R v Eyles
[2016] SADC 127
•15 September 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v EYLES
Criminal Trial by Judge Alone
[2016] SADC 127
Reasons for the Verdicts of His Honour Judge Soulio
15 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES
Criminal trial by judge alone - accused charged with property damage, two counts of aggravated serious criminal trespass in a non-residential building and four counts of theft - arising from three separate incidents - circumstantial case - co-accused had pleaded guilty to all counts.
Verdicts - guilty on all counts.
Criminal Law Consolidation Act, 1935 s85(3), s134, s169(1)(b), s278; Juries Act 1927 s7, referred to.
R v Gardi [2015] SASC 186, delivered 23 November 2015; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v Western Australia (2008) 232 CLR 438; Martin v Osborne (1936) 55 CLR 367; Peacock v The King (1911) 13 CLR 619; R v Micallef [2002] NSWCCA 480; Barca v The Queen (1975) 133 CLR 82; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; R v Loader [2004] SASC 234; Hirst v Police [2006] SASC 244; Sutton v The Queen (1984) 152 CLR 528; R v Armstrong (1990) 54 SASR 207; R v Mayfield (1995) 63 SASR 576; Jones v Harris [1946] SASR 98; R v Loader [2004] SASC 234, considered.
R v EYLES
[2016] SADC 127Background
The accused, together with one Damien Fraser, was charged with a series of offences said to have been committed in late February and early March 2014. On 24 February 2014 two men backed a black utility up to a parking ticket machine at the Modbury Hospital and, using an angle grinder, then a crow bar, forced the machine open and stole $1,461 in cash. (‘the Modbury Hospital offending’).
On 26 February 2014 two men in a black utility broke into the Mount Compass Tavern, stole $2,380 in cash, and took away the automatic teller machine (‘ATM’) in the tavern. The ATM was later found, burnt, at Millbrook. (‘the Mount Compass Tavern offending’).
On 6 March 2014 two men in a black utility broke into the Moana Pharmacy and stole $2,150 in cash. (‘the Moana offending’).
Damien Fraser was involved in each of the offences and pleaded guilty.[1] The issue for determination is whether it has been established, beyond reasonable doubt, that the accused, Kevin David Eyles, was, in respect of any of the offences, the second man.
[1] Exhibit P1, Agreed Fact 13.
Charges
The accused is charged with seven offences, namely:
Count 1 Property Damage (s 85(3) of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
Kevin David Eyles and Damien Fraser on the 24th day of February 2014 at Modbury, without lawful excuse, damaged a parking ticket machine, the property of SA Health Modbury, intending to damage the property or being recklessly indifferent as to whether the property was damaged.
Count 2 Theft (s 134 of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
Kevin David Eyles and Damien Fraser on the 24th day of February 2014 at Modbury, dishonestly took property, namely $1,461 cash, without the consent of SA Health Modbury, the owner of that property, intending to permanently deprive the owner of that property.
Count 3Aggravated Serious Criminal Trespass in a Non Residential Building (s 169(1)(b) of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
Kevin David Eyles and Damien Fraser on the 26th day of February 2014 at Mount Compass, entered the Mount Compass Tavern as trespassers, with the intention of committing an offence therein, namely theft.
It is further alleged that Kevin David Eyles and Damien Fraser committed the offence in company with each other.
Count 4 Theft (s 134 of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
Kevin David Eyles and Damien Fraser on the 26th day of February 2014 at Mount Compass, dishonestly took property, namely $2,380 cash, without the consent of Craig Scudds, the owner of that property, intending to permanently deprive him of that property.
Count 5 Theft (s 134 of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
Kevin David Eyles and Damien Fraser on the 26th day of February 2014 at Mount Compass, dishonestly took property, namely an Automatic Teller Machine, without the consent of DC Payments, the owner of that property, intending to permanently deprive them of that property.
Count 6Aggravated Serious Criminal Trespass in a Non Residential Building (s 169(1)(b) of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
Kevin David Eyles and Damien Fraser on the 6th day of March 2014 at Moana, entered the Moana Pharmacy as trespassers, with the intention of committing an offence therein, namely theft.
It is further alleged that Kevin David Eyles and Damien Fraser committed the offence in company with each other.
Count 7 Theft (s 134 of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
Kevin David Eyles and Damien Fraser on the 6th day of March 2014 at Moana, dishonestly took property, namely $2,150 cash, without the consent of Moana Pharmacy, the owner of that property, intending to permanently deprive them of that property.
Trial by Judge Alone
The accused elected for trial by a judge sitting without a jury, pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v Gardi,[2] whilst the Act is silent as to any requirement regarding the contents of the Reasons for Verdict, such requirements are established in a number of authorities.[3]
[2] R v Gardi [2015] SASC 186, delivered 23 November 2015.
[3] See R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; and AK v Western Australia (2008) 232 CLR 438 per Heydon J.
General Legal Directions
The general directions were conveniently summarised by Lovell J in R v Gardi.[4] The paragraphs below are reproduced from that judgment.
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence.
[4] R v Gardi [2015] SASC 186 at [9]-[15].
Circumstantial Evidence
The prosecution case is that the accused was involved in each of the alleged offences, as part of a joint enterprise with Mr Fraser, and is based essentially on circumstantial evidence. The defendant did not give evidence and was under no obligation to do so. The circumstantial evidence relied on by the prosecution is comprised of telephone and call charge records; telephone tower location evidence; conversations involving the accused captured by listening devices and prison communication systems; the accused’s connection to one Leigh Slattery and items seized from her house; the accused’s connection to the black utility used in each of the three offences, as depicted in CCTV footage; DNA evidence and glass fragment evidence. In addition the prosecution relied on video footage, and the observations of witnesses.
The prosecution submitted that the evidence relating to each of the offences was cross-admissible and further, that the united force of all the circumstances put together, leads to an inevitable inference of guilt beyond reasonable doubt in relation to each offence.[5]
[5] Prosecution outline of argument p 3.
I bear in mind that the amount of circumstantial evidence which might be sufficient to prove any charge beyond reasonable doubt varies from case to case. The number of circumstances proved can be quite different, as can the weight of the actual circumstances. I bear in mind that I must decide what facts I find to be proved by the evidence, and that in doing so, I must carefully consider each item of circumstantial evidence and, taking into account the whole of the evidence, decide whether I accept that a particular fact has been proved. Having decided what facts I find to be proved, I must then consider what inference, or inferences, I am are prepared to draw from those facts.
I bear in mind that the strength of circumstantial evidence lies in its ability to show that “according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed”.[6] However, “ … an inference to be reasonable must rest upon something more than mere conjecture.”[7] It is necessary to weigh and consider the totality of the evidence and in doing so I must not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.[8] It is of critical importance to remember that in considering the inferences to be drawn, all of the circumstances established by the evidence are to be considered and weighed.[9]
[6] Martin v Osborne (1936) 55 CLR 367 p 375.
[7] Peacock v The King (1911) 13 CLR 619 p 661.
[8] R v Micallef [2002] NSWCCA 480 at [42].
[9] R v Gardi [2015] SASC 186.
I bear in mind that for guilt to be established by circumstantial evidence, the inference to be drawn as to the ultimate question must be the only inference reasonably open on all of the proven facts. The circumstances must exclude any reasonable hypotheses consistent with innocence.[10]
[10] Barca v The Queen (1975) 133 CLR 82 p 104; Chamberlain v The Queen (No 2) (1984) 153 CLR 521 p 536.
The accused submitted that the prosecution had not excluded all reasonable hypotheses consistent with the innocence of the accused. It was submitted that none of the DNA, glass fragment, telephone or other evidence, whether viewed in isolation or in combination, excluded the reasonable hypothesis that one or more of Mr Fraser’s other associates committed each of the offences in company with Mr Fraser.[11]
[11] Defendant outline of submissions p 3.
The Elements of the Offences
The offences fall into three categories:
Property Damage
The elements of property damage are:
1.The accused by a voluntary act damaged the property of another.
2.The accused did so either with the intention of doing so or, alternatively, being recklessly indifferent as to whether that property was damaged or not.
3.The act of the accused was done without lawful authority.
4.The accused knew that no such lawful authority existed at the time of the act in question.
Theft
The elements of theft are:
1.The accused dealt with property (“deal” is defined in s 130 of the Criminal Law Consolidation Act (‘CLCA')).
2.He did so dishonestly.
3.He dealt with the property without the owner’s consent.
4.At the time he dealt with it, he intended either:
a.to deprive the owner permanently of the property, or
b.to make a serious encroachment on the owner’s proprietary rights; that is that [he] intended to treat the property as his to dispose of, regardless of the owner’s rights, or to deal with it so as to create a substantial risk that the owner either would not get it back or, if he did, that its value would be substantially impaired.
Aggravated Serious Criminal Trespass in a Non-residential Building
The elements of aggravated serious criminal trespass in a non-residential building are:
1.The accused entered a non‑residential building.
2.The accused entered as a trespasser knowing he had no permission to do so.
3.The accused entered with the intention of committing an offence.
4.The accused was in the company of at least one other person at the time he committed the offence.
I make the general observation that, while I must find each of the elements of any particular charge proven beyond reasonable doubt before I could find the accused guilty of that charge, there was no real contest as to whether each of the charged offences had been committed. The real issue is whether I can be satisfied beyond reasonable doubt in respect of any particular charge, that it was the accused that committed the offence.
Separate Verdicts
I bear in mind that the accused is entitled to separate verdicts in respect of each of the charged offences. Subject to the issues of cross-admissibility I must consider the evidence relating to each charge and determine whether or not the prosecution has established beyond reasonable doubt that the accused is guilty of that offence. It would be wrong to say that just because I find, for example, the accused guilty of one offence, that the same verdict would necessarily be appropriate for the other counts.
The Prosecution Evidence
Agreed Facts
At the commencement of trial a set of agreed facts was received into evidence.[12] The agreed facts are as follows:
[12] Exhibit P1 – Set of Agreed Facts.
1.A maroon 1995 Holden sedan SA registration S159 ASE was sold by Biance Dorothea Bais to Damien Fraser of 34 Rees St Sheidow Park SA 5158 on 27 September 2013.
2.Damien Fraser owned a black Holden utility with VIN 6H8VSK80UXL453799 and SA registration S512 AIJ from mid-January 2014 until at least 9 April 2014.
Modbury
3.Employees of Modbury Hospital and the GP Plus Super Clinic at Modbury Hospital provided copies of CCTV footage from 23 and 24 February 2014 to police on 24 February 2014.
4. $1,461 was taken from the ticket machine at the Modbury Hospital.
5.The machine has been replaced due to the damage caused to it. The replacement cost was $47,905 and a further $4,504.50 to have the machine fitted. The total cost was $52,409.50.
Mount Compass
6. Approximately $2,380 cash was taken from the Mount Compass Tavern ATM.
7. The ATM from the Mount Compass Tavern was taken and valued at $8,537.
8. Total damage to the Mount Compass Tavern was $21,000.
9.On 26 February 2014 Senior Constable Steven Taylor attended the home address of June McKenchie at 31 George Francis Drive and obtained CCTV footage from her earlier that morning.
Moana
10.Employees of Moana Pharmacy provided a copy of CCTV footage from 6 March 2014 to police on 6 March 2014. The footage is approximately 15 minutes slow.[13]
[13] The time stamp on the video footage showed a time approximately 15 minutes earlier than the actual time.
11.$2,150 in $50 notes was taken from a Bank of Queensland ATM that had been located inside the Moana Pharmacy. Damage to the ATM, window and stock was $6,686.35.
Damien Fraser
12. Damien Fraser went by the alias ‘Data.’
13.Damien Fraser was one of the people involved in the offending in relation to all charged offending.
Addresses
14.In 2014 Ilias Leventeris was operating a motor vehicle repair service at 61 Morphett Road, Camden Park ‘Western Districts Motor Body Repairs.’
15.14 Briar Ave, Medindie is the home address of Amalie Phillips. Amalie Phillips and the accused were previously in a relationship and have two children together named Joshua (14) and Oscar (12).
16.9 Traminer Close Wynn Vale is the home address of the accused which he lived at with his partner Rebecca Connor. However, the defendant was placed in custody from 14 March 2014 as a result of the execution of a parole warrant and served the balance of his then outstanding parole of five (5) months and two (2) days commencing on that date.
17. 34 Rees Street, Sheidow Park is the home address of Damien Fraser.
18. 7 Francis Drive, Mount Compass is the home address of Leigh Slattery.
Telephone Evidence
19.Damien Fraser used the following telephone numbers in 2014: 0455372078, 0457909333, 0457909355, 0457909323 and 0455535257.
20. Rebecca Connor was the subscriber and user of the telephone number 0418298372.
21.Leigh Slattery was the subscriber and user of telephone number 0402593251 and 0474957274 in 2014.
Further Facts Were Agreed During the Trial
In a signed statement to police dated 9 April 2014, Steven Linfield stated in relation to the white bucket of belongings left at his house by Damien Fraser that:
I checked the carport later and saw the bucket that he had carried in sitting next to the wall of the house. There was some clothing sitting on top of the bucket and a large wrecking bar lying on the ground near some boxes of mine. None of those items belong to me.[14]
Bradley Donoghue was using the mobile telephone numbers 0457003581 and 0438376099 on 1 February 2014.[15]
[14] Exhibit P41 Agreed Fact re Mr Linfield.
[15] Exhibit P42 Agreed Fact re Mr Donoghue.
A second schedule of agreed facts was also received into evidence.[16] The additional facts were as follows:
·The ‘unidentified male’ interpreted from the sample obtained from 14/A80718-29 matches the sample obtained from Jonathon PAINE DOB 07/01/1981.
·Paine is an associate of Damien Fraser.
·Both Paine and Fraser are associated with David Piening of 9 Musgrave Avenue, West Hindmarsh.
·9 Musgrave Avenue West Hindmarsh was searched by police on 09/04/2014 in connection with Paine. It was searched as part of a series of searches conducted of premises of interest to the investigation which had connections with Fraser.
The Prosecution Evidence
[16] Exhibit P72 Schedule of Agreed Facts re Unidentified Male.
Evidence re Modbury Hospital Offending
There is no dispute, as I have said, that on 23 February 2014 $1,461 in cash was taken from the ticket machine at the Modbury Hospital when that machine was broken into. The machine has since been replaced at a total cost of $52,409.50.[17]
CCTV Footage of ‘Scoping’ Prior to the Offending
[17] Exhibit P1 Agreed Facts 4 and 5.
CCTV footage showed that at about 9.30pm on 23 February 2014, approximately four hours before the offending, two people approached the ticket machine before walking off.[18] As can be seen from the footage, they were both male. There is no dispute that the male depicted in the footage wearing a grey hooded jumper,[19] dark pants and white Nike sneakers[20] is the co-accused Mr Fraser. The second person depicted in the footage appears to be wearing dark shoes, pants, a dark hooded jumper with a white logo on the back, and a dark baseball cap with a white logo apparently reading ‘Sox’. On the prosecution case the second man is the accused. Dark shoes[21] and a dark baseball cap with a ‘Sox’ logo[22] and other items were subsequently recovered from a house belonging to the ex-partner of the accused, Ms Phillips.
[18] Exhibit P37 and Exhibit P38.
[19] Exhibit P54.
[20] Exhibit P34 and Exhibit P30, photos 4-8.
[21] Exhibit P14, photographs 10-19 and Exhibit P15.
[22] Exhibit P16 and Exhibit P4, photos 9-22.
The Offending
Brenton Hartman
In 2014 Mr Hartman was working as a security officer at the Modbury Hospital. In the early hours of 24 February 2014 Mr Hartman was on security patrols with another security officer, Mr Feeley. Mr Feeley received a call and notified Mr Hartman that an incident had occurred.
Mr Hartman gave evidence and referred to a satellite photograph of the Modbury Hospital and surrounds.[23] He said that he was standing near Hatherleigh Avenue, Modbury with Mr Feeley, when he saw a black Holden utility backed up against the GP Plus Clinic some 80 to 90 metres away. He saw what looked like two people near the pay station, trying to break into the machine. He thought they were males, based on their size and build. He noticed they had something covering their faces.[24] He could hear banging sounds and could see long objects.
[23] Exhibit P4 – Satellite photo Modbury.
[24] T30.
Mr Hartman gave evidence that Mr Feeley moved closer to the two people and radioed back to Mr Hartman the number plate of the black utility – XTY 661. Mr Hartman wrote the number onto his hand and later recorded the number in an incident report. Whilst Mr Feeley approached the two men, Mr Hartman tried calling for assistance. Mr Hartman observed the two men get into the utility and leave, driving along Hatherleigh Avenue in the direction of Smart Road.[25]
Darren Feeley
[25] T30.
Mr Feeley said that on 24 February 2014, while also on duty as a security officer at Modbury Hospital, he was contacted by the car park controller who had witnessed someone breaking into a ticket pay machine. Mr Feeley moved to a point west of the car park. He observed two men, with a black utility bearing the number plate XTY 661, robbing the ticket pay station.[26] He said he could tell that the two people were male due to their figures.[27] He moved forward, behind another vehicle, and ended up approximately twenty metres from where the men were breaking into the machine.[28] Mr Hartman could not see their faces as they had hoods pulled over their heads. He said they were using an angle grinder to break into the machine. He could hear the grinder and see the sparks.
CCTV Footage of the Offending
[26] T50-52.
[27] T51-52.
[28] T51.
CCTV footage of the Modbury incident showed a black utility being reversed up to the ticket machine.[29] Two people are shown to exit the vehicle and break into the machine using jemmy bars.[30] One of the jemmy bars used was approximately six feet in length and had silver markings on each end.[31] A similar jemmy bar was found in a house occupied by Stephen Lindfield, who was known to Mr Fraser, when Mr Lindfield’s house was searched by police on 9 April 2014.[32]
[29] Exhibit P37 and P38.
[30] Exhibit P31 photo 26 and Exhibit P35 photo 15.
[31] Exhibit P9, photos 9-13.
[32] T82.
One of the offenders shown in the CCTV footage is wearing dark shoes,[33] dark pants and a grey hooded jumper,[34] a baseball cap with a white logo,[35] black gloves[36] and a head sock covering his face.[37]
[33] Exhibit P14 photos 10-19 and Exhibit P15.
[34] Exhibit P54.
[35] Exhibit P14 photos 20-22 and Exhibit P16.
[36] Exhibit P9 photo 14.
[37] Exhibit P14 photos 26-29 and Exhibit P18.
The accused had been in a relationship with one Ms Phillips. They have two sons together, one of whom is named Joshua.[38] Police searched her address at Medindie and found a pair of dark shoes, a baseball cap with a white ‘Sox’ logo, and a blue, red and white head sock.[39]
[38] Exhibit P1, Agreed Fact 15.
[39] Exhibits P14-P20.
Telephone Evidence Generally
Eyles Service 1
Sergeant Garde was the officer responsible for investigating telephone calls in relation to this matter. She seized a mobile telephone from one Rebecca Connor. She obtained subscriber records for a telephone number 0410136435 (referred to as ‘Eyles Service 1’). The nominated subscriber was Rebecca Connor of 9 Traminer Place, Wynn Vale. That address is the home address of the accused where he lived with Ms Connor.[40] Sergeant Garde examined the contacts stored in that telephone. She also examined the contacts stored in Ms Connor’s own telephone[41] and observed that the telephone number 0410136435 was stored in Ms Connor’s telephone as ‘Babycakes New.’[42] When arrested at his Wynn Vale address, the accused provided that telephone number to Senior Constable Newell, the arresting officer. [43]
[40] Exhibit P1 Agreed Fact 16.
[41] T148.
[42] T148.
[43] Exhibit P68
In the course of her investigations, Sergeant Garde also seized a telephone from one Leigh Slattery. The contents of that telephone were examined and the number referred to as Eyles Service 1 was saved in that telephone as ‘Kevin.’ In addition, Sergeant Garde accessed police systems and ascertained that that number was recorded against the accused on police systems. Eyles Service 1 was used between 20 February 2014 and 14 March 2014[44] to contact Ms Connor 75 times, Ms Slattery three times, Mr Fraser 11 times, Bradley Donoghue three times and Ms Phillips 10 times.[45]
Eyles Service 2
[44] T149-150.
[45] T151.
Sergeant Garde conducted investigations into a second number, 0449195196, (referred to in evidence as ‘Eyles Service 2’) which she also attributed to the accused. The subscriber records of that second number showed that it was subscribed to one Debra Awad of 6 Patterson Drive, Middle Swan, Western Australia. That number also appeared in the contacts of Ms Slattery’s telephone, saved as ‘Grandpa Kev’, and was saved in Ms Connor’s telephone as ‘Babycakes 2.’[46]
[46] T150.
Sergeant Garde referred to call charge records relating to the numbers telephoned using Eyles Service 2. The service was used between 4 March 2014 and 14 March 2014. On 8 March 2014 a message was sent from Eyles Service 2 to an unknown number saying ‘Hey mate is Kev. Can u call me.’ On 10 March 2014 another message was sent which said ‘Hey its kev u have within the hour to call me before I start door knocking & the more doors I gotta knock on the more petrol u will be paying.’ On 13 March 2014 a further text message was sent which read ‘Hay mate its kk.’[47] The accused’s nickname was “KK”.
[47] Exhibit P61.
It was alleged that the accused was using the telephone number 0449195196 (Eyles Service 2) at relevant times. The accused used telephone numbers that were not subscribed to him. As I have said, Eyles Service 1 was subscribed to Ms Connor, and Eyles Service 2 was registered to Debra Awad of 6 Patterson Drive, Middle Swan, Western Australia.[48] A drivers licence for Debra Munro, of the same address, was located at the house of the accused on 5 May 2014.[49] That, I accept, was confirmed in a recorded conversation with Ms Connor on 19 April 2014, when the following discussion occurred:[50]
[48] T150.
[49] Exhibit P35, Photo 12.
[50] See Exhibit P52 and Exhibit MFIP53, Transcript of P52 as aide memoire, Appendix B pp 8-9.
CONNOR Why do you want my number for?
EYLES Oh yeah don’t do it here _____ yeah I won’t put it on his telephone.
CONNOR Yeah.
EYLES Just leave that one on til I get out.
CONNOR But that’s not under my name.
EYLES Yeah whose name is it under?
CONNOR I don’t know _____ random __________.
EYLES You use that.
CONNOR (Conversation with child).Shelley Adams or some shit
EYLES You should have used that card.
CONNOR (Conversation with child)
EYLES Yeah. (Conversation with child)
CONNOR No cause that card ____________________________.
EYLES Yeah __________________.
CONNOR That’s why I didn’t want to do it as AWAD _______________
EYLES Which one?
CONNOR Kevin _______________
EYLES Yeah _____________.
CONNOR Sorry?
EYLESWasn’t that last one just a random one though _______. Wasn’t the last one a random one?
CONNOR No no I want my real one.
CONNORBecause, because, I thought it was, I put the new number under my my real name.
EYLES Why?
CONNOR But I didn’t.
EYLES Ok.
CONNOR And I tried to get the credit with ____________
EYLES Oh.
CONNOR And they’re like this isn’t your name.
EYLES Yeah.
CONNOR I was like beep and then I realised I had it in my pocket.
EYLES _______________
CONNOR What I put it under.
EYLES Yep oh.
CONNOR So that’s why I can’t transfer the credit.
EYLES Oh right.
Eyles Service 2 was also used to contact 0457909355, a number used by the co‑accused, Mr Fraser, 35 times;[51] Ms Connor’s telephone number 11 times; Ms Slattery’s telephone number four times, and approximately 11 calls were made to Ms Phillips’ telephone number.[52]
[51] T150-151 – and Exhibit P1 Agreed Fact 19.
[52] T150-151.
I am satisfied that the accused, and only the accused, used both Eyles Service 1 and Eyles Service 2.
Telephone Evidence Regarding the Modbury Hospital Offending
I accept the evidence of the expert Telstra witness, Mr Tim Miller as to the operation of the telephone cell tower system, and the circumstances in which a telephone located in the geographical region surrounding a particular tower would connect to that tower. On most days between 10.00am and 5.00pm the accused’s telephone was connected to the Golden Grove telephone tower. Whilst counsel for the DPP submitted that would be when the accused was at his home address at Wynn Vale,[53] the evidence only permits a finding that connection to the Golden Grove tower is consistent with the accused being at his Wynn Vale address.
[53] Exhibit P59 – Large bundle of call charge records and colour coding key.
On 23 February 2014, the evening before the Modbury Hospital incident, and the night the ‘scoping’ took place, the accused’s telephone connected to the Modbury Hospital Tower[54] at 9.15pm and 9.20pm when he called Rebecca Connor.[55] There was no telephone communication at the precise time of the offence on 24 February 2014.
Damien Fraser Service 2
[54] Exhibit P66 the Modbury Tower is located at the Modbury Hospital.
[55] Exhibit P59 – Large bundle of call charge records and colour coding key.
Damien Fraser lived at 34 Rees Street, Sheidow Park[56] which is 37km from Modbury. He used multiple telephone numbers including the number 0457 909333,[57] referred to in evidence as Fraser Service 2. Fraser Service 2 connected to the Modbury Hospital tower at 9.20pm on 23 February 2014.[58] That is proximate to the time Mr Fraser and the other man are shown on CCTV footage and are said to be ‘scoping’ the ticket machine.
[56] Exhibit P1 Agreed Fact 17.
[57] Exhibit P1 Agreed Fact 19.
[58] Exhibit P59 - Large bundle of call charge records and colour coding key.
At 2.01am on 24 February 2014, shortly after the time of the Modbury Hospital offending,[59] Fraser Service 2 connected with the Surrey Downs Tower and contacted Mr Donoghue.
[59] Exhibit P59.
I note that, on the prosecution case, Mr Donoghue was in contact with the accused and Mr Fraser directly before and after each of the three offences. Fraser Service 2 was also used to make contact with Mr Donoghue’s telephone on 20, 21 and 22 February 2014.[60]
[60] Exhibit P59.
Fraser Service 2 was used to make contact with Eyles Service 1 at 9.18am and 9.48am on the morning of 23 February 2014. On 24 February 2014 at 10.43am, Fraser Service 2 connected to the St Agnes tower[61] and was used to contact Eyles Service 1. At 3.59pm and 4.55pm on 23 February 2015 Fraser Service 2 connected to the Surrey Downs and Salisbury North towers located near the accused’s house.[62]
[61] Exhibit P59.
[62] Exhibit P59.
I note the submissions, on the prosecution case, that Mr Fraser picked up the accused from his residence at Wynn Vale.
Connor Service 1
Between 9.26pm and 9.51pm on 23 February 2014 there were seven communications between Connor Service 1 and Eyles Service 1. At 9.50pm Connor Service 1 was used in an attempt to contact Eyles Service 1 and records indicate that service was then connected to message bank. The records show that the time Eyles Service 1 was connected to the Golden Grove tower.[63]
[63] Exhibit P59 – Connor Service 1 p 7 of 29.
Jonas O’Brien, a technical analyst from Vodafone, who I accept was qualified to give expert evidence as to the operation of the telephone tower system, and the circumstances and geographical location of telephone services connecting to particular towers, gave evidence that when a telephone call goes to voice mail the telephone tower referred to in the records is the receiving party on the Vodafone network.[64]
[64] T180.
Evidence re the Mount Compass Tavern Offending
The Mount Compass Tavern, situated at the corner of Victor Harbor Road and Nangkita Road, was broken into at about 2.45am on 26 February 2014. The ATM was stolen. It is agreed that approximately $2,380 was stolen from the ATM.[65] The machine was valued at $8,537.[66] The total damage to the Mount Compass Tavern was $21,000.[67]
Craig Scudds
[65] Exhibit P1 – Agreed Fact 6.
[66] Exhibit P1 – Agreed Fact 7.
[67] Exhibit P1 – Agreed Fact 8
Craig Scudds is the manager of the Mount Compass Tavern and was running the tavern in February 2014. At that time he was residing at George Francis Drive in Mount Compass, a three minute drive from the tavern.[68]
[68] T40.
At 2.45am on 26 February 2014 Mr Scudds received a telephone call from the security firm that monitored the Tavern’s alarm system, advising him that multiple alarms had been activated within the building.[69] Mr Scudds immediately drove to the Tavern along George Francis Drive, Arthur Road and Victor Harbor Road.[70] Mr Scudds gave evidence that on his way to the Tavern, he only saw one vehicle, a dark coloured utility travelling in the opposite direction towards George Francis Drive near the cemetery on Arthur Road.[71] In cross-examination Mr Scudds agreed that he told police that whilst he was on his way to the Tavern he passed a dark-coloured utility travelling in an easterly direction. He gave evidence that his statement contained an error as to the direction of travel of the utility, and confirmed the utility was travelling from Victor Harbor Road towards George Francis Drive.[72] I accept his evidence in court, and his explanation for the inconsistency. On the prosecution case the dark coloured utility witnessed by Mr Scudds was the same vehicle used in the break in, and was being driven by Fraser and the accused towards Ms Slattery’s house at 7 George Francis Drive, with the stolen ATM on board.
[69] T40.
[70] T41.
[71] T41-42 and Exhibit P8, Mr Scudds marked the exhibit accordingly.
[72] T48-49.
When Mr Scudds arrived at the Tavern he could smell burning rubber and noticed that the front doors had been smashed. A closer inspection revealed that the screen doors had been pulled outwards. When he walked into the premises, Mr Scudds observed that the legs of the eight ball table had been snapped off and the ATM was missing.[73]
Sharon Bleakley
[73] T44.
Ms Bleakley lived near the Tavern. She said that on 26 February 2014 at approximately 2.45am she was woken by a noise from across the road. She gave evidence that the noise sounded like glass breaking and a car engine revving.[74] She moved from her bedroom to a window in another room attempting to get a clearer view of what was happening outside. Ms Bleakley said she saw a set of car headlights facing away from the Tavern, and a person running back and forth near the side entrance of the Tavern and could hear yelling which sounded like a male’s voice.[75] She also observed an object which “looked like a safe … a box shape” being dragged from the Tavern.[76] She said that the vehicle, which had been facing away from the Tavern with the engine revving, appeared to be pulling the box shaped object with the use of a chain, or something similar.[77] Ms Bleakley said that after a period of time the vehicle proceeded to drive along Nangkita Road before heading towards Adelaide on the Victor Harbor Road.[78] She said that the vehicle appeared to be the shape of a utility and was dark in colour.[79]
Stephen Ryan
[74] T54.
[75] T55.
[76] T55.
[77] T55.
[78] T56.
[79] T57.
Mr Ryan was woken by his wife who had heard noises coming from the Tavern.[80] On moving outside to gain a clearer view, Mr Ryan could hear the loud revving of an engine and crashing noises.[81] He could not see anything when he looked in the direction of the Tavern as his view was obscured by trees and shrubs. Mr Ryan gave evidence about hearing the car drive away from the scene. He expressed the opinion that the vehicle drove down Lancoona Road before turning right onto Munetta Road.[82] He said he could hear the car slowing and accelerating around corners.[83] Mr Ryan, said he was an experienced motoring enthusiast, and said he thought the vehicle had a V8 engine.[84] I note that the registration papers relating to Mr Fraser’s black utility, and papers located at Mr Donoghue’s house in Whyalla Norrie on 12 May 2014,[85] describe Mr Fraser’s vehicle as having eight cylinders.[86]
Patricia Ryan
[80] T58.
[81] T59.
[82] T64.
[83] T65.
[84] T60.
[85] T162.
[86] Exhibit P27.
Mrs Patricia Ryan, Stephen Ryan’s wife, also gave evidence. She said she awoke to hear a “car ramming into the hotel”.[87] She gave evidence that the noise sounded like a car going backwards and forwards into the front of the hotel, but said she could not see the car at any point. She went outside with her husband. She gave evidence that she heard a female voice call out the name ‘Jason’, before the vehicle left.[88] She said she thought that the female was calling out to people at the tavern. She gave evidence that she believed she was approximately 500m away from the female when she heard her call out the name ‘Jason.’[89]
[87] T68.
[88] T69-70.
[89] T72-73.
Mrs Ryan said she heard only one vehicle travelling after the break-in. She said the vehicle headed north towards Adelaide, before turning into the back streets of Mount Compass.[90] She said the vehicle travelled “up to where there is only one way you can get out of that area”,[91] and said that she believed the vehicle travelled along Slater Road and onto Arthur Road.[92]
[90] T70.
[91] T70.
[92] T71.
I note Mrs Ryan’s evidence of hearing a female call out “Jason”. I bear in mind that is a piece of evidence to be considered in deciding whether I can be satisfied beyond reasonable doubt that the prosecution has proved that the accused was Mr Fraser’s co-offender.
As to the path taken by the vehicle involved in the break-in, I prefer Mrs Ryan’s evidence as to the direction the vehicle was travelling to that of her husband. The evidence of Mrs Ryan was supported by CCTV footage retrieved from a house on George Francis Drive,[93] which depicted a dark coloured utility driving in a direction consistent with driving from the Tavern towards Leigh Slattery’s house at 2.59am.
Gregory Turner
[93] Exhibit P40, Exhibit P1, Agreed Fact 9.
Mr Turner is an experienced crime scene investigator. He gave evidence that he observed damage to the Mt Compass Tavern building and in particular the posts at the front of the tavern. He photographed the posts, which he said appeared to have suffered damage during the break in. He said that there was black paint in the area of the damage.[94] Mr Turner confirmed that skid marks were evident near the entrance to the Tavern. He expressed the opinion, which I accept he was entitled to express, that entry to the Tavern was gained by first jemmying the door open, followed by cutting the metal frame security cage which lay beyond the front entrance doors, using bolt cutters or something similar.[95]
The Relevance of Leigh Slattery
[94] T93.
[95] T93-94.
Ms Slattery lived at 7 George Francis Drive Mount Compass. George Francis Drive is a no through road. The prosecution submitted the inevitable inference is that the offenders used the home of Leigh Slattery at 7 George Francis Drive[96] as a ‘base’ for the offending that occurred on the 26 February 2014.
[96] Exhibit P1, Agreed Fact 18.
Ms Slattery was an associate of the accused. Eyles Service 1 was in communication with Ms Slattery’s telephone at 12.27am and 12.46am on 26 February 2014, approximately two hours before the break-in at the Mount Compass Tavern. CCTV footage obtained from Ms McKenchie,[97] the resident of 31 George Francis Drive, depicted a dark coloured utility travelling on George Francis Drive at least in the direction of Ms Slattery’s house, at 1.34am on 26 February 2014. The footage also shows what appears to be the same vehicle heading in a direction away from Ms Slattery’s address at 2.37am, and returning along George Francis Drive at 2.59am. The Mount Compass Tavern break in occurred at approximately 2.45am.
[97] Exhibit P1, Agreed Fact 9.
On 9 April 2014 Detective Ward and other police officers searched Ms Slattery’s house and seized items,[98] including two snap straps.[99] On the prosecution case, the straps had been used to pull the ATM from its mounted position within the Tavern. There is moderate support for the proposition that the accused was a contributor to a mixed DNA profile of four contributors obtained from a tape-lift of one of the straps. I will refer further to the DNA evidence below.
A Black Utility
[98] T106.
[99] Exhibit P29.
On 27 March 2014 Detective Macrae searched a panel beating workshop at Unit 5, 12 William Street Cavan and located a black Holden Utility.[100] In the tray of that vehicle were registration plates: S512 AIJ. The Vehicle Identification Number (VIN) was 6H8VSK80UXL453799.[101] Registration papers and a service book relating to that vehicle seized by police during searches at Mr Donoghue’s house at Whyalla Norrie and the accused’s house at Wynn Vale, respectively.
[100] T98.
[101] T101.
The Register of Motor Vehicles showed that the Black Holden Utility registered with that number plate, had that VIN.[102] The vehicle had damage to a number of panels.
Telephone Evidence Relevant to the Mount Compass Offending
[102] Exhibit P27; T102.
I note that the prosecution case in relation to the Mount Compass offending is that the accused drove to Mount Compass and attended Ms Slattery’s address at 7 George Francis Drive before and after the offending, and that at relevant times the accused was using Eyles Service 1.
Eyles Service 1 (0410136435)
Eyles Service 1 connected to the Reynella tower at 12.14am on 26 February 2014; and the Onkaparinga tower at 12.27am on 26 February 2014 when a call was made to Slattery Service 2.[103] At 12.46am Eyles Service 1 connected to the Hackham West tower, and a call was again made to Slattery Service 2.[104]
[103] Telephone service of Ms Leigh Slattery.
[104] Exhibit P59, Large bundle of call charge records and colour coding key, p 3 of Kevin Eyles Service 1.
A text message was received by Eyles Service 1 from the service of Ms Connor, at 3.06am on 26 February 2014. Although no location description is recorded on call charge records,[105] on 18 April 2014 at 1.29pm the accused said to Ms Connor that a telephone would put him “into Mt Compass” on the night of 26 February 2014.[106] During a subsequent telephone conversation on 19 April 2014 the accused asked Ms Connor whether she had deleted messages between them, and said:[107]
… even the ones when you were sending me at fucken 3 o’clock in the morning when I was doing that thing?
[105] Exhibit P59, Large bundle of call charge records and colour coding key, p 3 of Kevin Eyles Service 1.
[106] Exhibit P52 and see Exhibit MFIP53, Transcript of P52 as aide memoire, Appendix A page 9.
[107] Exhibit P52 and see Exhibit MFIP53, Transcript of P52 as aide memoire, Appendix B page 20.
Eyles Service 1 connected to the Woodcone Hill tower located near Adelaide Road, at Woodcone Hill,[108] at 9.25am on 26 February 2014.[109] The number called (0402875581) was registered to one IIias Leventeris, who is a panel beater.
[108] Exhibit P58 – Bundle of Site ID documents
[109] Exhibit P59, Large bundle of call charge records and colour coding key, page 3 of Kevin Eyles Service 1.
I note the prosecution submission that that call was made after the offending at the Mount Compass Tavern. Black paint markings were noted on the area of the damage to the Tavern.[110] The damage and paint markings were located approximately 607mm from the ground;[111] a height consistent with the damage being done by a black utility.
[110] T93.
[111] T96.
Reynella, Onkaparinga, Hackham West and Woodcone Hill are all towers located between Adelaide and Mt Compass. I note the prosecution submission that the accused’s telephone was connecting to those towers as the accused was travelling south towards Mount Compass.
Fraser Service 2 (0457909333)
There is telephone contact between Fraser Service 2 and Eyles Service 1 between the hours of 6.30pm and 8.00pm on 25 February 2014.[112] At 9.04pm on 25 February 2014 Fraser Service 2 connected to the Surrey Downs tower which is in close proximity to the accused’s home address.[113] I note the prosecution submission that it may be inferred the accused was picked up by Fraser on the evening before the Mt Compass offending.
[112] Exhibit P59, Large bundle of call charge records and colour coding key, Damien Fraser Service 2.
[113] Exhibit P59, Large bundle of call charge records and colour coding key, Damien Fraser Service 2.
Fraser Service 2 connected to the Compass Heights tower, located in the vicinity of Mt Compass[114] at 3.06am on the 26 February 2014.[115] On 26 February 2014 at 4.57am Fraser Service 2 was used to contact Mr Donoghue’s telephone service. Mr Fraser’s telephone connected to the Compass Heights tower until 10.28am that day.[116]
Connor Service 1 (0418298372)
[114] Exhibit P66.
[115] Exhibit P59, Large bundle of call charge records and colour coding key, Damien Fraser Service 2.
[116] Exhibit P59, Large bundle of call charge records and colour coding key, Damien Fraser Service 2.
Ms Connor’s service was used to communicate with Eyles Service 1 on several occasions between 11.20pm and 11.38pm on 25 February 2014.[117] At 2.55am on 26 February 2014, Connor’s service contacted Eyles Service 1, and the call went to message bank. Eyles Service 1 was connected to Woodcone Hill, which is close to Mount Compass.[118] There are three further communications to Eyles service 1 at 2.55am, 3.04am and 3.05am. No location description is provided.[119]
[117] Exhibit P59, Large bundle of call charge records and colour coding key, Rebecca Connor Service 1, p 9.
[118] Exhibit P59, Large bundle of call charge records and colour coding key, Rebecca Connor Service 1, p 9.
[119] Exhibit P59, Large bundle of call charge records and colour coding key, Rebecca Connor Service 1, p 9.
Eyles Service 1 is subscribed to Rebecca Connor. She would not have been contacting herself. I note the prosecution submission that it should be inferred that Ms Connor was contacting the accused.
Donoghue Service 1 (0457003581)
Mr Donoghue and Mr Fraser made contact before and directly after the time period of the Mt Compass offending. Donoghue Service 1 contacted Fraser Service 2 via SMS on 26 February 2014 at 4.59am. Donoghue Service 1 connected to Whyalla Playford telephone tower at that time.[120]
[120] Exhibit P59, Large bundle of call charge records and colour coding key, Bradley Donoghue Service 1.
There was frequent communication between Donoghue Service 1 and Fraser Service 2 for the remainder of 26 February 2014 and during the following day on 27 February 2014. Contact between Donoghue’s Service and Fraser Service 2 also occurred on 28 February between the hours of 10.24am and 10.54am.[121]
[121] Exhibit P59, Large bundle of call charge records and colour coding key, Bradley Donoghue Service 1.
Donoghue’s Service 1 was connected to the Whyalla Playford telephone tower at all times.[122]
[122] Exhibit P59, Large bundle of call charge records and colour coding key, Bradley Donoghue Service 1.
Donoghue contacted both Eyles Service 1 and Connor Service 1 frequently on 28 February 2014 between 12.48pm and 7.29pm. Donoghue’s telephone was connected to Whyalla Norrie telephone tower. Donoghue Service 1 was in regular contact with Ms Connor again on 1 March 2014 between 10.36am and 11.06am. During that time Donoghue Service 1 was also in regular contact with Eyles service number 1.[123]
Arunta Calls and Listening Device Evidence Specific to the Mount Compass Tavern Offending
[123] Exhibit P59, Large bundle of call charge records and colour coding key, Bradley Donoghue Service 1.
I note the prosecution submission that in recorded conversations the accused displayed concern about his telephones being turned on. Further, the recorded calls and conversations show that the accused had knowledge of where the telephones had been, consistent, in turn, with an inference that the telephones were with him when he committed the offences.
The accused’s conversations were recorded on 18 April 2014 by a listening device:[124]
[124] Exhibit P52 and see transcript of Exhibit P52 (Exhibit MFIP53) as aide memoire, Appendix A p 9.
EYLES__________ you can’t fucking. I’ll tell you where my telephones are but you can’t fucken turn em on and shit. If you turn it on.
CONNOR I don’t even want to know all that.
EYLES Listen.
CONNOR I don’t want to know that.
EYLESCan I. Fucking can I ___________ listen. I’ll tell you where they are and you turn it on if they’ve got fucking Data’s telephone now and they link fucking my number to Data’s especially that other one that telephone I got off Josh that’ll put me straight into Mount Compass on the night, as soon as you turn it on.
CONNOR _________ I’m telling you _________ .
EYLES Listen.
CONNOR I don’t fucking know where they are man.
EYLESAs soon as it’s turned on it’ll put me straight in Mount Compass and they’d probably go straight back to the house if that gets turned on.
CONNOR Okay. I don’t want to know where they are. Alright. End of story. ______ .
I note the prosecution submission that the contents of the conversation, which I accept is between the accused and his partner Ms Connor, is relevant to the accused’s concern about the telephone and its location, but also connects the accused to Damien Fraser (‘Data’)[125] and is an admission by the accused to the use of multiple telephones. Further, the reference to being in Mount Compass ‘on the night’, it was put, should be inferred as a reference to the Mount Compass offending.
[125] It is an agreed fact that Damien Fraser was known as ‘Data’.
The accused and Ms Connor discussed their telephone calls and messages again on 19 April 2014:[126]
[126] Exhibit MFIP53, Transcript of P52 as aide memoire, Appendix B p 20.
CONNORAlright I am just saying Kevin ok because they’ve got my telephone so they will know who I fucken last called.
EYLES Yeah your last call was Brad.
CONNOR Brad and Amalie.
EYLES Yeah, yeah _____. (Conversation with child)
CONNOR And the other, the other ones are just unknown and that’s from you.
EYLES Yep.
CONNOR And then there is mum and Sally
EYLES Yeah.
CONNOR On there as well.
EYLES Did you delete all the messages?
CONNOR Yeah.
EYLES All of them?
CONNOR Yeah.
EYLESEven the ones when you were sending me at fucken 3 o’clock in the morning when I was doing that thing?
CONNORYes I deleted everything Kevin. Alright I will tell you one thing the only fucken thing on my telephone right is when the fucken news came up I recorded the news clipping of something.
EYLES Data?
CONNOR Yeah that’s the only thing.
EYLES Fuck.
CONNOR That’s the only thing.
I note the prosecution submission that the accused’s reference to ‘when I was doing that thing’ is a reference to breaking into the Mount Compass Tavern which break-in occurred at approximately 2.45am on 26 February 2014.
Evidence Regarding the Moana Pharmacy Offending
The Moana Pharmacy was broken into at approximately 3.00am on 6 March 2014. That offence occurred six days after the offending at Mount Compass. Entry was gained through a smashed front window. An ATM, leased by the pharmacy from the bank of Queensland, was found on its side in the middle of the pharmacy. It was originally bolted to the floor. The casing had been opened and a total of $21,500 was stolen from the ATM.[127]
Mr Ellingham
[127] Exhibit P1, Statement of Agreed Facts – Agreed Fact 1.
A witness, Mr Ellingham, who lived opposite the pharmacy, was woken by the sound of glass smashing and a car revving.[128] Mr Ellingham observed two people standing near a black Holden utility which was backed up to the pharmacy entrance.
CCTV Footage
[128] Exhibit P3, Agreed Statement made 6 March 2014.
CCTV footage from the pharmacy shows two men using a black utility and utilising chains and straps[129] to pull an ATM in the pharmacy, from its mountings. One of the men in the footage is shown wearing a baseball cap and a face covering. I note the prosecution submission that those items are similar to those shown in the footage from Modbury Hospital offending a few days earlier.
Stephen Lindfield
[129] Exhibit P9, Photobook RPO2, Photo 3.
On 9 April 2014, police conducted a search of a property located at 488 Cross Road, Glandore. The occupant was Stephen Lindfield an associate of Mr Fraser. Mr Lindfield gave evidence that a few days prior to the police search, Mr Fraser had visited his house. He said that prior to that, he had not seen Mr Fraser for many years. Mr Lindfield had known Mr Fraser since the early 1990s, but said there had been no contact since about 1997 until he ran into Mr Fraser by chance at the Castle Plaza shopping centre in late March 2014.[130] Mr Lindfield said that Mr Fraser dropped around a bucket along with ‘some stuff’ in it, which Mr Lindfield was content to store on his behalf.[131] Mr Lindfield said he did not enquire into what was being left at his property and simply instructed Mr Fraser to leave it in the garage.[132]
[130] T32.
[131] T33.
[132] T33 and Exhibit P9, Photobook RPO2, Photo 1.
Whilst I have some difficulty accepting Mr Lindfield’s evidence as to the degree of contact between him and Mr Fraser, I accept his evidence that Mr Fraser attended and left items at Mr Lindfield’s house.
Detective Perkins
Upon searching Mr Lindfield’s property, Detective Perkins discovered a range of items that, on the prosecution case, are connected with the three offences.[133] A white bucket (bucket 1) was located in the garage.[134] It contained chains, straps and an array of shackles.[135] These items are consistent with the type of equipment the prosecution allege was used by the accused and Mr Fraser in the Mount Compass and Moana offending. They were covered by a black windcheater with the text ‘Support Hells End Australia’ printed on it.[136] Police also located in the garage a green balaclava,[137] and a pair of black gloves displaying the logo ‘ninja’ in white text.[138] The balaclava was found sitting on the rim of another bucket (bucket 2)[139] whilst the black gloves were found on the ground in close proximity to buckets 1 and 2.[140]
[133] Exhibit P9, Photobook RPO2.
[134] Exhibit P9, Photobook RPO2 Photos 1–2.
[135] Exhibit P9, Photobook RPO2, Photo 3.
[136] Exhibit P22; Exhibit P9, Photobook RPO2, Photo 4.
[137] Exhibit P24; Exhibit P9, Photobook RPO2, Photo 8.
[138] Exhibit P23; Exhibit P9, Photobook RPO2, Photo 15.
[139] Exhibit P9, Photobook RPO2, Photo 7.
[140] T83: Detective Perkins; Exhibit P9, Photobook RPO2, Photo 14.
It is the Crown case that the ‘Support Hells End Australia’ black windcheater and the green balaclava were both worn by Mr Fraser during the Moana offending, as is depicted in CCTV footage from Moana.[141] Police also found a large jemmy bar which measured approximately six feet in length[142] and which had prominent colourings and markings, similar to those seen on the jemmy bar shown in the CCTV footage from the Modbury Hospital offending.[143]
[141] Exhibit P57; disc containing CCTV footage Moana number 2.
[142] T85: Detective Perkins.
[143] Exhibit P9, Photobook RPO2, Photos 9–13.
I note the submissions, on the prosecution case, that of the items found during the search of Mr Lindfield’s garage, the jemmy bar is particularly relevant to the Modbury offending; whereas, the other items such as the balaclava, chains, straps, shackles, gloves and black windcheater are all relevant to the break-in at the Moana Pharmacy. I bear in mind the evidence that there is modest support for the proposition that the accused was one contributor of four to the mixed DNA profile found on the strap allegedly used to remove the ATM at the Mount Compass Tavern.
Telephone Evidence Relevant to the Moana Pharmacy Offending
There was frequent communication between telephones used by the accused and Mr Fraser on 5 and 6 March 2014. The records show that on 6 March 2014 Eyles Service 2 was at a location picked up by telephone towers in Seaford, Woodcone Hill, Moana, and McLaren Vale between 3.23pm and 8.06pm,[144] locations on the way to, and reasonably close in proximity to, the area of offending.
[144] Exhibit P59, Large bundle of call charge records and colour coding key, Kevin Eyles Service 2.
No calls were made or received using Eyles Service 2 at the time at which the offence occurred. However, Eyles service 2 connected to Glandore Tower at 12.14am on 6 March 2014, showed a call to Slattery Service 2.[145] At 3.23am on that date another call was made to Slattery Service 2 and Eyles Service 2 connected to the Seaford tower.[146] At 4.14am and 4.25am Eyles Service 2 connected to Seaford tower when calls to Fraser Service 3 were made.[147]
[145] Exhibit P59, Large bundle of call charge records and colour coding key, Kevin Eyles Service 2.
[146] Exhibit P59, Large bundle of call charge records and colour coding key, Kevin Eyles Service 2.
[147] Exhibit P59, Large bundle of call charge records and colour coding key, Kevin Eyles Service 2.
Eyles Service 2 called Ms Connor at 7.21am on 6 March 2014 and connected to Woodcone Hill near Mt Compass. At 7.26am, 7.27am, 7.34am and 7.37am Eyles Service 2 contacted Fraser Service 3 and connected to Woodcone Hill tower.
On 6 March 2014 at 7.54am Eyles Service 2 contacted Fraser Service 3 and connected to Moana tower. At 8.04am, 8.05am and 8.06am Eyles Service 2 contacted Fraser Service 3 and connected to McLaren Vale tower. At 8.11am and 8.14am Eyles Service 2 contacted Connor, and connected to Hackham West tower.[148]
[148] Exhibit P59, Large bundle of call charge records and colour coding key, Kevin Eyles Service 2.
I note the prosecution submission that the evidence suggests that the accused remained at Ms Slattery’s place until the morning of 6 March 2014 before returning to Wynn Vale where Eyles Service 2 connected to Golden Grove telephone tower at 9.45am.[149]
Fraser Service 3 (0457909355)
[149] Exhibit P59, Large bundle of call charge records and colour coding key, Kevin Eyles Service 2.
On 5 March 2014 Fraser Service 3 telephone connected to telephone towers in St Agnes, Hope Valley and Surrey Downs, before being picked up at Seaford Exchange at 12.57am on 6 March 2014. That service connected to telephone towers in the southern suburbs throughout the early hours of the morning on 6 March 2014. At midday on 6 March 2014 Fraser Service 3 connected to Brighton Jetty, then Black Forest, Welland, and then Surrey Downs at 3.29pm that afternoon.[150] Fraser contacted the accused throughout the day on 5 March 2014 between the hours of 11.52am and 7.56pm.[151]
[150] Exhibit P59, Large bundle of call charge records and colour coding key, Damien Fraser Service 3.
[151] Exhibit P59, Large bundle of call charge records and colour coding key, Damien Fraser Service 3.
Contact was made between Fraser Service 3 and Eyles Service 2 in the early hours of 6 March 2014 at 4.51am and 5.21am, which connected to Seaford Exchange Tower.[152]
[152] Exhibit P59, Large bundle of call charge records and colour coding key, Damien Fraser Service 3.
Fraser contacted Mr Donoghue at 10.43pm on 5 March 2014 connecting to Surrey Downs, and at 11.05am on the 6 March 2014 connecting to Seaford Meadows.[153]
Donoghue Service 1 (0457003581)
[153] Exhibit P59, Large bundle of call charge records and colour coding key, Damien Fraser Service 3.
Communication with Mr Donoghue occurred before and after the offence. Mr Donoghue’s telephone connected to the Whyalla Playford telephone tower on the 6 March 2014. There is no evidence to suggest even as a possibility that Mr Donoghue was in Moana at the time of the offending.[154]
[154] Exhibit P73 – Telstra Records re -0457003581, pp 100-101.
Police Evidence
Various police officers gave evidence of searches at premises at Medindie, at the house of a former partner of the accused;[155] at Cavan at a car repair premises where a black utility was located;[156] at Sheidow Park, where a black utility was subsequently seen;[157] at Wynn Vale, where clothing and other items, were found;[158] and at Whyalla Norrie where registration papers relating to a black utility were found.[159]
[155] T75.
[156] T98.
[157] T111.
[158] T119.
[159] T116.
Expert Evidence
I bear in mind that there are certain areas of science and other areas of specialisation or expertise where the evidence of an expert can assist the trier of fact in arriving at a conclusion. I also bear I mind that expert evidence can sometimes work to remove suspicion of guilt, sometimes work to confirm guilt, and at other times it may be of little assistance at all. I must approach the evidence of an expert in the same way as other evidence. Just because it is the opinion of an expert, it does not mean that it must be accepted.
In deciding whether to accept or reject such evidence, I must look to the qualifications and expertise of the witness, the manner in which the witness gave his or her evidence, my understanding of the evidence, the surrounding circumstances which form the basis of the opinion, and all of the material evidence in the case.
DNA Witnesses
Dr Pinyon gave evidence in the prosecution case in relation to the analysis performed by the Forensic Science Centre. Counsel for the accused called Ms Jae Gerhard to give expert evidence in relation to DNA.
Mouth swab kits were performed on Ms Connor, Mr Fraser, Ms Phillips and the accused and all four samples were provided to the Forensic Science Centre as reference samples.
Dr Pinyon
Dr Pinyon was a highly qualified expert and a careful and impressive witness. Dr Pinyon has worked with the Forensic Science Centre for 10 years. She has a BSc (Hons) and a PhD in a Molecular Biology, DNA.
Dr Pinyon was provided with certain items from the investigators and she performed an analysis of DNA from those items.[160] The results of those tests were collated and presented in a report.[161]
[160] T220.
[161] Exhibit P69 – Forensic Science Addendum Report.
I accept the evidence of Dr Pinyon as to the process by which she determined the number of contributors to each sample:[162]
[162] T235-236.
QWhen you conclude that a DNA profile has a certain number of contributors, how confident are you of the number of contributors.
AWe can never be 100% confident in the number of contributors in a sample but, based on extensive experience in reading these samples, the literature and our training, I would stand by the number of contributors that I have designated in these profiles, remembering that these profiles are also then peer reviewed by another scientist who has to agree with the conclusions that I have made, and also remembering that if, for any reason, we are not sure, then we would say it was an inconclusive number of contributors and then they are analysed using the STRmix program, we still have to scrutinise the output that this program gives us, and if we are looking at this and it doesn’t make sense to us, then we would say ‘no, we are wiping this. We are not going to assign a number of contributors so there are a number of steps involved in getting to that point.
QSo do you take a fairly cautious approach in relation to your conclusions as far as the number of contributors are concerned.
AAbsolutely. If I am not certain on what I think the number of contributors are, then the sample does not get analysed.
QAnd in relation to this particular report, was this report peer-reviewed by another colleague.
AYes.
QAnd who did that peer review.
AHer name is Rebecca Windram.
Dr Pinyon gave evidence that a DNA profile showing four contributors is capable of being analysed, but more than five contributors would be too complex for analysis.[163]
[163] T223.
She described STRmix as a program that takes into account the DNA profiles that have been generated. The program ‘untangles’ complex DNA profiles into their likely single source possibilities, taking into account additional information including peak heights, how profiles degrade, how much DNA is added to the sample, how many times that sample has been repeated and how many contributors are in the sample.[164] Once the program has untangled the DNA profiles, it provides a weighting to the likelihood ratios of the profiles.[165]
[164] T227.
[165] T227.
Dr Pinyon gave evidence that the STRmix program is used throughout Australia and New Zealand, and was implemented in South Australia in August 2012. Prior to the use of STRmix Dr Pinyon would conduct manual interpretations of a profile. She gave evidence of the problems with manual interpretation. She said that a lot of the information within the profile would be ignored because she was unable to do anything with it.[166]
[166] T228.
Dr Pinyon was cross-examined in relation to the STRmix software program. She agreed that the program requires the forensic scientist to assess the number of contributors to a DNA profile. She gave evidence that the assignment of contributors is based on years of experience, reading the profiles and literature and training. She agreed that there is a degree of subjectivity but that is based on solid information. She went on to say that it is not like throwing a dart at the wall and picking a random number, it is based on supported evidence.[167]
[167] T249.
Dr Pinyon gave evidence that in the event that two qualified minds do not agree as to the number of contributors, the data is re-analysed.
She was cross-examined further on the topic of manual input of the number of contributors:[168]
[168] T249-250.
QThe STRmix software needs the input from the forensic scientist of the number of contributors before it can do its calculations.
AYes.
QIf the number of contributor assessed by the forensic scientist isn’t correct, then the likelihood ratios calculated by the STRmix software program are inevitably inaccurate aren’t they.
AIt depends on the contribution of people, if you are contributing quite a large amount of DNA then changing the number of contributors from, say, three to four it’s probably not going to make that much difference to a strong contributor, the changes are more likely to affect the lower level contributors.
QAt the end of the day, the numbers that the software churns out would be different.
AYes.
Ms Gerhard
Ms Gerhard is a forensic biologist with Independent Forensic Services. She completed her Honours Degree in Biomedical Science from the University of Technology in Sydney in 2003. She completed a Certificate IV in Scene of Crime Officer Training and a Certificate IV in Training and Assessment on how to develop and deliver training courses and how to assess students appropriately.[169] She previously worked with the New South Wales Police Force and the Australian Federal Police before she became the principal scientist and business owner at Independent Forensic Services, a business which provides independent forensic science consultancy in forensic biology, DNA analysis, bloodstain pattern interpretation and crime scene examination.[170]
[169] T275.
[170] T278.
During cross-examination, Ms Gerhard agreed that the STRmix program looks at peak heights to determine the portions of contributors as well as how a profile has degraded,[171] but said that STRmix does not determine the number of contributors to a DNA profile.
[171] T296.
Ms Gerhard was doing her best, but her evidence suffered in my view from the fact that she had never used the STRmix program, was not familiar with how to use it, and her experience to me seemed somewhat limited. During cross-examination Ms Gerhard gave the following evidence:[172]
[172] T295.
QAnd whilst you were working with the New South Wales police force, did you have any experience, practical experience, working with the STRmix program.
ANo, I did not.
QHave you had any practical training in the use of the STRmix program.
ANo, I have not.
QHave you used the STRmix program.
ANo, I have not.
QIs the extent of your training or knowledge of the STRmix program from published articles and workshops that you have attended.
AYes, it is.
Ms Gerhard was cross-examined further on her knowledge of STRmix:[173]
[173] T312.
QJust in relation to the use of STRmix, the particular calculations and the likelihood ratios that have been performed using the STRmix software in this case, they haven’t been regenerated by yourself or anyone else have they.
ANo, they have not.
QDo you have the STRmix software available to you.
AI do not.
QDo you understand how to use the STRmix software if you were called upon to use it.
ANo, I do not.
Acceptance of Dr Pinyon’s Evidence
Where Dr Pinyon’s evidence was in conflict with Ms Gerhard’s evidence I prefer Dr Pinyon’s evidence. She gave her evidence in a clear concise way. She has considerable professional expertise, and detailed experience in the development and testing of samples and the analysis of samples and the conclusions to be derived from such analysis. She is familiar with the STRmix program which assists in the analysis and results. As I have said, the evidence of Ms Gerhard suffered due to the fact that she had not used the program and the experience that she had with the program was limited to that gained from published articles and workshops. I refer to the conclusions reached by Dr Pinyon, when referring to the DNA evidence located on various items by police, and analysed and reported upon by Forensic Science SA.
Evidence re Glass Fragments
Ms Kahlee Redman, a forensic scientist with the Forensic Science Centre of South Australia, gave evidence relating to the glass fragments seized from the crime scenes at Mount Compass and Moana. Her formal qualifications consist of a Bachelor of Science degree with Honours from the University of Adelaide. Upon completing that degree she was and is employed by Forensic Science Centre in the Trace Evidence Group. She conducted a training program in the areas that she is authorised to report upon, one of which includes glass transference. She has reported on glass cases for 15 years and has given evidence in court on approximately six occasions.[174]
[174] T201-202.
Ms Kareana Uren was the scientist who performed the analysis of items in the present matter. She was not available to give evidence. Ms Redman is authorised to give evidence on behalf of the Forensic Science Centre on work performed by Ms Uren. A statement of Ms Uren[175] was tendered with a report annexed to the statement. Ms Redman gave evidence that having reviewed the information contained within the file, and the opinions formed, she agreed with Ms Uren’s work.[176] No objection was taken to that course.
[175] Exhibit P60 - Statement of Kareana Uren annexing report of 26 August 2014.
[176] T185-186.
Forensic Science Centre received for the purpose of a glass fragment analysis the following items:[177]
[177] Exhibit P60 - Statement of Kareana Uren annexing report of 26 August 2014 p 1.
Exhibit Number 14/A80718
14
Jumper
15
Gloves
19
Balaclava
29
Straps
41
Gloves
43
Shoes
44
Shoes
45
Gloves
48
Jumper
61
Jumper
62
Jacket
68
Right Shoe
69
Left Shoe
70
Cap
72
Head sock
Exhibit Number 14/A73809-2 Glass Fragment recovered from foot well of S512-AIJ
Exhibit Number 14/A74114-1 Glass Fragments (from Moana Pharmacy)
Exhibit Number 14/A72877-3 Glass Fragments (from Mt Compass Tavern)
The final two items on the table, being the glass fragments from Moana and the glass fragments from Mount Compass Tavern were control samples for comparison with any glass fragments found in other items submitted.[178]
[178] T186.
Ms Redman described the process performed by a scientist with respect to clothing once the items are received by the Forensic Science Centre. Loose debris is collected from the item of clothing by shaking down or scraping the surfaces of that clothing. The debris are then collected and examined using a microscope.[179]
[179] T186-187.
Ms Redman described the process of comparing the difference between one piece of glass and another. The glass is collected and measured using an oil immersion variable temperature method which provides a refractive index to five decimal places and then is compared to the refractive index of the control glass submitted for comparison.[180]
[180] T187.
There was no evidence that the control sample from the Mount Compass Tavern was a source for any of the glass found on any of the items submitted to the Forensic Science Centre.[181]
[181] T190-191.
In relation to the Moana Pharmacy offending two different types of glass were submitted, one from a broken window, and one from a broken glass shelf. They were split into two samples based on physical appearance and the refractive index was measured.[182] Glass sample 1.1 was defined as a clear laminated piece and glass sample 1.2 was defined as a clear plain piece.[183]
[182] T187-188.
[183] Exhibit P60 - Statement of Kareana Uren annexing report of 26 August 2014 p 2.
There were matches between fragments of glass located on items seized in the investigation and the control samples seized from the Moana Pharmacy. A statistical model was applied to the refractive index results to assist in the interpretation of the glass evidence. If ‘matching glass’ is located on a suspect’s clothing, there are two hypotheses to explain the presence of the matching glass. The first hypothesis, also referred to as the prosecution hypothesis, is that the suspect’s clothing was close to the control glass when it broke. The second hypothesis, also referred to as the defence hypothesis, is that the suspect’s clothing had never been near the control glass, and the glass located was from an unknown source which by chance had the same refractive index as the control glass.[184]
[184] Exhibit P60 - Statement of Kareana Uren annexing report of 26 August 2014 p 2
The probability of locating the evidence given each of the scenarios was calculated and the ratio of the two hypotheses is called the ‘likelihood ratio.’ The results were calculated with the assumption that the clothing items were not worn or used between the commission of the alleged offences(s) and the time of their collection. If they were worn or used during the timeframe, the results may not be valid.
Ms Redman was cross-examined as to the limitations of glass fragment analysis. She gave evidence as to the distance fragments may be ejected when a glass object breaks. She agreed that glass fragments can be transferred from one item to another. She agreed that some items retain fragments better than others, depending on their retention properties. Ms Redman was cross-examined in relation to secondary transfer and agreed that it is not possible to positively determine whether glass found on an object is from primary or secondary transfer. Secondary transfer is dependent upon how much glass is present and the nature of the item in question.[185] She agreed that the models used to ascertain the likelihood ratios are based on the assumption that the wearer of the clothing was standing close to the breaking of the glass and that the glass fragments will be discarded by items over time.
[185] T198-200.
Ms Redman said that on the basis of her calculations, there was strong support for the proposition that the right and left shoes,[186] the black ‘Sox’ cap[187] and the head sock[188] found inside a shopping bag within a cupboard in a shed at the Medindie house, were close to the glass at the Moana Pharmacy, as represented by sample 1.1, when it broke. She said that the likelihood ratio was calculated on the assumption that each of the items contained in the bag were worn at the same time.[189]
Accused’s Connection to Items Seized from Medindie
[186] Exhibit P15 – Pair of Nike Shoes seized from Medindie.
[187] Exhibit P16 – Baseball cap seized from Medindie.
[188] Exhibit P18 – Blue, red and white head sock seized from Medindie.
[189] T202.
I note the prosecution submission that the accused is connected to each of the items located at Medindie, as a result of DNA analysis comparison. There is very strong support for the proposition that the accused contributed to a mixed DNA profile of three contributors (right shoe) and four contributors (left shoe) of exhibit P15. There is extremely strong support for the proposition that the accused was a contributor to a mixed DNA profile of four contributors obtained from the baseball cap, and extremely strong support for the proposition that the accused contributed to a mixed DNA profile of three contributors obtained from the head sock.
There is support for the proposition that the gloves[190] seized from Mr Fraser’s house at Sheidow Park on 9 April 2014 were close to the glass at Moana Pharmacy when it broke, however control sample 1.2 cannot be excluded as a possible source for one of the glass fragments recovered from the gloves. The gloves were sampled for DNA producing a mixed DNA profile of three contributors with a likelihood ratio in favour of the accused being a contributor greater than 100 billion.
[190] Exhibit P33 – Pair of Gloves seized from Black Utility at Sheidow Park.
There is slight support that the balaclava,[191] seized from the carport at Linfield’s house on Cross Road, was close to the window glass at the Moana Pharmacy, when it broke. There was a mixed DNA profile of three contributors recovered from the balaclava, on this sample with a likelihood ratio of only 17 that the accused was a contributor and 11 billion that Fraser was a contributor. I accept the prosecution submission that Mr Fraser wore the balaclava during the Moana and Modbury offending.
[191] Exhibit P24 – Balaclava seized from Bucket 2, Cross Road.
There is some support for the contention that glass from the Moana Pharmacy was found on items of clothing owned and worn by the accused. The glass fragment analysis evidence whilst being of limited weight, is capable of constituting part of the circumstantial evidence which falls for consideration in determining whether the accused was the co-offender in relation to the Moana Pharmacy offending.
Telephone Evidence
Telephone Locations
Jonas O’Brien (Vodafone)
The evidence from Mr O’Brien, a technical analyst from Vodafone, was that there was a 95 per cent probability that a mobile telephone used in a particular area would connect with the identified cell or tower depicted in the coverage area map. Mr O’Brien gave evidence that obstructions such as buildings or bad weather are not factored into that calculation.[192] However once a mobile telephone had connected with a tower, the evidence enables him to say with certainty which particular tower that was.[193]
[192] T172.
[193] T172.
Location description telephone towers do not necessarily relate to the charged party number but can relate to the non-charged party number when calls are forwarded to voicemail.[194]
[194] T180.
I bear in mind Mr O’Brien was not able to say with precision, where a particular mobile telephone was located at the time the connection was made. Rather, he was only able to say that the telephone was somewhere in the area covered by the tower, or elsewhere and connected to an unexpected tower. Further, he was not able to say, of course, that the telephone was in a particular person’s possession.
I observe however, that that may be inferred having regard to location, pattern or content of communications, or other related evidence.
Tim Miller (Telstra)
Mr Miller, a system specialist in the law enforcement liaison section of Telstra, provided statements in relation to the investigation of this matter[195] and was called to give evidence.
[195] Exhibits P64 and P65.
Mr Miller provided the longitude and latitude for a number of base stations including those named Compass Heights, Modbury Hospital and Seaford Exchange.[196] Mr Miller was also asked to provide call charge records for a number of mobile telephone numbers within the Telstra network.[197]
[196] T207.
[197] T208.
Evidence of Arunta Calls and Listening Device Transcripts
I note the prosecution submission that I can draw the inference that the ‘mate’ referred to in the call is Mr Fraser. As I have said, it is an agreed fact that Mr Fraser was one of the men involved in this offending. It is also agreed that the accused was on parole at the time of the offending, and that the accused was arrested whilst on parole. There is no dispute that the accused and Mr Fraser were associated. I note the prosecution submission that the admission is directly referable to the offending.
The Black Holden Utility
It is an agreed fact that Mr Fraser owned a black Holden utility with registration S512 AIJ and VIN 6H8VSK80UXL453799.[223] It is the prosecution case that a black Holden utility was used in each of the offences. I note that it was also part of the prosecution case that Mr Donoghue had some interest in that utility. Service books for Mr Fraser’s utility were located under a couch at the accused’s home in Wynn Vale.[224] The VIN in that service book (6H8VSK80UXL453799) matches the VIN on the utility, as well as in the registration papers[225] located at Mr Donoghue’s home in Whyalla Norrie on 12 May 2014.
[223] Exhibit P1, Agreed Fact 2.
[224] Exhibit P35, Photobook ARG2, Photos 30–32.
[225] Exhibit P27 – Extract from the register of motor vehicles re black utility VIN 6H8VSK80UXL453799.
On 18 April 2014 a conversation between the accused and Ms Connor was recorded with a listening device. In that conversation the accused and Ms Connor discussed the search at their address. The accused asked:[226]
EYLES Did they look under the couch?
CONNOR I don’t know. I wasn’t there baby.
EYLES Yeah
[226] Exhibit MFIP53 – Transcript of P52 as Aide Memoire, Appendix A, p 16.
I note the prosecution submission that it can be inferred that the accused was aware of the vehicle manuals being under the couch, and was indicating his concern about them being found by police.
On 7 April 2014 Detective Grimwood attended Mr Fraser’s home address at 34 Rees Street, Sheidow Park. Detective Grimwood observed a black Holden utility with registration number S512 AIJ.[227] The utility had distinctive silver roll bars.[228] A Nokia mobile telephone located in a bedroom at Mr Fraser’s house was found to contain two photographs of a dark coloured utility with silver roll bars.
[227] Exhibit P30, Book of photographs Sheidow Park 7 April 2014, Photos 1–3.
[228] Exhibit P30, Book of photographs Sheidow Park 7 April 2014, Photos 2–3.
On 9 April 2014 police re-attended the Sheidow Park premises and arrested Mr Fraser. On that occasion, Detectives Moore and Whiting observed two vehicles, one a black Holden utility with the same registration S512 AIJ,[229] and the other a maroon Holden Statesman S159 ASE.[230] During the two days between the police attendances on 7 April and 9 April 2014, the silver roll bars on the black utility had been removed.[231]
[229] Exhibit P31, Book of photographs Sheidow Park 9 April 2014, Photos 29–32.
[230] T113 and Exhibit P31 - Book of photographs Sheidow Park 9 April 2014, Photos 27–28, 33.
[231] T117.
I note the prosecution submission that the roll bars were removed by Mr Fraser in order to change the appearance of the vehicle, in an attempt to differentiate it from the one observed by witnesses and shown on CCTV footage during the offending.
CCTV footage from Modbury Hospital showed a black utility with a black tarp. CCTV footage from the Moana Pharmacy showed a utility with a tow bar attached. When seen on 9 April 2014, the utility at Mr Fraser’s house did not have a black tarp or a towbar. These two items were not featured on the vehicle, However, a black tarp and a towbar were located by detectives at the premises.[232]
[232] Exhibit P30, Book of photographs Sheidow Park 7 April 2014, Photos 9–10.
During the search of Mr Fraser’s address police located a pair of black gloves in the utility.[233] The gloves were sampled for DNA and subsequent analysis resulted in a conclusion that there was a mixed DNA profile of three contributors, with extremely strong support for the proposition that the accused was a contributor to that profile.[234] I note the prosecution submission that that provided further circumstantial evidence of a connection between the accused and that vehicle.
[233] Exhibit P33 – Pair of gloves seized from black utility at Sheidow Park.
[234] Exhibit P69 – Forensic Science Addendum Report, p 4.
The number plates found on Mr Fraser’s utility, when police attended on 7 and 9 April 2014, were different to the number plates noted by the security guards at the Modbury offending, namely XTY 661.[235] Those number plates were registered as stolen. A vehicle bearing stolen registration plates XTY 661 was seen on Safe T-Cam images taken on 7 January 2014 at Globe Derby.[236] The vehicle in the Safe T-Cam images depicted is similar in appearance to the maroon Holden Statesman, registration S159 ASE, registered to Mr Fraser, and found in his possession when police attended to arrest him on 9 April 2014. The Statesman seen in the Safe-T-Cam images has markings on the body of the car, including particular paint peeling, and other unusual characteristics that are similar in appearance to the Statesman found at Fraser’s house.[237]
[235] T52.
[236] T162 and Exhibit P45 – Chart B extract of video footage and comparison photographs red statesman.
[237] Exhibit P45- Chart B extract of video footage and comparison photographs red statesman.
Bradley Donoghue - The Utility and ‘The Money’
It was the prosecution case, as I have said, that the accused and Damien Fraser were the two men who committed each of the offences charged. However, it is also part of the prosecution case, that the two men were assisted by others, including Ms Phillips, Ms Slattery, Ms Connor and Mr Donoghue, to varying degrees.
Mr Donoghue’s involvement was said by the prosecutor to have included some form of ownership or responsibility for the black Holden utility which included the possession of registration papers for the vehicle.[238] During an Arunta call between the accused and Mr Donoghue, at 6.32 pm on 9 April 2014 the accused said:[239]
KE Mate ... you should be able to get your uterus back.
[238] T115.
[239] Exhibit P48 – Transcript of Arunta calls involving Mr Eyles 9 April 2014 until 12 June 2014, p 3.
I note the prosecution submission that the term ‘uterus’ was a coded reference to the black utility seized by police when they attended at Mr Fraser’s address that day.
On 12 April 2014, at 10.57am the accused made an Arunta call to one Dominique Milne, in which the accused referred to a black ute being taken in the context of a comment that “my friend’s house down at Mount Compass got raided.” The following conversation took place:[240]
[240] Exhibit P48 – Transcript of Arunta calls involving Mr Eyles 9 April 2014 until 12 June 2014, p 8.
KE Heaps of shit's hit the fan now.
DM What?
KE You haven't heard what's happened?
DM No.
KE Watch the news.
DM I don't have TV.
KE It's hard to tell you.
DM Alright.
KE My mate's house got raided eh.
DM … inaudible ...
KE And eh the black ute and that got taken.
DM Are you serious?
KE You know what I'm talking about?
DM Yeah.
KE What I told you.
DM Pardon?
KE What I told you.
DM Yeah.
KE Alright.
DM That's got nothing to do with you though.
KE My friend's house down at Mount Compass got raided.
DM Yep.
KE Yeah, nothing to do with me but.
On the prosecution case Mr Donoghue also had some involvement in the handling and distribution of money obtained in the offending.
In an Arunta call at 9.17 pm on 2 May 2014 the accused and Ms Connor discussed ‘Brad’ and, it was submitted, the money which was the proceeds of the offending:[241]
[241] Exhibit P48.
KEI'm not been fuckin bossy. I just fuckin asked what was going on. I'm not the one fuckin saying shit and then not fuckin remembering what you said. What the fuck. Fuckin chill or something on the phone and cut down to three minutes I fuckin won’t ring you back after that. Alright. What Brad gave you fuckin make sure it's still there when I come home.
RC What?
KE All of it.
RC What?
KEI said what Brad gave you make sure it's all still there when I come home. I mean all of it.
RC What did you say?
KEI've got three minutes left on the fuckin phone alright. There's a fuckin money I've got left. I won't ring you again. And I said that shit that fuckin Brad gave you make sure it's still there when I get out, all of it.
RC …
KE What?
RC You're fuckin mumbling.
KE You're a bit …
RC You're fuckin mumbling Kevin.
KE You …
RC What do you want me to save for you here?
KE That shit that Brad left ... (inaudible)
RC Well whatever …
KE You been using it.
RC Fuckin hell.
KE You been using it.
RC No.
KE Hmm.
RCI fuckin done what you said dickhead. You're a fuckin ungrateful fuckin cunt Kevin.
The issue of ‘the money’ was raised again by the accused in a conversation with Ms Connor in the listening device on 18 April 2014. The accused and Connor were discussing the search of their house, and the accused asked: “Did they go through the drawers and that in the bedroom?” and went on to say:[242]
EYLES What are you doing with the money?
CONNOR What do you mean what am I doing with the money? Fucking paying bills.
EYLES Try and fuck down cunt, I’ll fucken ___________
CONNOR ___________ I’m really angry.
[242] Exhibit MFIP53.
I note the prosecution submissions that the accused was referring to ‘the money’ in the context of discussing the search, and was referring to money obtained by him in the offending.
The accused engaged in further conversation on 19 April 2014 when the money was discussed again with reference to Brad (Donoghue) and Data (Damien Fraser):[243]
[243] Exhibit MFIP53.
CONNOR Oh yeah and ermmmm Brad sent off the money to Data anyway.
EYLES Yep.
CONNOR You know what I mean; you probably won’t get it til next week babe.
EYLES __________________ send me money ______________.
CONNOR Yeah I did.
EYLES Yeah.
CONNORAnd he is like oh for fuck sake, fucken hell, I said, he goes I sent it express post I go I don’t even know why you bother to send it in express post, he goes I just do it for the simple fact so I know when I get their fucken mail that I fucken tried to get it there as soon as possible.
EYLES ________ I don’t know he might have sent me one as well.
CONNOR Yeah I reckon he did.
EYLES (Conversation with child).
CONNOR Don’t you think that if they’re investigating they will look at that shit?
EYLES What shit?
CONNOR They will look at who?
EYLES Sent money.
CONNOR Yeah.
EYLESIt doesn’t matter who sent money. You can get money from anywhere, it’s not up to them.
CONNORNo but they will compare it and say who’s this cunt and then try and fucken _____________ maybe.
EYLES Yeah.
CONNOR You know.
EYLES _________________.
CONNOR I hope not.
EYLES He sent me and Data money when we we’re together up Port Augusta way?
CONNOR Yeah well that, that’s when youse got in trouble wasn’t it?
EYLES Yeah so it doesn’t matter, I was in gaol, I’m in gaol and I didn’t get mail __________ Data from the same fella.
I note the prosecution submissions that the accused and Ms Connor were discussing the expectation that ‘Brad’ (Donoghue) would send the money that was stolen by them in the robberies, and their concern about the police investigating the money trail. On the prosecution case that conversation also confirms it goes to Mr Fraser’s (Data) involvement, and connects the accused to Mr Fraser and Mr Donoghue.
Cross-admissibility
Section 278 CLCA applies, and provides:
1.Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
2.Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
There was no application for severance.
Counsel for the DPP contended that the evidence led in relation to each count was admissible in proof of the other, and that by looking at the evidence across the three incidents it was open to the Court to conclude beyond reasonable doubt, that the same people committed each offence, and that any evidence linking the accused with any particular count would then be evidence relevant to all counts.
The prosecution referred to the remarks of Duggan J in Hirst v Police[244] where he cited Sutton v The Queen[245] to the effect that once the jury concluded that on each occasion the assailant was the same person:
… evidence that the applicant was the assailant in the case of any one of the assaults was relevant and possessed probative force in relation to the question whether the applicant was the assailant in relation to the other occurrences.[246]
[244] Hirst v Police [2006] SASC 244.
[245] Sutton v The Queen (1984) 152 CLR 528.
[246] Hirst v Police [2006] SASC 244 at [69].
The prosecution submitted that the evidence in relation to the seven counts should be looked at as a whole, following the process of reasoning the jury was invited to employ in R v Armstrong, subsequently endorsed upon appeal.[247]
[247] R v Armstrong (1990) 54 SASR 207.
The prosecution relied on a number of features in seeking to establish that there was circumstantial evidence which established beyond reasonable doubt that not only was Mr Fraser involved in all three sets of offending, which is common ground, but so was the accused. The prosecution’s submission was that all three incidents were committed in similar circumstances. The robberies were committed over a period of 11 days, focusing on ATMs and a parking machine. The offending involved two people; with their faces obscured; was committed in the early hours of the morning; equipment such as jemmy bars, chains and snap straps was used; and involved a black (or dark) Holden utility that is connected both to the accused and Fraser. It is agreed Damien Fraser was one of those offenders. In relation to the offences in Mount Compass and Moana, the way in which the utility was used to pull the ATMs from their moorings with chains and straps is also of similarity. It is highly improbable, in light of the items of clothing and telephone evidence that connects the accused to each of the incidents, that it was anyone but the accused who was the second offender. I accept that submission.
Further, the prosecution submitted that there were features of the offending common to certain of the offences as set out below:
Similarities Between the Modbury Hospital Offending and the Mount Compass Offending
·The black Holden utility.
·The clothing consisting of a black ‘Sox’ brand baseball cap, a blue, red and white head sock, a grey hooded jumper, black shoes and black gloves.
·The use of jemmy bars in the offending.
·Male profile description.
·Two persons committed the offences, their faces were obscured, the telephone tower evidence places the accused in the vicinity, and telephone communications between the accused and Fraser took place in the hours before and after the offending.
Similarities Between the Mount Compass Offending and the Moana Offending
·The item targeted was an ATM.
·The black Holden utility.
·The tools used in the commission of the offending consisting of chains, snap straps, shackles and jemmy bars.
·Male profile description.
·Two persons committed the offences, their faces were obscured, the telephone tower evidence places the accused in the vicinity, and telephone communications between the accused and Fraser took place in the hours before and after the offending.
·The method in which the ATM was ripped from its position which involved the use of the utility to pull the ATM from its mounting.
Similarities Between the Modbury Hospital Offending and the Moana Offending
·The black Holden utility.
·The clothing consisting of a black ‘Sox’ brand baseball cap, a blue, red and white head sock, a grey hooded jumper, black shoes and black gloves.
·The use of jemmy bars in the offending.
·Male profile description.
·Two persons committed the offences, their faces were obscured, telephone tower evidence places the accused in the vicinity and telephone communication between the accused and Fraser took place in the hours before and after the offending.
Similarities Between all Incidents
·The involvement of two persons.
·Faces obscured.
·Black Holden utility.
·Male profile description.
·Jemmy bars.
·Telephone tower evidence that places the accused in the vicinity.
·Telephone communications between the accused and Fraser made in the hours before and after the commission of the offences.
·Telephone communications made between the accused and Bradley Donoghue in the hours before and after the commission of the offences.
·Each offence occurred in the early hours of the morning, Modbury at 12.30am, Mount Compass at 2.45am and Moana at 3.00am.
The prosecution submitted that it was highly improbable, in light of the items of clothing and the telephone evidence connecting the accused to each of the incidents, that it was anyone but the accused who was the second offender.
Rebutting Innocent Association
Counsel for the DPP made submissions seeking to rebut any defence of innocent association with the charged offences. He argued that three robberies had been committed in three quite distinct locations, with telephone data placing the accused in close proximity to each location during the time in which the respective offences were committed. Two of the locations were a considerable distance from the accused’s home. It was highly improbable that the accused was present in such locations, through innocent association or coincidence.[248]
[248] See R v Armstrong (1990) 54 SASR 207.
Cross-admissibility is not limited to ‘similar fact’ evidence.[249] Evidence relating to one count is cross-admissible in respect of other counts, on the basis that the evidence on each count is directly relevant to the issues in respect of the other counts. It is logically probative of the facts in issue on the other count or counts. Further, such evidence is relevant if it has the potential to rebut a defence that might be open on other counts. Here, it was said, the evidence is relevant to rebut any defence of innocent association with the alleged crimes.
[249] R v Mayfield (1995) 63 SASR 576.
In Sutton v The Queen the High Court said it is a matter for the trier of fact to:[250]
… determine admissibility by deciding whether the evidence was, if accepted, such that a reasonable jury ought to conclude that the similarity between the descriptions of the various offences was beyond mere coincidence and that there was no reasonable explanation of that similarity consistent with the innocence of the accused.
[250] Sutton v The Queen (1984) 152 CLR 528 p 567, per Dawson J.
It is the prosecution case that the accused was located in close proximity to all three incidents because he was the second person committing the offences alongside his accomplice Mr Fraser.[251]
[251] Prosecution outline of argument p 45.
The following submissions were made by the prosecutor to rebut any defence of innocent association with the alleged crimes:[252]
·The evidence of the accused’s connection to the crime scenes through cell tower data (and support for him being in those locations at least as far as Mount Compass is concerned through admissions made during Arunta calls and uncovered through the use of listening devices) is cross-admissible to rebut any suggestion that evidence relating to one incident stands alone by innocent coincidence. For example, it is beyond the realms of coincidence that the accused’s telephones (Eyles Service 1 and 2) were innocently being used in the Wynn Vale (Modbury) area at the time of the offending at the Modbury Hospital and then were used, on two separate occasions, to be in the immediate vicinity of the Mount Compass and Moana offending at relevant times. That being so, the evidence of the telephone cell tower data at one location is capable of rebutting any suggestion of innocent association between the tower data relating to the accused’s telephone at the subsequent locations and vice versa.
·It is of particular significance that it was not just one service attributed to the accused that was involved in the incidents, but both Eyles Service 1 and Eyles Service 2. Service 1 was used in relation to Modbury Hospital and Mount Compass, whilst Service 2 was used at Moana. It would be a remarkable coincidence, if not one, but both of the accused’s services had been borrowed, stolen and/or used by someone else and subsequently used in the offending. It is the Crown case that when the telephone tower evidence is considered as a whole, any suggestion of innocent association with the alleged crimes consequently becomes entirely improbable.
·The evidence of the clothes alleged to have been worn is cross-admissible between the Modbury and Moana offending. CCTV footage of the two robberies shows two people committing each of the offences. It is agreed that Damien Fraser was one of those two people. The evidence (association through DNA and items left at Steven Lindfield’s house by Fraser) suggests that Fraser was the man wearing the green balaclava in both sets of offending and the ‘Support Hells End Australia’ windcheater[253] in the Moana offending.
·CCTV footage from both locations does not provide any clear view of the face of the offenders. Nonetheless, there is nothing to suggest any inconsistency with respect to their appearance when compared between each piece of footage. The footage depicts a second man who, on both occasions, is wearing a black baseball cap with a white logo and a predominantly blue face covering. Those items are connected to the accused through the presence of his DNA on both items, as well as, by his own admission, through telephone intercepts and Arunta calls requesting that they are removed from his house. It is the Crown case that the accused was the second man at each of these offences.
·The relevance of this evidence is to prove that it was the same person with Damien Fraser during both offences. The relevance, using this reasoning, does not rely on an underlying unity. It is relevant by asking how probable it is that two separate people wore the same or similar baseball cap and face covering at two separate robberies.
·Further, telephones attributed to the accused were in contact with Damien Fraser (and speaking with Fraser’s associates including Bradley Donoghue) proximate to the time and location of the offending. The very fact that one of the services attributed to the accused was telephoning Fraser on these occasions is evidence that rebuts an innocent association between the second service attributed to the accused, but also between that service and the offending, and vice versa.
·It is clear that it is the same two offenders that committed each of the offences. The accused and Fraser were associates. The evidence on one count against the accused is relevant to rebut any innocent association with Damien Fraser in relation to a separate count.
[252] Prosecution outline of argument pp 46-47.
[253] Exhibit P22.
It is the prosecution case that the combined force of evidence, if accepted, would allow the conclusion to be drawn, beyond reasonable doubt, that the accused was one of the two offenders in each of the three incidents. Again I accept that submission.
Defence Submissions on Cross-Admissibility
It is the defence submission that the evidence is not cross-admissible on all, or any combination of the counts against the defendant.[254]
[254] Defendant’s outline of submissions p 18.
Counsel for the accused submitted that there were significant matters that militated against a conclusion, beyond reasonable doubt, that the same person assisted Fraser on each occasion, namely:
·As is properly conceded by the prosecution, much of the evidence in this matter relates to Fraser and this gives a certain unifying nature to the evidence. It is submitted that the case for cross-admissibility would have been much stronger against Fraser than it is against the defendant; and
·On the prosecution case, there were, and remain, other persons of interest in relation to this matter.
·Paine’s DNA was found on a snap strap that the prosecution say was used at the Mount Compass offending. Paine is an associate of Fraser and was located at a house searched by police on 9 April 2014 as part of the investigation into Fraser; and
·Donoghue was found with the registration papers for the black ute in his possession. They were in another person’s name. He was in telephone contact with Fraser and is an associate of his; and
·Jason Lindfield was a childhood friend of Fraser. There was contact between Fraser and Stephen Lindfield shortly after the offending. A civilian witness at Mount Compass heard someone call out ‘Jason, Jason’. Items connected with the offending were located at the house of Stephen Lindfield, whose explanation regarding those items was inconsistent; and
·Although the prosecution allege that two people committed each offence, the evidence does not necessarily support this. A civilian witness heard an Australian female voice near the Mount Compass Tavern at the time of the offending. Leigh Slattery is a female associate of Fraser who resides in Mount Compass. If she – or some other female such as Connor or Phillips was at Mount Compass then that would indicate more than two people were involved.
·There is nothing in the eyewitness descriptions of the physical description of the offender who assisted Fraser at each location to point to the defendant other than a very general assessment of the offender being male. This would not exclude Lindfield, Donoghue or Paine.
·The target at Modbury, a parking ticket machine, was different to the other two locations and involved an angle grinder.
Taking all of the evidence into account, the defendant submits that it is not possible to conclude that any or all of the offences were committed by the same person assisting Fraser.
Counsel for the defendant submitted that the Court should not employ the reasoning of Deane J in Sutton[255] in considering the issue of cross-admissibility.
[255] Sutton v The Queen (1984) 152 CLR 528.
The Accused
As I have said, the accused did not give evidence. That was his absolute right. He is not to be criticised for exercising that right. I bear in mind that he had no onus to prove anything, and that there remained, at all times, an onus upon the prosecution to prove the charges against the accused, beyond reasonable doubt.
Findings
I find that the two men depicted in CCTV footage and said to be ‘scoping’ the parking ticket machine were in fact doing so. I am satisfied that they are the same men who attended in the early hours of the following morning and broke into that machine. I accept the defence submission that it is not possible to include beyond reasonable doubt that the baseball cap being worn by one of the men clearly had a ‘Sox’ logo, but it is not necessary for me to do so. The cap had what I accept to be writing, of a colour and size consistent with the baseball cap subsequently located at Ms Phillip’s house. I also accept that there was some exchange of clothing between the two men, between the ‘scoping’ and the break-in. Whilst that may have indeed resulted in the presence of some DNA jointly contributed by two men to the clothing that was so exchanged, I reject the submission made by counsel for the accused that concern about his DNA being present on clothing borrowed from the accused by the perpetrator, could account for the accused’s clearly expressed concern about police locating the nominated clothing items.
While it is a possibility that, as counsel for the accused submitted, the defendant lived in a part of Wynn Vale which was covered by the Modbury phone tower, and that phone usage by the defendant picked up by that tower was possibly conducted while the defendant was at home, it does not mean I cannot use the phone tower evidence as part of the circumstantial case against the accused. Similarly, while it was submitted on behalf of the accused that a phone call from Ms Connor to the defendant’s message bank at 9.51pm on the night before the Modbury Hospital offending connected to the St Agnes tower, close to the Modbury Hospital, may have been because the accused was in that area for some other purpose, that evidence is capable of being considered as part of the overall circumstantial case against the accused. I bear in mind, in saying that, that the accused bears no onus of disproving any item of evidence, circumstantial or otherwise, nor any onus to account for his whereabouts. At all times the prosecution has the onus of establishing the guilt of the accused beyond reasonable doubt.
The defence submitted that it cannot be excluded as a reasonable hypothesis that Mr Donoghue acted with Mr Fraser in one, some, or all of the offending. The evidence established that his telephone was in Whyalla at the time of the offending. As counsel for the accused submitted, not all offenders are so helpful to police as to bring their phone with them whilst they commit serious offences. I am satisfied however that the accused, for reasons which emerge from my overall findings, did so. For example, the location evidence in relation to the whereabouts of his telephone before, during and after the Mt Compass offending, together with the admissions against interest contained in the recorded conversations regarding his telephones and what they would disclose about his whereabouts, lead to the irresistible conclusion that he was in Mt Compass at the time of that offending.
That, together with the fact that Ms Slattery lived on George Francis Drive, that a black ute was used in the robbery, that that ute was seen by the manager of the Mt Compass Tavern driving in the opposite direction along George Francis Drive shortly after the robbery, in the location I have already referred to, straps being found in Ms Slattery’s house and the admitted fact that Mr Fraser was the other man involved in that offending, lead to the irresistible conclusion, on all of the circumstantial evidence, that the accused was the other man involved in that offending.
The evidence of Ms Ryan as to hearing a voice calling out ‘Jason’ from the bushes opposite the tavern, and her evidence as to the path taken by the vehicle involved in the Mt Compass Tavern break-in, and all the competing evidence of Mr Ryan as to the path taken by that vehicle, does not cause me to have any doubt as to the participation of the accused in that offending. I say that, while bearing in mind the submissions put on his behalf, regarding the involvement of Mr Lindfield in storing equipment involved in the offending, and that Mr Lindfield’s son was named Jason. I also bear in mind the presence of DNA material consistent with that of Mr Paine, who was an associate of Mr Fraser, on the snatch straps found at Ms Slattery’s house.[256] It may be that Jason was present at or near the scene of the Mt Compass Tavern offending but that does not cause me to have any doubt about whether the accused was also a participant in that offending.
[256] Agreed fact Exhibit P72.
In relation to the Moana offending, I accept the defence submission that the CCTV footage is only of moderate resolution, and that the baseball cap and head sock seized by police at Ms Phillip’s house are consistent with the items being worn during that offending, but could not be said to be obviously identical. Whilst equipment used in the Moana Pharmacy offending was left at Mr Lindfield’s house, and I accept that there was more communication between Mr Lindfield and Mr Fraser than Mr Lindfield was prepared to acknowledge, on the whole of the evidence I reject the proposition that there is any hypothesis consistent with anything other than that the accused was involved in the Moana offending.
The glass fragment evidence for example, whilst subject to the limitations identified by counsel for the accused, constituted evidence in support of the proposition for the prosecution contention that the accused was one of the two participants in that offending.
As I have said, I reject the evidence of Ms Gerhard where it is in conflict with that of Dr Pinyon, and unreservedly accept the evidence of Dr Pinyon as to her findings and conclusions regarding her hypotheses as to the number of contributors, the use of STRmix and the presence of DNA material consistent with being contributed to by the accused, and by others.
I have come to the conclusion that the contents of the Arunta calls, and the recorded conversations, to which I have already referred, are strongly supportive of the inevitable finding that the accused was involved in each of the three sets of offending. I reject however, as a reasonable possibility, the defence contention that what was suggested to be denials of involvement by the accused, in the telephone call to Ms Milne on 12 April 2014, and in a telephone conversation on 12 June 2014, were genuine. The accused was clearly aware of the possibility that calls and conversations may be intercepted, and sought ineffectively to speak in code about those matters which inculpate him. I reject the proposition that self-serving denials of involvement impact upon the conclusion, which, as I have said, was in my view inevitable.
I take into account the submissions made by defence counsel, as to the possibility of other persons, also associates of Mr Fraser, being involved in the offending. Indeed, that may be so and other persons may have been involved, for example as lookouts, or taking some other subsidiary role. However, none of that causes me to have any doubt as to the involvement of the accused as the principal co-offender, together with Mr Fraser, in all of the offending.
I accept the submissions made by counsel for the Director of Public Prosecutions as to cross-admissibility and the use that can be made of the evidence as to the accused’s involvement in the offending, the pattern of that offending, and the telephone tower location evidence, in particular that placing the accused’s telephone at Mt Compass and at Moana.
I accept the prosecution submissions to which I have referred, in the discussion of the evidence, and the inferences to be drawn from that evidence.
Conclusion
The reasoning in a circumstantial case, such as the present case can be explained with reference to the judgment by Napier CJ in Jones v Harris:[257]
… It seems to me that the administration of the criminal law would be impossible, if it were not open to the prosecution to prove objective facts, leaving it to the jury to say whether they are prepared to draw the inference that connects the facts with the accused and makes them relevant to the charge. I refer to the illustration that I gave during the argument, of an accused person who is seen to pass the spot where — as it appears from other evidence — stolen property has been thrown over the fence. It seems to me that, in these circumstances, the prosecution must be allowed to prove the fact, with a view to asking the jury to infer that the prisoner had been in possession of the property. If the evidence stopped there it might be colourless; but if the instances are multiplied — if the same sort of thing seems to happen wherever the man goes — then, sooner or later, the point is reached at which reason rejects the hypothesis of mere coincidence, and the inference of a causal connection becomes irresistible.[258]
[257] Jones v Harris [1946] SASR 98.
[258] Jones v Harris [1946] SASR 98 p 104.
I am satisfied beyond reasonable doubt that the accused was using Eyles Service 1, and Eyles Service 2 respectively, at the relevant times of the three sets of offending. In doing so, I have considered his counsel’s submissions as to other possibilities. I reject them. That of course does not strengthen the prosecution case on this issue. It is for the prosecution, as I have said, to prove its case beyond reasonable doubt. In coming to that view I take into account the use made of the phones, the numbers called, the messages where relevant and the subsequently recorded conversations regarding the telephones. I take into account the matters I have referred to in outlining the evidence.
In relation to the Mount Compass Tavern offending, I am satisfied beyond reasonable doubt that the accused committed that offending in company with Mr Fraser. I have come to that view having regard to the accused’s connection with Mr Fraser, my satisfaction that he was present in Mount Compass at the relevant times, his connection and communications with Ms Slattery, his call to the panel beater which ties in with the damage to the utility in the break-in, his conversations with Ms Connor regarding deleting text messages at 3.00am, when he was “doing that thing”, his recorded conversations regarding concerns about Ms Connor turning the telephone on as that would put him “into Mount Compass”, and the whole of the evidence regarding the Mount Compass offending. In arriving at that view I have carefully considered the defence submissions.
I am satisfied beyond reasonable doubt that the accused committed the Moana Pharmacy offending. In doing so I have had regard to the defence submissions. I have come to that view on the whole of the evidence related to that offending, including the telephone location evidence, the use of telephones, the recorded conversations including that conversation to the disposition of money, the CCTV footage, the glass fragments evidence, the DNA evidence including that relating to the distinctive head sock shown in the footage, and the head sock and other items of clothing secreted at Ms Phillip’s house at the request of the accused to various people, as recorded in conversations.
I am also satisfied beyond reasonable doubt that the accused committed the Modbury Hospital offending. I have taken into account the defence submissions. Again there is some use to be made of the telephone location evidence, the telephone use pattern, the CCTV footage which is consistent with the accused being present, including the somewhat distinctive cap, and the other evidence to which I have referred. I am of the view that the evidence of a pattern of offending, and the factors identified by counsel for the prosecution as cross-admissible in respect of this offending, my findings as to the guilt of the accused in respect of the Mount Compass Tavern and Moana Pharmacy offending, fortify my finding of guilt in respect of the Modbury Hospital offending.
Verdicts
I am satisfied beyond reasonable doubt that the accused committed each of the offences with which he is charged. There will be verdicts as follows:
1.In respect of the Modbury Hospital offending Count 1 – Property Damage – Guilty.
2.Count 2 – Theft – Guilty.
3.In respect of the Mount Compass Tavern offending Count 3 – Aggravated Serious Criminal Trespass in a Non-residential Building – Guilty.
4.Count 4 – Theft – Guilty.
5.Count 5 – Theft – Guilty.
6.In respect of the Moana Pharmacy offending Count 6 – Aggravated Serious Criminal Trespass in a Non-residential Building – Guilty.
7.Count 7 – Theft – Guilty.
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