R v Doolan; R v Lebois-Agius; R v Shaw - [2016] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DOOLAN; R v LEBOIS-AGIUS; R v SHAW
[2016] SASCFC 111
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)
27 September 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: IMPROPERLY OBTAINED EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - GENERALLY
Appeals against conviction.
The appellants were found guilty after a trial by judge alone of 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 in a place of residence and one count of theft as part of a joint criminal enterprise. Those 11 charges represented six separate incidents that occurred over a 12 hour period from midnight on 15 March 2014. A fourth co-offender, Weetra, pleaded guilty to each of the offences.
The primary issue at trial was the identity of Weetra's co-offenders. The trial Judge concluded that the same three co-offenders accompanied Weetra at all six incidents. The Judge went on to find that the appellants were those co-offenders.
All three appellants appeal on the basis that the verdicts of guilty are unreasonable or unsupported having regard to the evidence. The appellants Lebois-Agius and Doolan appeal on the further ground that the Judge erred in admitting telephone data evidence against each of them in circumstances where the prosecution had failed to properly establish compliance with s 178 of the Telecommunications (Interception and Access) Act 1979 (Cth). Lebois-Agius also appeals on the ground that the Judge erred in admitting evidence in circumstances where the seizure of the evidence was tainted by the manner of the police's search of Lebois-Agius' home.
Whether the verdicts were unsatisfactory or unsupportable having regard to the evidence. Whether the Judge erred in admitting telephone data evidence against the appellants Lebois-Agius and Doolan. Whether the Judge erred in admitting evidence yielded from a search of the home of Lebois-Agius.
Held per Kelly J (Peek and Lovell JJ agreeing) (dismissing the appeals of the appellants Lebois-Agius and Doolan):
1.       The seizure of the mobile phones attributed to Doolan and Lebois-Agius was authorised under the general search warrant. The appellants have not established any illegality or impropriety in the conduct of the police during the search and seizure of the items at Lebois-Agius' home and there was no proper basis to exclude the evidence from the mobile phones attributed to Doolan or Lebois-Agius.
2. It was open to the Judge on the whole of the evidence to find that the police request for the telephone meta data was lawful. It was plain that the information sought from Optus was for a legitimate law enforcement purpose. In any event, failure to comply with s 178 of the Telecommunications (Interception and Access) Act 1979 (Cth) would not result in the telephone meta data evidence being inadmissible.
3.       The combination of evidence from closed circuit television footage, telephone meta data evidence and other evidence overwhelmingly pointed to the guilt of the appellants Doolan and Lebois-Agius.
4.       The appeals of Doolan and Lebois-Agius are dismissed.
Held per Kelly J (Peek and Lovell JJ agreeing) (allowing the appeal of the appellant Shaw):
1.       The finding that the same four men were involved in all of the offences was an indispensable link in the chain of reasoning to the guilt of the appellant Shaw. The Judge's inability to make that finding beyond reasonable doubt is fatal to the finding of guilt in relation to Shaw. The evidence against Shaw is not capable of supporting a conclusion beyond reasonable doubt of Shaw's involvement in any of the offences.
2.       The convictions in relation to Shaw are quashed and a judgment and verdicts of acquittal are entered.
Summary Offences Act 1953 (SA) s 67; Telecommunications (Interception and Access) Act 1979 (Cth) s 177, s 178; Telecommunications Act 1997 (Cth) s 276, s 277, referred to.
M v The Queen (1994) 181 CLR 487; R v Nguyen (2010) 242 CLR 491, applied.
Fitzgerald v The Queen (2014) 88 ALJR 779, discussed.

R v DOOLAN; R v LEBOIS-AGIUS; R v SHAW
[2016] SASCFC 111
Court of Criminal Appeal: Kelly, Peek and Lovell JJ
KELLY J.
Introduction

The appellants, Pauly Dion Doolan (Doolan), Travis Victor Lebois-Agius (Lebois-Agius) and Stuart Ronald Shaw (Shaw), each appeal against convictions for 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 in a place of residence and one count of theft, after a trial by Judge alone in the District Court.
The 11 charges represented six separate incidents that occurred over a 12 hour period commencing at approximately midnight on 15 March 2014. Mr Cameron Ian Kent Weetra (Weetra) pleaded guilty to each of the offences arising from these incidents.
Each appellant appeals on the ground that the findings of guilt are unreasonable or unsupported having regard to the evidence. The appellants Lebois-Agius and Doolan both appeal on the further ground that the Judge erred in admitting telephone data evidence against each of them. In the case of Lebois-Agius, there is a further complaint that the Judge was wrong to admit the evidence of the search which took place at his home on 16 March 2014.
Background
The primary issue at trial was the identity of the other three offenders accompanying Weetra. It is convenient to set out the relevant evidence at trial.
Count 1 – Croydon Park
At approximately midnight on Saturday 15 March 2014 a 16 year old man was attacked and robbed as he walked home from a railway station. He saw three or four men get out of a red car before he was punched in the head. The victim’s mobile phone was later found in Weetra’s possession.
This offending was the subject of a charge of aggravated robbery.
Count 2 – West Croydon
Less than five minutes later and just a few hundred metres from the attack in Croydon Park, three aboriginal men ran at Ms Elliot and her friend in a park. One of the men had a pole. He threatened Ms Elliot, told her to hand over her property and ripped a necklace from around her neck. The other assailants hit her friend over the head and chased him away.
During this attack Ms Chilcott drove a car around the corner. The three men went to the car and starting hitting it, one of them with a pole. During this attack on the car Ms Elliot ran away and Ms Chilcott drove around the block and called 000 before meeting up with Ms Elliot.
A shop located across the road from the park had closed circuit television (CCTV) surveillance cameras that captured the end of the incident. Although of poor quality, the footage appears to show three men running and getting into a car which immediately drives off, driven by a fourth man.
This offending was the subject of a charge of aggravated robbery.
Counts 3 and 4 – Welland
At 12.16 am three women were attacked outside the Coles supermarket at Welland Plaza. CCTV cameras at Welland Plaza and the ‘On The Run’ service station on Port Road (adjacent to Welland Plaza) captured footage of the movements of a red or maroon Holden vehicle with a ‘P-plate’ visible in the front windscreen prior to the attack. I shall refer to that vehicle as ‘the Holden’.
The ‘On The Run’ CCTV cameras recorded the Holden travelling on the Adelaide bound lanes of Port Road before turning right across the median strip and entering the vicinity of the service station. Footage shows Weetra wearing a hooded jumper going into the service station and making a purchase while another person is visible in the front passenger seat of the Holden.
The Welland Plaza footage shows the Holden a short time later driving past the three victims standing in the car park outside the Coles building and then around a corner out of sight. The footage does not show the attack, however the evidence at trial was that the women were attacked by three men who ran towards them. One of the victims called 000 at 12.16 am, immediately after the Holden drove off.
Two of the victims had their handbags stolen. Some of their property was recovered in a stormwater drain near the Windsor Hotel. The third victim was assaulted to the head and body while trying to protect one of the other women.
This offending was the subject of a charge of aggravated robbery, and aggravated assault causing harm.
The Welland Plaza Coles is a five minute drive from the location of the West Croydon offending. The Judge found that the Welland offending was committed by the same group of people, and with the Holden, due to the proximity in time and location and the similarity in the attacks.
Counts 6, 7 and 8 – Norwood
The next set of offending did not take place until two hours later. Ms Watzdorf and Mr Verlingieri were the victims of attempted aggravated robberies (Counts 6 and 7). Mr Smith witnessed that offending. Mr Prohoroff was the victim of aggravated recklessly causing serious harm (Count 8).
Ms Watzdorf and Mr Verlingieri gave evidence that they were attacked by three men who got out of a Holden vehicle. Ms Watzdorf described the car as a red or maroon Holden sedan. Both Mr Smith and Mr Verlingieri described it as a dark coloured Holden Commodore. Mr Smith said that after the last two assailants returned to the car there were four people inside it. The Judge found that the combined evidence of Ms Watzdorf, Mr Verlingieri and Mr Smith was that there were three attackers and a driver.
Ms Watzdorf was attacked by an assailant who tore her necklace off. Mr Smith’s evidence was that Ms Watzdorf’s attacker had a metal pole.
Mr Verlingieri said that he was approached by a man armed with something that looked like a knife, machete or metal pole, who demanded he hand over his property before becoming distracted and running away. Mr Verlingieri called 000 at 2.05 am, while the attackers were still present at the scene.
Ms Watzdorf also witnessed an attacker hit Mr Prohoroff in the face with a fire poker.
The Windsor Hotel
The appellants are depicted on CCTV footage recorded at the Windsor Hotel on North East Road from 2.21 am until 2.34 am. Although it was not conceded at trial that the footage depicted the appellants, it was accepted that the finding was open to the Judge and he did so. I have watched the footage. It plainly depicts the appellants and their movements within the hotel as follows.
Shaw enters the gaming room of the hotel at 2.21 am wearing a dark coloured hooded jumper with a “Tap Out” logo on the front. Lebois-Agius enters the gaming room alone at 2.26 am. He is wearing a dark coloured hooded jumper with a Nike logo on it and a baseball cap on backwards. Doolan enters alone at 2.30 am. He is wearing a blue t-shirt with the same “Tap Out” logo as the one seen on Shaw. While in the hotel, Lebois-Agius sees but barely acknowledges Doolan. Shaw and Doolan leave the gaming room together at 2.34 am, at which point Shaw had been in the hotel for 13 minutes, and Doolan for four minutes. Lebois-Agius remains in the hotel for only five minutes, leaving at 2.31 am with a large Aboriginal man who was present in the hotel before the appellants arrived. The identity of that man is unknown. Weetra is not seen on the Windsor Hotel CCTV footage.
The defence hypothesis at trial was that the appellants either arranged to meet at the Windsor Hotel to socialise or coincidentally arrived there at approximately the same time. The Judge rejected those hypotheses, finding the prosecution hypothesis that the appellants attended the hotel to give themselves an alibi more persuasive as a result of the appellants’ behaviour in the footage.
Count 9 – Adelaide
The next incident took place at Adelaide at about 6.00 am. CCTV footage shows the Holden (identifiable by its missing hubcap) pulling onto Victoria Drive at 5.58 am and leaving Victoria drive at 6.03 am. During those five minutes one of two women who were walking together was approached and robbed by a single assailant. The victim’s companion, Ms Hui-Chu, gave evidence at trial that the assailant grabbed the victim’s handbag, fell onto the lawn, produced a knife and then collected the contents of the stolen handbag which had fallen onto the road before running away.
The evidence about the movement of the Holden, the people Ms Hui-Chu could see inside it and the opening of a rear car door by someone already inside led the Judge to find that once the assailant got back into the Holden there were at least four people inside it.
This incident was the subject of one count of aggravated robbery. Later, a screwdriver was found at the scene of the robbery. The DNA evidence found on that screwdriver is discussed below.
Counts 10 and 11 – Ridgehaven
The last offences took place at approximately 11.49 am at Ridgehaven when three Aboriginal men broke into Ms Lloyd’s house while she was out. She returned home with her son, Mr Rose, who noticed a maroon Holden in his mother’s driveway and saw two Aboriginal men wearing hooded jumpers leaving the house through a window. He also saw a third Aboriginal man at the side of the house. The three men ran to the Holden which drove away, apparently driven by a man already in the driver’s seat.
Ms Lloyd’s neighbours, one of whom was confronted by one of the thieves with a screwdriver, also witnessed some of the incident.
Ms Lloyd’s jewellery box was stolen from her house. It was later located by police inside the Holden.
This incident was the subject of one count of aggravated serious criminal trespass in a place of residence and one count of theft.
Descriptions of the offenders
Various descriptions of the offenders were given by victims and witnesses at the six different incident locations. Doolan, Lebois-Agius, Shaw and the clothing they were wearing at that time is also clearly visible on the CCTV footage at the Windsor Hotel.
The general description given by eyewitnesses was of young, dark-skinned or Aboriginal men, with at least some of those men being of short stature. It is not surprising that the descriptions given were somewhat vague in light of the sudden and violent nature of the offending and the time at which the offending took place. Various aspects of the descriptions given were consistent with one or more of the appellants.
The evidence does not establish whether the same four offenders changed roles either as assailants or drivers during the various attacks, or whether they swapped or removed articles of clothing. Broadly speaking however the evidence given about the physical appearance of the four offenders was not inconsistent with the appearance of any appellant or Weetra.
The Holden
The evidence about the Holden vehicle used in the offending was significant in that it, or a vehicle answering the same description, was associated with each of the six incidents giving rise to the 11 charges on the Information.
On the evening of 14 March 2014, approximately four and a half hours before the first offending, Weetra, Lebois-Agius and Shaw (but not Doolan) travelled in the Holden at Elizabeth. The Holden is clearly visible in CCTV footage.
The victim the subject of Count 1 described the car as “crimson red” and a “generic type of car” that had an older appearance.
The CCTV footage depicting three assailants getting into a car immediately after Count 2 does not clearly show details or identifying features of the car.
The Holden was captured on CCTV footage outside the ‘On the Run’ service station at approximately 12.11 am. It can also be seen on the footage from Welland Plaza. The 000 telephone call made by one of the victims immediately after the Welland offending places the Holden at Welland Plaza at 12.16 am.
The Holden was at the intersection of Main North Road and Regency Road, turning west on to Regency Road at 1.43 am, when it was photographed driving through a red traffic light.
The evidence from the witnesses at Norwood was consistent with the Holden being used in that offending at 2.05 am. The offenders had returned to their car by 2.07 am, when Mr Verlingieri was on the phone to 000, and then drove south on Sydenham Road. It was not suggested at trial there was insufficient time for the Holden to have travelled between the red light traffic camera and the location of the Norwood offending, and the Judge took judicial notice of the fact that those locations are not far apart.
Police sought to demonstrate the time required to drive between the location of the Norwood offending and the Windsor Hotel. A police detective drove a route slightly shorter than that taken by the Holden three times between 1.15 am and 2.15 am. Each trip took 10 to 11 minutes. The Judge found that it would be possible to drive from the southern end of Sydenham Road to the Windsor Hotel in 11 to 12 minutes at approximately 2.00 am if the speed limit was exceeded. It is therefore open on the evidence that the Holden could have been driven from the location of the Norwood offending to the Windsor Hotel in time for Shaw to be recorded on the CCTV footage at 2.21 am.
The Holden is identifiable in the CCTV footage at the Adelaide offending, at 5.58 am.
The evidence of Mr Rose indicates that the Holden was at Ridgehaven at approximately 11.49 am. For unrelated reasons Mr Rose paid particular attention to the car and was able to recall the number plate and that there was a P-plate in the rear window.
The Holden was eventually seized by police from an address in Para Vista.
Police investigation
Weetra was arrested at his Gilles Plains home during the afternoon on 16 March 2014. When police attended at his home Shaw was sharing a bed with Weetra, but was not arrested at that time.
Weetra was taken to an interview room at the Holden Hill Police Station. An unrecorded conversation took place between Weetra and Detective Rigano during which Weetra indicated that he may assist police in their enquiries. A short time later, Weetra told another detective that Doolan and Lebois-Agius were involved in the offending, they were in possession of the Holden that the police were looking for, and that it could be located at the home of Lebois-Agius at Elizabeth Park. Weetra did not mention Shaw. It was Detective Bell’s evidence that the conversation was not recorded for Weetra’s protection.
As a consequence of that information Detectives Bell, Rigano and other police officers attended Lebois-Agius’ home in Elizabeth Park at about 8.00 pm. On arrival at the premises the police fairly quickly established that the Holden was not there and entered the home in possession of a general search warrant under s 67 of the Summary Offences Act 1953 (SA). That warrant entitled the holder to enter and search the home and seize items if the police officer concerned had reasonable cause to suspect that there were stolen goods or “anything that may afford evidence as to the commission of an offence” within the house.[1]
[1] Summary Offences Act 1953 (SA) s 67(4)(a)(iii); s 67(4)(c).

During the search of Lebois-Agius’ home two mobile phones belonging to Lebois-Agius and his partner, Ms Raquel Rankine (Rankine) were seized. I shall refer to these two phones as the ‘Lebois-Agius phone’ and the ‘Rankine phone’ respectively. In part the phones were seized because when examined by a police officer at the home the phones revealed that there had been “user traffic” between them which was inconsistent with Lebois-Agius and Rankine’s responses to police questions to the effect that they had both been at home all weekend.
A mobile phone was also seized when Doolan was arrested on 20 March 2014. I shall refer to it as the ‘Doolan phone’.
Telephone evidence
The Judge was satisfied beyond reasonable doubt that whoever possessed the Doolan and Lebois-Agius phones was present at each of the six locations of the offending. He also found it significant that both the Doolan and Lebois‑Agius phones were together for most of that time, while the Rankine phone remained proximate to the house shared by Rankine and Lebois-Agius.
The telephone meta data evidence reveals that the Lebois-Agius and Doolan phones were close to each other during the time and location of the commission of the offending in Counts 1 and 2. Those phones were also close together at approximately 12.40 am. The Lebois-Agius phone was in Enfield at a time proximate to the Holden being photographed at the intersection of Main North Road and Regency Road. Seven minutes after Doolan left the Windsor Hotel, the Doolan phone was in the Gilles Plains area. The meta data therefore indicates that both the Doolan and Lebois-Agius phones were present at a time and location proximate to the Norwood offending. The Doolan phone was in Adelaide approximately six minutes before the Adelaide offending and the Doolan and Lebois-Agius phones were close to each other at approximately 11.43 am, just before the Ridgehaven offending.
At trial a number of hypotheses were put forward by defence counsel to explain the telephone evidence. It was suggested that the Doolan phone did not in fact belong to Doolan and although he had used it between 12 March 2014 and 20 March 2014, he was not in possession of it on 15 March 2014. Regarding the Lebois-Agius phone it was suggested that Lebois-Agius was home but not in possession of the phone, and indeed he tried to contact his own phone by calling it from the Rankine phone. However the Judge found beyond reasonable doubt from the meta data, the content of the phones and also the nature and content of the communications between the three mobile phones that Doolan and Lebois‑Agius were in possession of the Doolan and Lebois-Agius phones respectively on 15 March 2014.
DNA evidence
In addition to being a passenger in the Holden before the offending began, Shaw is linked to the Holden by DNA evidence on the interior of the Holden and on a toothbrush found inside the Holden. The Judge accepted counsel for Shaw’s submissions that, given Shaw’s innocent links to the Holden, this evidence did not connect Shaw with the commission of the offences. Shaw’s DNA was, however, on the screwdriver left at the scene of the Adelaide offending. The Judge acknowledged expert evidence given regarding secondary transfer of DNA and also counsel’s submissions in relation to Fitzgerald v The Queen,[2] but considered the DNA evidence to be of some weight in the prosecution’s circumstantial case against Shaw.
[2] (2014) 88 ALJR 779.
The Judge’s findings
The Judge concluded that Weetra and three others, travelling in the Holden, were present at all six locations before going on to consider whether Weetra was accompanied by the same three men at all locations. He found that the same three men were involved in the Croydon Park, West Croydon and Welland offending.
The Judge noted that there was sufficient time in the almost two hours between the Welland and Norwood offending, the four hours between the Norwood and Adelaide offending, and the almost six hours between the Adelaide and Ridgehaven offending for the configuration of people accompanying Weetra to change. His Honour noted the similarities in the modus operandi of the offending but also distinguishing features of the Adelaide and Ridgehaven offending. He also considered that, despite differences in descriptions of the offenders at each location, there were no marked dissimilarities and also it is likely that the offenders would wish to keep their numbers low to minimise the risk of detection.
His Honour concluded “[o]n balance, I think it is more likely than not that Weetra had the same three co-offenders at each location.”[3]
[3] R v Doolan, Le Bois-Agius and Shaw [2016] SADC 5 at [91].
He was satisfied that whoever was present at the location of each incident of offending was part of a joint enterprise to commit the offences.
The appeal
All three appellants complain that the verdicts are unreasonable and unsatisfactory having regard to the evidence and that it was not open to the Judge to be satisfied of each appellant’s guilt beyond reasonable doubt. Counsel for the appellants pointed to various aspects of the prosecution case and evidence in support of this ground, including weaknesses in the identification evidence, temporal gaps between sets of offending, the generic modus operandi of the offending, differences between the Ridgehaven and Adelaide offending compared to other incidents, the imprecise evidence regarding the number of assailants, and the limitations on the use of the mobile phone evidence to place the appellants either together or at different locations at particular times.
Doolan mounted a specific argument that the Judge made a factual error in finding that the phone seized attributed to Doolan was his when in fact it came from a handbag containing the shared possessions of both the appellant Doolan and his partner, Norma Egan (Egan).
Further, it was complained that the Judge engaged in speculation in finding that the same four men were involved in all of the offences and that it was evidenced from the Judge’s conclusion at [91] that he erred by applying a lesser standard of proof. Counsel for Shaw sought permission on the appeal to add this complaint as a separate ground of appeal.
Doolan and Lebois-Agius make the further complaint that the Judge erred in refusing to exclude the meta data evidence in circumstances where the prosecution had failed to properly establish compliance with s 178 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) at trial.
Lebois-Agius also complains that the seizure of the Lebois-Agius and Rankine phones was tainted by the manner in which they were seized by the police.
The appeals of Doolan and Lebois-Agius
It is convenient to consider the issues which arise on the appeals of Doolan and Lebois-Agius together. I shall deal separately with the issues which arise on the appeal of Shaw.
Admissibility of evidence obtained during a search of Lebois-Agius’ house
As I understood the appellant’s argument in support of this ground of appeal, the evidence obtained from the Lebois-Agius and Rankine phones should have been rejected because the lawful seizure of those phones was tainted by improper questioning by the police of the appellant about his movements. I have summarised elsewhere in these reasons at [49] the evidence of what happened when the police went to Lebois-Agius’ home at Elizabeth Park on 16 March 2014.
Lebois-Agius submits that because there were no apparently stolen goods found on the search, and because the Holden was not there, the police were not entitled to pick up and inspect the phones which were lying on the kitchen bench. It was also submitted that the questioning by Detective Bell of the appellant Lebois-Agius about his movements that weekend was unlawful as the police officer ought to have given him a caution.
Much of Detective Bell’s evidence on the voir dire was on the topic of whether the police officer had sufficient information to effect an arrest of Lebois‑Agius at that time. The evidence of Detective Bell was that he did not. However, irrespective of whether he did or did not have sufficient evidence to arrest the appellant at that stage, he was in receipt of apparently reliable information from a co-offender as to the identity of two other people involved with him in the commission of offences. In my view receipt of that information was important and was, without more, sufficient to justify the seizure of the two phones found at the home. In determining whether the seizure of those phones was lawful, I do not consider it decisive that the police officer did not at that stage believe he had sufficient information to justify arresting Lebois-Agius. The police were still in the early stages of investigating a series of very serious criminal offences. The issue of the admissibility of the conversation which the police officer had with Lebois-Agius and any statement obtained as a consequence is a separate matter. Indeed, as the Judge ultimately found, a caution ought to have been administered and a written statement made by the appellant Lebois-Agius was excluded on that basis. Nevertheless, the seizure of the phones was authorised under the search warrant on the basis of the apparently credible information which Weetra had given to the investigating officers.
It follows that I do not consider that the appellants have established any illegality or impropriety in the conduct of the police during the search and seizure of items at Lebois-Agius’ home. There was no proper basis to exclude the evidence obtained from either the Doolan or Lebois-Agius phones.
Compliance with the Telecommunications (Interception and Access) Act 1979 (Cth)
I turn now to consider the complaint made by both Doolan and Lebois-Agius that, notwithstanding the manner in which the three phones were seized, the meta data information obtained from those phones was inadmissible due to a failure of the police to comply with provisions of the relevant Commonwealth telecommunications legislation.
The relevant provisions of the Telecommunications Act 1997 (Cth) (Telecommunications Act) are ss 276 and 277:
276Primary disclosure/use offence—eligible persons
Current eligible persons
(1)     An eligible person must not disclose or use any information or document that:
(a)relates to:
(i)the contents or substance of a communication that has been carried by a carrier or carriage service provider; or
(ii)the contents or substance of a communication that is being carried by a carrier or carriage service provider (including a communication that has been collected or received by such a carrier or provider for carriage by it but has not been delivered by it); or
(iii)carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or
(iv)the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b)comes to the person’s knowledge, or into the person’s possession:
(i)if the person is a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or
(ii)if the person is an employee of a carrier or carriage service provider—because the person is employed by the carrier or provider in connection with its business as such a carrier or provider; or
(iii)if the person is a telecommunications contractor—in connection with the person’s business as such a contractor; or
(iv)if the person is an employee of a telecommunications contractor—because the person is employed by the contractor in connection with its business as such a contractor.
…
Offence
(3)     A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
Note 1:This section is subject to the exceptions in Division 3 of this Part and in Chapter 4 of the Telecommunications (Interception and Access) Act 1979.
Note 2:See also sections 4AA and 4B of the Crimes Act 1914.
…
277Primary disclosure/use offence—eligible number database persons
Current eligible number database persons
(1)     An eligible number database person must not disclose or use any information or document that:
(a)relates to:
(i)carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or
(ii)the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b)comes to the person’s knowledge, or into the person’s possession:
(i)if the person is a number database operator—in connection with the person’s business as such an operator; or
(ii)if the person is an employee of a number database operator—because the person is employed by the operator in connection with its business as such an operator; or
(iii)if the person is a number database contractor—in connection with the person’s business as such a contractor; or
(iv)if the person is an employee of a number database contractor—because the person is employed by the contractor in connection with its business as such a contractor.
…
Offence
(3)     A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
Note 1:This section is subject to the exceptions in Division 3 of this Part and in Chapter 4 of the Telecommunications (Interception and Access) Act 1979.
Note 2:See also sections 4AA and 4B of the Crimes Act 1914.
The relevant provisions of the TIA Act are ss 177 and 178:
177Voluntary 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.
Enforcement of a law imposing a pecuniary penalty or protection of the public revenue
(2) Sections 276 and 277 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 a law imposing a pecuniary penalty or for the protection of the public revenue.
Limitation
(3)     This section does not apply if a relevant staff member of an enforcement agency requests the holder to disclose the information or document.
Note:Sections 178 to 180 deal with the disclosure of information or a document in response to authorisations by an authorised officer of an enforcement agency.
178Authorisations 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.
At trial the prosecution called one witness in relation to the production of the telephone records, Ms Jasmin Watson, from Optus. Ms Watson described the system used by the police and the telephone carrier when requests are made by police to disclose meta data or ‘Webtrace’ records. The effect of her evidence was that in accordance with an online encrypted system she responded to an electronic request from the police to disclose the Webtrace records. Ms Watson stated that unless a request came through from an authorised person and referred to s 178 of the TIA Act, Optus would not respond to the request. The electronic request indicates in its terms the rank and name of the person who seeks disclosure. The effect of the online encrypted system is that the computer will only recognise a request if it comes from someone who is an authorised officer within the meaning of s 178 of the TIA Act.
The specific complaint made by Doolan in this matter is that the evidence did not go so far as to satisfy the Court that the relevant police officer ever turned his mind to the critical issue under s 178(3), namely whether the disclosure of the material requested was reasonably necessary for the enforcement of the criminal law.
The prosecution were asked to call that evidence and declined to do so. The matter was left there. No subpoena was ever issued and the Judge in the end was prepared to rely on the evidence of Ms Watson in finding:[4]
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.
[4] R v Doolan, Le Bois-Agius and Shaw [2016] SADC 5 at [156]-[157].
It can be seen that the Judge was prepared to draw the inference that the police request was lawful and did not disclose any illegality or behaviour on the part of the police officer as he considered that it was plain that the information sought was for a legitimate law enforcement purpose.
I consider that finding was open to the Judge on the basis of the whole of the evidence, including that of Ms Watson. Even if that were not so, and the discretion to exclude the evidence was enlivened, it is plain that the information sought was in fact for a legitimate law enforcement purpose. In those circumstances the failure by the police officer to specifically turn his mind to the issue would have been insignificant and in my view would not require that the discretion be exercised to exclude that evidence.
In any event, any failure to comply with the terms of s 178 of the TIA Act would not result in the evidence being inadmissible. Rather, non-compliance with the provisions of s 178 of the TIA Act would result in Optus being liable to a summary penalty pursuant to s 277(3) of the Telecommunications Act. This consequence is in direct contrast to other provisions in the Telecommunications Act which specifically deal with the content of intercepted telephone material. For the release of Webtrace records as opposed to the content of intercepted material there are no preconditions attached to its admissibility.
For these reasons, on any view of the evidence I consider that the Webtrace records were correctly admitted. I would dismiss this ground of appeal.
Unsafe and unsatisfactory verdicts – Lebois-Agius and Doolan
On an appeal the task of this Court as stated in M v The Queen,[5] and reiterated in R v Nguyen,[6] is to consider whether:
… the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(footnotes omitted)
[5] (1994) 181 CLR 487 at 494-495.
[6] (2010) 242 CLR 491 at 500.

In this case the appellants did not give evidence. The evidence against them was entirely circumstantial. That being the case verdicts of guilty could not be returned unless the circumstances were such as to be inconsistent with any reasonable explanation other than the guilt of the appellants.
Applying those principles to the facts here I turn now to deal with the submissions made by Doolan and Lebois-Agius that the evidence against them was insufficient to enable a conclusion of guilt beyond reasonable doubt to be drawn against either of them.
The principal circumstantial case against both Doolan and Lebois-Agius was based on the phone meta data evidence from the phones seized by the police from the home of Lebois-Agius and from the possessions of the appellant Doolan and Egan. The meta data from the sim cards in all three phones, taken together, supported the conclusion reached by the Judge that whoever was the user of the Doolan and Lebois-Agius phones during the approximately 12 hour period when the 11 offences were committed was involved in each of those incidents. That is because the meta data demonstrated that the users of those two phones were proximate to each other at times when one or other of the phones could be placed at a time and location close to when an offence was committed.
Doolan and Lebois-Agius sought to challenge the Judge’s finding, particularly:[7]
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.
[7] R v Doolan, Le Bois-Agius and Shaw [2016] SADC 5 at [165].
Counsel for Lebois-Agius pointed to the lack of data from the Lebois-Agius phone for Counts 6 to 9, and refuted that the presence of the Lebois-Agius phone in the area of Count 1 or Count 2 must necessarily meant that phone was at the locations of both offences. It was argued that it could not properly be excluded on the evidence that a different group was responsible for at least the West Croydon offending, particularly given the poor quality of the CCTV footage said to record the end of Count 2. Counsel also argued that the Judge afforded inappropriate weight to the meta data evidence and fell into error in finding that the first three sets of offences must have been committed by the same people.
For Doolan it was said to be significant that no witness gave a description of Doolan, including the distinctive “Tap Out” logo on his t-shirt, that Doolan did not appear on the CCTV footage depicting Weetra, Lebois-Agius and Shaw in the hours before the offending and there was no forensic evidence which implicated Doolan. Further, it was submitted that little significance could be given to the witnesses’ descriptions of Weetra and the three appellants as the offences were of a kind often committed by young men, aboriginality was not a common feature of the descriptions and, in any event, it is unremarkable that Aboriginal males may spent time together. Regarding the phone meta data, counsel for Doolan pointed to the absence of any evidence of outgoing usage of the Doolan phone during the period of offending leaving open the inference that Doolan was not using the Doolan phone and it could have, for example, been left in the back of the Holden before later being returned to Doolan.
Moreover it was submitted by counsel for Shaw and Lebois-Agius, and adopted by counsel for Doolan, that the Judge erred in dismissing the differences in the descriptions of the assailants given by the witnesses, as those differences should have been taken into account. For example, while there was evidence that assailants wore a white jumper and a balaclava at Norwood, no witness described a white jumper or balaclava at any of the other incidents.
I do not consider the inconsistencies between the descriptions of the assailants by any of the witnesses to be of such significance that they precluded a finding of guilt in relation to either Doolan or Lebois-Agius.
The first five incidents all occurred under the cover of darkness. All of the incidents were fast paced and violent in nature during which the witnesses were subjected to violence and threats of violence by assailants carrying weapons. On any view these must have been frightening events. The majority of the witnesses described young Aboriginal men in dark clothing wielding metal objects. It is true there were some differences. However, in my view none of those differences are of such moment as to exclude any of the appellants as the assailants. All of the matters put in argument on appeal were made to the Judge at trial.
Moreover the evidence from both the phone meta data and the content of the phones was powerful evidence which implicated Doolan and Lebois-Agius. I consider that the finding made by the Judge that whoever the users of those phones were during the relevant period must have been involved in all six incidents was almost inevitable.
The data obtained from the sim card of the phone attributed to Lebois-Agius and the phone used by Doolan also pointed to the conclusion that each of those appellants were the users of the relevant phones during that 12 hour period.
As to the complaint made by Doolan that the Judge erred in finding that the Doolan phone was seized from him, it is evident from the Judge’s reasons that he considered carefully the various alternatives which had been put forward as to who was or may have been in possession of that phone at the relevant time before making the finding that it was in the possession of Doolan during the commission of the offences. The Judge stated:[8]
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.
[8] R v Doolan, Le Bois-Agius and Shaw [2016] SADC 5 at [168].
An important feature of the telephone evidence included text messages between the two phones used by Lebois-Agius and Rankine. Those text messages supported the conclusion that Lebois-Agius was away from the home and his partner Rankine was home and in communication with him either via the phone he was using or on other occasions through contacting the Doolan phone, supporting the inference that Doolan and Lebois-Agius were together. The Judge made a finding beyond reasonable doubt that Doolan and Lebois-Agius were the users of the relevant phones during the period of the offending.
In short, all of the telephone evidence pointed overwhelmingly to the conclusion that both Doolan and Lebois-Agius were involved in all six of the incidents during the night.
However that was not the only evidence relied on by the Judge in reaching the ultimate conclusion that both Doolan and Lebois-Agius were guilty of all 11 offences.
The CCTV footage taken from the Windsor Hotel established unequivocally that both Doolan and Lebois-Agius were present at the hotel in company with each other at around 2.30 am (together with Shaw) shortly after the commission of the Norwood offending at around 2.00 am.
In addition, there was nothing in the identification evidence of any of the witnesses about their attackers which excluded either Doolan or Lebois-Agius as two of the four persons present at the scene of each crime.
The Judge was correct to observe that before he could reach a conclusion of guilt about Doolan and Lebois-Agius he needed to make the finding beyond reasonable doubt that each of them was the user of the relevant phone during the relevant period. This he did. Once that finding had been made beyond reasonable doubt there was no scope left for any explanation for their presence at the scenes other than their involvement in the commission of the 11 offences.
In short, the combination of evidence from the CCTV footage and meta data and other evidence from the phones overwhelmingly pointed to the guilt of Doolan and Lebois-Agius.
I would dismiss this ground of appeal in relation to those two appellants.
Unsafe and unsatisfactory verdicts - Shaw
The appellant Shaw appeals on the ground that the evidence against him was insufficient to enable a conclusion of guilt to be drawn beyond reasonable doubt.
The appellant Shaw also sought permission to add as a separate ground of appeal that the Judge erred in applying the wrong standard of proof to the finding that the same four men committed all offences.
Unlike the co-appellants Doolan and Lebois-Agius, there was no telephone evidence which implicated Shaw. The prosecution case against Shaw was entirely circumstantial.
In the end the prosecution case against Shaw largely depended on his association with the other three co-offenders. Apart from the DNA evidence inside the Holden and from the screwdriver left by an assailant at the scene of the offence committed in Adelaide, there was no other evidence to implicate Shaw.
The most compelling item of evidence pointed to by the prosecution of Shaw’s involvement in the Norwood incident was said to be his presence at the Windsor Hotel some 20 to 30 minutes later. The CCTV footage taken from the Windsor Hotel shows Shaw, Doolan and Lebois-Agius obviously associated with each other and moving about in the hotel. However while it may be accepted that the CCTV evidence demonstrates an obvious association between the three appellants, I do not consider that evidence in itself, or in the light of other evidence against Shaw, implicates him or establishes his complicity in the offending which took place at Norwood about half an hour earlier. The most that could be said about Shaw’s presence in the early hours of the morning in company with Doolan and Lebois-Agius so shortly after the commission of at least one of the incidents is that it arouses a high degree of suspicion.
It needs to be borne in mind that other evidence at the trial established that the three appellants moved about in a culture of young people all of whom appear to have had nocturnal lifestyles, shared each other’s possessions and from time to time stayed at each other’s houses. Against the background of the whole of the evidence the presence of Shaw at the Windsor Hotel might even point to some knowledge on his part about what the others had been up to that night, including some illegal activity. However without more I do not consider it is capable of proving complicity in the offending which occurred before, or any of the offences which occurred after.
It is true that Shaw was seen in company with Weetra and Lebois-Agius at Elizabeth some four and a half hours prior to the first of the series of offences being committed. It is evident as well that he was staying in the same house as Weetra and in fact was found sleeping in the same bed as Weetra at about 4.00 pm the next day, being 16 March 2014 at a time when the police attended. However, he was not present in the house earlier that day at 10.30 am when the police had also attended.
Even allowing for the presence of DNA consistent with Shaw found on items in the Holden and on a screwdriver left by one of the assailants at the scene of the Adelaide offence, I do not consider the evidence was capable of supporting an inference beyond reasonable doubt of Shaw’s complicity in the offending. There were a number of alternative scenarios consistent with Shaw’s innocence which may have accounted for the presence of his DNA on those items.
It is for these reasons that I do not consider an inference of guilt can safely be drawn against Shaw either from the DNA evidence standing alone or when considered in the context of the other evidence about Shaw’s association with the three other co-offenders during that night.
Given that there was no telephone evidence implicating Shaw, before the Judge could make a finding beyond reasonable doubt about his involvement in any of the offences it was necessary that he find beyond reasonable doubt that the same four people were involved in all 11 offences. It is evident from the Judge’s findings that the Judge was careful not to make a finding on that issue beyond reasonable doubt:
[91]On balance, I think it is more likely than not that Weetra had the same three co-offenders at each location.
At least in relation to the case against Shaw the finding that the same four men were involved in all offences was an indispensable link in the chain of reasoning to his guilt. The inability to make that finding beyond reasonable doubt insofar as it applied to Shaw is fatal to the finding of guilt of Shaw.
In summary, for these reasons I do not consider that the evidence against Shaw is capable of supporting a conclusion beyond reasonable doubt of his involvement in any of the offences and the appeal of Shaw must be allowed.
Conclusion
I would make the following orders:
1I would grant permission to Shaw to add the additional ground of appeal.
2I would allow the appeal of Shaw.
3I would quash the convictions in relation to Shaw and direct that a judgment and verdicts of acquittal be entered.
4I would dismiss the appeals of Doolan and Lebois-Agius.
PEEK J: I agree with the orders proposed by Kelly J and with her reasons.
LOVELL J: I agree with the orders proposed by Kelly J and with her reasons.