R v Duncan - [2010] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DUNCAN
Criminal Trial by Judge Alone
[2010] SADC 133
Reasons for the Verdict of His Honour Judge David Smith
5 November 2010
CRIMINAL LAW
Trial by judge without jury – accused pleaded not guilty to aggravated robbery – Prosecution case based on circumstantial evidence – consideration of principles which guide proof by means of circumstantial evidence – consideration also to whether Intelligence Circulars of SAPOL are business records within the meaning of s 45A of the Evidence Act 1929 – discussion of admissibility of such records even though material within them is hearsay – verdict guilty.
Evidence Act 1929 s 45A, referred to.
R v Perry (No 4) (1981) 28 SASR 119; Southern Equities Corp Ltd (in Liq) v Bond (2001) 78 SASR 554; Southern Equities Corp Ltd (in Liq) v Arthur Andersen & Co (No 10) (2002) 82 SASR 53; Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722; Shephard v R (1990) 170 CLR 573; R v Van Beelen (1972) 4 SASR 353; Peacock v R (1911) 13 CLR 619; Barca v R (1975) 133 CLR 82, considered.

R v DUNCAN
[2010] SADC 133
Introduction
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Matthew Karl Duncan and Sigh Keith Wilton on the 1^st day of May 2008 at Highbury, threatened to use force against Christine Anne Row in order to commit the theft of $736.92 and the threat was made immediately before and at the time of the theft.
It is further alleged that Matthew Karl Duncan and Sigh Keith Wilton used offensive weapons, namely knives, when committing the offence.
It is further alleged that Matthew Karl Duncan and Sigh Keith Wilton committed the offence in company with each other.

The accused was charged jointly with Sigh Keith Wilton. They both pleaded not guilty and elected for trial by judge alone. The trial commenced on the 7 June 2010. Near to the close of the Prosecution case Wilton pleaded guilty. The evidence against him was overwhelming. The trial proceeded against the accused Duncan and concluded on the 23 June 2010 when I adjourned to consider my verdict. I now publish my reasons and enter the verdict.
Evidence – Findings
I start with a preliminary overview of the evidence.
Some time between 10.15 am and 10.30 am on the 1 May 2008, Sigh Keith Wilton and another man, each armed with a knife, entered the Highbury Post Office, and robbed Christine Row of $736.92. The getaway car was a Holden Camira station wagon owned by the accused. At about 11.13 am on the day of the robbery the said Camira station wagon was stopped by police in Broadview. The accused was driving and Wilton was a passenger. A grey plastic Australia Post mail tub, used to carry money and coins from the Post Office by the robbers, was located in the rear of the said station wagon. Both Wilton and Duncan were arrested and upon his arrest the accused Duncan claimed that he had been in bed that morning.
The above outline, so far as it goes, is not challenged by the accused Duncan. He denied in evidence being involved in the robbery and claimed that unbeknown to him his vehicle had been taken and used for the robbery.
The case against him is circumstantial.
I turn now to my more detailed findings of fact. Again, these facts were scarcely challenged.
At about 9.30 am on the 1 May 2008 the accused’s station wagon pulled into the Coles Express Service Station on OG Road at Klemzig. There was a black sedan at the adjacent pump. Wilton paid at the service desk for petrol for each of the two vehicles and for some cigarettes. Surveillance footage showed him wearing a white baseball cap and a dark hooded jacket which included the word “Eminem” on its front. He got into the passenger front seat of the station wagon which left the service station at about 9.40 am. It was not possible to discern who else was in the vehicle.
The Camira station wagon then must have made its way to Highbury. Either there were three persons in the vehicle when it left the Coles Express, or a third was collected en-route. In any event, the same Camira proceeded to the Highbury Shopping Centre. A witness, Mr Wegener, who was working at the back of his shop, observed the station wagon driving north on Valerie Avenue behind the shops at the Centre. He said there were three people in the vehicle and the driver was Aboriginal in appearance and 18 to 20 years old. He could not discern any detail in relation to the other occupants of the vehicle. He saw it turn left into Lower North East Road. Then, after what must have been a minute or so, Mr Wegener saw it return, driving this time south on Valerie Avenue and stopping 50 metres “further down on Valerie Avenue”. The driver, who was the only person in the vehicle, alighted, put up its bonnet and then after a while closed the bonnet and sat in the vehicle clearly waiting. Mr Wegener, in the course of these observations, shifted position and took the registration number of the station wagon. The number he noted was slightly in error (ie UUV-918 rather than UUW-918). The clear inference is that Wilton and his accomplice were dropped off around the corner in Lower North East Road and proceeded on foot into the Centre and to the Post Office whilst the station wagon and driver awaited them at the back of the shops to effect a getaway.
A witness, Mr Blight, who was early for his 10.30 am medical appointment at the surgery in the Centre, was walking about “killing time”. He observed two young men – clearly Wilton and his accomplice – first sitting on the wall outside the Post Office and then entering the Post Office. He described them as in their late teens, slim builds with brown skin.
At the time of the robbery, which as I have indicated was between 10.15 and 10.30 am, the manager, Ms Row, was in the rear section of the premises engaged in photocopying documents for the late Ms Pamela Davis, who was the only customer then in the Post Office. Both Ms Row and Ms Davis described how Wilton and his accomplice, armed with similar large kitchen knives, robbed the Post Office of $736.92. That sum was made up of ten $50 notes and nine plastic resealable bags, which not only contained coins but also notes made by Ms Row. The money was carried off the premises by the two men in a grey plastic Australia Post letter tub which was provided to them by Ms Row. It is unnecessary to detail precisely what occurred inside the Post Office, suffice it to say that Wilton and his accomplice, each brandishing a knife, threatened, primarily Ms Row and demanded what money she could quickly obtain for them. She did as they demanded.
The descriptions of the robbers by the two women are important.
One of the robbers “jumped the counter” to the inner part of the Post Office. The other robber remained out in the public area of the Post Office with the late Ms Davis. Both Ms Row and Ms Davis refer to the man in the inner section as “the first man” and the man in the outer public section as “the second man”.
Ms Row described the first man as follows:
·five foot five inches;
·slight build;
·slouched over;
·early 20s;
·wearing dark baggy pants, dark zip-up jacket or jumper holding it up over his face, dark beanie, dark gloves;
·“didn’t see much of his face, I assumed he was Caucasian but I don’t know”; and
·holding a large dark bladed knife, straight blade of about eight inches.
Ms Row said she hardly saw the second man at all but offered the view that he was of the same height as the first, of slight build and wore dark clothes.
Ms Davis described the first man as follows:
·five nine;
·medium build;
·white skinned;
·wearing navy trousers, navy beanie hat with red and white stripe;
·dark navy windcheater with hood which had logo on the front and maybe the words “Sky”;
·18-24 years old;
·no facial hair she could see but he did pull his jacket over his mouth;
·wearing woollen dark coloured gloves; and
·holding a kitchen knife with a straight blade knife of about eight inches.
In respect of the second man she said:
·five foot nine inches;
·medium build;
·white skinned;
·wearing dark beanie, dark trousers, jeans or trackies, navy hooded jumper pulled up over his mouth;
·18-24 years old; and
·couldn’t see any facial hair.
Clearly Wilton and his accomplice made their way back to the accused’s vehicle in Valerie Street and left the scene. Police were alerted and were on the lookout for the Camira station wagon.
As indicated, at about 11.13 am a police patrol caught sight of the Camira station wagon heading west on Muller Road. As subsequent observations made clear, the accused was driving and Wilton was a front seat passenger. The Camira was followed into Regency Road and then into Tralee Avenue, Broadview, where it stopped in a parking area near a car detailing business. Both Wilton and the accused alighted from the vehicle. Wilton was observed to be heading for the entrance door of the car detailing business. Police approached and detained them. The accused told Senior Constable Perkins that the Camira was his. Then in response to being told that the Camira has just been involved in a robbery, the accused said “Robbery? I just got up”. Upon being asked for identification, Wilton opened a bum-bag he was wearing and Senior Constable Perkins saw money in it and asked “How much have you got there?” In response, Wilton said “About a hundred bucks. It is my wages”. By this time other police had discovered the grey plastic Australia Post letter tub in the rear of the Camira. Both Wilton and the accused were then arrested.
Upon being searched at the scene police found inside Wilton’s bum-bag $190 in cash and a coin bag containing ten 50c pieces. The accused had a $50 in his jeans pocket. Wilton told police at the scene that he lived “mostly” at 40 McLauchlan Avenue, Windsor Gardens. The accused told police that he lived at 30 Celtic Avenue, Clovelly Park. The police immediately searched not only the Camira, but also the property at 40 McLauchlan Avenue.
The search of the Camira revealed, as I have indicated, a grey plastic Australia Post letter tub. It was located in the rear of the vehicle. Also there were two wooden handled serrated edge steak knives found tucked in between the two front seats.
On the evidence I could not find that the knives found in the Camira were those used in the robbery. They do not fit the description given by Mademoiselles Row and Davis. They are two small.
I turn to the search of the 40 McLauchlan Avenue property.
In a bedroom, designated bedroom number 1, police discovered personal effects which showed that the accused occupied the bedroom despite the fact that he told police that he lived at Clovelly Park. I do not regard this as a lie. The accused, in his evidence, accepted that he was then residing at 40 McLauchlan Avenue having had to move out of his Celtic Avenue house because some unknown person had trashed it. The personal effects discovered in bedroom number 1 included, inter alia, correspondence addressed to the accused and a wallet and numerous cards belonging to him.
In a cupboard or linen press in the hallway police discovered four plastic press-seal bags containing coins and handwritten notes. Ms Row from the Post Office identified the handwriting on the notes as hers and explained the significance of them. There is no dispute that the coins were the proceeds of the robbery that morning.
In the shed at the rear of the house police located and seized, inter alia:
·navy beanie with red and white stripes through it;
·hooded “Eminem” top;
·Nike zip-up jacket;
·Rip Curl baseball cap;
·large kitchen knife with blade of about eight inches;
·blue high collar jacket;
·dark plain beanie, gloves and dark track pants.
This seized clothing roughly accorded with the clothing descriptions given by Ms Row and Ms Davis. For instance, Ms Davis, in her statement, said (see Statement Exhibit P24) that the first man “... was wearing navy trousers, a navy beanie hat with a red and white stripe, a dark navy windcheater with a hood which had a logo on the front – maybe the words “Sky” ...” It can be seen, by reference to photograph 19 in Exhibit P8, that the first word in the design could be “Sky” but is more probably “Slim”. Apart from the last item listed above, namely the dark track pants, these garments were submitted for DNA testing and the results were particularised in an Agreed Statement of Facts (see Exhibit P27). The accused is excluded as a contributor and where not excluded the result is inconclusive. Wilton on the other hand is by and large implicated.
I turn now to the accused’s evidence.
The accused said he was 33 years old and of Aboriginal descent.
He said that at the time of the robbery he was residing at 40 McLauchlan Avenue and had been there for some three weeks. The house, he said, was rented by Denise Varcoe, who is the mother of Francis, who was then his partner. He explained that prior to moving to McLauchlan Avenue he had lived at Clovelly Park but his house there had been trashed. Whilst he was looking for alternative accommodation Denise Varcoe permitted him to stay at 40 McLauchlan Avenue. Accordingly, as at the date of the robbery, the occupants of the house were himself and Denise and John Varcoe.
By the time of the trial the accused was no longer in a relationship with Denise’s daughter.
He confirmed that he owned the Holden Camira station wagon, but according to him, others in the house would habitually use it. In particular, he said that not only would people in the house use the car, but also, other family members who visited the house also had access to it. He agreed that they included both the Varcoes and the Lindsays. He added that the car was either left in the driveway or out on the street in front of the house and that the keys were left in the ignition or in the glove box.
He said that he had known Sigh Wilton for a few years and had met him through family connections. He said that Wilton lived at Royal Park with his partner, Margaret Lindsay.
On the evening, before the morning of the robbery, the accused claimed that he went drinking with a friend, whom he later named as John Varcoe. He recounted driving to a house in Pooraka with John Varcoe and drinking there with a group of friends. He said that he, with John Varcoe, arrived back home at about 2 or 3 o’clock in the morning of the 1 May 2008. Upon arriving home to 40 McLauchlan Avenue he got into his swag in the lounge room and settled down to watch Foxtel. He said that John Varcoe had parked the station wagon in the driveway of the house. He added that Sigh Wilton did not sleep at the house that night.
The next morning, according to the accused, Wilton arrived at the house and asked that the accused drive him to his home in Royal Park in order to collect his girlfriend Margaret Lindsay and then return to the Royal Adelaide Hospital where his, that is Sigh Wilton’s, father was an inpatient and terminally ill.
The accused said that he was suspended from holding or obtaining a driver’s licence but nonetheless agreed to do as Wilton wished. He and Wilton drove off towards Royal Park. He said that he noticed the police behind him and drove off Regency Road into Tralee Avenue in the hope of avoiding them. He did that because of concern about being apprehended for driving without a licence.
He said that when he got into the vehicle he did not notice the plastic grey Australia Post letter tub in the rear and nor was he aware of or involved in the robbery which had occurred that morning.
In the midst of the trial the legal representatives of the accused sought the issue of a subpoena to the Commissioner of Police for the production of intelligence material relating to the premises of 40 McLauchlan Avenue, Windsor Gardens. I ordered the abridgements of time. The plain objective of the subpoena was to bring into court evidence that, well known to SA Police, the house at 40 McLauchlan Avenue was frequented by persons who committed crimes of the type charged in this matter. The Commissioner attended court by counsel, Mr Keane, and duly produced the documents in answer to the subpoena. Quite apart from the potential for claims for Public Interest Immunity there were difficulties with the width of the subpoena, however, as a result of the considerable assistance of counsel, Mr Keane, all these difficulties were overcome and certain portions of the Intelligence Circulars were produced to the Defence. These documents, portions of which were “blacked out”, became the subject of cross-examination (see 208-229 see also MFI Exhibit D1 (1-4)). In the course of the evidence I heard argument about the admissibility of these records and I reserved my ruling.
I now rule as follows. The material disclosed from the Circulars is relevant. I consider that those portions of the Circulars which were disclosed and became the subject of cross-examination are admissible by mere production pursuant to s 45A of the Evidence Act 1929 as “business records”. The SA Police are a “business” as defined under the Act[1] and insofar as the content of the Circulars were hearsay still such evidence could be admitted, subject of course to considerations of weight[2]. Accordingly, the Intelligence Circulars referred to above and marked for identification now become exhibits.
[1] See R v Perry (No 4) (1981) 28 SASR 119.
[2] See Southern Equities Corp Ltd (in Liq) v Bond (2001) 78 SASR 554; see also Southern Equities Corp Ltd (in Liq) v Arthur Andersen & Co (No 10) (2002) 82 SASR 53.
The Circulars set out:
·first, that WLL formerly of 40 McLauchlan Avenue, Windsor Gardens, “... is believed to be in possession of a semi-automatic pistol and has a history for armed robbery offences (see Exhibit D1-1);
·secondly, that PJG of 40 McLauchlan Avenue, Windsor Gardens, as at 19 May 2010 had recently been arrested for theft, illegal use and driving whilst disqualified (see Exhibit D1-2);
·thirdly, that KL of 40 McLauchlan Avenue, Windsor Gardens, as at the 15 October 2007 had recently been arrested for, inter alia, indecent language and has priors for, inter alia, breaks and robbery (see Exhibit D1-3); and
·fourthly, that ML of 40 McLauchlan Avenue, Windsor Gardens, as at 1 October 2007 had recently been arrested for aggravated robbery (see Exhibit D1-4).
(Full names were included but in the circumstances I have employed initials. Of the four named people, two are male and two are female.)
The Respective Cases
The Prosecution case is that the accused’s evidence is wholly implausible and does not raise as a reasonable possibility that he was not one of the robbers. The Prosecution contend that the circumstantial evidence proves beyond reasonable doubt that the accused was one of the three robbers. The Prosecution contend that it is the only rational or reasonable hypothesis open on all the acceptable evidence.
The Defence case in summary is as follows.
Wilton, and possibly one or two others, borrowed the accused’s vehicle from McLauchlan Avenue without the knowledge of the accused. They put fuel in it and then used it as the getaway vehicle in the robbery which took place at about 10.15 – 10.30 am. The accused knew nothing of the robbery and was asleep at 40 McLauchlan Avenue where had had been residing for some weeks. After the robbery, Wilton, alone or with one or both of his accomplices, called at 40 McLauchlan Avenue, discarded clothing used in the robbery and one or both of the knives and left some of the stolen coins in the linen press cupboard. Wilton then awoke the accused and asked him to drive him to Royal Park. The accused agreed to do so and accordingly Wilton and the accused were seen in the vehicle on Muller Road at 11.13 am.

The Defence contend that, though the accused bears no onus to prove anything, his evidence, together with other unchallenged evidence and Wilton’s admission by his plea, raises the above as a reasonable possibility.
Further, the Defence argue that the Intelligence Circulars establishes that it is a reasonable possibility that other persons, whom the police record as having links to 40 McLauchlan Avenue, and who have committed or are suspected of having committed crimes of this type, were Wilton’s accomplices. It is contended that this is a hypothesis reasonably open on the evidence.
Matters of Law
I direct myself as to the elements of the offence and as to the onus and burden of proof.
At the risk of articulating the obvious, I advert to the fact that the accused has given evidence on oath when he was not obliged to do so. Further, I draw no adverse inference against him for declining to answer questions following his arrest.
The Prosecution case is wholly reliant on circumstantial evidence. Accordingly, I direct myself as to the principles which guide proof by means of circumstantial evidence. The exercise is essentially drawing inferences from proven circumstances. I direct myself that speculating or guessing is not drawing inferences. The inference must reasonably arise from proven circumstances[3]. In particular, I remind myself that guilt should not only be a rational inference arising from the proven circumstances but should be the only rational inference that could be inferred[4]. Put another way, I could not convict the accused if there is any rational hypothesis or reasonable possibility consistent with his innocence[5].
[3]    See Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 at 733.
[4]    See Shephard v R (1990) 170 CLR 573 at 578.
[5]    See R v Van Beelen (1972) 4 SASR 353 per Bray CJ, Mitchell and Zelling JJ at 374; see also Peacock v R (1911) 13 CLR 619 per Griffith CJ at 634; see also Barca v R (1975) 133 CLR 82 at 104-5.
The question here is whether the inference arising from the proven circumstances is that the accused was one of the robbers and, if so, is that the only rational inference or is there another rational hypothesis consistent with some other person or persons being involved with Wilton?
Sigh Keith Wilton admitted guilt of the offending by pleading guilty in front of me in the midst of the trial. That constitutes an admission.
Reasons for Verdict – Verdict
I have considered the arguments of counsel.
There has been very little controversy as to the facts which have emerged from the Prosecution evidence. Rather, the issue is what can properly be drawn from those proven facts.
I do not accept the evidence of the accused. Nothing he has said raises as a reasonable possibility that he was ignorant of the robbery and in bed. His evidence is wholly implausible. Further, I do not accept the contention about what arises from the Intelligence Circulars. I set out my reasons.
First, I regard the accused’s evidence that he left his motor car outside McLauchlan Avenue, with the key sometimes in the ignition, as unconvincing. I could accept that he might permit persons who reside at and frequent the house, free use of his vehicle, but leaving it totally insecure is, in my view, unlikely. It is, however, a small point and not crucial to my rejection of his evidence.
Secondly, if Wilton and his accomplices, unbeknown to the accused, had been using the vehicle in accordance with the accused’s general attitude of permitting any persons associated with the household to use it, then why would Wilton rouse the accused and ask him to drive him to Royal Park? He could have driven himself to Royal Park. The evidence that Wilton, like the accused, did not have a driver’s licence is not an adequate answer. After all, Wilton had, by his own admission, just committed an armed robbery and further, like him, the accused had no driver’s licence.
Thirdly, what the accused says does not fit easily within the timing of the proven events. The car must have driven away from the robbery not before 10.30 am. Wilton, with or without his accomplices, drove back to McLauchlan Avenue, discarded the clothing and perhaps the knives, left some of the proceeds in the linen press cupboard, roused the accused and set off with him. The car is seen on Muller Road at 11.13 am – less than three-quarters of an hour after the robbers left the post office. Whilst I accept that it is possible, the time constraints would militate against it.
Fourthly, I do not accept the contention that the evidence establishes as a reasonable possibility that Wilton’s accomplices were persons such as those referred to in the Intelligence Circulars as having links to 40 McLauchlan Avenue and the propensity to commit crimes such as the one charged here. Apart from the Circulars (Exhibit D1 (1-4)), there was no evidence, for instance, of them being at the house or being otherwise implicated in this robbery. Such an inference does not reasonably arise from the Circulars. It is a mere possibility. The contention invites guessing or speculating.
Finally, the accused’s account invites an acceptance that he has been the victim of a conjunction of the following coincidences
·That unbeknown to the accused on the 1 May 2008 his car is taken from 40 McLauchlan Avenue, fuelled and used in a robbery which occurs at about 10.30 am;
·That at the time he is alone and sleeping at 40 McLauchlan Avenue;
·That within a short time of the robbery the robber Wilton with or without his accomplices arrives back at 40 McLauchlan Avenue and leaves incriminating evidence in the shed on the property (clothing) and in a cupboard in the house (coins);
·That at about the time the incriminating evidence is left in the house the robber Wilton awakens the accused and requests him to drive him, Wilton, to Royal Park notwithstanding that Wilton has free access to the accused’s vehicle and has been using it anyway;
·That at 11.13 am, within three-quarters of an hour of the robbery, the accused is seen on Muller Road driving the getaway vehicle with the robber, Wilton, in the front passenger seat;
·That in the rear of the vehicle is a grey plastic Australia Post letter tub clearly taken from the Highbury Post Office; and
·That Wilton is in possession of three $50.00 notes and the accused has one $50.00 note in his pocket, and it just so happens that in the course of the robbery ten $50.00 notes are stolen.
To accept that such a series of misfortunes could befall the accused within such a short time stretches the bounds of credulity.
Accordingly, for the above reasons, I do not accept the accused’s evidence. It does not raise as a reasonable possibility that he was not one of Wilton’s accomplices.
It remains for me to determine whether on all the evidence the Prosecution has proved beyond reasonable doubt the elements of the charged offence.
Before turning to the circumstantial evidence and the question of what inferences can properly be drawn from it, I make the following findings about the appearances of Wilton and the accused. First, neither of them are obviously Aboriginal and while their skin is dark, it is not particularly so. Further, the moustache and goatee of the accused would not have been obvious to a casual observer on the 1 May 2008 as can be seen by viewing the video recording taken at the scene of the arrest in Tralee Avenue, Windsor Gardens. Also, both Ms Row and Ms Davis spoke of the two men pulling their jackets up over their mouths clearly an effort to disguise themselves.
Further, it is to be noted that the places which feature in the evidence in this trial, namely:
·Coles Express Service Station;
·Highbury Post Office;
·Muller Road, Regency Road and Tralee Avenue; and
·40 McLauchlan Avenue
are places within suburbs to the north-east of the city of Adelaide, namely Klemzig, Highbury, Broadview, Greenacres and Windsor Gardens, which are proximate to one another (see Map Exhibit P5).
I se out the items of circumstantial evidence:
1.The accused, at the time of the robbery, was residing at 40 McLauchlan Avenue, Windsor Gardens and his station wagon was parked there.
2.At about 9.40 am (see Guerrini at 159 line 22) on the day of the robbery the accused’s station wagon drives out of the Coles Express Service Station at Klemzig with Sigh Wilton a front seat passenger.
3.At about 10.00 am (see Wegener 48 line 33) the accused’s station wagon drives north on Valerie Street past the rear of the shops at the Highbury Shopping Centre, and turns left into Lower North East Road there being three persons in the vehicle and the driver being of Aboriginal appearance.
4.A minute or so later the same station wagon driven by the same Aboriginal driver, there being no other persons in the vehicle, returns travelling south on Valerie Street, parks at the kerb and the driver waits with the vehicle.
5.Some time between 10.15 and 10.30 am on the 1 May 2008 Wilton and another young man briefly wait outside and then enter the Post Office and they together rob Ms Row of $736.92 made up of, inter alia, ten $50 notes and nine plastic bags of coins which the two men carry away from the Post Office in a plastic grey Australia Post letter tub.
6.The descriptions of the two men as given by the witnesses Wegener, Row and Davis are not inconsistent with the appearances of Wilton and the accused.
7.At 11.13 am on the day of the robbery the accused’s station wagon is seen by police driving north on Muller Road. The accused is the driver and Wilton is a front seat passenger. A grey plastic Australia Post letter tub is in the rear of the vehicle and Wilton has with him a bum-bag in which there is, inter alia, three $50 notes and a plastic coin bag containing coins and the accused has one $50.00 note in his pocket.
8.On the day of the robbery police discover in the shed at 40 McLauchlan Avenue, Windsor Gardens, clothing similar to that worn by the robbers of the Post Office. DNA testing links several of the items to Wilton.
9.Also on the day of the robbery police discover in a cupboard in the hallway of the house at 40 McLauchlan Avenue four press-seal plastic bags containing coins and notes which were taken from the Highbury Post Office that morning.
I accept that the above circumstances are established by the evidence and the inference which reasonably arises is that the accused was one of the robbers. In coming to this view, I refer to my analysis of the accused’s evidence and in particular to what I said about coincidence of incriminating circumstances.
I consider that the accused being one of the robbers is not only a rational inference but it is the only inference which reasonably arises. In particular, I do not consider it to be reasonably possible that persons, not including the accused, associated with the house at 40 McLauchlan Avenue, Windsor Gardens, were Wilton’s accomplices. Such a hypothesis is a speculative possibility. It does not reach beyond that. Of course, the evidence shows that Wilton had two accomplices. I am satisfied that the accused was one of the two. The evidence does not indicate who was, as it were, the third man. He might possibly have been one of those two men named in the Circulars as being linked to the McLauchlan Avenue house.
Accordingly, I am satisfied that the Prosecution have proved the elements of the offence beyond reasonable doubt. I am satisfied beyond reasonable doubt that the accused was one of the three robbers and was probably the so-called “second robber”.
Therefore my verdict is that the accused is guilty as charged.