R v Doolan, Le BOIS-AGIUS and Shaw
[2016] SADC 5
•29 January 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOOLAN, LE BOIS-AGIUS AND SHAW
Criminal Trial by Judge Alone
[2016] SADC 5
Reasons for the Verdicts of His Honour Judge Barrett
29 January 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES
R v Fitzgerald [2014] HCA 28; Edwards v R (1993) 178 CLR 193; Harris v R (1990) 55 SASR 321, considered.
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - SCOPE OF AGREEMENT
The accused are charged with five counts of aggravated robbery, two counts of attempted aggravated robbery, one count of aggravated assault causing harm, one count of aggravated recklessly causing serious harm, one count of aggravated serious criminal trespass and one count of theft.
The prosecution case is that the accused, with another man who has pleaded guilty, were driving around Adelaide and the suburbs committing these offences at six different locations over a twelve hour period. The prosecution led circumstantial evidence of telephone records implicating two of the accused, CCTV footage and association between the accused.
Held: All three accused are guilty of all eleven offences.
R v Zappia (2002) 84 SASR 206, considered.
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY
The accused sought the exclusion of data retrieved from telephones seized from two accused, meta data held by Optus and maps produced from that meta data.
Held: The impugned evidence is admissible and is not excluded in the exercise of judicial discretion.
Summary Offences Act 1953 s 34D, s 67(4)(a)(iii), s67(4)(c); Telecommunications (Interception and Access) Act 1979 (Cth) s 177(1), s 178(1) and (2), s 5AB(1), S 184(3); Telecommunications Act 1997 s 276, s 277, s 278; Commonwealth of Australia Constitution Act 1901 s 45A, referred to.
R v Rockford (2015) 122 SASR 391; R v Ireland (1970) 126 CLR 231; Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; Pollard v The Queen (1992) 176 CLR 177; Ridgeway v The Queen (1995) 184 CLR 19; R v Swaffield (1998) 192 CLR 159; R v Lobban (2000) 77 SARS 24.; R v Dam and Nguyen Case Stated on Questions of Law (No 2 of 2015) [2015] SASCFC 131; R v Firman (1989) 52 SASR 391, considered.
R v DOOLAN, LE BOIS-AGIUS AND SHAW
[2016] SADC 5
On Saturday 15 March 2014, from about midnight to just before midday, the occupants of a maroon Holden Calais committed robberies at 5 locations around the metropolitan area of Adelaide and an aggravated serious criminal trespass and theft at a house at Ridgehaven. The offenders carried weapons and inflicted various degrees of violence in the robberies. The offenders were young aboriginal men. One man, Cameron Ian Kent Weetra, pleaded guilty before me to all eleven charges on the Information. I remanded him for sentencing submissions. Those submissions will not be made until after this judgment is delivered.
The three accused have pleaded not guilty to all eleven charges. The prosecution case is that Weetra and the three accused were the occupants of the car and the perpetrators of all eleven offences, either as principals, or as participants in a joint enterprise. The defence case in respect of each accused is that he was not in the car at the time of each offence. He was not present. He was not a perpetrator. In fact it may be that it was not necessarily the same people in the car at the time of each offence.
The case against each accused is circumstantial. The prosecution must prove its case in respect of each count against each accused beyond reasonable doubt. It must exclude any rational hypothesis consistent with the innocence of the individual accused.
Each accused exercised his right not to give evidence.
Prosecution Case
The prosecution case is that Weetra and the three accused are the perpetrators of all eleven offences at six locations. The prosecution relies significantly on telephone evidence which it says implicates Mr Doolan and Mr Lebois-Agius. No telephone evidence implicates Mr Shaw. I will deal with that evidence separately because its admission is subject to objection. The evidence was received de bene esse.
I identify the other circumstantial evidence said to implicate the accused.
1.The Maroon Holden Calais (“the Holden”) was used in the offences at all six locations, ie Croydon Park, West Croydon, Welland, Norwood, Adelaide and Ridgehaven. Some of the property stolen from Ridgehaven was found in the car.
2.Weetra, Lebois-Agius and Shaw were passengers in the Holden at Elizabeth on the evening of 14 March, some four and a half hours before the offending began. (Doolan was not present in the car.)
3.Shaw, Lebois-Agius and Doolan arrived separately, but within minutes of each other, at the Windsor Hotel on North East Road shortly after the offending at Norwood. The Norwood incident finished at 2.07 am; Shaw arrived at the hotel at 2.21 am, Lebois-Agius at 2.26 am and Doolan at 2.30 am. (Weetra is not seen at the hotel.)
4.The location of some of the stolen property was found in a stormwater drain near the Windsor Hotel.
5.The offenders are described as young aboriginal men. Weetra and the three accused fit that description.
6.The modus operandi of the offending at five of the six locations (excluding the last at Ridgehaven) was similar including a willingness to use violence and weapons.
7.Shaw was with Weetra when Weetra was arrested on 16 March.
Preliminary findings of fact
The offending at the first three locations ie Croydon Park (count 1), West Croydon (count 2) and Welland (counts 3, 4 and 5) was committed by Weetra and three other young aboriginal men travelling in the Holden.
Weetra has pleaded guilty to these offences. He was in possession of the mobile phone of the victim of count 1 when he was arrested. DNA and finger print evidence links Weetra to some of the property belonging to the victims of the offending at Welland. That property was found in the storm water drain near the Windsor Hotel.
I find that the offending at the first three locations must have been committed by the same people. The temporal and geographic proximity of all three and the similarity of the accounts of the victims are so marked that it is plain that the same offenders were involved. That is despite the unsurprising differences between the witness’ descriptions of their attackers. I find that the same car was used.
I describe the accounts of the three attacks.
Count 1 – Aggravated robbery at Croydon Park
At about midnight Mr Guy, then 16, was attacked and robbed as he walked home from the railway station. The attackers got out of a red car. Guy saw three or four men get out of the car. While he conceded the possibility that four got out the gravamen of his evidence was that it was only three. The driver remained in the car. Guy was punched in the head. One of the attackers had what he described as a tyre iron.
Guy’s stolen mobile phone was later found in Weetra’s possession. Guy’s watch, wallet and necklace were also stolen. The event was at night. It was short and traumatic. Guy had limited opportunity to observe his attackers. He said that collectively the attackers were larger than he was and behaved in an intimidatory fashion. He did not mention the racial origin of his attackers. He described one attacker as being five foot ten inches tall, carrying the tyre iron and wearing a dark hoodie. He had an Australian accent. He could not describe the others.
Under cross-examination he thought all of the attackers were taller than he was. He thought they were all around five foot ten to eleven.[1]
[1] Transcript 59.
Because his mobile telephone was stolen he could not call the police until he got home. He rang 000 at 12.14 am. I find that the attack on him occurred around midnight.
Count 2 – Aggravated robbery at West Croydon
The second attack occurred a few hundred metres away less than five minutes later. A witness to that attack rang 000 at 12.06 am towards the end of the attack.
The victim of count two, Ms Elliott, had met up with a male friend in a park at the corner of Rosetta Street and Torrens Road. As the pair started to walk out of the park three aboriginal men ran at them. One had a pole with which he threatened Elliott. He told her to hand over her property. The others hit the male companion over the head and chased him away. Elliott’s attacker demanded her necklace. She refused to hand it over because it contained some of her partner’s ashes in it. He ripped it off her.
As this robbery was occurring a car driven by Ms Chilcott came around the corner. The three men went to the car and started hitting it. One of them hit the car with the pole. While the three were so engaged Elliott ran away. Chilcott drove around the block ringing 000 as she did. She rang at 12.06 am. As she approached the park again she met up with Elliott. She stayed with her until the police came.
Elliott described the man who robbed her as shorter than five foot seven inches, wearing a dark grey hoodie and having a scraggly goatee beard. She said she could not describe the other two. She said they were Aboriginal.
Chilcott could not describe the men except to say that one was aboriginal and one was wearing a grey hooded jumper.
I am satisfied that CCTV footage from a camera located in a shop opposite the park[2] captured part of the incident. The footage shows three men running and getting into a car. The car drove off immediately. That suggests that there were at least four people in the car. The car did a U-turn and went into the direction of Torrens Road.
[2] Exhibit P11.
Counts 3 and 4 – Aggravated robbery and Count 5 – Aggravated assault causing harm at Welland
The third attack was at 12.16 am on three women who had just finished their midnight shift at Coles in Welland. The location is a five minute drive from the site of the second attack. Defence counsel do not concede that this third attack was by the same group of people who committed the first two, but I find that it was. The proximity in time and location and the similarity of the attacks makes that conclusion overwhelming. Plainly the same car was being used.
Before dealing with the third attack I turn to the evidence of CCTV footage from the Welland Plaza[3] and the On The Run Service Station (“OTR”) at Port Road.[4] Footage on the OTR shows the Holden turning right across the Port Road median strip from the Adelaide bound lanes. The car crosses the median strip then crosses the Port Adelaide bound lanes. It enters the vicinity of the OTR. The registration number of the Holden is visible. Weetra is caught on CCTV footage at the OTR. He goes into the shop and makes a purchase. He is wearing a hoodie. Footage of the car parked outside shows that while Weetra is in the shop there is someone visible in the front passenger seat of the car.
[3] Exhibit P13.
[4] Exhibit P12.
The Welland Plaza is adjacent to the OTR. Footage from two locations in the Welland Plaza shows the progress of the Holden before the attack on the women. The car drives past where the three women are standing chatting in the car park just outside the Coles building they had just left. The car drives around the corner out of their sight and pulls up nearby. The footage does not show the attack. The three women are then attacked by three men who run towards them. There is some slight challenge to the number of men seen by the women but I am satisfied that the gravamen of the women’s evidence is that three men carried out the attack while a fourth remained in the driver’s seat of the car.
One of the victims rang 000 at 12.16 am straight after the Holden drove off. While the description of the offenders by the three women differs slightly, the total effect of their evidence is that the three attackers were aboriginal and wearing hoodies. One woman said that one of the attackers had a golf iron. Another said that she saw a machete.[5] One of the victims Ms Carson described the three attackers as follows:
Man 1 Wearing a white jacket;
Man 2 Slim, five foot five inches, wearing a hoodie and carrying a golf iron;
Man 3 Five foot nine to ten inches carrying machete.
[5] T94.
Another victim, Ms Murphy, said one man had a golf stick and was taller than she is. She is 173 cm tall. Another man was her own height or taller and one wore a bandana. Both women had their handbags stolen. Some of the property of the women was found in the stormwater drain near the Windsor Hotel.
The third victim, Ms Neale, did not have a handbag. She tried to protect one of the other women from the attack. She was assaulted about the head and body. She had to have her head injury stapled. Nothing was stolen from her. Count 5, the charge of aggravated assault causing harm, relates to her. She said that two men were about the same height as each other and both were taller than she is. She is five foot one inches tall. The third man was taller still and was of a larger build.
The attack at Welland finished just before one of the victims made the 000 call at 12.16 am.
Counts 6 and 7 – Attempted aggravated robbery and Count 8 – Aggravated recklessly causing serious harm at Norwood
The next attack was at Norwood just under two hours later. One of the victims, Mr Verlingieri, rang 000 at 2.05 am while the offenders were still at the scene. Verlingieri was still on the telephone to police when he told them at 2.07 am that the men had just run off. Despite the police noting that part of Verlingieri’s report, Verlingieri allowed in cross-examination that it was possibly 2.10 am “before it was all over”.[6]
[6] T160.
I find that Weetra and three others, travelling in the Holden, committed the offences at Norwood. Counts 6 and 7, the attempted aggravated robberies, relate to the victims Watzdorf and Verlingieri. Count 8 relates to the aggravated recklessly causing serious harm to Mr Prohoroff. Weetra has pleaded guilty to all three offences.
Ms Watzdorf speaks of the attackers getting out of a red Holden sedan. Verlingieri describes the car as a dark coloured, older Holden Commodore. A witness, Mr Smith describes the car as an older Holden Commodore.
Watzdorf and Verlingieri speak of three attackers. Smith says there were four people in the car when the last two attackers got back into the car.[7] It appears that he told the police on the night that he saw only one attacker get into the car and did not mention that he saw three altogether in the car. Nevertheless I find that the combined evidence of all three witnesses suggests that there was a driver and three attackers, just as there had been in the earlier attacks at Croydon Park, West Croydon and Welland.
[7] T167.
Watzdorf described the man who attacked her as having dark skin, five foot eight inches high, athletic build wearing a sweat shirt and black track pants. She could not describe the other two men apart from saying they were roughly similar height. She, like Ms Elliott from West Croydon, had her necklace torn off.
She saw another attacker hit Prohoroff in the face with a fire poker. The poker was left at the scene and was seized by police. (P51).
Verlingieri said that the man who approached him demanding his property and was armed with something that he said looked like a knife, machete or metal pole.[8] The assailant threw Verlingieri into a fence. The assailant then became distracted by what was happening with the others and told Verlingieri to run away. Verlingieri went away for a short distance but started walking back to the incident involving the others. As he walked back he rang 000 at 2.05 am. Watzdorf approached him. He saw Prohoroff injured on the ground. He told police the assailants had gone. Police noted the time of that observation as 2.07 am. Another caller (identified as Claire Burke) reported the attack at 2.06 am. I find that this attack finished at 2.07 am.
[8] T152.
Verlingieri described his assailant as 170-175 cm tall, seemingly athletic, wearing a white hoodie and with a balaclava over his face. He could not describe the other two apart from saying they appeared similar.
Smith lived in a house near the scene of the attack. He was woken by a woman screaming. He went outside. He saw a man attacking a woman. He said the man had dark skin, was aged under 25 and was 160 cm tall weighing 60-70 kilograms. The man was trying to kick the woman in the shoulder or head. He held a metal pole. Smith told him to drop the weapon which he did. That was the pole seized by the police.
The car then drove along the street. Smith described it as an older, VK or VL, Commodore, dark maroon.
He had noticed two other assailants in the street besides the man attacking the woman. He thought they were 160 cm tall weighing 60-70 kilograms. He said the driver of the car was wearing a hat, a peaked or sports hat. He may have been wearing glasses although Smith could not be clear about that.
Prohoroff was not called as a witness. He is overseas. Documents relating to him were tendered[9] including one describing his presentation and treatment at hospital.
[9] Exhibit P49.
Count 8 is the charge of aggravated recklessly causing serious harm to Prohoroff. I find that injuries sustained by him amounted to serious harm within the meaning of s 23(3) of the Criminal Law Consolidation Act 1935. Serious harm includes:
Serious and protracted impairment of a physical ... function.
Prohoroff was hit in the jaw with a metal rod. He suffered a complex fracture of the jaw. As well as the fractured jaw, several teeth were “displaced”. He was put on a non-chew diet for six weeks. The injuries and impairment fit the definition of serious harm. The assailant was at the very least reckless as to whether serious harm might result. Subject to identifying the assailant or assailants, count 8 is otherwise proved.
I find that the assailants had reached their car by 2.07 am. The car drove south along Sydenham Road, ie away from Magill Road. It turned left going east up Norwood Parade.
The Windsor Hotel
Defence counsel did not concede that their clients are depicted in the CCTV footage taken from the Windsor Hotel from 2.21 am. However they conceded that it was open for me to so find. In fact they each made comparisons between the clothing of the men depicted in the footage and the descriptions given by the witnesses. I am satisfied that all three of the accused are shown in the footage. The likeness of the men depicted in the CCTV footage to each accused is overwhelming.
I find that there is no reason to doubt the accuracy of the times shown on the footage, nor the accuracy of the recordings themselves. The accuracy of the timings on the cameras was checked as accurate by the security technician, Mr Rooney, on 21 March 2014, six days after the footage was recorded. That was the same day on which the police seized the footage. The voir dire Exhibit VD-P44 becomes Exhibit P44. The footage was only from the gaming area of the hotel. I will deal with the implications of the footage later, but I make findings of fact about some aspects of what is depicted.
I find that the footage records the following.
Shaw
He entered the gaming room at 2.21 am alone. He came from the direction of the side door entrance to the hotel. He had a goatee beard. He left the gaming room with Doolan thirteen minutes later at 2.34 am. Doolan had only been in the gaming room for four minutes. Shaw is wearing a dark hoodie with a “Tap Out” logo on the front.
Lebois-Agius
He entered the gaming room at 2.26 am alone. He entered from the rear car park entrance. He is wearing a dark coloured hoodie with lighter coloured lining. The hoodie had a Nike logo on it. He is wearing a dark baseball cap put on backwards. He sees but barely acknowledges Doolan. He remains in the hotel for only five minutes, leaving at 2.31 am. He leaves in the company of a large Aboriginal man who has been referred to in addresses as Mr Varcoe. I am not sure that that man is so identified in the evidence, but because nothing turns on his identity, I will refer to him as Varcoe. Lebois-Agius spends most of the time in the room in the company of Varcoe.
Doolan
He entered alone at 2.30 am from the car park entrance. He is wearing a blue tee-shirt with a “Tap Out” logo on the front. He spends only four minutes in the hotel leaving at 2.34 am with Shaw.
Weetra
Weetra is not depicted in the footage.
Norwood to Windsor Hotel
Police sought to demonstrate the time it would take to drive from the crime scene at Norwood to the Windsor Hotel on North East Road. Detective Callado drove that route three times between 1.15 and 2.15 am. The route began at the corner of Sydenham and Magill Roads. He kept to the speed limits and obeyed traffic lights. He took three slightly different routes. Each trip took between 10 and 11 minutes. It should be noted that the offenders were last seen at the southern end of Sydenham Road which intersects with Norwood Parade. Callado began his journey to the Windsor Hotel at the northern end of Sydenham Road where it intersects with Magill Road. So his journey would have been shorter than that which would have been made by the Holden if it had driven to the Windsor Hotel. There is no evidence about how much longer it would take to drive from the southern end of Sydenham Road. The tendered map, Exhibit P1, shows that the distance is not that great although it might depend on which route was taken from Norwood Parade end.
I find that it would be possible to travel from the southern end of Sydenham Road to the Windsor Hotel in 11 to 12 minutes at around 2 am if one were to exceed the speed limit.
I make a further finding about the movements of the Holden on 15 March. At 1.43 am the car was photographed going through a red traffic light at the intersection of Main North Road and Regency Road. The car turned right, going west into Regency Road. The 000 call from Verlingieri while the Norwood crimes were being committed began at 2.05 am. I infer that the offending began shortly after 2 am. Although there is no evidence of the time it might take to drive from the intersection of Main North and Regency Roads to Norwood, I take judicial notice of the fact that those two locations are not so far apart that the distance could not be covered in 17 minutes, even allowing for the fact that the journey started with the car heading west from the Regency Road intersection. Norwood is south-east from that intersection. The evidence that the Holden was used at the Norwood crime scene is overwhelming. The witnesses’ descriptions of the car are consistent. Weetra has pleaded guilty. Advisedly no one suggested that the Holden being photographed on Main North Road is inconsistent with the Holden being used at the Norwood crime scene.
Alibi
No counsel for the accused explicitly submitted that their clients’ defence was an alibi arising from their being at the Windsor Hotel at the time of the Norwood offending. As I have mentioned no counsel conceded that his client is depicted in the Windsor Hotel footage. In fact Mr Vadasz and Mr Coates objected to the admission of the Windsor Hotel footage.[10] The evidence was received de bene esse and the footage marked on the voir dire.
[10] Exhibit P44.
On the other hand each counsel said it was open for me to find that their client was depicted, and as I have already indicated, each made submissions that their appearance in the hotel, particularly their clothing, was inconsistent with the victims’ description of the offenders at Norwood.
I have already found that the footage depicts the three accused. I also find that the footage is accurate and reliable as to date and time.
With those findings I deal with the implied defence of alibi for the three accused so far as the Norwood offending is concerned.
In passing I note that while no alibi notice was filed, none was required. Section 285C of the Criminal Law Consolidation Act enables an adverse comment to be made only where evidence of alibi is presented. No alibi evidence was presented. The accused are each entitled to submit that the prosecution evidence provides them with an alibi.
The alibi hypothesis takes several forms. First, it is suggested that the time between the Norwood offending and the accused’s staggered appearance at the hotel is “tight”. I agree but I have already found that it is possible for the accused to have made it. There was fourteen minutes between the Norwood offending ending at 2.07 am and Shaw’s arrival at 2.21 am. I think that it would have been possible to make that trip in 11-12 minutes if the speed limit was exceeded.
Second, it is submitted that the prosecution has not demonstrated that the defendants were not in other sections of the hotel not depicted in the gaming room CCTV. Detective Callado said that he looked at other footage from the hotel for the relevant time but found nothing of relevance.[11] It is true that no witness from the hotel gave evidence of the operating hours of the sections of the hotel on the relevant night. Nor was there any comprehensive evidence of the exact location of other cameras.
[11] T616.
Nevertheless I am satisfied on the basis of Callado’s evidence that there is no footage from other parts of the hotel showing any of the accused. That leaves the evidence of their presence in the gaming room at the times indicated.
The defence hypothesis is that the three accused either arranged to meet up to socialise at the hotel or they coincidentally turned up there. I think that the footage itself makes that hypothesis unsustainable.
Shaw spends thirteen minutes in the hotel. He begins to leave with Doolan but veers away to leave separately in the direction of a side door. He returns again quickly to take the same route as Doolan. I think it is likely from other parts of the footage that a staff member closed that side door at 2.30 am. When Shaw discovered that, he ran back to the rear door to catch up with Doolan.
Lebois-Agius spends only five minutes in the hotel, leaving with Varcoe. Doolan spends only four minutes there, leaving with Shaw. Despite the close association between Doolan and Lebois-Agius, they barely acknowledge each other.
The footage is far more consistent with the prosecution hypothesis which is that the three set out to give themselves a recorded alibi. They have arrived separately to give the appearance of not being together. They do not stay to socialise.
The further submission is that their appearances do not fit the descriptions of the Norwood witnesses. In particular, no witness noted the particular clothing of each. No one noted Shaw’s “Tap Out” jumper or Lebois-Agius’ baseball cap or Doolan’s blue “Tap Out” tee-shirt. However, Shaw and Lebois-Agius were wearing hoodies. Verlingieri described his assailant as wearing a white hoodie with a balaclava over his face. Lebois-Agius’ hoodie was dark on the outside but light on the inside. While the burden of proof rests entirely on the prosecution I do not think these observations about descriptions particularly help any accused.
Again, while the burden of proof beyond reasonable doubt rests entirely on the prosecution, the prosecution hypothesis of an attempted alibi is much more persuasive than the implied defence of alibi.
Count 9 – Aggravated robbery at Adelaide
The next offending was at Victoria Drive near the junction with King William Street, Adelaide. It occurred at about 6 am. This is some four hours after the Norwood offending. Two women were walking to their car on Victoria Drive. They had come from the casino. Weetra has pleaded guilty to this offence.
There is no doubt that the Holden was used in this offending despite the witness describing the colour of the assailant’s car as green. The Holden, with its distinctive missing front right hubcap, is shown on CCTV[12] entering Victoria Drive from King William Street at 5.58 am. It is seen leaving Victoria Drive to Frome Road at 6.03 am. One of the women was approached by a single assailant. The victim of the robbery, Ms Liao Chih-Ting was not called as a witness. Her companion Ms Yeh Hui-Chu gave evidence. Ms Yeh gave evidence that the robbery took place at 6 am. It is an agreed fact that the women reported the matter to the Hindley Street police at 6.20. They were taken there by a passerby who came to their assistance. The sole assailant grabbed the victim’s handbag, but the contents fell out on to the road. The victim was screaming. The assailant fell onto the lawn. He produced a knife. He gathered together the contents of the bag and took them away. A screwdriver was later found at the scene. Yeh said that the sole assailant had dark skin. He had hair on his chin. He wore a hoodie. He had black shorts. He was taller than she was. She is 160 centimetres tall.
[12] Exhibit P14.
A live question about this offending is how many people accompanied the sole assailant.
I am satisfied that there were at least four people in the car when it left. Yeh said that as the sole assailant ran away from them, a car reversed from a parked position in Victoria Drive. She noticed two people in the front of the car. She was not sure how many people were in the back. But as the car reversed, the back driver’s side door was opened from the inside to let the assailant in. It is possible, although difficult, for the driver to have opened that door while reversing the car. I think it more likely that it was opened by someone in the back seat. Once the assailant got into the car, I find that there were at least four people inside it.
Counts 10 and 11 – Aggravated serious criminal trespass in a place of residence and theft at Ridgehaven.
The final offending occurred at Ridgehaven at about 11.49 am. Three Aboriginal men broke into the house of Ms Lloyd while she was out voting. Her son, Mr Rose, had taken her to the polling booth. As he was pulling into his mother’s driveway he noticed the maroon Holden already in the driveway. It was plain from later evidence that the driver was already in the driver’s seat or he managed to get back to the car before the other three got to it.
Rose noticed two Aboriginal men wearing hoodies getting out of a window of the house. He chased them around the side of the house. There he saw a third Aboriginal man with a hoodie. The three ran to the Holden which then drove away.
A couple from next door saw parts of what happened. One of the thieves confronted the male neighbour with a screwdriver as the neighbour started to give chase. Taking together the evidence of Ms Lloyd, her son and the two neighbours, it is clear that three Aboriginal men went into the house while the driver remained either in the car or in a position to get into the car quickly.
Rose was only able to describe one offender, the one who had confronted the neighbour with a screwdriver. He said the man was Aboriginal, clean shaven, in his late teens or early 20s and 5 feet 8 to 9 inches tall.
The male neighbour was also only able to describe the man who confronted him. He said that the man was Aboriginal, slim, about 180cm tall, wearing a dark windcheater with a rounded peak baseball cap, a patchy beard and in his early 20s.[13]
[13] T18.
Lloyd was not asked to describe the men. She said that her blue jewellery box and its contents were among the items stolen from her house. The jewellery box was later located by police in the Holden.
The female neighbour was only able to describe the man who confronted her partner. She described him in much the same way as her partner did except that she described the man’s build as “stocky, not overweight, not skinny. He had a hood and black baseball cap. He had facial hair but not a beard.”[14]
[14] T201-2.
Descriptions of the accused
Evidence was given about the ages and descriptions of Weetra and the three accused at about the time of this offending. Photographs of the three accused appear in the identification photograph arrays presented to several of the civilian witnesses.[15] None of the witnesses identified any of the accused. Some were unable to make any identification and others identified people other than the accused. The results of the identification procedures are contained in paragraph 8 of the Agreed Facts.[16]
[15] Exhibit P48.
[16] Exhibit P47.
Detective Bell gave evidence[17] of the heights and the dates of birth of each of the accused. He provided the date on which their height was recorded. Those details are as follows. (I have provided the “old system” heights.)
[17] T328.
Shaw aged 30 as at 15 March 2014
born 1 September 1983
172 centimetres or 5 foot 7.7 inches as at 7 August 2014Doolan aged 23 as at 15 March 2014
born 12 March 1991
180 centimetres or 5 foot 10.8 inches as at 15 September 2015Lebois-Agius aged 22 as at 15 March 2014
born 2 October 1991
165 centimetres or 5 foot 4.1 inches as at 20 May 2014Weetra aged 19 as at 15 March 2014
born on 28 July 1994
170 centimetres or 5 foot 6.9 inches as at 5 September 2015Comparisons
I do not think it is a helpful exercise to compare in any detail the descriptions of the assailants and the descriptions of the accused. None of the victims was in a good position to carefully observe the assailants. In those circumstances heights would be difficult to estimate. Clothes such as hoodies might obscure facial features. Clothes can be easily donned or discarded or swapped. Weapons may be used interchangeably.
Perhaps the best illustration of these general observations is the comparison of the evidence of the witnesses at the first three locations, ie Croydon Park, West Croydon and Welland. I am satisfied that the same group of four men was at each location. With the unlikely possibility that they swapped drivers at each location, the assailants were probably the same. Yet the witnesses give varying heights of the assailants. Different clothing is reported. Hoodies are a common feature but a lone witness at Welland speaks of a bandana being worn. A lone witness at Welland speaks of a machete being used. Only one witness at West Croydon speaks of seeing a straggly beard. The only common features are that the assailants were young Aboriginal men, none especially tall and none of a large build. They were carrying weapons. They were using them both to threaten and to assault.
The victims’ descriptions taken as a whole might occasionally fit a particular accused but I would not be willing to draw a conclusion adverse to that accused from that evidence. Conversely I am not willing to exclude any particular accused because of an imperfect fit at a particular location.
None of the three accused is excluded as being part of the group at each location. Each is a young Aboriginal man, not especially tall and not of a large build.
At one stage Mr Vadasz suggested someone such as Mr Varcoe, the man who left the Winsor Hotel with Lebois-Agius, could have been the driver of the Holden. I say only this. No one observed the driver at any location (except Smith at Norwood who thought he might have worn a cap), but if Varcoe did get out of the car and was one of the assailants, his rather large build would distinguish him from Weetra and three accused. None of the witnesses described such a person.
Did the same group commit all eleven offences?
I have concluded that Weetra and three others, travelling in the Holden, were present at all six locations. The question then is whether it was the same three men each time. I am satisfied it was the same three men at the first three locations, ie Croydon Park (count 1) West Croydon (count 2) and Welland (counts 3, 4 and 5). There was then a nearly two hour gap before the Norwood offending, nearly a four hour gap between the Norwood and Adelaide offending and almost six hours after that before the Ridgehaven offending. There was plainly time for individuals to leave the group and to be replaced by others.
Mr Edge advanced reasons why it would be unlikely that the offenders would change. His first submission is that the modus operandi of the group does not change. The group attacks vulnerable single people (counts 1, 2 and 9) or small groups (Welland 3 and Norwood 3). The group runs at the victims and, where there is a group, tries to separate them. The group is willing to use violence and weapons.
While that is true of the offences at the first five locations, the Ridgehaven offending is different. That is a trespass and theft. However, even there, one offender is willing to confront the neighbour with a screwdriver when the neighbour chases him. It also has to be noted that in Adelaide there was only one assailant. However, again a weapon was used.
The second consideration is that, although there are differences between the descriptions of the offenders at each location, ie the offenders who get out of the car, there is no marked difference between them. No one speaks of a very tall or a very large man. There is no old man.
A further consideration is that it is likely that those involved would wish to keep the numbers to a minimum to reduce the risk of detection. Each member dropping out, and each new member joining the group, increases the risk of detection.
Mr Edge submitted that another reason is that the property stolen would have to be shared between a larger number if there were changes. I do not think that submission is sustainable. I expect that any new member joining the group might be given to understand that he could only share in the spoils of crimes he helps to commit.
On balance, I think it is more likely than not that Weetra had the same three co-offenders at each location.
Joint responsibility
I am satisfied that whoever went to each location was part of a joint enterprise to commit the offences which occurred there.
I find that at Croydon Park, West Croydon, Welland, Norwood and Ridgehaven, three people got out of the car and set about committing the relevant offences. At Croydon Park and West Croydon, three men got out and facilitated the robberies on Guy (count 1) and Elliott (count 2). At Welland three got out and set about robbing Carson (count 3) and Murphy (count 4). The assault on Neill (count 5) was foreseen by the others. She was attacked when she tried to help one of her colleagues.
At Norwood, all three assailants set out to rob Watzdorf (count 6) and Verlingieri (count 7). All knew that weapons were being carried. It was foreseeable by all of them that a weapon might be used on Prohoroff (count 8) and that he might sustain serious harm as a result. While robbery was the plan at Welland and Norwood, the attacks on Neill and Prohoroff were incidents of the plan.
In Adelaide, I am satisfied that all the occupants of the Holden knew that one of their number was setting out to rob Liao (count 9). The back door was opened for him to get back in the car after the attack and the car was quickly driven away. The sole assailant carried out the plan that was agreed to by all of them.
At Ridgehaven, three of the thieves joined in facilitating the entry into and theft from the Lloyd house (counts 10 and 11).
At all six locations the driver knew what was about to happen and he was ready to play his part in the commission of the crime. Everything that happened was foreseeable by him.
Where what occurs is no more than an incident of a common design, those who are party to the plan are responsible for an incidental occurrence.[18]
[18] R v Zappia (2002) 84 SASR 206.
Telephone evidence
The prosecution case is that telephone evidence links Doolan and Lebois-Agius to the offending. No telephone evidence implicates Shaw. The telephone evidence implicating Doolan and Lebois-Agius comes partly from messages found on the two phones seized from Lebois-Agius and his partner, and the single phone seized from Doolan. In addition there is meta data held by the server of the telephones, Optus, which implicates both accused. At the end of the prosecution case counsel for these two accused mounted various challenges to the admissibility of the telephone evidence. I ruled that the evidence was admissible. I now provide the reasons for so doing.
For convenience I will refer to the phones as if they belong to, or were in the possession of Rankine, Lebois-Agius or Doolan but I accept that the prosecution must prove those facts. In fact I accept that the prosecution must prove beyond reasonable doubt that each accused possessed his phone at the scene of each offending.
Lebois-Agius submits that the search and seizure of the two telephones at his house was unlawful. The evidence derived from those phones is thus either inadmissible or should be excluded in the exercise of the judicial discretion.
Doolan does not challenge the seizure of the phone from him. It was part of his property when he was arrested. His objection is to the Optus evidence suggesting the likely location of the phone at relevant times. He submits that the data was obtained illegally. It is inadmissible or it should be excluded. Lebois-Agius adopts these submissions and raises other objections.
I turn to the phones seized from Lebois-Agius’ house.
On 16 March 2014 police went to Lebois-Agius’ house having been told by Weetra, after his arrest, that Lebois-Agius and Doolan were also involved in the offending. Weetra told the police that the car used by them all might be found at Lebois-Agius’ address.
At 41 Butterfield Road, Elizabeth, the house of Lebois-Agius and his partner, Raquel Rankine, police asked both occupants together where Lebois-Agius had been over the weekend. They both said that he had been home all the time. While conducting a search of the house police located two mobile telephones. Detective Rigano interrogated the two telephones while at the house. He saw that phone messages on the telephones suggested that Lebois-Agius was not at home for the whole of the weekend. Upon that discovery police seized the two mobile phones. Lebois-Agius challenges the seizure of the telephones. He says that the search of the house was tainted by illegality and impropriety. He says the questioning of him about his whereabouts, which partly led to the suspicion attaching to the telephones, is also tainted by illegality or impropriety. Lebois-Agius submits that the fruits of the search and the fruits of the questioning should be excluded in the exercise of the fairness and public policy discretions.
It is convenient to deal first with Lebois-Agius’ submission about the illegality or impropriety of eliciting the information from Weetra which led to the search of Lebois-Agius’ house.
Weetra was arrested by Detective Rigano at 47 Tasman Avenue Gilles Plains at about 4.05 pm on 16 March. There was apparently some resistance by Weetra at the time of his arrest. Rigano said that Weetra was angry at being arrested. He was the first person arrested for the offending. Although Shaw was actually sharing a bed with Weetra when police went to Tasman Avenue, Shaw was not arrested. Weetra was arrested partly because he was clearly identifiable on some of the CCTV footage of the service station at Welland, which was proximate in time and place to the robberies and the assault the subject of counts 3, 4 and 5. Weetra was also associated with the Holden. It was plainly visible on the CCTV footage.
Upon his arrest police located on Weetra the phone stolen from the victim of count 1, the robbery at Croydon Park.
Rigano gave Weetra his arrest rights in the police car on the way back to the Holden Hill Police Station. That conversation was recorded on video at about 4.45 pm.[19] The transcript suggests that Weetra was angry and was unwilling to answer Rigano’s questions. He wanted to speak to his lawyer.
[19] Exhibit VD-P28.
About 5 pm Weetra was placed in an interview room at the Holden Hill Police Station. Rigano resumed his recorded interview with Weetra at about 6 pm.[20] In between 5 and 6 pm there is no recorded conversation with anyone. Rigano says that he nevertheless spoke to Weetra. He said when he did so he did not intend to continue his interview because Weetra had indicated that he would not answer his questions. He wanted to speak to his lawyer. Rigano was making attempts to contact the lawyer but in the end without success. Rigano said that in the unrecorded conversation Weetra was angry that he was the only person being arrested for the offending. He said Weetra calmed down somewhat and said that he might assist the police in their enquiries but he would not speak to him in that regard.
[20] Exhibit VD-P28.
Someone, possibly Rigano, although that is not clear, told Detective Bell and/or Detective Finoia that Weetra might be willing to tell the police something about the offending. Bell and Finoia went to speak to Weetra. Bell says that Weetra had a good rapport with Finoia. Weetra told them that Doolan and Lebois-Agius were involved in the offending. He made no mention of Shaw. He said that the car that was used would be at Lebois-Agius’ house. Bell says that he and Finoia were only in the room speaking with Weetra for about a minute. On leaving the room they told Rigano something of what Weetra had imparted to them. They planned to go off and search Lebois-Agius’ house.
Bell said that his conversation with Weetra was the sort of conversation he and other police might have with suspects for the purpose of debriefing, by which I take him to mean gathering intelligence. The conversation was not recorded so as to protect Weetra.[21] Bell acknowledged that if the conversation with Weetra was sought to be used against Weetra, it would be in breach of s 34D of the Summary Offences Act 1953. Plainly no such conversation would be admitted against Weetra. In the event, when Rigano resumed his recorded conversation with Weetra at 6 pm, Weetra continued being abusive and refused to answer questions. However he did remark during the conversation[22] that he had already told “the other two officers” who was involved, who had the car, and where they and the car were.
[21] T354.
[22] Exhibit VD-P28.
Bell and other police, including Rigano, got to Lebois-Agius’ house at about 8 pm. The house was searched using Bell’s general search warrant. On approaching the house Bell saw that the car they were looking for was not there. During the search they found nothing incriminating in the house except the two mobile phones belonging to Lebois-Agius and his partner, Raquel Rankine. There were pictures of the phones tending to identify which phone belonged to whom. I will return to that topic later.
The phones were seized partly because Bell, while at the house, asked Lebois-Agius in the presence of his partner where he had been over the weekend. Both replied that Lebois-Agius had been home all the time. They nominated people who had visited them. Another officer interrogated the mobile phones and found that there appeared to be “user traffic” between the two suggesting that they had not been together in the same place all weekend. Inconsistency between that observation and what they had both said led to the phones being seized.
The first challenge to the admissibility of the phones and the evidence derived from them relates to the circumstances in which the police came to be at the house in the first place.
Lebois-Agius seeks the exclusion of the information derived from the phones on three bases:
1.Weetra’s implication of him was elicited in circumstances of illegality and impropriety. The prosecution should not be permitted to lead evidence which is the fruit of that illegality or impropriety.
2.Weetra’s implication of him was so unreliable that it could not found to the requisite state of mind in Bell necessary to conduct a search pursuant to the general search warrant. That is reinforced by the police not seeing the car.
3.If Weetra’s implication of Lebois-Agius was treated as reliable by Bell in particular, Bell should not have questioned Lebois-Agius without first giving him a caution. That questioning was illegal or improper and insofar as Lebois-Agius’ or Rankine’s answers caused the police to seize the phones, the prosecution should not be permitted to rely on that illegality or impropriety.
This objection seeks the exclusion of the statement of Lebois-Agius itself. The prosecution seeks to rely on both the oral statement made by Lebois-Agius and the written copy of it which Lebois-Agius signed on 30 March. The prosecution relies on Lebois-Agius’ lie being told out of a consciousness of guilt.
I deal first with the submission that the prosecution should be denied the fruits of the illegally or improperly elicited information from Weetra. There is no doubt that if the prosecution sought to use what Weetra said to Bell against Weetra himself, the evidence would be excluded. Weetra had declined to answer more questions in the police car. He said he wanted to speak to his lawyer. Bell’s conversations were not recorded in any way. The public policy and fairness discretions would see the conversation excluded.
Mr Coates submits that at least the public policy discretion should lead to the exclusion of the fruits of Weetra’s information.
Mr Coates referred to the exposition of the exclusory discretions in familiar authorities. Those authorities are gathered together in the judgment of Kourakis CJ and Sulan J in R v Rockford.[23] Their Honours cite the cases of R v Ireland;[24] Bunning v Cross;[25] Cleland v The Queen;[26] Pollard v The Queen;[27] Ridgeway v The Queen;[28] R v Swaffield;[29] R v Lobban.[30]
[23] (2015) 122 SASR 391 at pages 397 to 400.
[24] (1970) 126 CLR 321.
[25] (1978) 141 CLR 54.
[26] (1982) 151 CLR 1.
[27] (1992) 176 CLR 177.
[28] (1995) 184 CLR 19.
[29] (1998) 192 CLR 159.
[30] (2000) 77 SASR 24.
I immediately recognise the application of those authorities to evidence implicating the person who is the direct object of an illegality or impropriety. Evidence implicating that person will be liable to discretionary exclusion. However none of those authorities bears on intelligence leading to the investigation of a third party. The evidence of Weetra is not evidence against Lebois-Agius. It is merely information leading to an investigation into Lebois-Agius’ involvement. The information did not itself result in Lebois-Agius’ arrest. He was not arrested until 7 August 2014. The evidence of Weetra’s implication of Lebois-Agius is not led in support of the prosecution case against Lebois-Agius. It is led only on the voir dire to determine the admissibility of the other evidence implicating Lebois-Agius.
I decline to exclude the fruits of the search of Lebois-Agius’ house on the ground of the alleged illegality or impropriety in the conversation Bell had with Weetra. I make no finding that the conversation was in the circumstances illegal or improper.
I have found that the search at Lebois-Agius’ house was not tainted by any illegality or impropriety arising from the conversations between Bell and Weetra. However that is not the only challenge mounted by Lebois-Agius. He submits that the police had no power to search the house.
When police arrived at the house it was plain that the car was not there. I do not accept Mr Coates’ submission that the absence of the car disentitled the police to search the house.
Section 67(4)(a)(iii) of the Summary Offences Act 1953 empowers the holder of a general search warrant to search any house where a police officer has reasonable cause to suspect that “there is anything that may afford evidence as to the commission of an offence”. The absence of the car did not mean that there might not be stolen property or weapons or other evidence of the crimes at the house. Weetra’s information was sufficient to found the requisite suspicion. Mobile phones are notoriously capable of providing evidence of offending. I think that the information the police had when they went to the house would alone have been sufficient to enable the police to seize the two telephones they found there pursuant to s 67(4)(c).
Mr Coates submits that Weetra was not a reliable witness and information from him would not be sufficient to form the necessary suspicion. I do not agree. As I pointed out the course of submissions, a suspect being questioned by police may not be truthful or reliable as to his own involvement but may be quite truthful and reliable when he implicates others. I find that the information that Weetra was willing to impart gave the police sufficient power to search the house and seize anything that might afford evidence as to the commission of an offence. The mobile phones were such evidence.
However before seizing the phones the police had further information which provided grounds for the seizure. That information came from what Lebois-Agius and his partner, Raquel Rigney, said to police. What they said to the police is itself the subject of an exclusory application.
Bell said that when he entered the house he presented his search warrant to Rankine and read it to her. He stood in the vicinity of her and Lebois-Agius in the lounge/dining room/kitchen area while the other officers searched the house. While looking for some surface to put his notebook on he noticed the two mobile phones. He handed them to Rigano and Finoia. I think the search warrant entitled him to do that. It also entitled Rigano and Finoia to interrogate the phones, ie, to search them.
Bell then asked Lebois-Agius and Rigney where Lebois-Agius had been over the weekend.[31] Both said that he had been home all weekend. At the point when Bell asked that question, nothing had been located in the house to implicate Lebois-Agius. In fact, apart from the telephones, nothing was noticed or seized at the house that day. Bell did not caution Lebois-Agius or Rigney before he asked the question. In my view he was not obliged to caution at that stage. He was not proposing to interview or arrest Lebois-Agius. In fact Lebois-Agius was not arrested until 7 August 2014. Bell was just beginning his investigations into Lebois-Agius’ possible involvement based solely on what Weetra had told him. A police officer is entitled to ask people questions. In R v Dam and Nguyen[32] Vanstone J (Kelly J and David AJ agreeing) said that a police officer does not have to have any statutory authority or reasonable suspicion of an offence before asking someone questions. Only when the police officer suspects on reasonable grounds that the person has committed an offence does he have to caution him. I do not think that Bell had reasonable grounds to suspect Lebois-Agius had committed a crime when he asked him where he had been over the weekend. That is different from the suspicion entitling him to search the house pursuant to the search warrant.
[31] T271.
[32] Case stated on questions of law (No 2 of 2015) [2015] SASCFC 131.
Bell said that by the time he had finished speaking to Lebois-Agius and Rigney, Rigano or Finoia, he could not remember which, told him that there appeared to be “traffic” on the phones. Bell understood that to mean that there were messages on the phones which indicated that Lebois-Agius and Rigney were not in the same place all weekend as they had said they were. I have already said that in my view the search power was sufficient to seize and interrogate the phones, but the possible contradiction between what Lebois-Agius had said and what the phones might demonstrate was a further ground upon which the police could seize the phones.
I find that the conversation between Bell and Lebois-Agius is admissible and there is no reason to exercise and exclusory discretion. I also find that the police were entitled to seize the two telephones and to interrogate them.
I exclude the written statement signed by Lebois-Agius at the later time. By then he was a suspect and would have to have been cautioned.
Lebois-Agius lie to the police
The prosecution rely on Lebois-Agius’ lie to the police that he was home all weekend. The Windsor Hotel evidence established that Lebois-Agius was lying, but I am not willing to regard that lie as arising from a consciousness of guilt. Courts have been cautious about concluding that a lie is told out of a consciousness of guilt.[33] People may lie for reasons other than a consciousness of their guilt of the subject charge. I can think of one reason why Lebois-Agius might lie without being necessarily conscious of his guilt of this offending. I think it is likely that when the police came to his house at about 8 pm on 16 March he knew that Weetra had been arrested earlier in the afternoon and that he was arrested for offending over the weekend. He might have lied out of a fear that he would be wrongly associated with Weetra.
[33] Edwards v R (1993) 178 CLR 193, Harris v R (1990) 55 SASR 321.
Telephone Data
I turn to Mr Vadasz’s objection to the admissibility of the telephone data. Mr Coates adopted Mr Vadasz’s submissions in support of the same objection by Lebois-Agius. It becomes necessary to explain how the various types of data were collected and presented in court.
First there was information recovered from the phones themselves. The phones were plugged into devices at the offices of E-crime within SAPOL. Selected calls were transferred to disks. Hard copy transcripts of those calls were then produced. The Rankine, Lebois-Agius and Doolan phones were all subjected to this process. Senior Constable Billington from E-crime gave evidence to that effect. His evidence was received de bene esse and all the exhibits resulting from it were marked on the voir dire to await a ruling on admissibility. I gave that ruling at the end of the prosecution case. The voir dire exhibits became exhibits in the trial.
The prosecution led this evidence to prove that Doolan and Lebois-Agius were, at the relevant times, in possession respectively of the phones seized from them[34] and that Rankine was in possession of the phone seized from her.[35] The prosecution says that the contents of the calls prove who was in possession of the phones.
[34] Exhibits P27 and P17.
[35] Exhibit P16.
Separate from the data from the phones themselves is meta data retained by the phone server, in this case Optus. Optus was the server for all three phones. Meta data consists of the records of the incoming and outgoing calls made from a particular phone, or more precisely and accurately, the sim card installed in that phone. The records also include an identifying number for the handset from which the call is made. The records do not disclose the contents of the calls. They record instead details of the calls such as whether it was an incoming or outgoing call, what number the phone was communicating with, when the call was made and the cell tower nearest to where the call was made. That meta data is called “web trace”. Optus produced web trace records for the phones for the relevant times. Those web trace records were tendered on the voir dire through a Ms Watson who was employed by Optus as a Statement Officer. Optus produced the web trace records in response to a request from SAPOL.
Doolan and Lebois-Agius objected to the production of the web trace records on the ground that Optus did not comply with the requirements of the Telecommunications (Interception and Access) Act 1979. Ms Watson’s evidence was received de bene esse and the exhibits marked on the voir dire. Those exhibits were admitted after my ruling.
The final piece in the jigsaw that the prosecution seeks to construct is provided by Mr Owens, an electronics engineer employed by Optus. He is primarily engaged in planning and designing mobile telephone networks for Optus but he also undertakes the preparation of maps illustrating the coverage areas of cell towers. Based on the relevant web trace records Owens prepared maps showing locations around Adelaide with shaded areas representing the mobile phone coverage of nominated cell towers. The web trace records presented by Watson nominate a cell tower through which a phone call is made. Owens’ map then shows the urban area covered by that cell tower. The admissibility of Owens’ maps depends upon the admissibility of the web trace records. His evidence was received de bene esse and his maps marked on the voir dire. They were admitted after the ruling.
The prosecution says that the combined evidence of the contents of the calls on the three phones, the web trace call records and the cell tower maps show that Doolan and Lebois-Agius were themselves in possession of their phones at some of the six locations where the offences were committed.
I turn to consider the admissibility of the web trace records and the maps.
Admissibility of web trace records and maps
The defence submission begins from the proposition that the disclosure of meta data by Optus to anyone is prohibited. There is prima facie an obligation on a server such as Optus to keep records confidential. Sections 276 to 278 of the Telecommunications Act 1997 make it an offence to disclose such materials. However ss 177 and 178 of the Telecommunications (Interception and Access) Act 1979 (Cth) provides certain immunities from, or exceptions to, those prohibitions. Section 177 permits the disclosure of information for law enforcement purposes. Section 177(1) reads as follows.
177 Voluntary disclosure
Enforcement of the criminal law
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of the criminal law.
Section 178 permits the disclosure of information covered by authorisations granted by law enforcement agencies such as the police. Section 178 reads as follows.
178 Authorisations for access to existing information or documents—enforcement of the criminal law
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).
(2) An authorised officer of an enforcement agency may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.
Note. Section 184 deals with notification of authorisations.
(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law.
For the purposes of s 178 an authorised office is defined in s 5AB(1) of the Act as follows.
5AB Authorised officers
Authorised officers of an enforcement agency
(1) The head (however described) of an enforcement agency may, by writing, authorise a management office or management position in the enforcement agency for the purposes of subparagraph (b)(iii) of the definition of authorised officer in subsection 5(1).
In this case Optus provided the information to the police pursuant to a request or authorisation contemplated by s 178. The information Optus provided was the web trace records of the numbers ending 225 (Rankine) and 384 (Doolan) for the period 14 to 16 March 2014. The records were for all calls, incoming and outgoing[36] and for outgoing calls only.[37]
[36] Exhibit P20 and P22.
[37] Exhibit P21 and P23.
Watson was cross-examined about the circumstances of the police request for the web trace records. She said that Optus has an online encrypted system where police send requests for information pursuant to s 178.[38] The request is received by an Optus Law Enforcement Liaison employee. That employee retrieves the information from Watson. Watson prepares the statement. [39] She said that her understanding was that if the request comes from the police and purports to be pursuant to s 178 of the Act, then, so long as it is communicated through the encrypted system, the information will be provided if it is within Optus’ capacity to do so. She said that requests have sometimes been refused because the request is for material which is too voluminous.
[38] T386-94.
[39] T386-94.
The Optus computer is programmed to recognise only authorised officers within the police department. So far as Optus is concerned only designated liaison officers have the encrypted signatures which enable them to access the requests.
Watson said that she had seen the original SAPOL request for the information she provided and the request made reference to s 178 of the Act.
Mr Vadasz submitted that the prosecution has failed to prove that the request was made by a duly authorised officer of SAPOL. Although Ms Watson said she had seen the original request, the court has not seen it. Mr Vadasz submitted that the court has no way of ensuring that the request was made in compliance with s 178. Prima facie there has been an unlawful disclosure of the web trace material by Optus to the police. In these circumstances I should exercise the public policy discretion to exclude the material.
Mr Coates adopted Mr Vadasz’s submissions but made further submissions. First, he submitted that not only had the prosecution failed to prove that the person from SAPOL making the request was duly authorised, but the prosecution had also failed to prove compliance with s 184. Section 184(3) requires that the enforcement agency, here SAPOL, must notify the person from whom disclosure is sought, here Optus, of that authorisation.
Mr Coates also submitted that the prosecution has failed to demonstrate that the authorised officer from SAPOL had satisfied him or herself that the information sought was reasonably necessary for the enforcement of the criminal law. That is a failure to comply with s 178(3). Mr Coates went on to submit that it did not matter if it appeared from an objective point of view that the material sought was in proof of the present charges. The prosecution must demonstrate that that information was given to the authorised officer so that that officer could satisfy him or herself of the legitimacy of the request.
Mr Coates further submitted that there might be a conflict between s 45A of the South Australia Evidence Act 1929 (SA), which permits the admission of apparently genuine business records, and ss 177 and 178 of the Telecommunications (Interception and Access) Act 1979 (Cth), which prima facie prohibit the disclosure of records. Section 109 of the Commonwealth of Australia Constitution Act 1901 provides that the Commonwealth legislation prevails in the event of conflict.
Mr Edge submitted that no conflict exists between s 45A and the Commonwealth legislation. The former deals with the admissibility of business documents. It is a section designed to facilitate proof by documents. The Commonwealth legislation prohibits certain disclosures by entities such as Optus. I agree with that submission.
Mr Edge then drew a distinction between provisions in the Telecommunications (Interception and Access) Act which deal with the legality, and therefore admissibility, of evidence of intercepted telephone calls, on the one hand, and other provisions such as ss 177 and 178 which deal with meta data, ie not the contents of the calls themselves but the fact of the calls being made. The legislation provides for an entirely different approach. The former material is protected by requirements for judicial warrants and preconditions to admissibility. The latter is less protected. I accept that submission.
Mr Edge further submitted that the cases dealing with the public policy discretion to exclude material relate to the behaviour of law enforcement agencies rather than third party organisations such as Optus. I think that submission is well founded in so far as the challenge is to the behaviour of Optus. If Optus has disclosed information contrary to its legislated obligations, then Optus may be liable to prosecution. But its failure alone would not lead to the exclusion of the evidence. I think the situation is different in respect of SAPOL. If SAPOL engaged in unlawful behaviour in requesting the information then I think the discretion would be enlivened.
In my view there is no reason to believe that SAPOL has behaved unlawfully. It is plain that the information sought from Optus was for a legitimate law enforcement purpose. The information sought was only the data relating to the relevant telephone numbers and only for the period of the subject offending. I have no reason to doubt Ms Watson’s evidence that she saw the original request. The request came through the secure system set up by Optus for the receipt of requests from law enforcement agencies. The request referred to s 178. The secure system is designed to be accessed only by designated individuals at each end, ie law enforcement on the one hand and Optus on the other.
I find that the web trace data comprising the voir dire Exhibits VD-P 20 to VD-P23 is admissible and is not to be excluded. Those exhibits became exhibits in the trial.
There is also no reason to exclude Owens’ call coverage maps, Exhibit P24. They were prepared with reference to the web trace records. That exhibit also became an exhibit in the trial. The street maps[40] were not the subject of challenge. They are merely street maps selected to cover the shaded areas in the cell coverage maps.
[40] Exhibit P25.
For the sake of completeness I admit into evidence the request to Owen which was marked Exhibit MFI-1D26.
Mr Vadasz had a further application to exclude material. As I understand his argument it is that text messages located on any of the three telephones, ie Exhibits P16 (Rankine), P17 (Lebois-Agius) or P27 (Doolan) which refer to “Pauly” should be excluded because they are hearsay. The prosecution seeks to lead such messages as circumstantial evidence tending to prove that Doolan, whose given name is “Pauly”, was at a particular place at a particular time. In my view the application to exclude that evidence is without substance. The evidence is not being led testimonially. It is being led as evidence of identity and location. In R v Firman[41] King CJ explained why such evidence is not hearsay and is admissible.
[41] (1989) 52 SASR 391.
Mr Vadasz submitted that there was reason to doubt the accuracy of the telephone records which implicated his client. He pointed out that there is a discrepancy between the Optus web trace records[42] and the call log[43] taken from the Doolan phone.[44] There are many more calls recorded in the web trace records for that phone than are recovered from the phone itself. Mr Vadasz raised that discrepancy with Mr Billington, the officer from E-crime.[45] Billington did not claim to know the cause of the discrepancy but he did say that it could be explained by calls being deleted from the handset.[46] Deleting calls from the handset is not a complicated matter.[47]
[42] Exhibit P22 and P23.
[43] Exhibit P39.
[44] Exhibit P27.
[45] T599-608.
[46] T607-8 and re-examination T610-11.
[47] T610.
With that explanation by Billington I would not conclude that either the web trace records or the call records were unreliable. Billington’s explanation for the discrepancy seems a rational one. That is despite Mr Vadasz’s further submission that it would be incongruous for his client to delete some calls on his phone but leave others which turn out to be incriminating. It might not have occurred to him that the remaining call records were incriminating and he may have had particular reasons for deleting other calls. I find that the web trace records and the call records are accurate and reliable.
What do the telephone records prove?
The critical question is whether the prosecution can prove that each accused was present at the location of each offence. The case for each of Doolan and Lebois-Agius is that, even if the prosecution can prove that each of their phones was present at any of the locations of offending, it does not follow that each of them was present. The submission is that there are rational explanations for each of them not being present even if their phones were. I deal now with the evidence tending to show that their telephones were at certain of the sites where offences were committed.
Telephone evidence
For convenience only I will continue to refer to the phones by their alleged possessors on the night of the offending. I make it clear however that I accept that the prosecution must prove who possessed the phones at the relevant time. The following are details of the phones.
·Exhibit P16 – Police item 27 – Rankine number ending 225
·Exhibit P17 – Police item 28 – Lebois-Agius number ending 037
·Exhibit P27 – Police item 59 – Doolan number ending 384
While neither Mr Vadasz nor Mr Coates unequivocally accepted that whoever possessed the Doolan and Lebois-Agius phones during the course of the offending, was present at the offending, that conclusion is inevitable. The following schedule demonstrates why I am satisfied beyond reasonable doubt that whoever possessed the phones was present at the six locations where the offences were committed. It is true that the locations of the phones are at times only approximately the locations at approximately the times, and that there is not a correlation for each location, but the coincidence between phone location and crime location is too great for there to be any other conclusion than that the phones themselves were at the crime locations. The other point of significance is that both the Lebois-Agius and Doolan telephones are together much of the time.
| Events | Time | Location | Phone Locations Doolan | Phone Location Lebois-Agius |
| Count 1 | Midnight | Croydon Park | 11:55:52 Kilkenny | 11:53:05 Woodville North |
| Count 2 | 12:06 | West Croydon | 11:58:30 Kilkenny | 11:53:35 Croydon Park |
| Counts 3,4, & 5 | 12:16 | Welland | 12:05:47 Beverley | |
| 12:15-2:00am time between offending | 12:40:26 Marden | 12:47:19 Windsor Gardens | ||
| Holden at intersection of Main North and Regency Roads | 1:43 | 1:39:41 Enfield | ||
| Counts 6,7 & 8 | 2:05 | Norwood | ||
| Windsor Hotel Lebois-Agius 2:26-2:35 Doolan 2:30-2:34 | 2:41:52 Gilles Plains 2:42:43 Gilles Plains | |||
| Count 9 | 6:00 | Adelaide | 5:54:47 CBD Central | |
| Counts 10 and 11 | 11:49 | Ridgehaven | 10:39:49 St Morris | 10:39:06 Glynde |
| 11:24:33 Modbury | ||||
| 11:32:58 Modbury | ||||
| 11:45:36 Modbury North | 11:43 Modbury | |||
| 11:56:43 Para Hills West | ||||
| 12:07:23 Para Hills West | 12:07 Para Hills West |
The Rankine phone remained in the Elizabeth Shopping Centre area through the relevant period. That area includes the house she shared with Lebois-Agius. I summarise the effect of the schedule.
·The two phones were close to each other at the time and location of the commission of counts 1 and 2. I have found that the people who committed counts 1 and 2 also committed counts 3, 4 and 5.
·The two phones were close to each other at 12.40/12.47 ie between the western suburbs offending and Norwood.
·The Lebois-Agius phone was in Enfield at 1.39 am, proximate to the Holden going through the intersection of Main North Road and Regency Road at 1.43 am.
·The Doolan phone was in Gilles Plains seven minutes after Doolan left the Windsor Hotel.
·The two phones were therefore proximate to the time and location of the commission of counts 6, 7 and 8 at Norwood, the Lebois-Agius phone before (at 1:39:41) and the Doolan phone after (at 2:41 am).
·The Doolan phone was in the CBD at about six minutes before the Adelaide offending.
·The two phones were close to each other at 11.43/11.45, just before the Ridgehaven offending.
It is convenient to begin the analysis of the evidence linking Doolan and Lebois-Agius to their phones by considering the defence hypotheses. That does not of course suggest that the defence bear any onus of proof.
Doolan says the phone with the number ending 384 was not his. It belonged to his sister Nicole Warrior. I accept that that is so. However Ms Warrior said that she lent her phone to either, or both, of Doolan and his partner Norma Egan around his birthday on 12 March. Messages on the phone indicate plainly that he possessed it on his birthday. I find that his sister, Nicole Warrior, sent him a birthday greeting on a phone belonging to someone called Ziggy. The phone was seized from Doolan upon his arrest on 20 March. Between those dates, Doolan or his partner might have possessed it. Other Aboriginal people might also have possessed it. I accept Mr Vadasz’s submissions that it is common for Aboriginal people to share their possessions. On 19 March, Warrior said that she went to the Tasman Avenue house and her phone was then in the possession of Norma Egan. Doolan was not present. That demonstrates that he was not always in possession of the phone between 12 and 20 March.
The defence hypothesis is that although Doolan may have possessed the phone at times between 12 and 20 March, he did not possess it on the night of 14/15 March. Someone else had it. The most telling evidence linking Doolan with this phone is the Windsor Hotel evidence. I find that Doolan was in the hotel from 2.30 to 2.34 am on 15 March. Calls are made to that phone at Gilles Plains, an area close to the hotel, at 2.41 am.
Also telling is the source of many of those calls. Those calls were being made from the Rankine phone at Elizabeth. I think it is clear that during the night Rankine was ringing both Lebois-Agius and Doolan. She was ringing on her phone at Elizabeth and was expecting them to be together.
The most convincing message supporting that hypothesis is a message sent from the Doolan phone to the Rankine phone at 1.40 pm on 15 March. The message is.
Tell norma ill ring in 20.. pauly (sic)
I think the clear inference from that message is that after receiving many calls during the night from Rankine, Doolan has sent a message to Rankine asking her to tell his partner, Norma, that he will ring her shortly. Doolan is not able to speak to his partner directly because he was in possession of the only phone they had. It was the only phone found in their property when he was arrested on 20 March and it is plain that they were sharing it.
One defence hypothesis is that Lebois-Agius was, as he told the police, at home during the offending and was trying to ring his own phone from Rankine’s phone. In other words, he had either left his phone in the car or he had lent it to someone else. The hypothesis is that Lebois-Agius was also trying to contact Doolan or the possessor of Doolan’s phone.
I think is unlikely that Lebois-Agius was trying to contact Doolan using Rankine’s phone. The calls from the Rankine phone to the Doolan phone minutes after both Lebois-Agius and Doolan leave the Windsor Hotel makes that unlikely.
There is a text message at 1.48 pm between the Rankine and Lebois-Agius’ phones which strongly suggests that Rankine was texting Lebois-Agius. The message reads:
Don’t go back to bobs doolyas everywhere and if you did do anything its on sa police and the got the rego so ring or just come home please. (sic)
“bobs place” may be a reference to 47 Tasman Avenue, the home of Robert Willis where Weetra and Shaw lived. I accept Detective Rigano’s evidence that “doolyas” is a word for “police” used by Aboriginal people. The phrase “just come home please” seems more like a request from Rankine to Lebois-Agius to come home to Butterfield Road rather than a request from Lebois-Agius to anyone else.
There is evidence suggesting the sim cards of the Lebois-Agius and Rankine handsets were swapped at around 6.30 pm on 16 March. Weetra was arrested at 47 Tasman Avenue at 4.05 pm. He was taken from the house. Shaw had been in the same bed that Weetra was taken from but he was not arrested. He remained at the house. The police did not arrive at Lebois-Agius’ house until 8 pm. It is difficult to see why the sim cards of Lebois-Agius and Rankine handsets would be swapped for any reason other than a desire to confuse any police investigation of the phone records.
There is a further piece of evidence that suggests that the arrest of Weetra might have alerted Rankine and Lebois-Agius to the implications of their phone use. At 18:08:20 on 16 March ie two hours after Weetra’s arrest, the Rankine phone rings the Doolan phone for a duration of just over 2 minutes. The Doolan phone is then not used again before the end of the records at midnight. This is just before the sim cards of the Lebois-Agius and Rankine phones are swapped.
I find that these two facts strongly suggest that Lebois-Agius, and possibly Rankine, were trying to confuse the police investigation they both expected into their telephone usage on the 14-15 March.
The evidence identifying Lebois-Agius and Rankine as the “owners” of the handsets Exhibits P16 and P17 and the numbers ending 225 and 037 is relatively clear. While no Wallpaper image could be extracted from P16 (Rankine), the Wallpaper image on P17 is a picture of Rankine. The inference is that Lebois-Agius has on his phone a picture of his partner. The sim card entries are clearer evidence of ownership. The sim card found in the Lebois-Agius handset (allegedly swapped) had the contact entries “my Gutherdy man... 037”, (the Lebois-Agius number) and “my numba... 025” (Rankine). The 037 sim card had a contact entry “Baby Muma... 025”.
The Doolan phone had the contacts “Trev An R 037” and “Trevis N R... 225”. The given names of Lebois-Agius and Rankine are Travis and Raquel. That of course does not help distinguish which number belonged to whom but messages exchanged between 384 and 037 on 9 March suggest exchanges between Doolan and Lebois-Agius rather than Doolan and Rankine. Those exchanges are as follows:
·What yu doin niggs
·Fuck all cuz just sitting back what u doing.
·Same cuz.
I am satisfied beyond reasonable doubt that Doolan and Lebois-Agius were in possession of the phones Exhibit P27 and P17 respectively during the time of the offending and that Rankine was in possession of P16. I arrive at that conclusion by the accumulation of the evidence of the data taken from the phones and from the meta data. I find that the only rational hypothesis of the phone evidence is that Doolan and Lebois-Agius were in possession of their phones at the time and locations of each of the offences and that from time to time during that period Rankine was trying to ring them from her home. I exclude the defence hypotheses.
With that finding I revisit the circumstantial evidence led against each of Doolan and Lebois-Agius.
Doolan
1.I am satisfied that Doolan was in possession of his telephone at the six locations of each group of offences.
2.I am satisfied that Doolan was at the Windsor Hotel at 2.30 am and that he could have travelled there after the conclusion of the offences at Norwood at 2.07 am.
3.The description of the offenders by the victims does not exclude Doolan.
I am satisfied beyond reasonable doubt that Doolan is guilty of the eleven offences.
Lebois-Agius
1.I am satisfied that Lebois-Agius was in possession of his telephone at the six locations of each group of offences. I make that finding despite there being no direct link between his phone and the commission of count 9 at Adelaide. His phone was proximate to the other five locations and was proximate to Doolan’s phone at those five locations.
2.I am satisfied that Lebois-Agius was at the Windsor Hotel at 2.26 am and he could have travelled there after the conclusion of the offences at Norwood at 2.07 am.
3.The description of the offenders by the victims does not exclude Lebois-Agius.
4.I am satisfied beyond reasonable doubt that Doolan is guilty of the eleven offences.
Shaw
I now turn to consider the evidence relating to Shaw. There is no telephone evidence implicating Shaw. The circumstantial evidence the prosecution leads against him is as follows:
1.Shaw is a passenger in the Holden with Weetra and Lebois-Agius at Elizabeth on 14 March some four and a half hours before the offending.
2.On 16 March Shaw is living in the same house at Tasman Avenue with Weetra and is in the same bed as Weetra when Weetra is arrested at about 4 pm.
3.Shaw is at the Windsor Hotel at the same time as Doolan and Lebois-Agius. He leaves with Doolan.
4.DNA evidence links Shaw with:
·A toothbrush found in the Holden,
·An interior surface of the Holden, and
·The screwdriver dropped by the assailant at the scene in count 9 in Adelaide.
5.The victims’ descriptions of the offender fit Shaw.
I deal with the fact of Shaw’s association with Weetra and Lebois-Agius before the offending and with Weetra afterwards. Shaw is not to be found guilty simply because of his association with others who are involved. That said, the possibility that Weetra was discussing the proposed offending with his associates in the hours leading up to the crimes cannot be discounted. Nor can the fact that the three were together as a group in the Holden before the offending.
I give less weight to Shaw’s association with Weetra after the offending. Even if Weetra was discussing the offending with his housemate after the fact, that would not implicate Shaw.
The association between Shaw and Doolan and Lebois-Agius at the Windsor Hotel is more compelling. Shaw is in the gaming room for only 13 minutes (2.21 to 2.34 am). He arrives on his own and leaves with Doolan. His arrival is proximate to the arrival of Lebois-Agius at 2.26 and Doolan at 2.30 am. Doolan leaves with Shaw just four minutes after arriving. The footage does not suggest a relaxed drinking, gambling or socialising. It has the appearance of a quick, opportunistic arrival and departure. As I have already found it has more the appearance of an attempted alibi than it does coincidental socialisation.
I turn to the DNA evidence. I accept Mr Barklay’s submission that the DNA evidence linking Shaw with the toothbrush and the interior surface of the car is of no value in connecting Shaw to the crimes. Shaw had been connected with the car from 8 March. I think the connection with the screwdriver may have some greater significance. I acknowledge the evidence of Ms Windram, the DNA expert, that DNA may be deposited by way of secondary transfer. Shaw may have had primary contact with someone or something which in turn came into contact with the screwdriver. Further, Ms Windram said that it is not possible to determine when DNA is deposited.
Important as those pieces of evidence are, I think that the DNA evidence connecting Shaw with the screwdriver is of some weight in the circumstantial case against him. Mr Barklay drew my attention to the case of R v Fitzgerald.[48] That case gives support to the proposition that DNA evidence will rarely be sufficient, of itself, to establish guilt. The case acknowledges the frailties of DNA evidence, particularly the inability to separate primary from secondary contact, and to determine when a DNA sample was deposited. The case is not authority for the proposition that DNA evidence cannot be a piece of circumstantial evidence implicating an accused.
[48] [2014] HCA 28.
I turn to the description evidence. At the Windsor Hotel, Shaw is wearing a jumper with a “Tap Out” logo on the front. No witness speaks of such a logo, or in fact any logo on the clothing of the assailants. On the other hand witnesses speak of assailants wearing a hoodie and Shaw was wearing one.
I do not think the absence of any witness identifying a tap out tee-shirt is exculpatory of Shaw. It would be unsurprising if the victims of these crimes were not paying particular attention to the clothing of the offenders. On the other hand I would not place great inculpatory weight on the hoodie. Such garments are relatively commonplace and might be worn by people who are out and about in the middle of the night. I say no more of the identification evidence other than that Shaw is not excluded. He is a young slim Aboriginal man wearing a hoodie. He is not particularly tall.
Drawing together the unequal strands of circumstantial evidence implicating Shaw, I am satisfied beyond reasonable doubt that he was one of the group of four offenders who committed all eleven offences.
Verdicts
Count 1 Aggravated robbery Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 2 Aggravated robbery Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 3 Aggravated robbery Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 4 Aggravated robbery Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 5 Aggravated assault causing harm Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 6 Attempted aggravated robbery Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 7 Attempted aggravated robbery Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 8 Aggravated recklessly cause serious harm Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 9 Aggravated robbery Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 10 Aggravated serious criminal trespass in place of residence
Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
Count 11 Theft Doolan Guilty
Lebois-Agius GuiltyShaw Guilty
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