R v Davis
[2015] ACTSC 101
•7 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Davis |
Citation: | [2015] ACTSC 101 |
Hearing Dates: | 25 March 2015 and 26 March 2015 |
DecisionDate: | 7 May 2015 |
Before: | Rangiah J |
Decision: | Not guilty |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – TRIAL – Judge alone trial – aggravated burglary – trespasser in company of another – whether intent to commit theft of property – lawfulness of arrest |
Legislation Cited: | Crimes Act 1900 (ACT) s 212 Criminal Code 2002 (ACT) ss 311 and 312 Supreme Court Act 1933 (ACT) s 68B |
Cases Cited: | Edwards v R (1993) 178 CLR 193 Licciardello v R [2012] ACTCA 16 R v Mulcahy [2010] ACTSC 98 |
Parties: | The Queen (Crown) Judd Oswald Davis (Accused) |
Representation: | Counsel Ms S Saikal (Crown) Mr A Williamson (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 135 of 2014 |
Rangiah J:
The accused, Judd Oswald Davis, is charged with the following offence:
THAT on 22 November 2013 at Canberra in the Australian Capital Territory JUDD OSWALD DAVIS entered a building, namely [deleted] Lowanna Street, Braddon, as a trespasser, with intent to commit theft of any property in the building, in company with an unknown male.
Mr Davis pleaded not guilty. He has made an election under s 68B of the Supreme Court Act 1933 (ACT) for trial by judge alone.
The evidence
The Crown called oral evidence from five witnesses and, with the consent of the defence, tendered the statements of another three witnesses. Mr Davis gave evidence himself and called two witnesses.
Much of the evidence given by the Crown’s witnesses was not disputed and the case turns largely upon the credibility of Mr Davis and the witnesses called by the defence.
The prosecution witnesses
Ms Cherie Enders was a resident of a unit in a unit complex on Lowanna Street, Braddon. At about 4.15 am on 22 November 2013 she was woken by the rattling of a chain wire fence which secured a basement car park at the unit complex. Ms Enders’ partner, Peter Tegart, gave evidence that he was also woken by rattling noises which continued for some 15 minutes.
Ms Enders and Mr Tegart walked down to the car park. Ms Enders saw a dark haired male walking past her and a tall male with long red hair standing near a pillar. There is no dispute that the tall male was Mr Davis. He was carrying something that looked like a helmet. He was standing near her bicycle which was leaning against a pillar. Ms Enders had earlier left her bicycle attached with a lock to the chain wire fence.
Mr Tegart had followed Ms Enders into the basement. His evidence was that he saw the dark haired male pushing Ms Enders’ bicycle towards the car park entrance. The male then dropped the bicycle.
The males denied that they were attempting to steal the bicycle. They maintained that they were in the basement because they were meeting friends there. The males then left the premises muttering about “useless friends”.
The males left through a “pedestrian-access gate”. It was described by Mr Tegart as an “automatically closing gate”. Under cross-examination, Mr Tegart said that he knew the door was always locked because he frequently entered by that door and it could only be opened (from the outside) using a key.
10. Counsel for Mr Davis put to both Ms Enders and Mr Tegart that it would be possible for someone to follow a car into the car park. Counsel did not put to Ms Enders or Mr Tegart that the pedestrian gate might not close automatically.
11. Mr Tegart took photographs of the males as they were leaving and telephoned the police. He and Ms Enders then noticed that there was a large hole cut in the chain wire fence. A photograph of the fence shows a cut that seems large enough for a person to pass through. Ms Enders was not aware of any damage to the fence earlier.
12. Acting Sergeant Andrew Smith gave evidence that at about 4.40 am on 22 November 2013 he heard a radio transmission to the effect that residents of a unit on Lowanna Street, Braddon had disturbed two males. He drove his police vehicle to Braddon and commenced looking for the males. He came across a person who answered the description of one of the males at the corner of Dooring and Hope Streets in Dickson, some 3 km from Lowanna Street. That person was Mr Davis. Acting Sergeant Smith placed him under arrest. The second male was not located.
13. The defence argued that the arrest of Mr Davis was unlawful and that a record of interview subsequently given by Mr Davis should not be admitted into evidence. I reject that argument for reasons I will give later.
14. Federal Agent David Trotter gave evidence that he placed Mr Davis in a caged police vehicle and transported him to the city police station. He and Constable David McMennemin conducted a record of interview with Mr Davis.
15. In the course of the record of interview, Mr Davis denied cutting the wire fence to get into the building and denied attempting to steal Ms Enders’ mountain bike. He said “I never touched the bike”. He also denied that he had been in the car park saying “I wasn’t in anywhere”.
16. Constable Russell Kafer attended at the intersection of Dooring and Hope Streets. He found a white Star Wars storm trooper helmet under the front of a parked car on a nature strip. Federal Agent Trotter’s evidence was that before he placed Mr Davis into a police vehicle, Mr Davis asked him “Is this about the helmet?”. Federal Agent Trotter replied “What helmet is that?” Mr Davis said “The storm trooper helmet”. Mr Davis seems to have thereby acknowledged that he knew something about the helmet.
17. Mr Keith Barlin is employed by the Owner’s Corporation for the aforementioned units on Lowanna Street. His evidence was that neither he nor any other staff member of the Owner’s Corporation gave any person permission to damage the chain wire fence.
18. Mr Davis made a formal admission that on 22 November 2013 he did not have permission to enter or remain on the premises at Lowanna Street.
The defence witnesses
19. Mr Davis gave evidence that he was drinking from the afternoon of 21 November 2013. He was with a friend Aaron Wichmann. They later went to the city centre of Canberra, where they continued to drink, and they went to various nightclubs.
20. Mr Davis met an acquaintance, Emily Rogers, who invited him and Mr Wichmann back to her unit which was also located on Lowanna Street. They made a plan that Ms Rogers would go off to get more alcohol, while Mr Davis and Mr Wichmann walked to her unit. Mr Davis had never been to Ms Rogers’ unit before.
21. Mr Davis’ evidence was that Ms Rogers gave him a description of what her unit complex looked like. Ms Rogers told him that they were the first units in Lowanna Street that he would come across and there was an underground garage that was usually left open. She told him to go into the car park and to be quiet and not to disturb the neighbours. She had a neighbour who frequently made complaints and did not want people loitering around the stairwells or at the front of the apartments.
22. Lowanna Street is in a horseshoe shape. Mr Davis and Mr Wichmann arrived at a set of apartments that was at the end of the street. Mr Davis said he thought it was Ms Rogers’ apartment block. He said that it was the only unit block around and seemed the obvious choice. He and Mr Wichmann entered the car park. They did so through the “people door”. That appears to be the door described by Mr Tegart as a “pedestrian-access gate”. Mr Davis said that the door was ajar. He explained that the door was not shut properly.
23. Mr Davis waited in the car park for Ms Rogers to arrive, but that he and Mr Wichmann started “mucking around, just roughhousing and acting like idiots really”. He said that they were wrestling and pushing each other. Mr Davis said that they were only down there for about 5 to 10 minutes.
24. When asked whether they went near a chain wire fence, Mr Davis said “more than likely”. He explained that this was because they were roughhousing. He denied having any tools with him or cutting a fence.
25. Mr Davis said that when Ms Enders came down she was screaming at them and accusing them of trying to steal her bike. He said that he tried to explain to her that they had been told to wait down there.
26. Mr Davis said it was quite possible that he or Mr Wichmann had moved the bike while they were mucking around. He denied having any intention to steal a bicycle or anything else.
27. Under cross-examination, Mr Davis said that his memory of events was not good because he had been drinking and because of the time that had passed. He said that if the prosecution witnesses heard a fence being rattled it was probably that they were banging into it when they were mucking around. He denied that any noise involving banging into the fence could have gone on for 15 minutes.
28. Mr Davis accused Ms Enders of engaging in “rabid screaming and carrying on and it was just barraging us with swear words”. That was not an allegation put to Ms Enders.
29. Mr Davis said he could not recall why he had a storm trooper helmet with him or where he got it from.
30. Mr Davis accepted that in the record of interview, he had been trying to have police accept that he had never been inside the car park. He also accepted that his evidence was now that he may have touched the bike, whereas he had told police that he had not done so. He agreed that he had lied in the interview.
31. Under cross-examination, Mr Davis initially said that Ms Rogers had not given him her address. He then said she may have. He said he would not have “recorded” the address but had been given directions (the transcript has the word as “recorded”, but he may have in fact said “recalled”; it makes no real difference in the context). The directions he was given were to go south from the ABC Building until Lowanna Street and take a left or right. He says that he should have gone left, but wrongly turned right. He ended up at the unit block at the wrong end of Lowanna Street.
32. Ms Rogers gave evidence that she lives on Lowanna Street, Braddon and had lived there at the time of the alleged offence. She was only acquainted with Mr Davis at that time, but is now in a romantic relationship with him. On the night in question, she had met Mr Davis in a nightclub and invited him to come back to her unit. Mr Davis and Mr Wichmann were going to walk to the unit while she drove with some friends to Manuka to pick up more alcohol.
33. Ms Rogers said that she gave Mr Davis some directions as to how to get there. She did not really remember the directions she gave. She volunteered that the directions “probably wouldn’t have been that great”. She told them to wait in the car park. When asked whether she described the unit complex he was to go to she said “Not really, no”.
34. Under cross-examination Ms Rogers said she barely remembered giving him directions, but would usually give people directions involving walking through Haig Park to get to her unit (a different route to the directions that Mr Davis described in his evidence).
35. When asked whether she gave Mr Davis her address she said, “I don’t think so. No, I would have given him an address…like I said I don’t know”. She then said she assumed she would have given her address. She repeated that “I probably didn’t describe any of the directions very well”.
36. Mr Wichmann gave evidence that he was with Mr Davis in the city. They walked to Braddon to meet some friends that Mr Davis had seen earlier. Mr Davis had directions. Mr Wichmann could not remember the route they took to get to the apartment because he was pretty drunk.
37. Mr Wichmann said that they arrived at a set of apartments. They entered the car park through a door. He just followed Mr Davis in. Mr Davis had told Mr Wichmann that they were waiting for his friends. After a while they started mucking around, pushing each other and roughhousing. He said that Mr Davis grabbed a bike and charged at him like a bull with it. After that some people who lived there “came down and started yelling” at them and accusing them of “stealing their stuff”.
38. When asked whether he or Mr Davis touched a wire mesh fence, Mr Wichmann said that he did not recall any fence. He said that he was very drunk. He thought that Mr Davis was equally intoxicated.
39. Mr Wichmann denied that he had any intention of stealing anything in the basement. He did not have any tools with him and did not cut any fence.
40. Mr Wichmann was asked in cross-examination about his evidence that Mr Davis took hold of a bike and charged at him with it and his specific recollection of that incident. He responded “No, I have a pretty good memory of this bit of the night when we were in the car park and like I said, we were mucking around”.
41. He was asked about Mr Davis having a storm trooper helmet, but Mr Wichmann said “No, I don’t remember anything about a helmet sorry”.
42. Mr Wichmann said that he had been friends with Mr Davis since primary school, and has remained friends with him.
The legislation and the elements
43. Section 311 of the Criminal Code 2002 (ACT) provides:
(1)A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent—
(a)to commit theft of any property in the building; or
…
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.
…
(4)For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building—
(a)for a purpose that is not the person’s intended purpose; or
(b)because of fraud, misrepresentation or someone else’s mistake.
(5)In this section:
building includes the following:
(a)a part of any building;
…
44. Section 312 of the Criminal Code provides:
A person commits an offence (aggravated burglary) if the person—
(a)commits burglary in company with 1 or more people; or
…
Maximum penalty: 2 000 penalty units, imprisonment for 20 years or both.
45. The expression “in company” is not defined. In R v Button (2002) 54 NSWLR 455, Kirby J said that what was required was participation in a common purpose. In this case the Crown alleges that the common purpose of Mr Davis and Mr Wichmann was to steal.
46. The Crown alleges, and it was not disputed, that elements of aggravated burglary are:
(a)The accused entered or remained in a building.
(b)The accused intended to enter or remain in a building.
(c)The accused was a trespasser; i.e. he had no permission to enter or remain in the building.
(d)The accused was reckless as to whether his entry into or remaining in the building is without permission.
(e)At the time of entering or remaining on the property, the accused intended to commit theft of any property in the building.
(f)The accused was “in company” at the time of committing the burglary.
(g)The accused was reckless as to the fact that he was “in company” with one or more persons.
The submissions
47. Counsel for the Crown submitted that each element of the offence had been proved beyond reasonable doubt. She submitted that the evidence of each of Mr Davis, Ms Rogers and Mr Wichmann was not credible.
48. Counsel for the Crown submitted that, in contrast, the evidence of each of the prosecution witnesses was credible. In particular, she submitted that the evidence of Mr Tegart that he had heard noises coming from the chain wire fence for about 15 minutes should be accepted. She submitted that this noise for that length of time could not be explained except by the fence being cut.
49. Counsel for the defendant submitted that there was no evidence that the fence was cut by either Mr Davis or Mr Wichmann, and that Mr Tegart’s evidence could only establish that at some point in time the fence had been cut. Counsel pointed out that there was no evidence that Mr Davis and Mr Wichmann had any cutting tools in their possession, either in the car park or later.
50. Counsel submitted that the question of whether Mr Davis had lied to police in the record of interview and use that could be made of such lies should be approached very carefully in light of the decision in Edwards v R (1993) 178 CLR 193. Counsel submitted that a possible explanation for lying was to avoid liability for trespass.
51. Counsel submitted that the evidence of the defence witnesses was plausible and gave rise to reasonable doubt. Counsel pointed out that upon being challenged, Mr Davis and Mr Wichmann immediately said that they were waiting for their friends.
52. Counsel pointed out that it was not disputed that Ms Rogers in fact lived in a unit complex in Lowanna Street at the time, which added credibility to the evidence given by the defence witnesses.
53. Counsel submitted that the fact that Ms Rogers is in a relationship with Mr Davis and that Mr Wichmann is friends with him does not mean that they would come to Court and perjure themselves. He submitted that it was relevant that Mr Wichmann had come to Court voluntarily and risked being charged for the offence, demonstrating that he did not have a guilty mind as to what happened that morning.
Directions
54. In R v Mulcahy [2010] ACTSC 98, Nield AJ set out the appropriate directions and approach in a trial by judge alone at [13] – [24]. I respectfully adopt those paragraphs. His Honour said at [13] – [24]:
13.A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
14.The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
15.The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
16.The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
17.In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
18.As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
19.I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
20.I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
21.I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
22.I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
23.The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. By giving evidence he became a witness in his trial. His evidence is not any better or any worse than the evidence of other witnesses in his trial simply because he is the accused. His evidence falls to be considered in the same way as the evidence of the other witnesses in his trial falls to be considered. However, by giving evidence he did not assume any burden, onus or obligation to prove anything in his trial.
24.In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
55. Mr Davis admitted that he had lied in his record of interview. The Crown relied on those lies as both an indication that his evidence at the trial is unreliable and as consciousness of his guilt. I must find that the accused made the relevant statements and that they amounted to deliberate lies before I can use the lies as some evidence of guilt. I must also find two further matters proved. First, I must find that what the accused said that amounts to a lie relates to an issue that is relevant to the alleged offence. It must relate to some significant circumstance or event connected with that alleged offence. Second, I must find that the reason the accused told this lie is because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offence for which he is now on trial.
56. The Crown’s case concerning the elements that the accused intended to commit theft of any property in the building and that he was “in company” are circumstantial. I am asked to infer that Mr Davis and Mr Wichmann or one of them cut the hole in the fence and entered the car park through the hole. The Crown must first persuade me that the inferences it relies on are reasonable ones to draw from the facts established by the evidence. The Crown must then prove that these are the only reasonable inferences that can be drawn from a consideration of all the established facts viewed as a whole. If there is any other reasonable conclusion open on those facts that is inconsistent with that conclusion, then the Crown’s circumstantial case has failed.
Admissibility of record of interview
57. The defence argued that Mr Davis’ arrest was unlawful and that, consequently, the record of interview should be excluded.
58. The defence argued that Acting Sergeant Smith contravened s 40B(1) of the Human Rights Act 2004 (ACT), which provides that it is unlawful for a public authority to act in a way that is incompatible with a human right, or, in making a decision, to fail to give proper consideration to a relevant human right. The human rights relied on by the defence are found in s 18 of the Human Rights Act. Section 18(1) provides that everyone has the right to liberty and security of person and, in particular, no-one may be arbitrarily arrested or detained. Section 18(2) provides that no-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law. Section 40C(4) gives the Court a discretion to refuse to admit evidence obtained in breach of s 40B(1).
59. The defence relied, in the alternative, on s 138(1) of the Evidence Act1995 (Cth) which provides, relevantly, that evidence obtained in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way.
60. Section 212 of the Crimes Act 1900 (ACT) provides:
212 Power of arrest without warrant by police officers
(1)A police officer may, without warrant, arrest a person for an offence if the police officer suspects on reasonable grounds that—
(a)the person has committed or is committing the offence; and
(b)proceedings by summons against the person would not achieve 1 or more of the following purposes:
…
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
61. The defence submits that Mr Davis was arrested when Acting Sergeant Smith stopped him on the street. It was submitted that at that point it was made plain by Acting Sergeant Smith that Mr Davis was no longer a free person: c.f. Licciardello v R [2012] ACTCA 16. I will assume, for present purposes, that this submission is correct. The issue is then whether Acting Sergeant Smith at that point suspected on reasonable grounds that Mr Davis had committed an offence and, relevantly, that proceedings by summons would not prevent the concealment, loss or destruction of evidence relating to the offence.
62. Prior to locating Mr Davis, Acting Sergeant Smith had heard a radio transmission in which a police dispatcher had said that two persons had been disturbed at an address on Lowanna Street breaking into an underground car park and attempting to steal a bike. One of the persons was described as 6ft tall with long red hair wearing a white t-shirt with black pants. Acting Sergeant Smith located Mr Davis at the corner of Dooring Street and Hope Street in Dickson, some 3 kms away. His description matched the description that had been conveyed in the radio transmission.
63. In my opinion, Acting Sergeant Smith had reasonable grounds for suspecting that Mr Davis had committed an offence. He also had reasonable grounds for believing that if he did not arrest Mr Davis, Mr Davis could conceal evidence, namely the clothing he was wearing. I therefore find that Mr Davis’ arrest was not incompatible with his human right of freedom from arbitrary arrest and detention. Further, Acting Senior Sergeant Smith gave proper consideration to Mr Davis’ human rights by arresting him only when satisfied there was a lawful basis to do so. The arrest was lawful. There is no basis for the exclusion of the record of interview.
Consideration
64. There are two issues seriously in dispute. The first is whether Mr Davis at the time of entering the property, intended to commit theft. The second is whether Mr Davis and Mr Wichmann had a common purpose to enter the car park in order to commit theft.
65. In order to find Mr Davis guilty, I would have to find that he and Mr Wichmann or one of them cut the hole in the fence to the car park and entered the car park through that hole and unlocked the bicycle from the fence with the intention of stealing it. I would also have to disbelieve his evidence that he and Mr Wichmann had been invited to Ms Rogers’ unit, that they had been told to wait in the basement for her, that they mistook the unit block at Lowanna Street for Ms Rogers’ unit block, that they entered the car park through a door that had been left ajar and that they were merely “mucking around” when they were disturbed by Ms Enders and Mr Tegart. I would have to reject Mr Davis’ evidence and the evidence of Mr Wichmann that they did not enter the car park in order to steal any property.
66. In order to find Mr Davis guilty, I would also have to either disbelieve the evidence of Ms Rogers, or regard it as being insufficiently supportive of Mr Davis’ story.
67. I have considerable doubts as to the veracity of Mr Davis’ evidence. He admitted lying to the police about not having entered the car park and not having touched the bicycle. That affects the reliability of the evidence he gave at the trial. Even at the trial, his evidence that he did not know where he got the storm trooper’s helmet from was implausible. He also seemed to me to exaggerate the extent of his intoxication in order to make his lack of recollection of details credible. He did not give any satisfactory explanation as to why he did not check the number of the unit block he was entering (although he was not really tested on this issue under cross-examination).
68. However, Mr Davis’ evidence was supported by the evidence of Mr Wichmann. Although I have doubts about the reliability of the evidence of Mr Wichmann, those doubts are not as great as they are in respect of Mr Davis’ evidence. It is of some significance that Mr Wichmann was prepared to give evidence, thereby placing himself at risk of being arrested for the same offence. It is true that he has been a long term friend of Mr Davis and his evidence about not noticing the storm trooper’s helmet (which was large and distinctive) was implausible. However, his evidence was not significantly damaged by cross-examination and the significant parts of his evidence struck me as being unsophisticated in a way that indicated a certain frankness and plausibility.
69. Ms Rogers is in a romantic relationship with Mr Davis, and no doubt had motivation to assist him. She seemed overly anxious to volunteer that the directions she gave were probably not very good. However, her evidence was left largely undamaged by cross-examination, and I cannot confidently reject the significant parts of her evidence.
70. It is of some significance that no witness gave evidence of Mr Davis or Mr Wichmann being seen in the basement in possession of any cutting implement. No such implement was found in Mr Davis’ possession when he was arrested. In addition, Mr Davis and Mr Wichmann did immediately claim that they were waiting for friends when they were confronted.
71. Mr Tegart’s evidence that the noises from the fence continued for some 15 minutes is not explained away by the roughhousing of Mr Davis and Mr Wichmann. However, it is possible that Mr Tegart was mistaken about how long the noise continued for, given that he had been woken from his sleep. In addition, no evidence about the duration of the noise was led from Ms Enders. I infer that her evidence on that issue would not have assisted the Crown’s case.
72. I think that it is of some significance that Ms Rogers in fact lived on Lowanna Street at the time of the alleged offence. It is relevant that the addresses of Ms Rogers and Ms Enders are each unit blocks with some similarity in appearance and were at opposite ends of the horseshoe. This makes it plausible that Mr Davis may have turned right instead of left and mistaken the unit block he was to wait at.
73. Although I have substantial doubts about the credibility of Mr Davis’ evidence, I cannot reject it as wholly implausible. I have a reasonable doubt as to whether, at the time of entering the property, he intended to commit theft. I also have reasonable doubt as to whether he had a common purpose with Mr Wichmann to enter the car park in order to commit theft.
74. I find Mr Davis not guilty.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Rangiah Associate: Date: 7 May 2015 |
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