R v Faumuina - [2024] NSWDC 189

District Court

New South Wales

Medium Neutral Citation: R v Faumuina [2024] NSWDC 189
Hearing dates: 8 May 2024; 9 May 2024; 17 May 2024
Date of orders: 24 May 2024
Decision date: 24 May 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
Verdicts:
Counts 1 to 6 – Not Guilty
Count 7 – Directed verdict of Not Guilty

Catchwords:
CRIME – Judge-alone trial – Violent offences – Special aggravated break enter and commit serious indictable offence – Aggravated break enter and commit serious indictable offence – Detain with intent to obtain advantage – Robbery in company – Take and drive conveyance – Joint criminal enterprise – Inferences – Links in chain

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act
Evidence Act 1995
Firearms Act 1996

Cases Cited:
D’Agostino v Regina [2019] NSWCCA 259
Fleming v the Queen (1998) 197 CLR 250
Mahmood v Western Australia (2008) 232 CLR 397
R v Davidson (2009) 75 NSWLR 150
Shepherd v The Queen (1990) 170 CLR 573

Category: Principal judgment
Parties: Rex (Crown)
Tato Harmony Faumuina (Accused)
Representation:
Counsel:
Mr J Staples, Solicitor Advocate (Crown)
Mr B Eurell (Accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Oxford Lawyers (Accused)

File Number(s): 2022/196123

JUDGMENT

Overview

On the evening of 23 May 2022, there was somewhat of a crime spree to the south of Sydney. A number of men broke into a house at Shell Cove, south of Wollongong and stole some car keys and thereafter used those keys to steal a Ford Ranger utility belonging to the owner of the house.
The Ford Ranger was then driven north to an address in Cronulla where another break and enter took place, this time it was violent and involved the use of a pistol, various items were stolen, a resident of the house was detained and the keys of two luxury vehicles stolen and those cars were stolen from the residence.
The Ford Ranger was left outside the premises at Cronulla.
Three men were subsequently arrested in relation to these events. One of them is the accused, who has pleaded not guilty to seven charges arising out of what happened that night.
The other two are Isiah Lewis and Hunter Papa, each of whom has pleaded guilty to and have been sentenced for a series of charges arising out of the same events.

Judge-alone trial

The accused filed an election for trial by judge-alone pursuant to s 132 of the Criminal Procedure Act 1986. The Crown consented to that election. The parties told me an order had been made on an earlier occasion. As it was unclear from the file whether any order had been properly recorded prior to the matter coming before me and out of an abundance of caution, having satisfied myself that the accused had received legal advice in respect of the election to proceed without a jury, I ordered that the trial proceed by judge-alone when the matter came before me on 8 May 2024.
The trial proceeded before me on 8 and 9 May 2024, largely on a set of agreed facts, some evidence from the officer in charge of the investigation, through whom a series of photographs and other material, including “Cellebrite” material from a series of mobile phones which was tendered. There was also some limited evidence from the co-offenders Mr Lewis and Mr Papa.
Obviously enough, the agreed facts were not the subject of dispute, and I think it is fair to say that the primary evidence tendered by the Crown through the officer in charge was also not disputed.

The issue for determination

I will shortly set out the charges against the accused, the agreed facts and the agreed elements of the charges. I will then briefly summarise the other evidence in the case and explain the limited nature of admissible evidence given by Mr Papa and Mr Lewis. Before doing that, I should record that, with the exception of Count 7, it was common ground between the Crown and the accused that I should find, and I do find, leaving to one side the involvement of the accused and a specific issue relevant to Count 7, that I am satisfied beyond reasonable doubt that the various crimes, the subject of the charges, were committed by a group acting pursuant to a joint criminal enterprise. The group included Mr Lewis, Mr Papa, and at least one other individual.
The only issue left for determination, in the way the case was run and upon those findings, is whether the Crown has satisfied me beyond reasonable doubt that the accused was a party to that joint criminal enterprise.
There is no direct evidence of that fact, the case is inferential or circumstantial based on a series of primary facts, some of which are themselves sought to be proved inferentially, most of which are accepted but a number of which are the subject of serious contest. It is common ground between the parties that two of those circumstances are “essential intermediate facts” and thus need to be proved beyond reasonable doubt. There is an issue as to whether a third circumstance relied upon by the Crown is also an intermediate fact, requiring it also to be proved beyond reasonable doubt.
Leaving to one side Count 7 which I will deal with separately, the Crown contends that upon most or all of those circumstances being proved, I ought be satisfied beyond reasonable doubt that the accused was one of the men involved in the two events, and if he was, I ought be satisfied beyond reasonable doubt that he is guilty of the charges. On the other hand, the accused contends that I ought not be satisfied of the accused’s involvement and, therefore, that I must acquit him of all the charges. More specifically, the accused submits I should not be satisfied beyond reasonable doubt of two of the three intermediate facts they say are each essential to the Crown case. If the accused is right about that submission in relation to either of those facts, it is common ground that I must acquit the accused on all counts.

The charges

The accused is charged with the following offences on an indictment:

Count on Indictment

Offence

1

On 23 May 2022, in Shell Cove in the State of New South Wales, did break and enter the dwelling house of TL situate at [identifiers removed] and then in the said dwelling house did commit a serious indictable offence, namely, larceny, in circumstances of aggravation, namely, he knew that there was a person present within the said dwelling house.

s 112(2) Crimes Act 1900

2

On 23 May 2022, in Shell Cove in the State of New South Wales, did drive a conveyance, namely, Ford Ranger Utility, NSW Registration [identifiers removed], knowing that the said conveyance was taken without the consent of TL the person in lawful possession of the said conveyance.

s 154A(1)(b) Crimes Act 1900

3

On 23 May 2022, in Cronulla in the State of New South Wales, did break and enter the dwelling house of CK situate at [identifiers removed], and then in the said dwelling house did commit a serious indictable offence, namely, robbery in company in circumstances of special aggravation, namely, the said Tato Harmony Faumuina was then armed with a dangerous weapon, namely, a pistol.

s 112(3) Crimes Act 1900

4

On 23 May 2022, in Cronulla in the State of New South Wales, did, without consent, detain CK with the intention of obtaining an advantage, namely, gain access to main house, while the said Tato Harmony FAUMUINA was in the company of Isiah LEWIS and Hunter PAPA.

s 86(2)(a) Crimes Act 1900

5

On 23 May 2022, in Cronulla in the State of New South Wales, did break and enter the dwelling house of KK situate at [identifiers removed], and then in the said dwelling house did commit a serious indictable offence, namely, aggravated robbery in circumstances of special aggravation, namely, the said Tato Harmony FAUMUINA armed with a dangerous weapon, namely, a pistol.

s 112(3) Crimes Act 1900

6

On 23 May 2022, in Cronulla in the State of New South Wales, did rob MK of certain property, namely, a mobile phone the property of MK whilst being in company with Isiah LEWIS and Hunter PAPA.

s 97(1) Crimes Act 1900

7

On 23 May 2022, in Cronulla in the State of New South Wales, did without the consent of KK the owner of a conveyance, namely, Porsche Cayenne, NSW Registration [identifiers removed], take and drive the said conveyance.

s 154(1)(a) Crimes Act 1900

The agreed facts

Pursuant to section 191 of the Evidence Act 1995 (NSW), the Accused and the Crown agreed upon the facts below. I have taken care to remove any information that may identify the victims and other people involved for privacy reasons.

Shell Cove

On Saturday 22 May 2022, TL was home in Shell Cove, with her three children. At about 9.30pm, she was the last person awake in the home and cleaned up and locked the doors before going to bed. At this time there were five vehicles parked out the front of the home including her husband’s Ford Ranger and her Mercedes AMG.
At about 5.00am, TL’s son went to work. Shortly after this, the police knocked on the front door and asked TL if she knew why her husband’s Ford Ranger was in Cronulla. TL walked out the front and noticed that the vehicle was gone from where it had been parked.
TL then woke her other two children who came downstairs and noticed that the sliding door to the living room was wide open and that the lock on the sliding door was damaged. Upon further inspection, TL noticed that the TV unit drawers were open and that all the car keys were gone from a hook in the pantry. A box of yellow rubber gloves was also missing from the entry to the house.
CCTV footage from the house directly across the road captures the front of TL’s house. The CCTV footage captures two male persons in the front yard of this property. The offenders are seen walking around the vehicles in the driveway area. Two male persons are seen entering the Ford Ranger which is parked on the roadway in the front of the residence.

CCTV footage 23 May 2022

At 2.59am, a white Hyundai i40 entered a 7-Eleven service station on the Princes Highway at Albion Park Rail. The CCTV footage at the service station captures a male exit the vehicle and put fuel in the vehicle. He is seen wearing a white cap, black hoodie with the hood pulled over his head with a surgical face mask on, dark track pants with black/white trainers with white soles. The male leaves without paying for the fuel.
At 3.47.37, CCTV footage at 7-Eleven at 693 Old Princes Highway, Sutherland, captures a white vehicle driving on the road past the service station, which is closely followed by a white utility. The vehicle registration plates cannot be made out on the CCTV footage.
At 3.54.42, the same CCTV footage at 7-Eleven at Southerland, captures a white utility return from the direction that the previous white utility was seen driving minutes earlier and pulling into the service station. The vehicle is partially out of the camera view whilst a person obtains fuel the registration of the vehicle cannot be made out on the CCTV footage. At 3.58.20, the male enters the store and is more clearly captured on the internal store camera. The male is wearing a white cap, black hoodie with the hood pulled over his head with a surgical face mask on, dark track pants with black/white trainers with white soles. At 3.59.30, the male runs back to the vehicle and leaves the petrol station.
At 4.14am, a white utility is captured on CCTV footage travelling southeast past Cronulla RSL. The registration of the vehicle cannot be made out on the CCTV footage.

Recovery of white Ford Ranger

At about 5.00am, police located the white Ford Ranger parked on the road outside a residence in Cronulla. Police observed a white iPhone on the front passenger seat of the vehicle.
On 26 May 2022, TL met with police to inspect the Ford Rangers that had been recovered. TL advised police that a white phone, credit card, bumbag and black t-shirt which were located in the vehicle did not belong to her family.

Cronulla allegations

KK and MK reside with their adult son CK at the above-mentioned residence in Cronulla. KK and MK’s bedroom is on the ground floor towards the back of the property. CK’s bedroom is at the front of the property attached to the garage which can only be accessed by a single door which runs off of the front garden. The property has a 5-foot stone fence which stretches the entire front of the property. They were two dogs at the house.
At about 10.30pm Sunday 22 May 2022, KK and MK went to bed in their bedroom. Before going to bed, KK locked the front door. At the same time, CK went to bed in the grant flat but did not lock the door. The alarm on the property was not switched on.
KK and MK own two vehicles which were parked on the street outside their house. MK drove a Mercedes 450 AMG. KK drove a Porsche Cayenne.
At about 4.15am on 23 May 2022, CK was awoken to the sound of the granny flat door opening. He could see two males poke their heads into the flat. The first male was wearing a white ski mask or white face covering with a dark hood over his head with dark pants. The second male was wearing a black balaclava with a black hood over his head and dark pants.
The two males ran out of the grant flat and onto the street front. CK followed them onto the street where he could see both males who were with another two males. The other two males were wearing black balaclavas, black hooded jumpers with the hood on and dark pants. CK estimated all four males to be about 6-foot tall, large build and 110kg each. All males appeared to be of Pacific Islander decent and they were wearing gloves.
Three of the males, including the one with the white face covering, ran towards CK who ran into the grant flat and tried to shut the door. The three males pushed the door in and as they entered one of them grabbed CK by the right shoulder of his shirt and hit him to the right temple. The force of the hit caused CK to fall to the ground and he felt immediate pain. The same male dragged CK out of the granny flat onto the front step which leads to the flat. The male stood over him and said “give me keys. Where’s the money?” The males had a Pacific Island accent. CK pointed to the keys next to his bed. One of the males grabbed the keys and they again asked, “where’s the money?” CK replied that he did not have any cash.
The male who initially pushed CK, then kicked him in the right arm and chest are and launched him backwards into a bush. The same male grabbed CK and dragged him along the grass to the main house. One of the males produced a black hand-gun and held it to the back of CK’s head and said, “open the door”. CK told them, “the keys don’t work for this door”. They dragged CK towards the main door of the house, and he started yelling, “Dad, dad”.
KK and MK were awoken as [he] heard loud thumping and yelling at the front door of the house. KK ran towards the front door and looked through the front door and saw a person wearing a black balaclava and black hooded jumper. This person was holding a black pistol in his right hand and yelled aggressively, “open the front door, I have your son”. KK could see a second person dressed in a dark-coloured hooded jumper and had a light-coloured balaclava covering his face. This person had CK in a head lock meaning that his head wedged under the person’s arm and they were holding him around the neck.
KK opened the door and both males and CK moved inside the house. The male with the gun struck KK with a closed fist which made impact with his left shoulder and pushed him back up against the entry wall. CK was made to kneel near the front door and had the gun point at him and the male said, “keep your head down”. At some point, CK raised his head to see what was happening and the man kicked him in the left shoulder which forced his head into the wall and caused pain.
The male with the gun grabbed KK by the back of the head and pushed him onto the ground. The male was yelling, “where’s the cash?” KK replied, “other than what’s in my wallet, there is no cash”. The male said, “who else is in the house?” KK said, “my wife is, she’s downstairs”.
At this stage, a third male with a black balaclava entered the house. The male went downstairs to the bedroom. At this stage, MK had got out of bed and was heading towards the stairs when this male came running downstairs and yelled at her, “get on the floor”. MK turned around and went to the side of the bed and was facing the male. This male was wearing a black hooded jumper with black tracksuit pants and had a white balaclava covering his face and wore black gloves. The male grabbed MK by her hair on the top of her head and pushed her to the ground whilst saying, “I told you to get on the ground”. MK was laying face‑down on the floor in the bedroom. The male then said, “get up” and grabbed her by the hair and forced her to stand up. The male then walked in front of MK to the stairs, and she followed him upstairs.
MK was brought upstairs and she saw CK on his knees with his head down and buttocks in the air near the front door. One of the males asked, “where are the phones?” MK said it was in the kitchen and she got up and retrieved her mobile phone, and gave it to one of the males. They requested the password which was provided. After MK provided the password, the male grabbed her by the hair and used his palm to punch her in the forehead which caused her to fall backwards onto the rug in the lounge room. She felt pain as a result. Once on the rug, MK put her head down. A few seconds later, CK was brought into the lounge room and put on the rug.
One of the males went to the kitchen and returned with a knife which was about 30cm in length. The males were asking if there was cash in the house. MK said there might be some loose cash in the timber cabinet in the lounger room. She got up and had a look but there was no cash. One of the males asked, “do you have a watch?” and KK replied that he did in the downstairs bedroom. The male with the knife said to KK, “come downstairs and show me where the watches or cash are”. KK was held by the back of his head and led downstairs towards his bedroom. KK felt a nick on the back of his neck which was the knife cutting him. As KK was led through the house, the male continuously said to him, “where’s the cash, where are the watches?” Once they reached the bedroom, the male rifled through the cupboard whilst holding KK. He picked up their passports and then threw them back into the cupboard. The male took a Breitling Super Oceanic watch with a silver band and blue face, and a Cartier Pasha watch with a blue leather band and white face. The male placed both watches on his person.
The male kept asking, “where’s the cash?” KK kept saying that there was not any. The male appeared to panic or became frustrated or agitated. The male led KK by the back of his head back up the stairs into the living room where MK and CK were being held. KK was ordered to get onto the ground. One of the males said, “oh you guys live the life here don’t you” and said to CK, “you should have kept your mouth shut”.
One of the males were saying, “where are the car keys?” One of the males said, “do the cars have trackers? Tell the truth”. KK and MK said no.
The male with the gun behind CK kicked him in the left side of his back whilst he was kneeing beside a metal shelf with a lamp on it. The force of the kick caused CK’s shoulder to collide with a metal shelf which cased a lamp to fall and smash.
A fourth male walked inside, and all four males were whispering to each other for a few seconds and walking around the kitchen. The same male that kicked CK said, “you’re coming with us”. One of the males said, “we know where you live now”. MK heard one of the males say, “let’s tie them up”. KK and CK both believed that they were going to tie them up and kidnap them KK said, “calm down. Leave us alone. Just take the cars”.
KK handed over the keys for the Porsche and the Mercedes. One of the males said, “stay on the ground for 10 minutes. I you move or call the police we’ll come back. We’re watching from out the front”. The four males ran out of the house through the front door. The victims heard Porsche and Mercedes start up and take off.

As soon as they left, KK got up and armed himself with a knife and then went and locked the front door. KK then ran into CK’s room and grabbed his phone. CK then called triple zero.
KK looked out the front of his property and saw a white dual cab utility parked on the street directly out the front. He could see the internal cabin light was on and a person inside.
KK, MK and CK waited in the living room and the police arrived shortly after.
After the incident, KK became aware that his Apple iPhone and black Mont Blanc wallet had been stolen. The wallet contained approximately $150-200 in cash, various bank cards and identification cards. CK confirmed that some jewellery was missing from his jewellery box and had pain and swelling to the right side of his head. MK confirmed that her phone and her daughter’s purse were stolen.
Police noticed that a white Ford Ranger was parked out the front of the victims’ residence and they were informed that it was not from the area. Police checks confirmed that it was registered to an address in Shellharbour. Further, police located two wallets laying on the roadway diagonally opposite the offence location.
CB and IB live in a two-storey dwelling which overlooks the driveway and front yard of the victims’ residence. There is another house at the rear of their property in a battle-ax driveway. CB’s bedroom faces the side of the victims’ residence.
At about 4.00am, CB was awoken to the sound of a group of men talking loudly. She got up and went to the ensuite bathroom and looked through the window and saw three males outside the front of CK’s granny flat. Two people were crouching and a third was standing up. She watched them open the door to the granny flat and then saw four people move to the front door. CB was not sure if she saw CK in that group. She observed them banging on the side of the house next to the glass front door and saw one male was holding a hand gun in his hand. She saw KK inside the house and heard someone yell “open the fucking door”. She saw the door open, and three or four males went in.
CB ran to IB’s bedroom and woke him up and said that she thought that KK and MK were being robbed and that they had a gun. IB called triple zero at 4.30am and they both went to their ensuite bedroom window to watch what was happening.
During the triple zero recording, IB told the operator that he saw five men going in and out of the house and they were possibly armed. He said they could view them going in and out of the house. CB said that she thought she saw a gun in one of their hands. IB told the operator that there was a white Ford Ranger utility parked out the front of the house with the light on. Whilst they were on the phone, IB said he observed the assailants driving from the property in the victims’ Mercedes and Porsche.
Shortly after the offending at 4.31am, police identified that the two stolen vehicles, being the Mercedes and Porsche, were travelling in convoy along Kingsway Cronulla.
At about 4.40am, the driver of a Subaru Impreza was travelling westbound on President Avenue, Miranda. He had just driven through the intersection of Kiora Road when he was hit from behind by another vehicle. This caused his vehicle to hit the concrete median strip. He observed a black Porsche Cayenne mount the concrete median strip, crash into a no-stopping sign, and stop in front of him. He walked over to the other vehicle and saw the driver’s side door was wide open and there was no one in the vehicle. He could not see anyone else around. It was dark and raining heavily at this time. A police vehicle immediately arrived and discussed the incident with the driver. Police located a “Scanpan” kitchen knife in the driver’s side footwell with the vehicle key. A pair of black work gloves were located nearby.
At about 6.10am, police located the stolen Mercedes in a carport at an address in Ashfield. Police requested further units to attend and waited. Whilst police were waiting, they observed a taxi drive slowly towards the location and stop outside the address. Police observed a male dressed in dark clothing walk from the driveway of this address and approach the taxi and get into the rear seat. At this stage police did not see a second person.
Police opened the door and said to the male, “police mate, show me your hands, put your hands out right now”. It was confirmed that this male was Isiah Lewis.
At the same time, Hunter Papa was seen to be walking towards the taxi and Senior Sergeant Collins. After a short pursuit, Papa was placed under arrest and was searched. Police located a mobile phone and a green coloured vape in his track pants pocket.
Lewis was placed in hand cuffs and placed under arrest. Lewis was asked if he had any firearms on him and he said yes. The police officer asked where and Lewis motioned towards his lap and said, “right there dickhead”. The police officer alerted Snr Sgt Collins to the firearm and he entered the taxi from the other side and removed the pistol. The firearm located on Lewis was later analysed by Police Ballistics Investigation section. Expert advice confirmed that it was an unknown manufacture battery-operated gel ball air pistol. This pistol was not in working order. Expert onion confirmed that this item is an airgun and a pistol as defined in s 4(1) of the Firearms Act 1996.
Lewis was wearing a black Adidas hooded jumper and Adidas track pants both with three white stripes down the side. He was also wearing white and red Nike branded shoes and a black bag. Lewis was searched and police located a black Mercedes key in his right pants pocket. A further search located a pair of hi-vis green gloves in the front pocket of his jumper and a silver watch with a blue face.
Police searched the bag located on Lewis and located $250 in cash (5 x $50 notes) and a pair of sunglasses.

Search at the Ashfield address

At about 7.10am on 23 May 2022, police obtained consent from the lawful occupant to conduct a search at the Ashfield address. The lawful occupant was KM. She did not want to assist any further or provide the names of the male persons who had been inside her unit.
During the search, police located the following items:

A white balaclava on the lounge room floor

Blue and white disposable facemasks on the floor in the lounge room

A sticker which said “Smartstone Asset No.5453 iPhone [KK] NSW”

A black Kathmandu jacket

A pair of yellow/green gloves

A black phone case with glasses inside

Two Apple iPhone. It was confirmed that one of these iPhones belonged to KK.

The stolen Mercedes AMG was located parking in the carport at the Ashfield address.

Circumstances of arrest

At about 8.10am on 6 July 2022, police executed a search warrant at an address in Liverpool. The accused was present. He was cautioned and placed under arrest. CT was present and was the lawful occupant of this premise.
During the search warrant, police located the following items:

Mazda car key for registration [identifiers removed]

Apple iPhone

A pink Samsung mobile phone

A Champion bum bag

Navy track pants

Black balaclava

The Hyundai i40 vehicle was in the driveway. Police searched the vehicle and located a white Nike cap.
The accused was transported to Liverpool Police Station and he declined to participate in a record of interview

Findings as to agreed facts

In light of the agreement between the parties, and having considered all of the other evidence that was tendered in the trial, I am satisfied of each of the agreed facts beyond reasonable doubt.

The elements of the charges

The parties agree that the following is a correct statement of the elements of the various offences.

Count 1 – Aggravated break, enter commit serious indictable offence

The Crown allege that the accused was party to a joint criminal enterprise of persons who broke and entered the dwelling house of TL at Shell Cove and therein committed the serious indictable offence of larceny therein, knowing that a person was present within that dwelling house.
The Crown must prove beyond a reasonable doubt that the accused:

Broke into and entered the dwelling house described.

“Broke” means breaching the security of, or forcibly gaining access

“Entered” means what it says, that is went inside or inserted some part of the body, or some implement held, inside the premises

A “dwelling house” includes any building or structure intended for occupation as a dwelling and capable of being so occupied and any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or used ancillary to the occupation of the dwelling-house.

Committed a serious indictable offence therein, namely larceny.

A “serious indictable offence” is one punishable by imprisonment for five years or more

Larceny requires proof that the accused:

Took and carried away property;

That property belonged to another person;

The accused intended to permanently deprive the owner of that property; and

The taking was done without the consent of the owner.

In circumstances of aggravation, namely, knowing a person was present in the place where the offence was committed.

If there was a person, or there were persons, present in the place where the offence was committed, the accused is presumed to have known that fact unless the accused satisfies the Court that he had reasonable grounds for believing that there was no one in the place.

The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Count 2 – Take and drive conveyance

The Crown allege that the accused was a party to a joint criminal enterprise of persons who took and drove the Ford Ranger motor vehicle owned by TL.
The Crown must prove beyond a reasonable doubt that the accused:

Knew that the conveyance had been taken without the consent of the owner.

“Conveyance” includes any motor car.

The accused drove that conveyance.

The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Count 3 – Specially aggravated break, enter commit serious indictable offence

The Crown allege that the accused was party to a joint criminal enterprise of persons who broke and entered the dwelling house of CK (being the granny flat) at Cronulla and therein committed the serious indictable offence of robbery in company therein, being armed with a dangerous weapon, namely a pistol.
The Crown must prove beyond a reasonable doubt that the accused:

Broke into and entered the dwelling house described.

“Breaking” includes opening a closed but unlocked door.

Committed a serious indictable offence therein, namely robbery in company.

Robbery in Company requires proof that the accused:

With intent to steal (permanently deprive);

Took property from the victim or the presence of the victim;

By the use of violence or putting the victim in fear;

Whilst in company with another person or persons.

In circumstances of special aggravation, namely, being armed with a dangerous weapon.

“Dangerous Weapon” includes a firearm or imitation firearm within the meaning of the Firearms Act 1996.

The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Count 4 – Aggravated take or detain another

The Crown allege that the accused was party to a joint criminal enterprise of persons who detained CK, with the intention of gaining an advantage, namely gaining access to the main house whilst in company with Isiah Lewis and Hunter Papa.
The Crown must prove beyond a reasonable doubt that the accused:

Detained the victim.

“Detaining” includes causing another to remain in a position due to an act of control exercised by the accused over the victim.

Without the victim’s consent.

With the intention of obtaining any advantage.

In circumstances of aggravation, namely, being in company with another person or persons.

The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Count 5 – Specially aggravated break, enter commit serious indictable offence

The Crown allege that the accused was party to a joint criminal enterprise of persons who broke and entered the dwelling house of KK at Cronulla and therein committed the serious indictable offence of aggravated robbery therein, being armed with a dangerous weapon, namely a pistol.
The Crown must prove beyond a reasonable doubt that the accused:

Broke into and entered the dwelling house described.

“Breaking” includes where entry is obtained by fraud or threat.

Committed a serious indictable offence therein, namely aggravated robbery.

Aggravated Robbery requires proof that the accused:

With intent to steal (permanently deprive);

Took property from the victim or the presence of the victim;

By the use of violence or putting the victim in fear;

In circumstances of aggravation, including, the use of corporal violence on any person.

In circumstances of special aggravation, namely, being armed with a dangerous weapon.

“Dangerous Weapon” includes a firearm or imitation firearm within the meaning of the Firearms Act 1996.

The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Count 6 – Robbery in company

The Crown allege that the accused was party to a joint criminal enterprise of persons who robbed MK of certain property, whilst in company with Isiah Lewis and Hunter Papa.
The Crown must prove beyond a reasonable doubt that the accused:

With intent to steal (permanently deprive).

Took property from the victim or the presence of the victim.

By use of violence or putting the victim in fear.

Whilst in company with another person or persons.

The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Count 7 – Take and drive conveyance

The Crown allege that the accused took and drove the Porsche Cayenne motor vehicle owned by MK.
The Crown must prove beyond a reasonable doubt that the accused:

Took and drove a conveyance.

“Conveyance” includes any motor car.

Without the consent of the owner or person in lawful possession of the conveyance.

Joint criminal enterprise

Where two or more people carry out a joint criminal enterprise (that is, an agreement to carry out a particular criminal activity) each is held to be criminally responsible for the acts of the other participants in carrying out that enterprise or activity.
The agreement does not have to be in words and the existence of the agreement can be established by the circumstances surrounding the commission of the crime that are proved on the evidence. The Crown must establish the existence of the joint criminal enterprise, the participation in it by the accused, and the fact that each of the elements of the offence was carried out by one or more member of the enterprise.
To establish a crime by joint criminal enterprise, the Crown must prove beyond reasonable doubt:

The existence of a joint criminal enterprise to commit a particular crime.

That the accused participated in the joint criminal enterprise; and

That (between them) the participants committed each and every one of the elements of the crime alleged in respect of each of the counts on the Indictment.

Directions of law

In compliance with ss 133(2) and (3) of the Criminal Procedure Act and, as explained by the decision of the High Court in Fleming v the Queen (1998) 197 CLR 250, I remind and direct myself as to the following principles of law, which I must apply as the judge of fact.

General directions

I have made an order that the trial be conducted by Judge-alone and the accused has pleaded that he is “not guilty” to all charges on the indictment, thereafter it becomes my duty and responsibility to consider whether the accused is “guilty” or “not guilty” of any or all of the counts and to return my verdicts according to the evidence that is before me.
I must direct myself on the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden to prove the guilt of the accused is on the Crown. That onus rests upon the Crown in respect of every element of every charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I remind myself that suspicion or a finding of probability is not a substitute for proof beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that people tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found “not guilty” of the charges.
Only the elements of the offences that must be proved beyond reasonable doubt. Not every fact in the case needs to be proved beyond reasonable doubt. It is the proof of the elements that are the subject of that heavy requirement. The elements are the essential ingredients necessary to make good a charge. This direction is subject to one important exception to which I will return, concerning what are known as “intermediate facts” relied on in circumstantial cases.
The phrase “beyond reasonable doubt” are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, after taking into consideration all of the evidence, and having considered the submissions made to me by counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty to bring in a verdict of “not guilty”, because the Crown will have failed to do what the law requires it to do.

I remind myself that if the accused’s guilt has not been proven to my satisfaction beyond reasonable doubt, it is vitally important that I clearly understand that the accused must be found “not guilty”. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient or if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty.

Agreed facts

Part of the evidence before me is a statement of agreed facts. There is no issue about the existence of the facts in that statement and I must take them as established for the purposes of this trial. I have already set those facts out and made findings to that effect.

Submissions

I have heard addresses from the Crown and counsel for the accused. I have considered those submissions and given such weight to the submissions as I think they deserve. I understand that in no sense are those submissions evidence in the case.

Common sense

As the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense.
I acknowledge that I have very important matters to decide in this case – important not only to the accused but also to the whole community. I must, as a judge of the facts, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment.
As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented against the accused during the course of the trial.

Inferences

This is a circumstantial case. For the Crown to satisfy me beyond reasonable doubt, it needs to satisfy me that I ought draw a number of inferences. I direct myself that I may, in my role as judge of the facts, draw inferences from the evidence or circumstances proved. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from otherwise proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. In a criminal trial, I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

Links in chain / strands in cable

Generally, no particular fact or circumstance relied upon in a circumstantial (inferential) case needs to be proved beyond reasonable doubt. There are, however, some circumstantial cases, and this is one, where one or more of the facts relied upon by the Crown is or are so fundamental to the process of reasoning to the guilt of the accused so that fact or facts must be proved beyond reasonable doubt. Such facts are referred to as an “intermediate fact(s)” and are sometimes described as an indispensable “link in the chain” of reasoning towards an inference of guilt. Whilst there is no settled way to determine what is or is not an indispensable intermediate fact, the question may be tested by asking whether, in the absence of a finding as to that fact, there would nonetheless be a case capable of an inference consistent with guilt. As I have said, such a fact is often referred to as a “link in the chain”. This is to be contrasted with other facts in circumstantial cases not essential, in which case the analogy is to a series of “strands making up a cable”.
It is for me to determine, as a matter of law, if any particular fact or facts is or are an intermediate fact. If I reach that conclusion, I must direct myself that before I can find guilt based on an inference, I must be satisfied of that fact(s) beyond reasonable doubt from circumstances that include one or more intermediate facts. I will return to this topic later in these reasons and, if so satisfied, will direct myself as to which facts need to be proved beyond reasonable doubt. Other than such facts, it is only the element that need to be proved beyond reasonable doubt.
The steps in reasoning to a finding of guilt in a circumstantial case is first to find certain basic facts established by the evidence. Unless they are intermediate facts, those facts do not have to be proved beyond reasonable. Taken by themselves, each cannot prove the guilt of the accused. The next step is to then ask, by way of inference, whether the conclusion from a combination of those established facts that a further fact or facts exist. The ultimate fact, being an element of the charge, is the only question that needs to be proved beyond reasonable doubt unless one of the individual facts is identified as being an essential link in a chain or an intermediate fact, in which case that fact itself must be proved beyond reasonable doubt. If, when all the proved facts are considered together, a conclusion of guilt is a reasonable one to draw, that does not mean conviction. It is necessary in those circumstances to determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion of guilt. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case will fail.
Drawing a conclusion from one set of established facts to find another fact involves a process of logic and rational reasoning. The conclusion cannot be based on speculation, conjecture or supposition.
As I have already said, if I come to the conclusion as a matter of law that one or more of the primary facts relied upon by the Crown to reach an ultimate conclusion of guilt, it is itself an indispensable finding or a link in the chain, then that fact, even though it is not one of the elements, must be proved beyond reasonable doubt. This is not because that fact on its own proves the guilt of the accused, it will not if the case is circumstantial, but because it is an essential step in the reasoning that the Crown asks me to follow in order to establish guilt. I will return to this issue later in this judgment by reference to the specific circumstances relied on by the Crown.
Finally, on the topic of inferences, it is not uncommon, and in this case there are a number of examples of this, that the primary facts relied upon by the Crown are themselves inferences drawn from a series of underlying facts beneath that primary fact. If that be the case, then proof of that primary fact must be established in the same way as I had explained.

Right to silence including at trial

I draw no adverse inference against the accused because he did not give evidence in court. I cannot use that fact against him in any way.

Character direction

The accused has no criminal record at all. The Crown has not contested this evidence and therefore I accept the fact that the accused is a person of good character.
I am entitled to take evidence of the accused’s character into account in favour of him on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the offence alleged. I can take into account the accused’s good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether I do reason in that way, however, is a matter for me. If I do take it into account, what weight I give to his good character is also entirely a matter for me.
Good character does not provide the accused with some kind of defence. It is only one of many factors relevant in determining whether I am satisfied beyond reasonable doubt of his guilt.

Identification

In this case, there is a great deal of photographic evidence from various CCTV cameras, all taken at night in bad weather. The photographs are grainy and the lighting bad. I direct myself that care should be taken in readily drawing conclusions as to identify from such photographs.

Witness not called by the prosecution

If there is a witness who was not called by the Crown to give evidence, who I think might have been expected to be called, I can take the fact that there was no evidence from that witness into account when deciding whether the Crown has proved the guilt of the accused. There are a number of such potential witnesses in this case which I will identify and refer to later in these reasons.
However, I should not guess what that witness may have said if they had been called, but in a criminal trial where the Crown must prove the accused is guilty beyond reasonable doubt, I am entitled to take into account that there was no evidence from a particular person in deciding whether or not there is reasonable doubt of the accused’s guilt.

Witnesses involved in crimes

In this case the Crown relies in part on the evidence of Isiah Lewis and Hunter Papa. It is common ground that those two men were involved in the alleged crimes.
The courts have a great deal of experience learnt over many years concerning the reliability of evidence given by a witness who was or might have been involved in the alleged crime. That experience has shown that the evidence given by such a witness may be unreliable. That does not mean that it is unreliable. However, I must direct myself that the evidence of such witness may be unreliable and for that reason I must approach any evidence from such witnesses with considerable caution.
There are a number of reasons for this. Possible reasons are, firstly, it is only natural that a witness who was or might have been involved in the alleged crime may want to shift some of the blame from him or herself onto others and to justify his or her own conduct. Second, people who are or might have been involved in an alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility. Thirdly, such a person may be motivated to give false evidence in order to qualify for a reduction in his or her sentence – although that does not appear to be the case with either of these witnesses. Moreover, experience has shown that if a witness has given a version of facts to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it was substantially untrue.

The evidence

The Crown primarily relies on the agreed facts.
In addition to those facts, the Crown called evidence from four witnesses. They were in order:

Detective Sergeant Kruit;

CT;

Isiah Lewis; and

Hunter Papa.

Detective Sergeant Kruit

Detective Sergeant Kruit gave evidence consistent with, and largely explanatory of, the agreed facts. A number of documents consistent with the agreed facts were tendered through him.
A large number of photographs and video images showing various motor vehicles throughout various times in the evening, together with photographs taken on the execution of various search warrants, a point-to-point speed camera printout, a collated set of Cellebrite material relating to a series of mobile phones, the subject of evidence, an RTA printout demonstrating the ownership of the Hyundai motor vehicle.
I will mention the various specific pieces of evidence from time to time when dealing with the parties’ arguments.
He was cross-examined to the following effect:

It was put to him the person seen in the video and still photographs (Exhibit F) is not a person of “Islander appearance” as is the accused but, in particular, that person’s hands look Caucasian. The Detective Sergeant did not agree that that person’s skin appeared fair to him.

He agreed that the two co-accused had considerable and substantial criminal records involving similar crimes, unlike the accused, who has no relevant criminal record (in this regard, his good character was conceded by the solicitor advocate appearing for the Crown).

He agreed that no forensic evidence connected the accused to the crime, including fingerprints and or DNA and the like.

He agreed that the phone found in the Ford Ranger was registered to a person who he understood to be known as “hamodonda@iCloud...” and that phone had no SIM card but had recently been operated, being “tethered” to a phone registered to one of the co-accused’ mother.

He agreed that multiple people appeared to have had access to that to that phone.

He agreed that the accused’s partner, CT, has two brothers, one of whose wallet was found on execution by police of the search warrant at CT and the accused’s premises – that brother’s name is FT.

He confirmed that CT informed the police that FT’s ID and other cards had been found in the Hyundai the day before the search warrant was executed.

He agreed the police had not followed up and made any inquiries as to FT.

He agreed that the credit card used to purchase petrol, the subject of the photographic evidence (Exhibit E), was owned by a person known as MC. The Detective Sergeant was unable to assist with whether MC had any connection to any relevant people and confirmed that no inquiries had been made as to the identity of MC.

CT was called and gave evidence, all of which, by agreement, was received on the voir dire in the first instance. This was because it was necessary for me to consider her objection to giving any evidence because she was the spouse of the accused and whether I should make an order compelling her evidence: s 18 Evidence Act.
On the voir dire, the Crown tendered part of a video file in relation to a discussion between a police officer and the witness upon the execution of the search warrant, wherein CT accepted that she was the owner of the Hyundai vehicle, the subject of the other evidence in the case. She also identified that living at the premises with her and the accused at the time were two of her children.
When pressed by police and told that she was compelled to disclose who was driving the vehicle on the night in question, she made it clear that she did not know because she was asleep but when being told by the officer that she had to answer the question, she said something to the effect of “I believe it was… the accused”.
I ruled at the time that I would not admit such evidence as to her belief as to the possession of the vehicle on the night because firstly, she gave no evidence at all as to the basis of that belief other than the accused had access to the vehicle, and secondly, it was clear in the context of the questions that in the giving of her answer that she was speculating to the point of guessing.
Accordingly, for those reasons I rejected that part of her evidence because I considered it irrelevant and would not be admissible in any event. Having determined that the evidence was not admissible in any event, I did not need to consider her claim for spouse privilege pursuant to s 18 of the Evidence Act in that regard.
What remained of her evidence was entirely consistent with the agreed facts as to the ownership of the vehicle. That evidence added nothing to the case and in those circumstances, I was not prepared to make a finding pursuant to s 18(6) and direct her to give evidence against her partner.
For those reasons, I accepted CT’s application that she not be compelled to give any evidence and excused her. The evidence she gave on the voir dire did not become evidence in the trial.

Isiah Lewis

Isiah Lewis gave evidence from custody.
He was clearly not a co-operative witness and shortly into the giving of his evidence I gave the Crown leave to cross-examine him.
He denied knowledge of who else other than Mr Papa were involved in the events on the night, specifically denied that the accused was involved but accepted at one point that he did know the accused and that he knew him “Hamo”, although he later gave evidence contrary to that.
Reminding myself of the direction I have already given myself as to the caution with which such evidence needs to be approached and taking into account my impressions of Mr Lewis when he gave his evidence, which was to say the least poor, whilst I was prepared to admit that part of his evidence to the effect that he knew the accused as “Hamo”, I have decided to give it no weight. In doing so, I remind myself of the direction I have given as to the extreme caution to be adopted when dealing with this type of evidence from a person involved in the crime.
There was a contested application concerning statements by Mr Lewis contained in an agreed statement of facts signed by him for the purpose of his sentencing hearing. I rejected that portion of his evidence and did not allow the tender of the agreed facts because I did not consider that such a statement made by him at a previous time was admissible against the accused. It was not an admission by the accused. In any event, Mr Papa gave oral evidence entirely contrary to that evidence, and whilst he was cross-examined as to what he said in the agreed facts, he made it plain that, as far as he was concerned, the agreed facts was something he signed for the purpose of his sentencing. They were prepared by the police/prosecution and he signed them. I formed a very dim view of his credibility generally, which of course casts doubt on anything he said at any time, including in the agreed facts he signed, unless against his interest.
In those circumstances, I formed the view that the prejudicial nature of the evidence far outweighed any probative value that it might otherwise carry and rejected that part of his evidence. That left his evidence that the accused was not involved in the crimes, which evidence I give no weight to.

Hunter Papa

Mr Hunter Papa gave evidence to very similar effect as Mr Lewis, although he denied emphatically that the accused was involved in any way. I rejected his statement of agreed facts as admissible evidence on the same basis and was left with nothing other than a denial by him of any involvement by the accused as in the crimes. Again, I attach no weight to this evidence.

The Crown case

The Crown contends that I should be satisfied of each of the following facts which the Crown contends make up strands so as to become a strong enough cable in convicting the accused.
The Crown’s submission is that based on the combined effect of those circumstances, which I am invited to find proved, I ought be satisfied beyond reasonable doubt by way of inference that the accused was one of the people involved in the events giving rise to the charges.
As I have already directed myself, I need to be extremely careful when drawing any inference. I must examine any possible inference to ensure that it is a justifiable inference and because this is a criminal trial, I must be satisfied beyond reasonable doubt of the ultimate conclusion. Importantly, I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
It is also important to identify between circumstances relied upon by the Crown as “strands in a cable” leading to the ultimate conclusion and circumstances relied upon which are a “essential link in the chain” leading to an ultimate conclusion. If a fact falls into that second category, I must acquit the accused unless I am satisfied of that fact beyond reasonable doubt.
In this case, that distinction becomes important. The accused contends that the circumstances relied upon by the Crown, not just relating to the accused’s connection to the Hyundai and possession of the iPhone found in the Ford Ranger on the night, but the additional circumstance whereby the Crown seeks a finding of fact that it was the accused driving the Hyundai on the night, are essential links in the chain. The Crown’s position was that it accepted that the connection of the accused to the car and that his possession of the iPhone on the night were essential intermediate facts, however, did not identify the fact that he was the person driving the car on the night as such a fact.

I have decided, as a matter of law, that the following circumstances relied upon by the Crown are intermediate facts, each of which needs to be proved beyond reasonable doubt before it would be appropriate to consider whether the totality of the evidence justifies a finding of guilt. Those three facts are as follows: the connection of the accused to the Hyundai motor vehicle; the fact that it was the accused driving the Hyundai motor vehicle on the night in question; and that the accused was in possession of the iPhone found in the Ford Ranger on that night. I will expand on my reasons for this later in these reasons.

The circumstances relied upon by the Crown

The Crown case relies upon the below circumstances, the existence of which, the Crown has submitted, are established on the evidence before the Court. In writing, the Crown contended that none of these facts are intermediate facts and thus do not need to be proved beyond reasonable doubt. However, in final submissions it was accepted that the connection to the Hyundai and the fact that the accused was in possession of the iPhone on the evening were such facts.

At least three persons were involved in the offending because:

The agreed facts acknowledge the involvement of the co‑offenders Mr Lewis and Mr Papa in the offences, and recognise at least three males entering the residence in Cronulla;

The mobile phone footage equally shows at least three persons (eg two wearing yellow gloves driving a vehicle, whilst another vehicle is driven ostensibly in convoy – there appear to be images and footage of another with dark grey / black gloves).

The accused’s connection to the Hyundai i40:

The Hyundai i40, the Crown submits, is a key starting point (although not essential to prove its case) of the asserted involvement in the joint criminal enterprise. It was positively identified travelling along Picton Road in the direction of the scene of the first break-in (at Shell Cove) (Exhibit B), and then at the service station at Albion Park Rail at a time consistent with being after that first break-in;

Coupled with the evidence which the Crown submits puts the vehicle near the scene of the first break-in (prior to its appearance at the 7‑Eleven), and proximate to a vehicle consistent with the stolen Ford Ranger, this gives rise to an irresistible inference that the vehicle was used in that offending;

The vehicle was registered to CT;

There is evidence before the Court that CT is the accused’s partner. That in and of itself, the Crown submits, gives rise to a link between the vehicle and the accused;

The accused and CT were both together at the time of the search warrant, and the Hyundai i40 was in the driveway.

The accused is “Hamo” / “Hamodadon”:

Establishing that the accused is known as “Hamo” or “Hamodadon” is a significant aspect of the Crown case. Again the Crown does not concede it is essential. The Crown submits that this circumstance is itself established circumstantially, as follows;

A Samsung phone was seized during the search warrant. This was subject to Cellebrite analysis, with an extraction report commencing at p 36 of Exhibit K:

Page 40 of this report includes a Facebook Messenger chat with a participant (marked as owner) with the name “Hamo DaDon Faumuina”. There is another at p 42 of the report.

Page 45 of this report includes a Facebook Messenger chat with participants “Hamo DaDon Faumuina” and “[CT]”. The Crown submits such is consistent with a “chat” between the accused and his partner.

This phone also contained two videos tendered in evidence, Exhibit P. The Crown submits that one video shows, unmistakably, the accused’s face (a selfie type video taken in a car) and the other shows the letters “H-A-M-O”.

The Cellebrite report of the phone seized from Hunter Papa contained a contact in the name “HAMODADON”, associated with a phone number ending -491:

That phone number was registered to IT, at an address in Macquarie Fields.

That address is associated with the accused (Exhibit M). Both of these features create a situation consistent with the accused being the operator of the number registered in the HAMODADON name.

The Cellebrite report from the white iPhone in the Ford Ranger contained a “chat” with the participants “HAMODADON” and “Channy”. The Crown submits this is also consistent with the name of the accused’s partner (ie short for CT).

The Crown submits that the weight of those circumstances would be such so as to establish, comfortably, that the accused is knowns as “Hamo” or “Hamodadon”.

Although the Crown urges extreme caution in acting on any of the evidence of the co-offenders Mr Lewis and Mr Papa, it is noted that the former agreed with the suggestion that he knew the accused as “Hamo Dadon” or “Damo”. Whilst the Crown would not invite the Court as the tribunal of fact to act on this evidence if otherwise unpersuaded that the accused was, relevantly, “Hamo”, it is a further piece of evidence which is consistent with those pieces of evidence identified to establish this circumstantial plank.

The white iPhone located in the stolen Ford Ranger:

A White iPhone was found in the Ford Ranger outside the residence in Cronulla (Exhibit G);

Clearly apparent from Exhibit G (and indeed Exhibit K) is that the phone was in the name of “Hamo’s iPhone” and with an email address attached of [email protected];

If accepted that the accused is “Hamo”, and noting further the correspondence within this phone suggestive of correspondence with his partner (see (3)(d) above), the Crown submits that the Court could readily conclude that this phone belonged to the accused;

Such would place a piece of personal property belonging to the accused within the “proceeds” of the first break and enter offence, at the scene of the second break and enter offending. The Crown submits that this is a significant piece of circumstantial evidence.

The vehicles travel in convoy to Cronulla:

There are videos from the white iPhone (Exhibit N). The officer in charge (OIC) gave evidence that the first “IMG_0007.MOV” was taken at Shell Cove, there is a time stamp of 2.49am;

The Crown submits that this video is consistent with having been taken from a vehicle trailing another, which has an appearance consistent with a Ford Ranger – recalling that the phone from which these videos were located was found in the stolen Ford Ranger. There is a second with a time stamp of approximately three minutes later, that the OIC stated was taken from around the Shell Harbour area;

CCTV footage from the Albion Park Rail 7-Eleven (north of Shell Cove) captured the Hyundai i40 at 2.59am;

The Crown notes that 3:40 into the 3 minutes 42-second-long clip tendered and played from this location, as the Hyundai drives away, there is a vehicle (briefly) seen at the top right of screen; it appears to turn its lights on and commence to drive in the same direction as the Hyundai appeared to. The Crown submits that such is consistent with the vehicles travelling in convoy at this time;

Two vehicles, the Crown submits to be consistent looking, drive past another 7-Eleven at Sutherland and are then seen in “close proximity” from cameras at Burke Dental surgery in Sutherland. It is submitted that in the first and second clips from the dental surgery, a vehicle consistent with the Hyundai can be seen arriving, followed closely by a utility. They appear to drive side-by-side – possibly engaging in some discussion – before the smaller vehicle appears to park;

The third clip from this location shows the vehicle consistent with the Ford Ranger head back in the other direction – from this point without the Hyundai – and return to the 7-Eleven at Sutherland.

The same person is seen with the Hyundai i40 and what is submitted to be the stolen Ford Ranger:

The footage from 7-Eleven shows a person getting out of the white utility and walking into the store. The Crown submits that this person is without doubt wearing identical clothing to the person seen filling up the Hyundai i40 a short time before;

There is an irresistible inference that this is the same person. Such a conclusion is plainly consistent with the suggestion that the driver of the Hyundai got out of that vehicle when it was captured on CCTV nearby at the dental surgery, and this person got into the utility with the other co-conspirators.

The white baseball cap:

The Crown does not submit that the person seen at the respective 7-Eleven stores can be directly identified, nor that the clothing worn is particularly unique. The Crown submits that, readily apparent in each, however, is that the person is wearing a white baseball cap underneath their hood;

A white cap consistent with this was located in the Hyundai i40 (registered to the accused’s partner) during the search warrant on 6 July 2022;

“Selfie” type photographs from within the white iPhone located in the Ford Ranger depict a male with dark gloves, a dark balaclava, and a white baseball cap taken at 2.16am on the morning in question.

The accused was party to a joint criminal enterprise:

The Cellebrite material reveals correspondence the night before the alleged offending between the phone seized from Mr Lewis, that seized from Mr Papa, and the white iPhone located in the Ford Ranger. A summary of relevant correspondence extracted from Exhibit K is attached as “Annexure A”:

The messages are submitted to show an arrangement from the “HAMODADON” user to pick up Mr Lewis, and then Mr Papa.

The message at 3.00am, the Crown submits, is consistent chronologically with when the Hyundai was seen at the 7‑Eleven at Albion Park Rail, before the group drove north, and a vehicle consistent with the Hyundai was seen to be parked shortly before 4.00am.

The Crown submits that the Court could be satisfied that the accused was participating in the criminal enterprise as “HAMO” (and the user of the “HAMODADON” account from the white iPhone) – submitted to be the accused – arranged to pick up the co‑offenders to commence the enterprise. It is submitted by the Crown that the inference flows freely that the accused drove the car registered to his partner to the scene of the first break-in, then followed the Ford Ranger in that vehicle, before assisting to fill up each with petrol. The inference further flows that he travelled to the scene of the Cronulla break-in in the Ford Ranger – where the white iPhone was located;

The making of an arrangement to pick up the co‑offenders, in his partner’s car, using a phone the Crown says is associated with him and was subsequently found at the scene of the crime dovetails into the evidence concerning the iPhone generally, providing an inferential basis to conclude the accused was using the phone on the night in question;

The firearm depicted in the “selfies” on the white iPhone is clearly, the Crown submits, consistent with that recovered from Mr Lewis when he was arrested (Exhibit H). Such shows the user of the phone, if accepted to be the accused, interacting with an apparent tool of the joint enterprise;

Again, stressing the caution that should be given to any evidence from the co‑offenders, it is noted that during the gaol call where the co‑offender says he was talking about having been arrested in Ashfield, he called out “Hamo didn’t get done”. Although denying that Hamo was involved in the car stealing, the Crown submits that Mr Lewis’ evidence about this could, if accepted, be considered by the Court as some evidence of “Hamo’s” involvement in the events of that night, ie that being what he did not get “done” for.

The Crown ultimately submits that the foregoing circumstances and the “sub‑circumstances” founding each, provides a solid foundation for the Court to be satisfied that the accused was a party to a joint criminal enterprise. His active participation in that common purpose can be inferred, strongly, from the continued involvement in a co-ordinated sequence after the taking of the Ford Ranger from Shell Cove.
The Crown accepts that no single one of those circumstances could satisfy the Court of the accused’s identification or involvement, the weight of the confluence of those circumstances, each submitted to be consistent with a cogent theorised sequence of events could properly support a finding of the accused’s guilt beyond reasonable doubt.

Links in chain / strands in cable

I have already set out above what is described as Shepherd direction, to the effect that, in a circumstantial case where one or more of the facts relied upon by the Crown is or are so fundamental to the process of reasoning to the guilt of the accused that the fact or facts must be proved beyond reasonable doubt. At the risk of repetition, such a fact is referred to as “an intermediate fact”, being an indispensable link in a chain of reasoning towards an inference of guilt: Shepherd v The Queen (1990) 170 CLR 573. The best way to determine what constitutes such a fact is to ask whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury: R v Davidson (2009) 75 NSWLR 150 at [74]; D’Agostino v Regina [2019] NSWCCA 259 at [64].
As I have said, in this case, the accused has submitted, and the Crown accepts, that firstly, the connection of the accused to the Hyundai motor vehicle, and secondly, that the white iPhone located in the stolen Ford Ranger, “belonged” to the accused, or as the Crown puts it, was a “piece of personal property belonging to the accused” are intermediate facts. In oral argument, and more precisely, the Crown accepted a finding that the phone was in his possession on the night must be proved beyond reasonable doubt.
A review of the Crown submissions in relation to the Hyundai, which I have set out above, suggests that, as far as the Hyundai is concerned, the circumstance that the Crown relies upon is no more than a “connection” of the accused to the Hyundai.
However, a close consideration of those circumstances and the way the case was ultimately put, and an analysis of the logical progression involved in accepting the Crown case, it became clear to me that the real but supressed circumstance contended for by the Crown, as one of the circumstances available to support an inference of guilt (itself said to be proved by inference from all the circumstances) is that the accused not only had a connection to that car but in fact was the person driving the Hyundai motor vehicle on the evening.
In my opinion, the accused’s contention that this fact, ie that it was him driving the Hyundai that night, is an intermediate fact, as explained in cases such as Shepherd must be accepted.
The fact that the accused was the person seen in various photographs driving the Hyundai, firstly towards Shell Cove and later towards Cronulla in convoy with the stolen Ford Ranger, is a fact without which it would not be reasonable or rational to infer that the accused was involved in the alleged joint criminal enterprise. It is not just an important starting point, it is actually the central circumstantial fact relied upon, without which an inference consistent with guilt is not available.
In other words, whilst it may be accepted that there was a connection – and I am satisfied beyond reasonable doubt that there was a connection – between the accused and the Hyundai, the true intermediate fact that needs to be proved beyond reasonable doubt is that the accused was the driver of the Hyundai on the evening and therefore the person seen in a number of the photographic exhibits, in particular Exhibits C and E.
The second fact which the accused contends is an intermediate fact is the fact that the accused was the person in possession of the iPhone on the night in question. Again, there is substantial debate before me as to whether the accused had ever used or had access to, or perhaps even registered use of the phone which, of course, is relevant to the question of whether he had possession of it on the night in question, but is by no means determinative. The important conclusion the Crown actually seeks a finding about is that the accused had the phone in his possession on the night and left it behind by mistake in the Ford Ranger.
Accordingly, I have concluded – and as I have said, so much was accepted by the Crown in oral submissions – that whilst the accused was the person in possession of the mobile phone and thus left it at the scene of the crime, is also a fact that needs to be proved beyond reasonable doubt.
Having determined that question, I direct myself that those three circumstances are all matters about which I need to be satisfied of beyond reasonable doubt. The first being the connection between the accused and the Hyundai has been proved beyond reasonable doubt. I turn now to the next two.
Turning then to the second and third of those three intermediate facts, noting that there is some overlap between the evidence going to the possession of the car and the phone on the night, and to an extent a finding in relation to one of these facts feeds into relevant circumstances going to the other fact, they both being themselves examples of circumstantial cases within the case.

Was the accused driving the Hyundai on the night

Referring to the circumstances relied upon by the Crown, the following facts have been proved beyond reasonable doubt to my satisfaction:

The Hyundai was positively identified travelling along Picton Road in the direction of the scene of the first break-in at Shell Cove (Exhibit B) and then is photographed at a service station at Albion Park at a time after the first break-in. That photograph (Exhibit C) clearly shows the number plate of the Hyundai and depicts a person who appears to be a heavily‑set male dressed in a dark tracksuit with “hoodie” and a white cap underneath it, wearing sneakers, filling it up with fuel.

There is then a raft of evidence showing what appears to be a small white hatchback type vehicle, consistent with but by no means certainly, a Hyundai travelling in what appears to be convoy with the Ford Ranger heading in the direction of Cronulla.

The vehicle was at the time registered to CT, who was the accused’s de facto wife at the time and the two of them lived together. I infer he had access to the Hyundai and could use it if he wished to.

At the time the search warrant was executed in Liverpool on 6 July 2022, the Hyundai was in the driveway.

On those undisputed facts, the Crown has clearly proved beyond reasonable doubt a connection between the accused and the Hyundai motor vehicle. It was registered and possessed by the accused’s partner at the relevant time. It was garaged at the residence where he lived with his partner. From that the inference is readily available that he could have been driving it on the night.
Such a connection would be a strand in a cable type piece of evidence towards guilt of the accused. However, as I have said, the Crown is actually seeking a finding of much greater significance that is that the accused was driving the Hyundai on the night.
The question for me is, has the Crown proved anything more than the connection because obviously enough, such a connection falls way short of proof at any level, let alone beyond reasonable doubt, that the accused was the driver of the Hyundai on the night.
I am not satisfied beyond reasonable doubt that the accused was driving the Hyundai on the evening and therefore I am not satisfied that he is the person depicted in the various photographs and therefore am not satisfied beyond reasonable doubt of this intermediate fact.
My reasons are as follows:

Whilst I accept that the motor vehicle was registered to the accused’s partner and was garaged at premises where he lived, and therefore he had access to the Hyundai on the night, he was not the only person who was in that position. The evidence of the officer in charge included that the owner’s brother, FT, clearly had access to the vehicle. There was some evidence that it had been reported that a credit card belonging to FT had been found in the vehicle at some point, suggesting he did use it from time to time; FT’s wallet was found at the premises of the accused and CT when the search warrant was executed; and FT was not spoken to by investigators. The Crown did not call FT. I have already given myself a direction pursuant to Mahmood v Western Australia (2008) 232 CLR 397, but it has real significance in relation to the failure of the Crown to call FT. It is a rationally open inference that he was driving the car that night and is thereafter the person seen in the photographs. There were no investigation made, let alone evidence called at all to exclude that inference.

The photographic evidence is, at best, neutral. The fact is that the best the Crown can submit is that the person in the photographs in charge of the Hyundai on the night is not a person inconsistent with the accused. The accused places weight on the photographs, being Exhibit E which are photographs of the person paying for petrol at another service station later in the evening – the Crown’s case theory being the accused, in circumstances where the Ford Ranger is being filled up with petrol. That photograph is, in my opinion, as the accused has pointed out, consistent with a man having a much lighter skin tone than the accused. Whilst I remind myself it is dangerous to come to firm conclusions based on grainy photographs taken in brightly lit circumstances, I do accept the accused’s submission that the skin tone in the photograph does appear to be inconsistent with that of the accused. That is inconsistent with the Crown case and gives me real reason to doubt that the person in that photograph is the accused.

Whilst a white cap was found at the accused’s place of residence on the execution of the search warrant, a white sporting type cap is such a commonplace item of clothing, I do not think that is of any probative value at all. However, as the accused points out, none of the other items depicted in the photographs, being dark tracksuit, hooded jacket, distinctive shoes, were located on the execution of the search warrant. Again, there is some reason to doubt the identification of the accused as the person driving the Hyundai.

The only description given by any eyewitness to the crime of the men involved is significantly inconsistent with the accused being one of those men. The witness described them as being each about 6-foot tall and weighing approximately 100 kilograms, which significantly overestimates the size and weight of the accused as I observed him in the courtroom. Again, such descriptions given by witnesses after violent crimes would ordinarily not be given much weight, but the fact is that the evidence is inconsistent with one of the men being the accused and is another reason to doubt the Crown’s case theory.

I appreciate that the Crown, as one of the circumstances to justify a finding that it was the accused driving the Hyundai on the night, says that it has proved – also by inference – that the accused was in possession of the iPhone found in the Ford Ranger and that there is evidence to suggest that the iPhone was also in the Hyundai during the evening. Of course, whether or not the accused was in possession of the iPhone on the night is one of the other intermediate facts relied upon by the Crown, as part of its overall circumstantial case, so there is an element of circularity here. However, for reasons which I am about to give and which are very similar to the reasons why I am not satisfied beyond reasonable doubt that the accused was driving the Hyundai, the best I can say about the phone is that it was a phone that had, from time to time, probably been in the possession of and used by the accused. However, that does not prove beyond reasonable doubt that it was in his possession on the evening. There is no doubt that the phone itself was left in the Ford Ranger by one of the people involved in the crime. However, the fact that a phone that had, from time to time, been in the possession of the accused was found at the scene of the crime does not prove beyond reasonable doubt, or even to any probative level, that the phone was in his possession on that night. The short point is, there were other people who also had access to that phone from time to time, including but not limited to the same person (CT) who also had access to the car. I do not think that the fact, that the phone has been shown to have been in the possession of the accused at different times and was in the Hyundai at some point that evening, is sufficient to justify a finding beyond reasonable doubt that the accused was driving the Hyundai on the night.

For all those reasons, I have concluded that the Crown has not satisfied me beyond reasonable doubt that the accused was the person driving the white Hyundai on the evening. At best, it has proved that he was one of a number of people which may have been driving the car that night. That is far short of sufficient to find the fact beyond reasonable doubt. There is at least one other rational inference open in all the circumstances.
In accordance with the Shepherd direction, that conclusion on its own compels me to acquit the accused of all charges.
I will however proceed to determine the second intermediate fact, being the possession of the iPhone.

Possession of the iPhone

Because of the conclusion I have come to in relation to the vehicle, I will keep this aspect of my reasons short.
As I have said, I think the evidence does prove that the accused had, from time to time, access to and had possibly used the relevant phone.
However, that same evidence also demonstrates that a number of other people also had access to the phone and had in fact used it on a number of occasions.
One of those other people would include at least one (CT), if not two, brothers of the accused’s partner. There is buried in this aspect of the case a question of whether the accused goes by the nickname of “Hamo” or “Hamodon”. There is no doubt on the various records and registration of a number of telephones that someone, in relation to that phone, does go by the nickname “Hamo” or similar words. However, that does not prove that the accused is that person. Whilst there is sufficient evidence that I think would allow a finding that the accused probably went by that name, it is to my mind possible that some other person also goes by that name. The phone is registered to IT, who Det Sgt Kruit “believes” is the accused’s father. IT was never spoken to by the investigators nor was he called by the Crown. Again, the Mahmood direction has significance in relation to this person. For those reasons I am not satisfied of the second essential fact relied upon by the Crown to prove its case.

Conclusion

This being a circumstantial case and based upon my finding that there are three intermediate facts which the Crown must prove beyond reasonable doubt for there to be a rational inference consistent with guilt considered, I have concluded that I am not satisfied in relation to two of those intermediate facts beyond reasonable doubt and therefore must enter a verdict of not guilty in relation to each of the charges.

Count 7

In relation to Count 7, during final submissions, the Crown accepted that the accused has not been proved to be the person driving the relevant motor vehicle. As the Crown properly pointed out, Count 7 does not rely on a joint criminal enterprise but rather required guilt be proved by proof of the fact that the accused was actually driving the particular vehicle at the time.
The Crown has conceded that it would be appropriate in those circumstances for me to direct myself to enter a verdict of not guilty in relation to Count 7.

Conclusion and Orders

In relation to Counts 1 to 6 on the indictment, I find the accused not guilty.
In relation to Count 7 on the indictment, I direct myself to find the accused not guilty and in accordance with that direction, I find the accused not guilty.

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Decision last updated: 27 May 2024

Count on Indictment	Offence
1	On 23 May 2022, in Shell Cove in the State of New South Wales, did break and enter the dwelling house of TL situate at [identifiers removed] and then in the said dwelling house did commit a serious indictable offence, namely, larceny, in circumstances of aggravation, namely, he knew that there was a person present within the said dwelling house. s 112(2) Crimes Act 1900
2	On 23 May 2022, in Shell Cove in the State of New South Wales, did drive a conveyance, namely, Ford Ranger Utility, NSW Registration [identifiers removed], knowing that the said conveyance was taken without the consent of TL the person in lawful possession of the said conveyance. s 154A(1)(b) Crimes Act 1900
3	On 23 May 2022, in Cronulla in the State of New South Wales, did break and enter the dwelling house of CK situate at [identifiers removed], and then in the said dwelling house did commit a serious indictable offence, namely, robbery in company in circumstances of special aggravation, namely, the said Tato Harmony Faumuina was then armed with a dangerous weapon, namely, a pistol. s 112(3) Crimes Act 1900
4	On 23 May 2022, in Cronulla in the State of New South Wales, did, without consent, detain CK with the intention of obtaining an advantage, namely, gain access to main house, while the said Tato Harmony FAUMUINA was in the company of Isiah LEWIS and Hunter PAPA. s 86(2)(a) Crimes Act 1900
5	On 23 May 2022, in Cronulla in the State of New South Wales, did break and enter the dwelling house of KK situate at [identifiers removed], and then in the said dwelling house did commit a serious indictable offence, namely, aggravated robbery in circumstances of special aggravation, namely, the said Tato Harmony FAUMUINA armed with a dangerous weapon, namely, a pistol. s 112(3) Crimes Act 1900
6	On 23 May 2022, in Cronulla in the State of New South Wales, did rob MK of certain property, namely, a mobile phone the property of MK whilst being in company with Isiah LEWIS and Hunter PAPA. s 97(1) Crimes Act 1900
7	On 23 May 2022, in Cronulla in the State of New South Wales, did without the consent of KK the owner of a conveyance, namely, Porsche Cayenne, NSW Registration [identifiers removed], take and drive the said conveyance. s 154(1)(a) Crimes Act 1900

Medium Neutral Citation:	R v Faumuina [2024] NSWDC 189
Hearing dates:	8 May 2024; 9 May 2024; 17 May 2024
Date of orders:	24 May 2024
Decision date:	24 May 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	Verdicts: Counts 1 to 6 – Not Guilty Count 7 – Directed verdict of Not Guilty
Catchwords:	CRIME – Judge-alone trial – Violent offences – Special aggravated break enter and commit serious indictable offence – Aggravated break enter and commit serious indictable offence – Detain with intent to obtain advantage – Robbery in company – Take and drive conveyance – Joint criminal enterprise – Inferences – Links in chain
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act Evidence Act 1995 Firearms Act 1996
Cases Cited:	D’Agostino v Regina [2019] NSWCCA 259 Fleming v the Queen (1998) 197 CLR 250 Mahmood v Western Australia (2008) 232 CLR 397 R v Davidson (2009) 75 NSWLR 150 Shepherd v The Queen (1990) 170 CLR 573
Category:	Principal judgment
Parties:	Rex (Crown) Tato Harmony Faumuina (Accused)
Representation:	Counsel: Mr J Staples, Solicitor Advocate (Crown) Mr B Eurell (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Oxford Lawyers (Accused)
File Number(s):	2022/196123