R v HUYNH - [2010] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HUYNH
Criminal Trial by Judge Alone
[2010] SADC 54
Reasons for the Verdicts of His Honour Judge Barrett
8 April 2010
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
Accused charged with offences of Aggravated Serious Criminal Trespass and Aggravated Robbery - circumstantial evidence - robbery committed by two men in presence of accused - issue was whether accused was acting jointly with the two men.
Held: Verdicts of guilty on both counts.

R v HUYNH
[2010] SADC 54

The accused is charged with one count of aggravated serious criminal trespass and one count of aggravated robbery. The following matters are not in dispute. At about 7:20pm on 16 July 2008 the accused knocked on the front screen door of the house of Mr Mark Withall at 4 White Court, Ottoway. When the door was opened, two masked men attacked Mr Withall with weapons they had. One was carrying a machete and the other a hockey stick. The men forced Mr Withall and the accused into the house. The men robbed Mr Withall of cash and a quantity of cannabis. The two men entered the house and remained in it for a period with the intention of committing a robbery. Each of them attacked Mr Withall before the robbery with the weapon that each of them had. Mr Withall was attacked at other times during the incident. The two men committed the offences of aggravated serious criminal trespass and aggravated robbery.
What is in dispute is the prosecution allegation that the accused was involved in a joint enterprise with the two masked men. Thus, while each ingredient of both offences is in dispute, the dispute consists of the accused’s involvement. I bear in mind the presumption of the accused’s innocence.
The ingredients of the two offences are as follows. Each ingredient must be proved beyond reasonable doubt. In respect of each ingredient it must be proved that the accused acted jointly with the two masked men.
Aggravated Serious Criminal Trespass
1. The accused entered or remained in the house.
2.The accused did so intentionally as a trespasser. The accused himself was not a trespasser. He was allowed into the house. For this ingredient to be satisfied, it must be proved that the accused was acting jointly with the two men who were trespassers. It must be proved that he intentionally facilitated their entry.
3.The accused intended to play his part in the commission of a robbery when he entered or remained in the house.
4.The accused committed the aggravated form of the offence in at least one of two ways. Either he was acting jointly with, ie in the company of the other two men, or his joint action with the two men included the possession of weapons.
Aggravated Robbery
1.The accused was part of a joint enterprise with the masked men to commit the theft of cash and cannabis from Mark Withall and Christine Withall.
2.The accused was part of a joint enterprise with the two masked men to use force against Mark Withall and Christine Withall.
3.The force was used at the time of or immediately before or after the theft.
4.The accused committed the aggravated form of the offence in at least one of two ways. Either he was acting jointly with, ie in the company of the other two men or his joint action with the two men included the possession of weapons.
The prosecution case is based upon circumstantial evidence. The prosecution points to a number of circumstantial facts and submits that I should first, find those facts proved, then, infer the accused’s guilt of each offence from the proved facts. In those circumstances, I may not return a verdict of guilty on either charge unless the circumstances exclude any reasonable explanation consistent with innocence. I must be satisfied not only that the accused’s guilt is a rational inference, but that it is the only rational inference that the circumstances I find proved enable me to draw. In approaching my evaluation of the circumstantial evidence, I must identify and decide which facts are established by the evidence. I may have regard to the combined effect of any facts I find proved when I consider whether the prosecution has proved its case beyond reasonable doubt. I will later identify and discuss the circumstantial facts alleged by the prosecution.
I should put aside any opinions or feelings I might have that could be described as prejudices or biases. I put aside any sympathy I might have for Mr Withall, who was undoubtedly attacked and put in fear by the two masked men. I also put aside any sympathy I might have for his adult children who were in the house at the time. I put aside any views I might have about people who consume or trade in cannabis. The accused and Mr Withall were both consumers of the drug. Mr Withall was a supplier of the drug, possibly a seller.
To find proved that the accused was engaged in a joint enterprise with the other men I must find proved that there was an agreement by the three of them that the two offences would be committed. In this case, I must find that the three men agreed that the accused’s involvement would be to facilitate the unlawful entry into the house of the other men so that they could carry out the robbery.
I excluded a record of interview police had with the accused. I did so in the exercise of the unfairness discretion. Police had continued to ask the accused questions after he had indicated he did not wish to answer questions. I remind myself that the accused was entitled to decline to answer questions and I should not draw any inference against him by reason of his exercise of that right. I put the interview out of my mind.
I turn to a consideration of the evidence. Much of the evidence is not in dispute. For the prosecution, Mr Fowler-Walker called as witnesses:
·Mr Mark Withall
·Mr Withall’s daughter, Christine Withall.
·Mr Withall’s son, Wayne Withall.
·Senior Constable Andrew Winterfield.
·Senior Constable Kelly Lavington.
For the defence, Mr Niarchos called:
·The accused.
·Mr Adam Lister.
It is convenient to summarise the evidence in a chronological fashion.
The accused was born on 30 April 1985. In July 2008, he was 23. He lived at Truss Terrace, Peterhead, with his partner Kylie Bayley. He said he had two jobs, one full time and one casual. He had been a regular user of cannabis for 12 to 13 years (T217). He said he suffers from post traumatic stress and “schizophrenia due to psychosis”. The evidence is not clear whether he was taking prescribed medication for these conditions in July 2008 (T220 to 221). He used a lot of cannabis. He purchased cannabis from Mr Withall and also from other people. At the time, he was not driving because he was disqualified from doing so.
On 16 July 2008, he said he wanted to buy some cannabis. He telephoned Mr Withall to see if he could obtain some. The accused said Mr Withall said that he had “plenty” (T224). Mr Withall said that at that time the accused owed him about $2,000 for cannabis previously supplied. That evidence was not contradicted (first circumstantial facts).
The circumstances of the accused getting to and from Mr Withall’s house are in dispute. I will return to that topic later.
The accused knocked on Mr Withall’s front door at about 7:20pm. It was winter. The sun must have set. D7 is a sunrise and sunset chart. It says that on 16 July 2008, the sun set at 1723 hours. The front wooden door was open. The front screen door was shut and locked. It was a sturdy door with metal bars reinforcing its construction. All windows and doors of the house were barred. There were cameras installed at the front and back of the house. There was a computer system in the house which was set up to monitor the exterior of the house but police investigations revealed no footage of what happened. It appears the system was not working properly. I conclude that unless someone was let into the house, access from outside would have been extremely difficult for anyone without a key.
Mr Withall did not answer the door himself when the accused knocked. It appears he was in his bedroom at the other end of the house. He was alerted to the accused being at the front door by his daughter Christine. He made his way to the front screen door and unlocked it. There was no evidence of how long it was between the accused knocking on the front door and Mr Withall opening it. There is no suggestion of Mr Withall having to get dressed to go to the front door. Christine Withall said her father was asleep when she alerted him to the accused’s presence outside. Mr Withall himself says he was lying down. The house was a relatively small Housing Trust house. It was a short walk from the bedroom to the front door. I conclude it might have been a minute or so between the accused knocking on, and Mr Withall opening, the front door.
There is a small dispute about one aspect of what happened when Mr Withall opened the door. I am unable to resolve the dispute. It is a matter of small importance. Mr Withall said that he opened the door slightly with the intention of holding onto the door while the accused came in under his arm. He says that when he opened the door the accused took hold of it and slammed it wide open so that it hit the adjoining wall making a noise. The implication of that evidence might be that the accused intended by that action to fully open the door, to detach it from Mr Withall’s grasp and to signal to the two men outside by the banging of the door that it was open and they should come in. The accused denies he did that. However, he agreed that the men appeared as soon as the door was opened. It was “virtually simultaneously …” (T241) (second circumstantial fact).
The prosecution submits that the significance of the appearance of the masked men as soon as the door was opened is that they must have been sufficiently close to the front door to know when it was opened. It can be no coincidence, the prosecution submits, that the robbers were at Mr Withall’s open front door at the same time as the accused. There must have been collaboration between the accused and the men. The accused probably saw the men hiding in front of the house. I will discuss this topic shortly, including the accused’s submissions which bear on it.
The men attacked Mr Withall at the front door with the machete and the hockey stick. The attack seems to have been at its most intense at the front door, although some other blows were struck when Mr Withall and the men were inside.
I need not analyse in great detail what went on inside the house. Mr Withall distinguishes the two men in these terms. He says one was tall and the other was shorter and stocky. The tall man had the hockey stick. The shorter one had the machete. The tall one was the one who forced Mr Withall to hand over the money, which he did by taking it out of his top left shirt pocket and handing it over. The taller man largely stayed with him in the lounge room.
The shorter one was seeking the drugs. He was asking Mr Withall where they were. He menaced Christine Withall with the machete and was with her in the kitchen. Both Christine and the man were searching for the bag which contained the cannabis. The bag was near the freezer. There were several bags there. There was some difficulty locating the one with the drugs. The bag containing the cannabis was said by Mr Withall, his daughter and his son Wayne, to be blue or bluey grey plastic shopping bag which was itself inside a fabric or calico shopping bag.
The taller man appeared anxious to leave the house. He said things like “let’s go”. The shorter man appeared dissatisfied that he had secured all of the cannabis in the house. He said things like “we know there’s more”. Mr Withall and others were telling him that that was all there was. The man was delaying leaving the house saying that he did not think he had all of it. The men left taking the cannabis in the blue bag.
There are some minor differences between all witnesses, including the accused, about who said what while the men were in the house. In my view, nothing that was said assists in the task of deciding whether or not the accused was involved with the men in the trespass or the robbery. The accused appeared agitated. One of the men may have verbally abused him. The accused might have said that he knew nothing about what was going on. That evidence is equivocal. The prosecution submits I should regard the accused’s failure to assist Mr Withall or his family and his failure to escape as indicative of his involvement. I do not find either of those matters of any assistance. The men were armed and violent. They had injured Mr Withall. Everything happened very quickly. The accused could not realistically help anyone and the violence and rapidity of the robbery may have made escape unrealistic.
Nor do I think it is of any great assistance that the accused himself was not robbed of the money he says he had with him to pay for the cannabis. It may not have occurred to the two men to rob him. They did not demand any money from the adult children of Mr Withall.
The men eventually fled. I find no significance in the difference between the evidence of Mr Withall on the one hand and his children on the other about the manner of the men’s flight. Mr Withall says they walked. His son and daughter say they ran.
There may, however, be some significance in the circumstances of the accused leaving the house. It is common ground that he left about a minute after the two men left (third circumstantial fact).
There is evidence of something being said by the accused after the men left. Mr Withall said the accused say “I hope they haven’t got my car because my car is in the end car park” (T97). Mr Withall assumed from that that the accused meant that his car was parked either in Larsen Street at the northern end where there is a car park or in a car park in White Court itself. Mr Withall said that the accused further said “My car is out there, it’s in the back car park. I hope they don’t do nothing to it” (T108). Mr Withall agreed that he had not told the police that night about the accused saying that. He noted that the accused did not go north from his house after the men left which was in the direction of the White Court car park. Instead, he went east through the gateway.
Christine Withall said that the accused said that he needed to get to his car. She said that she had replied that if it was in the back car park, it should be fine. She said the accused said “No, I need to get to my car” (T150). Wayne Withall said that he could not remember what the accused said. He agreed it might have been “I have to go” (T199).
The accused said that he could not remember if he said anything. He said that, although he does not recall saying it, he could have said “My mate’s in the car” (T230). It was not put to any of the prosecution witnesses that the accused had said that. I will not draw any adverse inference against the accused from that not being put to the prosecution witnesses. The evidence is so equivocal that counsel might have thought that he was not obliged to put it. The accused went on to explain why he left so soon after the men. He said all he wanted to do was get out of there. He was “freaking out”, “I am uncomfortable” (T231).
The men crossed the landscaping at the front of the Withall house. They disappeared through a gateway in an iron fence some 25 metres away. The gateway led from White Court to Larsen Court. White Court is a dead end at its southern extreme. Larsen Court is a dead end at its northern extreme (the court took a view of the area on the first day of the trial). The accused went through the same gateway as the masked men (fourth circumstantial fact).
The gateway leads to the northern end of Larsen Court. There are two small car parks at that end. There is one each side of the dead end and as you go through the gateway, they are on the left. The car park on the White Court side was bounded by some concrete edging. The car park on the other side had no edging. Cars parked in or near the car parks could only leave Larsen Court by driving south. In doing so they would go past the open gateway between the two Courts. The gateway was 3½ to 4 feet wide.
What happened after the accused went through the gateway is disputed. Mr Withall said that he saw the accused try to get into a silver Holden station wagon which was driving slowly past the gateway. The accused denies that. He says that he got into a red Holden station wagon driven by his witness, Mr Lister. I will return to that topic shortly.
Both Mr Withall and his daughter Christine say that they saw a silver Holden station wagon drive past the gateway. The accused says he saw no car other than Mr Lister’s in Larsen Court. His witness noticed no other car. At 10:45pm, just over three hours later, the accused was a passenger in a silver Holden station wagon which arrived at his house in Peterhead (fifth circumstantial fact). Police were there when the car arrived. The car was being driven by Mr Tony Lane. He was estimated by Senior Constable Winterfield as being 6 foot 8 inches tall. Mr Withall said that the driver of the car driving past the gateway was a tall person “like the head was nearly hitting the roof” (T119) (sixth circumstantial fact).
In the front passenger foot well of the car, there was a clear plastic bag containing 27.5 grams of cannabis. The other man in the car, apart from the accused, was Mr Luke Saunders. He was about 6 foot tall, according to Winterfield. He was in possession of $1,250 - $1,050 made up of fifties, $140 in twenties, $15 in fives and $6.30 in coins. Mr Withall said in court that the robbers had stolen between $800 and $2,000. He said 85% of this was in fifties. Police seized only $800 in fifties because that is what Mr Withall told them had been stolen (seventh circumstantial fact).
Senior Constable Levington noticed some blue plastic showing out of the front of the accused’s pants. She searched him and found a blue plastic shopping bag containing cannabis (photo 18 of P1) (eighth circumstantial fact). The cannabis in that bag weighed 23.5 grams. Mr Withall said that the robbers had stolen about a pound or 450 grams of cannabis.
I return to the most prominent evidentiary dispute. It concerns the circumstances of the accused leaving Larsen Court. Mr Withall says that he saw the accused trying to get into the back seat of the silver Holden station wagon which was being driven from the scene. If that fact is proved, it would be a very substantial circumstantial fact tending to establish the accused’s guilt. It might actually amount to direct evidence of his involvement. The accused says that he left the scene in Mr Lister’s red Holden station wagon. Mr Lister said the same. Neither Christine nor Wayne Withall saw the accused attempt to get into the silver station wagon, although Christine says she saw the car going past the gateway.
For reasons that I briefly explain, I do not accept Mr Withall’s evidence that he saw the accused trying to get into the silver station wagon. He did not tell the police that on the night. Seeing the accused trying to get into what he thought was the getaway car would surely have been very prominent in Mr Withall’s mind when he was speaking to the police. His not mentioning it to the police is, in my view, significant. There is no suggestion he did not tell the police about seeing the car, but he accepts that he did not tell the police about seeing the accused trying to get into it.

The view that the Mr Withall and his daughter had of the car must have been momentary, even if the car was moving slowly. The car could only be seen as it passed the gateway, which is some 3½ to 4 feet wide. Christine must have seen the car at almost exactly the same time as her father did. She did not see the accused trying to get into it. The car would have been about 30 metres away.
Mr Withall says he saw the accused trying to get into the back passenger side of the car, ie the other side of the car from him. The accused is very short. Very little of him would have been visible through or over the car.
Mr Withall was apt to confuse what he actually saw and what he concluded must have been the case. I give just two examples. He agreed that at a proofing session shortly before the trial, he said that he could see two men in the front seat of the car. In cross-examination, he said that he had presumed that (T123).
He also agreed that at the proofing session he had said that the two men still had their balaclavas on. He explained why he said that in these terms.
“Because they had walked that way and no other cars left and that was the only car that left so I presume they went behind that gate and got in that fence, got in the car and slowly drove off.” (T124).
While I find that Mr Withall was generally trying to tell the truth as he saw it, I do not accept that he actually saw the accused trying to get into the silver Holden. I do however accept that he and his daughter saw a silver Holden station wagon go past the gateway. I accept Christine’s evidence on that topic despite her saying that the car went past the gateway at 40 to 50 kilometres per hour. The car could not have been going that fast. The car had only just a few metres to accelerate from north of the gateway. I think she has misjudged the speed.
Significantly, however, both Mr Withall and his daughter say that they saw the car go past the gateway after they saw the accused go through it (Christine Withall – T157, Mr Withall – T97). The accused would have been in a position to see the car. Both he and Mr Lister deny noticing any car driving out of Larsen Court. Mr Lister says he was waiting in the car for the accused to come back, but he noticed nothing. He said he noticed nothing because he was having a pipe at the time. When asked if there were any cars in the car park, he said “Possibly, I wasn’t looking, don’t write down what cars are around”. Mr Lister was, in my assessment, a poor witness.
Of course, if the accused was involved with the robbers, it would be unremarkable if he were to go to the scene in his own transport. He was not masked. The other men were. It would be expected that they would leave first and that their leaving would be urgent. His leaving would not be urgent. If he did leave in another car, that would not necessarily be an indication that he was not acting jointly with the masked men. The issue of whether he left separately is only important to rebut Mr Withall’s claim that he left in the car with the men. I have rejected that claim for other reasons. Those reasons are unrelated to the evidence of the accused and Mr Lister.
If the accused did leave separately from the other men that would certainly be consistent with his innocence. If he left with them that would virtually be proof of his guilt. There is no burden on him to prove anything.
I turn now to consider the evidence of the accused and Mr Lister. Both men say that Mr Lister came to the accused’s house to pick him up. Mr Lister said it was he who was looking for cannabis. He asked the accused he if he could get him some. The accused made a couple of phone calls and told him that he could get some. In his evidence, the accused made no mention of Mr Lister wanting cannabis. He said he wanted some for himself and he got Mr Lister to give him a lift.
Mr Lister said the accused told him that they were going to the house of someone called Matthew “or something like that” (T258). Both said that this was the only time that Mr Lister had given the accused a lift anywhere. In examination in chief Mr Lister gave no evidence of where he drove apart from saying that it was to a place in the western suburbs. He gave no evidence about when he drove the accused. In cross-examination he was questioned about driving on the 16 July 2008. He gave answers which suggested he accepted that that was when he was driving the accused. That questioning was directed to establishing that he was claiming to have been driving his red Holden station wagon in July of 2008. I return to that topic shortly.
The accused says that after he had gone to the Withall house for the cannabis, and had witnessed the robbery, he came back to the car. He said “Go go go” and “The blokes just being almost hurt”. He was asked whether he had said “Almost hurt”. He replied “I don’t know, I can’t remember, almost hurt, I’m not sure. I was shaken, I was frozen. All I said was ‘Go go go’” (T231).
Mr Lister said that he remained in the car having a pipe and a couple of minutes later the accused came back. He said “He looked pretty spooked and said ‘Get out of here, get out of here’ so I put my foot down and off we went”. He denied that the accused had said anything more about what had happened (T261).
The two accounts are very similar and only remarkable for there being no mention by the accused that he had just witnessed a robbery in which his supplier had been attacked by two masked men with a machete and a hockey stick.
The accused said that after leaving Larsen Court they drove to a phone box. He said that he was not going to go without marijuana so he made a phone call to a family friend called Tony Lane. Tony Lane is the tall driver of the silver Holden station wagon in which the accused arrived at his own home at 10:45pm. Tony Lane was able to supply the accused with some marijuana. Lane was someone from whom the accused had got marijuana “plenty of times” (T232). Mr Lister then drove the accused to a side street near the accused’ mother-in-law’s place at Taperoo. The two waited together in the car for about an hour until Mr Tony Lane arrived. Lane arrived with Luke Saunders, whom the accused said he had not met before. He bought an ounce of marijuana from Lane. He said he was offered the choice of two bags to purchase – one was the clear plastic bag later located by police in the front foot well of the car (photograph 13 of P1), and the other was the blue plastic bag (photograph 18 of P1). He purchased the latter. He paid $240 for it. He then gave Mr Lister “a handful of bud” out of the blue bag. Lister then had to leave “because he hadn’t cooked his missus dinner yet” (T235). The accused got into Lane’s car because Lane wanted to come and say hello. They drove off to Pelican Point for a smoke. He smoked marijuana in the car from a bong which he made out of a plastic bottle. He was with the men for a couple of hours (T236). They went to a service station and then went to his house where he was arrested.
Mr Lister said that after they drove away from Larsen Court he dropped the accused off at his mother-in-law’s house. He made no mention of the phone call from the phone box seeking marijuana. After they got to the mother-in-law’s place they just sat in the car for a little bit. There is no mention of the hour long wait for the delivery of the marijuana. As Lister was about to leave the accused gave him a little bit of marijuana. “It wasn’t much, just what he had left” (T261). There is no mention of the marijuana being taken from that which had just been delivered by Lane. There was no mention of the accused getting into the car with Lane and Saunders.
I do not believe the account given by either the accused or Mr Lister. The account of each about how they came to leave Larsen Court seems unlikely if the accused had been the innocent witness to a violent robbery. Their accounts of what transpired after that are so contradictory as to be unbelievable. Lister’s credit was further damaged by evidence in rebuttal. He was cross-examined about the registration of his red Holden station wagon. He said he was using it as at July 2008. He said the car was registered in his girlfriend’s name because he did not have a licence. Exhibit P10 is an extract of a record of the Motor Vehicles Department. It shows a red Holden station wagon registered in the name of his girlfriend Kyra Jane MacDonald. It was registered in her name as at the 20December 2007. P11 is an extract of the record for the 21 December 2007. On that day the same car was registered in the name of Robert Turoczi, the person to whom Mr Lister said he sold the car. Mr Lister said that the registration of the car was transferred to his friend when the friend started using it around Christmas 2008 (T267).
Mr Niarchos objected to the tender of the registration papers because they had not been put to Mr Lister. While I think it would have been preferable if the documents had been put to the witness, the cross-examiner did put to him that the registration papers of his red Holden station wagon were transferred from his girlfriend’s name to the purchaser’s name in December 2007. The witness denied that. He said the transfer occurred in December 2008. He maintained that he was using the car in July 2008. In these circumstances the point was fairly put to the witness despite the records not being put to him.
My disbelief of the evidence of the accused about the events after the robbery adversely affects his credit on other topics. I do not accept his evidence generally. Of course he bears no onus of proof but I am left being unwilling to rely on his evidence where it is not supported by other evidence. That conclusion about the accused’s credibility does not add to the weight of the prosecution evidence. It simply means that I must determine the case on the prosecution evidence alone. The prosecution must prove each ingredient of each offence beyond reasonable doubt and it seeks to do so by adducing circumstantial evidence.
Returning to the events after the robbery. I am unable to find how the accused left the scene..
I turn to a consideration of the circumstantial facts relied upon by the prosecution. I have had regard to the submissions made by Mr Niarchos for the accused about those facts and also about other matters.
First circumstantial facts
The accused was a heavy user of cannabis and wanted some cannabis that day. Mr Withall said the accused owed him about $2,000 for cannabis previously supplied. The accused knew that Mr Withall had plenty of cannabis. I find these facts proved. These facts do no more than provide a possible motive for the robbery. The accused needed cannabis. He knew that Mr Withall plenty. He owed Mr Withall money for earlier supplies but there is no evidence that Mr Withall had refused him credit. The accused may have had money to pay for what he required. He said he did have but I am not willing to rely on that evidence. I am not however willing to find that he did not have money. Taking alone these circumstantial facts are slight in proof of the accused’s guilt.
Second Circumstantial Fact
The robbers appeared Mr Withall’s front door “virtually simultaneously” with the formerly locked door being opened. In my view this fact is significant in proof of the accused’s guilt. Mr Niarchos submits that the evidence suggested that home invasions in that area were unremarkable. Mr Withall said that it was a gang run area. Accepting that evidence, it is still remarkable that the masked and armed men appeared at the front door almost as soon as it was opened. It is likely the robbery was planned. The masks and the weapons are indicative of that. I expect that Mr Withall would be known to people in the drug scene. His barricaded house might have been the target of offending of this type but in my view it would be remarkable that robbers unassociated with the accused might hide themselves about the house waiting for the first opportunity to get into it. Taken alone, this fact would not prove the accused’s guilt but it is a significant inculpatory factor. I accept Mr Niarchos’ submission that the robbers might have been able to get from a hiding place to the front door in the time it took the door to be answered. It may be that they were not visible to the accused as he walked towards the front door. However, they must have been very close by. Both Mr Withall and the accused say that the men attacked him almost as soon as he opened the door. I accept that evidence.
Third Circumstantial Fact
The accused left the house about a minute after the robbers left. Both witnesses for the prosecution and the accused say that he left about a minute after the robbers. I accept that fact. The accused said he was “freaking” during the robbery. It was a violent offence and would be frightening to anyone witnessing it. Mr Withall was attacked and injured by a machete and a hockey stick. While people’s reactions to trauma are very variable, it seems remarkable that someone unconnected with the robbers would want to go, outside, alone a minute after they had left. The accused has no memory of saying that he had to leave to secure his car. He gave no plausible reason for leaving as soon after the men as he did. I find this fact a significant inculpatory evidence.
Fourth Circumstantial Fact
The accused went in the same direction as to the two armed robbers about a minute after they had left. The prosecution witnesses and the accused give evidence of this fact. I find it proved. This fact makes the accused’s quick departure from the house all the more remarkable. He goes through the same gateway as the men. In all likelihood he would have been able to see where they went as he approached the gate. In my view, this evidence demonstrates a lack of fear of the robbers on the part of the accused. The combination of this fact and the previous circumstantial fact is very significant evidence of the accused’s guilt.
Fifth Circumstantial Fact
Just over three hours later, the accused was in a car fitting the description of a car seen leaving the scene of the robbery. I accept the evidence of Mr Withall and his daughter, Christine, that they saw a silver Holden station wagon going past the gateway after the robbery. The robbers had just gone through that gateway. It is certainly noteworthy that the accused is a passenger in a car fitting that description three hours later. On his account he is in the company of a drug dealer Mr Lane. One or both of the robbers would inevitably be a drug user and/or dealer. On behalf of the accused Mr Niarchos objected to the evidence of the accused being a passenger in that car. I ruled it admissible because in my view it is a relevant piece of circumstantial evidence. I accept that cars of that description are not rare. Drug users and/or dealers are not rare. Taken alone, these facts would be of limited weight. It is true that Mr Withall and his daughter had only a limited opportunity to see the car as it drove past the gateway. Neither was asked to comment on the photograph of the car in which the accused was a passenger. It might have been prudent for each witness to be invited to comment on the photograph of the car in which the accused was later a passenger but the evidence of the apparent coincidence is of some evidentiary weight notwithstanding that they were not invited to comment.
Sixth Circumstantial Fact
A tall man was driving the car in which the accused was located. He was estimated to be 6’8” all. A tall man had been observed driving a similar car from the scene. I would not place any great weight on a suggested similarity between the observations of the driver of the getaway car and Mr Lane being the driver of a similar car at 10:45pm. Mr Lane is estimated to be 6’8” tall. I think there is some force in Mr Niarchos’ submission that if the taller man who committed the robbery had been 6’8” tall it is likely that eye witnesses would comment on that fact. They all said that one of the men was tall, but 6’8” is extremely tall. No-one spoke of the tall man being remarkably tall. I am certainly not willing to conclude that Mr Lane was the tall man at the robbery. This circumstantial fact does not particularly assist the prosecution but in my view it does not significantly assist the defence.
Seventh Circumstantial Fact
Mr Luke Saunders was a passenger in the same car as the accused at 10:45pm and he was in possession of $1,250 cash made up principally of $50 notes. Mr Withall had had stolen at least $800 which was about 85 per cent made up of $50 notes. This fact is not of any great significance in proof of the accused’s guilt.
Eighth Circumstantial Fact
At 10:45pm the accused was found in possession of a quantity of cannabis in a bag fitting the description of the one containing the stolen cannabis. This fact is in my view of some significance in proof of the accused’s guilt. It is true, as Mr Niarchos points out, that the amount of cannabis in the accused’s possession was considerably less than that stolen from Mr Withall. About 450 grams was stolen and the accused was in possession of only 23.5 grams. Even combined with the 27.5 grams found in the front of the car there is much less than that which was stolen. However, the fact that some three hours had elapsed between the robbery and the arrest makes the disparity less exculpatory than it might otherwise be. Taken alone, however, the possession by the accused of a much smaller quantity of cannabis than that stolen in a similar, but common, blue plastic shopping bag is of limited weight in proof of the accused’s guilt.
I have now referred to all of the circumstantial facts relied on by the prosecution and I have canvassed the accused’s submissions relating to them. Despite the limited weight of circumstantial facts five, seven and eight, taken together, those three facts are of some weight in proof of the accused’s guilt. I bear in mind Mr Niarchos’ submission that it would be remarkably foolish for the accused to arrive at his own house in a car used in the robbery and in the company of the robbers when his identity was plainly known to people in the Withall household. There is some force in that submission, but it was some three hours after the event that the accused arrived home and foolishness is not unknown amongst offenders. I reject Mr Niarchos’ other submission that it would be unlikely that the accused would choose to put his life in danger by acting jointly with men with weapons. If the accused was complicit with the two men, he ran a relatively low risk of being hurt.
Conclusion
I find the combination of the second, third and fourth circumstantial facts very persuasive of the accused’s involvement with the two robbers. In the light of facts three and four it is, in my view, no coincidence that the robbers were at the front door as soon as it was opened to the accused. The men arrived almost at the same time as he got admitted to the house and later he left remarkably quickly after them and followed in their direction. He says he was frightened by what the men did inside the house, yet he followed almost immediately after them. There is no rational explanation for him leaving so quickly and following the robbers other than that he was involved with them. The proximity of the arrival and departure of the three men is persuasive of their having a common purpose.
Far from being contradicted by the other evidence, the evidence of the accused being discovered by the police three hours later tends to confirm his involvement with the robbers. He is in possession of cannabis contained in a bag similar to the one in which the stolen cannabis was contained. The disparity in the amount of cannabis stolen and that found on the accused may be explained by the three hours which had elapsed between the robbery and the discovery. The rest of the cannabis could have been hidden elsewhere or traded. A small amount might have been consumed. Further, the accused was in a car similar to the one seen leaving the scene. Although of limited evidentiary value, one of the accused’s companions had in his possession a substantial amount of cash in the same denominations as the money stolen from Mr Withall.

In the end, I find that a combination of circumstantial facts two, three and four is sufficient, in combination with the added weight to be gained from circumstantial facts one, five, seven and eight to satisfy me beyond reasonable doubt that the accused was part of a joint enterprise with the two masked robbers to commit the robbery on Mr Withall and his daughter. I find that his guilt is not only a rational hypothesis but it is the only rational hypothesis. In doing so, he is guilty of counts one and two on the Information. I find the accused guilty of each count on the Information.