R v Drumgoon & Rees - [2011] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DRUMGOON & REES
Criminal Trial by Judge Alone
[2011] SADC 119
Judgment of His Honour Judge Nicholson
15 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - GENERALLY
The two accused were both charged with the offence of attempted aggravated robbery of a bank. A third person committed the offence. Drumgoon was alleged to have been a participant in a joint criminal enterprise with that third person to rob the bank and to act in the role of lookout. Rees also was alleged to be a participant in the role of getaway car driver. The Crown case on the ultimate issue, that of each accused's respective intention and agreement to participate, was wholly circumstantial.
HELD: Drumgoon guilty of the offence of attempted aggravated robbery; Rees not guilty of the offence of attempted aggravated robbery.
Criminal Law Consolidation Act 1935 s 241, s 241(1)(b), referred to.
R v Cosford and McDonnell-Smith [2007] SASC 147 at [25] and [27]; Shepherd v The Queen (1990) 170 CLR 573; R v Smith & Turner (1994) 63 SASR 123; Kartinyeri v R (SACCA, 20 February 1996, No. S5438, unreported); Benbolt v The Queen (1993) 60 SASR 7; R v Perdikoyiannis (2003) 86 SASR 262; R v Franco [2003] SASC 140, considered.

R v DRUMGOON & REES
[2011] SADC 119
Introduction

Upon an Information dated 18 October 2010, filed in this court, David Charles Drumgoon and Stormy Lee Rees were jointly charged with the offence of attempted aggravated robbery. The trial was heard by me sitting alone without a jury. The particulars of the charge are as follows.
David Charles Drumgoon, Stormy Lee Rees and Darryl McCulloch on the 23^rd day of April 2010 at Findon, attempted to commit the theft of money from the Bendigo Bank by threatening to use force against JH, and the threat was made at the time of or immediately before the attempted theft.
It is further alleged that an offensive weapon was used or threatened to be used when committing the offence.
The matters in the following subparagraphs are not contested by either defendant and, in any event, save for any qualifications as expressed, I find them to have been proved beyond reasonable doubt on the basis of the evidence adduced by the Director of Public Prosecutions.
(i)Between 11am and 12 noon on 23 April 2010 a person referred to in the evidence as Darryl McCulloch (“Mr McCulloch”) entered the Findon branch of the Bendigo Bank and asked a teller on duty, JH, about opening an account with the bank. JH dealt with Mr McCulloch’s enquiry and gave him a bank brochure dealing with fees and charges and a customer application form which she marked in various places so as to indicate where he had to complete it (exhibits P4 and P5).
(ii) Mr McCulloch left the bank. It is not in dispute that he returned to where a motor vehicle was parked in Cordelia Crescent some distance from the bank.[1] It was in this vehicle that Mr McCulloch and the two accused had travelled that morning to Cordelia Crescent.
(iii)Mr McCulloch returned to, or, at least, re-entered the bank. He entered alone, marched up to the counter and again spoke to JH. This time, and without any delay, he produced a silver metal replica .45 calibre hand gun, thrust his arm and hand holding the gun through the gap between two glass shields at the teller desk and pointed the gun directly at JH and only a matter of inches away from her. He demanded money. She said nothing, gave him nothing and pressed a button which activated the bank alarm system.
(iv)The bank security cameras took a series of still photographs. Those photographs show the scene where the attempted robbery by Mr McCulloch took place and give the flavour of his actions during the brief period during which the attempted robbery took place (exhibits P7A and P8).
(v)Mr McCulloch twice shouted his demands at JH but she froze and made no response. He turned and fled from the bank as can be seen in the photographs.
(vi)For most of the period during which Mr McCulloch was in the bank on the second occasion, the accused David Drumgoon was positioned outside and adjacent to the bank entrance. Each of the ten photographs in P7A records the presence of Mr Drumgoon from a time when Mr McCulloch is to be seen pointing the gun until a time when both of them are seen to be running away from the entrance along the footpath.
(vii)The accused, Stormy Rees, drove herself, Mr McCulloch and Mr Drumgoon to Cordelia Crescent where she parked her car. She waited, sitting in the driver’s seat, whilst Mr McCulloch visited the bank. When Mr McCulloch and Mr Drumgoon returned to the car immediately after Mr McCulloch’s failed attempt to rob the bank, she drove off.
(viii)The bank has a frontage, as part of a row of shops, directly on to a dedicated parking area within the shopping centre precinct. However, the bank is at the far end of the row of shops such that the bank’s side wall is immediately adjacent to and runs parallel with Cordelia Crescent. Cordelia Crescent can only be entered from the end furthest from the bank; the end of Cordelia Crescent immediately adjacent to the bank premises is a dead end with no vehicular access through to Grange Road or Crittenden Road, Findon. The shopping centre in which the bank is located is nestled between Crittenden Road and Cordelia Crescent. The location of the shopping centre and the bank itself can be better understood by reference to the Google Map and satellite pictures in exhibit P2. The area marked with a red A on the Google Map is the location of the bank.
(ix)Ms Rees’ motor vehicle was parked on that part of Cordelia Crescent that runs alongside the side wall of the bank, being the section of Cordelia Crescent on page 1 of P2 that is not marked with its name. The car was parked on the left hand or bank side, facing away from the bank (that is facing in the correct driving direction) and not far from the T‑intersection with Alice Street.
[1] The only direct evidence to the effect that Mr McCulloch went back to this car before returning to the bank a second time is that given by the accused, Mr Drumgoon. However, I have significant reservations about the truthfulness and reliability of Mr Drumgoon’s evidence generally.
It is not contested by either accused but, in any event, I am satisfied on the Crown case, beyond reasonable doubt, that Mr McCulloch committed the offence of attempted aggravated robbery. The Crown case against Mr Drumgoon and Ms Rees is that they, together with Mr McCulloch, engaged in a joint criminal enterprise with the common intention of robbing the bank. The Crown case shares similarities with the example often given by judges in this state when the notion of a joint criminal enterprise is explained to a jury.
If two persons agree to break into a bank and further agree that one of them will enter the bank and steal and the other will remain outside in a car with the engine running, keeping watch, and that agreement is then implemented, then both can be found guilty of the crime. The person waiting outside in the car could be equally guilty with the person who broke into the bank despite the fact that that person did not set foot in the bank.
This time, on the Crown case, there are three participants; Mr McCulloch who actually attempted to rob the bank, Mr Drumgoon who, on the Crown case, stood outside the bank keeping watch and Ms Rees who, on the Crown case, remained in the car parked in a suitable location so as to facilitate a quick and hoped for undetected getaway.
Directions of law
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for the court having conducted a trial by judge alone to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless record that I have reminded myself of the following matters.
(i)Each accused is presumed to be innocent of the charge unless and until guilt has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence charged. An accused does not carry any onus of proof and to the extent that he or she might put forward a defence they do not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge with respect to either or both accused then I must give such an accused the benefit of that doubt and find him or her not guilty of the charge.
(iv)I have reviewed the standard directions often given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. I remind myself that neither accused was obliged to give evidence; each always had the right to remain silent in answer to the charge leaving it to the prosecution to satisfy me of all of the elements of the charge. In this case Ms Rees did not give evidence and no inference adverse to her is to be drawn because of this. However, Mr Drumgoon did elect to give evidence on oath and to expose himself to cross-examination. Whilst I have assessed his evidence in the same way as I would assess the evidence of any other witness, I further remind myself that by going into the witness box Mr Drumgoon did not assume any burden of proof.
As I have already indicated, the Crown case is that each accused engaged upon an agreed, deliberate course of criminal conduct with each other and with Mr McCulloch in order to rob the Findon branch of the Bendigo Bank. If two or more persons join together in a joint criminal enterprise, every act done and word spoken in furtherance of that enterprise by any one of them, is in law done and spoken by them all. In other words, the combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed upon by them may make them all guilty of the resulting crime. The concept of the joint criminal enterprise implies that the persons concerned are, as it were, acting as a team to achieve a mutually agreed result.
The mere presence of a person at or near the scene of a crime being committed by another, whatever may be that person’s knowledge of, or attitude towards, the commission of the crime, does not, without more, make him or her guilty under this principle. To implicate that person, his or her presence must be by agreement with the other for the purpose of furthering and achieving the commission of the crime. The agreement might be the result of a carefully worked out plan, or it might be made on the spur of the moment and without a word spoken.
A joint criminal enterprise is usually a matter of inference from proven conduct. I must look at the proven acts of each accused in the light of the evidence as a whole, including the explanations which each accused has offered. I must then decide whether those acts in combination justify the inference, or conclusion, beyond reasonable doubt, that there must have been a joint criminal enterprise, involving the accused under my consideration, to commit the offence.
There is direct evidence which I accept, which is not contested by either accused and which proves that Mr Drumgoon arrived with Mr McCulloch and Ms Rees in the green motor vehicle that was parked in Cordelia Crescent and that it is Mr Drumgoon who features at the doorway in the bank security camera photographs. However, Mr Drumgoon’s and Ms Rees’ respective intentions and agreement to be part of the enterprise can only be a matter of inference based on circumstantial evidence. The amount of circumstantial evidence that will suffice to prove a charge beyond reasonable doubt will vary from case to case. The number of circumstances proved can vary enormously and so can the weight of the various circumstances that are proved. Some of the facts directly proved may be quite strong indicators of the ultimate inference (in this case the question of common purpose) argued for by the Crown whereas other proved facts might be quite weak indicators. However, the weight of a case which depends substantially upon circumstantial evidence, in the result, depends upon the combined strength of all the facts that have been proved and that are probative of the ultimate inference sought to be established.
Ordinarily, when approaching a case based on circumstantial evidence it is necessary first to identify those potentially relevant facts that have been established by the evidence and then second, to consider whether or not an inference should be drawn beyond reasonable doubt from those facts. Before I can be satisfied that either Mr Drumgoon or Ms Rees was guilty of the charged offence I would need to be satisfied not only that guilt was a rational inference but that it was the only rational inference available from the circumstances, I have found proven.
The first step requires the identification of potentially relevant facts that have been established by the evidence. In R v Cosford and McDonnell-Smith[2] White J (with whom Duggan and Gray JJ agreed) said this.
While each element of an offence must be proved beyond reasonable doubt, it is clear enough that in a circumstantial case it is not every fact relied upon to prove each element which must itself also be proved beyond reasonable doubt. It is only those facts which constitute indispensable intermediate steps in the reasoning towards an inference of guilt which must be so proved.
. . . .
Shepherd[3] established that in a circumstantial case a fact, not being an element of the offence charged or of a defence to be negated, need not be established beyond reasonable doubt unless it is, in a strictly logical sense, an indispensible link in the chain of sequential reasoning leading to a finding of guilt.
[2] [2007] SASC 147 at [25] and [27].
[3] Shepherd v The Queen (1990) 170 CLR 573.
The second step identified above requires me to consider the combined strength of the established facts bearing in mind that when all of the established facts are taken together they may produce a strength or level of assurance which is greater than is the strength of any one individual fact.
Crown case against Mr Drumgoon
The Crown case against Mr Drumgoon can be distilled to the following propositions.
(i)The bank security camera photographs in P7A and P8 tell the story of Mr Drumgoon’s involvement and, taken alone, enable an inference to be drawn beyond reasonable doubt that Mr Drumgoon was a knowing party with, at least, Mr McCulloch in a joint criminal enterprise to rob the bank.
(ii)Mr Drumgoon’s actions, as can be discerned from the photographs, are quite inconsistent with the account given in evidence by Mr Drumgoon of his actions, knowledge and intentions.
(iii)Mr Drumgoon was wearing sunglasses and a headscarf or bandana in such a way as to substantially obscure potential identifying features of his face and head.
(iv)The reason given by Mr Drumgoon for why he wore the cloth or bandana on his head was “fundamentally ridiculous” and implausible.
(v)Mr Drumgoon’s conduct after leaving the bank was also consistent with his having been a party to the enterprise and supports an inference that he was involved. Mr. Drumgoon did not run away from Mr McCulloch after he, on Mr Drumgoon’s case, discovered what Mr McCulloch was up to. They stayed together throughout that day and thereafter until both were arrested three days later. It was Mr Drumgoon who took over the driving and abandoned the car in the driveway of a block of units. All three caught a bus to the city and then a train to Elizabeth where Mr Drumgoon was living and Mr McCulloch continued to reside at those premises with Mr Drumgoon. Mr Drumgoon was present at the time when Mr McCulloch hid the replica gun tied up in cloth in bushland on the bank of the River Torrens and when Mr McCulloch hid the boots that he was wearing that morning.[4] In other words, so the Crown submitted, contrary to Mr Drumgoon’s evidence, he was not in fear of Mr McCulloch and he continued to remain in his company and to tolerate sharing his flat with him after and notwithstanding the shocking and illegal nature of the incident at the Bendigo Bank.
(vi)The piece of cloth or bandana worn by Mr Drumgoon was torn from a jersey and both articles were found by the police in the abandoned green Commodore motor vehicle. On the Crown case, it is to be inferred that the cloth was torn from the jersey specifically for the purpose of enabling Mr Drumgoon to disguise some of his head and facial features.
[4] The boots can be seen in photograph numbered 3 of P7A and photograph 4 of P8.
The elements of aggravated robbery relevant to the present case are:
(i) that the accused committed a theft;
(ii)that the accused used (or threatened to use) force in order to commit the theft;
(iii)that the force was used (or threatened) at the time of, or immediately before or after the theft; and
(iv)that the accused had an offensive weapon with him when committing the robbery.
Mr McCulloch’s efforts to rob the bank failed. Nevertheless an attempted aggravated robbery is also a crime. To prove this offence the prosecution must prove beyond reasonable doubt:
(a) that the accused intended to commit the crime of aggravated robbery; and
(b)that the accused, in order to carry out that intention performed an act or acts which amount (in law) to an attempt.
As I have already indicated, the Crown has proved that Mr McCulloch engaged in (a) and (b) above. It is the Crown case that Mr Drumgoon from the outset intended to participate in the robbery as part of a joint criminal enterprise.
Evidence of the Accused, David Drumgoon
The day of the incident was a Friday and according to Mr Drumgoon he was due to collect his son from school that afternoon and to look after his son, by way of an access visit, over the weekend until the Sunday afternoon. The son went to the Elizabeth East Primary School which was within walking distance of Mr Drumgoon’s unit. Darryl McCulloch had been staying with him at his home unit for a few months on the basis that he would pay $50 every fortnight towards Mr Drumgoon’s rent. Mr McCulloch was staying in a room of his own and for the last week or two prior to the incident appeared to be in a full time relationship with Ms Rees who also stayed with him in that room. Mr McCulloch owed Mr Drumgoon arrears of rent and he went with Mr McCulloch on Friday morning to the Findon area so that Mr McCulloch could obtain money from his mother. He had promised he would give Mr Drumgoon $50. Mr Drumgoon needed that $50 to go shopping bearing in mind that his son was coming for the weekend.
At some stage when they were “in the area” Ms Rees stopped the car to enable Mr McCulloch to ring his mother from a phone box. After this phone call he told Mr Drumgoon that he was not able to see his mother for some time because she was working. They then went to an IGA where they obtained some drinks and some food. Mr Drumgoon explained what next occurred (T154).
Darryl then instructed Ms Rees to drive the car around to a certain street and park there and he said he was going to go around to the bank or ATM and he told us both to wait at the car. We waited at the car and after maybe four or five minutes he returned back to the car and we prepared to get going and he said no, he had to go back into the bank. He then left the car again and I was starting to get frustrated, thinking that he was going to mess me around with the money and I needed to get back to Elizabeth, so I went to go looking for him to see where he was and that is when I arrived at the bank. I was trying to look through the window; I went to push the door open to walk in to the bank. He was standing there with a handgun. That is when I froze.

According to Mr Drumgoon, this was the first time he became aware that Mr McCulloch had an intention to rob the bank. Mr Drumgoon went on to explain that he had not seen Mr McCulloch with a firearm before then. According to Mr Drumgoon, when Mr McCulloch returned after the first visit to the bank he had some brochures or leaflets. He told Mr Drumgoon that he had to open an account and had returned to get some identification from the car because he needed to cash a cheque. Mr Drumgoon does not recall seeing any cheque. Mr Drumgoon became frustrated and went off to look for Mr McCulloch after he left the car for the second time. He denied being at the bank entrance as a look out and said this (T157).
No, I was just about to walk into the bank, I opened the door. To start with I couldn’t see if he was properly in there because prior to me getting to the bank I was maybe thought, maybe he was not even there, just gone somewhere else, buying time. I couldn’t see in properly. I pushed the door to walk into the bank
. . . .
This is when I think he noticed me pretty much straight away and that is when he turned to come running to the door.
. . . .
At that point I was about to walk into the bank to see if he was in there. As I got the door partly open I heard him yelling and seen him standing there with a gun and I froze for a mere second or two, that is when he turned and came running at me yelling at me.
Mr Drumgoon said that at that point he went to run off as well. He insisted that he did not push the door open in order to help Mr McCulloch leave. According to Mr Drumgoon the only time he attempted to open the door was when he first arrived and wanted to walk into the bank to see what was going on. He said that when he arrived at the bank the door was completely closed.
Mr Drumgoon said that the reason he had pushed the door open to look into the bank was because it was difficult to see through the glass because of reflection. I accept that the glass window and glass door of the bank did reflect objects outside the bank. This can be seen clearly enough in the photographs in P7A, it was the effect of JH’s evidence on the topic and is consistent with common experience.
Mr Drumgoon also gave an explanation for why he was wearing a bandana like headdress (T155).
QWhen we see Mr McCulloch in the bank he is wearing a cap.
AYes.
QYou are at the door with a piece of what might have been a spot [sic] bandana or something on your head. Can you tell his Honour about the hat and what was on your head.
AThe hat was actually mine, but prior to getting – arriving in the area Darryl swapped with me. He had the bandana; he gave me the bandana. He wore the hat when he went into the shop, the IGA; he still had the hat on afterwards when he went to the bank.
QWas there any reason why he took your hat or why you gave it to him.
AFirst of all I was sitting in the car so I hadn’t needed it but then when I got out to go and get a drink at the IGA because of my hair at the time being a funny colour I did decide to put the bandana on.
Mr Drumgoon was taken to this topic a number of times during his evidence. He maintained throughout that it was Mr McCulloch who asked if he could borrow Mr Drumgoon’s hat, that this occurred prior to arriving at the IGA, that Mr Drumgoon could not recall any conversation or reason given by Mr McCulloch as to why he no longer wished to wear the bandana but wanted to wear the hat and that Mr Drumgoon was quite embarrassed about his hair and so whenever he left the car he wanted to wear either the hat or the bandana.
Mr Drumgoon explained that, within the previous couple of days, he had attempted to die his hair but the process had not worked as expected and he was left with a reddish colour throughout his hair which he found to be embarrassing. Mr Drumgoon said that his normal hair colour was as it appeared in court, a very dark brown. Exhibit DD17 comprises two photographs taken of Mr Drumgoon (the person on the right hand side of each photograph) on the day he was arrested some three days after the Bendigo Bank incident. Exhibit DD17 shows the reddish colour that Mr Drumgoon’s hair had assumed at that time. There is also photograph 24 in P12 which was taken shortly after Mr Drumgoon was arrested. According to Mr Drumgoon, photograph 24 of P12, for some reason, perhaps the nature of the lighting at the time it was taken, does not do justice to the reddish colour that his hair had assumed at that time. DD20 is a photograph that was taken on 28 April 2010 following Mr Drumgoon’s admission into custody on remand, that is 5 days after the Bendigo Bank incident and also shows a reddish colour to the hair.
Mr Drumgoon conceded that he did not know anyone who lived in the areas in which he got out of the car that Friday and he was not expecting to meet anyone who might know him. Nevertheless, it was important for him to wear either the hat or some other head covering because he found the redness of his hair quite embarrassing.
It was Mr Drumgoon’s recollection, although he wasn’t certain of this, that prior to dumping the car at a block of units soon after driving away from the bank, he gave Mr McCulloch “his piece of material back” and McCulloch passed Mr Drumgoon’s cap back to him (T160). He said that he did not see the piece of material come off the “Washington Cardinals” jersey (P16) and told the court that Mr McCulloch had the piece of material “prior to that morning”. I interpolate that if Mr McCulloch had had the piece of material in his possession prior to that morning, it is odd, although not inconceivable, that the jersey from which it had been torn was also in Ms Rees’ car that day.
At one stage in his evidence Mr Drumgoon said that he was not certain about whether he wore a black bandana of the sort that might be purchased from a shop or whether he, in fact wore the piece of black material torn from the Washington Cardinals jersey. In this respect, I am satisfied that Mr Drumgoon was being evasive and took one step too far in trying to distance himself from the piece of material torn from the jersey in P16. Mr Drumgoon’s most believable answer is the one he gave in chief when he volunteered “I think I recall giving him his piece of material back” (T160).
During cross-examination Mr Drumgoon was taken at length through the series of photographs but in the order in which they appear in P7 and invited to explain his movements as best he could recall them with the assistance of the photographs. Mr Drumgoon insisted that the only time he pushed the door open was to see what was going on because he was unable to see clearly through the bank glass door and windows. Mr Drumgoon maintained that at no time did he hold the door open to help Mr McCulloch flee the bank. When he saw what was happening he panicked, at first froze, and then turned and started to run. He said that Mr McCulloch yelled at him to stop and to walk with him which he did. Whilst Mr Drumgoon wanted to get away from Mr McCulloch, Mr McCulloch had a gun and so Mr Drumgoon complied with his demands. To that point he had not seen the gun before and did not know that it was not a real gun.
Mr Drumgoon described Mr McCulloch as dominant and aggressive whilst they had been living together and said that he had been trying for some time to get Mr McCulloch to leave but without success. Mr McCulloch had insisted that Mr Drumgoon stay in his presence and Mr Drumgoon was frightened of Mr McCulloch. He had threatened to shoot Mr Drumgoon on at least one occasion. In short, Mr Drumgoon had no choice but to comply with Mr McCulloch’s demands and to go with Mr McCulloch wherever Mr McCulloch went or to stay in the home unit at all the times that Mr McCulloch was there.
The essentials – that Mr Drumgoon was expecting Mr McCulloch to obtain some money from the bank so as to pay the rent, that at the time prior to Mr McCulloch leaving the car to go to the bank he was not aware of Mr McCulloch’s intentions or that Mr McCulloch had a gun, that the time he looked into the bank and saw Mr McCulloch in action was the first time he realised that a robbery had been intended by Mr McCulloch and that thereafter he panicked, ran off with Mr McCulloch and Ms Rees and had no practical choice but to remain in Mr McCulloch’s company for the next three days – are not inconceivable. However, the question before me is whether these essentials represent a reasonable possibility when regard is had to all of the evidence in the case.
Consideration of the Prosecution Case against Mr Drumgoon
I start with the proposition that at the time Mr McCulloch is seen to be attempting to rob the bank Mr Drumgoon is outside the bank wearing wrap around sunglasses (Photograph 26 of P12) and a piece of cloth worn in such a way as to obscure all of his face and head above the wrap around sunglasses together with all of his hair which because of its reddish colour that day may have been readily remembered by any eyewitness. The mere appearance of Mr Drumgoon excites suspicion, albeit no more than that. I also need to record at this point that, leaving aside the evidence of Mr Drumgoon which is in the nature of admissions or potentially incriminating statements, I do not, in general, accept Mr Drumgoon to be a witness of truth. There are a number of aspects of his evidence that, to my mind, are implausible or that are inconsistent with the photographic evidence. I will outline some of my criticisms of his evidence later in these reasons.
That is not to say that all of that which Mr Drumgoon said in evidence is necessarily untrue only that I am not sufficiently confident of his truthfulness to accept his account of the essentials of his defence as a reliable one. That, of course, does not necessarily mean that these essentials might not comprise a reasonable possibility. Even if I were to disregard and ignore his evidence entirely, that would not prove the Crown case. The Crown bears an onus to prove beyond reasonable doubt the elements of the offence. Part of the relevance of the version of events put forward by Mr Drumgoon is for me to consider whether it assists in casting a reasonable doubt on the prosecution case.
I turn then to the centrepiece of the prosecution case against Mr Drumgoon; the bank security camera photographs in P7A. I first need to say something about the way in which they came before the court. During the Crown case photographs in the order contained in P7 were tendered. The only difference between P7 and P7A is that the photograph labelled number 3 and coming third in the booklet of photographs in P7 is in fact the first photograph in the chronological sequence. It was this bundle of photographs (P7) that was put before Mr Drumgoon during his cross-examination and it was this bundle of photographs that prosecuting counsel and both defence counsel relied on and referred to when making their final addresses. However, as a result of a question asked by me during the prosecution counsel’s final address further enquiries were made on behalf of the Crown after I had reserved my decision. As a result of those further enquiries it became apparent that the photographs in P7 were in the wrong order in that the third photograph was in fact the first photograph taken by the security camera. I called the matter back on and prosecuting counsel applied to reopen its case so as to tender P7A being a set of photographs said to be in the correct order. Neither defendant opposed the application and I granted leave to the Crown to reopen its case. I accepted the tender of P7A. No consequential applications were made on behalf of either defendant and, in particular, no application was made for Mr Drumgoon to be recalled to give further evidence responding to the photographs in their correct order.
I have reviewed Mr Drumgoon’s cross-examination concerning the photographs and I have satisfied myself that he has been put at no disadvantage through this process. He was consistent as to the essentials he gave about his movements and activities outside the bank and I am satisfied that this evidence would have been given in any event. The fact of the matter is, Mr Drumgoon’s evidence as to his conduct outside the bank, at least in part, is inconsistent with the photographs whether reference is had to P7 or P7A. I return to this inconsistency later.
However, another matter emerged for the first time from the further enquiries made by the Crown after I had reserved my decision. The 10 photographs in P7A were not the only photographs taken by the bank security camera. A larger number of photographs were taken of which P7A is only a selection. Ordinarily, it is a matter for the parties as to the evidence to be adduced in a trial of this nature. It is not for the court to require a party to adduce evidence of a particular type. Belatedly, the Crown disclosed all of the photographs available from the bank security camera to both defence counsel. It cannot now be and has not been suggested that they have not been given a fair opportunity to consider whether or not the 10 photographs in P7A fairly reflect or represent the potentially available photographic evidence. No party sought to have any of the additional photographs tendered or for any witnesses to be recalled and examined on any of the additional photographs. I was told by all counsel from the bar table that they were satisfied that the photographs in P7A fairly disclose the presence and actions of Mr Drumgoon at the time of the attempted robbery insofar as the bank security camera photographs can be of assistance in this respect. Whether or not this is so, I can only decide the case on the evidence that is before me.
I am satisfied that there are aspects of Mr Drumgoon’s evidence that are plainly inconsistent with the photographic evidence. However, in undertaking a comparison of his evidence with what is properly to be observed in or inferred from P7A, two matters have caused me some concern when deciding how much weight I can place on what the photographs appear to show.
A problem with still photographs, as compared with a video recording, is that each still photograph only shows a snap shot; an image in place for the microsecond it took for the camera to capture it. Whether the image, as captured, was in place for any longer period will depend upon any movement or lack of movement in the subject before and after the time when the image was captured. There is limited evidence before the court as to the total time period over which these particular photographs were taken and, importantly, no evidence as to the amount of time that elapsed between the taking of each of the consecutively taken images in P7A. I accept that the whole experience of JH from the time Mr McCulloch entered the bank the second time, pulled his gun out from either beneath his clothing or from the bag he was holding, made his demands, became frustrated and took off was a matter of seconds and not minutes; JH estimated it to be in the order of 30 to 40 seconds. Nevertheless, even that is a relatively substantial period of time within which to position 10 still photographs.
In essence, I cannot be certain that any particular photograph has captured Mr Drumgoon in a deliberate pose as opposed to simply a component of a more elaborate continuous movement or action. To this extent a particular photograph may present a misleading picture. For example, the first three photographs in P7A (that is, those labelled 3 then 1 then 2) appear to show Mr Drumgoon first standing in a stable position with both feet evenly on the ground but apart and apparently looking away from the bank door, before turning to look in. An available inference from the first two photographs is that he was standing in that position as if to serve as a look out for Mr McCulloch, for some time, perhaps some seconds after which he turned to look inside (photograph labelled 2). However, I ask myself is it possible that the first two photographs have captured Mr Drumgoon not standing fixed to the spot but as he arrived at the bank still facing down the path, as it were, before immediately turning to look into the bank as shown in the third photograph (labelled 2)? In other words, what appears to be static behaviour by Mr Drumgoon may simply be a split second capture of part of his instantaneous movement of arriving at the bank and turning to look into the bank.
Furthermore, these first three photos show Mr McCulloch to have moved his hand holding the gun from the level of JH’s waist to the top of her chest. JH said that the gun “appeared to be in his hand behind him, as in held down by his side, sort of behind him”. She described a motion of fronting up to the counter and then pointing the gun “direct at [her] chest”. I am satisfied that the time between the taking of the first three photographs was very short indeed, perhaps no more than a second or two.
As I say, this is a fundamental concern with any series of still photographs; it cannot be assumed that they accurately portray all of the conduct of the subject from the beginning of the sequence to the end of the sequence of the still photographs. It is not appropriate to treat them as if by rifling through them to mimic the way that moving cartoons were originally created for film.
A second matter of concern arises, in particular, with the first two photographs (labelled 3 and 1) and to a lesser extent the fifth photograph. The first two photographs (3 and 1) do not appear to show a direct view of Mr Drumgoon. The glass panel in the door, ajar, appears to show his reflection with his back to that door, albeit partly turned, and then the fixed glass opposite the ajar door appears to show a further reflection of that reflection in the door.
Apart from those components of the photos which clearly show a direct view through the partly open doorway to the outside there is a potential “hall of mirrors” effect in circumstances where it is not always clear how many “mirrors” might be operating. No evidence from a suitable expert concerning the way in which the photographic images should be understood is before the court. It may well be, given the physical set up captured by the security camera, that expert evidence would not have been of much assistance.
The two concerns just now discussed do have the effect of limiting the confidence with which some inferences might be drawn from P7A.
However, of note also is the apparent positioning of Mr Drumgoon’s (left) hand in the lower right corner of each of the first two photographs. This part of each photograph has a clarity about it that suggests it is a direct view of the hand through the window rather than a reflection or the end result of multiple reflections. As a direct view it supports the inference that Mr Drumgoon is standing with his back or side to the bank door, partly turned and looking down the pedestrian pathway leading to the bank entrance. The fact that his hand is resting on his hip also supports the inference that the camera has captured him standing in a stable position rather than as part of a continuous act of arriving and turning. The presence of the left hand on the hip in the first two photos (labelled 3 then 1) does operate as a significant counterweight to the two concerns discussed above.
What is clear beyond doubt is that Mr Drumgoon, having arrived at the bank and by the time the third photograph (labelled 2) and the fourth photograph are taken, is attempting to look into the bank. These two photographs show Mr Drumgoon not popping his head around to look through the door way unimpeded or even attempting to open the door further and entering. Instead he is trying to peer through either the glass panel or even the vertical crack between the hinged side of the door and the adjacent frame that can be created when a door is partly open. He appears to be looking in the direction of JH and Mr McCulloch. In both photographs, Mr Drumgoon has a hand up to and covering part of his face. It may be that this is simply a position of comfort adopted by him whilst leaning against the door frame although to my mind this would be a quite unusual pose to adopt if he was trying to look in through either the glass panel itself or the vertical crack and I reject this as an explanation.

Mr Drumgoon and JH both gave evidence that it was difficult to see in through the bank windows because of outside reflections. Common experience and the photographs confirm this. Surprisingly Mr Drumgoon did not place his hands in a cup shape on the glass which common experience also suggests can often make seeing in through a window from outside easier. In my view, there are two realistic possibilities for the position of the hand in these third (labelled 2) and fourth photographs. One is that Mr Drumgoon was trying to cover part of his face, in addition to the use of the bandana to avoid exposing features that might later be described by any eyewitness. Another is that it was an instinctive reaction – as if covering his open mouth – to his shock and horror at observing what Mr McCulloch was doing. Mr. Drumgoon said that he was shocked and “froze” at this point although he did not proffer this explanation for the positioning of the hand when cross-examined on the topic of the photographs.
By the time of the fourth photograph Mr McCulloch has turned and commenced to run for the door. I interpolate here that JH’s evidence about the door, which I have no reason to doubt,[5] was that it had an automatic closing mechanism. The mechanism was of a type in common use and can be seen attached to the top rear of the door in all of the photographs. She said that the door remained in a closed position unless someone entering or leaving pushed or pulled it open. The first four photographs show the door ajar. Unless Mr Drumgoon is doing something to prop it open, it is in the process of closing, following entry by Mr McCulloch, at a relatively slow speed as governed by the door closing mechanism. I am satisfied from an examination of the first four photographs that no part of Mr Drumgoon’s body (including his feet) is serving to prop the door open. Mr Drumgoon did not, in his evidence, suggest anything to the contrary. By reference to the bench and its contents behind the door, the door appears to have moved very little, if at all, during the passage of time in which these first four photographs were taken suggesting a very short time frame for these photographs.
[5] JH gave her evidence in a clear and measured manner. There is nothing of a material nature in her evidence that I do not accept.
The first four photographs show the initial events to have occurred in a way quite inconsistent with Mr Drumgoon’s evidence to the effect that after his arrival at the closed bank door he pushed it open in order to see more clearly what was happening at which point he froze and then took off. It is conceivable that he pushed the door open when he first arrived but at a time prior to the events caught on camera, retreated momentarily (the first two photographs labelled 3 and 1) and then returned to look in (the next two photographs in sequence, labelled 2 and 4). However, there is an element of speculation to this; there is no evidence to support it. In any event, such a sequence of events is consistent with the Crown case and inconsistent with the defence case. It is inconsistent with “freezing” and then taking off. It is consistent with Mr Drumgoon initially seeing what was going on, stepping back to check that the coast was still clear and then looking again to check on Mr McCulloch’s progress.
Based on the evidence that is before me, I am satisfied that Mr Drumgoon at no time opened the closed door. He arrived at or shortly after the time that Mr McCulloch entered and whilst the door was still in the process of closing. However, whilst this is inconsistent with Mr Drumgoon’s evidence it is not on its own necessarily inconsistent with his defence that he was not there as a lookout but on arrival looked in and froze because of what he saw.
In photograph 5 Mr Drumgoon has retreated from the door as Mr McCulloch walks toward it. However, in this photograph blurred vision of Mr Drumgoon’s left hand can be seen extending towards the closing door. The hand is blurred because the camera has captured the hand as it was moving from the left hip (photographs labelled 3 then 2 then 4) towards the door. Photographs 6, 7 and 8 clearly show Mr Drumgoon using his left hand in an attempt to prevent the door from closing whilst Mr McCulloch runs toward it. In photograph 8 Mr McCulloch has his hand on the inside handle and is pulling the door open; Mr Drumgoon is still assisting with his left hand. In photograph 9 Mr McCulloch is adjacent to the now quite open door about to step through the now unimpeded doorway; Mr Drumgoon has taken off along the footpath with his back to Mr McCulloch. In photograph 10 Mr McCulloch has just emerged from the doorway; Mr Drumgoon is well ahead making off with his back to Mr McCulloch.
I turn to the topic of Mr Drumgoon’s head covering. I am satisfied that the head covering worn by Mr Drumgoon was in fact the piece of black material torn from the Cardinal’s jersey both of which were found in the green car by the police. It is odd, to say the least, that the need or desire for a bandana had such urgency to it that it warranted tearing a piece of material from a perfectly good jersey. It is, of course, conceivable that this piece of material had been torn from the jersey at some time prior to the journey undertaken in the green car that day and that Mr McCulloch brought both the jersey and the bandana material with him that day. In any event, I do not accept Mr Drumgoon’s explanation that he wanted to wear the piece of material because he was embarrassed about his hair colour. The reddish colour shown in the photographs is by no means extreme and the explanation he gave both in its terms and in the manner he gave it was not at all persuasive. At the end of the day, the explanation given by Mr Drumgoon for why he came to be wearing the piece of cloth rather than his own hat, the fact that Mr Drumgoon happened to be wearing it at the location where and at the very time when Mr McCulloch was attempting to rob the bank and the fact that he was wearing it for the reasons he gave, comprise a series of coincidences that together strain credulity.
Findings beyond reasonable doubt
I am satisfied of the following matters beyond reasonable doubt.[6]
[6] In being so satisfied I rely essentially on the photographs in P7A, the admissions against interest in Mr Drumgoon's evidence and the agreed facts (P19) 2, 7 and 8.
(i)Mr Drumgoon arrived with Mr McCulloch in the car driven by Ms Rees and parked in Cordelia Crescent.
(ii)Mr Drumgoon was present outside the door of the bank whilst an attempted robbery by Mr McCulloch took place and Mr Drumgoon was present at least from the time that Mr McCulloch started to raise the gun before pointing it at JH and until Mr McCulloch left the bank which, based on the evidence of JH, must have been for about 30 seconds or so.
(iii)Mr Drumgoon was wearing a strip of black cloth in the shape of a bandana which served to completely cover his forehead to the rim of his sunglasses and to also cover the back of his head and his hair.
(iv)Mr Drumgoon was also wearing the wrap around dark sunglasses that can be seen in photograph 26 of P12.
(v)The effect of (iii) and (iv) was to completely obscure the top of Mr Drumgoon’s face including his eyes, his forehead and his ears and all of his, then, reddish hair; thus rendering difficult any subsequent attempt to describe, identify or claim recognition of Mr Drumgoon.
(vi)Whilst standing outside the bank Mr Drumgoon attempted to peer inside to see what was going on.
(vii)Whilst attempting to peer inside Mr Drumgoon’s right hand was raised to and rested on a lower portion of his face.
(viii)The effect of (vii) was to obscure additional facial features thus rendering more difficult any subsequent attempt to describe, identify or claim recognition of Mr Drumgoon.
(ix)After Mr McCulloch turned away from the teller, JH, and started to move towards the door, Mr Drumgoon, for the first time caught on camera, placed his hand on the glass panel of the door at a point very close to the hinged side of the door.
(x)Mr Drumgoon’s hand remained there for the period of time it took Mr McCulloch to make his way to the door and to grasp the internal handle.
(xi)The hand, as shown in the photographs, is shaped and positioned in such a way as to indicate that Mr Drumgoon was experiencing some resistance from the closing door.
(xii)The inference to be drawn from (ix), (x) and (xi) is that Mr Drumgoon’s intention was to stop the door closing in order to assist Mr McCulloch to make an easier exit than otherwise might have been possible.
(xiii)Mr Drumgoon took off in the direction of Cordelia Crescent and the car with Mr McCulloch following him.
Other Considerations
The conduct of Mr Drumgoon in leaving with Mr McCulloch and remaining in his presence for the next three days and conducting himself in the way that has already been summarised, is consistent with the two being partners in crime but is also consistent with Mr Drumgoon’s assertion of being intimidated by Mr McCulloch and basically too frightened to do other than his bidding.
For the reasons I have already set out I am not able to elevate the following two matters to findings beyond reasonable doubt. However, and after having given close consideration to the matters of concern identified with respect to P7A, I do accept that the following two matters are inferences that are to be drawn with a high degree of confidence. The two matters are these.
(i)Prior to looking inside the bank to check on progress, Mr Drumgoon was standing outside the bank in the role of lookout.
(ii)The black head covering was deliberately worn by Mr Drumgoon with the intention of obscuring facial and head features that otherwise might have made it easier for someone to recognise, describe or identify Mr Drumgoon.
Neither of these facts is an element of the offence of attempted aggravated robbery nor is it an indispensible link in a chain of reasoning leading to a finding of guilt.[7] In a sense, a finding beyond reasonable doubt of either or both these matters would be tantamount to a finding as to the ultimate issue of intention and guilt. But that is not the same thing as saying that either matter is indispensible to a chain of reasoning leading to an inference of guilt. In short, they may be sufficient but they are not essential. It follows that these two inferences are part of the collection of findings probative of the ultimate inference argued for by the Crown, the combined strength of which I am required to assess.
[7] Vide: Shepherd and Cosford and McDonnell-Smith above.
Mr Drumgoon gave a coherent account of his activities that morning when examined in chief. In cross examination he was asked to go through the account and to expand on many aspects of his evidence. The cross examination was very lengthy and covered many topics and subtopics in great detail. However, and surprisingly, Mr Drumgoon was rarely lost for an answer. I got the strong impression that, at times, Mr Drumgoon was developing his evidence as he went. If he felt that the cross examiner had found or might be leading up to a gap or inconsistency, he expanded his evidence both as to what he said happened and the way he was thinking at the time and attempted to plug that perceived gap. The essentials in Mr Drumgoon’s account remained in place. Nevertheless, there are a number of aspects of his evidence that I simply do not accept. The more significant include.
(i) His account of his initial arrival outside the bank and, pushing open the door to look in, seeing what Mr McCulloch was up to, freezing for a few seconds and then running away (T154 and 157) is inconsistent with his actions as disclosed in the photographs in P7A.
(ii)His account of why he swapped his hat for the piece of cloth made little sense and the reason he gave for insisting on wearing the cloth as a bandana was not at all persuasive and highly convenient.
(iii)Mr Drumgoon’s denial that he, at any time, held the door to assist Mr McCulloch to make an exit is quite inconsistent with the photographs in P7A.
(iv)The reasons Mr Drumgoon gave for his behaviour in company with Mr McCulloch immediately after leaving the bank and during the three days thereafter were not persuasive. I provide just one of many examples of this. One of the reasons Mr Drumgoon gave for being frightened of Mr McCulloch was that Mr McCulloch threatened to shoot him with the gun at least once during the three days, although, he never expressly stated that the gun was pointed at him. The police seized the gun on the day the two men were arrested when Mr McCulloch lead them to the place where he had hidden it on the bank of the river Torrens. Mr Drumgoon was with Mr McCulloch at the time he hid the gun. However, Mr Drumgoon gave no evidence of Mr McCulloch retrieving the gun at any time and, according to Mr Drumgoon, they were in each other’s presence throughout the intervening period. This evidence of being threatened and all of Mr Drumgoon’s explanations for why he was in fear of and always did the bidding of Mr McCulloch were developed during his cross examination. It was triggered by the cross examiner’s enquiry as to why Mr Drumgoon ran away from the bank with Mr McCulloch towards the car rather than in a different direction if he was, in fact, shocked and upset about Mr McCulloch’s behaviour. The evidence on these topics as given by Mr Drumgoon had the appearance of being constructed (for the first time) on the run.
I am not persuaded that Mr Drumgoon has given a completely truthful account of his actions.
Was Mr Drumgoon party to a joint enterprise?
I am not persuaded to accept Mr Drumgoon’s evidence that he was unaware of Mr McCulloch’s intention, and therefore could not have been a party to it, until he saw him with the gun in the bank. However, it does not follow that this might not still be a reasonable possibility open on the evidence. Nevertheless, for this to be so I would have expected Mr Drumgoon, consistently with the thrust of his evidence, not to have first assisted Mr McCulloch to exit the bank after freezing and before taking off. I am satisfied that, as at the time of the photograph labelled 5, Mr Drumgoon had the intention to assist Mr McCulloch to exit the bank and that he then held this intention in the full knowledge of what Mr McCulloch had done or attempted to do. Mr Drumgoon denied this. He maintained that he only opened the door to see what was going on and not to assist Mr McCulloch to exit the bank. The photographs belie this. The question before me comes down to whether Mr Drumgoon had this intention (to assist) from the outset as the result of an agreement with Mr McCulloch to engage in the joint criminal enterprise, or did it simply emerge the moment he saw what Mr McCulloch was up to?
It might be put in favour of the latter that the accused was intimidated into helping Mr McCulloch leave the bank; perhaps Mr McCulloch shouted threats at Mr Drumgoon and waved the gun. This might explain why Mr Drumgoon formed the intention to assist only at such a late stage. However, the only evidence that might support this is that of Mr Drumgoon (T157) set out earlier but which I will quote again.
At that point I was about to walk into the bank to see if he was there. As I got the door partly open I heard him yelling and seen him standing there with a gun. I froze for a mere second or two, that is when he turned coming at me yelling at me.
Mr Drumgoon did not say what words Mr McCulloch used when he yelled at him at this point. Later in his cross examination he said that Mr McCulloch yelled at him to stop and to walk with him which he did but this was only after Mr Drumgoon had started to run, that is, when the two of them were outside the bank. Mr Drumgoon gave this as the reason why after running off ahead of Mr McCulloch he then slowed and went with Mr McCulloch back to the car rather than escaping in another direction. However, as already discussed, Mr Drumgoon denied assisting Mr McCulloch to exit the bank at all and never suggested that at that earlier stage he was intimidated into doing so. I do not accept the possibility of Mr Drumgoon being intimated into assisting Mr McCulloch to exit the bank as being a reasonable possibility on the evidence.
Even if there had been no intimidation at this point it is conceivable that Mr Drumgoon simply panicked and instinctively assisted Mr McCulloch to exit the bank without thinking about it. This would be an explanation consistent with being innocent of having an earlier intention to participate in the robbery. Again, this is inconsistent with Mr Drumgoon’s account and, strictly, there is no evidence to support it.
Ultimately I must weigh the matters established beyond reasonable doubt as set out in paragraph [52] (i) to (xiii) above together with or in the context of Mr Drumgoon’s evidence. As I have already said I must consider Mr Drumgoon’s evidence not to see whether I accept it but to assess whether it assists in casting a reasonable doubt on the prosecution case. I am also entitled to weigh the matters established beyond reasonable doubt in the context of the additional inferences set out in paragraph [54] above but bearing in mind that, at least initially, I am prepared to draw these inferences only with a high degree of confidence and not beyond reasonable doubt.
Having done this, I do not find a spontaneous emergence of an intention to assist to be a reasonable possibility on the evidence. This does not give rise to a doubt that I, as the reasonable trier of fact in this case, am prepared to accept. I am satisfied that Mr Drumgoon had an intention to assist Mr McCulloch to exit the bank and that it was part of an ongoing agreement to assist and participate in the planned robbery of the Bendigo Bank. I am satisfied that Mr Drumgoon was party to such an agreement from, at the latest, the time he left the car in Cordelia Crescent and went to the bank. I am satisfied that I should draw an inference of guilt beyond reasonable doubt and that this is the only rational inference available on the evidence before me. It is not necessary for me to place any reliance on inferences in favour of the Crown case open on the evidence concerning the behaviour of Mr Drumgoon during the three days after the Bendigo Bank incident. Suffice it to say that nothing there assists to raise a reasonable doubt in my mind as to the guilt of Mr Drumgoon. Similarly, the fact that JH saw a man walking purposefully past the window towards the bank entrance at a time after Mr McCulloch entered the bank the second time, does not cause me to have a reasonable doubt as to Mr Drumgoon’s purpose, as I have found it, in following Mr McCulloch to the bank.
After I reserved my decision and at the time the matter was called back on to deal with issues arising out of P7, I also enquired with counsel as to whether or not it would be appropriate, in the event that I were to find Mr Drumgoon not guilty of the charged offence, to consider, as an alternative, the offence under s 241(1)(b) of the Criminal Law Consolidation Act. That section provides for an offence of, whilst knowing or believing that another person has committed an offence, doing an act with the intention of assisting the principal offender to escape apprehension or prosecution.[8] Counsel for the prosecution maintained that whilst, strictly speaking, this alternative was available to be left, the prosecution had led only one case against Mr Drumgoon and that was as to his guilt of the principal offence. It was the prosecution position that in the circumstances of this case only the charged offence should be left.
[8] See s 241(5), R v Smith and Turner (1994) 63 SASR 123 and Kartinyeri v R (SACCA, 20 February 1996, No. S5438, unreported).

As a general proposition a trial judge has a duty when summing up to direct the jury as to any alternative verdict that is open on the evidence even if such a verdict had not been mentioned by counsel in their final addresses or by the prosecutor in the opening address.[9] This duty must also operate in the case of trial by judge alone. However, this obligation is subject to an overriding obligation to ensure that the accused receives a fair trial and there may be situations in which an available alternative should not be left because to do so would be productive of unfairness.[10]
[9] Benbolt v The Queen (1993) 60 SASR 7 and R v Perdikoyiannis (2003) 86 SASR 262 at [36].
[10] See also R v Franco [2003] SASC 140 at [21] and [22].
Defence counsel for Mr Drumgoon submitted that he could not have objected to my leaving this alternative to a jury but maintained that the case was never presented on that basis by the Crown. Counsel conceded that he would not have conducted the defence in any different forensic manner and that there was no prejudice to his client in that sense. Because of my finding with respect to the charged offence I do not need to consider further whether or not it would have been appropriate to leave this alternative and, if so, whether or not the evidence would support a finding beyond reasonable doubt that this alternative offence had been committed.
The Crown case against the accused Stormy Rees
The Crown case against Ms Rees relies, in part, on the non-contested facts that she drove Mr McCulloch and Mr Drumgoon in her car to Cordelia Crescent; she parked the car in a position as has been described above and waited while Mr McCulloch went to the bank and entered it on two occasions; and that when he returned to the car she drove off, quickly, away from the bank. At some stage thereafter Mr Drumgoon took over driving the vehicle and he left the vehicle abandoned in a car parking space in front of a block of home units.
I accept that when Ms Rees drove away from Cordelia Crescent she drove off quickly. Alan Gu had parked his car in Cordelia Crescent that morning and was walking down the street on his way to work in a café not far from the bank. He saw a green car parked on the side of Cordelia Crescent with a young woman sitting in the driver’s seat. He later recognised the car in the photographs in P3 as being the car that he saw parked in Cordelia Crescent. It is not in dispute that the green car in the photographs belonged to Ms Rees and was the car that she was sitting in when parked whilst awaiting the return of Mr McCulloch. After walking past the parked green car Mr Gu saw two men run towards him along the footpath and run past him. He did not turn around and observe the green car take off but he heard a car take off, to use his words, “very aggressive” and formed the opinion from the sound that the car had driven off quickly in the direction of Alice Street.
Ms Rees did not give evidence but she did participate in an interview with the police following her arrest. That record of interview was replayed in court (exhibit P9); a transcript by way of aide memoire is exhibit P10. During the interview Ms Rees told the police these things.
(i) She was the owner of the green Holden Commodore registration AA265J.
(ii)At about 11.24 am on 23 April 2010 she was in the car with “two blokes” whom she knew as “Mac and Dave”.
(iii)When asked why Mac and Dave were in the car she responded “because they wanted to go to the shop” to get something to eat and drink and “he said he wanted to get money out of the bank”.
(iv)When asked if she went to the bank she said “no I just parked where he could go to the shop and then go to the ATM”.
(v)She admitted seeing a firearm and that one of the men had it in a purple bag. She described it as “one of those replica 45s” and said that it was not real. She said that she saw it from about one metre away and was able to see that it was not a real one.
(vi)When asked what time she saw the firearm she said “after it” and denied seeing it before the men went to the shopping centre.
(vii)It was when the two men got back in the car that she first saw the firearm. She saw one of them put it in the purple bag.
(viii)She said that nothing was said between her and the two men about going to the bank. She said “they wanted to go to the bank to get money out of it there and then go and get something to eat and drink at Foodland or whatever it is”.
(ix)She told the police that she parked the car in the street because it was unregistered “I didn’t want to drive it around main roads”.
(x)She said that after the men left the car to go to the bank she did not see them until they returned and got back into the car. At this point one or both of them said to her “fucking drive” at which point, so she told the police, “I didn’t even have the car on I was laid back and relaxed and yeah … and fucking legged it”. She was then asked if they said anything to her once she had driven off and she replied “oh I seen the gun get put into the bag so I drove.”
(xi)In the balance of the interview Ms Rees gave a description of the movements of the three of them after they left Cordelia Crescent and the car was dumped.
Ms Rees did not appear to be a particularly articulate person. She spoke and reacted in the manner of a person that was intellectually slow or affected by a drug (illicit or prescription) or both although I am not in a position to make a finding to this effect. Nevertheless, the essence of her account as given to the police was to the effect that she drove two men to the shops that day and parked in Cordelia Crescent. They wanted to get some money out of the bank to buy some food. She was waiting for them to return unaware that one or other or both of the men intended to rob the bank. However, she became aware that something untoward had occurred as soon as they returned when she saw the gun, and one or both demanded that she drive off quickly.
In her interview Ms Rees said a number of things about a person she referred to as Dave. I remind myself that her interview comprises out of court statements that are only admissible in the Crown’s case against Ms Rees and to the extent that they comprise admissions against her interest. They are not admissible in the Crown’s case against Mr Drumgoon. There is good reason for this. There may well have been substantial scope for confusion and misunderstanding by Ms Rees as to who said and did things in the car and what was said and done. It is clear (see further below) that there are at least some fundamental errors in Ms Rees’ account. Mr Drumgoon has had no opportunity to cross examine Ms Rees and to test the accuracy of her account. I have paid no regard to the record of interview in my consideration of the Crown case against Mr Drumgoon.
The interview contained both admissions against Ms Rees’ interests and also self-serving statements. I remind myself that I am entitled to take into account the fact that the self-serving statements are not on oath and are not subject to cross-examination. I am to give these statements such weight as I see fit bearing these considerations in mind.
There are a number of aspects of Ms Rees’ interview which I do not accept as being accurate. Her descriptions of the two men Mac and Dave are, in part, quite inconsistent with the descriptions that can be gleaned from the photographs. It may well be that in a number of respects she has confused the two men when giving information to the police in the sense that some of the information she provided concerning “Dave” is plainly referrable to Mr McCulloch and vice versa when consideration is had to the photographic evidence.
None of this matters insofar as the Crown case against Mr Drumgoon is concerned because the record of interview is simply inadmissible for that purpose. However, it does cause me to doubt the reliability generally of the account given by Ms Rees in her record of interview. Further, I have significant reservations about the accuracy of her statement that after seeing the gun only briefly for the first time when the men returned she was able to see that it was a replica and incapable of firing bullets. That was certainly not JH’s experience when the gun was pointed at her in the bank and it was not my instinctive impression when I examined the gun (P6). To the untrained eye, at least, the gun looks anything but a replica. In my view it is far more likely that Ms Rees became aware that the pistol was a replica from another source either because she had examined the gun herself with rather more care than a quick glance whilst being put into a purple bag would permit or she had been told by Mr McCulloch or some other person that it was only a replica. On the Crown case she knew it was a replica because she was involved in the planning for the bank robbery from the beginning and knew about the existence of the gun at the time she drove the two men to Cordelia Crescent. However, it is also possible that she was told that the gun was only a replica after the event.
In any event, I found a number of the responses by Ms Rees to the police questions to be unconvincing. I am not at all satisfied that she fully and frankly explained to the police the nature of her involvement with the two men on that day. Of course, even if I were to reject all of the self serving statements given by Ms Rees in her interview with the police that would not necessarily assist the prosecution case. The prosecution must still prove its case beyond reasonable doubt. Further, whilst Ms Rees’ interview with the police contains admissions against her interest, such as, for example, that she was in fact sitting in the green car parked in Cordelia Crescent whilst two men went to the bank and that she drove off in a hurry after the incident at the bank, there is nothing in the interview that could be characterised as an admission by her that she was aware of and a knowledgeable participant in a plan to rob the bank.
The factual basis relied on by the Crown and said to implicate Ms Rees in the joint criminal enterprise is as follows.
(i)A green Holden Commodore which was used by Mr McCulloch to escape after the attempted robbery was owned and driven that morning by Ms Rees.
(ii)One of the men had a gun, albeit a replica gun, and the other was wearing sunglasses and a piece of material, torn from a black shirt, as a bandana which covered all of the back of his head including his hair and his forehead down to top of his ears and the upper frame of the sunglasses. These two men left the motor vehicle with a plan, a gun and a disguise. The Crown submits that it is not plausible that Ms Rees did not know anything about their intentions or that they had said nothing to her about their intentions.
(iii)According to Ms Rees in her record of interview, the two men were in her car so that she could take them to the shops in order to get some money and then to buy some food. However, she did not park at or even near the shopping centre. She parked her motor vehicle in a position that would be expected of a good getaway driver. To have parked the car in the shopping centre car park potentially in full view of shoppers as the robbers ran from the bank would have been foolish. The car was parked well up the side street and well away from the bank. The street was of a dead end nature with only one way in and one way out. The way out would take her away through back streets rather than the main roads of Crittenden Road and Grange Road (see P2).
(iv)When the men got out of the car Ms Rees waited in the driver’s seat and when they returned she was in the driver’s seat ready to go and all three effected their escape.
(v)Ms Rees demonstrated an “uncanny amount of knowledge” about the gun notwithstanding that she said that she only had her first and a brief look at it when the men got back into the car. She would have been within reasonably close proximity to the gun. However, it is not plausible that with such a glance she was able to see that the particular gun in question was a “45” and that it was a replica and not a functioning weapon. She gave as her reason for the latter observation “because the thing like, like no bullets came out of the thing it’s blocked I’d seen it”. An examination of the gun shows that this is only observable by looking closely and directly down the bore in good light.
(vi)There is also the evidence of Mr Drumgoon that Ms Rees had been in a relationship with Mr McCulloch and was sharing his bedroom for one to two weeks prior to the incident. As such, she was closer to Mr McCulloch than her answers in the record of interview would suggest and she is likely to have had opportunities to see the gun and to have been included in the plan by Mr McCulloch who would have had a basis upon which to trust her.
In essence the Crown submits that it can be inferred beyond reasonable doubt that Ms Rees knew what Mr McCulloch and/or Mr Drumgoon were planning to do and she assisted them by helping them in their getaway. If so, this would be sufficient for finding her guilty of the offence of attempted aggravated robbery on the basis of her participation in the joint criminal enterprise.
As for (ii) above, I am not satisfied for reasons already given that Ms Rees was aware that Mr McCulloch had the gun in his possession before he left the car. It remains a reasonable possibility that the gun was in the bag that can be seen in the photographs in P7A and that even if Ms Rees had seen it on earlier occasions she was not aware of it on this occasion. Similarly, the fact that the two men left the car with a plan (which I have found to be the case) was not necessarily known to Ms Rees. There is no evidence of any discussion involving Ms Rees about the proposed robbery to take place. The question of whether or not she knew of the plan is really a restatement of the ultimate issue that is before the court. The fact that Mr Drumgoon was dressed in such a peculiar manner might have put Ms Rees on notice that something was afoot. However, this mode of appearance was not so outlandish as to admit of no other conclusion. Mr Drumgoon was not wearing, for example, a balaclava.
The matters raised in paragraphs (iii) – (vi) are entirely consistent with the Crown case and taken with (i) and (ii) certainly render Ms Rees’ conduct highly suspicious. However, Ms Rees, in her interview, has given a reasonably coherent account for her presence near the scene of the crime and for why she parked where she did. Having carefully considered all of the evidence adduced in the Crown case I am not prepared to exclude this account as a reasonable possibility. It is consistent with innocence. Whilst I find it to be highly likely, I am not satisfied beyond reasonable doubt, that Ms Rees shared a common intention with Mr McCulloch and/or Mr Drumgoon to rob the Bendigo Bank. I find her not guilty of the charged offence.
After I reserved my decision I heard further submissions from Ms Rees’ counsel and counsel for the Director on whether or not it would be appropriate, in the event of a not guilty verdict, to go on and consider the potential alternative offence in s 241 of the Criminal Law Consolidation Act. I am satisfied that the Crown brought its case against Ms Rees on an all or nothing basis. Perhaps more importantly I am satisfied that Ms Rees through her legal counsel was lead to understand that this was the only alleged offence she was required to meet. It is highly likely that this informed the making of various forensic decisions. For example, Ms Rees otherwise may have elected to give evidence and may have elected to cross-examine Mr Drumgoon. The latter has a dual aspect to it. First, Mr Drumgoon gave some evidence during cross-examination that may have given some support to a Crown case on the alternative offence. Counsel for Ms Rees missed out on the opportunity to challenge and attempt to undermine this evidence. Second, Counsel missed out on the opportunity to explore with Mr Drumgoon the conduct of the three of them in the car after Mr McCulloch ordered Ms Rees to drive off with a view to eliciting evidence in positive support of a defence to the s 241 offence. In the circumstances, it would be unfair, in my view to proceed to consider the merits of this potential alternative offence and I have not done so.
Verdict
As to the charge of attempted aggravated robbery I find the accused, David Charles Drumgoon, guilty and the accused, Stormy Lee Rees, not guilty.