R v Adams - [2021] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ADAMS
Criminal Trial by Judge Alone
[2021] SADC 158
Reasons for the Verdicts of her Honour Judge Fuller
23 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - GENERALLY
Accused charged with aggravated serious criminal trespass and theft - accused alleged to have committed offences in joint enterprise with four others - accused found alighting from stolen car with victim's wallet two hours after alleged offences - no other offenders apprehended.
Prosecution case depended upon circumstantial identification evidence, including correspondence between description of offender given by victim and appearance and clothing of accused.
Rational hypothesis consistent with innocence reasonably open on the evidence and not excluded beyond reasonable doubt.
Circumstances of possession of victim's wallet by accused sufficient to prove beyond reasonable doubt that the accused was guilty of theft by receiving.
Verdicts: Not guilty of aggravated serious criminal trespass. Guilty of theft of wallet.
Criminal Law Consolidation Act 1935 (SA) ss 170(1), 134(1); Juries Act 1927 (SA) s 7, referred to.
R v G [2015] SASC 186; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; Festa v The Queen (2001) 208 CLR 593; R v Blundell [2019] SASCFC 84; Alexander v The Queen (1981) 145 CLR 395; R v Clout (1995) 41 NSWLR 312; Burchielli [1980] 2 A Crim R 352, considered.

R v ADAMS
[2021] SADC 158
Background

The accused, Dylan Adams, was arraigned before me on 24 November 2021 on the following Information:
Dylan Adams is charged with the following offences:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Dylan Adams on the 21^st day of December 2018 at St Peters, entered or remained in the place of residence of Alan Johnson as a trespasser, with the intention of committing an offence therein, namely theft.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and Dylan Adams knew of the other’s presence or was reckless about whether anyone was in the said place.
It is further alleged that Dylan Adams committed the offence in company with other people.
Second Count
Statement of Offence
Theft. (Section 134 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Dylan Adams on the 21^st day of December 2018 at St Peters, dishonestly dealt with property, namely a Subaru Forrester, a Honda Civic, a wallet and two car keys, without the consent of Alan Johnson, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on his proprietary rights.
The plea
The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Elements of each offence.
Aggravated serious criminal trespass in a place of residence
The elements of this offence are:
1.The accused entered a private place.
2.That private place is a place of residence.
3.The accused entered or remained in the private place as a trespasser.
4.The accused knew he was a trespasser or was reckless as to whether he was a trespasser.
5.The accused entered the private place intending to commit a specified offence.
The circumstances of aggravation particularised require proof that:
6.Another person was lawfully present in the place.
7.The accused knew of the other person’s presence or was reckless about whether anyone was in the place.
8.The accused committed the offence in the company of other people.
In this case there is no dispute that 5 people, as part of a joint enterprise, committed an aggravated serious criminal trespass in respect of the residence of Mr Alan Johnson, who was lawfully present in the residence. The only dispute is whether one of those persons was the accused.
Theft
The elements of the offence of theft are:
1.The accused dealt with property.
2.The dealing was dishonest.
3.The dealing was without the owner’s consent.
4.The accused intended to:
i.Permanently deprive the owner of the property; or
ii.Make a serious encroachment on the owner’s proprietary rights.
Dealing is defined as:
deal—a person deals with property if the person—
(a)     takes, obtains or receives the property; or
(b)     retains the property; or
(c)     converts or disposes of the property; or
(d)     deals with the property in any other way;
A charge of theft under s 134 Criminal Law Consolidation Act 1935 can involve either the accused having stolen the property, or the accused having received the stolen property. There is no separate offence of receiving stolen property. Receiving is a species of theft.
It is not necessary to show permanent deprivation or serious encroachment to prove the first element of this offence.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[1] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in several authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[1] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[2]
[2] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].
I must assess each witness as to truthfulness and reliability. I must determine whether I can rely upon the evidence the witness gives. I can reject or accept all or a part of the witness’ evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.
Overview of prosecution case
The prosecution case is that the accused, along with three or four other males, broke into the home of Alan Johnson in St Peters and stole a wallet, a Honda Civic sedan and Subaru Forrester station wagon belonging to Mr Johnson.
The offending occurred on 21 December 2018 around 6.30am. Mr Johnson was in his bed and his 18-month-old son Harvey was asleep in a separate bedroom. Mr Johnson heard noises coming from the rear of his house and got out of bed to investigate. From the open plan dining area, he could see four or five males standing in his rear yard. A male in the middle of the group was kicking the glass panels of the sliding doors. He described this male as tall with a slim build and wearing a black long-sleeved shirt and black pants, a baseball cap and a bandana or mask covering his nose and mouth which had a distinctive skull print. Mr Johnson saw that this male had dark olive skin. On the prosecution case this man was the accused.
Mr Johnson yelled at the men to get away. The male continued to kick the sliding door which prompted Mr Johnson to return to his bedroom and telephone the police. While he was on the telephone to police, Mr Johnson heard the sound of a car outside and saw his white Subaru Forrester reverse out of the driveway and drive off down the street. Mr Johnson’s Honda Civic which had been parked under the carport in front of the Subaru had also been taken.
The rear door to the dining area next to the sliding door had broken glass panels. Pieces of shattered glass were on the floor inside, along with a brick, which appeared to have been used to break the glass. Both sets of car keys and Mr Johnson’s wallet were missing from the dining table.
Two hours later, Senior Constable Baldwin was patrolling the Glanville and Semaphore area in an unmarked police van. He saw the stolen Honda Civic travelling north with 4 or 5 occupants wearing grey and black hoods. He followed the Honda to Osborne where it stopped near the intersection of Martin Avenue and Bridges Avenue. Other police, Senior Constables Abell and Hocking were following Senior Constable Baldwin’s directions over police radio and located two males on Bridges Avenue. Senior Constable Hocking apprehended the accused. The other males who had exited the Honda were not found.
The accused was searched and found be to be in possession of a bumbag and a number of personal items including a bandana with a skull print. Mr Johnson was later shown a photograph of that bandana by police and said he recognised it as the bandana worn by the male who was kicking the sliding doors just before the break-in.
When the accused was apprehended, he was wearing a black long-sleeved jumper, black trackpants and a navy baseball cap. On the prosecution case, his clothing matched the description given by Mr Johnson of the man who was kicking the sliding doors.
The accused was taken to the Port Adelaide Police Station and further searched. During the search a wallet fell to the floor from the shorts he was wearing under his track pants. This wallet contained identification cards in the name of Mr Johnson.
The Honda Civic was forensically examined by crime scene investigator, Brevet Sergeant Van Der Wielen. Two sets of keys, including the Subaru car key, were located in the centre console. The steering wheel and gearstick were swabbed for DNA which provided mixed profiles. There was strong support for the accused not being a contributor to the profile obtained from the steering wheel and he was excluded as a contributor to the profile obtained from the gearstick. It was not the prosecution case that the accused drove either vehicle.
Five separate fingerprint impressions were found on the exterior of the Honda. An impression on the roof edge was found to be identical to the left palm print of Jackob Johnson, a person unrelated to Alan Johnson, and the four remaining impressions were unidentified.
Police found the Subaru Forrester on 23 December 2018 parked securely on Margaret Lane in North Adelaide. The Christmas presents packed in the boot by Mr Johnson were undisturbed. Analysis of a DNA swab taken from the steering wheel contained insufficient DNA for comparison. A single partial fingerprint on the interior window of the driver’s door contained insufficient detail for identification.
The accused’s clothing and bandana were submitted for forensic analysis. Two separate cuttings were taken from the bandana, one from the inner surface containing a blood-like stain and another from an amylase positive area. They both provided mixed DNA profiles. There was extremely strong support for the accused contributing to the DNA profile of both cuttings.
Kahlee Redman from the Forensic Science Centre later analysed the accused’s clothing for the presence of glass fragments to enable a comparison with the broken glass taken from Mr Johnson’s house. A number of glass fragments were observed with only one fragment from the mask found to be indistinguishable from the scene sample. Ms Redman provided an opinion that there was no support for the accused’s clothing being close to the glass pane at the premises at the time it was broken. However, the absence of glass fragments indistinguishable from the broken glass pane was explicable if the accused was standing far enough away at the time the glass was broken, or if the glass fragments were lost from activity prior to the accused’s apprehension and seizure of his clothing.
The prosecution case is that the accused and the other males formed a common plan to break into Mr Johnson’s home with the intention of stealing items of value, including the motor vehicles. The common plan can be inferred from the actions of the males at the scene and from the fact that four males were seen exiting the stolen Honda in Osborne around two hours later. If the existence of the common plan is proved beyond reasonable doubt and the accused contributed to the carrying out of the plan by his presence in the rear yard while kicking at the sliding door that is sufficient to prove both offences beyond reasonable doubt.
The evidence
I turn to examine the evidence in more detail. Much of the prosecution case was agreed in the form of the tender of affidavits and other documentary evidence and a statement of agreed facts. The complainant, Alan Johnson, the three police officers involved in the location and apprehension of the accused, the crime scene examiner and the forensic scientist who examined and compared the glass fragments from the scene and the accused’s clothing gave oral evidence.
The following exhibits were tendered by consent in the prosecution case:
P1 – Affidavit of Constable Nicholas, dated 17 June 2019.
P2 – Set of 5 photographs annexed to P1.
P3 – Affidavit of Constable Nuttman, dated 4 March 2019.
P4 – Affidavit of Senior Constable Nathan Broadbent, dated 13 March 2019.
P5 – Affidavit of Brevet Sergeant Bradley Chapman, dated 8 March 2019.
P7 – Photo booklet containing 14 photographs taken by Brevet Sergeant Chapman.
P8 – Affidavit of Brevet Sergeant Bobby Lackovic, dated 15 November 2011.
P9 – Photo booklet of 20 pages taken by Sarah Van Der Wielen.
P10 – Photo booklet of 9 pages taken by Sarah Van Der Wielen.
P11 – Statement of Agreed Facts.
P12 – Aerial map of 21 River Street St Peters.
P 13 – Floor plan of 21 River Street St Peters.
P 14 – Photograph of bandana.
P 15 – Google map of Carlisle Street and Hart Street.
P16 – Google map showing Victoria Road.
P17 – Two still photographs of the accused.
P18 – Arrest photograph of accused dated 21 December 2021.
P19 – Baseball cap.
P20 – Mask.
P21 – Puma top.
P22 – Adidas track pants with white piping.
P23 – Booklet of 10 photographs of clothing worn by accused on 21 December 2018.
P25 – Table of results.[3]
[3] The working case file of Ms Redman was marked for identification (MFIP24).
The following facts were agreed in P11:
1.As at 21 December 2018, the silver Honda with registration XLI 445 was registered to the complainant Alan Johnson.
2.As at 21 December 2018, the white Subaru with registration S827 BDM was registered to Brianna Johnson.
3.The complainant, Alan Johnson, called Emergency Services at 6.36 a.m. on Friday, 21 December 2018.
4.The accused Dylan Adams' jumper, trackpants, shoes and baseball cap were seized at 9.23 a.m. on 21 December 2018.
5.The following items were submitted to the Forensic South Australia for the purpose of analysis for the presence of DNA:
5.1A reference sample swab taken from Alan Johnson;
5.2 A reference sample swab taken from the accused Dylan Adams;
5.3A mask seized from Dylan Adams on 21 December 2018;
5.4An empty soft drink can that was located on Martin Avenue, Osborne, in close              proximity to the Honda Civic XLI 445 on 21 December 2018;
5.5A swab of the steering wheel of the Honda Civic taken by Brevet Sergeant          Sarah Van Der Wielen on 21 December 2018;
5.6A swab of the gearstick of the Honda Civic taken by Brevet Sergeant Sarah         Van Der Wielen on 21 December 2018;
5.7A swab of the steering wheel of the Subaru Forrester S827 BDM taken by           Brevet Sergeant Bradley Chapman on 21 December 2018.
6.The results of the analysis of the items submitted to the Forensic Science SA are as follows:
6.1A DNA profile was obtained from a cutting on the inner surface of the mask         seized from Dylan Adams. This cutting was observed to have a blood-like          stain. The DNA profile from this cutting is a mixed DNA profile from two            contributors. There is extremely strong support for the accused, Dylan Adams,         being a contributor to the DNA. There is extremely strong support for Alan                Johnson not being a contributor to the DNA.
6.2A DNA profile was obtained from a separate cutting from the mask. This            cutting was taken from an area that tested positive to a presumptive test for         amylase. Amylase is present at high levels in saliva. The DNA profile from              this cutting is a mixed DNA profile from three contributors. There is                    extremely strong support for the accused, Dylan Adams, being a contributor        to the DNA. There is extremely strong support for Alan Johnson not being a         contributor to the DNA. An unidentified male is a contributor to this DNA.
6.3A tape lift of the mask was taken. However, this tape lift was not analysed for              the presence of DNA.
6.4     A DNA profile was obtained from a swab of the opening area of the empty          soft drink can located on Martin Avenue, Osborne. The DNA profile from this          swab is a mixed DNA profile from two contributors. Dylan Adams and Alan             Johnson are excluded as contributors to this DNA.
6.5A swab of the body area of the empty soft drink can contained very low              amounts of DNA or no DNA and was not analysed.
6.6A DNA profile was obtained from the swab on the steering wheel of the Honda             Civic. The DNA profile from this swab is a mixed DNA profile from five         contributors including Alan Johnson. There is strong support for Dylan Adams            not contributing to this DNA profile. An unidentified male is a contributor to          this DNA.
6.7A DNA profile was obtained from the swab of the gearstick of the Honda            Civic. The DNA profile from this swab is a mixed DNA profile from three               contributors, including Alan Johnson. Dylan Adams is excluded as a                    contributor to this DNA. Two unidentified males have contributed to this         DNA.
6.8The swab of the steering wheel of the Subaru Forrester S827 BDM contained               very low amounts of DNA or no DNA and it was not analysed.
6.9The unidentified contributors to the DNA referred to in paragraphs6.2, 6.6 and              6.7 respectively are three separate persons. Two of those persons are males.              The sex of the remaining unidentified contributor is unable to be determined.
7.The height of the accused as at 25 November 2021 while wearing sports shoes is 198cm and without shoes is 194cm.
Alan James Keith Johnson

Mr Johnson was living at 21 River Street St Peters in December 2018 with his wife and 18-month-old son Harvey. On 21 December 2018, he was home with his son Harvey and his wife was in Melbourne. He had finished work for the year and was planning to travel to his parents’ house in Normanville that day. He had spent the previous night packing presents and holiday gear in their two cars, a Honda Civic and Subaru Forester.[4] Those cars were parked behind an automatic garage door in the single lane driveway at their home. Both sets of car keys had a remote control for the automatic roller door.[5]
[4] T 11.
[5] T 18, 34-36.
Around 6.22am the baby monitor went off, which suggested to Mr Johnson that his son was stirring. A few minutes passed and he thought he heard some light thuds. He then heard a loud thud that he realised was in his house. He initially thought that his son had climbed out of his cot and fallen or pulled something over, so he jumped out of bed and raced towards his room. In the hallway, he heard more banging and a crashing sound. He kept going down the hallway and opened the door to the kitchen, dining and lounge room. He saw five men standing at the back door lining up roughly along the back door of the house, one in the middle kicking the door and the others spread around in an arc behind.[6]
[6] T 12.
The man kicking the sliding doors did that three to four times and then there was a pause. Mr Johnson then yelled out ‘get the fuck out of here’.[7] The man in the middle resumed kicking the door with a strong degree of force. Mr Johnson could hear some conversation, but he could not hear what was being said and thought they may have been speaking a different language.[8]
[7] T 13.
[8] T 13-T14.
Mr Johnson was about 6 to 7 metres from the man kicking the sliding door. The dining area was well it and it was a sunny day. Mr Johnson spent no more than 10 seconds in the dining area.[9] When he was making his observations of the males in the rear yard he was standing in the doorway.[10] He realised that the males were determined to break in and he was scared, so he shut the door and he went back to his bedroom and grabbed his telephone and called the police.[11] He heard a screech of tyres and he opened the front door and saw his Subaru Forrester reverse and take off. He realised that the Honda Civic must have been taken because it was parked in front of the Subaru. The Subaru drove off in an easterly direction.[12]
[9] T 14.
[10] T 17, 25.
[11] T 14.
[12] T 14-T 15.
Mr Johnson had marked on P13, the floorplan of his house, the location of the males he saw in his rear yard. He explained that he did not have a clear memory of the man on the far right at the rear.[13]
[13] T 17.
After speaking with the police, he went into the dining room but stopped when he cut his foot on glass. He saw that the glass in the far-left door was broken. It was still locked via a deadlock. There was a break near the television and a dent on the wall opposite. The keys and his wallet were missing from the table where he had left them.[14]
[14] T 18-T 19.
When Mr Johnson collected the Honda later that day, he said that there were no food items missing but the packet of chips had been opened. The white paper near the gearstick had not been left there by him.[15]
[15] T 23.
Mr Johnson was asked to describe the man who was kicking the sliding door:
He was wearing black long pants, a black long T-shirt, not jumper. I remember some white graphics, maybe, or lines on the top. He was wearing a skull bandana over his nose and mouth and a baseball cap, which I think was dark coloured.
…
…it was black bandana with a white skull drawn on it.
…
It looked as though it was lined up with the face, like the mouth and nose was where the mouth and the nose were.
QCan you remember whether the top covered sleeves of the arms –
ALong sleeves.
QIf you can remember the white detail or lines that you described, did they cover the entire length of the sleeves, or part of the sleeves, or you can’t remember.
ADon’t remember.
HER HONOUR
QWere they on the sleeves or some other part of the top.
AI felt like on the sleeves.
XN
QWas there any other colour or detail or graphic on any other part of the top, if you can remember.
ANot that I can recall.
QIn terms of the height of the male, can you provide any estimate.
AI thought he was around my height, which is 180 or slightly taller.
QWhen you say ‘180', 180cm.
ACorrect.
QSo roughly six foot.
ACorrect.
HER HONOUR
QDid you make that estimation based on your vantage point, that is looking at him and where –
ACorrect, where he was is at the same level, so it was from my perspective, yes.
XN
QIn terms of the male’s build, how would you describe that.
AVery slim, athletic somewhat.
HER HONOUR
QIf you had to estimate his weight would you be able to do that, or not.
AAt a guess, 75 kilos.
XN
QYou’ve described the bandana covering the man’s nose and mouth and the top containing the long sleeves. Were you able to observe the skin colour of the man.
AIt looked tanned, like dark olive skin.
HER HONOUR
QCould you see any hair coming out from underneath the baseball cap.
ANo.
QWere you able to see any footwear.
AI don’t recall what the footwear was.[16]
[16] T 23-25.
Mr Johnson was shown P14 and asked how it compared to the bandana he saw the male wearing. He said, ‘I believe it’s the same bandana’.[17]
[17] T 25.
Mr Johnson said the two males at the back seemed shorter but said that there was a step down in the yard at that point. They all appeared to be male, slim and ‘just wearing street clothing’ but he could not recall any specifics.[18] When asked to explain what he meant by street clothing he said ‘jeans and shirts…casual clothes’. He said they just looked like young men.[19]
[18] T 25.
[19] T 26.
Mr Johnson said his wallet was returned later that day with some banknotes missing and his ING bankcard. He cancelled the card with ING and was told that there were no transactions out of the ordinary.[20] Some change, less than ten dollars, was missing from the Subaru when it was located.[21]
[20] T 27.
[21] T 28.
In cross-examination, Mr Johnson said that the position he had drawn on P13 with the word ‘me’ represented his position when he saw the men outside of his home. He said that was 6 to 7 metres from where he had marked the man ‘skull mask’.[22] He said that he clearly remembered four males but was not sure about the fifth because he was in his peripheral vision and was obscured by the Christmas tree. Although he may have seen him out of the kitchen window it was hard to make out any features of that man.[23]
[22] T 28.
[23] T 28-T 29.
Mr Johnson said that after the man paused in his kicking of the door, he then kicked it another 3 to 4 times making a total of 7 or 8 times. The man was as close as he could get to the sliding door when he was kicking it, about half a metre away. He was balancing on his left leg with his right leg flat to the panel of glass.[24]
[24] T 29-T 30.
Mr Johnson agreed he was 178cm tall and the height of the man kicking the door was comparable to his height, ‘possibly slightly taller’. Mr Johnson agreed he was 5 foot 10 inches, and the man was not substantially taller than him.
When Mr Johnson used the expression ‘pants’ he could not determine whether they were any particular sort of pants.[25] He was reminded that he had described the clothing as being like jeans and shirts and said the pants the male was wearing could have been black jeans, ‘they were certainly black’. He could not recall any colour on those pants.[26] When it was put to him that he did not recall the pants being tracksuit pants he said, ‘It’s hard to tell, they were, yeah, they could have been jeans or black pants’.[27] He understood track suit pants to mean a fleece or gym pant. He could not recall any white graphics on the man’s pants.[28] He said the baseball cap could have been dark blue. He did not have the opportunity to see the man from behind and he did not see anything that looked like a hood. He could not recall whether the other men were wearing T-shirts.[29] Mr Johnson agreed that in a statement to police in January 2019, he said:
Not all of them looked uniform so I don’t think all of them were wearing the black masks over the lower part of their face. I remember seeing blue and yellow coloured T-shirts outside when I looked but it happened so quickly I wouldn’t be able to describe what kind or which males were wearing them.[30]
[25] T 31.
[26] T 32.
[27] T 32, 15-16.
[28] T 32.
[29] T 33.
[30] T 33, 33-38.
Mr Johnson said that this was his best recollection at that time, but three years later he could not say with certainty what colours he saw. He agreed that there were variations of clothing amongst the men. They could have been wearing different brands, different colours. He agreed it was possible that the other men were also wearing bandanas, but he could not say how many if any, of the other four men, were wearing a bandana.[31]
[31] T 34.
Mr Johnson said the bandana worn by the man kicking the sliding door was just under his eyes and was close around his whole face and hung down to his chest. Mr Johnson said he remembered seeing the majority of the skull on the bandana. He had never before seen a bandana that looked like that.[32] Given the nature of the mask, which was quite confronting, Mr Johnson said that was where his focus was.[33]
[32] T 35.
[33] T 36.
He then gave this evidence:
QIs this fair, that what we can see in the photograph looks like the motif that was on the bandana that the man was wearing at the time that you saw him kicking your door.
AYes, that’s correct.
QYou can’t say that this is the same bandana, can you.
AI cannot.
…
QWere you shown this photograph in January 2019 or were you shown a bandana.
AI was shown a photograph.
QAnd this was the only photograph that was shown to you.
ACorrect.
…
QAnd that was for you to try and identify whether this was the bandana that the man who did the kicking was wearing.
AI was asked whether I had seen this before.
QAnd you said that this photograph looked like what that man was wearing.
AYes, I did.
HER HONOUR
QMr Johnson, in this photograph it looks like there’s a cigar or cigarette coming out of the mouth.
AYes.
QWas that something from your vantage point you could see when you were looking at that man.
AI didn’t notice that detail at the time. I guess it’s the grin of the skull was what struck a memory.[34]
[34] T 36, 1-38, T 37, 1-4.
Senior Constable John Baldwin
On 21 December 2018, Senior Constable Baldwin was on plain clothes duty. He was given information regarding the model and registration of two vehicles stolen from premises at St Peters.[35] The Honda Civic had been sighted in Glanville and accordingly, he attended the Glanville area in an unmarked white HiAce van around 8.30am.[36] He saw the Honda Civic on Carlisle Street with four to five people in it. The car was full, but he could not say with certainty whether there were two or three people in the back seat. Those people had grey and black tops. He followed the Honda Civic and communicated his observations over police radio.[37] The Honda Civic travelled east on Hart Street and then turned into Carlisle Street to travel north, then north on Causeway, west on Semaphore and north on Woolnough. He did not see anyone get out of the vehicle as he followed it but there were gaps in time of less than 30 seconds when he lost observation of the vehicle.[38]
[35] T 39.
[36] T 40.
[37] T 41-T 42.
[38] T 42-44.
He received a radio message that a marked patrol had picked up the vehicle north on Mersey Road and he then located the Honda Civic westbound on Bridges Avenue. The Honda Civic drove south on Martin Avenue and he saw four male aboriginal boys getting out of it.[39] The four doors of the vehicle were open and each person exited from each door. Each of the males had either black or grey tops and black tracksuit bottoms.[40] He was 5 metres from the Honda Civic at this time. He then did a U-turn on Martin Avenue and watched the four young men walking and then running for ‘a bit’ on the footpath westbound on Bridges Avenue.[41] He conveyed this information over police radio. A silver unmarked police vehicle travelled from Martin Avenue into Bridges Avenue and then travelled westbound. Senior Constable Hocking got out from the passenger seat and arrested one of the four men. He was taken to the ground and handcuffed. The other three men ‘ran like startled gazelles and they were gone’.[42]
[39] T 44.
[40] T 44-T 45.
[41] T 46-T 47.
[42] T 47, 32.
In cross-examination, Senior Constable Baldwin said that the driver appeared to be wearing a hoodie but he could not make out what the others were wearing until they alighted from the vehicle.[43] He could not tell that they were aboriginal until then. He could not recall the driver wearing anything on his head.[44]
[43] T 49.
[44] T 50.
When the Honda Civic stopped on Martin Avenue, all four men walked in the same direction, then ran briefly and then walked again. Senior Constable Hocking got out of the police vehicle and took one man to the ground.[45] The other three went south into Enid Avenue.[46] In terms of a description of the other three men, all he could say is that they were aboriginal, some had grey tops, some had black tops and most or all of them had ‘trackie pants’.[47]He said they were all wearing trackie pants and hoodies, not jeans or street pants. They were all about the same height and the same build.[48]
[45] T 50-T 51.
[46] T 52.
[47] T 52, 37.
[48] T 53.
Senior Constable Tamara Abell.
On 21 December 2018, Senior Constable Abell was on duty with Senior Constable Hocking. Around 8.30am they were in the Glanville area looking for a vehicle that had been stolen overnight.[49] She was driving the police vehicle. She received information that a silver Honda Civic had been sighted by Senior Constable Baldwin and she then drove north along Victoria Road. Senior Constable Baldwin told her that the vehicle was in Martin Avenue and the occupants had left the vehicle and were travelling west on Bridges Avenue. He said there were a group of three or four and wearing dark clothing.[50]
[49] T 54.
[50] T 55.
When Senior Constable Abell came to Bridges Avenue she heard Senior Constable Baldwin advising to turn left to travel west and she saw him out of his vehicle and waving or gesturing in a westerly direction.[51] She turned west onto Bridges Avenue heading towards Victoria Road and saw two people on the southern side of the footpath one slightly in front of the other walking west towards Enid Avenue. They had dark clothing and one was wearing a hat. She could not see anyone else. She drove towards those males and stopped on the corner, angling the vehicle in front of them. Senior Constable Hocking got out of the police vehicle and apprehended one of the males.[52] He told her to keep going because the other male had decamped, and she drove to the end of Enid Avenue but could not find him. None of the other males were located.[53]
[51] T 56.
[52] T 57.
[53] T 58.
Senior Constable Abell assisted Senior Constable Hocking to convey the accused to the Port Adelaide Police Station, where he was brought to the charge counter and a safety search was conducted.[54] The accused was asked to take his tracksuit pants off and while Senior Constable Hocking was searching the shorts he was wearing underneath, a wallet dropped down between his legs. It appeared to have fallen out of the bottom of his shorts, as if it had been sealed in underwear or underneath the shorts. She kicked it with her foot to the side and then picked it up. The wallet contained some cards and identification in the name of Alan Johnson.[55]
[54] T 58.
[55] T 59.
The accused was then taken to the interview room and a further search of his personal belongings was undertaken. He had on him a bumbag which was quite full.[56] One of the first things she pulled out was a grey piece of cloth which she turned inside out and on the other side there was a skull motif mask. There was also a wallet with the accused’s photo identification and some cards and other property in his name.[57] There was a can of drink, a multi tool and other bits and pieces. She had not seen the bandana on him but became aware that it was part of his property. She was wearing gloves when she handled all of the items in the bumbag.[58] She identified the bandana photographed in P14 as the bandana she took out of the bumbag. It was about a foot long. The accused had a mobile telephone in his possession, but they could not examine the contents because it had a PIN code.[59]
[56] T 59.
[57] T 61.
[58] T 60.
[59] T 60-T 61.
In cross-examination, Senior Constable Abell said she was able to park within a couple of metres of the two men she saw. Senior Constable Hocking was able to immediately restrain one of the males and he did not attempt to flee. He was walking at the time he was apprehended and did not try to run.[60]
[60] T 62.
The first time she saw the bumbag was when they were preparing to transport the accused back to the Port Adelaide Police Station. Senior Constable Hocking had it at that stage.[61] Senior Constable Abell said she went through everything in the bumbag but could not remember if she pulled out every single small item. She agreed that all property in the accused’s possession was in the bumbag, with the exception of the wallet that had fallen out of his shorts.[62] She could not remember if she was wearing gloves when she picked up the wallet and said there was a possibility that she may not have been. She did not recall seeing an ING visa debit card in the wallet in Mr Johnson’s name and she would have noted that if she did.[63]
[61] T 64.
[62] T 65.
[63] T 66.
Senior Constable Abell had seen bandanas of the type found in the accused’s bumbag but not one precisely like that. She agreed that she had seen that sort of bandana in the possession of people, including aboriginals, who had been suspected of having committed offences.[64]
[64] T 67.
Senior Constable Leon Peter Hocking
On 21 December 2018, Senior Constable Hocking was on uniform duty with Senior Constable Abell. He was a passenger in the police vehicle being driven by Senior Constable Abell. They received information from Senior Constable Baldwin that a stolen silver Honda was in the Glanville area.[65] Their police vehicle was travelling in a northerly direction on Martin Avenue and saw a silver Honda parked on the side of the road which had the same registration as the silver Honda referred to over the police radio. He could not see anyone on Martin Avenue, but upon reaching the intersection of Bridges Avenue he saw two people to his left walking quickly in a westerly direction on the footpath, one in front of the other.[66] They then drove left onto Bridges Avenue and when near the males, he got out of the vehicle and restrained the male at the back who was the accused. He said he would not have yelled out or warned him before doing so. He had already formed the decision to arrest him for illegal use.[67]
[65] T 70.
[66] T 71.
[67] T 72.
The male with the accused was wearing dark clothing but he could not recall any other distinguishing features, or his skin colour or ethnicity. That male was moving quickly left onto Enid Avenue after which he lost sight of him.[68]
[68] T 73.
When the accused was arrested, he had a black bumbag attached over his shoulder and under his armpit. Senior Constable Hocking searched the accused’s pockets and his bumbag and removed a grey mask from his left pocket. When he first saw it, it was inside out. He was not wearing gloves when he handled those items. He unravelled the mask and then gathered it back up and put it into the bumbag. It had been scrunched up in his pocket.[69] The accused had a purple soft drink can, but he could not remember if that was in the bumbag or he was carrying it. Senior Constable looked at the contents of the bumbag and found a wallet that contained the accused’s identification.[70]
[69] T 73.
[70] T 74.

Senior Constable Hocking activated his body-worn video after arresting and handcuffing the accused.[71] Still images of the accused taken at 8.44am were tendered: P17. The clothing worn by the accused in P17 is the clothing he was wearing when arrested.[72]
[71] T 75.
[72] T 75.
Other clothing was located in the vicinity of the arrest but it was not submitted to the Forensic Science Centre for analysis because there was no description of the other offenders and the clothing was left in odd locations. Senior Constable Hocking did not think that the clothing had any evidentiary value in identifying any persons in the vehicle or at the break in.[73]
[73] T 81-T 82.
The accused’s height was measured, and he was a little over 190cm in height. An arrest photograph of the accused was tendered: P 18.[74]
[74] T 76.
A wallet fell from the accused onto the floor, from an area below his crotch.[75] Most of the clothing worn by the accused was tendered as was the mask: P 19 – P22. Photographs of that clothing and a pair of shoes were also tendered: P23.[76]
[75] T 77.
[76] T 78-T 80.
DNA reference samples were obtained from the accused and Alan Johnson. A phone was found on the accused, but it could not be unlocked.[77]
[77] T 82-T 83.
In cross-examination, Senior Constable Hocking agreed that the accused was two metres behind the other man with whom he was walking.[78] He had not seen either of them alight from the Honda Civic but had been told this by Senior Constable Baldwin. All he could recall of the other male was that he was wearing dark clothing.[79]
[78] T 84.
[79] T 86.
Senior Constable Hocking said he was not wearing gloves when he located the mask in the left front pocket of the accused’s tracksuit pants and put it into the bumbag.[80] The items seized from the accused were booked onto the police property management system (PPMS). The mask was entered and described as ‘one mask (ceremonial fancy dress) theatrical cotton skull clown grey silver chrome’.[81]Senior Constable Hocking explained that all of the words other than the word ‘mask’ and possibly ‘grey silver chrome’ were automatically populated by the PPMS computer system.
[80] T 85.
[81] T 88, 25-30.
The only analysis of clothing was of the clothing worn by the accused and the mask found in his pocket.[82] Senior Constable Hocking said he had seen masks similar to the mask seized from the accused in his work as a police officer and also outside of work, in everyday life. He said they were not uncommon and ‘there’s people of all ages that wear those sorts of clothing’.[83]
[82] T 90.
[83] T 91, 18-19.
Brevet Sergeant van Der Wielen.
Brevet Sergeant van Der Wielen is a crime scene investigator. She attended 21 River Street St Peters at 8.00am on 21 December 2018.[84] She determined that a brick caused the damage to the glass pane in the rear door.[85] Brevet Sergeant van Der Wielen was taken through P10 and confirmed that she took glass from the pane attached to the door.[86] There was no damage to the rear sliding door. There were no suitable prints for identification on the sliding door.[87]
[84] T 95.
[85] T 96.
[86] T 97.
[87] T 98.
There was no damage to the exterior or interior of the Honda Civic. She took a swab of the steering wheel and gearstick.[88] There were suitable fingerprints on the exterior of the Honda, five in total, which were submitted to the Fingerprint Bureau for analysis.[89] The keys to the Subaru were found in the front compartment of the Honda.[90]
[88] T 99.
[89] T 100.
[90] T 101-T 102.
In cross-examination, Brevet Sergeant van Der Wielen confirmed that she did not find an ING visa debit card in the name of Alan or A. Johnson in the Honda Civic, but said she did not conduct a thorough search of the vehicle.[91]
[91] T 102.
The brick was not seized, and it was dirty and powdery and therefore unsuitable for fingerprint or DNA swabbing.[92]
[92] T 104.
Kahlee Elizabeth Redman
Ms Redman is employed at Forensic Science Centre and has a Bachelor of Science degree with first class honours in Chemistry. She has expertise and experience in glass fragment analysis and comparison, a recognised forensic discipline. This discipline involves comparing glass from a known source or scene exhibit with small particles that are left on an object or clothing, known as recovered exhibits.[93] She said:
When we compare glass fragments we use two different parts to the test. We will test whether the feature that we are looking at, which is the refractive index, matches, for want of a better word, and we do that using a statistical sample student’s T-Test and then we will undertake further evidence interpretation using the likelihood ratio, which takes into account a number of factors.[94]
…
Generally firstly we will do a refractive index analysis. If there is then a statistical match between fragments and the fragments are large enough to, we will then go on and conduct the elemental analysis.[95]
[93] T 107.
[94] T 107, 17-24.
[95] T 107, 33-37.
The Forensic Science Centre keeps a database of different refractive indices which is quite extensive and has been kept since 1998. There are well over two to three thousand samples of glass in it. As a refractive index is not unique, a piece of soda lime glass taken from a crime scene could have a very similar refractive index as a window elsewhere.[96]
[96] T 108-T 109.
A number of exhibits were submitted by SAPOL on 5 March 2019 and 22 October 2020.[97] The examination requested was of four glass fragments described as a glass door to be compared with glass fragments that might be located on several items of clothing attributed to the accused.[98] Once individual glass fragments are identified they are tested for refractive index which provides a statistical range going to five decimal places.[99]
[97] T 110.
[98] T 111.
[99] T 112.
Ms Redman described the process by which glass may be transferred onto items if they are near a window that has been broken:
So, when an individual or something breaks a window whilst most of the glass will move away from the side of the force, the way the window breaks you’ll end up with small fragments coming back towards the side that it’s broken from, or onto a person that might be standing nearby, and it’s those small fragments that we are looking for.[100]
[100] T 112, 30-36.
The factors that affect whether glass is transferred to clothing in that scenario are the proximity of the person to the window as it is breaking, the method of breaking, whether the person is standing in front of or to the side of the window, how large the window is and the type of glass that is broken.[101] The factors that affect the persistence of glass fragments on items of clothing in that scenario are the type of garment and the activity of the wearer. If an item has been worn over a period of time of general activity the glass fragments will be lost, starting with the largest fragments. As a general rule, 70% to 80% of glass fragments on a general item will be lost within the first hour of general activity and after three to four hours, depending on the various factors, most of the glass will be lost.[102]
[101] T 113.
[102] T 114.
Based upon the research, a statistically significant amount is analysed, namely up to 10 fragments. The majority of glass when broken, if it is a normal height window, will be transferred to the upper and lower parts of the body and so the search is from top to bottom to identify the largest glass fragments to compare.[103] Account is also taken of pockets or turn ups. Glass located on shoes will be of the lowest evidentiary value because there is a propensity for glass to be transferred onto shoes from walking on it.[104]
[103] T 116-T 117.
[104] T 117.
Ms Redman’s table of results were tendered: P25. 21 glass fragments were located on the five items from the accused. The glass control was described as plain sheet non-float glass. The most common method for modern glass is the float method. All the sand and minerals are put together and mixed and form a molten mass and then floated onto a bed of tin. The refractive index of the control glass was one of the most common refractive indices in the database.[105]
[105] T 118.
The three glass fragments from the uppers of the accused’s shoes that were measured were distinguishable or different from the control sample.[106] Two of the glass fragments from the mask were measured and one had an indistinguishable refractive index to the control glass. However, there were other glass sources that would have the same refractive index.[107]
[106] T 119.
[107] T 120.
The six glass fragments from the tracksuit pants had a different refractive index from the control glass. The glass fragment from the pocket was not measured.[108] The seven glass fragments found on the cap were all different from the control glass.[109]
[108] T 120-T 121.
[109] T 121.
Ms Redman concluded that there was no support for any of the glass fragments recovered from the accused’s clothing as having come from the control glass pane at the time it was broken. The range of conclusions is no support, neutral support, slightly supports and very strongly supports.[110] The conclusion takes into account a variety of factors and in this case one of those factors was the amount of non-matching glass on the items from the accused. The more non-matching glass fragments the more likely it is that there had been a coincidental match of refractive index. [111]
[110] T 121.
[111] T 122.
The reason that there may not be any glass matching the window on a person is because that person was not there, or the wearer was there but at such a distance or in such a position that the glass fragments were not transferred, or if transferred were subsequently lost through activity prior to collection. Ms Redman was unable to say which of these scenarios was more likely in this matter.[112]
[112] T 123.
Ms Redman said glass back scatter fragmentation will occur in a semi-circle and as a rough measure a person would need to be within less than a 2-3 metre vicinity for fragments to be transferred onto the person.[113]
[113] T 124.
In cross-examination, Ms Redman said that the 70%-80% loss of glass fragments in the first hour is contingent on the size of the glass fragments and the retention value of the item upon which the glass is deposited. It is possible to find glass fragments between four and six hours later.[114] That time window will not apply to glass fragments located in a person’s pocket or captured in some other feature of clothing enabling retention.[115]
[114] T 126.
[115] T 128.
Ms Redman said that the control glass was the most common glass on the Forensic Science Centre database.[116]
[116] T 128.
Of the three glass fragments found on the mask they were all different from each other.[117]
[117] T 129.
Ms Redman said that when large groups of glass are found on a person that often occurs as a result of glass from smartphones.[118] She confirmed that there were no glass fragments found on the jumper that was analysed.[119]
[118] T 131.
[119] T 134.
Prosecution closing submissions
In closing, Mr Macura emphasised that the key issue in the trial was whether the prosecution had proved beyond reasonable doubt that the male who was kicking the sliding doors at the time of break in was the accused. It was contended that if I was satisfied that the accused was this person, then the evidence led in the prosecution case proved all of the other elements of each offence beyond reasonable doubt.
I pause to note that defence counsel agreed with this submission, and, in my view, in respect of count 1, the evidence adduced by the prosecution proves beyond reasonable doubt that four or five persons entered a private place that was a place of residence as trespassers, knowing that they were trespassers, and did so intending to commit the offence of theft. The aggravating features of the offence have also been established because the unchallenged evidence of Mr Johnson was that it was his home, and he was present, and the offence was committed by each of the offenders in company with the others.
In respect of count 2, the evidence establishes that the Honda Civic and Subaru Forrester and Mr Johnson’s wallet were taken from his premises after entry was forced to his premises in order to remove his wallet and car keys. The taking of the vehicles and the wallet is relevantly a dealing with that property, and it was indisputably dishonest and without Mr Johnson’s consent. The irresistible inference to be drawn from the fact that one vehicle was abandoned in North Adelaide and the other located with four or five men in it is that the four or five men seen at Mr Johnson’s home intended to make a serious encroachment upon his proprietary rights. Further, the taking of the wallet from the premises, the removal of the ING card and cash, and the wallet’s location in the shorts of the accused establishes that those involved in the joint enterprise to break into and steal from Mr Johnson’s home intended to deprive him permanently of the wallet and its contents, or at the very least, make serious encroachment upon his rights as owner of that wallet.
Mr Macura said that the prosecution case was a circumstantial one and that the combined strength of each piece of circumstantial evidence led to the overwhelming inference that it was the accused who was part of a joint enterprise to break into Mr Johnson’s house and steal his wallet and car keys, and then steal his motor vehicles. Mr Macura said there was no reasonable hypothesis consistent with innocence that could explain why the accused was in the stolen Honda Civic with Mr Johnson’s wallet down his shorts and with clothing and a bandana in his pocket that looked the same as that described by Mr Johnson as worn by the man kicking the sliding doors at his home.
Mr Macura said that Mr Johnson was a reliable and credible witness who had a clear view of the man kicking the sliding doors and although his observations were made over a very short period, the conditions were brightly lit and there was no impediment to his view. Mr Macura said that the difference in the height estimate provided by Mr Johnson of the masked man and the accused’s height was explicable on the basis that the man was moving at the time and could have been leaning back when kicking the sliding doors. In other respects, Mr Johnson’s description matched that of the accused, including his slim athletic build, his weight and dark olive skin. The colour of the clothing was the same and Mr Macura said that nothing turned on the difference between a long-sleeved T-shirt and pants or jeans as described by Mr Johnson and a jumper and tracksuit pants as worn by the accused. Mr Johnson’s description of a baseball cap that was black or navy was consistent with the baseball cap worn by the accused upon his apprehension. Any discrepancies in detail or omission to observe the white piping on the tracksuit pants or the fluoro yellow on the sandshoes was explicable by reason of the fact that Mr Johnson’s focus was on the skull bandana because it was so confronting.
Mr Macura said that the description given by Mr Johnson of the bandana worn by the offender kicking the sliding doors was very similar to the bandana seized from police and he relied upon Mr Johnson’s evidence that P 14 looked like the bandana worn by the offender. Mr Macura conceded the possibility of the displacement effect and the suggestibility involved in the police showing him a photograph of a single bandana but said that this did not detract from the fact that Mr Johnson described a skull mask bandana and one was found on the accused.
Mr Macura said I should not infer from the evidence of Senior Constable Hocking that masks like the one seized from the accused are common but rather that bandanas generally, irrespective of the motif on them, are commonly seen in policing work and in every day life. Mr Macura said that the bandana in the possession of the accused was sufficiently distinctive and unusual as to rebut the inference someone other than the accused committed the offences while wearing an identical or similar looking mask. Mr Macura said that it was not reasonably possible that the accused happened to have a similar mask in his pocket for an innocent purpose and unconnected with the break in whilst sitting in the stolen Honda Civic. Mr Macura conceded that the placing of the bandana in the accused’s bumbag by Senior Constable Hocking may have resulted in the accused’s DNA being transferred to the bandana and may account for the presence of another person’s DNA on the bandana. However, if no inference as to possession could be drawn from the presence of the accused’s DNA on the bandana that was immaterial because it was found in his pocket and the inference arises that he must have put it there.
Mr Macura said that the fact that the wallet was missing the ING card and the money when it was found in the accused’s possession did not reasonably give rise to an inference consistent with innocence, namely that someone involved in the break in subsequently gave the wallet to the accused at a different location after removing the ING card and cash. Mr Macura said the accused’s possession of it was consistent with a joint enterprise and a division of the spoils after leaving the premises.
Mr Macura said the inference that should be drawn from the fact that the Subaru Forrester was left at North Adelaide, but the keys found in the Honda Civic is that at least one of the males involved in the break in left it there and was subsequently picked up by the males who were in the Honda Civic.
Mr Macura said that it should be inferred that the males seen exiting the Honda Civic were the males who broke into Mr Johnson’s house. Nothing turns on the fact that their clothing as described by Senior Constable Baldwin did not match the description initially given to police by Mr Johnson, namely that they were wearing blue or yellow T-shirts.
Mr Macura said that the fact that the accused’s DNA was not on the steering wheel or gear stick was of no moment, because the prosecution case was based upon joint enterprise and thus it did not matter whether the accused was the driver or passenger.
Finally, in respect of the expert evidence of Ms Redman, Mr Macura said that the fact that there was no support for the conclusion that the accused was near the back door when the glass pane in it was smashed does not exclude the possibility of his presence as part of a joint enterprise in the rear yard of Mr Johnson’s premises. In other words, the evidence was neutral.
Defence closing submissions
Mr Allen filed written submissions with respect to the approach to be taken where the prosecution case is, as here, an entirely circumstantial one. Mr Allen’s submissions relied upon and distilled the propositions from a number of well-known authorities on the use of and approach to circumstantial evidence.
In summary, Mr Allen referred to the following principles:
In a circumstantial evidence case, the accused’s guilt must be the only rational inference which can be drawn from the circumstantial evidence.
When a case against an accused rests wholly or substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. If an inference or hypothesis consistent with innocence is reasonably open on the evidence, the accused must be given the benefit of the doubt necessarily created by those circumstances. Even if there is only one circumstance inconsistent with a conclusion of guilt, that may be sufficient to destroy the hypothesis of guilt, depending on the nature of that individual circumstance. Where the evidence raises a reasonable possibility that the circumstances point to someone other than the accused being the offender, then that possibility must be excluded by the prosecution beyond reasonable doubt.
In determining whether an inference is reasonable, the Court must consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference.
The Court is not required to analyse each circumstance individually, each of which by itself would not support an inference of guilt. The individual primary facts used to establish guilt need not themselves each be proved beyond reasonable doubt.
The Court does not have to reject one circumstances because, considered alone, no reasonable inference of guilt can be drawn from it. The Court must consider the weight to be given to the united force of all the circumstances put together. One piece of evidence may resolve a doubt about another.

The real question is whether there is a reasonable alternative explanation for the combined effect of each item of circumstantial evidence, which has been excluded beyond reasonable doubt by the prosecution. In other words, if there exists a reasonable explanation open on the circumstantial evidence presented by the prosecution which is consistent with innocence (for example, someone other than the accused being the man who Mr Johnson saw kicking the door at his premises) and which the prosecution has not excluded beyond reasonable doubt, then the accused must be found not guilty.
In oral submissions, Mr Allen conceded that if I was satisfied beyond reasonable doubt that the accused was the man kicking the sliding doors at Mr Johnson’s premises, all of the other elements of the offences would have been proved beyond reasonable doubt.
Mr Allen said that the circumstantial evidence relied upon by the prosecution fell into the following four categories:
1.The clothing worn by, or in the possession of the accused at the time of his arrest compared with the description of Mr Johnson of the man kicking the sliding doors (“the kicker”).
2.The physical attributes of the accused that are similar to those of the kicker.
3.The possession by the accused of the wallet belonging to Mr Johnson and which was stolen from the table in the back room of his house.
4.The presence of the accused in the silver Honda Civic with other males and the timing of that presence, around two hours after the alleged offending.
Mr Allen emphasised that the prosecution case is that the accused is the person in the middle of the group of men described by Mr Johnson and who is kicking the glass panels of the sliding doors.
Mr Allen said the scenario consistent with innocence that the prosecution cannot and has not eliminated beyond a reasonable doubt is that the accused is not the man who kicked the sliding doors. He did not go to 21 River Street St Peters but met some or all of the other offenders at a time after the Subaru and Honda have been stolen. He travelled in the stolen Honda with some of the offenders until it stopped at Osborne. Before he got out of the car he came into possession of the wallet because he was in that car with some of the males who committed the offences at St Peters.
Mr Allen invited me to focus on the evidence relating to the man who was kicking the sliding doors who, on the prosecution case, is the accused. This commences with description of that man given by Mr Johnson. Mr Johnson described the offender as around his height or slightly taller. He said he was 180cm tall in evidence in chief but in cross-examination confirmed that he was 178cm, or 5 foot 10 inches. The offender was comparable to him in height and not substantially taller than him. It is an agreed fact that the accused was 198cm when wearing shoes of the type he was wearing when arrested. In other words, 6 foot 6 inches. Mr Allen said that this cannot simply be passed off and that it is a very significant difference.
Mr Allen conceded that there are features of the description given by Mr Johnson that are consistent with the accused’s appearance – his skin colour and his build. Mr Allen said that Mr Johnson gave a detailed description of the ‘kicker’ in difficult circumstances, and it was understandable that he could not describe the other males in that detail. There is no reason to think that the description of the height is inaccurate and because it is so significantly different from the accused’s height while wearing shoes, which he must have done if he was the kicker, this piece of evidence or circumstance is inconsistent with a conclusion of guilt and is sufficient to destroy the hypothesis that he is the kicker, and therefore guilty of both charges.
Mr Allen then referred to the description Mr Johnson gave of the clothing worn by the kicker when compared to the clothing worn by the accused when apprehended. Mr Johnson described the kicker as wearing long black pants, a long black T-shirt with sleeves and some white graphics or possibly lines on the top and a skull bandana over the nose and a baseball cap. He could not recall any other colour on the pants worn by the kicker. He did not recall them being tracksuit pants and his final position was that they could have been jeans or black pants. Mr Allen submitted that this description is different from tracksuit pants with distinctive and prominent white lines of piping down each side. Mr Allen conceded there was a possibility that, if the accused was the kicker, Mr Johnson might not have seen the motif on the top because it could have been concealed by the bandana. Mr Allen placed some emphasis on the absence of any description given by Mr Johnson of the shoes as having fluoro colouring/logo on the tongue and also on the heel.
Mr Allen urged me to exercise caution in my consideration of the description of the mask and the ‘identification’ by Mr Johnson of the mask in P14. In examination in chief, Mr Johnson said he believed the bandana in P14 was the same bandana worn by the kicker, but in cross-examination confirmed that he had been shown only one photograph, P14, and that he said that the photograph looked like what the man was wearing. In other words, Mr Johnson did not positively identify the bandana in P14 as the bandana worn by the kicker but said it looked like it. Mr Allen said that the fact that the police showed Mr Johnson a single photograph of one bandana created a degree of suggestibility and in turn gives rise to the possibility of the displacement effect. That is when Mr Johnson was giving evidence about the bandana worn by the kicker, his memory of that had been displaced by the viewing of P14 after the event and before he gave evidence. Further, there is evidence in the prosecution case that the bandana seized from the accused is not uncommon, unusual or distinctive.
Mr Allen argued that there are aspects of Mr Johnson’s description that do not match the accused in terms of physical attributes and the clothing he was wearing when arrested. In addition, the weight that might otherwise be attached to the correspondence between the description of the skull bandana and the bandana found on the accused is diminished by the possibility, which cannot be excluded, of the displacement effect.
Mr Allen said I should accept Mr Johnson’s evidence that there were 5 offenders in his backyard. However, by the time the Honda Civic is located in Osborne there are only 4 men in that vehicle. Accordingly, one of the offenders is missing and an inference arises that he left at some point after the vehicles were stolen. The Subaru was abandoned in North Adelaide, but the keys were found in the Honda and there is therefore the reasonable possibility that the fifth offender was the kicker, who at some point left the company of his fellow offenders. As that fifth person has never been seen or described, there is no basis to exclude the reasonable possibility that his appearance better matched the description of the kicker. Nothing is known of the movements of the Subaru and Honda after they leave St Peters other than the fact that the Subaru must have been abandoned in North Adelaide at some point prior to the Honda Civic being seen in Osborne. It is reasonably possible that some of the original party of 5 left and others, including the accused who were not involved in the offending, got into the Honda Civic for a joyride. In addition, because of the paucity of evidence of the features and clothing of the other men seen alighting from the Honda Civic, it is also reasonably possible that one of those men matched the description of the kicker.
Mr Allen said that the accused had the wallet in his possession in suspicious circumstances. However, the items in the wallet of value, the cash and ING card were missing when it fell out of his shorts. As a result, it is reasonable to infer that there were other persons involved in the initial theft of the wallet and it is those persons who have taken what is valuable from it and it has been given to the accused or otherwise discarded and he has decided to keep it because it has some value to him. Mr Allen said this is not a fanciful scenario.
Mr Allen highlighted what he said were the deficiencies in the prosecution case based upon the DNA evidence. Mr Allen emphasised that there were three contributors to the cutting from the mask that had the amylase, one was the accused, Mr Johnson was excluded, and one was an unidentified male. Accordingly, there is no primary or secondary transfer of any DNA from Mr Johnson to that mask. In addition, unidentified persons have contributed to the DNA profiles found on the gear stick and steering wheel and the accused was either excluded or there was strong support for the hypothesis that he was not a contributor. In other words, there is no evidence establishing that the accused was driving the Honda Civic, thus not excluding the reasonable possibility that he was a passenger in the circumstances suggested on the alternative scenario consistent with innocence.
Mr Allen placed emphasis on the evidence that the accused is excluded as the person whose fingerprints were located on the door through which entry was gained to the premises. Mr Allen said an inference arises that the kicker was the person who is likely to have then broken the glass pane in the door, having failed to break the sliding door by kicking it.
Mr Allen then referred to the evidence of Ms Redman. He said that it was significant that the three pieces of glass found on the mask all differ from each other and that of the entire number of glass fragments found on the clothing of the accused, only one piece is indistinguishable from the control glass. This evidence does not support the prosecution case and, if the inference was drawn that the kicker was the person who then smashed the glass panel of the back door, then that person is unlikely to have been the accused.
Mr Allen conceded that, on the evidence, I could find the accused guilty of count 2 but on the basis that it is confined to the particular alleging theft of the wallet. Mr Allen said that if I was satisfied that the Honda Civic was stolen and that the accused had Mr Johnson’s wallet on his person and in his possession then it would be open for me to be satisfied that he was guilty of theft by receiving.
Findings of fact on undisputed matters.
I accept as proved beyond reasonable doubt all of the facts set out in P11.
I accept as proved beyond reasonable doubt the facts asserted in the affidavits comprising P1, P3, P4, P5, P6 and P8 and that the photographs annexed to the relevant affidavits were taken on the dates referred to in the affidavits.
In summary, the affidavits tendered by consent established the following facts which I am satisfied have been proved beyond reasonable doubt:
1.On 21 December 2018, Constables Nicholas and Tonkin were tasked to an address at River Street St Peters as the result of a report of an aggravated serious criminal trespass and theft of two motor vehicles.
2.Constables Nicholas and Tonkin attended the River Street address and spoke to Alan Johnson. He described being woken to 5 unknown males, all of whom were dressed in black and wearing masks over their faces, kicking at the rear doors to the main living area. He said he retreated to the main bedroom and heard the shattering of glass and a short time later the sound of two vehicles driving out of the driveway at speed.
3.5 photographs (P2) were taken of the scene and depict the interior of the rear of the River Street premises and the shattered glass in the rear door and a brick found inside the premises.
4.At 11.15am on 23 December 2018, Constable Nuttman and Senior Constable Broadbent located an active stolen vehicle in Margaret Lane North Adelaide. The vehicle was parked and locked with no obvious signs of damage. There were 10 – 12 wrapped Christmas presents in the boot of the vehicle. A crime scene investigator attended and examined the vehicle. Nothing of note was found during a search of the vehicle. A short time later a friend of Mr Johnson’s arrived to collect the vehicle on his behalf.
5.Brevet Sergeant Chapman attended Margaret Lane at 12.04pm on 23 December 2018 and conducted a forensic examination of a white Subaru Forrester station wagon S827BDM and took a series of photographs (P7). Brevet Sergeant Chapman took a swab from the steering wheel and located a fingerprint on the interior glass of the driver’s door which he photographed. That photograph was sent to the Fingerprint Bureau for comparison purposes.
6.Brevet Sergeant Bobby Slobodan Lackovic, fingerprint investigator, examined fingerprint impressions photographed by Brevet Sergeants Van der Wielen and Chapman. He undertook an analysis and comparison of those impressions with the impressions on a fingerprint card bearing the name Dylan John Adams and Jakob Thomas Johnson. The impression coded 901907197 was identical to a portion of the left palm on the fingerprint card for Jakob Thomas Johnson. Four of the remaining fingerprint impressions remain unidentified at the time of his statement. The remaining fingerprint impressions had insufficient detail for identification.
I make the following findings of fact based upon the unchallenged oral evidence led in the prosecution case:
1.Alan Johnson was the lawful occupant of 21 River Street St Peters on 21 December 2018 and was present in those premises with his son, Harvey.
2.At 6.36am on 21 December 2018 Alan Johnson telephoned emergency services and reported an aggravated serious criminal trespass and the theft of two motor vehicles.
3.Shortly before 6.36am five males trespassed on the premises at 21 River Street St Peters. Not long afterwards, Alan Johnson made observations of five males in the rear yard of his premises for a period of 10 seconds at a distance of 6-7 metres.
4.The 5 males were congregated in the rear of the premises in the positions marked by Alan Johnson on P13. After Alan Johnson shut the door to the back living area, the glass pane in the back door of the premises at 21 River Street St Peters was smashed with a brick located on the premises and entry was effected by a person or persons and a wallet belonging to Alan Johnson and a set of car keys to a Subaru Forrester S827BDM and Honda Civic XLI445 were taken. Both of those vehicles were then driven from the carport of the premises after a garage roller door was operated from a remote control on one of the sets of car keys. At the time the wallet was stolen, it had in it an ING bank card in Alan Johnson’s name and a small amount of cash.
5.No person had permission to remove from the premises the wallet, car keys or the Subaru Forrester and Honda Civic.
6.On 21 December 2018, the Honda Civic was sighted by police driving in the Glanville area. Senior Constable Baldwin saw the Honda Civic on Martin Avenue at which time four aboriginal males alighted from it. He had seen it driving in the area shortly beforehand and observed 4, possibly, 5 males in that vehicle.
7.The accused was an occupant of that vehicle at the time it was sighted by Senior Constable Baldwin. The accused alighted from that vehicle after it parked on Martin Avenue. Three other males alighted from that vehicle at the same time, each from separate doors. All males were wearing grey or black clothing and black tracksuit pants. They then travelled onto Bridges Avenue.
8.As the males were walking on Bridges Avenue, a police vehicle driven by Senior Constable Abell parked ahead of the males. By this time, there were two males walking one in front of the other. Senior Constable Hocking alighted from the passenger side of the police vehicle and arrested the male at the rear who was the accused.
9.When arrested the accused was wearing the clothing depicted in P17, P18, P23 and comprising P19, P21 and P22. He was carrying a mask, P20, in his left tracksuit pocket. That mask was photographed (P14) and the photograph was shown to Alan Johnson by police in January 2019. Alan Johnson told police that the mask photographed in P 14 looked like the mask worn by the man he observed kicking the sliding doors at the rear of his premises.
10.When apprehended, the accused had hidden in his shorts the wallet taken from 21 River Street, St Peters. Missing from that wallet were the ING card and cash.
11.The 5 males at 21 River Street St Peters were involved in a joint enterprise to break into the premises and steal property.
Assessment of witnesses.
The credibility and reliability of the evidence of the police witnesses was not challenged. I found each witness to be a credible and reliable historian and am prepared to accept and act upon their evidence.
I find that Ms Redman was properly qualified to give an expert opinion regarding the analysis of the glass fragments from the accused’s clothing and the samples from the broken pane from the back door and compare the two. I accept her evidence without hesitation.
The analysis of the glass fragments found on the accused’s clothing and their comparison with the glass from the pane in the back door that was broken to effect entry, does not advance or support the prosecution case. In my view this evidence does not positively support the defence case. It is intractably neutral because the prosecution case does not depend upon a finding that the accused was the person who broke the glass pane on the back door in order to enter the premises.
Mr Johnson was an impressive witness. He gave his evidence in a measured and thoughtful manner and made appropriate concessions. Despite the brevity of his observations and the fear that he felt, he was able to provide a significant degree of detail in his description of the offender who was kicking the sliding door. As his focus was on this man, it is unsurprising that he could not provide the same level of detail in respect of the remaining four men. However, Mr Johnson described those males as slim and wearing street clothing, jeans and shirts. In a statement to police in January 2019, which he said was his best recollection at the time, Mr Johnson said not all of the males were wearing the black masks over the lower part of their face. He said he remembered seeing blue- and yellow-coloured T-shirts outside but he was unable to describe what kind of T-shirts or which males were wearing them.
In evidence he agreed that it was possible that the other men were also wearing bandanas, but he could not say how many were. I note that when police first attended his house on 21 December 2018, Mr Johnson told them that all five men were dressed in black and wearing masks. The prosecution did not lead any evidence that Mr Johnson described the presence of a skull motif on any of those masks to police.
In January 2019, Mr Johnson was asked whether he had seen P14 before. I find that he did not make a positive identification of the mask as being the mask worn by the kicker but instead said that it ‘looked like’ or was similar to the mask worn by that man. There is no evidence before me of any description given of that mask by Mr Johnson before he was shown P14. In these circumstances, the possibility of the displacement effect arises. I will return to this matter shortly.
Analysis
Where there is no evidence of the movements of the Honda Civic and Subaru Forrester after being stolen from 21 River Street, St Peters and the sighting of the Honda Civic in Glanville two hours later, the presence of the accused in the Honda Civic at 8.30am with three other unidentified males is not, of itself, sufficient to establish that he was one of the five men involved in the joint enterprise to break into 21 River Street and commit the offence of theft. In my view, the fact that the accused had Mr Johnson’s wallet, missing as it was the ING bank card and the cash, does not alter that position. This is because the reasonable hypothesis consistent with innocence that the accused was picked up after the theft of the vehicles and given the wallet cannot be excluded beyond reasonable doubt.

This brings into sharp focus the remaining items of circumstantial evidence relied upon to prove that the accused was the man described by Mr Johnson as the kicker and whether the weight to be attached to those items, in combination with the accused’s presence in the vehicle in possession of Mr Johnson’s wallet, excludes beyond reasonable doubt all rational hypotheses consistent with innocence as not reasonably open on the evidence.
Circumstantial identification evidence
The evidence led by the prosecution falls into the class of circumstantial identification evidence. In Festa v The Queen (2001) 208 CLR 593 McHugh J observed:
Positive-identification evidence has often proved to be unreliable. This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence, but also of any particular weaknesses in the evidence, in the case being tried.
Unfortunately, another class of evidence is sometimes called “circumstantial identification evidence”. It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.[120]
[120] [55] – [56] footnotes omitted.
The displacement effect.
In R v Blundell [2019] SASCFC 84, Peek J said the displacement effect:
…may occur in a variety of circumstances but has most often been addressed by the courts in the context of the well-established phenomenon that a memory of a person’s features may be altered by later experiences such as the perusal of photographs or identikit pictures, reading descriptions of the suspect of viewing newspaper sketches of the suspect.[121]
[121] R v Blundell [2019] SASCFC 84, [43]
In Alexander v The Queen (1981) 145 CLR 395, Stephen J discussed the displacement effect:
Having been shown a photograph, the memory of it may be more clearly retained that the memory of the original sighting of the offender and may, accordingly, displace the original memory.[122]
[122] 409.
The displacement effect is not limited to images of a person or an offender. The need for a warning with respect to the identification of a crucial inanimate object and the possibility of the displacement effect was considered in R v Clout (1995) 41 NSWLR 312. In that case, the identification evidence of a semi-trailer was the central link which connected the accused to the crime of culpable driving causing death and grievous bodily harm. On appeal it was held that a warning of the general dangers of convicting on identification evidence and specifically relevant to the particular dangers in the case should have been given by the trial Judge. Kirby A-CJ said:
A question thus arises as to whether the warning required in the identification of a human being should be extended to the identification of a crucial inanimate object. No authority binding on this Court governs the subject. A natural inclination is not to extend unnecessarily warnings never previously conceived as necessary, the absence of which may occasion the failure of a lengthy trial otherwise impeccably conducted by the trial judge.
Where the evidence of identification of an object is peripheral to the major issue fought at the trial one could perhaps resist, with integrity, the extension of the judicial warning obligation to warn the jury.
…
The fact that the identifying link between the accused and the crime is not an aspect of human physiognomy can scarcely be determinative. In several cases, objects (such as clothing) have been vital to establishing identification of the accused as the offender: see, eg, Pitkin v The Queen (1995) 69 ALJR 612; 130 ALR 35, where, amongst other things the description of the clothing worn by the offender (black football shorts and a “white t-shirt…with red striping across it”) was part of the identifying evidence. Similarly, warnings had been required in the identification of objects as those used in the commission of an offence. The fundamental problem is the same, and in one sense more acute, in the case of the identification of objects as in the case of the identification of humans. Every human is distinct and unique in appearance. Differences exist even between identical twins. But objects, such as knives or trucks will typically, today, be mass-produced, bearing similarity to thousands of other virtually identical objects. The general warning about the dangers of convicting accused persons upon identification evidence need to bring to the notice of juries at least the following:
1.The fallibility of human memory;
2.The risks of convicting persons upon the basis of identification evidence and the injustices which have occurred in the past from such mistakes;
3.The danger of contamination of memory by facts later discovered;
4.The high importance of securing an early record of the uncontaminated recall of the witness before the passage of time to prevent later elaboration or distortion in the retelling of the event; and
5.The specific danger that memory may sometimes become enlarged (even quite innocently) to include matters which the observer expects or is expected to recall.[123]
[123] 320-321.
Discussion and further findings
Mr Johnson did not positively identify the bandana in P14 as being the bandana worn by the kicker. Whilst I accept that Mr Johnson was doing his best to honestly recall in the witness box the features of the bandana worn by the kicker, and his sworn evidence of those features correspond closely with the bandana in P14, I cannot exclude the possibility that his memory of the bandana in the photograph has displaced his original memory. I do not wish to unduly criticise the police for showing Mr Johnson P14, but the fact that he was shown a photograph of a single bandana may have led him to subconsciously assume that it was in fact the bandana worn by the offender, thus increasing the likelihood of the displacement effect. In such a situation there is an inevitable risk that Mr Johnson’s evidence, honestly given, is more the product of the influence of the circumstances surrounding the viewing of P14, than of the influence of an independent reliance upon his own recollection.[124]
[124] Burchielli [1980] 2 A Crim R 352 at 363 per McGarvie J.
Accordingly, I am unable to conclude that the bandana in the accused’s possession was the bandana worn by the kicker or that his possession of that bandana is evidence from which I could infer that he was the kicker. It is nevertheless an item of circumstantial evidence to be considered in combination with the other items of circumstantial evidence, albeit weakened by the matters referred to above.
In considering the weight to be attached to the evidence of the accused’s possession of the bandana, whilst a passenger in the stolen Honda Civic two hours after the break in, I also take into account the evidence of Senior Constables Hocking and Abell that bandanas of the type found in the accused’s possession are not unique or uncommon.
I find that there was more than one male in the group of 5 wearing a mask or bandana when they were observed by Mr Johnson. It is not possible to make any finding regarding the style or type of any bandanas worn by the other men. I find that all five men had a slim build. I am not able to make any firm finding regarding the clothing worn by the other four men, other than that their clothing appeared similar to that described by Mr Johnson as worn by the ‘kicker’.
Some of the features of the ‘kicker’ described by Mr Johnson match the accused: tanned or olive skin, slim build, a black top with long sleeves and white graphics on the sleeves. However, there are some aspects of Mr Johnson’s description of the kicker which are at odds with, if not positively inconsistent, with the accused’s physical attributes and attire.
It is an agreed fact that the accused’s height on 25 November 2021 was 194cm without shoes, and 198cm when wearing sports shoes. That is, around 6 foot 4 inches without shoes and 6 foot 6 inches with sports shoes. Mr Johnson said his own height was 178cm or 5 foot 10 inches tall. He said the kicker’s height was comparable to his, or slightly taller. Based upon the evidence of Mr Johnson regarding the force with which the kicker kicked the sliding doors, I infer and find that the kicker was wearing shoes. On the assumption that the accused was the kicker and was wearing the sports shoes depicted in P23, his height would have been around 6 foot 6 inches.
Mr Johnson was standing looking at the kicker from a vantage point level with that of the kicker. He qualified his description of the other men as being shorter than the kicker by reference to the fact that there was a step down from the area in which the kicker was standing. Accordingly, his estimate of heights, even in the short period during which he observed the kicker and the others, included an evaluation of the location of the males he observed. This suggests to me that the observation was a careful and considered one and not simply a guess. Further, it would have been relatively easy for Mr Johnson to accurately determine that the man he was looking at was about the same height as him because they were both standing on level ground. It is a simple process to reliably estimate a person’s height in comparison to one’s own when standing 6-7 metres from that person on level ground.
Accordingly, I am not prepared to infer, in the absence of any evidentiary basis for such an inference, that Mr Johnson’s estimate of height was so rubbery or unreliable that it included a range extending to a height that was 18-20cm more than the estimate. To the contrary, Mr Johnson said that the kicker was ‘not substantially taller’ than him.
I consider the height difference of the ‘kicker’ and the accused to be significant or substantial. A man who is 6 foot 6 inches meets the description of a very tall man. Mr Johnson’s estimate of the height of the kicker, which I accept as accurate, is inconsistent with the kicker being the accused.
The other feature of Mr Johnson’s description of the kicker is the pants that he was wearing. Mr Johnson said that the kicker was wearing black pants or jeans. When arrested, the accused was wearing black adidas tracksuit pants with a panel of three distinctive and prominent white stripes down the side of each leg and a small adidas logo on the front upper left leg.
Mr Johnson observed the kicker deliver up to 7 or 8 kicks. It follows that Mr Johnson’s attention was drawn to the lower half of the body of the kicker while he delivered those kicks. Given the detail in the description given by Mr Johnson of the kicker, if the kicker was the accused and dressed in the clothing worn when arrested, it is of some significance that Mr Johnson did not describe the pants as tracksuit pants and of more significance that the distinctive white stripes escaped his notice.[125]
[125] Any correspondence between the description of the kicker’s clothing given by Mr Johnson and the accused’s clothing is only of significance if it is assumed that the kicker did not change clothes after leaving Mr Johnson’s premises. Whilst the time difference gives rise to the possibility that one or more of the offenders changed clothes, I consider this possibility to be remote.
Conclusion
It is important to emphasise that it is the prosecution case that proof of both charges depends upon a finding, beyond reasonable doubt, that the ‘kicker’ was the accused. The only qualification to that statement is the proper concession by Mr Allen that a finding of guilt of count 2, in respect of the wallet only, is open on the evidence even if I am not satisfied that the accused was the kicker.
The presence of the accused in one of the vehicles two hours after being stolen from Mr Johnson’s premises is highly suspicious. However, none of the other occupants of that vehicle were apprehended and there is no evidence from which it can be inferred that the accused drove that vehicle. There is no evidence of the movements or the identity of the occupants of that vehicle after it was stolen from Mr Johnson’s carport.
As the prosecution case is entirely circumstantial in nature, the accused’s guilt must be the only rational inference which can be drawn from the evidence. In determining whether an inference is reasonable I must consider the evidence as a whole. I am not required to analyse each circumstance individually; a circumstance which, in isolation, would not support an inference of guilt may do so when combined with other circumstances. I must consider the weight to be given to the united force of all circumstances put together.
When the evidence is viewed as a whole, and taking into account the weight I have attributed to the various items of circumstantial evidence led in the prosecution case and the significance of aspects of Mr Johnson’s description of the kicker that do not match the features of the accused, I am unable to exclude the rational hypothesis consistent with innocence reasonably open on the evidence that the accused was not the kicker but, at some indeterminate time before his apprehension, got into the stolen Honda Civic and was given or took Mr Johnson’s wallet, after the ING bankcard had been removed. It is possible that the wallet had the cash in it when given to the accused and he then spent it, but I am unable to make a firm finding on that issue.
Accordingly, I am not satisfied beyond reasonable doubt that the accused is guilty of count 1. I am not satisfied beyond reasonable doubt that the accused is guilty of the theft of the Subaru Forrester, Honda Civic or the keys to both of those vehicles.[126] I am however satisfied that the accused dishonestly dealt with Mr Johnson’s wallet by receiving that wallet knowing that it was stolen and intending to deprive Mr Johnson of the wallet.
[126] After hearing closing addresses, I invited written submissions from both counsel regarding the issue of whether the accused could be found guilty of theft with respect to the Honda Civic on the basis that he received the Honda Civic. In order to convict the accused I would need to be satisfied beyond reasonable doubt that the accused knew that the Honda Civic was stolen at the time he occupied the vehicle and that he agreed with the other occupants to exercise control over that vehicle or retain it for an indefinite period. I reject defence counsel’s submission that to prove theft of the Honda Civic it is necessary to find that the accused took physical control of the vehicle from those who stole it or that it was reduced into his possession. However, I agree with the prosecution submission that the lack of evidence of the identity or roles of the other occupants of the Honda Civic and when it was that the accused became a passenger of the vehicle renders it unsafe to infer that he knew it was stolen.
Verdicts
I find the accused not guilty of count 1.
I find the accused guilty of count 2 in respect of the property particularised as the wallet.