R v Agius
[2013] SADC 96
•23 July 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AGIUS
Criminal Trial by Judge Alone
[2013] SADC 96
Reasons for the Verdicts of His Honour Judge Muscat
23 July 2013
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
Aggravated robbery (four counts), Aggravated Serous Criminal Trespass - circumstantial evidence case to prove identity of accused as the offender.
Verdicts of guilty of all counts.
R v Hillier (2007) 228 CLR 618; Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Chamberlain v R [No 2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619; R v Taouk (2005) 154 A Crim R 69; Knight v R (1992) 175 CLR 495; Plomp v R (1963) 110 CLR 234; Thomas v R (1960) 102 CLR 584; Doney v R (1990) 171 CLR 207; R v Van Beelan (1973) 4 SASR 353; R v Mayfield (1995) 63 SASR 576; R v Harris (1990) 55 SASR 321, considered.
R v AGIUS
[2013] SADC 96Introduction
Shane Andrew Agius is charged on Information, dated 26 November 2012, with the following offences relating to two separate hold ups committed approximately five hours apart.
First Count
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Shane Andrew Lewis Agius on the 30th day of June 2012 at Elizabeth East, threatened to use force against Connie Harris in order to commit the theft of cash and cigarettes in the sum of about $600 and the threat was made at the time of or immediately before the theft.
It is further alleged that Shane Andrew Agius used an offensive weapon, namely an axe, when committing the offence.
Second Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Shane Andrew Lewis Agius on the 30th day of June 2012 at Elizabeth East, threatened to use force against Selena Edith O’Leary in order to commit the theft of a handbag containing cash, a mobile phone and personal belongings and the threat was made at the time of or immediately before the theft.
It is further alleged that Shane Andrew Agius used an offensive weapon, namely an axe, when committing the offence.
Third Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Non-Residential Building. (Section 169(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Shane Andrew Agius on the 1st day of July 2012 at Para Hills, entered the Somerset Hotel as a trespasser, with the intention of committing an offence therein, namely robbery.
It is further alleged that Shane Andrew Agius used an offensive weapon, namely an axe, when committing the offence.
Fourth Count
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Shane Andrew Lewis Agius on the 1st day of July 2012 at Para Hills, threatened to use force against Jacqualine Alice Malpass in order to commit the theft of cash in the sum of about $3,600 and the threat was made at the time of or immediately before the theft.
It is further alleged that Shane Andrew Agius used an offensive weapon, namely an axe, when committing the offence.
Fifth Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Shane Andrew Lewis Agius on the 1st day of July 2012 at Para Hills, threatened to use force against Anna Elena Schmerl in order to commit the theft of a handbag in the sum of about $250.00 and the threat was made at the time of or immediately before the theft.
It is further alleged that Shane Andrew Agius used an offensive weapon, namely an axe, when committing the offence.
Mr Agius pleaded not guilty to all counts and elected to be tried by judge alone.
The first hold up occurred at the IGA Supermarket, Elizabeth East at about 8.45 pm on 30 June 2012. The second occurred at the Somerset Hotel, Para Hills at about 1.45 am on 1 July 2012. The distance between the two establishments is approximately 10 kms.
In each instance two persons were robbed. Additionally, the robber forced his way inside the Somerset Hotel, by smashing the front glass door of the hotel, in order to carry out the robberies.
The circumstance of aggravation in relation to all offences is the use of an offensive weapon, namely an axe.
I have directed myself as to the elements of each offence.
There is no doubt that each of the offences occurred. The sole issue relates to the identity of the offender.
The prosecution case against Mr Agius is based solely on circumstantial evidence to identify him as the offender.
Mr Agius is presumed innocent of the charges he faces. The prosecution bears the onus of proving the charges against him beyond reasonable doubt. There is no onus on Mr Agius to prove anything in a criminal trial.
The Prosecution Case
The IGA Supermarket hold up
At about 8.45 pm on Saturday 30 June 2102, a man wearing a mask and armed with an axe entered the IGA Supermarket on Midway Road at Elizabeth East.
Connie Harris
Connie Harris was working as the shop assistant that evening. There was a sole female customer in the store at the time.
The robber was wearing a handkerchief[1] or a mask[2] over his face, which she thought was light in colour.[3] He was holding a wooden handled axe, about 45 cms in length.[4] When the robber entered the store he said: “Give me the money”. He then jumped over the ice-cream freezer, at which time he saw the customer (Selena O’Leary). The customer was carrying a handbag over her shoulder. The robber demanded of the customer: “Give me your handbag”.
[1] Transcript 29 line 3
[2] Transcript 27 line 32
[3] Transcript 29 line 8
[4] Transcript 38 lines 4-9
At this point Ms Harris walked into the kiosk area behind the checkout to press the duress alarm. She was unable to locate the duress button, and when she turned around, the robber was standing at the terminal. He was wearing a “hoodie type dark jacket”.[5] She was distracted by the axe he was holding and not focussing on his face.[6]
[5] Transcript 33 line 32
[6] Transcript 33 line 34
The robber then repeated: “Give me the money”, to which she responded: “We haven’t got any”. The robber then swung the axe at the till.[7] Ms Harris decided to give him some money and opened the Cross-Lotto till. The robber said to her: “You told me you didn’t have any money”. She replied: “Well, take it then”. She then removed the money from the till and handed it to him.
[7] Transcript 32 line 25; Transcript 34 line 3
Whilst the robber was standing next to her she noticed that he was holding a handbag which he had taken from the customer.
She managed to pass the robber while he was distracted and ran down an aisle to the rear of the store.
She noticed the robber was wearing gloves, which were two-tone, dark and light in colour, with a Velcro type tab.[8] She described the robber’s voice as very deep.
[8] Transcript 36 lines 3-7
By reference to a police officer, who attended the supermarket after the robbery, she estimated that the robber was about 185 to 187 cms in height and of slim build.[9]
[9] Transcript 37 line 7
Selena O’Leary
Selena O’Leary was the female customer in the supermarket at the time of the hold up.
She stated the robber was wearing shorts, which were longer than his knees.[10] The robber wore white Nike shoes and a black “hoodie with long sleeves”.[11] He had a mask covering his head and face.[12] The mask covered his nose exposing only his eyes.[13] The “mask” was black in colour.[14] He was wearing gloves which had Velcro over the top of the wrists.[15]
[10] Transcript 42 line 5
[11] Transcript 51 line 23
[12] Transcript 42 line 6
[13] Transcript 42 lines 7-15
[14] Transcript 51 line 28
[15] Transcript 51 line 32
The man said: “This is a robbery”. At first she did not realise what was happening, until the robber walked directly to her and said: “Give me your handbag”, which she was carrying over her right shoulder. She dropped her groceries and handed her handbag to the robber.
The robber was carrying a “little axe” in his left hand,[16] which she described as about 30 cms in length, with a wooden handle.[17] He was waving the axe above her head when demanding that she hand over her handbag.[18]
[16] Transcript 44 line 2
[17] Transcript 44 lines 4-6
[18] Transcript 44 line 10
After the robber had taken her handbag he walked around to the cashier area of the store. By this time the female shop assistant was behind the register. The robber spoke to the shop assistant saying: “Give me the money”. The shop assistant told him that there was no money in the till, at which point he became really angry[19] and began “axing the screens”.[20]
[19] Transcript 46 line 10
[20] Transcript 44 line 36
After the robber had “axed the till” he went behind the cashier. He took hold of the cashier’s arm, twisting it as he swapped places with her at the till. The cashier then opened the Keno till (Ms Harris said it was the Cross-lotto till) saying: “That’s all I’ve got”. While the robber was looking in the till the shop assistant ran down the back aisle.
The robber then spoke to Ms O’Leary saying: “If you move I will cut you, you slut”.[21] He then went behind the cashier and proceeded looking for money.
[21] Transcript 47 line 31
The handbag that Ms O’Leary handed over to the robber contained her iPhone, which was white in colour, with a blue cover.[22] Also contained within her handbag was a purse containing about $100 in $50 notes, some credit cards and her driver’s licence.[23]
[22] Transcript 48 lines 13-17; Transcript 45 lines 35-38; Transcript 46 lines 9-10
[23] Transcript 50 line 5
She could see the robber’s eyes and the skin around his eyes.[24] She thought the robber was Aboriginal.[25] She said that he appeared to look “half-cast” as he wasn’t very dark.[26]
[24] Transcript 50 line 26
[25] Transcript 50 line 22
[26] Transcript 50 line 28
She could see his legs from his knees down[27]and said they appeared “very hairy”.[28]
[27] Transcript 50 line 25; Transcript 51 line 7
[28] Transcript 51 lines 9-12
She said that the colour of the robber’s eyes were blue with specks of green.[29]
[29] Transcript 50 lines 27-30
Ms O’Leary is 5’3” tall and described the robber as being taller than her. She estimated that she stood up to his shoulders.[30]
[30] Transcript 50 lines 31-36
Ms O’Leary was later shown an iPhone by the police. She identified it as her iPhone, but missing its cover.[31]
[31] Transcript 52 line 14; Transcript 53 lines 12-16
She identified a blue iPhone cover,[32] located in the boot of the vehicle Mr Agius was driving when he was arrested, as identical to her iPhone cover.[33] The cover was part of a wine promotion for “Steeple Jack”. The back cover had “Steeple Jack”[34] imprinted on it which made it indistinguishable to her.
[32] Exhibit P15
[33] Transcript 163 line 23
[34] Transcript 163 lines 12-30
She said that Shane Agius is the partner of her friend Shae Kretschner.[35] She met Mr Agius once about 10 years earlier, although she had seen photos of him on Shae Kretschner’s Facebook.[36]
[35] Transcript 53 lines 36-38
[36] Transcript 53 line31-Transcript 55 line 3
She said that Shane Agius had brown eyes. She said the colour of Shane Agius’ eyes were different to that of the robber, which were blue-green.[37] The eyes of the robber were also round in shape.[38] She described Mr Agius’ eyes as more “slanty” than the robber’s eyes.[39] In her view, the robber’s eyes were clearly different to those of Mr Agius,[40] although the robber was of the same build as Mr Agius.[41]
The Somerset Hotel hold up
[37] Transcript 53 line 29
[38] Transcript 55 line 17
[39] Transcript 55 line 13
[40] Transcript 55 line 21-25
[41] Transcript 55 lines 18-20
David Curypko
At about 1.45am on 1 July 2012, David Curypko was working as a security guard at the Somerset Hotel on Bridge Road, Para Hills.
A man approached the front doors of the hotel and said: “Open the fucking door”. Mr Curypko was behind the doors which were locked.
The man was wearing a cap under a hood, which was dark in colour. The “hoodie” had long sleeves. The man was also wearing a face cover, a dark coloured bandana with little marks on it.[42] He could not see the man’s eyes because they were covered by the bandana.
[42] Transcript 58 lines 37-38
He said the man had something in his hand, which looked like a tomahawk or a small axe, with a rag or towel covering it.
He estimated the height of the man as being about 6’ to 6’1” and of normal build.[43] He was able to estimate the man’s height from the height markers on the front doors.[44]
[43] Transcript 61line 5-8
[44] Transcript 66 lines 12-22
Realizing something was about to unfold he radioed the duty manager and asked him to call the police. The man then repeated the words: “Open the fucking door”, only in a louder voice. Mr Curypko then noticed an arm come up and something “go crack into the window”.
Mr Curypko ran into the Gaming Room to warn the patrons of what was happening. Whilst in the gaming room he heard the window to the front door being “chopped down”.
Whilst he was on the phone to his manager and the police he heard the robber say: “Give me the money” to the barmaid behind the Gaming Room bar. The robber then repeated: “Give me the fucking money”. He could hear a lot of screaming coming from the patrons.
Jacqualine Malpass
Jacqualine Malpass worked at the Somerset Hotel as a bar attendant. On the night of 30 June 2012 and into the early hours of 1 July 2012 she was working in the Gaming Room.
At about 1.55 am on 1 July 2012 she was at the till bundling money in rubber bands[45] as the hotel was about to close for the night.[46] The money was bundled in their respective denominations and in stacks of 10.[47]
[45] Transcript 74 lines 1-2
[46] Transcript 68 lines 1-2
[47] Transcript 72 lines 23 to Transcript 73 line 5
At that time she heard banging and then the security guard yell: “You’re not coming in”. She walked down to the other end of the bar, by which time the security guard ran in and said: “Everybody get down, there’s a guy smashing his way in with an axe”. She then crawled her way underneath the bar and activated the emergency hold up button.
After activating the alarm she stood up to find that the robber was standing directly in front of her, on the other side of the bar. She estimated the robber to be approximately 6’ tall, by reference to the height of her boyfriend, who was 5’11” tall.[48]
[48] Transcript 77 lines 18-26
The robber was wearing a long sleeved black hoodie, which was covering his face. He also had a white bandana over his face so only his eyes were visible. The bandana was bright white with a black pattern, like a “Celtic” design.[49]
[49] Transcript lines 69 18-21
The colour of the robber’s eyes were “brown ... like black-brown ... really black eyes”.[50] The shape of his eyes were long and thin.[51] They were not very big and were not round.[52] His skin was very smooth under the eyes and “brown ... dark-brown” in colour.[53]
[50] Transcript 69 line 35 to Transcript 70 line 1
[51] Transcript 70 line 11
[52] Transcript 70 lines 7-10
[53] Transcript 70 lines 2-5
The robber said: “Give me the money”.
He was holding an axe in his hand which she indicated as being about 30 to 40 cms in length, with a brown handle and red axe head.[54] He then swung the axe striking the bar.[55]
[54] Transcript 69 lines 11-14
[55] Transcript 69 line 15; Transcript 75 lines 33 to Transcript 76 line 6
She instantly opened the till and, as she had been instructed by her employer, went to hand the money to the robber.
As she opened the till she started to bundle the money to hand over to him. Instead of handing over the money she handed the till to the robber.
The robber calmly removed the money from the till and placed it into a bag he was carrying. The bag was “a school bag ... like a backpack”[56], navy blue in colour with a yellow pocket at the front.[57]
[56] Transcript 70 line 35; Transcript 71 lines 3-4
[57] Transcript 70 lines 32-33
While the robber was placing the money into his bag he pointed to the Keno till and told her to open that till as well. She placed the Keno till onto the bench top. The robber then removed the money from the till and placed it into the backpack.
The robber then told her to go to the till at “the other end of the bar”. When she arrived at that till the robber swung the axe striking the bar.[58] This shocked her, causing her to hold onto the open button until the till opened, revealing there was no money inside. The robber then mentioned and pointed to a “tiny teller”, which she told him was closed. The robber then walked out of sight.
[58] Transcript 75 lines 7-8; 75 lines 19-32
She then heard a woman say something and the robber shouted at that woman to give him her bag. She heard the woman say: “No, you can’t take my handbag” and then he said: “Give it to me”.
Anna Schmerl
Anna Schmerl arrived at the Somerset Hotel at about 1.00 am on 1 July 2012 with her partner Brian Beneke, to play on the poker machines.
Whilst she was in the gaming room a security guard entered and began yelling “Someone’s breaking in, they smashed the front door with an axe”. She decided to stay next to her poker machine.
She then saw the robber running towards the cashier and yelling at the cashier to give him the money.
The robber then came towards her. She was holding her handbag in her hand and also a bucket containing one dollar coins for the poker machine.
The robber demanded she hand over her handbag to which she responded: “Don’t take my handbag, but you can take my money”. The robber then raised the axe and said: “Give me the bag”.[59] She then handed him her handbag and also gave him the bucket of coins she was holding. The bucket contained between $170 and $180 in one dollar coins.[60]
[59] Transcript 81 lines 21-22
[60] Transcript 81 lines 22-35
Her handbag contained her wallet, various cards, car keys, mobile telephone and other personal items. There was $70 in her wallet comprising of a $50 and $20 note.[61]
[61] Transcript 82 lines 4-12
The axe the robber was wielding was not big and measured about two feet in length. She recalled the axe was still in its plastic covering.[62]
[62] Transcript 82 lines 13-20
The robber was wearing a hood that covered his eyes and mouth. She described it as “one of those balaclavas”.[63] The balaclava covered his face, except for his eyes and mouth. She thought the balaclava was light in colour because she could see his eyes and the skin around his eyes as well.[64]
[63] Transcript 79 line 32-34
[64] Transcript 81 lines 1-3
He was wearing a hooded jacket which was dark in colour, and black tracksuit pants.[65]
[65] Transcript 79 line 36 to Transcript 80 line 1
His eyes were dark, as was the skin around his eyes.[66]
[66] Transcript 81 lines 4-7
The robber was 6’1” in height, being slightly taller than her partner Brian Beneke,[67] and of slight build.[68]
[67] Transcript 81 lines 13-14; Transcript 85 lines 4-11
[68] Transcript 81 lines 15-16
Brian Beneke
Brian Beneke was as the Somerset Hotel with Ms Schmerl. He was watching her play the poker machine at the time of the robbery.
As the robber was on his way out of the hotel he suddenly appeared on Mr Beneke’s left-hand side. The robber yelled at him: “Give me your wallet”. Mr Beneke told the robber to “fuck off”. The robber again demanded: “Give me the wallet”. He replied: “I don’t have one”.
There was then a “pregnant pause” where they both looked each other in the eyes. He observed that the robber’s eyes were dilated and quite wide.[69] The skin around the eyes was noticeably dark.[70] He could also see that the bridge of the robber’s nose was “quite wide ... a thick set nose”. From the appearance of the nose he formed the view that the robber was Aboriginal.[71]
[69] Transcript 87 lines 7-9
[70] Transcript 87 lines 10-11
[71] Transcript 87 lines 11-23
He thought the robber was wearing a ski mask, or a scarf, covering most of his face,[72] which was greyish in colour with spots or checks over it.[73] The robber was wearing a tracksuit top with a hood and matching tracksuit type dark coloured pants.
[72] Transcript 87 lines 32-38
[73] Transcript 88 lines 2-4
The robber was about 181-182 cms in height. He estimated the height by comparison to his own height of 180 cms, the robber being a centimetre or two taller than he.[74] The robber was of medium build.[75]
[74] Transcript 89 lines 1-4; Transcript 89 lines 21-24 (“Yeah that would be my guess” at line 24)
[75] Transcript 89 lines 13-18
The robber then turned to Ms Schmerl and demanded her purse. Ms Schmerl replied: “No, no, no”. Ms Schmerl had some coins and she said: “Take this”. The robber repeated: “Give me the bag” and pulled at her handbag.
Mr Beneke held one of the handles of the bag as did Ms Schmerl. The robber then raised the axe in a threatening gesture saying: “Give me the fucking bag”. At that point both he and Ms Schmerl let go of her handbag. The robber then placed Ms Schmerl’s handbag in a sports style bag he was holding in his left hand, before walking away.
The sports style bag the robber was carrying was greyish in colour. The tomahawk the robber was carrying was between 30 - 40 cms in length. The axe head was silver in colour and the handle had plastic wrapped around it; giving it the appearance of being new.
Michael Colagiovanni
Michael Colagiovannvi was the duty manager at the Somerset Hotel at the time of the robbery.
He became aware of the robbery when he looked at the CCTV screen inside his office, after hearing banging noises and the security guard yelling at the robber.
He observed that the robber was wearing a bandana, which was black and white in colour and covering his face.
After the robber entered the hotel Mr Colagiovanni exited the hotel and called the police using his mobile telephone.
The robber then ran past him as he left the hotel. The robber was wearing a dark navy or black Adidas hoodie, with three stripes along the side.
The robber was carrying a cup of coins in his hand some of which fell out of the cup as the robber was running away from the hotel.[76]
[76] Transcript 93 lines 29-36
The robber ran towards the corner of Todd and Goodall Roads across from the hotel[77] where he entered the front passenger seat of a car.[78]
[77] Transcript 93 line 3
[78] Transcript 94 line 33; Transcript 100 lines 18-20
Mr Colagiovanni described the car as a black Commodore[79] which he believed to be a VX model.[80] The Commodore was fitted with “low profile” tyres[81] and “shiny, aftermarket chrome look wheels”.[82] He thought the wheels had five or six spokes around the rims.[83] He drew a picture of the wheels with six spokes, for the police, which became Exhibit P4. He said that he is familiar with cars as he ran a car club for about five years.
[79] Transcript 95 line 5
[80] Transcript 95 line 5-7
[81] Transcript 96 lines 12-13
[82] Transcript 95 lines 21-32
[83] Transcript 95 lines 33-34
He was shown photographs 20 and 21 of Exhibit P2, which he described at first as a VX Commodore, then as a VY Commodore.[84] He said that VX and VY model Commodores are fairly similar in appearance, with the only difference being the front and tail lights - the VX model having more rounded tail lights.[85]
[84] Transcript 99 lines 3-13
[85] Transcript 99 lines 15-26
He said that the wheels shown on the Commodore in photograph 20 were “fairly similar” to the wheels on the Commodore the robber entered. The only difference being there were five spokes on the wheels of the Commodore in photograph 20,[86] and there were six spokes on the wheels of the Commodore the robber entered.
[86] Transcript 99 lines 27-38
Mr Colagiovanni made his observations of the Commodore from a distance of about 30 metres.[87] At that time the Commodore was rolling forward along the road and its lights were switched off. However, as the Commodore drove along Goodall Road, its lights were turned on and Mr Colagiovanni could then see it “pretty well”.[88]
[87] Transcript 100 lines 9-10
[88] Transcript 95 lines 16-17
In cross-examination, when asked to confirm if the Commodore was black in colour, he answered: “Dark, black, yes”.[89] When asked by me to clarify whether the car was dark or black in colour he replied: “It was dark but it was dark at night so I couldn’t tell”.[90]
[89] Transcript 101 lines 16-18
[90] Transcript 101 lines 226-23
After the hold up Mr Colagiovanni balanced the hotel books and discovered that $3,600 was stolen from the hotel.[91]
[91] Transcript 100 lines 24-28
Crime scene examination
Sergeant Stephen Hunt was the crime scene investigator who attended at the Somerset Hotel following the hold up. He conducted an examination of the scene and took a series of photographs, marked Exhibit P2. He also collected samples of glass from the hotel foyer.
He located a shoe mark impression on the broken glass door. The impression was produced following the application of fingerprint powder to the surface of the broken glass door when examining it for fingerprints. The impression was photographed and later enlarged.[92]
[92] Exhibit P17 was an enlarged copy of photograph 19 of Exhibit P2 showing a close up view of the shoe print impression.
He also took a series of photographs of the maroon coloured Holden Commodore which Mr Agius was driving at the time of his arrest. In the boot of the Commodore was a backpack, which was photographed.
Photograph 45 of Exhibit P2, showed the backpack in the boot of the Commodore, as well as what appeared to me to be a blue iPhone cover. The iPhone cover was not seized at the time by police. Detectives Stendt and Ward returned to the Police Compound at Ottoway, on 9 July 2013 during the trial, and retrieved the blue iPhone cover from the boot of the Holden Commodore.[93]
[93] Exhibit P16
The blue iPhone cover (Exhibit P16) was later identified by Ms O’Leary as being identical to the cover that was on her white iPhone when it was stolen from her. She was able to positively identify the cover by the writing on the back of it.[94]
[94] Transcript 163 line 12
Mr Agius’ Arrest
Senior Constable Glen Matthews and Constable Daniel Nair were on uniform mobile patrol on 2 July 2012. At 10.25 pm they observed Mr Agius driving a maroon Holden Commodore sedan, registration number XX-598C, south along Port Wakefield Road at Parafield Gardens.
The Commodore collided with other vehicles on Port Wakefield Road. Following the collision Mr Agius exited the Commodore and ran off. He was chased on foot by Senior Constable Matthews and Constable Nair and arrested.
I have not reasoned that Mr Agius’ flight after the collision was the result of a consciousness of guilt of having committed the hold ups. There are many reasons for Mr Agius wanting to flee the scene, other than through a realization of his guilt in relation to the offences with which he stands charged. For example, he had only recently cut off his home detention bracelet and in his own words, was “on the run”. He was also on parole at the time he cut off his bracelet.
When Mr Agius was arrested he was wearing:
·a black Adidas hooded top, with white stripes on the arms and hood;[95]
·dark coloured jeans;[96]
·a black “bum bag” or waist bag was around his waist;
·a pair of Nike “shox” shoes;[97]
·a bandana tied around his neck with a knot at the back;[98] and
·a pair of gloves with padded sections on the front of the palms and fingers, with a Velcro tab at the base.[99]
[95] Exhibit P12
[96] Exhibit P13
[97] Exhibit P11
[98] Exhibit P9
[99] One of the pairs in Exhibits P10 and P14
Inside the waist bag was a white iPhone,[100] and another two pairs of gloves.
[100] Transcript 151 line 20
Constable Nair confirmed the two pairs of gloves, marked Exhibit P10, looked very similar to the ones that were found in Mr Agius’ waist bag.
The gloves that Mr Agius was wearing had a “Velcro tab over the top of them and some type of reinforcing on the palm”.[101]
[101] Transcript 151 line 10
Mr Agius was then conveyed to the Elizabeth Police Station where the waist bag, bandana, gloves and shoes were removed from him by Constable Nair and placed onto the charge counter.
While at the police station Constable Nair observed that Mr Agius’ pupils were “very dilated” and that he appeared to “be on some type of drug”.[102]
[102] Transcript 149 line 38 - Transcript 150 line 9
After Mr Agius was searched at the police station he complained of chest pains and was taken to the Lyell McEwin Hospital before being returned to the cells at the Elizabeth Police Station.
Detective Sergeant MacRae was the investigating officer in relation to the hold ups. He attended upon Mr Agius at the Elizabeth Police Station cells on the morning of 3 July 2012, after Mr Agius had returned from the hospital.
Mr Agius was asleep at the time and had to be woken. He was incoherent and seemed quite groggy. This is consistent with Mr Agius using amphetamines and having not slept over the preceding days, as he said in evidence. Detective MacRae determined that it was not appropriate to interview Mr Agius at that time.
Whilst at the Elizabeth Police Station Detective MacRae was handed an amount of cash seized from Mr Agius. The cash totalled $1,860 and comprised 22 $50 notes, 22 $20 notes, 13 $10 notes and 38 $5 notes. This money was located on Mr Agius when he was being treated at the Lyell McEwin Hospital. The money was found rolled up inside a foam cup which Mr Agius was holding in his hand at the hospital.[103] The money inside the cup was held together in two rubber bands.
[103] Agreed Fact 12 of Exhibit P25
Mr Agius’ police interview
The following day Detectives MacRae and Roberts interviewed Mr Agius in relation to the hold ups.
During the interview, Mr Agius stated:
1He could not remember anything that happened in the preceding nights. He could only remember waking up in the Remand Centre.[104]
[104] Question 50 ROI
2He had been using amphetamines (which he referred to as “gear”) and was still coming down from them.[105]
[105] Question 51 ROI
3He had been “scattered” since he went “on the run”.[106]
[106] Question 53 ROI
4He had been “whacking ... drugs” and he “can’t remember nothing”.[107]
[107] Question 54 ROI
5He did not commit any offences[108]
[108] Question 64 ROI
6The only thing he could remember of the previous days was being at the hospital. When asked how he could state that he did not commit any offences if he could not remember he responded: “Cos I know”.[109]
[109] Questions 65, 77 ROI
7He guaranteed that he could remember where he was but he was not prepared to tell the police.[110]
[110] Questions 68-70 ROI
8His memory was of being in a “Mario game” (a computer game).[111]
[111] Question 76 ROI
9He was not working at that time.
10His explanation for the $1860 cash found on him was: “It’s all my woman’s money for my son’s lay-buys which comes to a $1000 for Christmas”.[112]
11The money came from his partner because she saves.[113] He was also saving money for his son’s lay-buy,[114] which he saved from his pay and money given to him by his mother.[115]
12He was saving money behind “his woman’s back” for his son’s lay-buy.[116]
13His mother had been giving him money.[117] She had given him about half of the money found in his possession with the other half coming from his own savings.[118]
14He was getting drugs off his mates and was not paying for it.[119]
15He did not spend any money on drugs whilst he was “on the run”.[120]
16He was having a shot of amphetamine every hour.[121] He was using half a gram of amphetamine every hour,[122] the entire time he was “on the run”.[123]
17He never paid for the drugs that he was using even though it would have cost a significant amount of money.[124]
18When asked who owned the black jacket that he was wearing at the time of his arrest he answered: “I don’t know”.[125]
[112] Question 81 ROI
[113] Question 83 ROI
[114] Question 94 ROI
[115] Question 96 ROI
[116] Question 112 ROI
[117] Questions 123-127 ROI
[118] Questions 127-128 ROI
[119] Question 99 ROI
[120] Question 97 ROI
[121] Question 100 ROI
[122] Question 103 ROI
[123] Question 104 ROI
[124] Questions 107-112 ROI
[125] Question 130 ROI
Thereafter he declined to answer any further questions: “Because I’m spinning out, because I’m still coming out, I don’t know what to believe, I don’t know what to think so I don’t want to talk”.[126]
[126] Question 140 ROI
During his interview Mr Agius stated that he was on parole, had cut off his home detention bracelet and was “on the run”. I have not reasoned from any of these matters, either alone, or in combination, that he is the sort of person who would be likely to commit the offences for which he stands charged. Nor have I drawn anything adverse against him for exercising his legal right to decline to answer any further questions during his interview with police.
Forensic evidence
Doctor Kasper
Doctor Marta Kasper, a forensic scientist employed by Forensic Science SA, gave evidence of DNA profiling obtained from samples taken from the bandana worn by Mr Agius.
On the inside of the bandana a presumptive test for the presence of amylase (a substance found in high quantities in saliva as well as in faeces and in breast milk) returned a positive result.
Notes on the case file indicated that no faecal like staining was observed on the bandana, so as to exclude faeces as the source of the amylase. Likewise, there was no notation on the case file indicating staining consistent with breast milk, another possible source of amylase.
A portion of the bandana which had tested positive for amylase was cut and tested. A DNA profile was obtained from this cutting. There was only one contributor of the DNA sourced from this cutting. When compared to the DNA profile obtained from Mr Agius’ reference sample[127] it was greater than a billion times more likely to have been deposited on the bandana if he was the contributor of that DNA.
[127] A buccal swab was taken from Mr Agius after his interview on 4 July 2012 and submitted to Forensic Science SA on 23 August 2012. Agreed Fact 15 of Exhibit P25
The significance of this evidence, on the prosecution case, relates to the possibility that the DNA originated from Mr Agius’ saliva. The prosecution submitted that if Mr Agius’ mouth came into contact with the bandana that would explain the presence of amylase on the bandana.
Another area of the inner surface of the bandana was tested for amylase. A tapelift taken from this resulted in a mixed DNA profile of two contributors. Once again, when Mr Agius’ reference DNA profile was compared to the DNA profile obtained at this location it was greater than 100 billion in favour of Mr Agius being the major contributor of the DNA at this location.
A tapelift was taken from the knot and ties on the bandana and tested for DNA. Here there was a mixed DNA profile of three contributors. When compared to Mr Agius’ reference profile it was greater than 100 billion times in favour of Mr Agius being the major contributor of the DNA sourced from the tapelift.
The evidence of Dr Kasper had little weight in the overall circumstantial case against Mr Agius, as he was wearing the bandana around his neck at the time of his arrest. As the defence submitted, the presence of other persons DNA on the bandana indicated that it was handled by others and not solely by Mr Agius.
As already mentioned, the only significance of the DNA evidence related to the presence of amylase on the bandana from which the DNA was sourced.
Sergeant Sheldon
Sergeant Sheldon is an experienced crime scene investigator. He viewed Exhibits P5 and P6, the CCTV footage of the hold ups at the Somerset Hotel and the IGA Supermarket.
In order to assist with a direct comparison Sergeant Sheldon produced still images of the robber taken from the CCTV footage at the Somerset Hotel and IGA Supermarket. Sergeant Sheldon next placed items of clothing Mr Agius was wearing at the time of his arrest[128] onto a mannequin, in poses similar to that of the robber depicted in stills taken from the CCTV footage.[129]
[128] The Adidas hoodie (Exhibit P12), bandana (Exhibit P9), and backpack (Exhibit P8).
[129] The trousers placed on the mannequin were not those seized from Mr Agius and there were no shoes on the mannequin. Sergeant Sheldon explained the reason for this being that he was not attempting to make any comparison with the trousers or the shoes as the CCTV footage of these items of clothing was not definitive enough.
The comparative chart prepared by Sergeant Sheldon clearly depicted the close similarities between the two images.[130]
[130] See Exhibit P17
Sergeant Sheldon also undertook comparative work of a left shoeprint impression lifted from the Somerset Hotel,[131] with the shoeprint impression of the left shoe Mr Agius was wearing at the time of his arrest.[132]
[131] Exhibit P17
[132] Exhibit P10
Sergeant Sheldon produced a chart demonstrating the comparison between the crime scene shoeprint impression, an inked impression taken from Mr Agius’ left shoe and Mr Agius’ left shoe itself.[133]
[133] Exhibit P18
Sergeant Sheldon was unable to say that Mr Agius’ left shoe definitely left the shoeprint impression at the crime scene. However, it did reveal that Mr Agius’ left shoe “certainly could have made that mark”.[134]
[134] Transcript 174 lines18-20
The comparison revealed that the circles on the sole of the shoeprint left at the crime scene corresponded in shape and size to the shoe print impression taken from Mr Agius’ left shoe.[135]
[135] Transcript 176 line 8 and Exhibit P18
It was Sergeant Sheldon’s opinion that from an examination of the comparative shoeprint impressions he could not see anything which would exclude the shoes worn by Mr Agius from having made the crime scene impression.[136]
[136] Transcript 176 lines 13-22
He agreed in cross-examination that he was unable to say definitively that Mr Agius’ shoe produced the shoeprint impression left at the crime scene. [137] He did not, however, detect any “accidental” (or distinguishing) features of the shoeprint impression at the scene that would exclude the left Nike shoe worn by Mr Agius.[138]
[137] Transcript 176 line 31
[138] Transcript 178
In cross-examination he was also asked to consider a number of features or differences between the crime scene shoeprint impression and the inked impression taken from Mr Agius’ shoe. He did not consider any of the differences between the circle reproductions depicted in the crime scene impression and those displayed in the inked impression taken from Mr Agius’ shoe as being of any significance.
Sergeant Sheldon noted a number of variables which may have accounted for the differences in the two shoe print impressions.
First, Sergeant Sheldon stated that when he takes an impression from a seized shoe he will actually wear the shoe to make the impression. It is unlikely that he would step in the exactly the same way as the person who left the crime scene impression. Experience also suggested that impressions could be slightly different depending on a person’s weight distribution, in addition to the possibility of there being an artefact on the surface of the glass which could result in “distortion” of the impression.
Secondly, the unevenness of the broken glass surface might account for some of the variations in the size and shape of the circles as seen in the crime scene impression.[139]
[139] Transcript 184 lines 24-29
Thirdly, the procedure taken in the production and enhancement of the impression could result in differences. For example, the crime scene impression was produced by fingerprint powder. The differences in the crime scene impression could be the result of more fingerprint powder present on the surface of the glass which might explain why particular circles appear to have a wider border than the inked impression he took of Mr Agius’ shoe.[140]
[140] Transcript 181-182
Despite these variables, his opinion remained that there was no major damage evident on Mr Agius’ shoe which ought to have been reproduced on the crime scene impression such that it could exclude Mr Agius’s shoe as having produced the crime scene impression.[141]
[141] Transcript 182 line 11
Put simply, Mr Agius’ shoe could not be excluded as having left the impression at the crime scene based on the strength of the shoeprint comparison.
Kareana Uern
In the CCTV security footage taken from the Somerset Hotel the robber is seen smashing his way through the front glass doors of the hotel. The backpack he is carrying in his left hand is open. Broken glass can be seen being dispersed as he forces his way into the foyer of the hotel. In these circumstances, glass fragments could be expected to have been deposited inside the open backpack. Samples of the broken glass doors were collected from the Somerset Hotel.[142]
[142] Transcript 115 lines 30-36
Kareana Uern is a forensic scientist employed at Forensic Science SA. She conducted an examination of the backpack.[143]
[143] Exhibit P8 - Statements of Kareana Uern dated 4 October 2012, 27 November 2012 and 6 December 2012
The backpack was found to contain more than 100 glass fragments inside of it.[144] Ten of the largest glass fragments recovered from the backpack were examined and compared to a sample of glass taken from the smashed door at the Somerset Hotel.
[144] Ibid - Statement of Kareana Uern dated 6 December 2012 at 2.2
In her opinion, the glass fragments in the backpack had indistinguishable reflective index values to those of the sample of glass taken from the Somerset Hotel door and therefore could have originated from that source.[145]
[145] Ibid - Statement of Kareana Uern dated 6 December 2012 at 3.2
The Defence Case
Mr Agius gave evidence in his defence and also called his auntie, Amber Agius. He was under no obligation to give or call evidence. His evidence is not to be undervalued simply because he is an accused person. In assessing his evidence I do so as I would assess the evidence of any other witness.
By giving evidence Mr Agius does not assume any onus of proof. As I said earlier, the onus is solely upon the prosecution throughout to prove the charges against Mr Agius beyond reasonable doubt.
Even if I were to reject the evidence of Mr Agius and that of his auntie, it would not follow that I would find him guilty of the charge. I can only do so, if taking into account the whole of the evidence, I am satisfied beyond reasonable doubt, that the prosecution has proved the identity of the robber in each hold up to be Mr Agius.
The Evidence of Shane Agius
Mr Agius was aged 20 years when he gave evidence.
At the time of his arrest on 2 July 2012 he that said he was “on the run”. He cut off his home detention bracelet and left his grandmother’s address. It was an agreed fact that he removed his home detention bracelet at about 5 pm on 29 July 2012.[146]
[146] Transcript 328 lines 11-16
Explanation for the clothing, backpack and iPhone
Mr Agius agreed that he was wearing the black Adidas hoodie top, the bandana, a pair of white Nike shoes and gloves at the time of his arrest.
He said that he found those items of clothing on the side of a road at Salisbury North.[147] He said he was driving to his auntie’s house at Paralowie when he saw a number of bags “sitting on the side of the gutter”.[148]
[147] Transcript 236 line 2
[148] Transcript 236 line 34 -237 line 1
One was a red, white and blue chequered bag, another was a brown coloured “suitcase” and the third, a backpack.[149]
[149] Transcript 237 line 4
It was towards “night time, just gone dark” when he noticed the bags on the side of the road.[150] He was driving his grandmother’s maroon coloured Commodore at the time.
[150] Transcript 237 line 9
He stopped and inspected the bags because he “just seen the bags and I wanted to check them out, yeah”.[151]
[151] Transcript 238 line 4
Inside the backpack was a jumper,[152] Nike shoes, a bandana, an iPhone and two pairs of gloves.[153]
[152] The black Adidas hooded top Exhibit P12
[153] Transcript 238 line 6. At Transcript 244 lines 1-6 Mr Agius confirmed the iPhone was found inside the backpack.
One of the pairs of gloves the police located on him, being the black pair, were his own gloves.[154]
[154] Transcript 238 line 10
When he found the bags he simply “chucked them in the boot and the little one (the backpack) I chucked in the car and it went from there”.[155]
[155] Transcript 238 line 21
He was taken to photograph 44 of Exhibit P2, which depicted the bags in the boot of the car. He said the cans of Wild Turkey bourbon and coke shown in the boot, and also in the brown bag, were purchased by him from a hotel in Elizabeth South, sometime after he had found the bags on the side of the road.[156] During cross-examination he confirmed that he purchased this alcohol on the way back to his mate’s house after coming across the bags on the side of the road.[157]
[156] Transcript 239 lines 3-9
[157] Transcript 293
He also said he moved the cans from inside the car because they were “rolling around and coming under his feet” while he was driving. He said that he just “chucked them in the brown bag” in the boot.[158] This necessitated him having to stop the car and physically remove the cans from the inside of the car and place them into the boot.
[158] Transcript 243 line 22
When he found the bags on the side of the road he said he did not look inside them. Instead, he put them in the car, and returned to his mate’s house.[159] He said he was not expecting to find anything inside the bags but he wanted to have a look to see what was in there anyway.[160] The backpack was zipped shut when he found it on the side of the road.
[159] Transcript 268-269
[160] Transcript 267
After he found the bags he changed his mind about continuing to his auntie’s house,[161] because his “head was everywhere”.[162]
[161] Transcript 266 lines 3-15
[162] Transcript 264 line 3
When asked whether he considered it would have been better not to risk driving and possibly being arrested, he said he did not think about that as he wanted to speak to his auntie. When cross-examined he said he wanted to see his auntie “face to face” and did not want to speak to her over the telephone, as he needed to speak to her about something,[163] and decided to drive there.
[163] Transcript 274
The day he was arrested by the police he said he was “driving around anywhere”. He said he was “all over the place” and that he was seeing things. At that time he was not thinking about being apprehended by the police because of the large amount of amphetamine he had consumed and the fact that he had not slept over a period of days.[164]
[164] Transcript 274
When he returned to his mate’s house after finding the bags he had a look inside them.[165] He first noticed the jumper in the backpack and when he pulled that out he noticed the rest of the items inside the backpack.[166] Inside the large chequered bag were some children’s clothes and the other bag was empty.
[165] Transcript 268-269
[166] Transcript 268
He said he removed the clothing and the iPhone from inside the backpack and then went inside. He changed into the clothes once inside his mate’s house. He did not tell his mate what he had found. He did not recall whether he told his mate that he found the three bags on the side of the road. His said his mate did not ask him why he was wearing an Adidas hoodie or had a bandana around his neck. In fact he said his mate did not ask him any questions at all.
He said that when he changed into the clothing he found inside the backpack, the clothes that he was wearing at that time were placed inside the car. He said the clothes should still be in the car, either in the back seat or the in the boot.
He said the pair of jeans that he was wearing when he was arrested were “probably already in the car from when he was released from prison”.[167] He did not know that his jeans were in the boot of the car when he left his grandmother’s house after he had cut off his home detention bracelet.[168] It was only when he opened the boot of the car at his mate’s house, after returning there with the bags, that he first noticed the pair of jeans.
[167] Transcript 279 line 36
[168] Transcript 280 lines 12-17
In relation to the Nike shoes he was wearing, which he claimed he found inside the backpack, he said they were a bit big for him and felt uncomfortable but he decided to wear them nonetheless, because it was cold.
When asked to look at the bandana in Photo 40 of Exhibit P15 he said he did not tie the bandana in a knot as it appeared in the photograph. It was already tied in a knot when he found it inside the backpack. He said he slipped the bandana over his head[169] and wore it around his neck. He chose to wear the bandana around his neck and not on his head. He said one can wear a bandana around the neck “sideways, straight, whatever way you want it really”.[170] He said he chose to wear the bandana “because it was fashion”.[171]
[169] Transcript 284
[170] Transcript 285 lines 25-38
[171] Transcript 285 line 6
He was asked about the coins found in the console of the car. He said it was leftover change from when he purchased things and he just placed the loose change in the console.[172] He said the coins in the console had been placed there during that period following his release from prison on home detention bail on 18 June 2012, until his arrest on 2 July 2012.[173]
[172] Transcript 239 line 27
[173] Transcript 303-304
Explanation for $1860
Mr Agus admitted that he had no source of income during the period that he was “on the run”.
Mr Agius was in custody from 17 September 2011, until 18 June 2012, when he was released on home detention bail and also parole.
In relation to the $1860 he was carrying at the hospital, he said he used a paper cup from the hospital to place the money inside.[174]
[174] Transcript 240
He said about half of that money came from “one of his mates”,[175] whose name he would not reveal as that mate was a member of a bikie club.[176] That sum of money was given to him on the day he went “on the run”.[177] He said it was given to him about an hour or two after he first arrived at his mate’s house. His mate just handed the money to him saying “take it”.[178] He reiterated that he did not ask his mate for any money, it was simply handed to him.[179]
[175] Transcript 240 lines 12-18
[176] Transcript 240 line 21
[177] Transcript 240 line 25
[178] Transcript 256 line 27
[179] Transcript 257 lines 1-7
The other half of the money was “out of bits that he was saving”.[180] He said he had been saving for his son’s “first Christmas and his [son’s] birthday, lay-buys and that”.[181]
[180] Transcript 241 line 19
[181] Transcript 241 line 21
He said that he had saved about $900 between 18 June 2012, when he was released from prison and placed on home detention bail to the date he removed his home detention bracelet and went “on the run”, being 29 June 2012.
He said his savings came from his Centrelink payments upon release from prison,[182] together with what he already had in his account, as well as his prison earnings. He was also given money by family and friends.
[182] Mr Agius was in prison from 17 September 2011 until his release on parole and home detention bail on 18 June 2012. (Transcript 303 line 3)
In relation to this money he said it was at his auntie’s house so that he would not spend it.[183] His auntie came to his mate’s house at Andrews Farm and handed the money to him.
[183] Transcript 257-259
When detailing how this exchange came about he said that he telephoned his auntie using his mate’s mobile telephone[184] and told her: “I need the money”. He did not tell her how much money he needed because she already knew how much money there was and she would have known that he was talking about all of the money he had saved. He said he gave his auntie his mate’s address, where she was to attend and hand over the money.[185] When his auntie arrived at his mate’s house she stayed outside and handed him the money.[186]
[184] He said his auntie’s mobile telephone number was in his mate’s list of contacts.
[185] Transcript 295
[186] Transcript 298 lines 4-14
Drug use
When Mr Agius told the police in his interview that he was using drugs he said he was getting it from his mate and not paying for it.[187] He was using “a fair bit” every day.[188] He said he had been injecting amphetamines every day that he was on the run.[189]
[187] Transcript 241-242
[188] Transcript 241 line 8
[189] Transcript 242 lines 14-19
He confirmed that he was under the influence of amphetamines at the time of his arrest.[190]
[190] Transcript 242-243
His whereabouts at the time of the hold ups
Mr Agius said that at the time the hold ups took place he was at his mate’s house at Andrews Farm, where he had been since he went on the run. He had known this mate for five or six years, having met him in prison.[191] He said that when he was at his mate’s house he was “lying low, taking gear (amphetamines) and drinking alcohol”, both of which were being provided to him by this mate.
[191] Transcript 249 lines 5-6
Also at his mate’s house at the time of the hold ups were other friends, also bikie members.[192] He refused to name any of them because “with bikie rules you can’t say that, can’t say anything in court or to cops, that’s just the way it is, that’s just the rules”.[193]
[192] Transcript 250 line 1
[193] Transcript 250 line 14
He said he did not remember where he was going on the night of 2 July 2012 when he had the collision on Port Wakefield Road near Martins Road leading to his arrest. He said on the night of his arrest he “started losing it”. He had been in his mate’s house for a long time using amphetamines and couldn’t stand it any longer and had to go out.[194] He said at about that time he also started hallucinating from all the drugs he had consumed and his total lack of sleep since being on the run.[195]
[194] Transcript 290
[195] Transcript 254 lines 4-7; Transcript 274 lines 22-33; Transcript 288 lines 8-20
He said that when he left his grandmother’s house (where he had been staying whilst on home detention bail) he was only wearing a pair of shorts, slip-on shoes and “couldn’t remember what jumper he had on.”[196] He had decided to leave his grandmother’s house because there was conflict between one of his sisters and one of his aunties which he could not deal with, so he decided to leave. He took his grandmother’s car and drove off.[197] When he left home he did so only with the clothes he was wearing and nothing else.
[196] Transcript 251 line 26
[197] Transcript 251-252
As was the case with what Mr Agius said to the police, I indicate that I have not reasoned from his evidence of being in prison, on parole and later home detention bail (from which he absconded), or his association with bikies, that he is the sort of person who is more likely to have committed the offences with which he is charged. The only relevance of this evidence was to enable Mr Agius to explain his movements during the relevant period, why he could not disclose the identity of those he was with and how he was able to save money in such a short period of time.
The Evidence of Amber Agius
Mr Agius called his auntie, Ms Amber Agius, to give evidence in an attempt to support his account relating to his possession of the cash found on him at the hospital.
Ms Agius said that her nephew had given her about $900 to $1,000 asking her “can you hold onto this for my son”.[198]
[198] Transcript 322
She said that she was contacted by her nephew and asked to drive to an address at Andrews Farm to drop some money off for him.[199] She only took between $50 and $80 out of the money that was saved because the rest was put away for his son.[200]
[199] Transcript 323 line 28
[200] Transcript 323 line 30 - Transcript 324 line 5
She said that she did not go to the house that she was meant to go to because she could not find it and instead met Mr Agius on Curtis Road at Smithfield where she handed him between $50 and $80.[201]
[201] Transcript 324-325
Ms Agius’ evidence does not support Mr Agius’ claim that he was handed his $900 savings at the Andrews Farm address his mate lived at.
Analysis of Mr Agius’ evidence
I was not impressed by the evidence of Mr Agius. Not only was his evidence of finding the clothing, obviously worn by the robber, on the side of a road, incredible and totally implausible, but it was apparent that much of his evidence was being constructed as it was being given by him.
Examples include his explanations for:
·why his friend gave him $900 without being asked to do so;
·needing an extra $900 from his auntie;
·needing to personally see his auntie;
·driving his grandmother’s Commodore knowing the police would be on the lookout for him and the car;
·not driving on to see his auntie after he found the bags on the side of the road;
·turning around and driving back to his mate’s house at Andrews Farm;
·placing the bags inside the boot of the car without first looking inside of them;
·wearing all the clothes found inside the backpack, including the bandana as a fashion item, and a pair of shoes, which apparently were too large for his feet;
·finding the pair of jeans in the boot of the car;
·how and where he came to purchase the carton of Wild Turkey cans of bourbon and coke;
·the cans of Wild Turkey bourbon and coke inside one of the bags;
·being in possession of Ms O’Leary’s mobile telephone; and
·Ms O’Leary’s mobile telephone cover and the backpack, both found in the boot of the Commodore driven by him.
Not only was his evidence inconsistent with much of what he told the police about his possession of the $1860 but also inconsistent with the evidence given by his auntie as to where she met up with him and the amount of money she handed over to him. His evidence as to how he saved the $900 and his explanation for the coins in the console of the Commodore also lacks credibility in light of his recent release from prison and the short period he was on home detention bail.
I reject his evidence concerning:
·how he came to be wearing the clothing upon his arrest;
·his possession of Ms O’Leary’s iPhone;
·his possession of the backpack and Ms O’Leary’s iPhone cover, both of which were found in the boot of the Commodore; and
·his explanations for the money found on him at the hospital and the coins found in the console of the car he was driving.
I have considered the absence of the axe, the tracksuit pants worn by the robber and other items stolen from the robberies (including the amount of money stolen) in assessing whether Mr Agius’ evidence is a reasonable possibility. I simply observe that the police were unable to search the address he claims he was staying at whilst he was “on the run”.[202] In any event, such items as the handbags that were stolen can be easily discarded, as was obviously the case with Ms Schmerl’s handbag, which was later handed in at a police station.[203] Further, in the case of the Somerset Hotel, there was at least another offender involved in the hold up, as the getaway driver, which might account for why Mr Agius was in possession of approximately half of the money stolen from the Somerset Hotel.
[202] Mr Agius declined to tell the police where he had been. Questions 67-74 ROI
[203] Transcript 85 lines 13-34
Whilst I have rejected Mr Agius’ evidence, I indicate that I have not reasoned from that that he is therefore guilty of these charges. Nor have I reasoned from my rejection of his evidence that it adds any weight to the circumstantial case against him.
I must still be satisfied by the prosecution evidence as a whole that the evidence establishes the guilt of Mr Agius beyond reasonable doubt.[204]
[204] R v Harris (1990) 55 SASR 321 per King CJ at 323
If there exists a rational explanation for the prosecution evidence which is consistent with innocence, then Mr Agius must be found not guilty.[205]
[205] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82
Was each hold up committed by the same person?
Each of the hold ups were captured on security footage. I have viewed the security footage tendered in evidence,[206] including the various still images produced from the footage.[207] I have also carefully analysed the evidence of the eye witnesses.
[206] Exhibit P5 of the Somerset Hotel and Exhibit P6 of the IGA Supermarket
[207] Exhibits P17, P23 and P24
The robber in each instance is dressed in very similar clothing, namely a black, hooded, long sleeved Adidas top with white stripes along the arms and hood, a pair of grey Adidas tracksuit pants with black stripes along the outer legs, a pair of white shoes, a white and black cloth covering the face, which is very similar in appearance to a bandana, and wearing gloves.
The robber is also armed with a small wooden handled axe in each hold up.
The height and build of the robber appears similar in the footage.
The robber has been described by the witnesses as being of Aboriginal appearance.
The demeanour of the robber in each hold up is very similar, namely that he was aggressive in each. He was prepared to use the axe to damage the till at the IGA Supermarket so as to frighten the shop assistant and later, to force his way inside the Somerset Hotel and then strike the Gaming Room bar to frighten the cashier.
He has also threatened Ms O’Leary with the axe in order to steal her handbag from her at the IGA Supermarket and similarly, with Ms Schmerl at the Somerset Hotel.
The robber was someone who was therefore not only after money from the tills, but was prepared to steal handbags from a shopper at the supermarket and a patron at the hotel.
The hold ups occurred within the space of five hours. They both occurred in the northern suburbs of Elizabeth East and Para Hills. The distance between the two hold ups is approximately 10 kms.
Based on all of the above, I am satisfied beyond reasonable doubt that the robber was the same person in each hold up.
In arriving at this conclusion I have considered Ms O’Leary’s description that the robber’s eyes were blue with specks of green[208] and round in shape.[209] I am of the view that she is mistaken in this regard.
[208] Transcript 50 line 30
[209] Transcript 55 line 17
Ms O’Leary described the robber as being of Aboriginal appearance.[210] Whilst Mr Agius is Aboriginal she also said the robber was wearing shorts longer than his knees[211] and that she could see his legs from his knees down.[212] She said the robber’s legs appeared very hairy.[213] The robber, as shown on the CCTV security footage at the IGA Supermarket and in the stills, is plainly wearing tracksuit pants and not shorts, so Ms O’Leary has been shown to be clearly mistaken in her observation of the robber.
[210] Transcript 50 line 22. At line 28 she also described the robber as “half cast look, he wasn’t very dark”.
[211] Transcript 42 line 5
[212] Transcript 50 line 25
[213] Transcript 51 line 12
Ms O’Leary also gave evidence that she knew Mr Agius. He is the partner of a friend of hers. She did not remember meeting him before but believed she would have met him more than 10 years earlier.[214] However, she said that she had regularly seen photographs of Mr Agius on her friend’s Facebook, as recently as the week before the robbery.
[214] Transcript 54 lines 3-7
She said that Mr Agius’ eyes are brown in colour and “slanty”.[215] I have observed Mr Agius in the dock and his eyes appear dark in colour and their shape is thin or “slanty” as described by Ms O’Leary. She said that the robber’s eyes were round in shape.[216]
[215] Transcript 55 lines 8-14
[216]Transcript 55 line 17
Ms O’Leary’s description of the robber’s eyes has not undermined my view that the same person committed each hold up, or that it creates a reasonable doubt that the IGA robber is not Mr Agius. It is plain from the CCTV footage and the stills that the robber’s face was very well disguised. The robbery was over very quickly and no doubt the experience would have terrified Ms O’Leary, thus resulting in her being mistaken about the shape and colour of the robber’s eyes and his wearing of shorts.
I have also taken into consideration the fact that her iPhone was found on Mr Agius and her iPhone cover located in the boot of the car he was driving only two days after the hold up in concluding that she was mistaken in her description of the colour and shape of the robber’s eyes.
Footage of unidentified male wearing black Adidas hooded top at Somerset Hotel
The CCTV footage of the Somerset Hotel shows a man wearing a similar black Adidas hooded top and white shoes to those worn by the robber. This man was in the company of another person who was using an ATM in the hotel foyer at about 9.30 pm. I am satisfied, on the whole of the evidence, that there is no reasonable possibility that this man was the robber or otherwise involved in the hold up.
Circumstantial evidence case
The essential elements of an offence may be proved by circumstantial evidence.
Circumstantial evidence involves the drawing of an inference.
In this case the identity of the robber as being Mr Agius is based on circumstantial evidence.
As the prosecution case is entirely circumstantial in nature, Mr Agius’ guilt must be the only rational inference which can be drawn from the circumstantial evidence.[217]
[217] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82
When a case against an accused person 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.[218] If an inference or hypothesis consistent with innocence is open on the evidence, an accused person must be given the benefit of the doubt necessarily created by those circumstances.[219]
[218] Barca v R (1975) 133 CLR 82; Doney v R (1990) 171 CLR 207; Chamberlain v R [No2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619
[219] Knight v R (1992) 175 CLR 495
If there is a reasonable explanation for the circumstances which is consistent with innocence, then Mr Aguis must be found not guilty.[220] This is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence.[221]
[220] Knight v R (1992) 175 CLR 495; Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Plomp v R (1963) 110 CLR 234; Thomas v R (1960) 102 CLR 584; Peacock v R (1911) 13 CLR 619
[221] Shepherd v R (1990) 170 CLR 573; Doney v R (1990) 171 CLR 207
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.[222]
[222] Peacock v R (1911) 13 CLR 619; R v Taouk (2005) 154 A Crim R 69
Where the evidence raises a reasonable possibility that the circumstances point to someone other than Mr Agius being the offender, then that possibility must be excluded by the prosecution beyond reasonable doubt.
In determining whether an inference is reasonable, I am to 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.[223] I am not required to analyse each circumstance individually, none of which by itself would support an inference of guilt.[224]
[223] Shepherd v R (1990) 170 CLR 573; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Hillier (2007) 228 CLR 618
[224] R v Van Beelan (1973) 4SASR 353
While guilt must be established beyond reasonable doubt, the individual primary facts used to establish guilt need not themselves each be proved beyond reasonable doubt.[225]
[225] Shepherd v R (1990) 170 CLR 573 at 575 and 585
I do not have to reject one circumstance because, considered alone, no reasonable inference of guilt can be drawn from it. I must consider the weight which is to be given to the united force of all the circumstances put together. One piece of evidence may resolve a doubt about another.[226]
[226] R v Hillier (2007) 228 CLR 618; Shepherd v R (1990) 170 CLR 573; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Van Beelan ( 1973) 4 SASR 353
In some cases it will be necessary to be satisfied beyond reasonable doubt of the facts upon which an inference can be drawn.
Whether or not facts relied upon as a basis for an inference of guilt must be proved beyond reasonable doubt relate only to those cases in which intermediate facts form an indispensible step towards an inference of guilt. Other cases do not require the circumstances to each be proved beyond reasonable doubt, provided guilt is proved by an accumulation of those circumstances.
In Shepherd v R (1990) 170 CLR 573 the High Court drew the following distinction between the two different types of circumstantial cases, when clarifying comments expressed earlier in Chamberlain v R [No 2] (1894) 153 CLR 521
(i)cases in which an accused’s guilt is proved by an accumulation of circumstances in which the individual circumstances need not, of themselves, be proved beyond reasonable doubt; and
(ii)cases in which an accused’s guilt is proved by sequential reasoning, in which the intermediate facts must be proved beyond reasonable doubt.
This distinction has been applied in circumstantial cases ever since.[227]
[227] R v Hillier (2007) 228 CLR 618
This is not a case in which any fact constitutes an indispensible link in a chain of reasoning towards an inference of guilt, such that I would first need to be satisfied of that fact beyond reasonable doubt before such an inference is drawn.[228]
[228] Shepherd v R (1990) 170 CLR 573 at 579
The case presented by the prosecution against Mr Agius is of the former category referred to by the High Court.
I may properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, as long as I reach my conclusion that Mr Agius is the offender beyond reasonable doubt. In other words, I am able to convict Mr Agius as long as I am satisfied beyond reasonable doubt upon the combined force of the circumstantial evidence that Mr Agius was the robber.
It is not for the defence, either to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts that would tend to support such an inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation then an accused is entitled to be acquitted.[229]
[229] Barca v R (1975) 133 CLR 82
Analysis
Many of the primary facts upon which the prosecution case is based were not seriously challenged. Rather, it is the inference to be drawn from the circumstantial evidence as a whole that is in issue.
Mr Agius advanced an alternative hypothesis that innocently explains the circumstantial evidence, namely that he found the clothing and the iPhone in a backpack on the side of the road. He has also provided an explanation for the $1860 found on him. That being half was his savings and the other given to him by a “mate”.
The prosecution must exclude this alternative hypothesis beyond reasonable doubt and any other hypothesis consistent with innocence before Mr Agius can be found guilty.
I am satisfied that the prosecution has done so. I have rejected Mr Agius’ evidence upon which this hypothesis was based.
The overwhelming inference to be drawn from the combined circumstances excludes any explanation consistent with his innocence on the basis advanced by him.
It does not follow from this that his identity as the robber has been established beyond reasonable doubt.
I must still analyse the circumstantial evidence to determine whether the combined force of the circumstances establishes whether Mr Agius’ guilt has been proved beyond reasonable doubt, or put another way, that his guilt is the only rational inference to be drawn from the circumstantial evidence.[230]
[230] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Chamberlain v R [No2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619
Factual findings
Based on the evidence I am satisfied beyond a reasonable doubt of the following facts:
1The IGA Supermarket and the Somerset Hotel were both held up.
2At the Somerset Hotel the robber forced his way into the hotel by smashing the front glass door with an axe, before kicking the glass door down. He was holding an open blue/yellow backpack in his left hand as he entered through the broken glass door.
3At the IGA Supermarket the robber stole a handbag and contents including a white iPhone encased in a blue cover belonging to Ms O’Leary. Also stolen was an amount of cash from the till totalling $326 and nine packets of Horizon brand cigarettes and an empty cash tin.
4At the Somerset Hotel the robber stole from Ms Malpass, the cashier, $3600 contained in the gaming room tills. Also stolen was a handbag belonging to a hotel patron, Ms Schmerl, containing amongst other things, cash in the sum of $70 as well as a cup containing between $170 and $180 in one dollar coins also belonging to Ms Schmerl.
5The robber fled from the Somerset Hotel and was seen to get into the front passenger seat of a black, or dark coloured VX model Holden Commodore being driven slowly along Todd Road near the intersection of Goodall Road, diagonally opposite the hotel. The car had low profile tyres and distinctive aftermarket chrome wheels.
6In each hold up the robber was wearing or carrying:
6.1a long sleeved, black Adidas hooded top with white stripes along the arms and hood;
6.2a pair of grey Adidas tracksuit pants with black stripes alongside the outer legs;
6.3a pair of white shoes;
6.4a white covering over his face, which in the Somerset Hotel hold up is clearly a bandana;
6.5 a pair of gloves, black in colour at the IGA Supermarket[231] and blue with white markings on top at the Somerset Hotel[232] and;
[231] CCTV footage Exhibit P6 and stills Exhibit P23
[232] CCTV footage Exhibit P5 and stills Exhibit P24
6.6a small axe.
7The height of the robber at the IGA Supermarket was estimated by Ms Harris as being between 185 – 187 cms.
8The height of the robber at the Somerset Hotel was estimated to be between 6’– 6’ 1” / 181–182 cms.
9The offender in each case was of Aboriginal appearance or dark skinned.
10The pupils of the robber at the Somerset Hotel were dilated and wide as described by Mr Beneke.
11Mr Agius was arrested at 10.45 pm on 2 July 2012 at which time:
11.1He was driving a maroon coloured VY model Holden Commodore registered to his grandmother. The car was fitted with low profile tyres and had chrome aftermarket wheels with five spokes;[233]
[233] Exhibits P2 and P15
11.2Inside the console of the car was an amount of coins in various denominations totalling $63;[234]
[234] See Exhibit P2 (photos 55-57)
11.3 He was wearing the following items of clothing:
11.3.1a long sleeved black Adidas hooded top with white stripes along the arms and hood;
11.3.2a white patterned bandana tied in a knot around his neck;
11.3.3a pair of dark blue jeans;
11.3.4a pair of gloves on his hands;
11.3.5a pair of white Nike “shox” brand shoes; and
11.3.6a bum bag around his waist.
12Mr Agius is 188 cms tall.
13Inside the bum bag were some gloves. There were three pairs of gloves, including those being worn by Mr Agius. They were a black pair, a dark grey pair and a blue/black pair with white writing on the top of the wrist;[235]
14Inside the bum bag was a white iPhone belonging to Ms O’Leary;
15At the hospital police located $1860 in cash on Mr Agius. The money was in various denominations and wrapped in two rubber bands;[236]
16In the boot of the Commodore was a blue/yellow backpack[237] which contained glass fragments, not excluded as matching the glass of the smashed front door of the Somerset Hotel;
17Alongside the backpack, inside the boot of the Commodore, was a blue iPhone cover,[238] which Ms O’Leary identified as her iPhone cover.
18Mr Agius was using a substantial amount of amphetamine in the days preceding the hold ups.
19Mr Agius was unemployed and had no source of income other than his Centrelink payments and prison earnings.
[235] Exhibits P10, P14, P152 (photos 28-29)
[236] Exhibit P20
[237] Exhibit P2 (photos 45-46)
[238] Exhibit P2 (photo 45)
Analysis of circumstantial evidence
The Adidas hooded top and bandana worn by the robber at the Somerset Hotel clearly match those worn by Mr Agius upon his arrest, and the backpack found in the boot of his car matched the backpack used by the robber. These similarities are displayed in the comparative chart, Exhibit P17, prepared by Sergeant Sheldon.
There were glass fragments inside the backpack matching the glass from the broken door pane at the Somerset Hotel.
A left shoeprint impression found on the broken glass door pane at the Somerset Hotel was not excluded as having been created by the left Nike “shox” shoe Mr Agius was wearing upon his arrest.
A close visual comparison of the shoes worn by Mr Agius and those worn by the robber reveal not only a similarity in colour and shape, but also in the distinctive “shock absorber” style sole.[239]
[239] I have carefully viewed the shoes (Exhibit P11), the CCTV footage (Exhibit P6) and stills (Exhibit P24)
The robber at the IGA Supermarket is seen wearing a pair of black gloves.[240] Mr Agius said that the pair of black gloves found in his possession belonged to him.
[240] See Exhibit P23 and CCTV footage Exhibit P6
The blue/black gloves found in Mr Agius’ possession look similar to those worn by the robber at the Somerset Hotel.[241]
[241] See Exhibit P24 and CCTV Footage Exhibit P5
Mr Agius was in possession of $1860 in cash with a further $63 in coins in the console of the car he was driving when he was arrested.
He was also in possession of Ms O’Leary’s iPhone and her blue iPhone cover was found in the boot of the car he was driving.
Upon his arrest Mr Agius appeared to be affected by drugs. His pupils were dilated. In his interview with Detective MacRae and in his evidence Mr Agius admitted to the heavy use of amphetamines during the period he was on the run, which included the period over which the holds ups occurred. This evidence was admitted as a piece of circumstantial evidence of a possible motive to commit the robberies, in order to obtain money to purchase drugs.[242]
[242] R v Mayfield (1995) 63 SASR 576 per Cox J at 582
It was submitted by the defence that there were features of the evidence which created a reasonable doubt whether Mr Agius was the robber involved in each of the hold ups namely:
·the shape and colour of the eyes of the robber at the IGA Supermarket, described by Ms O’Leary as blue-green in colour and round in shape, are different to that of Mr Agius;
·the colour of the skin of the robber at the IGA Supermarket, described by Ms O’Leary as light brown, compared to the colour of the skin of the robber at the Somerset Hotel, described by Ms Schmerl, Mr Beneke and Mr Curypko as dark;
·the height of the robber at the Somerset Hotel being between 6’- 6’1’’/180 - 182 cms as estimated by Mr Curypko, Ms Malpass, Ms Schmerl and Mr Beneke. The robber was wearing Nike “shox” shoes which have a thick sole and so would have increased his height. It is an agreed fact that Mr Agius’ height is 188 cms while not wearing shoes, and so he is taller than the estimated height of robber at the Somerset Hotel;
·the fact that the Nike “shox” shoes were larger than Mr Agius’ feet;
·the different colour, model and wheels of the Commodore the robber entered after committing the Somerset Hotel hold up compared to that of the Commodore Mr Agius was driving when arrested;
·the absence of Horizon brand cigarettes and the other items stolen during the hold ups; and
·the absence of the grey Adidas tracksuit pants worn by the robber.
I have carefully considered each of these differences. Other than Ms O’Leary’s description of the colour and shape of the robber’s eyes, which I have dealt with earlier when finding her to have been mistaken on this topic, I consider the other differences to be natural in the circumstances. They do not lead to the reasonable possibility that Mr Agius is excluded as being the robber.
For example, it is notorious that height is difficult to estimate. Indeed, that is how the witnesses described the height of the robber, as only being an estimation. Even Mr Curypko, who had the benefit of the height marker on the door, only made an estimation.[243] The witnesses’ estimations of the height of the robber at the Somerset Hotel were not so far off the height of Mr Agius so as to cause me any concern. It is not as if any of the witnesses described the robber as being markedly shorter or taller than Mr Agius.
[243] I note from viewing the CCTV footage that the height indicator was on the opposite door to the one the robber entered.
Further, that the Nike shoes worn by Mr Agius upon his arrest were bigger than his foot size is of little concern. The fact remains that he was wearing them at the time of his arrest, whether they were big for him or not.
Similarly, with the colour, model and wheels of the Commodore the robber was seen to enter as described by Mr Colagiovanni. His observations were made at night time from a distance of 30 metres. His description is not so dissimilar to the Commodore driven by Mr Agius as to exclude that car as the one seen by Mr Colagiovanni. Again, on its own this fact is inconclusive, but when one adds the backpack (with fragments of glass inside matching that of the broken glass door pane), not to mention what Mr Agius was wearing, then it resolves any doubt about the cars being the same.
The absence of the tracksuit pants, packets of cigarettes and the other money and items stolen during the hold ups could be anywhere. For example, they could be with the co-offender[244] who drove the robber away from the Somerset Hotel, or simply discarded.
[244] Mr Agius had approximately half of the money stolen in the Somerset Hotel hold up.
Conclusion
I am satisfied, through the combination of the all of the circumstances outlined above, that the prosecution has proved, beyond reasonable doubt, that Mr Agius was the robber in each hold up.
His identity as the robber is the only rational inference to be drawn from the evidence. There exists no other rational explanation for that evidence other than it proves the identity of Mr Agius as the robber.
Verdicts
Accordingly, I find Mr Agius guilty of all counts on the Information.
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