R v Harradine
[2013] SADC 91
•5 July 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARRADINE
Criminal Trial by Judge Alone
[2013] SADC 91
Reasons for the Verdict of Her Honour Judge Davison
5 July 2013
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
The accused was charged with the offence of aggravated robbery.
HELD: Guilty of the offence of aggravated robbery
Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
R v HARRADINE
[2013] SADC 91
The accused is charged with the offence of Aggravated Robbery. He pleaded not guilty and elected for trial by judge alone. The trial was conducted before me without a jury.
It is alleged that the accused, together with Anthony Neil Harradine and George Stanley Harradine, on the morning of the 5 November 2011 robbed the Rosewater Hotel. Anthony Harradine was arrested in the car park of the hotel by the police shortly after the robbery. He was in the driver’s seat of the getaway car. George Harradine was also arrested by the police in the car park. He was seen to run from the hotel and get into the passenger seat of the car. A third man was seen running from the door of the hotel towards the back car park and then exiting down a laneway. It is alleged that this third person is the accused Jack Augustus Harradine. The incident inside the hotel and in the car park was captured on CCTV.[1]
[1] P29
The Charge
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Anthony Neil Harradine, George Stanley Harradine and Jack Augustus Harradine on the 5th day of November 2011 at Rosewater, used or threatened to use force against Kathryn Marshall in order to commit the theft money, and the force was used, or the threat made, at the time of or immediately before the theft.
It is further alleged that Anthony Neil Harradine, George Stanley Harradine and Jack Augustus Harradine used or threatened to use offensive weapons, namely screwdrivers, when committing the offence.
It is further alleged that Anthony Neil Harradine, George Stanley Harradine and Jack Augustus Harradine committed the offence in company with one another.
The ingredients of the offence of Aggravated Robbery are:
1that there was a theft;
2that there was force used or threatened in order to commit that theft;
3that the force was used at the time of or immediately before or after the theft;
4that the accused or others used or threatened to use offensive weapons namely screwdrivers when committing the offence;
5that the accused was in company with others at the time of the offence.
The final two ingredients are circumstances of aggravation in relation to the principal charge.
General directions
The accused comes into this court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt has been proven beyond reasonable doubt. The prosecution bears the onus of proof. The charge must be proven beyond reasonable doubt. The accused does not carry any onus of proof and to the extent that he did put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction.
It follows that if I am left with a reasonable doubt as to any element of the offence I must give the benefit of the doubt to the accused and find him not guilty of the charge. If after full and careful consideration I am unable to decide where the truth lies, or who is telling the truth, then the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict will be one of not guilty.
In these reasons where I indicate that I am satisfied about a particular fact or event I mean satisfied beyond reasonable doubt.
The accused elected not to give evidence in this court. He was not bound to give evidence. His silence does not constitute an admission and it may not be used to fill the gaps in the evidence tendered by the prosecution. I must draw no adverse inference against him because he did not give evidence in this court. I must bear in mind at all times that it is for the prosecution to prove its case beyond reasonable doubt.
During the course of this matter it became apparent that the accused has had previous issues with the police. Although the detail in relation to his previous involvement with the police was not made explicit, it was clear from various passages that he had in fact come in contact with the police on previous occasions. I make it plain that I draw no adverse inference against the accused on account of any previous contact that he may have had with the police or with the criminal justice system.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not influenced by public opinion in relation to the matter.
The case against the accused is entirely circumstantial. It follows that the accused cannot be found guilty of the charge unless I conclude that there is no reasonable explanation, of the evidence which I accept, other than the accused was guilty of the offence. If there is any reasonable explanation other than that the accused committed the offence then I cannot be satisfied beyond reasonable doubt of the elements of the offence and the accused must be acquitted.
Pre-trial matters
Prior to the trial commencing, the accused filed a Rule 15 Notice. This Rule 15 Notice objected to the evidence of an interview that had been conducted between himself and Detective Megan Kelly at the Adelaide City Watch House. As the trial progressed the prosecution determined that it no longer wished to rely upon that record of interview. I therefore do not rule upon that aspect of the Rule 15 Notice.
The accused amended his application to also include the exclusion of a conversation between him and Senior Constable Alan Graham. Senior Constable Graham located the accused on Canning Street shortly after the robbery at the Rosewater Hotel. Senior Constable Graham gave evidence that upon observing the accused he got out of his police vehicle, drew his firearm and said words to the effect “police, don’t move, get on the ground, put your hands up”. Senior Constable Graham gave evidence that the accused was compliant with the directions given to him but was quite verbal. However, he could not remember what the accused was saying.[2] He thought that by that stage a few other police officers had arrived. Those police officers were Constable Favorito and Constable Singh. After arresting him, Senior Constable Graham activated his personal mobile phone and recorded the accused on the footpath. The footage from that mobile phone has now been transferred on to the DVD that was tendered.[3] It is the content of P20 that the accused objects to the admission of. A transcript was produced.[4] The objections to the evidence were particularised by Mr Coates.[5] His principal objection was one of unfairness. There is no issue taken in relation to section 74D of the Summary Offences Act. The main plank of the submission was that whilst there had been videotaping of the conversation on the IPhone, it may well have been that things were said prior to the IPhone being activated that give a context to some of the responses of the accused during that recording. There was no suggestion that the police had acted improperly in the way that they had proceeded. However, it was said, an absence of material as to what had been said prior to the activation of the recording resulted in some uncertainty in relation to the responses of the accused, such that it would be unfair to admit it. The accused did not give any evidence in relation to the exclusion of the interview.
[2] TT 104, 112.
[3] Exhibit P20
[4] Exhibit P21
[5] TT 180
I can see no basis for the exclusion of the interview on what was put to me. However, the weight that I can attach to the statements made by the accused in the absence of any context as to what happened prior to the activation is limited. Whilst I am prepared to admit the evidence it is of limited value in relation to any inferences being drawn that the references that the accused is making to videotapes necessarily refer to videotapes at the Rosewater Hotel as opposed to tapes that the police are making or have made of any conversations with him. I will return to this at a later stage.
The evidence
There were three civilians in the Rosewater Hotel at the time of this incident who gave evidence. Adrian Charlesworth is a chef at the hotel. He came in to the bar area to collect some lollipops. As he was walking back to the kitchen behind the bar he saw two people come in through the automatic sliding doors of the main gaming area.[6] The first of those people was a man who had a mask on. He also had a weapon. This weapon appeared to be a screwdriver. This person said “this is a hold up”. The second person stood near the left hand side of the corner of the bar closer to the swinging doors near the kitchen. This was also a male. He could not recall what this person was wearing but he had a similar mask on to the first person and was wearing dark clothing.[7] He thought that the second person was also holding the screwdriver that looked a bit different to the first screwdriver this being a bit dirty and looked like it had been used before.[8] Mr Charlesworth went on to give physical descriptions. He said that the first person was about 182 cm and of solid build.[9] The second person was male, shorter than the first person and of skinny build.[10] After Mr Charlesworth saw these two people he went back to the kitchen and shortly after that went outside and noticed a white Statesman parked with the motor running. He approached the driver’s side door and saw that there was one person sitting in the driver’s seat. He described that person as being a male of Aboriginal appearance.[11] As Mr Charlesworth was trying to get into the car the driver started revving the engine very loudly. Two people came out of the hotel and tried to usher Mr Charlesworth away from the car with their weapons. One offender, who Mr Charlesworth believed to be the second man who entered the hotel, came to the driver’s side rear passenger and his mask fell down. The driver drove into a dead end part of the car park and did a burnout with his wheels. The second man came up to the car again as the police were pulling up and got into the passenger side front door. The police then arrived and arrested the two men who were at the car. The man that Mr Charlesworth called offender number 1 ran out through the rear of the car park and he did not know where he went.[12]
[6] TT 50, 51.
[7] TT 52 – 55.
[8] TT 57
[9] TT 57
[10] TT 55, 56
[11] TT 57, 58
[12] TT 60
Ms Catherine Marshall was the duty manager at the Rosewater Hotel. At about 11.30am that day she saw two men enter the bar. One man walked up to her. He had his face covered and was carrying a screwdriver. He was wearing dark clothing. He asked where the money was.[13] She said that his face was disguised with a bandana with a skull replica on it. She described him as being short, stocky, hunched over and wearing dark clothing. He was holding a yellow handled screwdriver and would have been shorter than her she said her height being 175 – 178 cm. He was the stockier of the two. She described the other man as being skinnier and taller than the first man, wearing dark clothing, a covering over his face and about the same height as her. She could not recall what his face was covered with.[14]
[13] TT 68
[14] TT 70
She said shortly after the first person walked in and asked where the money was the second person came in jumping up and down and demanding to be shown where the safe was. Ms Marshall turned to one of her co-workers and told her to run. She and her co-worker Ms Spencer ran away from that area and into the front bar. She locked the door giving access to the front bar and announced that they were being robbed. From an area in the front bar she could see through to the area closer to where the offenders had entered the hotel. She heard a loud bang and could see someone jumping up and down in that area. After a while Ms Marshall went out of the front bar and back in to the area of the gaming room. However, she saw the offenders running back into the hotel through the bistro doors. At no stage did Ms Marshall see the stockier of the two men go behind the bar where the money was kept.[15]
[15] TT 76
Ms Kerry Spencer was called to give evidence. She works at the hotel as the gaming manager. She was standing behind the bar talking to Ms Marshall when she saw a person that she believed to be a customer playing a joke. However, shortly after that she saw another person running in through the sliding doors of the bistro area.[16] She knew at that stage it was not a joke. She described the first person as male. She said he was fully covered and taller than her, probably about 180cm tall. She said that his build was tall and slim and she recalled his face being covered with a black and white skeleton mask or similar. She described the first offender as wearing a black top with white on the front and having a yellow handled screwdriver and using it in a threatening manner.[17] In relation to the second offender Ms Spencer assumed that person was male. She said that he was fully covered wearing dark clothing and a black and white mask. She said he was thicker set and a bigger build and taller than the first person. She said he was taller than her and her own height was about 175cm. In cross‑examination she said he could have been about 180cm and that both men had similar facial coverings that were skeletal masks.[18] She said that she and Ms Marshall had run away from the area and into the front bar. While they were in the front bar she heard noises suggesting someone was breaking or banging a door down. Following the robbery they found that the door to the gas room area was off its hinges and damaged. It had not been like that prior to the robbery.[19]
[16] TT 76,77
[17] TT 78,79
[18] TT 87
[19] TT 87
A statement was tendered by consent from Constable Leslie Hartman dated 7 November 2011.[20] Constable Hartman was on patrol with Constable Surch travelling west on Grand Junction Road at Rosewater at about 11.30am on 5 November 2011. Their attention was drawn to a male person on the footpath outside the Rosewater Hotel. He was waving his arms in the air and appeared to be distressed. This person was Adrian Charlesworth. Mr Charlesworth said that there had been an armed robbery at the hotel and people were trying to get away in the white Holden Statesman. This car was parked in the south western corner of the hotel car park. Its rear wheels were spinning and there was smoke billowing out from the rear wheels of the car. Constable Hartman parked the police vehicle on the footpath, got out and started to run towards the right hand side of the Stateman. There he found a person sitting in the driver’s seat. He could not see any other person in the car. He then saw two people running from the side entrance of the hotel towards the Statesman. One person was wearing black track suit pants and a black hoodie. That person had a yellow T-shirt wrapped around his head with only his eyes visible. He was holding what appeared to be a screwdriver. The other person was wearing a skeleton mask on his face. Constable Hartman could not recall what clothing he was wearing. That person turned and ran south along the pathway towards the rear car park. As Constable Hartman approached the car it commenced reversing. He withdrew his police revolver and pointed it at the driver. He observed at that stage that the driver of the Statesman had a blue T-shirt wrapped around his head. The driver then stopped the Statesman, opened the door and got out and lay on the ground. This person was arrested. This person is Anthony Harradine. Anthony Harradine is the accused’s brother. Constable Hartman then went to the passenger side of the vehicle. He took aim at a person who was there and took him to the ground. This person had a yellow T-shirt wrapped around his head. He was arrested. This person is George Harradine, he is the accused’s cousin. Inside the Statesman he found a yellow handled screwdriver on the front passenger seat and numerous fifty and twenty dollar notes in the footwell. He described Anthony Harradine as being in his late 20s, of Aboriginal appearance, heavy build, 130 kg, 180cm tall with a beard and short black hair. He was wearing black tracksuit pants, a black jumper and had a blue T-shirt wrapped around his head. Anthony Harradine had been the driver of the car. He described George Harradine as being Aboriginal, dark skin with a beard, short straight black hair, about 25 years old, medium build, about 65 kg, 175cm tall, wearing black track suit pants, a black hoodie, white shoes and had a yellow T-shirt wrapped around his head. He was the person arrested by the passenger side of the car.
[20] P7
Constable Kirsten Surch also gave evidence. Her evidence was substantially the same as that of Constable Hartman. In relation to the third person that had run towards the rear car park, Constable Surch said that he was of average height and a larger build than the other man who had approached the white sedan, that he had something pale in colour obscuring his face but was wearing dark clothing.[21] She could not recall him having anything in his hands.
[21] TT 95
Senior Constable First Class Malcolm Denton was called. He is a police dog handler. He has been working with dogs in South Australia Police for the past 13 years. On 5 November 2011 he received a tasking in relation to the Rosewater Hotel. He went to the hotel with the police dog. He arrived there at 11.34am. He saw two people being restrained on the ground in the hotel car park. He was given information that the third person had left the area and headed south through the car park. He immediately got the dog out of the car and in less than two minutes was on foot with the dog. He went with the dog to a laneway that runs between the Rosewater Hotel and Lambert Street. He then cast the dog. He explained that that meant that he had the dog in the harness and that in itself is a trigger of stimuli for the dog to know that it is working. He had a rope which is about 10 metres long. He then cast the dog basically in a circle until the dog crossed the path with the scent of someone who walked perpendicular to that. The dog then turned and followed that scent. Senior Constable Denton controlled the dog until the dog hit the odour that had been left by that person and then the dog started to follow the odour. In effect, the dog was in control of where he walks.[22] The odour that is located is affected by a number of factors. One of those factors is time. The time that the odour remains detectable can vary depending upon the weather conditions and the wind conditions. On this day it was 33 degrees and quite windy. That made it quite difficult to track. The dog took Mr Denton down Lambert Street to Lincoln Street where it turned right. As it turned right a glove was detected on the footpath. That glove was subsequently recovered. This glove was examined at the Forensic Science Centre. A tape lift was taken of the inner surfaces. There was a mixed DNA profile with at least three contributors. The major component of that profile originated from a second unknown male. The accused was excluded. In relation to George Harradine and Anthony Harradine and an unknown person the results were inconclusive.
[22] TT 153
Senior Constable Denton and his dog then continued west along Lincoln Street and then turned left into Russell Street. In Russell Street the track became considerably more difficult to follow. By the time Senior Constable Denton got to the train line that runs across Russell Street it was very difficult to follow. He was then advised that a person, a possible suspect, had been located in Canning Street.[23] Having received that information Senior Constable Denton terminated the track he was doing and took the dog back to the car at the hotel. He then went to the location where the suspect had been located on Canning Street. Once at Canning Street he became aware that some items were still outstanding in relation to the police investigation. He then took the dog along the train line from Canning Street back towards Russell Street. He did not undertake a tracking exercise but did what he calls an article search. In this search he was looking for articles that contained human odour. The dog did not detect anything along the train line. At Russell Street he put the dog back on the lead and he started going through the gardens along Russell Street back towards Lincoln Street. In the front garden of 104 Russell Street he located a T-shirt. This T-shirt is shown in photographs 69 and 70 of P1.[24] Exhibit P10 is a shirt with a collar on it. It has some white writing on the front of the shirt and some greyish coloured markings.
[23] TT 155
[24] P10
This shirt was examined at the Forensic Science Centre. A tape lift of the inner neck band was taken. A mixed DNA profile of at least two contributors was obtained. The major component of that matches the profile of the accused. Tape lifts were taken of the outer back surface. There was insufficient DNA obtained for profiling from these tape lifts. Tape lifts were taken from the outer front. A weak incomplete DNA profile was obtained. The accused was not excluded as a possible contributor to or a source of DNA profile, no statistical weighting could be calculated. In relation to the sample from the inner neck band, the statistical weighting has been provided. The DNA profile obtained from the sample is greater than one billion times more likely to match the reference DNA profile of the accused if he is the source of the DNA rather than an unknown individual unrelated to him.
This shirt also has some similarities to the shirt worn by one of the men inside the Rosewater Hotel. I will return to that when I discuss the CCTV footage.
Having located the T-shirt behind the water meter Senior Constable Denton then had a look further up the pathway. Behind a pine tree in the garden he found a number of different items. He left those items in situ until Crime Scene arrived. These items are shown in photographs 74-77 (inclusive) of P1. It is plain from photograph 74 that these items appear to have been secreted behind the pine tree. The items that were located included a black jacket with grey lining,[25] a tyre lever,[26] a pair of sunglasses,[27] a flathead screwdriver,[28] and subsequently a further glove was found inside the jacket.[29]
[25] P11
[26] P12
[27] P13
[28] P14
[29] P33
The black jacket was examined at the Forensic Science Centre. A tape lift of the inner neck band and both inner sleeve cuffs was tested and provided a mixed DNA profile of at least three contributors. The accused, George Harradine and Anthony Harradine were not excluded as possible contributors to or source of the DNA profile. No statistical weighting could be provided.
The sunglasses, P13, were also examined at the Forensic Science Centre. A swab of the outer surfaces was taken. This was tested and provided a mixed DNA profile of at least three contributors. The accused and Anthony Harradine were not excluded. George Harradine was excluded. A statistical weighting in respect of the accused and Anthony Harradine could not be provided.
The tyre lever, P12, was examined. A swab was taken of the socket end and the handle end of the tyre lever. There was insufficient DNA for profiling.
The glove, P33, was examined. A tape lift was taken of the inner surfaces. A weak and incomplete mixture was obtained. There were at least two contributors to this sample. The accused, George Harradine and Anthony Harradine and two others were excluded.
The screwdriver that had been located with the other items was examined. A swab was taken of the handle. A mixed DNA profile with at least two contributors was obtained. The accused was not excluded as a contributor. A statistical weighting could not be provided. A visual examination of this screwdriver as opposed to the screwdriver that was located with the yellow handle in the car clearly shows that it is older and not as shiny as the yellow screwdriver that is P8.
The forensic report in relation to this matter is P35. It was tendered by consent.
The accused was arrested by Senior Constable Graham. Senior Constable Graham was on duty when he received some information via the police radio relating to an armed robbery at the Rosewater Hotel. He was given information that two offenders had been arrested and there was an outstanding male offender. He was on solo patrol. By reference to exhibit P4, an aerial photograph, Senior Constable Graham gave evidence that he drove along Torrens Road and turned into Short Street. He travelled a short distance and then turned left into Canning Street.[30] As he travelled north along Canning Street he observed a male of Aboriginal appearance and rather large build. He was looking over his right shoulder and it appeared to Senior Constable Graham that he had come out of the railway line. This railway line runs between Canning Street and Russell Street at this position. This male person was walking in a southerly direction. Senior Constable Graham made the observation that he appeared to be in a bit of a hurry. Senior Constable Graham reversed back up to Short Street and radioed to a motorcycle police officer who he had seen shortly before that. That police officer is Senior Constable First Class Hancock. Senior Constable Graham then knew that he had assistance close by. He made observations of the male. He observed that the male had slowed down significantly and was looking towards him.[31] Senior Constable Graham was in an unmarked police car at that stage. He saw the man look over both shoulders and Senior Constable Graham got out of the vehicle on to the roadway, drew his firearm and said words to the effect of “police, don’t move, get on the ground, put your hands up”. He could see no weapons on the male and he moved in to handcuff him and spoke to him from there. By that stage he thought that another two police officers were also present in addition to Senior Constable Hancock. It was then that Senior Constable Graham commenced recording on his IPhone. The recording on the IPhone is P20. A transcript of this conversation has been produced. That is P21. Photographs have also been taken as still photographs from P20. They are now contained within Exhibit P2. The clothing that the accused was wearing was clearly visible in these photographs. It was also seized. The navy blue Spalding singlet that he was wearing is P16. A dark pair of pants is P17 and a pair of white sneakers P18. Clearly visible in photograph 41 of P2 is what appears to be a piece of white paper that is protruding from the right hand pocket of the trousers of the accused.
[30] TT101
[31] TT103
During the conversation that occurs on the footpath at Canning Street, Rosewater the accused makes a number of references to video cameras. I have been urged by the prosecution to find that the references made to the video cameras provide a sufficient basis to conclude that the accused had esoteric knowledge of the robbery that had occurred at the Rosewater Hotel. I do not conclude that that is so from this conversation. The statements made by the accused as record in P20 are equivocal in my view. I do not rely on them.
Detective Gardner provided some assistance in relation to the distance from the Rosewater Hotel to the location where the accused was arrested. She calculated the distance using a route that it was suspected the accused had taken - from Lambert Street on to Lincoln Street to Russell Street and along the railway line to Canning Street. This total distance is 634 metres. There was an agreed fact that Constable Surch had radioed police communications at 11.32.21 indicating that the third offender had decamped from the Rosewater Hotel.[32] At 11.39.15 Senior Constable Graham had radioed police communications indicating that the accused had been arrested on Canning Street. Therefore the time between the person decamping and the accused being located is approximately 7 minutes.
[32] P34
Senior Constable Hancock is a motorcycle policeman. He was also involved in this matter. He attended to search the area. As he was travelling along Russell Street he observed a person walking along the railway between Russell Street and Canning Street. When he observed this person he thought that he was not quite halfway along the corridor but approaching the halfway mark.[33] The person was walking a bit faster than walking pace. He was the only person that Senior Constable Hancock had seen walking around the area other than the police dog handler. He wanted to try to stop that person and speak to him. To that end he headed around towards Canning Street, the direction in which this person was walking. As he turned into Canning Street he saw the unmarked police vehicle with Senior Constable Graham. He saw a person walking out on to Canning Street from an area near the railway line.[34] This was the person that Senior Constable Graham arrested.
[33] TT118
[34] TT121
Detective Megan Kelly was also called to give evidence. Her evidence was primarily in relation to the interview that occurred at the Adelaide City Watch House. As I have said earlier, the prosecution did not persist with the admission of this evidence. I do not intend to deal with the evidence of Detective Kelly.
CCTV footage from the Rosewater Hotel, both from inside the hotel and in the car park was tendered. This is P29. I have had an opportunity to observe the video on more than one occasion. The footage in the car park is of limited value other than to support the evidence of the prosecution witnesses who attested to their activities in that car park and that of the driver Anthony Harradine, and George Harradine who was also arrested in the car park.
Still photographs have been taken from the footage both inside and outside the hotel. These still images are now contained within the Exhibit P2.
It is unfortunate that none of the CCTV footage was shown to any of the witnesses in court. They were not given an opportunity to comment upon what they were doing nor the observations that they made at the time with reference to this CCTV footage.
There are limitations associated with this video. The footage is not very clear at times and the colour associated with some of the items does not appear to be true. With these limitations the quality of the tape is such that it is clearly visible that there are offenders in the hotel two of whom are visible on the footage. This videotape can be used by me to determine whether it was the accused who committed the crime. It is in fact a trustworthy, unbiased and accurate “witness” with a complete and instant recall of events.[35] This is particularly so when the eyewitnesses to this event have been involved in a very traumatic incident such as the events that occurred on the morning of 5 November 2011 at the Rosewater Hotel. Not only were the events traumatic but they also occurred over a very short space of time and the time that each of the eyewitnesses had the offenders in view was very limited. It is with this in mind that I have watched the footage from all four cameras that have been placed on P29. I have watched it on a number of occasions. I have stopped it on occasions, played it backwards, played it forwards and looked at the still photographs as a result.
[35] Police v Dorizzi (2002) 84 SASR 403 at 413-414.
At 11.31.02sec on the footage that is marked “Cashier”, there are two females behind the bar. One is attending to paperwork and the other is positioned closer to the doorway. At 11.31.04sec a male person comes into view. In all likelihood this is Mr Charlesworth as he made his way over to the lollypops that were kept near the safe in the cashier’s area. At 11.31.16sec the attention of the women behind the bar appears to be drawn to something near the door. At 11.31.17sec a figure appears on the other side of the bar. It appears to startle the women behind the bar. Mr Charlesworth can be seen walking behind the bar back towards the kitchen at this stage. The person who has entered the hotel has what appears to be a black hoodie with writing on the front. He appears to have something white on his hands. He may have something in his hands but it is difficult to tell from the footage. He appears to have something on his face but it is not clear what that is.
Discussion of CCTV footage
The person who was leaning over the bar on the previous footage to which I have referred appears to have come around to the front of the bar and at 11.31.28sec he appears to be walking behind the bar and towards the cashier’s area. That person moves over towards where the safe is, bends down, looks at the safe directly and then looks at the cashier’s drawer. At 11.31.26sec a second offender comes into view. He appears to walk around in front of the bar and to the side area of the bar as the first offender approaches the safe. At 11.31.43sec the second offender is visible walking in the opposite direction back towards the doors. At this time it is plain that he has a cover around his head and neck area extending down towards his body. The person also appears to have a pair of black sunglasses on. I can see no evidence of a mask on that person’s face. The person who is behind the bar and near the cashier’s desk as I said earlier appears to be the same person who had initially presented on the bar. That person is wearing a black hooded jacket with white writing on the front. The clothing that that person is wearing appears to be consistent with the Exhibit P25 being the clothing that was removed from George Harradine who had been arrested in the car park. This consisted of shoes, tracksuit pants and a hooded jumper with the words “Asics” written in white writing across the front. Clearer vision of this is available at 11.32.18sec when that person has disappeared from view for some time and then appears to return to the area behind the bar. This person also has some white items on his hands. I note that two white socks were located near George Harradine in the car park of the Rosewater Hotel.
At 11.32.23sec the other person is seen walking through the pokie room. This appears to be the same person who had been visible in the vision earlier on the same side of the bar. At 11.32.35sec this person appears to have gone through the hotel and is then heading towards the doors again. He appears at that stage to have baggy style pants on with a dark coloured jumper with long sleeves and something material appears to be a lighter colour than the jumper around his head and the top of his shoulders. His head was obscured by balloons that are hanging from the bar. There appears to be something white in his right hand pocket.
I have also viewed the footage that is marked “pokie bar”. At 11.31.38sec there are two people visible. One is behind the bar in the area of the cashier. The other is to the left hand side of the bar. A person to the left hand side of the bar appears to have dark coloured clothing, sunglasses and something white in the area of the right pocket. It is not very clear from the footage what that is. In the next frame at 11.31.39sec the person to the left hand side of the bar has moved up the bar and at that stage it is clearer on the footage that that person has something around their head and neck. The white item near the right hand trouser pocket is still visible. This person also appears to have white shoes on. He disappears from view whilst the person remains behind the bar near the cashier’s counter for some time. At 11.31.52sec the person near the cashier’s area disappears from view. At 11.32.13sec the person behind the bar reappears. It is plain from the vision at 11.32.14sec that that person is wearing a dark coloured top with white writing, dark pants, whitish coloured shoes and has something around the face. He also appears to have something white in his hands. At 11.32.29sec the person who had been on the left hand side of the bar reappears in the vision. He makes his way towards the end of the bar. He appears to have something around his head and his shoulders. He appears to have something dark covering his eyes, he is wearing a long sleeved dark top; when he turns to face the bar in the frame that is 11.32.31sec there appears to be something white in his right hand pocket. He then disappears from view in this footage at 11.32.34sec.
The vision from the “car park number 1” clearly shows the white Statesman in the car park. It shows the person run from the hotel and get into the passenger seat of the car. Thereafter the police attend and the occupants of the car are arrested.
Defence case
The accused did not give evidence. He called his mother Debra Marie Harradine. She gave evidence that she was living at 8 Wright Avenue, Northfield and 7 Stevenson Street, Nailsworth in November 2011. She gave evidence that her sister Sharon Gollan lives in Ivey Street, Ottoway[36] and was living there in November 2011. She said she would visit her sister on occasions in about November 2011 with other members of the family. She also gave evidence that a relative named Pedder Dixon lives on Torrens Road and indicated where that was on Exhibit P4. She gave evidence that her sons often swapped their clothing and they sometimes swapped with the wider community. She said by that she meant with the Aboriginal community. She said the last time that she had seen her son before the robbery was during the day on the day before the robbery and at that time he was with his brother Anthony. She was not able to say what he was wearing at the time or what his brother was wearing.
[36] Exhibit D36
Counsel addresses
The prosecutor invited me to find that the accused was the third assailant. He submitted that the circumstantial evidence was as follows:
1From the CCTV footage that two males entered the bistro area, one male went behind the bar. The male that went behind the bar was George Harradine. He said this was consistent with the clothing that George Harradine was located in being the Asic hoodie, having a yellow T-shirt with a picture on the front around his head with white Puma sneakers.
2That the getaway driver is Anthony Harradine. Anthony Harradine is the brother of the accused.
3That George Harradine is the cousin of the accused.
4That the man who does not go behind the bar has some sort of cloth wrapped around his head, that he is wearing sunglasses and a dark long sleeved top. He has something wrapped around his head, it is not clear whether he has a mask as described by the witnesses.
5That the T-shirt that was located at 104 Russell Street is consistent with the item that is around the head of the offender, that that T-shirt has a DNA profile that matches the profile of the accused. That in close proximity to that item there are other items associated with the robbery including a dark coloured long sleeve top, sunglasses, screwdriver and a tyre lever.
6That a person generally matching the description of the accused is seen walking down the railway track.
7That the accused is then arrested in Canning Street. At time of the arrest it is about 7 minutes after the robbery. When the accused is arrested he has white shoes consistent with the offender. He has dark baggy pants consistent with the vision on the CCTV footage. That he has something white in his right pocket. That he is alone at that time. That the police have not seen any other person in the vicinity.
The prosecutor makes the submission that there is no reasonable hypothesis consistent with the accused’s innocence in relation to this matter.
Mr Coates addressed on behalf of the accused. He submitted that there were inherent weaknesses in each strand of the circumstantial case such that I could not satisfied beyond reasonable doubt of the guilt of the accused.
He commenced with the descriptions given by the eyewitnesses and how it relates to the CCTV footage. He submitted that the CCTV footage was not clear and that I should have little reliance upon it. He submitted that the witnesses Charlesworth, Marshall and Spencer indicated that both offenders within the hotel were wearing skeleton masks but that no skeleton mask had in fact been located. In addition to this of course the police officer Hartman who had provided a statement had also described the person who had run away as having a skeleton mask on. No skeleton mask was located either upon the accused or within the items that had apparently been discarded at 104 Russell Street.
Mr Coates submitted that when Mr Harradine was arrested he did not have anything on him that would have connected him to the robbery.[37] In relation to the white item that appears to be sticking out of Mr Harradine’s pocket when he was arrested and is visible on the Exhibit P19 and in the photographs P2, Mr Coates makes the submission that because of the inadequacies of the CCTV and in the absence of that item having been tendered I can make no assessment of it.
[37] TT217
In relation to the presence of the DNA profile on the T-shirt P10, Mr Coates submits that I should rely upon the evidence of Mrs Harradine that clothing belonging to the accused and others was swapped and changed between the community. This may well provide the explanation for why it was that the DNA profile matched when it was said that the accused had not been involved in the robbery.
Mr Coates also submits that the timing is significant in relation to when the dog handler finds the clothes in Russell Street. These clothes were not located when the dog handler first walked past 104 Russell Street. It was only after he had been to the scene of the arrest and then doubled back up the railway line that these clothes were located. Mr Coates submits that it is a reasonable hypothesis that there was a third offender who ran from the car park and was secreted in that position behind the bush at 104 Russell Street when the police officer first walked past.
Mr Coates also submitted that it was a reasonable hypothesis that the items located at 104 Russell Street were dropped at separate times given the location of the T-shirt behind the meter box and the other items behind the pine tree.
Further, Mr Coates submitted that the person who was seen on the railway line may have been the offender who has doubled back to Russell Street where he has dumped the other items.
Mr Coates submits that there is no evidence that his client has emerged from the railway line, rather that he has been walking along Canning Street. Mr Coates submits that there is a reasonable hypothesis consistent with the innocence of Jack Harradine and that another male person was involved as the third offender in the robbery.
Discussion
The Crown has presented this case on the basis of a joint enterprise. The joint enterprise was that three people were engaged in the robbery of the Rosewater Hotel on the morning of 5 November 2011. One person was engaged as the getaway driver. That person is Anthony Harradine. Two other people entered the hotel. One person stole money from the cashier’s till. That person is George Harradine. The question for me is whether or not it has been proven beyond reasonable doubt that the accused is the third person and if so has he been engaged in a joint enterprise to rob the Rosewater Hotel.
The Crown case in relation to the identity of the third person is entirely reliant upon circumstantial evidence. I cannot be satisfied beyond reasonable doubt of the guilt of the accused on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances.[38] It is of critical importance to recognise however that in considering the circumstantial case all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference with innocence open on the evidence. The evidence on a circumstantial case is not to be considered in a piecemeal fashion.
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither rat trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2] (83):“At the end of the trial the jury must consider all the evidence and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed
compartment’; they should consider the accumulation of the evidence: cf Weeder v The Queen (84).
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage (85), cited in R v Van Beelen (86); and see Thomas v The Queen (87) and cases there cited.”
And as Dixon CJ said (88) in Plomp:
“All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.”[39]
[38] R v Hillier [2007] 228 CLR 618 at 637.
[39] R v Hillier [2007] 228 CLR 618 at p 48
I have considered all of the evidence that has been elicited in relation to these matters. There are some matters upon which I find the witnesses are not reliable. In respect of the witnesses, Marshall, Spencer, Charlesworth and Hartman they have all referred to a facial covering similar to a mask and perhaps a skeletal mask. Upon viewing the CCTV footage an advantage that I had that unfortunately none of those witnesses had, it is plain that neither offender is in fact wearing such a mask. I can however understand how such a mistake could be made given the patterning that appears upon the T-shirts that both offenders had on their heads at the relevant times. Both T-shirts have markings similar to the markings of a mask although not identical. No masks were found by the police in their enquiries.
I find the following facts established:
1That Anthony Harradine was the getaway driver for the robbery at the Rosewater Hotel on 5 November 2011.
2He is the brother of the accused.
3That George Harradine was one of the people who entered the hotel at about 11.30am. He went behind the bar. He removed money from the hotel.
4He is the cousin of the accused. (I will refer to him as offender no. 1).
5That offender no. 2 entered the hotel but remained on the patron’s side of the bar at all stages. When he entered the bar he was wearing baggy dark coloured pants, a dark top with long sleeves, had an item of clothing around his head extending to his shoulder area and was wearing sunglasses.
6As he exited the hotel for the final time, visible in his right trouser pocket is a white item that sticks out of the pocket.
7That offender no. 2 ran through the rear car park and exited the car park through a driveway that led to Lambert Street.
8The offender dumped items of clothing and other items in the front garden of 104 Russell Street.
9A man was seen to walk along the railway track between Russell Street and Canning Street shortly after the robbery and shortly before the accused was located in Canning Street.
10The accused was seen by Senior Constable Graham and Senior Constable Hancock in the vicinity of the railway track on Canning Street.
11When the accused was located he had on dark, baggy pants, white shoes and a white piece of paper or the like protruding from his right hand trouser pocket.
12He was stopped 7 minutes after the robbery at the Rosewater Hotel.
13The distance from the Rosewater Hotel to that point is 634 metres.
14The T-shirt that was located at 104 Russell Street was examined, a DNA profile was extracted, that DNA profile matches the profile of the accused. He is more than a billion times more likely to be the donor of that DNA than unknown, unrelated male. The accused could not be excluded as a contributor to the DNA profile that was obtained from the screwdriver, the sunglasses and the black jacket.
15The accused matches the physical description of offender number 2 as described by the eyewitnesses.
I have considered whether there is any rational explanation consistent with the innocence of the accused. In particular, it has been suggested that the rational explanation may be that the accused was not the second offender but that he had been in the area for some other purpose. In the circumstances I do not consider that this is a reasonable possibility.
I am satisfied beyond reasonable doubt that it was the accused Jack Harradine who entered the Rosewater Hotel with his cousin George Harradine, that he adopted a form of disguise by pulling a T-shirt over his head and shoulders, that he wore sunglasses whilst he was in the hotel and that upon leaving the hotel he ran away down Lambert Street on to Lincoln Street where he dropped a glove. Thereafter he went into Russell Street, disposed of a number of items of clothing at 104 Russell Street, left Russell Street, walked along the train line towards Canning Street and was arrested in Canning Street.
I further find that he was engaged in the joint enterprise with George Harradine and Anthony Harradine to rob the Rosewater Hotel, that the Rosewater Hotel was robbed of money, that one or more of the offenders was in possession of an offensive weapon, being a screwdriver, and that Anthony Neil Harradine, George Stanley Harradine and Jack Augustus Harradine were in company with each other when the offence was committed.
I find the accused guilty of the offence of Aggravated Robbery.
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