. The three offenders were obviously unfamiliar with the car, consistent with it only having been recently stolen, because they tried to fit the ATM inside the boot of the vehicle. It would not fit. They then had to place it on the back seat of the vehicle. It is unclear whether one of them was able to sit in the back seat with the ATM or whether all three men had to fit in the front seat of the Nissan Pulsar. In any event, they decamped in the car at 4:47:32.

  7. There is no visual identification possible of any of the three offenders who removed the ATM from the Federal Hotel at Mudgee from the CCTV exposed at that Hotel. Furthermore such fingerprint testing and DNA testing that has been conducted was unsuccessful, other than identifying the genetic material relating to a regular of the Hotel, who is not a relevant suspect.

Posters

  1. That leads to what evidence there might be to link the appellant to being one of the three men, and I use that word advisedly, who removed the ATM from the Federal Hotel. That the three offenders were male is evident from their bodily habitus. As is quite normal in cases of this nature, still photographs have been taken from the CCTV footage exposed both at the BP Service Station at Mudgee and at the Federal Hotel and those still photographs have been enlarged. From those still photographs the prosecution made two posters. They were exhibit 3 in the Local Court. The markings in the Local Court do not permit one to distinguish between the two posters. I have accordingly had one poster marked as exhibit 3A and that poster concerns inter alia a baseball cap or, as it is described in the evidence, as a bump cap. The second poster I have marked exhibit 3B concerns the clasp on the baseball cap. There was some minor dispute as to the significance of the posters. The posters insofar as they contain blown-up photographs were clearly admissible. Markings made on them by the Crown are properly categorised not as evidence but as submissions made on behalf of the prosecution. I accept that to be the case.

  2. I turn then to consider poster 3A. There are three sections in poster 3A. On the left hand side are two photographs taken from CCTV footage exposed outside the hotel. In the middle of the poster are three blown-up photographs taken from the CCTV footage at the BP Service Station. On the right hand side are two photographs taken from the CCTV footage from within the Federal Hotel. A number of coloured dots have been placed on certain items in these photographs. They seek to identify the left shoe, that is a red dot, and the right shoe which is a green dot. An identifier on the sweat pants or track pants is a purple dot and a light blue dot seeks to identify what is referred to as “white jacket identifier”.

  3. From the dots placed on the still photographs of the appellant taken from the BP Service Station footage, one can clearly observe particulars of both the left and the right shoes worn by the appellant. The sweat pants or track pants worn by the appellant have distinct markings on the right leg, on the anterio-lateral aspect of the mid-thigh. That is referred to as the “white jacket identifier” that is seen on the rear view of the appellant showing what appears to be a white garment which can be seen protruding below the jacket he was wearing and over the top of his sweat pants, as one would expect an errant shirt tail to hang over one’s trousers.

  4. On the left hand side, that is the photos from the film exposed outside the hotel, one can clearly identify both the left and the right shoes of the same type worn by the appellant in the service station. On the photographs on the right hand side of the poster, that is the photographs taken from the CCTV footage within the hotel, one can see the person wearing the same shoes as the appellant, wears a white top and one can clearly see that person also having pants with the same logo on the left-hand leg, mid-thigh in the anterio-lateral position. One can also see that that person has a right shoe the same as a left shoe, the same as the left shoe worn by the appellant. I hesitated in saying that because the shoe identified has a green dot next to it, indicating it is a right shoe identifier but it was in fact the left shoe. It is the right shoe identifier is the correct leg. What I earlier described as the logo on the trackpants or sweat pants on the anterior lateral aspect, mid-thigh of the leg, it was in fact of the right leg rather than the left leg. On the right leg of the pants there appears to me to be a Canterbury logo and it is so described in paragraph 12 of the statement of Detective Senior Constable Atkinson, which was exhibit 8 in the Local Court.

  5. That evidence leads one to conclude that one of the offenders was wearing the same shoes and the same trackpants as those worn by the appellant at the BP Service Station. The interval between the films exposed at the BP Service Station and the films exposed at the hotel is between 4:24 and 4:43, a difference of 19 minutes. The distance between the service station and the hotel has been identified as being one kilometre. That distance could be driven within a matter of a minute.

  6. I turn to the poster which is exhibit 3B. Exhibit 3B has the three central photographs as in poster 3A of the appellant. A yellow marker has been affixed to the back of his cap; a red identifier has been placed over the left ear of the cap or the area of the cap above the left ear and a green identifier has been placed in the middle of the brim of the cap. On the left-hand side are two different photographs taken from the CCTV footage outside of the Hotel. They show that one of the offenders wears a cap of the same type. The top photograph identifies the area over the left ear and the back of the cap. Another photograph identifies the area over the left ear and the brim of the cap. It is important to note that a white trim on the cap is reflective.

  7. Photographs taken within the hotel by the other camera at the hotel are on the right hand side. One can see the man wearing the hat on the right-hand side and is the person carrying a jemmy. By the nature of the cap itself it is clearly identified on poster 3B by being blown up. One can clearly discern on the cap in green stitching the words “Real Petfood Company”. There are numerous photographs of a similar cap in evidence. A statement has been made by Mr Scott Magill. Mr Magill, at the time he made the statement, 7 April 2020, was an employee of the Real Petfood Company. He had working for it for 18 months. He was employed at its Dubbo factory as the Safety, Human Resources and Training Manager. The Dubbo factory of the Real Petfood Company is in Purvis Lane, Dubbo. His statement contains these paragraphs:

“5. I can identify the Cap in the pictures as a Real Petfood Company Bump Cap. These caps were supplied to us from December 2019 through to the present time. The caps had been available for employees of the company since December 2019.

6. In total there were roughly around 250 of those caps provided to the Dubbo factory and they were exclusive to us at the Dubbo factory.

7. The Dubbo factory [employees] anywhere between 95 to 115 employees at any one time who would have access for caps.”

Mr Magill was not required for cross-examination.

  1. Unfortunately the police did not obtain from Mr Magill a statement as to how many caps were still held by the company and yet to be distributed. However his estimate that there were 250 caps is not disputed. This cap was one of only 250 and only available to those working for the company at Mudgee. No evidence was adduced from the company to suggest that the appellant had ever been employed by it. There is no evidence to suggest such employment.

  2. I should point out that Wellington, where the appellant resided at the relevant time, is 48 kilometres south-east of Dubbo. The direct route from Wellington to Mudgee, which is almost due east of Wellington, is a circuitous route passing close to Gulgong which is north of Mudgee. The further matter which must be noted is that the person shown wearing the cap at the Hotel is not the person with the same shoes or the same Canterbury sweatpants as the appellant at the Hotel. In other words if the person at the hotel be the appellant, he must have given his cap to one of the other offenders or one of the other offenders used it to contribute to his disguise or in the alternative, the appellant swapped his sweatpants and shoes with another of the offenders. Of course the shoes worn by the appellant at the service station have not been identified but shoes are hardly items particular to any one person. Shoes are generally made in their thousands or hundreds of thousands, especially what could be described as gym shoes, sneakers or runners. Equally, Canterbury trackpants or Canterbury sweatpants are ubiquitous. According to the statement of Senior Constable Atkinson the shoes were Nike sneakers which is a worldwide brand and there would be probably hundreds of thousands of pairs of Nike sneakers in Australia.

  3. On its own, I could not find the offence proved beyond reasonable doubt merely because of the use of Nike sneakers and Canterbury trackpants and albeit a much more rare form of basketball cap of limited numbers available to people who worked at the Real Petfood Company in Dubbo.

Admissibility of evidence from the search

  1. The question then becomes, is there other evidence relied upon by the Crown? This brings one to the evidence obtained by the police when they sought to execute a search warrant at the appellant’s residence in Pierce Street, Wellington on 11 March 2020. The officer in charge of the investigation is, as I already mentioned, Detective Senior Constable Atkinson from Mudgee. To execute the search warrant a team of police were needed. Detective Senior Constable Atkinson went from Mudgee to the Wellington Police Station and was met there by five or six other police from Dubbo. They were led by Acting Inspector Kenneth Arthur Brisbane who, by rank, was a Sergeant. For the purpose of executing the search warrant Acting Inspector Brisbane was to act as the independent officer. The evidence contains two video discs containing film exposed of the execution of the search warrant. Those video discs were exhibit 4 in the Local Court. A problem arose with the execution of the search warrant. There was no formal arrest of the appellant. Certain evidence was given on the voir dire about the circumstances leading to the execution of the search warrant by Detective Senior Constable Atkinson, but that evidence on voir dire was never tendered in the substantive hearing. Suffice to say that it would appear that DSC Atkinson wanted to treat the appellant as a protected suspect rather than a person under arrest.

  2. There is, in Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”) a definition in s 110 of “Protected suspect”. It is this:

“Protected suspect means a person who is in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence, if:

(a) the person has been informed that he or she is entitled to leave at will, and

(b) the police officer believes that there is sufficient evidence that the person has committed the offence.”

It is highly likely that DSC Atkinson believed that the appellant had committed the relevant offences. However, he does not appear to have had any intention to arrest the appellant at the time of the execution of the search warrant, nor was the appellant ever told formally that he was under arrest and certainly, although it was later mentioned to him that he was in police custody, he was not ever given any reason for any arrest.

  1. The submissions of the appellant in the Local Court are based on the proposition that the appellant was a “protected suspect” and that he was never advised of his right to leave the scene at will. The problem is that it is only if the appellant had been advised that he is entitled to leave at will that he became a protected suspect. He was never told that he could.

  2. When the appellant was introduced to Acting Inspector Brisbane, Acting Inspector Brisbane advised the appellant of his rights. He did so using. Form 31, Summary of Part 9 of LEPRA, which is for a “detained person”. After reading the appellant the form, Acting Inspector Brisbane had the appellant sign it and his signature was witnessed by his partner. I assume that the signature is of his partner because it starts with the word “Sam”, and I understand that the appellant’s partner was Samantha. In essence, the Acting Inspector used the wrong form. The form commences with this clause:

“This form tells you about your rights when you are in police custody here.”

The first thing that the appellant was told was that he was in police custody. The sixth, seventh and ninth clauses of the form are these:

“6. I will help you speak to a lawyer of your choice if you want legal advice, or if you want to ask the lawyer to come here. I will let you do this without being overheard, if it is possible in the circumstances. If your lawyer comes here, I will allow you to speak to the lawyer in private. Your lawyer may be present during any investigative procedure you participate in, such as an interview or identification parade, and give you advice.

7. I will also help you speak to a friend, relative, guardian or independent person so you can tell them where you are....

9. The investigating police cannot ask you to do or say anything while you contact your lawyer, friend, relative, guardian, independent person or consular official, and wait for them to come here.”

There are other rights outlined in cl 14, 15 and 16 of the form which were clearly advised by Acting Inspector Brisbane to the appellant.

  1. Clearly, the wrong form was used. It may be that the police did not have with them the correct form to use. That is unfortunate. The appellant’s status at the time of the execution of the search warrant is unclear. However, cl 3 contains the caution:

“While in police custody, you do not have to say or do anything, but anything you say or do may be used in evidence. Do you understand that?”

There is no dispute that the appellant received that caution from Acting Inspector Brisbane.

  1. The police executing the search warrant asked the appellant to accompany them as they were conducting the search. He did so. During that, he said a number of things contrary to his interest. The learned magistrate admitted those remarks contrary to his interest into evidence. He also permitted those remarks contrary to his interest to be used as evidence of consciousness of guilt. Inter alia, the appellant still maintains that the magistrate ought not to have admitted the remarks into evidence and, if that objection be overruled, that the learned magistrate ought not to have allowed the appellant to use the remarks as evidence of consciousness of guilt. The argument about this took up much of the time spent in the Local Court, all told over three days and in this Court again, today being the third day of the hearing of the appeal.

  2. The magistrate held that there was an impropriety which was reckless committed by Acting Inspector Brisbane. I cannot agree with that finding. Much more in life is explained by accident and ignorance than by conspiracy or misuse of power. If Acting Inspector Brisbane did not have available to him the requisite form, he does appear to have available to him a Form 31 which he used. It may be that even if he had the correct form, he mistakenly used Form 31. Mistake and error is common, especially amongst those who regularly process forms. Mistake and error are common by members of the legal profession, as well as by members of the constabulary.

  1. A question then becomes as to whether there was impropriety. I have sincere doubts as to whether there was the requisite impropriety. Of course, I am taking the relevant words from s 138 of the Evidence Act 1995. That provision is this:

“(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subs (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the question:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian rule.”

  1. In Robinson v Woolworths Limited [2005] NSWCCA 426, Basten JA, with whom Barr J agreed, said, at [23]:

“It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrust with powers of law enforcement’. Second, the conduct in question must not merely blur or contravene those stands in some minor respect: It must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards. Third, the concepts of ‘harassment’ and ‘manipulation’ suggest some level of encouragement, persuasion or opportunity in relation to the commission of an offence; thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced.”

On pp 1316 and 1317 of the current edition of Stephen Odgers Uniform Evidence Law (15th edition 2020), can be found a list of examples of impropriety and what here occurred bears no connection to any of those examples. On p 1318 of the same work can be found examples where it was held that there was no impropriety.

  1. The fact that the appellant was not told that he was free to leave does not in vitiate the rest of what occurred. In particular, the appellant was given the caution that anything he said or did may be recorded and used in evidence. Furthermore, as I shall shortly describe, when the appellant was asked certain questions by DSC Atkinson he was reminded of the caution but, nevertheless, he answered them. There is no suggestion that the appellant was present at his house during the execution of the search warrant against his will. There is no suggestion that he ever asked whether he could leave. He never asked, for example, could he go to work or go to visit the doctor or any local business or organisation such as the Department of Social Security, nor whether he could leave to visit a friend or comply with some earlier arrangement he had made of a social nature.

  2. In my view, there was no impropriety. There was an irregularity but that does not vitiate what subsequently happened. Even if I be wrong in that regard, I have no hesitation in adopting the analysis of the magistrate as to why the evidence ought to have been admitted pursuant to s 138 of the Evidence Act 1995.

  3. I shall deal with the submissions made in writing by Mr Weller-Wong on behalf of the appellant. The appellant asserted that there were two instances of unlawful conduct, resulting in the obtaining of the impugned evidence. The first was that Mr Higgins was treated as a “detained person” by police during the search warrant when he was, in fact, a protected suspect. I have sought to point out that he was only a protected suspect if he had been advised that he was free to leave. He was not so told.

  4. It has also been submitted that the appellant was not afforded the opportunity to receive legal advice and was, therefore, deprived of the opportunity to exercise that right and that right may have enabled him to receive advice to exercise other rights. With the utmost respect, there is nothing in the legislation to place a proactive duty on a member of the constabulary to remind the person in question of what he has been already advised or to prompt him to do what he does not seek to do. For example, s 122 of LEPRA provides this:

“(1) As soon as practical after a person who is detained under this Part (a detained person) comes into custody at a police station or other place of detention or after a person becomes a protected suspect, the custody manager for the person must orally and in writing:

(a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and

(b) give the person a summary of the provisions of this Part in the form prescribed by the regulations.

(2) The giving of a caution does not affect any requirements of any law that a person answer questions put by, or do things by, a police officer.

(3) After being given the information referred to in subs (1) orally and in writing, the person is to be requested to sign an acknowledgement that the information has been so given.”

All of that occurred here.

  1. The right to communicate with a friend, relative, guardian, independent person or Australian practitioner is set out in s 123 of LEPRA. There is no positive duty upon a police officer acting as custody manager to, after advising a person of his rights, to prompt him to do so. Here, the appellant never asked whether he could contact his lawyer. He never sought to do so.

  2. [20] of Mr Weller-Wong’s submissions are these:

“It is abundantly clear from the evidence that the investigating officers treated the applicant as though he were a detained person in police custody and not a protected suspect. Accordingly, Mr Higgins was deprived of his right to be told that he was free to leave the premises at any time, thereby shielding himself from any questions the officers may have asked of him during the execution of the warrant.”

He never asked to leave. Before answering questions, he was reminded that he was under caution. He knew what the caution was. There is nothing to suggest that he wanted to leave in order to avoid having to interact with the police. When I say that, it is clear that the appellant gave no evidence, either in the Local Court or in this Court, on any issue at all. It is one thing to make a submission but often submissions need evidence to support them.

  1. In [25] of his submissions, Mr Weller-Wong submitted that there was seemingly no point to informing someone that he or she had the right to consult with a legal practitioner if no information be provided as to how the person might exercise that right. With the utmost respect, the appellant was told what his rights were. He was offered, when one looks at the form, assistance by Acting Inspector Brisbane to contact a lawyer if he wished to do so but he never asked to do so.

  2. The admissions made by the appellant have been outlined in the Crown’s submissions (MFI 2) in this fashion:

“2. Relevant time in search warrant recording disc 100:19:50-00:23:50 - Mr Higgins is asked about his whereabouts on 5 March, to which Mr Higgins responds, ‘I was at Graham Peckham’s place... ‘ and that he arrived about ’12.30’. Mr Higgins is further asked when was the last time he was in Mudgee prior to that, to which he responded, ‘About two or three months’.

3. Relevant time in search warrant recording is to 00:17:30 - 00:20:00 - Mr Higgins is asked about his knowledge of a ‘Real Pet Foods black cap’ to which Mr Higgins responds, ‘(I’ve) never seen it in my life’.”

Before making those admissions, the appellant was reminded by DSC Atkinson of the caution that he had been given before the last of the admissions. He was not only reminded that he had been cautioned but he was reminded of the substance of the caution, that is that he did not have to say or do anything, but whatever he said might be used in evidence against him.

  1. It is abundantly clear that a Real Pet Food company basketball cap was found in the appellant’s backyard on the ground between the rear of a garden shed and the rear fence. That locus is described in [17] of the statement of DSC Atkinson, which was exhibit 8 in the Local Court. Of course, the presence of the cap is significant. How it came to be there is completely unknown. However, the appellant had to have seen that cap in the past because he can be seen wearing it in the BP service station, at Mudgee, in the early hours of 5 March 2020. A cap of the same type was also used by one of the three offenders. The cap found in the appellant’s backyard is, in my view, highly significant. It is one of only 250. How it came to be in the appellant’s backyard is completely unexplained. Someone had to put it there. It might have been the appellant. The appellant said that he had not seen it ever before in his life but that is of no weight whatever, because he was seen wearing that cap or another of those caps in the early hours of 5 March 2020.

  2. Furthermore, the same type of cap is worn by one of the three offenders, that is one of the three persons who broke and entered and stole from the Federal Hotel at Mudgee. In essence, the appellant asked by his statement the court to believe that of 250 such caps one found its way in some unexplained way into the appellant’s backyard; another was worn by him in the early hours of 5 March 2020; and another of them was worn by a person who was involved in the breaking, entering and stealing. That strains credulity.

  3. Why would the appellant deny any knowledge of the cap when we know he was wearing it when at the BP service station on 5 March 2020? He must have known that not only was it worn then, but it was worn during the breaking, entering and stealing, hence the denial. The evidence is, in my view, evidence of consciousness of guilt as determined by the learned magistrate. The statement is so implausible that the only explanation available for it is that the offender knew that admitting that he had the cap or owned the cap or wore the cap would implicate him in the offence now in question.

  4. It is common ground that for the admission to be used as consciousness of guilt it must satisfy the four criteria described in Edwards v R (1993) 178 CLR 193. Those criteria are these:

“(i) The statement must clearly be shown to be a lie.

(ii) The lie must be deliberate.

(iii) The lie must relate to a material fact in issue.

(iv) The motive for the lie must be a realisation of guilt and a fear of truth.”

  1. That the appellant was wearing a Real Pet Food company cap on 5 March 2020 cannot be doubted. That cap may have found its way into his backyard. Why would he lie about it? The only thing that would cause him to lie about it was that he knew it was used in the crime in question. The statement was clearly untrue. The statement was clearly deliberate. When faced with the cap, he could have admitted that he may have worn it and forgotten about it or something of that nature. He did not. The lie does relate to a material fact in issue. It relates to whether he was in Mudgee in the early hours of 5 March 2020. Why would he lie? The only reason is that he knew it would implicate him in this crime.

  2. The evidence was properly admitted and did constitute evidence of consciousness of guilt.

  3. The other admissions contrary to interest were an attempt to provide himself with some corroboration for his statement that he was not in Mudgee at the relevant time. He said he went to Graham Peckham’s place about lunchtime and then volunteered 12:30 on 5 March 2020. Of course that is well and truly after the offence was over. The appellant then said that prior to getting to Graham Peckham’s house he had not been in Mudgee for a number of months. That, undoubtedly, is untrue because we do know that he was at the service station on 5 March 2020, prior to 12:30 on the same day. In fact, the appellant may have confused 5 March and 4 March and not realised that what the date of the offence was. That, of course, is speculation.

  4. However, if Graham Peckham corroborated what the applicant said, then that would provide some credibility to what the appellant said about his absence from Mudgee. As earlier indicated, the search warrant was executed on 11 March 2020. The execution of the search warrant concluded at 12:15pm on that date. On that day, messages were left on Facebook Messenger, a service subscribed to by Mr Peckham. Those messages indicated that “Robbie” had called him on 11 March, at 12:24pm. There was another message to indicate that Robbie called Mr Peckham on 11 March, at 12:26pm. The first call was for 25 seconds, the second call was for 2 minutes and 10 seconds.

  5. A statement of DCS Atkinson made on 20 November 2020, which was before the Local Court, contains this:

“5. Around 1:15pm on Saturday 14 March 2020, I observed a grey Holden Rodeo, NSW registration number CXG-22F to reverse from the driveway of [redacted] Gladstone Street, Mudgee. I recognised the motor vehicle relating to a separate investigation.

6. I followed the vehicle for a short period of time where it stopped at the BP Service Station. I spoke with Graham Peckham who was the driver of the vehicle requesting that he move the vehicle away from the bowser area. Peckham parked the vehicle a short distance away on Church Street, Mudgee.

7. I had a conversation with Peckham regarding unrelated matters. Once those matters were dealt with, I had a conversation to the effect of:

I said, “Graham while I have you, I’m in charge of an investigation involving a theft of an ATM machine from the Federal Hotel, Mudgee in the early hours of 5 March 2020 involving a significant amount of cash”.

Peckham said, “Yeah”.

I said, “We recently executed a search warrant at Brendan Higgins’ home in Wellington which related to the theft of the ATM. During that search warrant Brendan informed me he was at your place around 5 March 2020. Would Brendan have been at your house on 5 March 2020?”

Peckham said, “Yeah”.

I said, “I will need to obtain a statement from you regarding that?” Peckham said, “Okay”.”

  1. There was interaction between Peckham and the appellant on the following day, 15 March. That is the subject of evidence given orally by Peckham. Evidence was given by Peckham that on 15 March 2020 he went to Wellington and had some interaction with the appellant. That was referred to in par 14 of a statement made by Peckham to the police on 16 March 2020. That paragraph was read to the witness to refresh his memory, he being unable to read. The paragraph is this:

“I am not sure what happened but my Dad left and about two minutes later Brendan walked into the front yard. I had a conversation with Brendan to the effect of I said, ‘the detectives pulled me up in Mudgee last night and they told me you were the main suspect for the ATM and also that you told them that you were with me on March 5’.

Brendan said, ‘Nah’.

I said, ‘That’s fucking bullshit. You’re making my life harder in Mudgee when I’m trying to make it easier. You’ve red-flagged me.’”

There is no dispute that the witness adopted that statement as his evidence.

  1. Peckham was called in evidence at the hearing in the Local Court. The essence of that evidence is that when he returned the calls from “Robbie” he thought the calls had been made to him by Robbie Redding who was a resident of Wellington. Mr Peckham answered one of the calls, clearly the second call referred to in the Facebook Messenger notes that I have quoted. He said that the person who was making the call was not Robbie Redding but his friend “Brendo” who was his “mate” and by that he meant the appellant Brendan Higgins. The witness then needed to be refreshed about his statement. Paragraph 3 of his statement was read to him. It is this:

“At 12:24pm on 11 March 2020 I got a Facebook phone call from a Facebook account I know as Robbie. Robbie is Robbie Redding and he is a good friend of mine. I immediately recognised it was Brendan Higgins calling me because I know his voice well. I was at my home at [redacted] Gladstone Street, Mudgee when I received the call. It was very brief but Brendan said, ‘If the coppers ring, tell them I was with you’. I could tell Brendan was in a hurry so I just replied, ‘Yeah righto, mate’. The call lasted a total of 25 seconds.”

The witness then adopted that as his evidence. He also reiterated it at the foot of p 41 of the transcript of evidence given on 8 December 2020.

  1. In cross-examination Mr Peckham said that he had known the appellant for about two years. His last prior dealing with the appellant before the telephone calls was up to three months previously. He indicated anywhere between one and three months. He said that at one time the appellant was “basically” living with him when he had his own house in Wellington. In one of his remarks the appellant had said that the police had tried to accuse him of being involved in the theft of the ATM. He agreed that that was a “lie”. He said that the police actually questioned him about Brendan and the ATM. At p 47 commencing at line 39 this evidence was given:

“Q. It was on that day that you told the detectives that Brendan had been with you on the evening of the morning that the ATM at the Federal Hotel had been broken into, isn’t that right?

A. Correct.

Q. That is the truth isn’t it?

A. I don’t know where Brendo was.”

  1. It is there being positively asserted by Mr Weller-Wong, on behalf of the appellant, that the truth of the matter was that the appellant was at Peckham’s house from about lunch time on 5 March 2020 but that was, in essence, denied outright by the witness. The witness was putting things charitably, a colourful witness. I have already quoted the fact that he said that he could not read. He clearly had had many encounters with the constabulary and complained on and off of being harassed by them. He said that he had moved from Wellington to Mudgee in about 2017 in order to avoid harassment by the constabulary in Wellington, but had continued to be harassed by the constabulary in Mudgee. Towards the end of cross-examination this evidence was given:

“Q. The reason that you changed your story to the police was that you were sick of being harassed by the police, is that right?

A. No, because I then later on found out the - how can I say it..

Q. It is really a yes or no question?

A. Can you repeat that?

Q. You can disagree, you can say, ‘no’ or if you agree you can say, ‘Yes’?

A. Can you repeat it?

Q. Is it the case that you changed [,] told police a different story on 15th because you were sick of being harassed by them?

A. Yeah mate.

Q. That is right?

A. Yep.

Q. You felt that you had been red flagged, did that mean you thought you had been brought to the attention of the police?

A. Of course.

Q. That attention was something that you would be trying to divert away from yourself?

A. Yep.

Q. You tried to divert that attention away from yourself by telling the police what you thought they wanted to hear, is that right?

A. Correct.

Q. You thought they wanted to hear that Brendan wasn’t at your house is that right?

A. Correct.

Q. That is why you told them that Brendan wasn’t at your house, is that correct?

A. Correct.”

  1. That evidence does not have the significance that Mr Weller-Wong asks me to accept that it did. I accept that the witness felt that he was being harassed repeatedly by the police and that he wanted to stop that harassment. What the police generally want to hear is the truth. The witness may have changed his story but that is not to deny that his changed story is not the truth. Yes the police probably wanted to know the truth and yes, eventually the witness told them the truth in answer to avoid further “harassment”. The re-examination was pithy. The witness was asked whether the police continued to harass him after 16 March and he said they did and it was still ongoing.

  2. It is abundantly clear that his Honour Magistrate Day accepted Mr Peckham as being a truthful witness. In the course of submissions there is this interchange between Mr Weller-Wong and his Honour:

“WELLER-WONG: His evidence is that he lied the first time when he said Mr Higgins was there and then in cross-examination he said he had lied when he told the police that Mr Higgins wasn’t there.

HIS HONOUR: I formed the view listening at close range to Mr Peckham that Mr Peckham would struggle giving evidence at the best of times. He struck me as a particularly slow-witted person, surprising me that even to be considered to be a criminal other than because of his slowness, and I took the view that his answer in cross-examination to that particular question can be completely disregarded. By that stage he was really struggling to give evidence because I consider that unfortunately he was someone not gifted with a lot of brain power.

WELLER-WONG: Other evidence that he gave, your Honour, was that he was at the point in time the police were questioning him about this he was being harassed by police and the attention that he was getting from the police was something that he wished to divert from himself and your Honour would have grave concern that any answers he gave to the police were simply him telling the police what they wanted to hear and in the hope that they would begin leaving him alone. My friend says that the attention didn’t stop after that, that is not the point, the point is what is going through Mr Peckham’s mind at the time...

HIS HONOUR: I expect, Mr Weller-Wong, not a lot.”

  1. In his formal reasons concluding that there had been attempt made by the appellant to construct “a false alibi care of Mr Peckham” his Honour said this:

“In that regard I have made my views about Mr Peckham I thought crystal clear. I accept his evidence as being truthful notwithstanding a degree of pressure having been applied to him by investigating police, in that he was and I find that he is asked by Mr Higgins who he knows from his Wellington days to provide a false alibi. The issue then, having given myself a direction of the kind in Edwards, is whether it is...consciousness of guilt.”

  1. I recorded what passed between Mr Weller-Wong and his Honour in submissions because he adverts to it in having made his views about the witness crystal clear. He clearly accepted the thrust of Mr Peckham’s evidence that there was an attempt by the appellant to obtain some assistance from Mr Peckham and to establish his whereabouts in Mudgee being much later than the time of the breaking, entering and stealing. That attempt clearly had been offered by the appellant to police during the execution of the search warrant and was followed up as soon as the police left by a phone call made by the appellant to Peckham. Peckham initially told the police that what the appellant said was true but, after interaction between the appellant and Peckham, the witness made a statement to the contrary.

  2. As I have sought to point out, a formal alibi was not established through Mr Peckham because on what the appellant said he only got to Mudgee about lunch time on the day of the crime, the crime having been committed in the early hours of the preceding morning. However if Peckham maintained the stance adopted by the appellant, that would give some air of verisimilitude to the appellant’s assertion. Again what the appellant told the police during the execution of the search warrant was untrue. It was a denial of being in Mudgee at the relevant time. He provided false information to the police. The police followed it up. It was initially confirmed by Peckham but quickly retracted by him. The attempt to set up Peckham as a corroborative witness completely failed and it satisfies the four criteria in Edwards v R which I have earlier quoted.

  3. I accordingly agree with the learned magistrate that the evidence was admissible and the evidence related directly to a fact in issue, the whereabouts of the appellant on 5 March 2020. The attempt to establish Peckham as a source of corroboration was completely unsuccessful. Notwithstanding his Honour’s view as to the reliability of the evidence of Peckham, it has been criticised by Mr Weller-Wong in this Court and I am asked to reject his evidence. However the subtle influence of demeanour, the advantage of having seen him and heard him as he gave his evidence is something that rests within the peculiar domain of the tribunal at first instance, here Magistrate Day. In any event my reading of the evidence indicates to me what was pointed out by the learned magistrate, that the witness was a person of limited intelligence who was prepared to, for example, say that the police even accused him of being involved in the theft of the ATM but then admitted that that was untrue, but he maintained throughout when one looks closely at the substance of his evidence that he was not aware of where the appellant was on 5 March 2020 and he only initially said that he did because he was asked to do so by his friend, the appellant. In my view that also constitutes evidence of consciousness of guilt.

Summary

  1. The evidence that is available can be summarised in this fashion. Ms Pearce’s car was stolen from Wellington some time after 9pm on Wednesday, 4 March 2020. It must have been driven to Mudgee because it was used as the car which brought the three offenders to the Federal Hotel and was used by the three offenders to carry themselves and the ATM from the Federal Hotel. The car was later found torched on the afternoon of 5 March 2020 near Nanima Village which was also known as the Wellington Mission on that afternoon. The ATM machine was found later in the Macquarie River, about 400 metres distant from where the car was torched. An inference must be drawn that at least one person drove that vehicle from Wellington and returned it to Wellington with the ATM inside the car. An inference to be drawn from how one observes the three offenders extracting the ATM from the hotel is that it took two people to lift and carry it. It is therefore highly probable that at least two of the three offenders left Mudgee and went back to Wellington. It is known that the appellant was a resident of Wellington. The appellant was observed at the BP Service Station in Mudgee between say 4:20 and 4:24 on the morning of 5 March 2020. He was wearing a distinctive cap as well as Canterbury sweatpants and Nike runners/joggers/sneakers. One of the offenders wore Canterbury sweatpants and Nike runners/joggers/sneakers. Another wore a cap with the logo “Real Pet Food Company”. A cap of exactly the same pattern was found in the backyard of the offender’s residence at the time of the execution of the search warrant on 11 March 2020.

  2. We do know that there is about 19 minutes between the CCTV footage exposed at the service station and the CCTV vision exposed at the hotel. What happened in that 19 minutes I do not know but I note that the appellant left the service station carrying drinks for three and four snacks, which might have provided a drink and a snack to three persons rather than merely one. Consuming that beverage and a snack would have taken a few minutes. It is unlikely that the appellant swapped his sweatpants and sneakers with another. He may have taken off his cap but it could have been donned by another. The appellant then lied to the police about being in Mudgee and attempted to provide the name of a witness who might give his denial an air of verisimilitude by establishing that he was in Mudgee from about 12.30pm on the day of the robbery but not beforehand. That witness would not go along with the pretence advocated to him by the appellant. The appellant’s denial of having anything to do with the cap or knowing anything about it is completely inconsistent with his being seen wearing it in the CCTV footage at the service station.

  3. One further thing which is of little moment is that when the police executed the search warrant, they found nineteen $50 notes and four $20 notes in a green coin pouch under the bed in one of the bedrooms in the house occupied by the appellant. By itself that is of little moment and of extremely small probative value. However added to the other evidence, it acquires greater probative value. The only other thing found in the green coin pouch was a bankcard in the name of the appellant. If one is acquiring a large amount of money in notes, one would try and obtain as much in larger size notes, such as $100 notes. Equally, if one wanted to build up a cache of notes from savings, one would expect there to be notes other than $50 notes and $20 notes. Therefore the finding is of some, albeit minor, moment.

  4. Bringing all those pieces of evidence together and bearing in mind the admissions which constitute an admission of guilt, I am comfortably satisfied beyond reasonable doubt that the crime alleged by the Police, that is the breaking, entering and stealing, has been proved. Therefore it follows automatically, as pointed out by the learned magistrate, that the offender must have been guilty of the second offence charged, that is a sequence 4 offence of being carried in the vehicle because the three offenders arrived at the Hotel in Ms Pearce’s vehicle and departed from the Hotel in Ms Pearce’s vehicle with the ATM machine laying along the backseat of the vehicle.

WELLER-WONG: May it please.

HIS HONOUR: I apologise to the solicitors involved in this appeal if I have not adequately addressed all their submissions, but I have been speaking now for one hour yesterday and about four hours today, and I have a sore throat which I think I inherited from my Associate who has had the last two days off work. For those reasons the appeal against conviction is dismissed.

  1. WELLER-WONG: May it please your Honour.

EXHIBIT #4 CROWN BUNDLE ON SEVERITY APPEAL TENDERED, ADMITTED WITHOUT OBJECTION

EXHIBIT #5 LETTER FROM DRS WESLEY HARRISON AND LAUREN BRADBURY DATED 22/06/21 TENDERED, ADMITTED WITHOUT OBJECTION

EXHIBIT #6 AFFIDAVIT OF APPELLANT TENDERED, ADMITTED WITHOUT OBJECTION

  1. I have now considered the material put before me on the question of the severity of the sentence. The learned magistrate imposed an aggregate period of imprisonment for two years and fixed a non-parole period of 18 months. His Honour declined to find special circumstances, despite a submission made to the contrary by the appellant’s solicitor.

  2. Before me is a letter from a medical oncologist who advises me that the offender’s mother, now aged 63, has been diagnosed with lung cancer and that she requires regular attendance for chemotherapy and potentially radiotherapy at Orange Health Service, over four months, commencing from 22 June this year, that is from last week.

  3. The offender, at the time of his arrest, was living with his mother in her home in Pierce Street, Wellington. He intends to return to live there when released from custody. He will essentially be his mother’s support while she recovers from the treatment for her very serious and worrying condition.

  4. The appellant has two brothers, one of whom lives in Wellington and may be able to assist his mother in the interim. However, his other brother, with whom he gets on, lives in Orange, so would not readily be available to transport his mother from Wellington to Orange, to undergo either chemotherapy and potentially radiotherapy.

  5. Chemotherapy makes the patient quite ill and I accept that the appellant’s mother would not be able to make the long drive between Wellington and Orange. The offender tells me that the distance is well over 100 kilometres and would take approximately two hours each way. There is a pressing family reason for the appellant to be discharged from prison as soon as possible. Indeed, the medical oncologist says this:

“Please give compassionate consideration of this [need for treatment] with regards to her son, Brendan’s, current sentence and location of incarceration.”

I cannot deal with his location of incarceration but I note that he was incarcerated at Wellington between 31 March and 3 April, when he was sent to the Shortland Correctional Centre, which I understand is in the Hunter Valley. It would be best for all concerned if he could be incarcerated at Wellington.

  1. Another thing that I take into account is this: The offender has been undergoing rehabilitation. In his affidavit he says this:

“22. Since being in custody I have engaged in Maths and English programs.

23. I have also nearly completed the High Intensity Programs Unit. This is a program designed to assist people with anger and addiction issues. I have engaged in programs designed to help me with managing my drug addiction, managing my anger and managing my emotions.

24. This program has really made me look at myself, particularly how I deal with the split up between me and my wife.

25. When I reflect on that, I realise I had other options like reaching out to people close to me for support rather than turning to drugs.”

It is estimated that the appellant will finish the High Intensity Programs Unit course within about four weeks and although he has other units to complete, they might be completed within the next eight weeks. That is commendable.

  1. It is also commendable that the offender has realised his error in turning to use drugs after an unfortunate matrimonial estrangement, which caused the offender to lose contact with his children. His incarceration to date has been beneficial.

  2. However, when released back into the community, there will be greater temptation than is probably available in gaol. After all, it is easier to abstain from drinking alcohol if the pub has no beer. Theoretically, drugs are not available in gaol. They can be accessed, I know, but it is a very dangerous and expensive course. Drugs will be more readily available to the offender if he is in the community. Therefore, to keep him on the straight and narrow, a lengthy period of supervision by Community Corrections will helpfully keep him on the straight and narrow and help him to maintain his resolve to be abstinent from drugs.

  3. In the circumstances, there are grounds for making a finding of special circumstances to break the statutory nexus between the head sentence and the non-parole period.

  4. I have determined that the appropriate non-parole period is 15 months. That is the only amendment I would make to the one of the magistrate’s sentence. Quite frankly, had the matter been determined before me, there would have been a trial by jury, I would have started the sentencing exercise with a head sentence between three and four years. Clearly, where the offender pleaded not guilty and was convicted, there could be no discount for an early plea of guilty. The offender was, in my view, fortunate that he was tried in the Local Court rather than in this Court.

  5. In Hunter v R [2011] NSWCCA 141, the Court of Criminal Appeal established that an offence within the mid-range of objective seriousness is demonstrated where there was a significant degree of planning, property of a substantial significant value stolen, persons present in the premises and frightened by the incursion and significant damage. Here, there must have been some degree of planning, being stealing of the car to take the offenders to the hotel, the return of the vehicle to Wellington and its destruction to destroy any evidence, such as DNA evidence or fingerprint evidence. The ATM was worth $9,000 in itself. It contained banknotes amounting to $17,220 and there was significant damage to the hotel, costing nearly $5,500 for repairs. There were persons present in the premises, three residents upstairs in the hotel but there is no evidence that they were frightened by the breaking and entering. Indeed, some of them heard noises but thought it was only of work being done in the public bar area. That places this case below the mid-range of objective seriousness. However, that means a non-parole period of less than five years but here I would have started a head sentence, as I said, between three and four years. Therefore, I do not believe the sentence to be, in itself, excessive, bearing in mind that it also encompasses the second offence of knowingly be carried in a stolen conveyance, the maximum penalty for which is imprisonment for five years but, in the Local Court, it is only two years.

  6. For those reasons, I vary the sentence passed by the Local Court and fix a non-parole period of 15 months, which expires on 27 August 2021.

Decision last updated: 01 February 2022

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Steinberg v Federal Commissioner of Taxation [1975] HCA 63
Hunter v R [2011] NSWCCA 141