R v Coe; R v Singh - [2020] NSWDC 567

District Court

New South Wales

Medium Neutral Citation: R v Coe; R v Singh [2020] NSWDC 567
Hearing dates: Coe – 10, 11, 12, 13, 14, 31 August 2020 and 01 & 03 September 2020
Singh – 10, 11, 12, 31 August 2020 and 01 September 2020
Date of orders: 03 September 2020
Decision date: 03 September 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Coe – guilty of count 1 on the indictment
Singh – not guilty of count 1 on the indictment and guilty of the statutory alternative to count 1

Catchwords:
CRIME — Complicity — Joint criminal enterprise
CRIME — Violent offences — Robbery — Circumstances of aggravation
CRIMINAL PROCEDURE — Trial — Alternative verdict
CRIMINAL PROCEDURE — Trial — Judge alone
CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge

Legislation Cited:
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Evidence Act1995
Firearms Act 1996

Cases Cited:
Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
Darestani v R [2019] NSWCCA 248
Fleming v R (1998) 197 CLR 250
The Queen v Phan [2001] NSWCCA 29

Category: Principal judgment
Parties:
Regina (Crown)
Richard Coe (accused)
Shyarlm Singh (accused)
Representation:
Rosheehan O’Meagher (Solicitor Advocate)
Michelle Swift (counsel) (accused - Coe)
Tony Evers (counsel) (accused – Singh)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2019/00220923 (Coe)
2019/00220830 (Singh)

REVISED JudgEment

INTRODUCTION

On Monday, 10 August 2020, Richard Coe and Shyarlm Singh were to appear for trial in the District Court at Sydney to be presented upon an indictment alleging four offences in which they were jointly charged. These were in the following terms.

Count One

On 7 July 2019, at Canterbury in the State of New South Wales, [they] did rob SY of certain property, namely an iPhone 7, AUD$25 and a Commonwealth Bank card, the property of said SY whilst being armed with a dangerous weapon, namely, a firearm or imitation firearm.
This offence was charged pursuant to s 97(2) Crimes Act 1900.

Count Two

On 7 July 2019, at Canterbury in the State of New South Wales, [they] did by deception, that is, by using the stolen bankcard of SY, dishonestly obtain a financial advantage, namely a cab fare for $11.66.
This offence was charged contrary to s 192E(1)(b) Crimes Act 1900.

Count Three

On 7 July 2019, at Canterbury in the State of New South Wales, [they] did by deception, that is, by using the stolen bankcard of SY, dishonestly obtain various food items to the value of $63.44, the property of Budget Petrol, 403 Canterbury Road, Campsie.
This offence was contrary to s 192E(1)(a) Crimes Act 1900.

Count Four

On 7 July 2019, at Canterbury in the State of New South Wales, [they] did by deception, that is by using the stolen bankcard of SY, dishonestly obtain various food items to the value of $104.20, the property of BP Canterbury, 322 Canterbury Road, Campsie.
This offence was also contrary to s 192E(1)(a) Crimes Act 1900.
On this first day the accused Coe appeared from custody, but Singh did not. He had been granted bail at some point and was to travel from Wagga Wagga but suffered car trouble and could not attend until the following day. There were pre-trial issues to be advanced by the accused Coe to be considered before the trial could commence. The accused Singh did not join in those applications.

PRE-TRIAL ISSUES

The accused Coe was represented by counsel who received her brief in the final days of the week preceding the appointed commencement date. She indicated that identification was an issue and intended to oppose the Crown’s tender of images of the accused recovered from the phone seized by police from him when he was arrested. As discussions continued it was apparent that the Crown case against both accused was circumstantial and did not involve any direct evidence of identification of either of them as participants in the robbery.
The circumstances upon which the Crown relies in this case against Coe include the description given by the victim of the person who robbed her, the characteristics of the robber’s incisor teeth, and comparable features of the accused’s teeth depicted in the challenged images. There was no evidence that the victim was shown the accused in an identification parade or by way of a compilation of images with the opportunity to consider whether the robber was depicted in them. The victim was not shown the images on the phone seized from the accused.
To consider the application for the exclusion of this evidence I announced my intention to arraign the accused Coe to ensure the Court’s jurisdiction to determine the question. I took this course, noting that he had already been arraigned before another judge on 14 February 2020 and had pleaded guilty to counts two, three and four but not guilty to count one. The Crown intended to rely upon the acknowledgement of guilt for the offences of fraud in which the bankcard taken in the robbery was used shortly after it was committed.
Counsel sought time to speak to her client and I adjourned to allow her to do so. In due course she announced that she was instructed to make application for the accused to be permitted to withdraw his guilty pleas. This course was permitted over the days that followed, including the presentation of evidence from and on behalf of the accused and on behalf of the Crown. The hearing concluded without sufficient time for my decision and judgement before I was to take leave, but upon my return on 31 August 2020 I announced my decision that the application to withdraw the pleas of guilty was refused. This shall be subject of a separate judgement with my reasons for that decision.
Upon my inquiry as to the next step to be taken I was reminded of the application to exclude the evidence of images taken from the accused’s phone. The material tendered was addressed. The accused did not give evidence upon this question. After hearing the arguments I delivered judgement, refusing the application to exclude this evidence.
Thereafter the trial commenced before me as a judge alone. The accused were both arraigned upon the first count on the indictment alleging the robbery offence and they pleaded not guilty. The pleas of guilty they entered previously to the further three counts stood and will be the subject of proceedings for the determination of sentence in due course.
It must be noted that the accused Singh did not join in any part of the applications advanced by the accused Coe.

TRIAL BY JUDGE ALONE

The parties did not file a notice of election for the trial to be conducted in this fashion, but in the management of the proceedings, including orders by Judge Culver on 12 June 2020 listing the trials for readiness hearing on 17 July 2020, her Honour recorded:

“Counsel for the Crown to file and serve within seven days a notice of any objection to an order being made for a judge alone trial under s 365.

If the Crown does not file such notice within the time frame set out in this order, I order that after that time has elapsed that this matter be a trial by judge alone pursuant to s 365 Criminal Procedure Act.”

There is no reference to any application by either accused in the JusticeLink entries where this matter appears.
The Chief Judge on 15 July 2020 vacated the readiness hearing listed for 17 July 2020 and confirmed the trial date of 10 August 2020, the trial to be by judge alone with an estimate of seven days.
Section 365 Criminal Procedure Act 1986 provides:

“A court may, on its own motion, order that an accused person be tried by a judge alone.

A court may make an order under subsection (1) only if---

The accused person consents to be tried by a judge alone or, for a joint trial, all the accused persons consent to be tried by a judge alone, and

If the prosecutor does not agree to the accused person being tried by a judge alone, the court considers it is in the interests of justice for the accused person to be tried by a judge alone, and

The court is satisfied the accused person has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a judge alone.

This section applies despite any other provision of this Act, including ss 132 and 132A.”

Requirements of s 10B, 132 and 132A Criminal Procedure Act are therefore not engaged.
According to the Crown and counsel for the accused Singh both accused had indicated their consent to the conduct of the trial before a judge alone in the documents filed in the pre-trial readiness hearing. This information was sought by way of my associate on 2 September 2020. Counsel for the accused Coe acknowledged this morning that there was no issue with regard to this question. The Crown did not file any documents opposing this course and has not made submissions against it.
I am satisfied that both accused have had advice from Australian legal practitioners in relation to the effect of an order that the trial be by judge alone and that accordingly the trial has proceeded in accordance with s 365 Criminal Procedure Act 1986.

THE PROCEEDINGS

The accused were arraigned for the purpose of the trial and after opening the Crown case the evidence was presented. The trial was conducted with appropriate efficiency, with the matters in issue clearly identified and addressed. I have already indicated that I am satisfied beyond reasonable doubt of the participation of both accused in the robbery charge, and at least in relation to the accused Singh consideration in due course must be given to s 22A Crimes (Sentencing Procedure) Act 1999, bringing to account the extent to which he has facilitated the judicial process in the determination of this matter.

GENERAL DIRECTIONS

To comply with s 133(2) and 133(3) Criminal Procedure Act 1986 and the decision in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.
The accused each pleaded not guilty to the charge of robbery and elected trial by judge alone, and thus it becomes my duty and responsibility to consider whether the accused are guilty or not guilty of the charge and to return my verdicts according to the evidence. It is for me to assess the witnesses and to decide whether they are reliable, which depends upon two sometimes overlapping considerations; namely the witness’s honesty and the witness’s accuracy.
There is no question in this trial of the honesty of the witnesses called. They were the victim of the robbery and the officer in charge. The remainder of the material was presented by CCTV recordings and statements by witnesses; the representations therein were not challenged and are before the Court as evidence of the existence of facts addressed. There were other documents tendered also, to which I shall be required to come in due course.
The accuracy of the victim of the robbery is not challenged.
The Crown case is one of circumstantial evidence and the issue is whether it is sufficient to establish that the accused were participants in the robbery. There is no issue that the robbery occurred and hence my use of the term “victim” when speaking of the victim.
The accused Coe argues by his counsel that the Court could not be satisfied that he was the person who committed the robbery. The accused Singh argues that though he was present at the location, which is not disputed, the evidence cannot prove to the criminal standard that he was a participant in the joint criminal enterprise which the Crown asserts.
I have the benefit of submissions from the Crown and the accused’s counsel, which I will consider and attribute such weight as I find they deserve. They are not evidence in either case.
As the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge the importance of my role not only for the accused but also for the whole community, and that I must act impartially, dispassionately and fearlessly, and not permit sympathy or emotion to sway my judgement. I must not act capriciously or irrationally and must determine all relevant issues of fact according to the evidence presented.
Though I am not obliged to accept the whole of the evidence of any one witness, and may accept part and reject part of a witness’s evidence, there was nothing said to me to suggest that either the victim or the police officer should not be accepted as truthful and doing their best to give accurate accounts, or that they were inaccurate in the essential features of their representations.

THE BURDEN OF PROOF

This is a criminal trial. The Crown has the onus of proof to the standard beyond reasonable doubt in respect of every element of the charge. It is not for the accused to disprove those elements, but for the Crown to prove them beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt.
The words “beyond reasonable doubt” are ordinary, everyday words and that is how I understand them. If at the end of my deliberations I am not satisfied that the Crown has established any of the essential elements beyond reasonable doubt, having taken into consideration the evidence from the Crown and such as has been tendered on behalf of the accused, and after also taking into consideration the submissions made to me by the Crown and the accused’s counsel in their addresses, then it is my duty to bring in verdicts of not guilty.
The accused must be found not guilty if any one of the essential ingredients of the charge has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to any essential ingredient, even though I might suspect that the accused was engaged in the conduct upon which the charge is brought, the accused are entitled to the benefit of that doubt and I must find them not guilty.
I remind myself that the Crown does not have to prove every single fact arising from the evidence in the case beyond reasonable doubt and I am not required to resolve every conflict arising from the evidence. The onus which rests upon the Crown is to prove the ingredients of the offence.

INFERENCES

I may draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference adverse to the accused from proven facts, if such inference is a reasonable inference and can be properly drawn from the proven facts. I should be careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence as to the existence of an essential ingredient or as to the guilt of the accused unless it is the only rational inference in the circumstances. This is foundational to the direction I must give myself regarding circumstantial evidence.
The accused did not give evidence. The accused have not given any evidence in response to the Crown’s case, though there were documents tendered in the trial upon which they would rely. Although an accused person is entitled to give evidence in a criminal trial, there is no obligation to do so.
An accused’s decision not to give evidence cannot be used against them in any way in my deliberations upon what the Crown must prove. I must not use that decision as an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I must not use that fact to fill any gaps that I might find to exist in the evidence tendered by the Crown in proof of the matters that it must establish. I must not use it in any way to strengthen the Crown case, or to assist the Crown to prove the matters required of it beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence.

THE ACCUSED’S DECISION WHEN ASKED TO PARTICIPATE IN AN INTERVIEW

When arrested the accused were advised of their rights, which included that they need not respond to questions. As with the decision not to give evidence in the trial, this cannot be used against the accused in any way. My task is to examine the Crown case and the evidence upon which the Crown relies to determine whether it proves to the standard beyond reasonable doubt the elements of the offence charged.

CHARACTER

The accused have not put in issue their character in this trial and thus it is an entirely irrelevant consideration. However, it should not be overlooked that the accused Coe appears from custody. It should not be overlooked that each of them has pleaded guilty to counts two, three and four in the indictment involving the fraudulent use of the bankcard stolen from the victim in the robbery. Although this might reflect upon the perception of their character, it is not a consideration that is relevant to the determination of the question of guilt upon the charge which they have defended. I put entirely to one side any inference that might be suggested from the fact that Mr Coe is in custody or from the conduct upon which I find they each engaged in the fraudulent use of the bankcard.

ESSENTIAL ELEMENTS

The allegation brought in count 1 upon which the trial was contested is that on 7 July 2019 at Canterbury the accused robbed SY of an iPhone 7, $25 in Australian currency and a Commonwealth Bank card whilst armed with a dangerous weapon, namely a firearm or imitation firearm.
In the case of Singh who was not immediately proximate to the robbery the Crown relies in the alternative upon an offence of robbery in company, contrary to s 97(1) Crimes Act1900 if the Court is not persuaded that the robber was armed with a dangerous weapon to the knowledge of Singh. If the Court is not satisfied that he was aware of the existence of what is alleged to have been a replica firearm held by the robber, the alternative is available upon the application of s 97(3) Crimes Act 1900.
To prove that there was a robbery, in respect of which I observe no issue was raised, there must be an unlawful taking or carrying away of property with the intention of permanently depriving the owner of it, taking it without consent, which if obtained by force or by threat putting the person in fear of violence is with no consent. The property must be shown to have been taken from her person or in her presence, or from her immediate personal care and protection by actual violence or by putting her in fear of actual violence. The description SY gave of the robbery clearly fulfils the requirement that the Crown prove the property to have been taken from her immediate personal care and protection by putting her in fear of actual violence.
The term “dangerous weapon” is defined in the Crimes Act1900 at s 4:

“‘Dangerous weapon” means ---

A firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or”

...

In s 4 Firearms Act1996 for the definition of “imitation firearm” the reader is directed to s 4D, which provides (my emphasis):

“This Act applies to an imitation firearm in the same way as it applies to a firearm, subject to the following -

the Commissioner may not issue a licence authorising the possession or use of an imitation firearm (except to a firearms dealer) but may issue a permit authorising the possession or use of an imitation firearm,

an imitation firearm is not required to be registered,

the holder of a permit authorising the possession or use of an imitation firearm (a ‘possession or use permit’) is not required to be authorised by a permit to acquire an imitation firearm to which the possession or use permit applies.

For the purposes of the application (as provided by this section) of this Act to imitation firearms -

An imitation firearm that is an imitation of a pistol is taken to be a pistol, and

An imitation firearm that is an imitation of a prohibited firearm is taken to be a prohibited firearm.

In this section, ‘imitation firearm’ means an object that, regardless of its colour, weight or composition or the presence or absence of any moveable parts substantially duplicates in appearance a firearm but that is not a firearm.

However, an imitation firearm does not include any such object that is produced and identified as a children's toy.”

There were no submissions made to me at the close of the trial regarding these provisions and my immediate response to them in the course of the preparation of this judgement was to conclude that it would be open to find that if the item used in the robbery was the plastic pistol found by police in the room occupied by the accused Singh when he was arrested, I could not be satisfied that this was not “identified as a children’s toy”. It would follow upon that conclusion that if satisfied of their participation in the robbery, I would turn to the alternative offence upon which the Crown relies. I raised this question with the parties this morning before I embarked upon this judgement and had assistance from them regarding the concern that had come to my mind.
The Crown invited my attention to a decision of the Court of Criminal Appeal of Darestani v R [2019] NSWCCA 248. The presiding judge Hoeben CJ at CL, agreed with Price J in the analysis he provided, as did Lonergan J. The Crown invited my attention to para [62] of the judgement delivered by Price J.
The appellant was charged with two counts of possessing an imitation self‑loading pistol without authorisation by licence or permit, contrary to the Firearms Act 1996, and to two counts of intimidation with the intention of causing fear of physical or mental harm contrary to the Crimes (Domestic and Personal Violence) Act 2007. Leave was sought to appeal against the conviction for the firearms offences because the nature of the grounds offered did not involve a question of law alone and thus leave was required.
The Crown case was that the applicant had intimidated two employees of a car rental yard by pointing an imitation pistol at them, causing them to be fearful and flee to their office. His Honour summarised the evidence, including at para [23] the evidence offered by a senior constable, who described the applicant’s representation to her that the item was a toy. The item was found, identified by the applicant, which he described once again as a toy. The police officer conceded that when looking at the item from where she was in the courtroom from that distance it looked like a toy.
The item was tendered in the trial. A report was provided by an expert, who identified visual similarities to what he referred to as library comparison, depicting a Norinko model self-loading pistol. He identified the features that were exhibited by the weapon and expressed the opinion that the items attracted the following description:

“The exhibits… whilst not imitating any particular brand of self‑loading pistol, each display similar external features in the form of size and appearance, that are common to this class of firearm. They each substantially imitate a firearm for which a licence or permit is required in this State. No literature material was used for the examination of the exhibits.

In my opinion the exhibits, each are an IMITATION FIREARM as described in Section 4D (3) of the Firearms Act 1996.”

The expert witness was tested upon his opinion in cross‑examination, including with regard to red‑coloured sections of the items indicating that they were children’s toys. The evidence given by the applicant was summarised and then his Honour embarked upon the analysis of what was described as the construction issue, with reference to s 4D Firearms Act and the principles and objects of the Act set out in s 3. It is not necessary for me to repeat those paragraphs in s 3(1) to which his Honour referred.
His Honour noted the submission by the applicant that the Court was required to give consideration to the purpose of the manufacture of the object and its intrinsic qualities. It was argued that the provision was not concerned with situational factors as to how and why and in what circumstance the object was used and how it could be used. Reliance was placed upon a decision from Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981. The submission accepted the objects of the Act, as his Honour summarised, and advanced the proposition that the authorities cited supported a purposive construction of s 4D(4). His Honour dealt with that authority and then at para [62] wrote:

“An object that by matters intrinsic to it would be readily identified as a children’s toy, could cease to be a children’s toy because the object has otherwise been asserted not to be a toy. For example, a plastic rifle which by matters intrinsic to it would normally be regarded as a children’s toy could lose that identification, when a person pressed it into the back of another’s head saying ‘this is a hold‑up, hand over the money or I will shoot’. The use of the plastic rifle and the intention which accompanied that use would identify the plastic rifle otherwise than as a children’s toy.”

His Honour continued at para [64]:

“64 In my view, the construction of the term ‘identified as a children’s toy’ that is advocated by the applicant does not fit comfortably with the purposes of the Act.

65 The purposive construction that I have advanced does not expand the scope of a criminal offence beyond its textual limits. On the other hand, the respondent’s construction that includes how the object could be used does and I do not accept that submission. I have no doubt that any children’s toy which duplicates in appearance, a firearm, could be used in the commission of a crime and be identified otherwise than as a children’s toy.”

His Honour continued in para 66:

“66 No submissions were made that past use of the object was relevant to the construction issue. Properly construed, s 4D (4) could not embrace matters prior to the time that the object was alleged to have been in a person’s possession.

67 The identification of the object as a children’s toy is confined to the time of possession and the past and future use of the object is an irrelevant consideration.”

The question that attracted my attention is not as easily resolved as I first thought in light of the analysis made by Price J and which is binding upon this Court.
Insofar as the accused Coe is concerned, upon the evidence, his presentation of what was described by the victim attracts the application of what Price J offered in the paragraphs to which I have referred. At the time of the robbery what was presented was represented as a firearm and accordingly at that point was not produced or identified as a children’s toy.
The evidence in the Crown case includes the execution of the search warrant at the home of the accused Singh, in the course of which a toy pistol was seized. That was tendered in the trial against both accused by consent and marked exhibit F. It is clearly a plastic toy gun with an orange‑coloured plastic trigger. The dimension of the item from the muzzle to the most extreme rear point is 20.5 centimetres. The measurement from the base of the pistol grip to the rear sight at the top of the weapon is 13.5 centimetres. Without handling the item to appreciate the limited weight or mass that it has and relying upon its visual presentation alone it appears to be a self‑loading pistol that meets the description given by the expert witness who provided a certificate upon the examination of that item. That certificate is included as tab 20 in exhibit A. There was no requirement for this person to be called to the Court or to be cross‑examined. His qualifications and experience are set forth in the document, and he wrote at para [4] on 18 June 2020:

“The following exhibit was received at the Forensic Ballistics Investigation section:

4(a) One unknown manufacture imitation self-loading pistol...”

Beneath that there is an image of the item against a scale showing its dimensions consistent with what I have summarised.

“5 An examination of the exhibit revealed the following:

5(a) The unknown manufacture imitation self-loading pistol, ‘a’...whilst not imitating any particular brand of self‑loading pistol, displays similar external features in the form of size and appearance, that are common to this class of firearm. It substantially duplicates a firearm for which a licence or permit is required in this State.

In my opinion the exhibit, ‘a’ is an IMITATION FIREARM as described in Section 4D (3) of the Firearms Act 1996.”

The next page of the certificate includes four images, one of which is the exhibited plastic pistol showing each side of the item, beneath which there is a comparison firearm also showing each side of the weapon. The comparison firearm is a 9 millimetre parabellum calibre Beretta self‑loading pistol. The comparison to be made between the two items is patent in those images.
As indicated, I am of the view that upon the application of the authority to which I was taken, in light of this evidence, and my finding that the accused were participants in the joint criminal enterprise for the robbery of this victim, the Crown has discharged its burden with regard to the nature of this item as a dangerous weapon for the purposes of s 97(2) Crimes Act 1900. However, there is a question in my mind as to whether or not it can be shown that the accused Singh is guilty of that aggravated form of robbery in company. I am satisfied that he was a participant in the robbery. I have come to the decision regarding their complicity, accepting the circumstantial case for which the Crown contends, and this includes that when the bedroom of the accused Singh was searched the plastic pistol, exhibit F was found. But there is no direct evidence that that was the item that was used. I accept the basic fact that the weapon was found in his room for the purposes of the circumstantial case analysis upon which I am required to embark, but it is another question whether or not I could be satisfied beyond reasonable doubt that the item was a dangerous weapon according to law and was the item used to the knowledge of the accused Singh.
The evidence includes that after the robbery both men walked to Singh’s home at High Street, Canterbury. There was a change of clothing before they then travelled by taxi to a petrol station on Canterbury Road, and then later to a second service station further along Canterbury Road where the bankcard was used in transactions. It is open to find that the accused Coe discarded the firearm at Singh’s home, which was after the commission of the robbery, but I am troubled by a finding that the item located was to his knowledge used in the robbery.
The Crown has pointed to the extent to which there must have been pre‑planning before the commission of this offence. Mr Evers points to the evidence elicited in cross examination in terms that there were children at the accused’s home and that other toy guns were found at the location that did not readily answer the description that can be attributed to exhibit F. Ultimately I am not persuaded beyond reasonable doubt that in respect of the accused Singh it can be shown that he is guilty of the offence charged contrary to s 97(2), but I am satisfied of his guilt in respect of the alternative upon which the Crown relies.
With regard to the accused and their respective liability, it should be noted that the evidence from the victim SY establishes that the person who robbed her, found to be the accused Coe, was armed with an item which upon her evidence I am satisfied meets the description at s 4D(3) Firearms Act 1996. The evidence, though, does not show that the item found in the home of the accused Singh was the item that was used in the robbery as a weapon, and though I am satisfied of the presence of that item in the accused Singh’s bedroom as part of the circumstantial case against him implicating him in the commission of the robbery, I could not conclude beyond reasonable doubt that he had knowledge of the existence of that item used by Coe in the commission of the crime. I have not overlooked what the Crown has said about pre‑planning.
I should also note that it was submitted on behalf of the accused Singh that I should bring to bear the evidence given by the victim in response to cross‑examination, where she acknowledged an email in which she referred to the weapon and images that she sent on to the investigators, including p 34 line 10 of her evidence where she acknowledged that she wrote, “Please have a look at these photos, I feel like it probably a fake...” This is text from the email which she adopted as her representation made after the event. Upon material before me I am satisfied that this was her ex post facto assessment, not her perception as to the nature of the item at the time the robbery was committed.

THE CROWN CASE

Joint criminal enterprise

The Crown case is that the accused were engaged upon a joint criminal enterprise in the commission of the robbery, the accused Coe carrying it out, while the accused Singh was nearby keeping lookout, each engaged toward the common goal of the successful robbery of the victim. If the accused were engaged upon an agreement to rob the victim, each is criminally responsible for the acts of the participants carrying out that enterprise regardless of the particular role in it played by them.
The Crown must establish both the existence of the joint criminal enterprise and the participation in it by the accused. It seeks to do so with evidence of circumstances from which it submits that these findings are the only rational conclusion to draw.
A joint criminal enterprise existed if the accused reached an understanding or arrangement leading to an agreement between them that they would commit this crime. The agreement need not be expressed in words. Its existence may be inferred from all of the facts and circumstances surrounding the commission of the offence, including those that occurred before it and after it found to be proved on the evidence. The agreement need not have been reached at any particular point in time before the crime was committed provided that at the time of the commission of the crime the participants had agreed that the crime should be committed by them.
The circumstances in which the accused participated together in the commission of a particular crime may of themselves establish that at some point in time an agreement was reached between them that the crime should be committed. It does not matter whether the agreed crime was committed by only one of them in the joint criminal enterprise or whether they both played an active part in committing the trial, both involved in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients which make up that crime was committed regardless of who actually committed them. I have already specified the ingredients of the crime with which these accused are charged.
Further, in respect of a particular accused the Crown must prove beyond reasonable doubt that they were a participant in the commission of the crime as part of the joint criminal enterprise with the other person. In this trial this is particularly significant. In the assessment of the case presented against Singh the Crown must prove that he agreed to the acts by Coe with the relevant intention necessary to establish the offence. In other words, the Crown must prove that he was not merely present but was there performing the role of lookout in the joint criminal enterprise in the robbery of SY.
This analysis is in respect of the commission of the robbery in company, excluding for the reasons I gave earlier the aggravating factor of being armed with a dangerous weapon in respect of which I have concluded that the accused Coe alone is guilty.

Circumstantial Evidence

As I noted, the Crown relies upon circumstantial evidence to prove its case against each of the accused. My function extends to drawing reasonable inferences or conclusions from the facts I find established. There is no direct evidence of identification offered for either accused. The victim was not called upon to observe an identification parade or an array or compilation of pictures and invited to identify, if she could do so, the men she observed at the time of the robbery.
There is, however, direct evidence of an array of facts including what the robber did, the conduct of the second man standing nearby, video recordings depicting the accused at various times in locations proximate to the robbery both in time and location, and of the use of the bankcard by the accused for the offences in counts two, three and four soon after the robbery occurred. There were items of clothing seized upon the execution of a search warrant. When the accused were arrested a toy plastic pistol was seized from Singh’s bedroom, which is comparable to the item the victim described as a pistol used in the offence against her.
These individual facts cannot alone prove the guilt of the accused; it is the combination of those facts upon which the Crown relies. The Crown first asks the Court to find the basic facts established by the evidence. These need not be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. The Court is then asked to infer or conclude from the combination of those established facts that further facts existed, namely the existence of the joint criminal enterprise upon which the two men seen were embarked, and that the accused were those two men performing their discrete roles.
The ultimate fact that the Crown asks the Court to find upon the basic facts is that the accused are guilty of the offence charged. As I have indicated for the reasons given the accused Singh will be in due course found guilty of the statutory alternative.
Significant in this analysis is the number and nature of the basic facts relied upon by the Crown when considered as a whole, not individually or in isolation, and whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. I must approach the case by considering and weighing as a whole all the facts I find established by the evidence. I do not consider any particular fact in isolation and ask whether the fact proves guilt or whether there is an explanation for that particular fact or circumstance which is inconsistent with guilt.
I first determine what facts I find established by the evidence. These need not be proved beyond reasonable doubt. I need to consider all of those facts together as a whole and ask whether I can conclude from those facts whether the accused to which they relate is guilty to the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then before I can find guilt I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with a conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt, the circumstantial case fails.
This process involves a logical or a rational process of reasoning without resort to mere speculation, conjecture or supposition. Thus the Crown must first prove that the inference or conclusion it relies upon is a reasonable one to draw from the facts I find established by the evidence. It must then prove that the only reasonable inference or conclusion that can be drawn from a consideration of all of those established facts viewed as a whole is that the accused to which they relate is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks the Court to find, then the Crown’s circumstantial case has failed.

I am satisfied as I indicated that the Crown’s circumstantial case has not failed and guilt has been established in respect of each accused.

THE ACCUSED’S CASES

The accused have not presented a positive defence in these trials, rather they argued that the extent of the evidence tendered by the Crown does not rise to the point of proof beyond reasonable doubt that they were participants in the robbery.
Counsel for Coe submitted that it could not be said that he was one of the men walking from the scene after the robbery, pointing to the gait demonstrated compared with images of the accused in other CCTV recordings, inconsistency said to exist between shoes worn by the person depicted and those found by police that are said by the Crown to be comparable, and inconsistency and unreliability of images from the accused’s phone, leaving in issue the structure of his incisor teeth, which the Crown submits as depicted in some of the photographs are consistent with the description given by the victim.
Counsel for the accused Singh does not cavil with the evidence of his presence at the locations to which the Crown points, but submits that the description of the sequence of events adopted by the victim is consistent only with his presence at the scene and not his participation, and that the evidence does not allow as the only rational conclusion that he was a participant in the joint criminal enterprise for which the Crown contends. The discovery of the plastic toy pistol in his room is explained by the presence of other toy guns in the house where he lived and the children who were also living there.
Mr Evers brought to my attention a decision of the Court of Criminal Appeal in The Queen v Phan [2001] NSWCCA 29 in which Woods CJ at CL delivered judgement. The trial concerned a prosecution for murder and the case presented against that accused was circumstantial in the absence of evidence of any eyewitness to the material event or admissions. The circumstances upon which the Crown relied included the presence of the appellant in the rear seat of the deceased’s motor vehicle at the scene of the shooting, amongst other matters that are articulated at para [5] of his Honour’s judgement.
Based upon those circumstances, the Crown case was upon the primary basis that he was one of the persons who used a weapon to shoot the deceased. Alternatively, the case was pursued upon the basis that he was present as a principal in the second degree, aiding and abetting the shooter or the shooters.
Without taking the time to rehearse the entirety of what his Honour had to say, it is first noted that the grounds of appeal included ground 6, expressed in terms that the trial judge’s directions were erroneous in relation to the liability of the appellant as a principal in the second degree. In due course the Court held that there was misdirection. His Honour referred to the second limb of the Crown case that was in the alternative, of the appellant’s presence as an accessory encouraging or assisting the principal offender or being ready to provide encouragement or assistance if needed.
The authority is relied upon by Mr Evers for the proposition that the mere presence of the accused Singh is not sufficient to ground a verdict of guilty upon the basis of the alleged participation of the accused in the joint criminal enterprise. As stated, that is an accurate proposition, but the evidence goes beyond the mere presence of the accused. I have not overlooked that in the decision proffered, the circumstances upon which the Crown relied included that of the three gunshot wounds suffered by the victim, one was consistent with having been caused by a shot fired from behind the deceased. The evidence was consistent with the proposition that more than one 38 Special or 357 Magnum weapon was used; there was blood consistent with blood from the appellant around the car consistent with the appellant having made his way to a getaway vehicle; there was a fingerprint of the appellant on the outside of the nearside mirror of the vehicle in which the homicide occurred; there was a wound suffered by the appellant that required suturing; the morning after the shooting; telephone records derived from the appellant’s mobile phone included a number of calls made to the deceased’s paging service; there were lies in the interviews with police; and there was a telephone call to the deceased at the deceased’s home requesting him to meet - a request with which he reluctantly complied - after which the homicide occurred.
The circumstances upon which the Crown relies in this case are in my opinion more significant in the assessment of the guilt of these accused.

THE EVIDENCE

The evidence begins with the description of the event given by the victim. Her evidence was led on 31 August 2020, beginning at the transcript, p 17. She described her arrival at Canterbury railway station by train on 7 July 2019 at 11.25pm. She left the station and walked along Canterbury Road, in the direction of Campsie.
Exhibit B was tendered; that included amongst other CCTV footage images captured of the victim as she walked along Canterbury Road at this point. Canterbury Road at that point runs predominantly south, perhaps more to the southwest and as one proceeds in the direction taken by the victim. The path crosses the Cooks River, over which there was a bridge. The victim said that as she was walking she had her headphones in. She crossed the bridge and as she reached the end of the bridge, transcript p 18 line 11:

“A. I did notice something because a guy in front of me, I saw his feet first and then I saw he’s got a gun on his left hip.

Q. And then he flicking about three times on his left?

A. Yeah, just motioned to left and then I just follow him.”

She noticed him toward the end of the bridge as she was crossing. By that I understood her to be describing the southern side of the bridge. She said at p 18 line 21.

“He’s got a dark skin and wear a black hoodie, and that’s, he wear a scarf and is about 175 or 178 centimetres tall.”

She said the hood was on his head, the scarf was covering his face. She indicated over the top of his mouth and pointed toward the bridge of his nose. She said the scarf she did not remember exactly, just that it was over his face. She did not notice his clothing on the bottom half of his body. She said he was indigenous.
Asked about his build, she said at p 19 line 22,

“Um, is quite strong, not very fat. Just bit strong, like taller than me and can block my view, yep.”

She estimated him to be around 30 years of age. He was about half a metre from her when she made these observations. She spoke of the lighting, describing it as a yellow light from next to the billboard.
There are images that were tendered in the case of Singh, exhibit 1. These show at photograph 7 the bridge over the Cooks River from the southern side looking toward the north or northeast. I note that there is a curve in the bridge, the concave side of which is to the west. Photograph 6 is taken depicting Canterbury Road toward the south or southwest, and it shows the billboard of which the witness spoke. Photograph 5 shows the billboard in an image that was taken from Canterbury Road on the opposite side of the street capturing it and the adjacent building which according to the sign on it are the premises of Mytilenian Brotherhood.
Photograph 4 is another image depicting the western side of the footpath facing to the south or southwest. By comparison the billboard must be immediately to the right of this field of vision. The billboard is on a post which appears to be of concrete adjacent to a telegraph pole which has a street light extending from the pole at the top of it, out over the footpath and perhaps the north or northeast bound carriageway of Canterbury Road.
Photograph 3 shows a closer view of the area beneath the billboard and grass adjacent to the western footpath, and photographs 2 and 1 show the building of Mytilenian Brotherhood. The image was captured from the eastern side of Canterbury Road, looking towards the west.
The victim continued at p 19 line 46:

“He - at the beginning he motioned to - motioned to the left and flicking about three times, like just pointed to me and asked me to go to the dark corner.”

She understood this to be a direction that she should move to that point. She continued at p 20 line 2,

“He was like, like asked for me to go to the grass, like under the billboard.”

She said at line 5 that he did not say anything; I understand the evidence to be that it was his signalling that prompted her to move as he required. Then she said at line 11 on p 20,

“He asked me about ‘give me your phone’”.

She agreed that she could give him her phone. He asked her about her bankcard. She gave him her phone. She described that as having a light pink phone case. She did not note anything about an accent. He asked her about her cash. At p 20 on line 39:
“‘Could you’ - I don’t remember the exact words, just asked me about ‘Do you have cash?’ and I said ‘I just get - have 5 - $5 note’. And then he asked me about ‘Do you have coins?’ so I find out, like about $20 coins in my wallet, so I gave all the coins to him.”
She also gave him her $5 note. He asked her whether she had a bankcard. She hesitated. He asked, “Do you have PayPass?” She replied “Yes” and then gave him her bankcard: p 20 line 50 and onto p 21.
At line 3 on p 21 she was asked:

“Q. Now as he was talking to you, did you make any more observations of what he looked like?

A. After that he just take the scarf off so I see his face and I also see his teeth, a bit yellow yeah.

Q. Did you notice anything else about his teeth?

A. It’s not very - it’s not very tidy, it’s like white in the front and when in the - at the back it’s not, yeah.

Q. Which teeth were not tidy?

A. Just the front. I don’t - I don’t remember, they just - yeah.

Q. So the front teeth?

A. Yeah.”

The transcript records,

“White in the front and when in the - at the back it’s not, yeah.”

My note of that evidence is that she said, “One in the front and one in the back”.
She then described standing at the billboard and how the robber moved out toward the footpath. She followed him. She said his body blocked the view of Canterbury Road. Then at p 21 line 41:

“Q. When he was asking for your bankcard is there anything else that you noticed?

A. I noticed there is another guy under - in front of the shopfront, the shopfront, under the awning.

Q. How far away was this man from you?

A. Kind of 50 metres around.

Q. How many metres?

A. 50, 50 metres.

Q. 15 or 50?

A. 50, sorry I can’t count the metres.

Q. That’s okay. Is there a point in the courtroom that you could safely estimate or—

A. Yeah, just from here to the corner.

Q. From here to the back corner?

A. Yeah, around that.

Q. The back right‑hand of the corner?

A. Yeah, yeah.”

She indicated the far left-hand corner of the courtroom as one faces the back of the Court, and that appears to me, without measuring the distance, to be somewhere between 15 and 20 metres.
She spoke of being nervous and wanting to quickly finish the conversation. The Crown asked at p 22 lines 17:

“Q. And just focussing on that second man, could you see what he looked like?

A. He got kind of like curly hair and he wear a hat, but I saw he pull a bit down like to cover his face and he’s more skinny.

Q. More skinny than what?

A. Than the first guy.

Q. Just focussing on when you first saw him, was he doing anything?

A. He just look, look around.

Q. When you say ‘look around’ where exactly was he looking?

A. He was just like looking.

Q. You were moving your head from side to side?

A. Yeah.”

She was then shown diagrams that she had produced after the event. These are included in the Crown bundle, exhibit A. These are images that the witness obtained and upon which she made markings representing features of the location as she perceived them at the time this occurred.
The first of these identifies where she stood and where the person who committed the robbery stood. On the second of these there is a marking of where the robber stood and where the victim was, showing her path of travel to the point where they met. The third shows their respective positions beneath the billboard and the position of the second man on the footpath in Canterbury Road, around the corner of where they were. The third photograph shows their respective positions and there is an insert of a photograph showing where she said she was standing and where the robber was, and she included on this,

“Once I stand on the spaces I could see the second male”.

In the next photograph she has a position marked for the second male in an inserted photograph over an aerial photograph. The next photograph has the position of the second male immediately beneath the letter “E” on the side of Mytilenian House and adjacent to the face of the building. The final photograph shows her position and the position of the robber on the footpath, and the relationship between that location and where the second male she said was standing.
She also researched the internet and produced an example of images of self‑loading pistols and it is in respect of those images and her email to police that she was cross‑examined by Mr Evers, to which I earlier referred.
The evidence, I find, shows she found items that were consistent with what she saw on the night and that she passed that information back to the police to assist them in their investigation. The evidence is found at p 26 line 23. She there represented that she gave those pictures to the police because they looked similar to the weapon that was used in the commission of the robbery.
She also showed the police a phone case similar to the case that held her phone when it was taken from her. That appears at tab 3 in exhibit A. The headphones were returned to the victim at her request. The robber handled the headphones. These were in due course submitted for examination and a combination of DNA was found, but was not sufficient to provide evidence of identification.
Cross-examination on behalf of the accused Coe was quite brief. She acknowledged that she said in her statement she described the robber as dark skinned and possibly of Aboriginal background and adopted that as an accurate representation.
Mr Evers cross-examined and in the course of that tendered exhibit 1, a series of photographs to which I have already referred, and confirmed the description of the event that she had already given eliciting some further details. At p 33 from line 41 she was asked about the search of the internet, looking for a comparable gun and the communication to police by way of email, described at p 34, beginning at line 9. She acknowledged that she had not said anything in her statement on 8 July 2019 about having seen a second male moving his head as if he was looking about. She made a second statement on 4 August 2020, after she had had time to think and reflect upon what occurred. At p 36 line 10 she was asked:

“And it was only after thinking about a lot that you started to remember seeing a second male moving his head, is that right?

A. Yes.

Q. But it wasn’t something you remembered to tell police on July 2019 was it?

A. Yes”.

It is a matter that I have brought to account that she did not include in the statement first made the observations she attributed to the man I find to have been the accused Singh, but in the circumstances of this event it is not surprising that she might not have remembered in all detail everything that occurred. Statements are made in a process of questions eliciting answers which are then converted into a narrative. I found SY to be a credible witness, doing her best to give a truthful and accurate account of her memory of the facts she described.
She was followed by the officer in charge of the case, Plain Clothes Constable John Neville. His evidence was uncontroversial. It was through him that the video recordings were produced and played, and the documents that were assembled and included in the Crown’s tender bundle exhibit A identified.
The Crown tendered the CCTV recordings. They were played to me in court, and the Crown helpfully provided a selection of still images from those recordings. I have, since the matter concluded, had the opportunity to review the recordings in each case with the still images, and will begin with the analysis of the travel of the two men I find being the accused, from the point when the robbery occurred at 23.30.
Item 4(a) in the bundle, exhibit A, is a map; it appears to be a Google map, showing Canterbury Road where it crosses Cooks River and then extends to the left across the page. On this diagram Canterbury Road crosses perhaps at 30 degrees to the horizontal across the page.
With the endorsements on it the map serves adequately as a derivative document representing the sequence of events at the respective locations revealed in the exhibited closed-circuit television.
They sequences begin with the armed robbery at 23.30, the time given by the victim, consistent with the closed-circuit television footage from Metro Storage which was located on the railway station side of Cooks River depicting the victim as she walked along the footpath towards the point where the robbery occurred.
The next CCTV was captured from a camera located in Berna Street, Canterbury, but capturing Berna Lane. There are images of two men walking along Berna Lane from the direction of Canterbury Road towards High Street. They are picked up there at 23.32.50 and then at 23.33 on CCTV located at Fore Street, Canterbury but which looks back toward Berna Lane, showing the two men walk toward High Street.
The next sequence of images begins at 23.45 in a taxi T5XXX. This commences at a point quite proximate to High Street, which I understand to be the home of the accused Singh. The next image depicting these men is at 23.48 at the Budget Petroleum Service Station on Canterbury Road. The next is at 23.55. The time stamp shows 00.09, but that was incorrect; the evidence shows that the recording was fast by 14 minutes or thereabouts and the actual time was about 23.55 when they were captured at this location, the BP Service Station on Canterbury Road, about halfway between the Budget Petroleum Station and where the robbery occurred. They were also seen at that location at 20.24, or 20.33 if the time stamp was to be relied upon, earlier in the evening.
Thus with reference to that and the other material that I have, to which I will come, it is apparent and I find that they were at the BP Service Station at 20.24 hours on the day of the robbery. Then at 23.30 the robbery occurred. They walked from there along Berna Lane to High Street and then to the address at High Street, after which they entered the taxi at 23.45 and travelled to the Budget Petroleum Station, where they were picked up at 23.48 and thereafter returned to the BP Service Station at 23.55.
One of the matters advanced on behalf of the accused Coe was that where he is seen to be depicted at the other locations he is walking, as the phrase was used, in a bearlike fashion, whereas the walk down Berna Lane depicted two men moving with some vigour; the contrast made is that he was here walking like a boxer. I did not find that submission persuasive I must say. The meanderings of the accused in the course of their shopping activities at these locations did not reveal such a disparity between the gait there depicted and the gait seen as the offenders moved down Berna Lane, as would suggest that to find that they were the same people is not appropriate, or that it was not the accused Coe walking along with some purpose shortly after they had completed the robbery, about two minutes or perhaps three minutes, beforehand.
I have reached the point where I dealt with the movement of the two men I find to be the accused, including their earlier attendance at the BP Service Station on Canterbury at 20.24 hours on 7 July 2019, and have described the course of travel that I find they took from the robbery to their ultimate destination, the BP Service Station recorded at 23.55 hours on that same day, allowing for the adjustment for the incorrect timing stamp on the recording.

After the robbery the victim described how the two men left their respective positions and joined together on the carriageway on Canterbury Road and then continued across the roadway. In the course of that evidence, which is found at p 25 on 31 August 2020, she was shown to have marked on tab 1 in exhibit A on the first photograph the course taken by each of them and the point where they met signified with a circle marked on the carriageway.
The remaining evidence is supplemented by an agreed statement of fact, pursuant to s 191 Evidence Act1995, tendered in each case.
In respect of the accused Singh it is acknowledged that his home was High Street, Canterbury in July 2019. The accused agree that the victim was robbed with what appeared to be a firearm. The accused are depicted in CCTV footage at the BP Service Station at 8.30pm or thereabouts on 7 July 2019. The CCTV footage at that location is 13 minutes fast. Both males were collected in the taxi T5XXX about 11.45pm on 7 July 2019; they are the accused. The victim’s bankcard was used to pay for the $11.66 fare incurred in the use of that taxi. They were depicted in the closed-circuit television footage at the Budget Petrol Station at 403 Canterbury Road at 11.47pm or thereabouts on the same day. The victim's bankcard ending in 2889 was used by Coe and Singh, both accused, at that service station to buy $63.44 worth of items. They were depicted in the CCTV footage of the BP Service Station at 12.08am on the recorded time - the corrected time being 11.55pm on 7 July 2019. The victim’s bankcard was used to buy items at that location.
The admissions do not include that these accused were seen on the CCTV footage recording the movement of two men along Berna Lane.
Tab 6 in the Crown bundle, exhibit A, shows the selected images from the closed-circuit television captured at the BP Service Station at 20.24 or thereabouts. These depict the accused Coe with a t-shirt with the Calvin Klein logo on the front. The accused Singh has a long sleeved black t-shirt on the back of which there are images, the first of which is a word “F” and then a round image and then “CK” and beneath that “Swag” and beneath that “I’m a” and beneath that “Last King”. I draw those words from the image of the garment seized by police in the course of the execution of a search warrant at the accused Singh’s home, which appears in the images behind tab 17B. It is not possible to decipher on the CCTV image in the selected picture other than the first word, but in light of the acknowledgment that he is the person there depicted in the agreed statement I find that it is the same garment.
Tab 7 has selected images from the CCTV recording events in Berna Lane. First, from Berna Street, Canterbury showing two men walk in the direction of High Street toward the left of the field of vision, and then behind tab 8 from a camera at Fore Street, Canterbury, capturing Berna Lane, but showing them walking in the same direction this time towards the right of the field of vision. Of note is the clothing that they are wearing, including hooded jackets and caps. In this sequence the images are in black and white and there appears to be, by reason of the nature of the camera, which is also described in evidence by the person who provided a description of it, a negative exposure effect. The person closest to the camera in tab 7 and furthest from the camera in tab 8 is wearing pants with the word “Adidas” down the leg. In that image they appear to be lighter coloured trousers with white words, whereas the garment that was found by the police on execution of the search warrant at the accused Singh’s home shows the trousers to be a dark perhaps even black colour. I note that the accused Singh does not deny that he is there depicted.
It was said on behalf of the accused Singh that on looking at those images one might come to the view that what was worn was a garment with a black trim. I could accept that proposition, looking at the images in tab 6 and then looking at the images in tab 7 and tab 8 as an available finding, but in my view, the black edging depicted in the images taken is the extension of the T-shirt worn beneath by the accused.
Tab 9 shows the images captured by the CCTV in the taxi. There is no doubt, in my view, that at least the accused Coe is depicted, consistent with the concession made by way of the agreed facts. There is an image of Coe appearing as image 10 of 16. This is in profile, which shows three small dots adjacent to this right eye, and when I look at photograph number 7 behind tab 12, which is an image of the accused Coe, that tattoo mark is there found. The teeth are shown in this black and white photograph, which is not ideal, but on the presentation they aptly meet the description “untidy” given by the victim.
There is another photograph of the accused Coe at tab 9, photograph 15, showing the shoulder bag or satchel that he was wearing at the time. This compares with one that was seized by the police upon execution of the search warrant.
The taxi is captured in the photographs from the closed-circuit television at the Budget Petroleum Service Station at 23.48 and thereafter. This shows the accused Singh alighting from the front passenger seat of the taxi. Although it is not depicted in these images the accused Coe is seen at one point to leave the taxi from the rear passenger seat, but then to re-enter the vehicle after Singh left it to go into the shop at the service station. The selection of the images continues and depicts both of them inside the shop, in this instance with Coe wearing his Calvin Klein shirt, shorts and grey coloured jumper. Shorts and a jumper comparable to the image were found by the police in the execution of the search warrant at his home. In the images, for example at photograph 8 of 23, one can see the satchel or shoulder bag that he was using. Notwithstanding that Coe is in summer clothing, which would hardly be ideal on 7 July, Mr Singh is dressed in what one might expect as far more suitable clothing, including the hoodie, with the hood over his head and long pants.
At tab 11 there are images from the BP Service Station. The time stamp is 00.08 hours, but one has to bring the time back to before midnight on 7 July 2019 to correct the inaccurately recorded time. This shows the accused Singh and Coe dressed as before, and shows the transaction upon which they engaged at this point.
Twelve photographs were taken by the police upon the arrest of Coe. These depict various tattoos, including the number “4” beneath the left eye on photograph number 6 and the three dots beneath the right eye photograph number 7.
At no point does he open his mouth in any of the images that I have before me, save for the one to which I referred a moment ago.
Tab 13 are the items of clothing seized upon the arrest of Coe, including the shoes which depict quite clearly that they are with a white sole edge, a black area on top of which there is a white area, and as was pointed out to me, a black strip that extends across the top of the shoe, which I was asked to conclude could not be found in the images of the person that the Crown points to as Coe in Berna Lane. I find that the shoes depicted on that person are consistent with those which were seized from the accused.
Tab 14 was subject to the application to exclude evidence. These depict images of the accused Coe. The first shows him face on. The right incisor extends below the edge of the left incisor and appears to be forward of it. Alternatively, the left incisor is back from the right, or in the further alternative they are simply out of alignment, one more prominently forward than the other. This is consistent with what is contained in the second of those photographs and the third which is clearer, which also shows the image of the tattoo “4” beneath his left eye. The description given by the victim is consistent with what is seen in these photographs.
Before I move from this point I should return to the evidence given by the victim in relation to this and the transcript of her evidence where she is attributed with the words “white in the front” - this is transcript of 31 August 2020 at p 21, beginning at line 3. I have already commented on my note which differs to the transcript. I will observe that the victim was of Asian origin, English was clearly not her first language and she has an accent. She was softly spoken, and as she gave her evidence she tended to hold onto the microphone, which prompted RSB to contact my associate and ask that she be informed that she should not do so because of interference, that this caused.
Before I move from this point I shall give the parties the opportunity to comment upon what is a contrast between my note, and I have noted what I thought her to say “Not very tidy, one in the front, one in the back”.
The Crown adopts this as their position, and Coe’s counsel did not address because her note and that of her instructing solicitor were unclear. I am confident that I heard what the witness said and proceeded accordingly.
As I indicated previously, this is not identification evidence, but is a piece of circumstantial evidence, the description given by the victim which I find is consistent with what is depicted in the three pictures behind tab 14.
In the accused’s case through exhibit 1 was tendered and this shows an array of images, including pictures of the accused. I looked through them closely and in the course of the argument I pointed to the effect upon the image of the positioning of the focal point of the lens of the camera. The images, which are far more extensive in the defence tender than the Crown tender, when I separate them from the Crown tender, at first blush might be inconsistent with the images upon which the Crown relies. But it seems to me that the images upon which the Crown relies are clear, to the extent that they show the disparity between the two incisor teeth. Images that were tendered in the accused’s case showing the position of his lower lip across his front teeth do not cause me to doubt the observation that I have made with regard to his incisors depicted in the images in the Crown case.
There has been no effort made to put before me what, in fact, his teeth might be if presented to me here in court. Nor was there any evidence put forth as to any work that might have been done with regard his teeth or not performed with regard his teeth. This point is not conclusive of the matter, of course. Although the accused was entitled to do so, he was not obliged to do so, and he cannot suffer any inference adverse from the decision made not to put before me evidence that might support the submissions that were made on his behalf, that the photographs of the teeth upon which the Crown relies are not reliable.
Thus I am left to consider the question with reference only to the evidence that is before me.
I find that upon the images presented by the Crown there is consistency between what I there see and what was described by the victim. I find that the images tendered in the case for the accused are not sufficient to displace what I see in the Crown tender. These would not be sufficient alone, as I have indicated, to form a basis to find the accused guilty of the offence. It is but one of the facts of circumstances which I draw together to conclude that that the accused was the robber in this offence. It is not only a reasonable inference, but is the only rational inference.
Tab 15, the shorts seized by the police consistent with what is seen in the images of the accused at the locations where he acknowledged he was. That tab also includes a grey long sleeved jumper, consistent with what was seen to be worn by the accused Coe draped over his shoulder as he is moving in and about the shops depicted in the CCTV images.
Tab 16 comprises images of the accused Singh taken at the point of his arrest. This shows a tattoo of a playing card spade or perhaps a tear beneath his left eye at the corner of the eye. There is also in the third of those images what appears to be a metal stud beneath his right eye and that compares with what is seen of the accused Singh in photograph 3 behind tab 9. I also observe that the presentation of the accused Singh in the service stations dressed as he then was compares to the person I find to be Singh captured in Berna Lane.
The execution of the search warrant at his home included the discovery of a pink iPhone case that was tendered in the Crown case in this trial. For reasons I was not given, which I do not quite understand, that was not shown to the victim for her comment upon whether comparison be made between it and the loss that she suffered, however one might compare that item with the image that she provided upon her investigation of the internet and the image she provided to the police showing what her iPhone case was like. This case was found in the possession of the accused Singh, with the pants with Adidas down the legs. There were caps found. There is a bag with a red and black stripe strap to it, which is consistent with what he is seen to have in the service station and in the taxi, for example in photograph number 2 at tab 9.
The bankcard used in the transactions stolen shortly before from the victim of the robbery was found in the possession of the accused Singh, and also the toy pistol, exhibit F, both of which I have already spoken.
There are statements included in the tender bundle, exhibit A, including from the attendant at the BP Service Station at Canterbury Road and the Budget Petroleum petrol station, describing the transactions consistent with what one sees in the screen. There is the certificate, to which I have already referred from the firearms expert, and there is a series of transaction records relevant to the conduct the subject of counts two, three and four.
In the agreed facts, pursuant to s 191 Evidence Act 1995, in each case it is admitted that the victim was robbed with what appeared to be a firearm. This acknowledgement by the accused Singh does not impact upon my decision that I make in relation to the verdict I propose to return in respect of him.

SUBMISSIONS

The Crown

The evidence in the trial was relatively narrow, because the issue argued was narrow for each of the accused, though slightly different in each case.
The Crown, in her submissions, identified four central planks in the case against the accused Coe. These included the recent possession of the bankcard, the similarity in appearance between the accused and the male described by the victim, the proximity of the offence to the locations that were captured on the CCTV, to which I have already referred, and the pre and post offence conduct, including the change of clothes, which the Crown submits is evidence of his effort to minimise risk of detection. The Crown does not offer that as evidence of conduct reflecting consciousness of guilt requiring a direction in terms of the decision in Edwards v R (1993) 178 CLR 193, as I understand the position, but as part of the factual matrix and circumstances upon which the Crown relies in support of the circumstantial case.
The Crown also pointed to the evidence from Mr Sakai, an employee at the Budget Petroleum Station, who described a conversation in the course of which he refused to complete a transaction in the absence of a PIN, which was needed since the entirety of the products sought to be purchased exceeded $100 in retail cost. That is said to be a matter to be considered against the communication by the accused Coe described by the victim when he asked whether the card had PayPass capacity.
The Crown pointed to the comparable description offered by the victim against the physical characteristics of the accused Coe - I accept that submission.
The Crown conceded that in the images on the accused’s phone the time when those photographs or images were captured could not be specified. It could not be known whether they were captured on that phone or transmitted from another device, but one way or another one can look at the images and the characteristics of the accused there presented, and comparison made between his presentation there and in the photographs the Crown relies upon, as well as those upon which he relied, and the images captured in the forensic procedures after his arrest, and the closed-circuit television images that have been provided.
The Crown pointed to the tattoo in photographs 6 and 8 behind tab 12, to which I have already referred. They are the forensic procedure photographs. The Crown points to the comparison to be made between the satchel bag seized and what is seen on one of the photos on the phone behind tab 14. I also note that there is comparison to be made between the way he has his garment about his shoulders in those photographs, behind tab 14, and in the third of those photographs there is the strap of a satchel which is consistent with the strap on the satchel that was found by the police. Tab 14 has the image of Mr Coe wearing a cap in two of those pictures; consistent with what was found when he was arrested and what was seized from him.
The Crown dealt with the proximity between the robbery and the various locations shown in the diagram of the streets, to which I have already referred. The Crown pointed to the consistency between the shoes worn by Mr Singh in the BP Service Station that appears behind tab 6.
I expressed doubt about this submission in response to which the Crown acknowledged that she at this point misspoke and was intending reference to the accused Coe, which I noted, with the importance of the evidence in light of the submissions made on behalf of the accused regarding the shoes that he was wearing in the journey along Berna Lane from the robbery. I have already referred to the finding I make in respect of that; this is one further piece of evidence of the circumstances upon which the Crown relies.
I noted that the Crown corrected herself toward the bottom of the page at that point in her submissions, and at p 64 her submission there that these shoes were similar as depicted in Berna Lane and after the robbery, depicted in the Budget Petrol Station in the images at tab 10, and comparable the shoes seized and depicted in the photographs behind tab 13.
The pre and post offence conduct to which the Crown points is the change of clothing between the time the accused Coe is depicted earlier in the evening at the BP Service Station up to the point of the robbery and then the change before he went with the accused Singh to use the victim’s credit card.
The Crown also asks me to find that there was evidence of pre-planning in this event. This is advanced upon the basis of the clothing change, the use of face coverings, and the acquisition of the imitation firearm, which the Crown submits is the minimal finding that the Court would make in relation to this robbery, the location of the two offenders engaged in the enterprise at the time of the robbery, with a second man around the corner on the street where traffic passes, in the role of a lookout.
The Crown submits that the same considerations are brought to account with regard to Singh but with some variation. The significance in his case is the discovery of the iPhone case and the toy pistol in his room, and the use of the credit card in these transactions so soon after the commission of the robbery. It is not to be overlooked that the robbery was at 23.30, they are seen at 23.32 and 23.33 striding together down Berna Lane and then on to High Street, near to which at 23.45 they are recorded in the taxi. This is a significant piece of circumstantial evidence supporting the finding that they were both involved in this enterprise. It is also significant to note that immediately after the robbery is complete, according to the victim, they left their respective positions, joined each other in the middle of the roadway and headed off.

The Accused Singh

Mr Evers made submissions in terms that the doctrine of recent possession is rebuttable, and that use of the card stolen in the robbery, and that Singh was merely present on the street against the sequence of events that he had the victim accept, and at the time of the robbery was not in a position to view what was going on and the victim was not in the position to view what he was doing, was sufficient to displace a finding that he was engaged upon the joint criminal enterprise with Coe.
I was invited to the decision in Phan [2001] NSWCCA 29.
When I bring forth the evidence given by the victim describing what the accused Singh was doing when she saw him, and I consider that together with the other evidence of the finding of an identical iPhone case and a comparable toy firearm, and that the robbery was very recent to the use of the credit card in the transactions upon which they embarked, I find that the accused was a participant, his role to look out in their interests as the actual robbery was taking place with the accused Coe’s confrontation with the victim.
He made submissions with regard to the movement in the service stations close to where his home was located and consistent with the evidence given by one of the shop attendants that he saw one of these men regularly in the shop. This of itself being of little significance; it is hardly surprising that he was going to these locations whenever they were open to do business.
But his strongest argument was with regard to the location of the accused and what could be seen of his activities and when, and the timeline that he identified in the course of which the robbery occurred.
He pointed to the passage of time after the robbery to when the search of the accused’s bedroom was made and the items found, diminishing the significance of the toy pistol at that time in a home occupied by children who also had toy guns, albeit not necessarily consistent with the weapon that was said to be used in the robbery.
The change in clothing he said can be explained by the knowledge that he was about to go and use a credit card, which he was aware had been previously stolen; changing his appearance that night assists him in that regard and is not necessarily connected with the commission of the robbery.
Mr Evers conceded that the card must have come from the robber; no other finding could be made. It could have been handed to him at some point in the taxi. It could have been handed to him at some point before he got into the taxi. I have brought that into account in assessing the combination of facts and circumstances upon which the Crown relies.

The Accused Coe

Ms Swift made her submissions in support of Mr Coe. I have already remarked upon her submission that there is a contrast between the ways the accused Coe presented in the shops, moving in a bearlike fashion, so described at p 82 of the transcript, to be contrasted with the way the two men moved in Berna Lane as if they were boxers. The physical characteristics attributed to the robber by the victim are said to be not so unique or unusual; neither is it unusual to have someone in his circumstances with perhaps untidy teeth, bearing mind that Medicare is not something which covers dental work. It might be so, but the evidence must be assessed as it is, and it is, in terms of the description by victim, which must be considered against the images upon which the Crown relies to which I have spoken.

FINDINGS

Drawing all of those facts together in respect of each of the accused I am satisfied that it is not only a reasonable inference to draw that they were embarked in a criminal enterprise in the robbery of this young woman, but considered together there is no other rational conclusion, in my view, but that they were acting in concert. The accused Coe perpetrating the taking of the property under threat, while the accused Singh maintained lookout on Canterbury Road, after which they joined together, took the course of travel to which I have referred with reference to tab 4(a) in exhibit A, and in the course thereof were captured in the various closed-circuit television systems recording their movement and activities. It is telling in my view that at that time of night, so soon after the robbery occurred the bankcard taken was used in the various transactions, the subject of counts two, three and four.
For these reasons I find in each case that the Crown has discharged its burden of proof. In each case the accused is convicted.

VERDICTS

In the case of Richard Coe I find him guilty of count one in the indictment.
In the case of the accused Singh I find him not guilty of count 1, but in the alternative guilty of an offence in contravention of s 97(1) Crimes Act1900, namely, an offence of robbery in company, with the same particulars articulated in count 1 as it appears in the indictment without the aggravating factor of being armed with a dangerous weapon.

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Decision last updated: 29 September 2020

Medium Neutral Citation:	R v Coe; R v Singh [2020] NSWDC 567
Hearing dates:	Coe – 10, 11, 12, 13, 14, 31 August 2020 and 01 & 03 September 2020 Singh – 10, 11, 12, 31 August 2020 and 01 September 2020
Date of orders:	03 September 2020
Decision date:	03 September 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Coe – guilty of count 1 on the indictment Singh – not guilty of count 1 on the indictment and guilty of the statutory alternative to count 1
Catchwords:	CRIME — Complicity — Joint criminal enterprise CRIME — Violent offences — Robbery — Circumstances of aggravation CRIMINAL PROCEDURE — Trial — Alternative verdict CRIMINAL PROCEDURE — Trial — Judge alone CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Evidence Act1995 Firearms Act 1996
Cases Cited:	Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981 Darestani v R [2019] NSWCCA 248 Fleming v R (1998) 197 CLR 250 The Queen v Phan [2001] NSWCCA 29
Category:	Principal judgment
Parties:	Regina (Crown) Richard Coe (accused) Shyarlm Singh (accused)
Representation:	Rosheehan O’Meagher (Solicitor Advocate) Michelle Swift (counsel) (accused - Coe) Tony Evers (counsel) (accused – Singh) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2019/00220923 (Coe) 2019/00220830 (Singh)