Police v Robinson

Case •

[2020] NSWLC 5

•

09 October 2020

No judgment structure available for this case.

Local Court


New South Wales

Medium Neutral Citation: Police v Robinson [2020] NSWLC 5
Hearing dates: 9 March 2020 (Hearing - Bankstown)
20 July 2020 (Written submissions - Fairfield)
Decision date: 09 October 2020
Jurisdiction:Criminal
Before: Magistrate Tsavdaridis
Decision:

Sequence 1 - Break, enter and steal - Guilty

Sequence 2 - Break, enter and steal - Guilty

Catchwords:

CRIMINAL LAW - Break, enter and steal - where prosecution case based in part on direct evidence and in part on circumstantial evidence

Legislation Cited:

Crimes Act 1900 (NSW) ss.4, 105A, 112(1)(a), 117

Evidence Act 1995 (NSW) s.38(1)(c)

Cases Cited:

Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7

Fleming v R (1998) 197 CLR 250

Ghamrawi v R (2017) 95 NSWLR 405; 269 A Crim R 146; [2017] NSWCCA 195

Peacock v R (1911) 13 CLR 619

Pitkin v R (1995) 130 ALR 35

Plomp v R (1963) 110 CLR 234

R v Boyce (1954) 38 Crim App R 111

R v Manunta (1990) 54 SASR 17

Shepherd v R (1990) 170 CLR 573

Stanford v R [2007] NSWCCA 370

Woolmington v DPP [1935] AC 462

Texts Cited:

East, Pleas of the Crown (1803), vol 2, p 490

Category:Principal judgment
Parties: NSW Police (Prosecution)
Harry Robinson (Defendant)
Representation: Solicitors:
Ms P Hughes, Sgt (Police Prosecutor)
Mr D Leamey (Solicitor for Defendant)
File Number(s): JL: 2019/261849 / Charge: H74023385

Judgment

Overview

  1. Mr Harry Robinson (“the Defendant”) is charged with two counts of break, enter and steal relating to thefts which took place in the early hours of 28 July 2019 at two different stores in the Bankstown shopping district.

  2. The Prosecution case was reliant, in part, on direct evidence and, in part, on circumstantial evidence. To this end, the Court must heed the cautionary trial directions applicable in criminal trials, to which reference is made below.

  3. Although much of the documentary evidence in support of the Prosecution case was tendered and admitted into evidence by consent, pleas of not guilty were entered to both charges and the matter proceeded as a defended hearing on 9 March 2020.

The Charges

  1. The Defendant was charged with following offences: -

Sequence 1   Break, enter and steal

[s.112(1)(a) Crimes Act 1900 (NSW)]
Between 4.36 a.m. and 5.10 a.m. on 28 July 2019
at the Bankstown Coin Laundry Shop
56 Restwell Street, Bankstown

Sequence 2   Break, enter and steal

[s.112(1)(a) Crimes Act 1900 (NSW)]
Between 5.10 a.m. and 10.00 a.m. on 28 July 2019
at the Ozly Clothing Store
5 Bankstown City Plaza (Old Town Plaza), Bankstown.

Particularisation of Court Attendance Notices

  1. The particularisation of the charges preferred against the Defendant was founded on the following: -

Sequence 1   Break, enter and steal

[s.112(1)(a) Crimes Act 1900 (NSW)]
Between 4.36 a.m. and 5.10 a.m. on 28 July 2019
at the Bankstown Coin Laundry Shop
56 Restwell Street, Bankstown

(a)   The Defendant broke and entered the Bankstown Coin Laundry Shop situated at 56 Restwell Street, Bankstown;

(b)   The Defendant stole a black suitcase, white female dress, confectionery and approximately $50.00 in coins; and

(c)   The shop and property belonged to Mr Thuy Le.

Sequence 2   Break, enter and steal

[s.112(1)(a) Crimes Act 1900 (NSW)]
Between 5.10 a.m. and 10.00 a.m. on 28 July 2019
at the Ozly Clothing Store
5 Bankstown City Plaza (Old Town Plaza), Bankstown

(a)   The Defendant broke and entered the Ozly Clothing Store situated at 5 Bankstown City Plaza (Old Town Plaza), Bankstown;

(b)   The Defendant stole various Korean brand cosmetics, an Apple iPad, a Commonwealth Bank EFTPOS machine, Bosch tools and other assorted tools; and

(c)   The shop and property belonged to Mr Patrick Nguyen.

Legislation and Elements

  1. Section 112(1)(a) of the Crimes Act 1900 (NSW) provides as follows: -

112 Breaking etc into any house etc and committing serious indictable offence

(1)   A person who:

(a)   breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or

(b)   ...

is guilty of an offence and liable to imprisonment for 14 years.

  1. The essential ingredients which the Prosecution must prove, each beyond reasonable doubt, are as follows: -

(a)   The Defendant broke into and entered.

Neither “break” nor “enter” is defined in the Crimes Act 1900 (NSW). Damage or force are not essential. Breaking may be actual or constructive.

An “actual breaking” occurs where, amongst other things, one physically breaks a door or window, picks a lock, uses a key, lifts a latch, or unloosens any fastening to a door or window (even if partially open): Stanford v R [2007] NSWCCA 370 at [25] - [28].

A “constructive breaking” occurs where, amongst other things, one obtains entry into premises by a trick on a person within, or intimidation of that person: R v Boyce (1954) 38 Crim App R 111; Ghamrawi v R (2017) 95 NSWLR 405; 269 A Crim R 146; [2017] NSWCCA 195 at [97].

As to “entering”, following a breaking, “if any part of the body be within the house, hand or foot; this at common law is sufficient, and has always been so ruled”: East, Pleas of the Crown (1803), vol 2, p 490.

(b)   A dwelling-house or other building.

As to “dwelling-house”, s.4 of the Crimes Act 1900 (NSW) provides a non-exhaustive definition, including, “(a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied; (b) a boat or vehicle in or on which any person resides; and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.”

As to “other building”, there is no definition contained within the Crimes Act 1900 (NSW). Section 105A of the Crimes Act 1900 (NSW) defines “building” as including any place of Divine worship. The Macquarie Dictionary definition of “building” is “a substantial structure with a roof and walls, as a shed, house, department store, etc.”

(c)   The Defendant committed a serious indictable offence therein.

As to “serious indictable offence”, s.4 of the Crimes Act 1900 (NSW) defines the phrase as meaning “an indictable offence that is punishable by imprisonment for life or a term of 5 years or more.”

The offence of stealing, or more particularly, larceny, contrary to s.117 of the Crimes Act 1900 (NSW), is an indictable offence that is punishable by a term of imprisonment of 5 years.

Cautionary Criminal Trial Directions

  1. The Prosecution case was based partly on direct evidence and partly on circumstantial evidence and, because this was so, various cautionary criminal trial directions are called into play, as if I were directing a jury on the application of the law to the facts, as they found them to be, in matters prosecuted on indictment.

  2. It is well established that criminal trial directions apply to a magistrate or judge sitting alone as they do to a trial before a judge and jury: Fleming v R (1998) 197 CLR 250. Lest there be any doubt, I have directed myself in accordance with the cautionary criminal trial directions referred to in these reasons for decision.

  3. I repeat the oft-cited trial direction regarding the standard and burden of proof. The Prosecution must prove each of the elements of the offences beyond reasonable doubt. It is not for the Defendant to prove his innocence, but rather for the Prosecution to prove his guilt. In the event that the Prosecution has failed to discharge its burden to the requisite criminal standard, a verdict of not guilty must be returned and the Defendant acquitted.

  4. There are other criminal trial directions which I ought give myself. The Defendant did not give evidence in this matter and no adverse inference is to be drawn from his decision not to do so. Similarly, the Defendant did not provide a Record of Interview.

  5. The customary direction where the Prosecution relies on circumstantial evidence is that guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: Shepherd v R (1990) 170 CLR 573 (at 578).

  6. It is necessary for the tribunal of fact to decide whether it accepts the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence. It can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. It cannot view an intermediate fact as an indispensable basis for an inference of guilt unless, at the end of the day, it is satisfied of the existence of that fact beyond reasonable doubt: Chamberlain v R (No 2) (1984) 153 CLR 521 (at 535); [1984] HCA 7; Shepherd v R (1990) 170 CLR 573 (at 576).

  7. When the evidence is circumstantial, the tribunal of fact may draw an inference of guilt from the circumstances of the case. It must, however, exclude any reasonable hypothesis consistent with innocence: Chamberlain v R (No 2) (1984) 153 CLR 521 (at 535); [1984] HCA 7.

  8. It is to be stressed that the Court, as the trier of fact, cannot convict if there is any rational hypothesis or reasonable possibility consistent with innocence: Peacock v R (1911) 13 CLR 619 (at 634); Plomp v R (1963) 110 CLR 234. If there is, then in such circumstances, it ought give the defendant the benefit of the doubt necessarily created by that circumstance: Pitkin v R (1995) 130 ALR 35 (at 39).

  9. The guilt of the accused must be established beyond reasonable doubt. A doubt must be entertained where any other inference consistent with innocence is reasonably open on the evidence: Shepherd v R (1990) 170 CLR 573 (at 579).

  10. Three further matters ought be borne in mind.

  11. First, the decision of the tribunal of fact is to be based on the evidence, not suspicion, nor speculation. When assessing the evidence adduced throughout the hearing, the Court may, as the trier of fact, decide which evidence is believed and how much weight is to be placed on the testimony of each witness. In carrying out that task, it is to be borne in mind that the trier of fact may use common sense and experience in order to assess the credibility of each witness. It is within the Court’s power to accept some part of a witness’s evidence while rejecting other parts: R v Manunta (1990) 54 SASR 17. That is to say, I can accept none, some or all of a witness’ evidence.

  12. Secondly, it is erroneous for a tribunal of fact to consider each item of evidence separately and eliminate it from consideration, no matter how or by whom it was raised, unless satisfied beyond reasonable doubt. The evidence must be considered as a whole, not in isolation: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7.

  13. Thirdly, if upon a review of all the evidence the tribunal of fact is left with reasonable doubt about whether the Prosecution case has been made out, a verdict of acquittal must be returned: Woolmington v DPP [1935] AC 462.

The Evidence in the Prosecution Case

Senior Constable Nizar Azzi

  1. The Statement of Senior Constable Nizar Azzi, dated 4 September 2019, was tendered into evidence as Exhibit 1. His statement was to the following effect: -

  1. On 29 July 2019, he, together with Sergeant Simon Telfer, attended the Ozly Clothing Store at 5 Bankstown City Plaza (Old Town Plaza), Bankstown in relation to a break and enter. He spoke to the shop owner, Mr Patrick Nguyen, who showed him the shop area and the storeroom;

  2. He then attended the Bankstown Coin Laundry at 56 Restwell Street, Bankstown in relation to a break and enter. He spoke to the shop owner, Ms Thuy Le, who showed him the front door which had damage to the lock;

  3. At 2.30 p.m. that day, he called a witness, Ms Anh Tran, who provided a description of what she saw in Stewart Lane and the clothing worn by the male she sighted at 6.00 a.m. on 28 July 2019;

  4. He then attended Bankstown Sports Club and spoke to the manager, Mr Matthew Tanti. He reviewed the Club’s CCTV footage and sighted a male wearing white shoes, green cargo pants, a black “Deus” branded jumper and a beanie. He reviewed the actions of this male and obtained a copy of the CCTV footage (Exhibit 13);

  5. On 30 July 2019, he circulated still images of portions of the Bankstown Sports Club CCTV footage on the police email system;

  6. He requested CCTV footage from Bankstown Railway Station which depicted the same male (Exhibit 14);

  7. On 12 August 2019, he received a DNA notification linking the Defendant to the break and enter scene at the Ozly Clothing Store. On the same day, he spoke to the store’s owner, Mr Nguyen, who confirmed that blood was located on a plastic container which contained screws and which belonged to Mr Nguyen;

  8. On 12 August 2019, he attended 109 Denman Road, Georges Hall to arrest the Defendant. There, he spoke to Ms Sarah Hamra (the Defendant’s niece) and showed her a still image of two males depicted in the CCTV footage obtained from the Bankstown Sports Club;

  9. Ms Hamra identified one of the males as being the Defendant. He obtained a signed statement from Ms Hamra, in part, to that effect;

  10. On 13 August 2019, he again attended 109 Denman Road, Georges Hall but was unable to locate the Defendant. On this occasion he showed Ms Hamra a close-up image of the photo which she had been shown the day before and she signed the image identifying the male to the left of the two images on the page as being the Defendant (Exhibit 8);

  11. He made several attempts to locate and arrest the Defendant, including speaking with the Defendant on several occasions, but was unsuccessful in locating him;

  12. He listed the Defendant on the police system as “Wanted” and completed appropriate paperwork linking the Defendant to the break and enter offences at both Ozly Clothing Store at 5 Bankstown City Plaza (Old Town Plaza), Bankstown and Bankstown Coin Laundry at 56 Restwell Street, Bankstown;

  13. At 3.00 p.m. on 22 August 2019, he received a phone call from Senior Constable Mark Forman during which he was informed that Defendant was arrested by police;

  14. On 23 August 2019, Constable Dominic Johnston provided him with the information sheet and consent form for a DNA buccal swab obtained from the Defendant; and

  15. On 23 August 2019, he called both alleged victims and arranged for them to attend Bankstown Police Station so as to obtain statements.

  1. His evidence-in-chief was marked by the playing, and tender, of the CCTV footage from the Bankstown Sports Club (Exhibit 13) and the CCTV footage from the State Rail Authority (Exhibit 14). This evidence is summarised under a separate heading below. Other than some questions asked of him as to the location, streets, times, directions of view and pointing out the person of interest, there was no further material evidence adduced in-chief.

  2. His evidence in cross-examination was as follows: -

  1. He agreed that there was a second male in the vicinity at the time of the incident;

  2. The other male could be seen across the street;

  3. He showed Ms Sarah Hamra (the Defendant’s niece, whose evidence is summarised below) photos, derived as still images from the CCTV footage, one of which was said to depict the Defendant and one of which was said to depict the other male;

  4. He then enlarged one of the photos (said to depict the Defendant) which she then signed;

  5. Based on the CCTV footage from Bankstown Sports Club (Exhibit 13), the other male met up with the first male (said to be the Defendant), took over from the first male and pushed the shopping trolley;

  6. Based on the CCTV footage, the person said to be the Defendant was seen exiting the Bankstown Coin Laundry Shop with the black luggage bag, then seen pushing the luggage bag through Restwell Street and then along South Terrace, Bankstown;

  7. He agreed that there was no evidence of the Defendant being identified by anyone as being the first male in the CCTV footage. [A subsequent question to the effect that, “From the video, you can’t make out who it is” was disallowed, given that this was a matter for the tribunal of fact];

  8. He disagreed with the proposition put to him that, “no one has identified who that is in the top of the [CCTV] video from the Bankstown Sports Club”;

  9. He had a statement from Ms Sarah Hamra (who identified the Defendant and the clothing he was wearing in the still images derived from the CCTV footage);

  10. He followed the CCTV footage from beginning to end, for continuity, and that was how he ended up with a closer vision (of the person said to be the Defendant) on South Terrace;

  11. He disagreed that there was a second male at the front door;

  12. He was unable to comment on where three shopping trolleys worth of stolen items went;

  13. He agreed that the items were stolen between 7.00 p.m. the night before and 10.00 a.m. the next morning;

  14. He disagreed with the proposition, and referred to it as speculation, that someone else could have broken into the two premises at midnight and stolen things;

  15. He agreed that there was a trolley full of items depicted in the CCTV footage but that one could not see or tell whether it contained 200 pairs of denim jeans, boxes of make up or a vacuum cleaner;

  16. He agreed that the luggage bag depicted in the CCTV footage was likely to have been from the first break and enter at the Bankstown Coin Laundry Shop;

  17. The person said to be the defendant was seen in the CCTV footage with the items at 5.19 a.m. on South Terrace and then again at 5.53 a.m. in Stewart Lane;

  18. Based on the CCTV footage, the person said to be the Defendant had a light or some sort of phone in his hand;

  19. He disagreed with the proposition that the Defendant “might have been playing Pokémon GO in [the laneway] because he was looking for something, that’s a reason for being there”. He stated that the Defendant would have been looking down at his phone, rather than using it as a torch, had that been the case;

  20. He was unable to comment, and did not know, about whether the Defendant was “sleeping rough”, “sleeping in the stairwell” in the area behind the shop where the break and enter offence took place, or whether the Defendant abused drugs intravenously. [A subsequent question to the effect that, “Somebody might have taken a used syringe and planted the DNA inside [the Ozly Clothing Store]” was disallowed, given that this was a matter for the tribunal of fact];

  21. He agreed that the “Deus” branded clothing was available for retail purchase;

  22. He disagreed with the proposition that “Someone else did the robberies and not this accused”;

  23. He agreed that the part of the CCTV footage at 5.53 a.m., which depicted the person said to be the Defendant, walking up the laneway, walking into the back of the building, the (sensor) light coming on and two dumpster type garbage bins, was not at the back of the shops the subject of the break and enter offences but, rather, east of Stewart Lane;

  24. There was only one luggage bag which was the subject of the break, enter and steal offence from the Bankstown Coin Laundry Shop, not two;

  25. He agreed that the other male left with the luggage bag from the first break and enter offence but he did not know whether that male went to the railway station; and

  26. Based on the CCTV footage on South Terrace, the other male was given carriage of the luggage bag and wheeled it away, although he did not know where that male went thereafter.

  1. His evidence in re-examination was as follows: -

  1. The photograph which he had shown to Ms Sarah Hamra (the Defendant’s niece) was derived as a still image from the CCTV footage from Mr Matthew Tanti, the manager at Bankstown Sports Club, who was able to enlarge the photo;

  2. He showed Ms Sarah Hamra the photo twice, once with the photo in normal size and, later, once it had been enlarged and sensitive material around it had been removed, the latter being the copy which she signed.

  3. He stated that the person in the first (or beginning) of the CCTV footage clip was the same person is the person depicted in other CCTV footage clips, recorded from various camera angles, by following through from the first sighting in the beginning, on Restwell Street, continuously through to the end;

  1. There was no CCTV footage depicting the exit from the Ozly Clothing Store; and

  2. He conceded that it was possible that if the Defendant were to have exited from the Ozly Clothing Store, this was not something captured on any CCTV footage.

Constable Dominic Johnston

  1. The Statement of Constable Dominic Johnston, dated 26 August 2019, was tendered into evidence as Exhibit 2. His statement was to the following effect: -

  1. He had been certified by NSW Police to conduct buccal swab forensic procedures since 2015;

  2. At or about 4.10 p.m. on 22 August 2019, he conducted a forensic procedure with the Defendant at Bankstown Police Station;

  3. He read the Defendant an information sheet about the procedure;

  4. He read the suspects consent form to the Defendant, which the Defendant signed;

  5. The Defendant provided a buccal swab sample which he sealed in the presence of the Defendant;

  6. The entire process was video recorded by Constable Laruen Powell; and

  7. He gave the sample to the Custody Manager before continuing his duties.

  1. Constable Dominic Johnston did not give oral evidence-in-chief, nor was he cross-examined.

Leading Senior Constable Mark Forman

  1. The Statement of Leading Senior Constable Mark Forman, dated 10 September 2019, was tendered into evidence as Exhibit 3. His statement was to the following effect: -

  1. At 2.50 p.m. on 22 August 2019, he attended the station area of Bankstown Police Station;

  2. He had a conversation with the Defendant who he was previously aware was wanted for a break and enter offence that had occurred in Bankstown;

  3. He arrested and cautioned the Defendant; and

  4. The Defendant was escorted to the custody area by Constable Rhys Wilson.

  1. Leading Senior Constable Mark Forman did not give oral evidence-in-chief, nor was he cross-examined.

Constable Rhys Wilson

  1. The Statement of Constable Rhys Wilson, dated 26 August 2019, was tendered into evidence as Exhibit 4. His statement was to the following effect: -

  1. At or about 3.00 p.m. on 22 August 2019, he, Constable Dominic Johnston, Constable Jordan Hughes and Senior Constable Mark Forman attended the station area of Bankstown Police Station;

  2. He observed the Defendant standing outside the station area;

  3. Senior Constable Mark Forman had a short conversation with the Defendant, after which he was led into an interview room; and

  4. He, Constable Dominic Johnston and Constable Jordan Hughes led the Defendant to the custody area where upon he was introduced to the Custody Manager.

  1. Constable Rhys Wilson did not give oral evidence-in-chief, nor was he cross-examined.

Ms Thuy Le (owner of Bankstown Coin Laundry)

  1. The Statement of Ms Thuy Le (owner of Bankstown Coin Laundry), dated 27 August 2019, was tendered into evidence as Exhibit 6. Her statement, which she provided with the assistance of a Vietnamese speaking interpreter, was to the following effect: -

  1. She had been the owner of Bankstown Coin Laundry at 56 Restwell Street, Bankstown for the past five years where she conducted dry cleaning but also sold drinks and confectionary;

  2. The shop was on the corner of Restwell Street and Stanley Street, Bankstown. The front entrance faced Stanley Street. The front door was a double glass door with an aluminium frame which was secured by a keylock that kept both doors together;

  3. The entrance to a large open area where customers walk into and where several washing machines and dryers are situated along the back wall. There was also a large fridge that contained various soft drinks;

  4. To the right of the front door entrance was a large counter where no customers were allowed behind the counter area;

  5. On the counter there were several confectionary products displayed for sale, including chewing gum, lollies and chocolate. Next to the washing machine she had an old coffee machine. She stored large jars of confectionary products behind the counter. There was also a cash register behind the counter;

  6. At or about 6.00 p.m. on 27 July 2019, she finished work at the shop. She left about $100.00 in Australian coins and notes in the cash register. She left the confectionary products displayed on the counter. She locked the front glass door and left the store;

  7. Before leaving the store, she tried to turn on the alarm but it was not working and left it off;

  8. At or about 10.00 a.m. on 28 July 2019, she arrived at the shop to open for business. She saw that the front glass door was open. The lock to the front door was damaged. She walked inside and noticed customer clothing all over the floor. She noticed that all the confectionary products had been taken, including the confectionary jars and some drinks from the fridge. From the main area of the shop, an old black luggage bag had also been stolen;

  9. The cash register was wide open. All the money had been stolen, including the coins. She noticed that a customer’s white dress, which she had left on the counter before leaving the shop the night before, had been stolen. She was fearful of telling the customer that her dress had been stolen;

  10. The total value of the property stolen was about $300.00;

  11. She contacted police who arrived later that day. Later that evening, a scene of crime officer attached to the forensic unit attended and conducted an inspection during which he looked for fingerprints;

  12. She was upset. She had worked long hours to build up her business and support her family. She suffered financially and was left with an upset customer after she had informed her that her dress had been stolen; and

  13. On 22 August 2019, police informed her that they had obtained footage of a male breaking into her shop. They asked her if she knew any person by the name of Harry Robinson. She informed police that she did not know any person by that name. She did not give anyone permission to break into her store and steal her property. She was seeking compensation for her losses.

  1. Ms Thuy Le did not give oral evidence-in-chief, nor was she cross-examined.

Mr Patrick Nguyen (owner of Ozly Clothing Store)

  1. The Statement of Mr Patrick Nguyen (owner of Ozly Clothing Store), dated 13 August 2019, was tendered into evidence as Exhibit 5. His statement was to the following effect: -

  1. He had been the owner of the Ozly Clothing Store at 5 Bankstown City Plaza (Old Town Plaza), Bankstown since 19 July 2019. The store sold ladies clothing and various beauty products, including skin care moisturiser and makeup products;

  2. The store had two access doors. The front door faced Bankstown City Plaza (Old Town Plaza), Bankstown and the rear door faced Stewart Lane. There was a agate at the back of Stewart Lane that prevented access into the rear of the store;

  3. The front door of the store was a glass door with an aluminium frame. The front door allowed access to the store where there were various shoves and clothes racks which customers could access. About half way into the store, there was a counter, behind which was situated a cash register, Commonwealth Bank EFTPOS card reader and Apple iPad;

  4. Towards the rear of the store there was an open fitting room that was blocked off by white curtains. Through the fitting room was a wooden internal door that led into a corridor. To the left of the corridor, there was another wooden door that led to a storeroom. At the end of the corridor was a wooden door that led to a kitchen and the rear door;

  5. At the back of the store, there were two car spaces belonging to the store. These car spaces were blocked off by a closed by an unlocked Colorbond fence;

  6. Customers only had access to the main area and fitting room. No customer was allowed entry past the fitting rooms;

  7. Since opening the store, he had used the storeroom to place all his tools, which were required to fix various shelving within the store. He was the only person who had access to the storeroom. Other employees only had access to the main shop area. He had three female shop assistants who worked for him. He was the only person who had keys to the store;

  8. At or about 7.00 p.m. on 27 July 2019, he locked and secured the store, making sure that both the front door and rear door were locked and that all internal doors were closed. The storeroom door was locked. Within the storeroom was his Bosch drill driver and hammer drill, together with two toolboxes. There was also a plastic container which contained screws and which he had left on the floor. All of these items were neatly stacked on the floor of the storeroom;

  9. At or about 10.00 a.m. on 28 July 2019, he drove into the rear car park of the store. He noticed that the rear door to the storeroom was open and the locks had been damaged. He entered the store from the rear door. He saw the items which he had previously described as being neatly stacked on the floor were all scattered on the floor of the kitchen area corridor;

  10. He noticed that the lock to the storeroom was broken and the door was wide open. The cash register which had been on the main counter was damaged and left on the floor in the storeroom. His drills and toolboxes were missing;

  11. He walked to the front of the store and noticed that all of the previously displayed cosmetics had been stolen. The Commonwealth Bank EFTPOS card reader and Apple iPad had been stolen;

  12. He telephoned police and waited within the store for some hours before a scene of crime officer attached to the forensic unit attended. The conducted an inspection during which photographs were taken and a blood sample from the plastic container which contained screws and which was on the floor of the storeroom, was obtained;

  13. There had not been any blood on the plastic container previously. The blood looked fresh. He had had the container for several weeks and it never had any blood on it;

  14. After police had left, he began to clean up the store and to ascertain what had been stolen;

  15. He identified the following items, totalling $28,300.00, as having been stolen: -

Item

Place

Value

Various Korean branded cosmetics, including Lainege, Innnisfree and Somebymi brand cosmetics, which he had imported through a Korean supplier

Display shelves

$15,000.00

200 pairs of jeans

Main display shelves

$10,000.00

Apple iPad

Counter area

$ 1,000.00

Commonwealth Bank EFTPOS card reader

Counter area

$ 1,500.00

Stick vacuum cleaner

Corridor

$ 300.00

Bosch drill driver

Storeroom

$ 200.00

Bosch hammer drill

Storeroom

$ 300.00

Toolbox with assorted tools

Storeroom

Not known

  1. On 13 August 2019, police asked him if he knew any person by the name of Harry Robinson. He informed police that he did not know any person by that name. He did not give anyone permission to break into his store and steal his property. He was seeking compensation for his losses. He had to re-order stock, which affected the running of his business.

  1. He did not give any oral evidence-in-chief, other than to adopt his written statement.

  2. His evidence in cross-examination was as follows: -

  1. The EFTPOS machine which was taken from his shop was of standard size, about 10 cm x 15 cm x 5 cm;

  2. The black metal toolbox which was damaged, but not taken from his shop, was about 40 cm x 40 cm x 10 cm;

  3. There was money in this toolbox which was, however, stolen;

  4. The Bosch stick vacuum which was taken was worth about $300.00 and was about 1.2 m in length, 20 cm x 20 cm wide;

  5. The Apple iPad which was taken was purchased a few weeks prior from Being Lee for about $450.00, although he was unable to recall what model it was;

  6. He did not recall telling the police that he had purchased the iPad for $1,000.00;

  7. There was a second toolbox which, unlike the first, was indeed stolen. It was a yellow, plastic toolbox, 30 cm x 30 cm x 15 cm in size, and contained an assortment of old tools;

  8. Some 200 pairs of denim jeans were taken from his shop, which he conceded would not have fit in less than one shopping trolley and would have required about three shopping trolleys;

  9. Some 200 to 300 pieces, some in three or four boxes, of cosmetics were taken, ranging from $15.00 to $70.00 per piece, with the biggest box being 70 cm x 30 cm x 30 cm in size and the smallest box being 50 cm x 25 cm x 25 cm in size, which he agreed would all fit into one shopping trolley;

  10. He was unsure of the exact time of the break-in, other than to say that he locked up his shop at 7.00 p.m. and returned at 10.00 a.m.;

  11. He had not yet installed CCTV security cameras as the shop had only been open for about a week or so;

  12. The blood stain on the plastic container which contained screws looked fresh, from about 3 to 7 hours earlier (judging from the time);

  13. Having cut himself in the past, he believed that the blood found at the scene would have dried up after half a day or a day or more, but agreed that his assertion that the blood stain was fresh was his opinion;

  14. He did not touch the blood stain;

  15. He had never seen the Defendant, in person, sleeping in the laneway at the rear of his shop, as a homeless person. He had, however, seen a photo of the Defendant which had been posted on Facebook by Bankstown Police;

  16. He did not recall seeing any blood in the shop, other than the two drops on the plastic container which contained screws;

  17. Between the time he contacted police and the time they arrived, there was a delay of about two hours;

  18. He denied the assertion that he was aware, at some stage prior to the robbery, that the Defendant slept in the stairwell and injected himself with drugs there;

  19. He emphatically disagreed with the accusation put to him that he went outside to the stairwell, picked up a syringe that had the Defendant’s blood on it and squirted the two drops inside his shop; and

  20. Upon being shown a still image of the CCTV footage, he was unable to recognise anything within the shopping trolley as belonging to him. He could not see a vacuum cleaner in the trolley, nor could he identify a toolbox or cosmetic boxes within it.

  1. There was no evidence in re-examination.

Ms Anh Tran (Neighbourhood witness)

  1. The Statement of Ms Anh Tran (neighbourhood witness), dated 23 August 2019, was tendered into evidence as Exhibit 7. Her statement was to the following effect: -

  1. At about 5.30 a.m. on Sunday, 28 July 2019, she arrived home from work and walked to her balcony in Stewart Lane, Bankstown;

  2. Her balcony was on the third level of the building and overlooked the rear of several shops along Stewart Lane;

  3. At about 6.00 a.m., whilst standing on her balcony, she heard the clicking noise of what she understood were coins. She looked over her balcony and saw a male walking up and down Stewart Lane;

  4. She described the male as being of medium build, between 170 cm and 180 cm in height, wearing black pants and a “Deus” branded black jumper which had the words “Deus Ex Machina” printed in white on the back;

  5. She saw the male walk up and down Stewart Lane for about five minutes, although she tried not to look at him;

  6. A short time later, she looked over her balcony towards the rear shop of 5 Bankstown City Plaza (Old Town Plaza), Bankstown. She saw the same male opening a white door and entering the shop. She noticed that the green gate opened and found this to be strange as the gate is usually closed at night;

  7. Immediately thereafter, she walked inside her house and called Bankstown Police, describing to them what she saw. She was informed that they would send a police car out to patrol the area;

  8. She did not return outside to her balcony and did not again see the male;

  9. On Monday, 29 July 2019, she spoke with the owner of the Ozly Clothing Store at 5 Bankstown City Plaza (Old Town Plaza), Bankstown, who told her that a break and enter had taken place at the store the day before;

  10. The male in the “Deus” branded jumper, whom she had seen walking up and down Stewart Lane, was the same male she had seen enter the rear shop of 5 Bankstown City Plaza (Old Town Plaza), Bankstown;

  11. She did not see the person’s face and was some distance away while it was still dark. The only reason she noticed his jumper was because the writing on it was in white print against a black background; and

  12. The closest she was to the male was about 30 m away. She did not stare at him the entire time as she did not want him to see her.

  1. Other than to adopt her statement to police dated 23 August 2019 (Exhibit 7), she did not give any material evidence-in-chief.

  2. Her evidence in cross-examination was as follows: -

  1. The male whom she had seen walking up and down Stewart Lane for about five minutes appeared to be looking for something;

  2. She did not see the male loading or unloading any goods or items;

  3. She did not see a phone or game machine in the male’s hand;

  4. She did not know whether Stewart Lane was a spot for Pokémon GO or where one went looking for Pokémons;

  5. She did not see a second male; and

  6. The police did not have, or did not show her, evidence of what the male looked like or of the words on his jumper. Rather, she provided police with the details of the words she saw written on the back of his jumper, because she worked in a clothing store at the time and it was very clear to her.

  1. There was no evidence in re-examination.

Ms Sarah Hamra (the Defendant’s niece)

  1. The Statement of Ms Sarah Hamra (the Defendant’s niece), dated 13 August 2019, was tendered into evidence as Exhibit 8. Her statement was to the following effect: -

  1. She was 23 years of age;

  2. She resided at 109 Denman Road, Georges Hall with her husband, Mr Salim Hamra, and her young daughter;

  3. About six months earlier, in or about February 2019, she allowed her uncle, the Defendant, to stay with her and her family at her home;

  4. The Defendant was known to her as both Houssam Robinson and Harry Robinson;

  5. In or about June 2019, her mother and brother gave the Defendant some clothes;

  6. Her brother gave the Defendant a “Deus” branded navy blue jumper with white writing on the front which said “Deus”;

  7. She had seen the Defendant on most nights when he was at her house or at her mother’s house;

  8. At or about 7.00 p.m. on 13 August 2019, police attended her house and asked her some questions about the Defendant. She was also shown a picture of two males; and

  9. She recognised one of the males in the picture (attached to Exhibit 8, which she annotated by drawing an arrow pointing to her recognition of the Defendant in the picture and which she signed) as being the Defendant and had seen him wearing the navy blue “Deus” branded jumper in the image. She was able to tell that the person in the image was the Defendant by the jumper and by his face.

  1. Her evidence in cross-examination was as follows: -

  1. She agreed that the police had shown her two photographs;

  2. She agreed that, at the time, she identified the Defendant as being her uncle in the photos;

  3. She was shown in the witness box the two photos which were presented to her by police at the time she had made her statement and which were annexed to her statement (Exhibit 8);

  4. She agreed that her signature appeared beneath one of the photos;

  5. She agreed that there were two males depicted in the photographs which appeared on one page, one on the right-hand side and one on the left-hand side of the page;

  6. In the witness box, she said that she told police at the time she made her statement that the male on the left looked like her uncle;

  7. In a somewhat leading fashion, it was suggested to her that “the photo is too dark for you to recognise anyone properly in that photo”, she responded by saying, “Yeah, it kind of does look dark but … I don’t know”;

  8. She stated that at the time police came to her house, she was in a really bad state of mind, had just lost her aunt, was heavily pregnant, overdue, under pressure and “just wanted to give evidence that the cops wanted so they can leave” and so she “just gave them anything”;

  9. She stated that “coming to think of it, it doesn’t even look like my uncle” and in response to the question “Is it possible that’s not him in the photograph?”, she stated “It doesn’t look like him”; and

  1. When asked again why she told police that the male in the photo looked like the Defendant, she stated that she was under pressure, heavily pregnant, due to give birth any day and the police barged into her house in the morning.

  1. Her evidence in re-examination was as follows: -

  1. She agreed that prior to identifying anyone in the photos, the police had not asked her to sign anything;

  2. When the police were writing the statement, though, they told her that she had to sign it (I understood this to be a reference to signing the photo rather than the statement);

  3. In response to the question about whether she could recognise anyone in the photo and who she had in fact identified in the photo, she stated, “Well, it could have looked like my uncle, but this photo doesn’t look as clear as it looked before”;

  4. In a somewhat non-responsive manner, she did not appear to take issue with the proposition that no one told her that the Defendant was depicted in the photos. Despite her signature and an arrow pointing to the Defendant which she drew herself and which appeared on the photo shown to her in the witness box, she stated that she asked the police officer why she was looking at the photo and that “it looked like a clear photo” back then. However, she stated that the photo shown to her in the witness box (albeit being the same photo with her annotation, arrow and signature) “looks completely different to the photo I saw. Like that, I can’t even read that, like, this looks like a completely different photo”; and

  5. When asked whether the photo she was looking at in the witness box was the one on which she inscribed her signature, she curiously responded, “Yeah, but that’s not the photo I saw”.

  1. With no objection by the Defence to the Prosecution’s application to question Ms Hamra, as though the Prosecution were cross-examining her, leave was granted pursuant to s.38(1)(c) of the Evidence Act 1995 (NSW) on the basis that she had made a prior inconsistent statement. Her evidence in re-examination, with leave to cross-examine her, was as follows: -

  1. Contrary to her earlier evidence, the proposition was put to her that the police never told her that she had to pick anybody in the photos shown to her, to which she responded, “Well, how else was I going to know it was my uncle if they didn’t tell me?”;

  2. Contradicting even this response, the proposition was put to her again that police never told her that she had to nominate anybody in the photos shown to her, to which she responded, “No”;

  3. Finally, she accepted that it was she who volunteered to police the information that the person depicted in the photo on the left-hand side looked like, and was, indeed, the Defendant;

  4. She agreed that she told police that she recognised the Defendant’s face in that photo and that, at the time, she was being truthful;

  5. She agreed that she told police that she had seen the Defendant wearing the navy blue “Deus” jumper and that, at the time, she was being truthful; and

  6. She agreed that the photo (attached to Exhibit 8), on which she nominated to the police as being the Defendant, was, indeed, the person whom she recognised, in the witness box on the day of the hearing, as being the Defendant.

CCTV footage from Bankstown Sports Club

  1. The CCTV footage from a number of different camera angles from the Bankstown Sports Club (Exhibit 13) was played throughout the oral evidence of Senior Constable Nizar Azzi (officer-in-charge). The CCTV footage depicted the following: -

  1. At 4.21 a.m., a male crosses towards the Bankstown Coin Laundry Shop. He pushes on, and appears to be trying to open, a number of doors along the shopping strip;

  2. At 4.32 a.m., the same male tries to open the door of the Bankstown Coin Laundry Shop;

  3. At 4.33 a.m., the same male tries to open the door of the Bankstown Coin Laundry Shop;

  4. At 4.36 a.m., the same male pushes on the front door of the Bankstown Coin Laundry Shop, this time gaining entry into the shop;

  5. At 5.10 a.m., the same male exits the Bankstown Coin Laundry Shop wheeling a black luggage bag which, according to paragraph 12 of the statement of Ms Thuy Le (owner of Bankstown Coin Laundry), dated 27 August 2019 (Exhibit 6), an old black luggage bag had also been stolen from her shop;

  6. At 5.13 a.m., the same male is seen walking on Restwell Street with the black luggage bag;

  7. At 5.16 a.m., the same male is seen taking a shopping trolley from the laneway. The male triggers a sensor light as he walks towards the camera. The male is seen holding a phone or like device with an illuminated screen;

  8. At 5.25 a.m., the same male is seen pushing the trolley and meeting with an unknown male. The trolley is laden;

  9. At 5.53 a.m., there is a more distinct facial image of the male in question and the clothing worn. The male is seen wearing a black jumper with a distinctive logo written in white on the front left breast area and the centre of the back, respectively, with the words “Deus” and “Deus Ex Machina” in a semi-circular motif. He is also wearing a beanie, khaki style cargo pants and white joggers and, for a short period, is holding an illuminated phone or like device in his right hand, which he then places into his pocket. He enters in between two dumpster type garbage bins, places something on the ground, sets off the sensor light then proceeds down Stewart Lane and into another driveway; and

  10. Between 5.53 a.m. and 5.58 a.m., the same male is seen walking in Stewart Lane in the vicinity of the Ozly Clothing Store situated at 5 Bankstown City Plaza (Old Town Plaza), Bankstown.

CCTV footage from Bankstown Railway Station

  1. The CCTV footage from Bankstown Railway Station (Exhibit 14) was played throughout the oral evidence of Senior Constable Nizar Azzi (officer-in-charge). The CCTV footage depicted the following: -

  1. At 5.17 a.m., the same male who is seen in the CCTV footage from the Bankstown Sports Club is seen wheeling a shopping trolley with a black luggage bag inside the trolley. The black luggage bag has the handle still extended;

  2. At 5.19 a.m., the same male parks the shopping trolley beside a public bin in the vicinity of the bus shelter. He reaches into the black luggage bag within the shopping trolley exposing a number of items including what appears to be a white dress. The black luggage bag appears broken, with the two inner struts for the handle being exposed. The male is seen leaving the area, leaving the shopping trolley behind;

  3. At 5.22 a.m., the same male returns holding something. He puts his hand into the black luggage bag within the shopping trolley;

  4. At 5.23 a.m., the facial features of the male are most visible. [The resemblance between the male depicted in the CCTV footage at this point and the defendant sitting in the dock is indisputable]; and

  5. At 5.24 a.m., the male is seen searching his cargo pockets before taking the trolley and leaving the area.

Mr Matthew Tanti (Bankstown Sports Club manager)

  1. The Statement of Mr Matthew Tanti (Bankstown Sports Club manager), dated 29 July 2019, was tendered into evidence as Exhibit 9. His statement was to the following effect: -

  1. He was employed at the Bankstown Sports Club;

  2. As part of his duties, he had access to the CCTV system and was authorised to copy and release CCTV footage, to permit police to view and copy CCTV footage and to copy and release business records relating to the premises;

  3. On 29 July 2019, he permitted the police to view the CCTV footage captured by the system;

  4. On 29 July 2019, he copied CCTV from the system to a USB drive, which he handed to Senior Constable Nizar Azzi (officer-in-charge); and

  5. He checked the time recorded on the CCTV and found it to be correct.

  1. Mr Matthew Tanti did not give oral evidence-in-chief, nor was he cross-examined.

Constable Dean Dedich (Scene of Crime Officer)

  1. The Statement of Constable Dean Dedich (Scene of Crime Officer), dated 3 September 2019, to which 28 photographs were attached, was tendered into evidence as Exhibit 11. His statement related to his inspection of the Bankstown Coin Laundry at 56 Restwell Street, Bankstown in the aftermath of the break and enter on 28 July 2019.

  2. His statement and the photographs depicted, amongst other things, the front entry door to have dent-related damage to the lock latch; the reception counter had the cash register till open with numerous candy boxes on the floor below; paperwork was scattered on the floor around a work desk in the reception counter; a Saeco brand copy machine was observed to have the machine door open; and numerous washing machines at the rear of the premises had their doors open.

  3. He conducted a visual examination of the scene but found no apparent biological or physical evidence that was able to assist in the investigation. He also examined numerous areas and items at the premises for fingerprints. Whilst fingerprints and palm prints were developed, the Prosecution did not lead evidence of any positive match.

  4. Constable Dean Dedich did not give oral evidence-in-chief, nor was he cross-examined.

Constable Katrina Fowler (Scene of Crime Officer)

  1. The Statement of Constable Katrina Fowler (Scene of Crime Officer), dated 24 September 2019, to which 34 photographs were attached, was tendered into evidence as Exhibit 10. Her statement related to her inspection of the Ozly Clothing Store at 5 Bankstown City Plaza (Old Town Plaza), Bankstown in the aftermath of the break and enter on 28 July 2019.

  2. Her statement and the photographs depicted, amongst other things, damage to the lock of the main door which was jammed in place; various shelves and racks which were empty; the service counter which had opened drawers and items on the floor; the back storeroom door had damage to the door and frame; the storeroom had the cash register from the front counter, withdraws removed and damaged together with a number of items on the floor; there was extensive damage to the rear lock, door and frame.

  3. She conducted a forensic examination of the premises and located two drops of blood on the top of a plastic container which contained screws. This blood, via the DNA evidence referred to below, was found to belong to the Defendant. Whilst fingerprints were developed, the Prosecution did not lead evidence of any positive match.

  4. Constable Katrina Fowler did not give oral evidence-in-chief, nor was she cross-examined.

DNA Evidentiary Certificate (FASS Analyst)

  1. The Expert Certificate of Ms Rebecca Williams (FASS Analyst), dated 25 September 2019, was tendered into evidence as Exhibit 12. She did not give oral evidence-in-chief, nor was she cross-examined. Her Expert Certificate, to which no objection was taken, there was a positive match to the Defendant’s DNA in the analysis of the two drops on the plastic container which contained screws and which was found on the floor of the storeroom in the Ozly Clothing Store at 5 Bankstown City Plaza (Old Town Plaza), Bankstown. The result was that “the DNA recovered has the same profile as Harry Robinson.” It was on this basis that the conclusion was reached that “it is greater than 100 billion times more likely to obtain this mixed profile if it originates from Harry Robinson, rather than if it originates from an unknown, unrelated individual in the Australian population.”

Close of the Prosecution case

  1. At the close of the Prosecution case, it was conceded by the Defence that there was, and accordingly I found, a prima facie case in respect of both charges. The Defence initially indicated that the Defendant would be giving evidence. Upon resumption of the hearing on the part-heard date, this was abandoned and the Defence did not call any evidence. In light of this, as referred to earlier, no adverse inference is to be drawn. Short written submissions were made by both the Prosecution and the Defence, the effect of which are encapsulated in the consideration below.

Consideration

  1. It was palpably clear that the Prosecution case was reliant, in part, on direct evidence and, in part, on circumstantial evidence, both as to the elements of the offences but also as to the identity of the offender, in respect of which the various strands of inferential reasoning, on which the Prosecution case was predicated, would result in a conclusion that the guilt of the Defendant was not only a rational inference, but the only rational inference that could be drawn from the circumstances.

  2. In light of the style of questions asked in cross-examination of the various witnesses in the Prosecution case, I did not understand there to be any dispute that the essential ingredients of the offences (that is, that there was a break and enter, at a dwelling-house or other building, which involved a serious indictable offence, namely stealing, being committed therein) were adequately made out to the requisite criminal standard. Nothing advanced by the Defence, through its written submissions, suggested otherwise. Nonetheless, the tribunal of fact must make appropriate findings in relation to both the essential ingredients of the offences but also as to identification.

  3. Constable Dominic Johnston, Leading Senior Constable Mark Forman and Constable Rhys Wilson did not give oral evidence-in-chief, nor were they cross-examined. Their statements dated 26 August 2019, 10 September 2019 and 26 August 2019 (respectively, Exhibits 2, 3 and 4), variably, as to the forensic procedure conducted and the administrative processes involved in the Defendant’s arrest, were unchallenged.

  4. Ms Thuy Le (owner of Bankstown Coin Laundry) did not give oral evidence-in-chief, nor was she cross-examined. Her statement dated 27 August 2019 (Exhibit 6) was entirely unchallenged.

  5. Mr Matthew Tanti (Bankstown Sports Club manager) did not give oral evidence-in-chief, nor was he cross-examined. His statement dated 29 July 2019 (Exhibit 9), as to the provenance of the CCTV footage and the correctness of the time depicted therein, was unchallenged.

  6. Constable Dean Dedich (Scene of Crime Officer), Constable Katrina Fowler (Scene of Crime Officer) and Ms Rebecca Williams (FASS Analyst) did not give oral evidence-in-chief, nor were they cross-examined. Their statements dated 3 September 2019, 24 September 2019 and 25 September 2019 (respectively, Exhibits 11, 10 and 12), variably, as to the state of the crime scenes and the forensic examination of the two drops of blood on the top of a plastic container which contained screws within the Ozly Clothing Store and which was matched to the Defendant’s DNA, were unchallenged.

  7. I understood the Defence theory on the case to be two-pronged. First, the Defendant was not the person depicted in the CCTV footage. In the alternative, if it were found that the male depicted in the CCTV footage, aided by the surrounding evidence, was, indeed, the Defendant, then his presence was explained either by his homelessness, which apparently had him sleeping at the rear of the Ozly Clothing Store or because he was actively engaged in an online, virtual game of Pokémon GO (a game which uses the GPS of one’s mobile device to locate and capture virtual, animated creatures, called Pokémon, in a player’s real-world location) using his mobile phone. In either of the alternatives, it was asserted that the Defendant was not criminally liable for the break and enter offences committed at the two locations the subject of the proceedings.

  8. Ever mindful of the need to avoid shifting the onus of proof from the Prosecution to the Defence, it was the evidence of Ms Sarah Hamra (the Defendant’s niece) that from about six months prior to the events the subject of these proceedings, in or about February 2019, she had allowed the Defendant to stay with her and her family at her home. This suggested that the Defendant was not homeless at the relevant time. However, even if the tribunal of fact were wrong about this, there was no cross-examination of Ms Hamra to the effect that he had since vacated her premises and was homeless.

  9. The Defence assertion that Mr Patrick Nguyen (owner of the Ozly Clothing Store) had some prior knowledge of the Defendant as a homeless person, who would inject drugs in the rear stairwell area behind Mr Nguyen’s shop, and that Mr Nguyen retrieved a syringe that had the Defendant’s blood on it and squirted the two drops inside his shop, essentially framing the Defendant, was fanciful. So too was the suggestion that the Defendant’s explanation for being there, if it were found that the subject male was indeed the Defendant, was, on the one hand, because he was homeless but, on the other hand, because he was playing Pokémon GO, which equally lacked any plausibility.

  10. The absence, on the CCTV footage, of the multiple items said to have been stolen from the Ozly Clothing Store (including, according to the evidence of the store’s owner, Mr Patrick Nguyen, some 200 pairs of denim jeans, a number of boxes of cosmetics, a stick vacuum cleaner, an Apple iPad, a Commonwealth Bank EFTPOS card reader, a drill driver, a hammer and a toolbox with assorted tools) can, conceivably, be explained by a number of different occurrences. The Defendant’s blood, left behind in the storeroom inside the premises, cannot.

  11. As to the former, it does not take much of a stretch of the imagination to conceptualise the presence of an accomplice (who might similarly have been involved in the impropriety alleged against the Defendant, especially since the CCTV footage depicts the Defendant meeting with an unknown male at 5.25 a.m.).

  12. Alternatively, the CCTV footage, it was accepted by the officer-in-charge, did not capture every angle or, more particularly, the front and rear of the Ozly Clothing Store. The officer-in-charge conceded that it was possible that if the Defendant were to have exited from the Ozly Clothing Store, this was not something captured on any CCTV footage.

  13. However, one of the noteworthy aspects of the evidence of Ms Anh Tran (the neighbourhood witness) was that she saw the male opening a white door from the rear of the Ozly Clothing Store and entering the shop. These matters, together with the evidence of Mr Patrick Nguyen that the rear door to the storeroom (in which the Defendant’s blood was located on the plastic container which contained screws) was open and the locks had been damaged, coupled with the objective evidence of the scene of crime officer to the effect that there was also extensive damage to the rear lock, door and frame, leads to the inevitable conclusion that the Defendant’s theft of the items more sizeable in nature was achieved via those means of egress. As a matter of factual reasoning, it follows, therefore, that the inculpation of the Defendant is not derived solely from one or another discreet piece of evidence. It is established from the evidence taken as a whole.

  14. The evidence of the officer-in-charge, was that the person seen in the CCTV footage at 5.53 a.m., who the Prosecution asserted was the Defendant, was seen walking up the laneway and walking into the back of the building, at about the time when the sensor light illuminated the area, near two dumpster type garbage bins, east of Stewart Lane. These observations and depictions in the CCTV footage, and more particularly, these movements, were consistent with the independent evidence of Ms Anh Tran.

  15. The evidence of Ms Tran was resolute and reliable. Her observations of the male, from a fairly close range from her balcony, in real time, and, relevantly, her description of the unique words and motif “Deus Ex Machina” on the male’s jumper, which piqued her interest because she had previously worked in a clothing store, was persuasive and credible. It was corroborative of the objective observations made from viewing the CCTV footage. To the extent that she heard the clicking noise of what she understood were coins, her evidence was corroborative of Ms Thuy Le’s unchallenged statement that, amongst other things, approximately $50.00 in coins were stolen from her shop.

  1. Her evidence that she saw the male in the “Deus” branded jumper opening a white door and entering the shop, being the back door to the Ozly Clothing Store situated at 5 Bankstown City Plaza (Old Town Plaza), Bankstown, was independent and unequivocal.

  2. Ms Tran’s account in both her statement and in Court withstood, and was not discredited by, cross-examination. Her evidence was, after all, a strand in the Prosecution’s circumstantial line of reasoning. With this in mind, I found her to be a witness of truth in respect of the account she gave.

  3. The identification by Ms Sarah Hamra in the still image derived from the CCTV footage was recognition evidence based on her knowledge of the Defendant, as her uncle for a not insignificant period of time, and by virtue of her familiarity, contemporaneously, with the “Deus” branded jumper given to him by her brother and which she had seen him wearing around the house.

  4. To the extent that the oral evidence given by Ms Hamra differed from her statement to police, I rejected the contradictory oral evidence and preferred the contemporaneous version provided through her statement. In light of her relationship with the Defendant, being her uncle, her oral evidence was dominated by her partiality towards him. There was a high degree of motivation in many of the responses she gave in the witness box. There were numerous inconsistencies and I found her to be goal orientated in this regard. What was, at the time of giving her statement contemporaneous with the events the subject of the charges, an undeniable affirmation by her that the person depicted in the photo derived from the CCTV footage was the Defendant, was also authoritative and reliable recognition evidence, from which she sought to resile. Her attempt to do so was unconvincing and feigned.

  5. For these reasons, cognisant of the cautionary criminal trial directions referred to earlier and the elements of the offences with which the Defendant has been charged, I am satisfied, beyond reasonable doubt, and make additional findings of fact, as to the following: -

  1. The male walking up and down Stewart Lane in the aftermath of the break and enter offences, was the Defendant;

  2. The Defendant’s actions in pushing on, and trying to open, a number of doors along the shopping strip, were acts of reconnoitering;

  3. The blood located on the plastic container which contained screws, within the Ozly Clothing Store situated at 5 Bankstown City Plaza (Old Town Plaza), Bankstown, was the Defendant’s blood;

  4. The Defendant’s blood was deposited on the plastic container which contained screws, within the Ozly Clothing Store, by the Defendant himself, during the ransacking of the premises and the break and enter offences proper;

  5. The Defendant was wearing a jumper at the time of the offences, which I am satisfied had the logo and words, in white print against a dark, navy blue background, “Deus” and “Deus Ex Machina” written on the front left breast area and the centre of the back, respectively;

  6. The facial features of the male depicted in the CCTV footage at 5.23 a.m. are those of the Defendant. I was satisfied that male depicted in the CCTV footage was the Defendant seated in the dock;

  7. The black luggage bag within the shopping trolley being pushed by the Defendant, as depicted on the CCTV footage, was the black luggage bag stolen from the Bankstown Coin Laundry Shop;

  8. The garment exposed by the Defendant as he is seen, on the CCTV footage, rummaging through the black luggage bag within the shopping trolley, was the white dress stolen from the Bankstown Coin Laundry Shop;

  9. The Defendant was materially involved in the breaking into, and entering, both shops, which was established at law;

  10. Both shops fell within the meaning of “other building” at law; and

  11. The Defendant was materially involved in the theft of the items particularised in each Court Attendance Notice, such theft being committed while within each of the premises and constituting a serious indictable offence.

Verdict

  1. I enter the following verdicts: -

Sequence 1   Break, enter and steal                Guilty

[s.112(1)(a) Crimes Act 1900 (NSW)]
Between 4.36 a.m. and 5.10 a.m. on 28 July 2019
at the Bankstown Coin Laundry Shop
56 Restwell Street, Bankstown

Sequence 2   Break, enter and steal                Guilty

[s.112(1)(a) Crimes Act 1900 (NSW)]
Between 5.10 a.m. and 10.00 a.m. on 28 July 2019
at the Ozly Clothing Store
5 Bankstown City Plaza (Old Town Plaza), Bankstown

**********

Decision last updated: 25 September 2021

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Chamberlain v The Queen (No 2) [1984] HCA 7
Kirkland v The Queen [2021] SASCA 14
Fleming v The Queen [1998] HCA 68