R v John Cain Darcy

[2021] NSWDC 59

District Court

New South Wales

Medium Neutral Citation:

R v John Cain Darcy [2021] NSWDC 59

Hearing dates:

8 February 2021 – 16 February 2021

Date of orders:

19/02/2021

Decision date:

19 February 2021

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [111]

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation

CRIME — Violent offences — Detain for advantage — Circumstances of aggravation — Cause actual bodily harm

Legislation Cited:

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Fleming-v-R (1998) 197 CLR 250

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Crown (Regina)
Darcy (Accused)

Representation:

Oliver Crown Prosecutor

Pearsell Counsel for the Accused

File Number(s):

2019/00260764

Publication restriction:

Unrestricted

Judgment

Introduction

1. By an indictment dated 12 January 2021 John Cain Darcy, the accused, is charged with the following two offences:

1.1. That contrary to section 112(3) of the Crimes Act 1900 on 28 May 2018 at Bellingen in the State of New South Wales he did break and enter the dwelling house of Talwinder Singh at 10 Ford Street and did commit a serious indictable offence therein, namely to rob Talwinder Singh of money in circumstances of special aggravation namely that he was in the company of Jason Murray Elphick and did wound Talwinder Singh; and

1.2. That contrary to section 86(3) of the Crimes Act 1900 at the same date and place of Bellingen he did detain Talwinder Singh without his consent with the intention of committing a serious indictable offence namely larceny in circumstances of especial aggravation namely being in company with Jason Murray Elphick and at the time of or immediately after the offence actual bodily harm was occasioned to Talwinder Singh.

2. The trial was conducted as a judge alone trial. The application was made by the accused and consented to by the Crown.

3. The offences alleged did occur; Mr Elphick, named in the indictment, pleaded guilty to the offences and following a sentencing hearing on 19 August 2019 was sentenced on 28 August 2019. The question in this trial is whether the accused was Mr Elphick’s accomplice. Mr Elphick was arrested on 3 December 2018 and the next day in an interview with police made a statement admitting taking part in the offending as now alleged against the accused and stating the accused was the other man who carried out the offending. On being sentenced Mr Elphick received a discount not only for his guilty plea but a further 25% for his assistance to police which included the giving of an undertaking that he give evidence consistent with his record of interview at the trial of the accused. On 21 August 2019 the accused was arrested.

4. In very broad terms the offending allegedly occurred by Mr Elphick and his accomplice attending firstly at the home of Mr Singh (which was next door to a business of a Mr Fuller), breaking and entering into that home, (“the first location”) assaulting Mr Singh with a machete (the act being committed allegedly by the accused), tying him up, locating and stealing cash, and then detaining Mr Singh and taking him to another address some kilometres away being the home of Andrew Fuller (“the second location”), adjacent to another place of business of Mr Fuller. At that point Mr Singh was able to get away from Mr Elphick and the accomplice and Mr Elphick fled.

5. Throughout the offending Mr Elphick and the accomplice wore face coverings. That Mr Elphick was ultimately apprehended was due to the rope being used to tie up Mr Singh having DNA which was linked to Mr Elphick in relation to a crime scene in Victoria (and other evidence, which I accept, suggested he was in fact charged and convicted of what was a burglary; see T111). Following that evidence telephone intercepts were put in place which captured calls involving Mr Elphick that appeared to be admissions by Mr Elphick that he had taken part in the offences of 28 May 2018; see exhibit 2.

6. There is no physical evidence connecting the accused to the scene of the offending.

7. In support of the Crown case the officer in charge, Sgt English gave evidence as did Mr Fuller and Mr Singh. Mr Elphick also gave evidence, as did his partner Ms Terbeeke. When first called to the witness box Mr Elphick announced that he was not going to give any evidence. At that time the Crown made it known, on the understanding that Ms Terbeeke was not available, that without Mr Elphick’s evidence the Crown had no case.

8. On the first day of the trial when Mr Elphick stated he would not give evidence he was made aware of the consequences of that which included the potential to be charged with contempt and also that he may be the subject of re-sentence and may lose the additional 25% discount that he had gained for undertaking to give assistance. On the second day of the trial Mr Elphick in fact gave evidence. The parties agreed that this conduct of Mr Elphick should not be taken into account adversely to him in assessing Mr Elphick’s evidence.

General directions

9. In compliance with the decision of the High Court in Fleming-v-R (1998) 197 CLR 250 I remind myself of the following principles of law and set out the findings of fact on which I have relied.

10. I direct myself that the onus of proof is “beyond reasonable doubt” and that the Crown bears the burden of proof.

11. The Court has heard the submissions of both the Crown Prosecutor and of Counsel for the accused. The Court will consider those submissions and give to them such weight as it thinks they deserve. The Court notes that in no sense are those submissions evidence in the case.

12. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

13. I acknowledge that I have very important matters to decide in this case - important not only to the parties but also to the whole community. I must, as a jury, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.

14. It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness’ evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness’s honesty; the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.

15. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness’s evidence.

16. I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question (proposition). I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.

17. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

18. I note that the accused has a right to remain silent when spoken to by police; T24. I note that all people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.

19. In this case, it would be quite wrong if the accused having listened to what the police said as to not being obliged to answer questions, and having decided to exercise his right to silence, later found that a jury, or in this case the judge in a judge alone trial, was using that fact against him, and of course I must not do that. It is important, therefore, that I bear in mind the accused’s silence cannot be used against him in any way at all.

20. The accused in this matter did not give evidence. I remind myself that he has, as we all do, a right to remain silent. I note that no adverse inference can be drawn against him by reason of the fact that he did not give evidence.

21. I remind myself that given that we all have a right to remain silent when questioned by police or at trial it would make no sense if having exercised a right given to us by the law an adverse inference could be drawn against us for doing the very thing that the law entitles us to do. In this regard I remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt that the accused committed the offences charged or any one of them.

22. I direct myself, as a matter of law, that the accused’s silence in court cannot be used against him. His silence does not constitute an admission and no such inference can be drawn from that fact. Nor must his silence be used by me to fill gaps in the Crown’s case or to make up for what I might regard as deficiencies or defects in the Crown’s case. I must not speculate about what might have been said in evidence if the accused had given evidence.

23. This is a hearing involving criminal charges of a most serious nature and as I have already noted the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges and there is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.

24. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt.

25. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

26. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charge/s.

Inferences

27. Sometimes in a criminal trial, the evidence relied upon by the Crown to prove its case beyond reasonable doubt is what is called “direct evidence”. Direct evidence is a witness saying that he or she saw the accused do something or heard the accused say something, or it might be an admission by the accused that he or she did or said something.

28. Sometimes, however, proof of one or more of the elements of a particular offence and thereby proof of the guilt of an accused person relies upon the drawing of inferences from direct evidence of proven facts.

29. I may draw inferences from the direct evidence. There is nothing extraordinary about that. We all do it, consciously or otherwise, in our everyday lives.

30. In the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. In the present case, the Crown relies upon direct evidence, including from Mr Elphick, and the Crown also relies upon drawing inferences. For example the Crown relies on phone calls evidenced by exhibit 15 the day after the offending by a number associated with the accused to a number associated with Mr Elphick to draw an inference that the point of that communication was in connection with the offending. In a criminal trial, because of the onus of proof being on the Crown to prove the accused’s guilt beyond reasonable doubt, I need to be very careful about drawing inferences from the facts that I find proven. I must carefully examine any inference or conclusion I may draw and see whether it is a valid conclusion to draw from the evidence, whether it is justifiable on the evidence or whether there may be another explanation that is available which would prevent me from reaching that conclusion beyond reasonable doubt. Speculation or suspicion, even grave suspicion can play no part at all in my deliberations.

31. I am obliged to act only upon the evidence that is before me in the trial and nothing else. That means that if, for example, I took the view that evidence was absent on a topic I must not fill in the gaps by speculating about the evidence. I must not engage in speculation as to what that absent evidence might have established, if anything.

Specific directions

Evidence by CCTV

32. Mr Elphick and Ms Terbeeke gave their evidence by CCTV. This was permitted at the request of both parties. I should not draw any inference against the accused or the Crown, or give the evidence any greater or lesser weight simply because this evidence was given in this manner. The evidence is to be assessed in the same way as if the evidence was given in the court room.

Section 165 Evidence Act

33. In respect of the evidence of Mr Elphick, a warning is to be given as to its reliability in accordance with s165 of the Evidence Act because he was criminally concerned in the offending it is alleged the accused committed.

34. I remind myself of certain warnings and directions concerning this evidence. They are given in every case in which the Crown relies upon the evidence of a witness who was, or might have been, involved in the alleged crime. They are not given in this case because of any view which I have formed concerning the evidence of Mr Elphick.

35. The need to give such directions arises because the courts have, over the years, a great deal of experience concerning the reliability of evidence given by a witness who was, or might have been, involved in the alleged crime. That experience has shown that the evidence given by such a witness may be unreliable. I do not intend to suggest, however, that such evidence is always unreliable.

36. My purpose in reminding myself of these directions is only to warn myself that the evidence of such a witness may be unreliable and for that reason, I must approach that evidence with considerable caution.

37. There are many reasons why the evidence of such a person may be unreliable. Possible reasons are:

(1) It is only natural, that a witness who was, or might have been, involved in the alleged crime, may want to shift the blame from himself or herself onto others, and to justify his or her own conduct. In the process, the witness may construct untruthful stories, which tend to play down his or her own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people.

(2) Persons who are, or might have been, involved in an alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility.

(3) Such a person may be motivated to give false evidence in order to qualify for a reduction in his or her own sentence. In this case the Court was told that Mr Elphick received a further discount of 25% on his sentence in return for undertaking to give evidence against the accused, consistent with his statement to police.

(4) There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be. I remind myself that the Crown has to prove the essential aspects of its case and the accused does not have to prove anything.

(5) Experience has shown that once such a witness has given a version to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.

38. When assessing the evidence of Mr Elphick I must remember the warnings and directions I have just set out.

Murray Direction

39. Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness it is important that the fact finder exercises caution. Arguably this is the case here. The question of whether a Murray direction was needed was raised with the parties. The Crown expressed the view that it was not appropriate, given that there was now some evidence from Ms Terbeeke which if accepted would corroborate the evidence of Mr Elphick. The accused did not argue for a Murray direction.

40. My own view is that there is a good argument for a Murray direction here, and even moreso if it eventuates that the evidence of Ms Terbeeke is not accepted. Given the positions of the parties however I do not propose to give myself the Murray direction.

41. Having raised this matter I make clear (as is said when a Murray direction is given) that I am not suggesting that I am not entitled to convict the accused upon the evidence of Mr Elphick. Clearly I am entitled to do so but only after I have borne in mind the above directions (including the s165 direction but not including a Murray direction) and carefully examined the whole of the evidence.

Onus

42. Lastly, as noted at [10], [23] and [26] above, I remind myself the Crown always bears the onus. So, if I am not satisfied as to matters suggested by and argued for by the accused, eg that the Crown evidence of Mr Elphick and Ms Terbeeke leaving the accused’s home and catching a bus very early on 28 May 2018, must be wrong, or that Mr Elphick did not leave his belongings at the accused’s house, I must put that aside, and return to the Crown case to determine whether on the Crown evidence on the findings I make am I satisfied beyond reasonable doubt of the elements of the offences being made out.

The elements of the offences

Count 1

43. The Crown must satisfy beyond reasonable doubt that:

1. The accused broke and entered the premises described as situate at 10 Ford Street and that;

2. Having entered the premises, the accused robbed Talwinder Singh of money;

3. Having entered the premises the accused wounded Talwinder Singh;

Definitions for Count 1

“Broke” means “forcibly gained access”. It is not a “breaking” to walk through an open door.

“Entered” means what it says, that is, “went inside” … [or inserted some part of his body or some implement that he was holding.

A “dwelling house” is a house, flat or apartment where somebody dwells, that is to say, where somebody lives or resides. It may include a place that is designed for that purpose even when nobody is actually living in it at the time.

To “rob” somebody’s property means to “take it away, without consent and intending to deprive them of it permanently” with actual or threatened violence.

The allegation is that the accused was in company. This means that he is guilty of the wounding even if it was to be found that it was Mr Elphick and not the accused who actually wounded Mr Singh.

Count 2

44. The accused is charged with the offence of detaining a person for advantage in circumstances of special aggravation.

45. In order to prove that the accused is guilty of the offence, the Crown must prove beyond reasonable doubt each of the following essential facts (or ingredients):

1. That the accused detained Talwinder Singh;

2. Knowing that he was not consenting to that detention; and

3. The accused did so with the intention of committing larceny;

4. The accused was in the company of Mr Elphick; and

5. Actual bodily harm was occasioned to Talwinder Singh at the time of, or immediately before or after, the commission of the offence.

Definitions for count 2

1. The accused detained the alleged victim

The first matter for the Crown to prove is that the accused detained Talwinder Singh. To detain a person means to prevent that person from leaving should he or she wish to do so. It is an interference with the person’s liberty. It is enough if Talwinder Singh was detained for only a very short time. In this case it is alleged the offenders tied up Talwinder Singh and against his will took him to the second location. Taking is a form of detention where the accused causes a person to accompany him or her so that the person is compelled to go where he or she did not want to go. It is not necessary for a taking that the alleged victim be moved from one place to another. Here, the allegation is of taking Talwindger Singh from the first location to the second location.

2. The accused knew the alleged victim did not consent to the detention

The next matter that the Crown must prove beyond reasonable doubt is that the accused knew that Talwinder Singh did not consent to being detained by the accused. Consent must be free and voluntary consent. Consent is not given if Talwinder Singh is detained by Talwinder Singh as a result of force or threats.

3. The accused detained Talwinder Singh with the intention of committing a serious indictable offence, namely larceny

Next the Crown must prove that the accused detained Talwinder Singh with the intention of committing a serious indictable offence, namely larceny. Larceny is the unlawful taking and carrying away of property, in this case money, with the intention of permanently depriving the owner or person in lawful possession thereof. The Crown must prove that this intention existed at some time during the period Talwinder Singh was detained. The intention need not exist for the whole of that period. It does not matter whether John Darcy in fact succeeded in committing the offence.

Finding(s) with relation to elements 1 to 3

If I find that all three of these essential facts (or ingredients) have been proved by the Crown beyond reasonable doubt, then the verdict should be “guilty” of the “basic” offence (that is, not the charge of special aggravation, yet to be considered) of detaining a person with the intention of committing a serious indictable offence.

If I am not satisfied that the Crown has proved beyond reasonable doubt any of the three essential facts (or ingredients) making up the basic offence, then myr verdict should be “not guilty”, and the matter need not be considered further.

If I am satisfied of the first three elements, the Crown also alleges that this offence was committed in what is called a “circumstance of special aggravation”. This means that in addition to the three essential facts (or ingredients) making up the basic offence, there are a further two essential facts (or ingredients) that the Crown is required to prove beyond reasonable doubt. They are that:

4. The offence was committed in the company of another person Jason Elphick.

And;

5. Actual bodily harm was occasioned to Talwinder Singh at the time of, or immediately before or after, the commission of the offence.

Finding(s) with relation to Elements 4 and 5

If I find that all five essential facts (or ingredients) have been proved by the Crown beyond reasonable doubt then my verdict should be “guilty” as charged with the specially aggravated offence.

Alternative verdict — aggravated offence:

If, however, I am satisfied beyond reasonable doubt of only one of the circumstances of aggravation being either, the offence was committed in company or actual bodily harm was occasioned to Talwinder Singh and I am satisfied that the Crown has proved the first three essential facts (or ingredients) giving rise to the basic offence beyond reasonable doubt, then my verdict should be “not guilty as charged, but guilty of aggravated detain for advantage”.

That verdict would mean that I am satisfied beyond reasonable doubt that the accused committed the basic offence of detaining for advantage with the addition of one of the circumstances of aggravation, but was not satisfied that both of the circumstances of aggravation have been proved beyond reasonable doubt.

Alternative verdict — basic offence:

On the other hand, if as not above I am satisfied beyond reasonable doubt that the Crown has proved only the three essential facts (or ingredients) making up the basic offence, but I am not satisfied that either of the circumstances of aggravation have been proved, then your verdict should be “not guilty as charged, but guilty of detain for advantage”.

That verdict would mean that I am satisfied beyond reasonable doubt that the accused committed the basic offence of detaining for advantage but am not satisfied beyond reasonable doubt of either circumstance of aggravation.

If I am not satisfied that the Crown has proved beyond reasonable doubt any of the three essential facts (or ingredients) making up the basic offence, then my verdict should be “not guilty”.

The evidence

46. There were a total of five witnesses who gave oral evidence, Mr Elphick and four others. One of them, Sgt Shane English, was the officer in charge of the investigation. His evidence went to the link made by the police of the connection between Mr Elphick and the rope due to the same DNA as found on the rope having been found in an offence relating to Mr Elphick in Victoria. This led to telephone intercepts being put in place and the capture of a conversation between Mr Elphick and his friend Jarrett Mercer on 28 October 2018 in which Mr Elphick admitted to being present at the offending. Sgt English’s evidence went to the arrest of Mr Elphick in Queensland, his extradition to Tweed Heads New South Wales and his record of interview or electronic recording of an interview with a suspected person (ERISP) on 4 December 2018. In cross examination a number of issues were raised as to the adequacy and integrity of the investigation involving Sgt English, and I refer to those below.

47. There was the evidence of Andrew Fuller and Talwinder Singh. As noted earlier Mr Fuller was present at the second location (his home) attended by Mr Elphick and the accomplice and it was Mr Singh’s home that was broken into at the first location by Mr Elphick and an accomplice. In the course of the offending at the first location Mr Singh says that one of the intruders cut his hand with what he described as a very large knife with a sharp blade on one side and a serrated edge on the other side, and what the Crown and Mr Elphick referred to as a machete. At this first location Mr Singh was asked “where is the money”, a matter relied upon by the accused to suggest this was an inside job which he seeks to argue suggests that there was somebody else involved with some connection to the victim, and not being the accused. Mr Elphick gave a different description of how the wound occurred, saying that Mr Singh grabbed the knife and the accomplice pulled it away.

48. The male who did not cut Mr Singh handed a sock to Mr Singh, which the Crown argues was an act of Mr Elphick and demonstrates his lack of willingness to be there. Mr Singh was then tied up. Both his legs were tied together as were his hands. He describes seeing the door to his sister’s bedroom being kicked open which is where he said the shop takings were kept. Mr Singh said he then saw the man walk out with what would be two days takings in $50 and $20 notes. This was placed into his old blue bag where other items had been put. At variance to this Mr Elphick gave no evidence of taking anything from the sisters (or second) bedroom. He also gave a markedly different account of how the hand of Mr Singh was cut. Mr Elphick did not say that he kicked the door in of the sisters bedroom.

49. He was then against his will taken to the second location. The male sitting in the back seat gave directions to the male doing the driving. On the Crown case it is the accused who is giving directions from the back as he is a local of the area and the driver is Mr Elphick. On reaching the second location the two males and Mr Singh firstly walked up some external steps but as the light was on walked back down them and into the garage where Mr Singh says he was told to get on the ground and was slashed on his head with a small knife about 20 cm long. Mr Elphick gives no evidence of this cutting incident. There is no doubt the injury was suffered by Mr Singh. The Crown case is that the implement used was a yellow box cutter which can be seen in exhibit 11, photos 31 and 32. It had not been described as such by Mr Singh in his statement, but at trial Mr Singh said the yellow box cutter was the implement, which the Crown conceded is significantly shorter than 20 cm.

50. Both the alleged cutting implements were forensically examined, with neither examination showing any trace of any kind to the defendant. Nor was there any trace of Mr Singh. This is capable of explanation in respect of the “machete” in that the alleged machete asserted to have been used was not recovered until some 5 months later. It is borderline inexplicable, if not beyond that border in the case of the “boxcutter” / “very large knife” as that implement was allegedly found at the scene.

51. Mr Singh and the two men then walked halfway up the stairs from the garage at which point Mr Singh made his escape and the two males took off towards his sister’s car and made their escape albeit with the car first having been attacked by Mr Singh with a golf club. The car was seen heading towards Bellingen and was recovered at the Bellingen high school which is between the second location and Bellingen township, and the first location; see exhibit 12.

52. Mr Singh drew a sketch of the “very large knife” which was attached to Exhibit 8. That drawing is with all due respect to Mr Singh of very little assistance, though it does have some similarity to exhibit 6, the tendered machete found at the accused’s, however it is very lacking in detail, and as already noted Mr Singh did not describe it as black, which the blade largely is.

53. Mr Fuller’s evidence was consistent with Mr Singh’s as to the events of the second location in broad terms, that is, of the arrival of two offenders by car, the interaction at the car and the car driving off. He did not see Mr Singh being cut. Additionally he described how he owns both the businesses that were adjacent to the homes that were attended by the two males. He described how the weekend takings are brought to him by either Mr Singh’s sister or wife but on this weekend they were away so the takings were stored in the locked room inside Mr Singh’s residence. This adds to the inside knowledge theory that both sides seem to allow for. Mr Fuller first became aware of what was happening when Mr Singh had escaped the two males and tells how he attacked the car and a person in it. Mr Fuller called the police at about to 2.25am. In a second statement Mr Fuller was shown the box cutter and said it was not used by him or his employees and had not seen it before 28 May 2018, and was not sure of seeing it even then (see [5] of his second statement which became an exhibit).

54. There was one further statement of a police witness who had carried out some forensic testing, and it became Exhibit 13 and it goes to show that when the machete in evidence was analysed there was nothing of forensic value revealed. It returned a negative result for the possible presence of blood.

55. Exhibit 11 was a bundle of documents headed “summary of physical and forensic evidence”. The significance of this evidence is that a DNA profile, profile “B” was obtained from the yellow box cutter and was not the profile of the accused, Andrew Fuller or of Mr Singh. It does not refer to Mr Elphick and as I understand the evidence there is no suggestion that he is profile B. It is the Crown case that it was the accused who handled that box cutter. A DNA profile was recovered from the blue nylon rope used to tie Mr Singh and it showed the profiles of Mr Singh and Mr Elphick. There was no profile of the accused. There was no trace by way of residue or fingerprints of the accused obtainable from the car taken from Mr Singh’s home. Further two fingerprints were developed on the interior rear view mirror which did not match any on the New South Wales police database including the accused or Mr Elphick and were not of Mr Singh or his sister. This suggests the presence of some person other than Mr Elphick or the accused in that car. Of course it may be someone who had used the car previous to the offending; then again it may have been somebody who was in the car during the offending.

56. A number of issues can be seen to be emerging from the above evidence which was not very contentious. The trial focused on, and what needs to be examined, is the evidence of the remaining witnesses, Mr Elphick and his partner Ms Terbeeke. In short form Mr Elphick says that he owed $1000 to the accused as a drug debt and at the request of the accused went with him on this evening to carry out the offending for which he would be rewarded by the forgiveness of the drug debt. Mr Elphick also says (to the police and at his sentence hearing, but not in his evidence in chief; see T116-117) that he was threatened by the accused to the effect that if he, Mr Elphick, did not carry out the offending with him, the accused would cut off Mr Elphick’s fingers. If the evidence of Mr Elphick is accepted then plainly the offending would be made out. Ms Terbeeke’s evidence was that she saw Mr Elphick and the accused leave the accused’s home in Bellingen on the night of the offending, and later saw them return. She says that on their return, Mr Elphick said that they had done “a job”. Ms Terbeeke also gave evidence of she and Mr Elphick staying at the home of the accused at that time, and that some belongings of Mr Elphick were stored at the accused’s. She also gave evidence of she and Mr Elphick leaving the accused’s home early on the morning of 28 May 2018.

57. The outcome of this case turns on whether the evidence of Mr Elphick, either by itself or taken together with the evidence of Ms Terbeeke, satisfies me beyond reasonable doubt of the elements of one or both of the offences and that the accused was the accomplice who with Mr Elphick carried out the offences alleged against the accused. Both parties have made lengthy submissions addressing on the evidence that supports their respective cases. Rather than setting out at length what the evidence is and then identifying those parts of it which are said to be supportive of either the Crown or the accused I propose addressing the matters relied upon by the parties and in that process the evidence will be appropriately canvassed. In particular those aspects of the evidence concern the following, which for convenience I will call the “matters of contention”:

57.1. The reliability of Mr Elphick.

57.2. The reliability of Ms Terbeeke.

57.3. The “machete”,

57.4. Evidence of the use of phones,

57.5. The question of when Mr Elphick and Ms Terbeeke first went to stay at the accused’s house (and indeed if they stayed there on the night of the offence or at all),

57.6. Whether Mr Elphick and Ms Terbeeke caught a bus on the morning following the offence or whether Mr E left in his car,

57.7. The box cutter,

57.8. Whether Mr Elphick had moved his belongings to the accused’s house,

57.9. How Mr Elphick got to the first location of the offending;

57.10. Motor vehicles are relevant in this case in a number of ways. This includes how Mr Elphick travelled to the first location, how he left Bellingen, and his credit in light of saying his car was burnt out and what he did with the number plates of a car of the accused.

58. There are other matters that are not in dispute which for convenience could be set out now and are as follows:

58.1. The forensic evidence unchallenged as set out above. In short that discloses no connection of the accused to the crime scene at either of the two locations or to the motor vehicle stolen from Mr Singh’s house. The forensic evidence did disclose a DNA profile of some unidentified person (and not the accused) thus allowing for the prospect that there was some other person in the stolen vehicle on the night in question not being the accused.

58.2. This extends to the machete which is discussed below but forensically shows no traces of blood. It was not found at the scene. Mr Singh did not describe the cutting implement as a machete, but rather as “a very large knife”.

58.3. There were DNA traces of Mr Elphick on the rope but not of the accused. The rope belonged to Mr Elphick. There is no evidence placing that rope in the presence of the accused at any time other than the evidence of Mr Elphick and Ms Terbeeke the reliability of which is to be assessed based on the matters discussed below.

The matters of contention

The reliability of Mr Elphick

59. The submission for the Crown in respect of Mr Elphick evidence was to acknowledge some of the apparent obstacles to that evidence being accepted. The Crown acknowledged his criminal concern in these matters and that he was required to give this evidence in line with his undertaking that led to him receiving a 25% discount on his sentence. It also noted the offences of dishonesty that he admitted to such as using false number plates and committing burglary. The Crown rightly pointed out that none of these obstacles meant that he can never be believed. The Crown referred the court to various passages of the transcript which it was said revealed a “raw honesty” or that he was a very concrete thinker. See transcript 123, 124 and 150 respectively. The Crown also pointed out that at the time of these events Mr Elphick was a self proclaimed “crackhead” see transcript 182. The evidence plainly was that his association with the accused prior to 28 May 2018 included the relationship of drug supplier and customer.

60. The Crown also said that this witness did not care about inconsistencies. The Crown’s point was that some of the inconsistencies if not a significant number of them were as to matters of detail but where the Crown says the truth shone through was on the fundamentals. That key fundamental of course is the unequivocal naming of the accused as the accomplice. In this regard the Crown argues that Mr Elphick should be accepted.

61. In support of the view taken by the Crown one could question why would it be that Mr Elphick would name the accused as the accomplice if that was not so. These are very serious offences with commensurate serious consequences. It is no small thing to make the accusation that Mr Elphick does make. However in the same way as a jury is always told by a judge in a summing up that there is no onus upon the accused and that to speculate as to why a complainant would make the complaint is not a permissible approach so too I must instruct myself here. The task at hand is to consider the whole of the evidence the Crown has presented and consider whether it is sufficiently reliable to satisfy the high onus that the Crown bears. That is of course not to exclude consideration of the case put for the accused, but should that case not put forward a rational alternative scenario, it is necessary to return to the Crown case and determine if it has satisfied its onus.

62. The Crown argues that the offending reflects someone with local knowledge and further argues this shows the accused was involved because of the undisputed fact that he resides in Bellingen. That locals may know that the two establishments involved were both owned by Mr Fuller is entirely probable. This would explain the offending at the first location and of taking Mr Singh to the second location but there is no evidence to suggest that somehow the accused is aware of the cash being kept in the sister’s bedroom. I note in any event that on the evidence of Mr Elphick there was no cash in that room, though the evidence of both Mr Singh and Mr Fuller supports the view there was. The Crown further relies upon the diagram drawn by Mr Singh of what he described as a “very large knife” which the Crown says is the machete that was later taken from the home of the accused when it was legally searched. I set out below the three diagrams in evidence of this machete together with the photograph of it also in evidence. With all due respect to the drawing skills of those involved my view is those sketches are of little assistance. As will be noted below and as can be seen from the photograph the machete seized from the accused’s home has a largely black blade. Mr Singh not only did not describe it as a machete but he did not describe it as being black. I am not satisfied to any recognised level that the instrument used in the offending was the item seized from the accused’s home.

Exhibit 5

Exhibit 7

Exhibit 8

Exhibit 13

63. The Crown argues that the person handing the sock to Mr Singh was Mr Elphick which is said to show some reluctance on the part of Mr Elphick to be a part of this offending and supporting the Crown argument that he undertook it as a result of being threatened.

64. A perhaps more persuasive point for the Crown is that why would Mr Elphick and his accomplice dump the car they took from Mr Singh’s if they were not locals? The account given by Mr Elphick at T134 .10 is consistent with dumping the car and then heading to the home of the accused. The Crown says that if a local was not involved then you would keep driving away in the car. On reflection there is an equally acceptable explanation that Mr Elphick dumped the car as he did not want to be driving around in a stolen car in respect of a matter that would very soon undoubtedly be reported to police, and made his way by foot to his own car and did not go to the home of the accused at all. As noted below there are issues concerning what happened to Mr Elphick’s car such that this scenario may be an open one.

65. The accused on the other hand points to a number of matters said to show Mr Elphick to be unreliable. For example when first approached by police in September 2018 he admitted to acting surprised to put the police off the scent; T110. He admitted he lied to the police in saying that he would attend the station to give a DNA sample and admitted he never intended to do so. It was also said that he lied to his friend Mr Mercer and that he told the police at one point what he thought they wanted to hear. There were other less central aspects which were said to be inconsistent; he said they caught the bus to Nambucca Heads (see T86) then he says that T179 they went to Nambucca Heads or Macksville and then to Urunga; T126, whereas Ms Terbeeke says they went to Urunga first. A more telling inconsistency is that he had told the police that the accused tried to hold him hostage on 28 May 2018 but did not say this to the court in his evidence at his sentencing hearing; see T171, nor it was submitted, did he say that in his evidence in chief in this trial. The accused argues this shows fabrication to the police in the ERISP seeking to minimise his involvement. In his evidence in chief he said when they got back from the offending they “kicked back” (T87) then in cross examination at T172 he denied it. I was unconvinced by his evidence as to the use of the number plates from the Commodore that had been in a crash, which he admitted to taking off the car, (at T 189) but then seemed to deny using them; see at T189-190. Given his admissions to using fake number plates on another car, it seems unlikely to me he would take these plates and not use them. The evidence was also unsatisfactory concerning his clothing on the night of the offence. Even assuming that he did need a change of clothes on his return, he said he changed into the clothes of the accused, which again seems unlikely given that he has his belongings stored under the house; see at T135.

Ms Terbeeke

66. In further aid of the Crown’s case the Crown says Ms Terbeeke is an honest witness who should be accepted. Her evidence is very significant because if it is accepted it places both she and Mr Elphick in the home of the accused on the night of the offending, and evidences the accused and Mr Elphick leaving together in dark clothing and later returning. On return she says Mr Elphick told her he had done “a job” (T253).

67. The position of the accused is to say that Ms Terbeeke conceded she would do anything to assist Mr Elphick because she loves him; T278 and see also T262. The accused also relied on a number of inconsistencies between the versions of the events both leading up to and after the offending given by Mr Elphick and Ms Terbeeke that the accused says are significant, resulting in the evidence of Ms Terbeeke being unreliable.

68. The Crown submitted that Ms Terbeeke had the demeanour of an honest witness. She gave her evidence from a remote room and so was visible on the court room screens and the screen on the bench. I do not take that fact into account one way or the other in assessing the evidence and seek to assess the evidence as best I can as if she had given her evidence from the courtroom itself. Based on my observations of Ms Terbeeke I agree with the Crown’s submission but only in respect of her evidence in chief, though not all of it. One characteristic of her evidence was to use the expression in answer to a question as to whether she did something by saying “I would have”, which is an indication of not actually having a memory of what was being asked. Also in chief on the crucial issues as to when she first arrived at the home of the accused on the night of the offence she said she could not remember. She also said in chief that the morning that she left she took her phone with her. I accept on the evidence that that phone was the one ending in the numbers 912 which is the one that was established to have been recorded by the mobile tower in Bellingen at 9:42 AM and which is referred to below.

69. She said that she had been to the accused’s house with Mr Elphick many times in fact “too many to count”. This is in stark contrast to Mr Elphick’s evidence who allowed only that they had been there a few times, and certainly markedly less than as indicated by Ms Terbeeke. She also said that she and Mr Elphick had stayed in that house for a while, that they had been homeless and the accused gave them a place to stay for a week or so. This is also in stark contrast to Mr Elphick’s evidence who allowed only that he had stayed there on the night of the offending and no longer. Another discrepancy is that she maintains that Mr Elphick said they had done a job whereas Mr Elphick’s evidence was that he did not say anything on his return. In further difference to what Mr Elphick said when she was asked about the health of the accused she said this did not affect his physical abilities and was then asked how often she had seen him in 2018 before the offending on 28 May and said “on an almost daily basis”. Interestingly when she saw Mr Elphick and the accused leave the house on her version she said that they drove away; that is the version of events Mr Elphick gave at trial but is not what he said in his record of interview of 4 December 2018. I describe this as “interesting” because it is consistent with the more recent version, perhaps because of more recent discussion of the issue? I put that thought aside in these considerations, save that I do not consider it assists the Crown that Ms Terbeeke is consistent with Mr Elphick in respect of a version he gives long after the event which is inconsistent with a version he gave closer in time to the event.

70. She also confirmed in chief that in 2018 she had tattoos on her wrist, back and ankle. This is relevant because Mr Elphick had said when challenged about his departure from Bellingen that his car was found burnt out four days later in Bowraville. Exhibit A is a police COPS report concerning that vehicle and recording that it was found abandoned in Bowraville on 18 July 2018 some seven weeks after the offence. Firstly this shows that the vehicle was not burnt out, contradicting the sworn evidence of Mr Elphick. Further the report describes the person driving that vehicle as being a female approximately 30 of slim build and of a height of 5’3” with dark hair and records “no tattoos”, which is a description matching the description of Ms Terbeeke at that time according to Mr Elphick; see T174-175, save for the lack of reference to tattoos. As submitted for the accused, the report is of the observations presumably of the elderly victim, not the result of a close inspection. The falsehood of Mr Elphick is established by the car not being burnt out and this further evidence allows for the possibility that the car remained in the possession of Ms Terbeeke and thus Mr Elphick in the period from the offending to 18 July, and further allowing for the possibility that they left Bellingen on 28 May not by bus but by car. I note Ms Terbeeke in her evidence at T269 says she never saw the car again after 28 May. In light of the foregoing I do not accept that to be so, without finding the opposite to be the case.

71. Ms Terbeeke made the unlikely assertion that she was not aware that if Mr Elphick gave evidence against the accused he may get a benefit in his sentence by being shorter. She went so far as to say that in the eight months since his arrest leading up to his sentence they did not have a conversation about his sentence proceedings that she could recall. It was at this point thatI considered that Ms Terbeeke appeared to be evasive.

72. Another issue emerging from the evidence of Mr Elphick and Ms Terbeeke and which was connected to their supposed stay at the house of the accused was when did they leave their previous accommodation and indeed what in fact was that previous accommodation. Objectively there were exhibits B and C which were copies of the lease and termination notice from a unit at Nambucca Heads. These exhibits showed a 3 month lease commencing on 8 February 2018 and expiring on 10 May 2018 and a termination notice showing that the tenants, Mr Elphick and Ms Terbeeke, were required to give the landlord vacant possession on 28 May 2018. In the evidence of the agent Ms Ford, it was unchallenged that there was an “expectation date”, of 25 May, meaning the date the tenants were expected to vacate, and this was the date to which the rent was paid (see exhibit 19), suggesting it should be the date to vacate, though there was no mention of such an expectation date in the lease or termination document. There was no evidence other than from Ms Terbeeke and Mr Elphick (which was inconsistent) as to when they did vacate, and the agent offered that the key was never returned. The Crown case was that they left on the expectation date, being the date to which rent was paid. However Ms Ford did not see them leave that day and the premises were not inspected until 29 May and the key was not returned. I am not satisfied that Ms Terbeeke and Mr Elphick necessarily vacated the unit on 25 May. Whilst the agent said she did not let the tenants stay for no rent that weekend of 26 and 27 May, that is far from conclusive as to what in fact occurred.

73. The evidence of Ms Terbeeke on this issue was varied. It began as saying they were at the accused’s home for about a week, which must mean the week leading up to the offence, (T266), and at which time they had premises to stay at until the 25 May. In almost the next breath she said that they left on the last day (I infer of the lease, or perhaps 25 May).

74. Mr Elphick’s evidence was that for three weeks previous to going to the accused’s house he had lived on the riverbank which other evidence suggested was more like a park and he was living in a tent. As already noted he said the first time he got to stay at the accused’s was the night of the offence. Ms Terbeeke said that they had been there for longer than that with estimations ranging from about a week to a few days.

75. What this topic of accommodation reveals is another area of inconsistency between the versions of events given by the two key Crown witnesses. Associated with this evidence is the situation as to how their belongings were moved. Again there is a discrepancy. According to Ms Terbeeke the belongings were moved by them in their Subaru which they “would have” used; T268, and she did not recall how many trips they made. Mr Elphick had said they did two trips and used a trailer. On one view these are matters of insignificant detail which may not score themselves into a person’s memory; on another view they are another in an increasing number of discrepancies.

76. The accused made a submission that Mr Elphick and Ms Terbeeke had more local knowledge than the Crown allowed for. This was based on evidence at T254-255 of Ms Terbeeke that she knew within hours that the “job”, or robbery was done at “Fullers”. The accused latches on to the use of the term “Fullers” as if to demonstrate that it shows Ms Terbeeke, and by inference Mr Elphick, had a better knowledge of the first and second locations and of local matters than is otherwise allowed for by the evidence of Mr Elphick. I would not accept this as established, but I do consider it is some evidence, albeit minor and also capable of other explanation, that the asserted local knowledge of the accused was not essential to the offending, something which in any event is self evident.

The “machete”

77. I accept the point made by the accused at the outset in respect of this issue that the victim Mr Singh did not describe the weapon as a machete. That term was used by Mr Elphick who the evidence showed had been in the house of the accused where the accused kept his machete, prior to the offending and therefore prior to making his statement to the police.

78. When Mr Elphick described the machete in his evidence in chief he first said it was a couple of hundred centimetres in size and that was then reduced to 50 cm in size. He said it was black with a handle. He was not sure how wide it was. He repeated that the blade was black. When this was queried in chief to clarify that what was being referred to was the steel part Mr Elphick confirmed it was black and sharp. This accords with the colouring of the machete in evidence taken from the home of the accused. Notably however the victim Mr Singh not only did not describe it as a machete but did not say it was black which is a fairly notable feature of the item. I am not satisfied in any general sense that the machete in evidence was the one used in the offending.

79. The evidence of Sgt English was that Mr Elphick drew a diagram of a machete and that diagram was in evidence. There was no objection to that evidence be it the diagram or what Sgt English said about it. I accept that Mr Elphick drew that diagram. It looks like a machete. With respect a machete whilst capable of having distinguishing features is also capable of being fairly generic in its appearance and the diagram adduced in evidence through Sgt English has such a generic appearance. In the evidence of Mr Elphick he was again asked to draw the machete. As already noted above in relation to Mr Elphick’s evidence, to my observation he put no thought into the drawing he made which I attributed either to a view that he would seem to have that a machete looks like a machete, ie it is generic, or that he did not really care for the evidence giving process. On either view the case for the Crown is not advanced either by first or the second diagram.

80. Further as noted above upon forensic analysis there was no trace upon the machete of anything that would connect it to the offending. This could be fairly said to be easily explained by the length of time that had passed since the offending before it was analysed and had been cleaned perhaps. The flipside of that is that the absence of any forensic evidence is also consistent with it not being the item described by Mr Singh.

81. I also consider that there is some merit in the submission for the accused that the location where the machete was found is inconsistent with it being the weapon of choice on such a serious crime. Ameliorating that aspect however is that it was the accused’s case that the weapon was used as something of an enforcement tool or protection in respect of drug dealing so that perhaps it was to the advantage of the accused to keep it on display.

Phone call evidence

82. There was some potential for the Crown’s case to be aided by telephone records showing the times at which various voice calls and text messages occurred between various telephone numbers. One example is Exhibit 1 which sets out five telephone calls involving telephone number ending 248 which the evidence established is the phone of the accused. The date is significant because it is the day after police attended upon Mr Elphick at the Foreshore caravan park. The police revealed to Mr Elphick at that time that they had information that he was involved in the offence because of DNA evidence linking the rope found at the scene to an offence Mr Elphick had been involved with in Victoria. The day after learning this there was this series of calls involving the number of the accused. The other number involved in those calls was on each instance number ending 601. Other evidence showed this was a phone registered to Mr Elphick (T14). Other evidence also showed Mr Elphick predominantly used the phone with a number ending 912. Assuming the evidence supported the connection between number 601 and Mr Elphick there seemed to be some substance to this phone call between the two men so soon after the police attended. That however is as far as it goes because the evidence of Mr Elphick was that he did not ring or text the accused at that time. In submissions the Crown did not rely upon Exhibit 1.

83. Phone records also assisted in the form of Exhibit 2 which was a recorded call between Mr Elphick and a man named Jarrett Mercer. The net effect of that is that statements were made by Mr Elphick that amounted to admissions to being involved in the offending which no doubt influenced the plea ultimately entered by Mr Elphick. However again there is a difficulty with the evidence of this call for the Crown. This is because nowhere in that call is anything said that implicates the accused. The closest it gets is that Mr Elphick says “I wasn’t involved I fucken I was present but I wasn’t involved. It was some other cunt that tried to lag me and try and throw it on me bruz that’s what they are trying to do”. The call also reveals a degree of knowledge on the part of Ms Terbeeke who is conscious of the prospect of the phone being traced and clearly aware of the event in question.

84. A third aspect of phone records was records of calls on the 27th and 28th of May by way of Exhibit 15. What that exhibit showed was contact between phone number ending 248 and phone number ending 912 between 25 May and 29 May. There were 14 such calls. In 12 of them the caller was number 248 which is the phone used by the accused and his partner Skye, who has since sadly died. Two of them occurred on 25 May where the caller was 248 and it was not submitted by either party that they had anything to do with the offending. This is consistent with the evidence of Mr Elphick that he knew nothing of the planned offence until the evening of 27 May. Thus this evidence phone contact between the accused and Mr Elphick is unrelated to the offences. The next three calls are from 248 and occur on 27 May 2018. None of those calls was answered by 912. The 248 calls are shown as having the cell location of “Never Never” which was agreed was a neighbouring tower to the Bellingen tower suggesting the call emanated from either in or near Bellingen. The location of the 912 phone is not known. The fourth call on 27 May is from 912 being the phone used by Mr Elphick and Ms Terbeeke and it also went unanswered. That was at 11:27 PM. There were no other calls between 912 and 248 before the offending which the evidence showed started at approximately 2am. The net effect of that is that there has in fact been no answered telephone communication between 912 and 948 on 27 May 2018 prior to the offending. On one view this is consistent with Mr Elphick being in the presence of the accused. On the other hand why would there be attempts at telephone communication if they were together. To add to the uncertainty there is the fact that the two phones were used by the accused and his partner and Mr Elphick and his partner so it is not known who was actually calling who.

85. The matter becomes less helpful for the Crown because at 2:18 AM (and it was established that the offending occurred approximately between 2 AM and 2:25 AM) there was a call to the 912 phone that is the phone of Mr Elphick and his partner from a phone registered in the name of a Corinne Rose. There is no evidence at all as to who that person is or who may be using her phone. Given that Mr Elphick admits to the offending the fact that some third party to these proceedings is telephoning his number in the very midst of the offending gives at least some basis to query whether there was some involvement in the offending by that person or whoever was calling. That same number sought to contact Mr Elphick at 3:28 AM 3:49 AM 3:50 AM and 4:05 AM which adds to that concern.

82. Exhibit 15 was also the source of significance in terms of the issue of when did Mr Elphick and Ms Terbeeke leave Bellingen the following day. Exhibit 15 has an entry for 28 May 2018 showing a call from their phone at 9:42 AM using the mobile tower at Bellingen. The evidence of both Mr Elphick and Ms Terbeeke was that they left Bellingen early in the morning and in the words of Mr Elphick “when the sun come up”; see T87. Exhibit 17 was the bus timetable for buses from Bellingen to Macksville. The evidence here frankly was confusing or at least inconsistent as between Mr Elphick and Ms Terbeeke. This is because Mr Elphick initially said that they went from Bellingen to Nambucca (T87) and Ms Terbeeke said they went to Urunga. On the evidence of Mr Elphick they did later go to Urunga. Ms Terbeeke also said that when they got to Urunga the shops were open. Based on that evidence the Crown argued that meant it was possible that the bus may have been caught after 9.42am. I accept that that is a possibility but not the most likely one. The evidence of leaving shortly after sun up means in my view that on this version they would have been on the bus well before 9.42am. The phone records shows they were not. I do not accept the version of leaving Bellingen as given by Mr Elphick and Ms Terbeeke. Further the fact that shops may have been open at Urunga is very imprecise and in all the circumstances does not add to reliability. No shop was named. There was reference of going to the pub which suggests a later opening time but again that is far from conclusive. I am not satisfied that they caught a bus early in the morning as they both swore to. The call at 9.42am was to a number in the name of Jake Lewis received at Urunga. That number then telephoned 912 two minutes later. That suggests either that they perhaps were planning to meet at Urunga but it does not assist in the bus scenario. It needs to be remembered that there is the issue concerning the allegedly burnt out car which is not burnt out at all so that there was another means of transport for them.

83. Then there was one call at 10:14 AM on 28 May 2018 from number 248 from the Bellingen tower which was forwarded to voicemail followed by five calls the next day in the hours between 3:32 AM and 6:30 AM and the final call at 5:46 PM. They were all made by 248 to 912. The accused made a number of submissions concerning these calls. Firstly the fact that none of them connected directly. Secondly if there had been the departure of Mr Elphick and Ms T against the wishes of the accused as asserted by the Crown the flurry of calls could be expected to be on 28 May not the 29th. Thirdly the early-morning calls on the 29th are consistent with the drug dealing relationship between Mr Elphick and the accused; see at T184-186. And fourthly the evidence showed that Skye frequently telephoned Ms T or Mr Elphick to try and find where the accused was; see eg T186.

84. It needs to be recognised as noted above that just who was using these phones at the different times is a matter of conjecture. It should also be noted that the evidence was that Mr Elphick did not take his phone with him when he carried out the offending (T90). That is relevant to the first call from Corinne Rose.

85. As to who did the phones respectively belong to I accept the Crown case that it is established that 912 was being used by Mr Elphick or Ms T due to the CIN check which showed that he had given that number to the police the week before this offence and that he later also gave the number to police when they attended at the Foreshores caravan park on 3 September 2018 and because he used it to ring Mr Mercer on 28 October 2018 which was a recorded call at Exhibit 2. Similarly I accept the police case that number 248 was the phone used by the accused and Skye. The evidence showed that the accused had given this number to the police as his number after a random breath test in 2017 and also on his arrest for an unrelated matter on 8 March 2018 and the record showed him using it from August 2018.

86. The best that the evidence based on the phones becomes for the Crown is to show that both 248 and 912 made calls on the 27th and 28th of May from the Bellengin area so that there is a sound basis for thinking Mr Elphick and the accused were in Bellengin at the time of the offence. That however hardly promotes the matter a great deal given that Mr Elphick admits the offending and the accused lives in Bellingen.

Various

91. It was the Crown case that a significant amount of money had been found in a second bedroom of the home of Mr Singh. So much was said in the opening which of course is not evidence but it is an indication of what the Crown expects the evidence to be. In the evidence of Mr Elphick he said the money they got came from the first bedroom. When asked whether they went into any other place he initially did not mention the second bedroom and only mentioned that when he was asked “did you go into any other rooms in the house”. He agreed that he did and said it was a bedroom and when asked whether he found any money in there he answered no. The fact that the Crown’s chief witness is giving evidence at significant odds to the Crown opening is a cause for caution when examining the evidence of that witness.

92. The accused submitted that the police investigation was inadequate. The basis for this was asserted to be a failure to pursue other possible offenders beyond the accused. In particular the accused criticised the failure to make any inquiries as to the call to the phone of Mr Elphick by Corinne Rose in the midst of the offending time frame. The case for the accused was also that it was the police who first mentioned the name of the accused, and not Mr Elphick. This fed into the accused’s theory of the investigating officer deliberately falsifying phone transcripts so as to be, so it was said, more incriminating of the accused, by attributing to the accused words the accused did not speak. The accused also argued that the police had acted inappropriately by saying to Mr Elphick that if they did not tell them about his accomplice he would receive a gaol term of 25 years, the maximum sentence.

93. As to these submissions I do not consider that such a serious finding of improper behaviour such as falsifying phone evidence could be established on the evidence. I do have some concerns as to the threat like use of the maximum term to procure information from Mr Elphick, however Sgt English flatly denied ever saying that and the evidence of it being said comes from Mr Elphick, who as the above reasoning makes clear, is a witness on whose evidence little weight can be placed.

94. Reference has been made above to some of the evidence concerning whether Mr Elphick’s belongings were at the accused’s house. At T126-128 Mr Elphick gave evidence that he moved his belongings in two loads with a trailer, which differed from Ms Terbeeke. Mr Elphick also said that he moved his stuff to the accused’s “that night” meaning 27 May. He had earlier said that it was moved 3 weeks before, when he was on the riverbank. At T128 he was pressed about this difference and said he said 3 weeks to the police and “I was just telling them anything they wanted to hear”. Also connected to this is Mr Elphick reference to his stuff also being at “Macca’s place”, something not mentioned by Ms Terbeeke. Also inconsistent with Ms Terbeeke was that he said at T196 that he lived/stayed at Maccas for about a week before the offence. There was also confusion concerning his clothes worn by him on the evening of the offence. The essence here is he said he borrowed clothes from the accused on his return to the house; yet why do that if his belongings are at the house? And where are those clothes?

Conclusions

95. The Crown in its opening said the case could not proceed without the evidence of Mr Elphick but that was at a time when they did not know that Ms Terbeeke would be able to give evidence. My view is that the Crown’s position at the end of the day is not improved by Ms Terbeeke having given evidence. Mr Elphick and Ms Terbeeke are intertwined in that they have the same interests, namely for Mr Elphick to put forward a version of events consistent with that which achieved a 25% discount in Mr Elphick’s sentence. Even without identifying a motivation for their conduct, the fact remains that their stories have many inconsistencies which have been identified above. For the reasons discussed above they are both individually flawed as reliable witnesses. This means that the evidence of Mr Elphick is not improved by the fact that prima facie Ms Terbeeke corroborates him on what the Crown terms “fundamental aspects” because she has been seen to also be unreliable.

Mr Elphick

96. The matters that the Crown identifies as being what I have termed above as obstacles to the acceptance to Mr Elphick’s evidence are precisely that. They show Mr Elphick to be dishonest and dictate that caution be exercised in accepting his evidence. It may be thought that caution could be suitably exercised by accepting his evidence only when corroborated. In this case that corroboration comes from Ms Terbeeke. As will be seen below and as has already been indicated above I have grave reservations concerning the reliability of the evidence of Ms Terbeeke. In accordance with the direction concerning section 165 set out above I approach the evidence of Mr Elphick with considerable caution.

97. The further submissions of the Crown that Mr Elphick does not care about inconsistencies is not a submission that I consider could assist the acceptance of his evidence. It suggests an acceptance by the Crown of this witness having a certain recklessness with the truth.

98. I have canvassed the various inconsistencies in the evidence of Mr Elphick, and have sought to summarise them below. They show him to be an unreliable witness. To those matters of inconsistency I would also add or note my concern as to his manner. He was at times borderline flippant or perhaps uncaring about his evidence. The high point or low point of this performance was when asked to draw the machete he says was used on the evening in question he drew what became Exhibit 7 and which has been reproduced above. To my observation he made that drawing in the witness box from the remote room without any care whatsoever as to detail and in about 2 seconds. That that occurred is reflected in the drawing which when held in portrait style looks more like a lighthouse than a machete and certainly nothing like the drawing of Mr Singh nor of the photograph of the machete said to be the one used found in Exhibit 13, also reproduced above.

Ms Terbeeke

99. The significant inconsistencies identified above between the versions of events of Ms Terbeeke and Mr Elphick as to the involvement of Mr Elphick with the house of the accused demonstrate that something is awry, ie when they got there, whether Mr Elphick’s belongings were there, and when they left. Arguments can be made to explain why that is so but on the evidence before me, the view I take is that it means that the evidence is unreliable. One possible explanation could simply be the passing of time, but that makes the reliability of the evidence no stronger. Another possible explanation is that Mr Elphick and Ms Terbeeke have colluded but have not done it very well. I do not need to make such a finding to determine this aspect of the case, or the case overall. For present purposes the finding I make is that the evidence of Ms Terbeeke is unreliable in certain respects (which I have referred to above and seek to summarise below), such that I do not consider it corroborates the evidence of Mr Elphick as to the events of 27 and 28 May 2018.

The machete and other matters

100. As indicated above I am not satisfied generally or otherwise that the implement which became exhibit 6 has any connection to the offences in question. It was not described by Mr Singh as being black, and the diagrammatic depictions of it are far from reliable and there is no forensic link.

101. I set out below a summary of my findings in connection with the “matters of contention”, including the machete and the phone call evidence.

Conclusions on “Matters of Contention”

102. Mr Elphick is unreliable.

102.1. In ERISP said he was threatened; he did not say this in chief;

102.2. Face coverings; Mr Singh says both men wore white face coverings; see [9] and [10] of exhibit 8; Mr Elphick said he wore a black and white mask and the accused wore a dark coloured balaclava; T64-65;

102.3. Difference between his version and Mr Singh’s version as to how the first wound to Mr Singh was inflicted;

102.4. Said there was no cash in second bedroom; Mr Singh and Mr Fuller said there was;

102.5. Mr Singh said Mr Elphick kicked the bedroom door in; Mr Elphick did not say this in his evidence;

102.6. The imprecise drawing of the machete at trial. In addition to the imprecision of the drawing I also take into account the careless manner in which the witness made the drawing. I formed the impression from this that there was, at least in part, a disregard by the witness of the seriousness of the situation, that is giving evidence in a trial of a serious criminal matter. The witness in part did not seem to care what he said or what he did. The reproduction of the drawing in question, which has when viewed in portrait more the appearance of a lighthouse than a machete, bears this out, as does his initial description of the machete as being a couple of hundred of centimetres long.

102.7. Lied to police in September 2018;

102.8. Lied, or at the least misled, his friend Mr Mercer;

102.9. Said that he told the police what they wanted to hear; this approach is not a distant relative to the quality of the evidence concerning drawing the sketch referred to above;

102.10. He told police that the accused took him hostage; he did not say this at his sentence hearing, nor in chief in this case;

102.11. In chief he said they “kicked back” after the offending, and when this was pointed out as being markedly different to the ERISP, denied he had said it in chief the day before; see T172. Not only do I consider this unimpressive evidence in itself, “kicking back” has the marked ring of consensual behaviour, and not the behaviour of a hostage;

102.12. Denial of use of number plates from the accused’s Commodore;

102.13. What at best is confusion as to his clothing after the event;

102.14. The different versions of getting to the first location;

102.15. His evidence as to catching a bus from Bellingen to Urunga is at odds with the telephone evidence;

102.16. His evidence was that his car had been burnt out four days after the offence. This was not true as it was found abandoned seven weeks later and was not burnt out.

102.17. Inconsistent with Ms Terbeeke in respect of:

102.17.1. When they moved to the accused’s;

102.17.2. How the belongings were moved to the accused’s;

102.17.3. Where they went by bus on leaving Bellingen;

102.17.4. How often they had been to the accused’s house prior to the offending;

102.17.5. Mr Elphick said he did not say anything to Ms Terbeeke on his return from the offending; Ms Terbeeke says he told her he had “done a job”;

102.17.6. Ms Terbeeke said she saw the accused on an almost daily basis in 2018; the evidence of Mr Elphick was to the effect that it was far less than this;

103. The evidence of Ms Terbeeke:

103.1. Would do anything to assist Mr Elphick;

103.2. Claimed to be unaware that Mr Elphick would benefit in his sentence by assisting police against the accused;

103.3. Her reference to “Fuller’s” as suggesting greater knowledge of local matters than the Crown case allows;

103.4. The discrepancies with Mr Elphick’s evidence as noted above.

104. The machete:

104.1. Variable description of it by Mr Elphick;

104.2. Sketches of it of little assistance;

104.3. Mr Singh did not describe it as black;

104.4. It is likely Mr Elphick saw it at the accused’s house before the offending;

104.5. No forensic findings supporting it as being the weapon;

105. Phone evidence:

105.1. In the call to Jarrett Mercer evidenced by exhibit 2 where admissions are made by Mr Elphick, there is no express reference to the accused;

105.2. Exhibit 1 initially was to be relied on by the Crown to show a connection between the accused and Mr Elphick after police attended on Mr Elphick on 3 September 2018. This was abandoned as Mr Elphick said he made no such calls/texts;

105.3. Exhibit 15:

105.3.1. Shows phone contact unconnected with the offending on 25 May;

105.3.2. The attempts at phone contact at 11.27pm on 27 May is inconsistent with the accused being with Mr Elphick at this time, which is the Crown case, assuming the respective phones are in their possession at that time and not their partners;

105.3.3. The attempts by a third party on a phone of a Corinne Rose to contact Mr Elphick during the offending and on 4 occasions between 3.28am and 4.05am adds to the suggestion of somebody else being involved other than the accused. There was no police investigation in this regard;

105.4. A difficulty for the Crown with the phone evidence is that I find, and it was not really contested, that there was another reason for phone contact between the accused and Mr Elphick given their drug relationship.

105.5. There is also the difficulty that the phones were also used by the partners of Mr Elphick and the accused, including by Skye seeking to find where the accused was. On one view, given Mr Elphick said he did not take his phone with him when offending, this may ameliorate the damage to the Crown case of the first Corinne Rose call; my preferred view is it simply adds a degree of uncertainty, and in any event I am not satisfied Mr Elphick did not take his phone with him given my reservations as to his evidence generally.

105.6. Exhibit 15 on analysis is at odds with the Crown case. It does not support being at the house on the night of the offending. It does not support Mr Elphick leaving the house early the next day. It does not support the catching of a bus in the way sworn to by Mr Elphick and Ms Terbeeke.

106. Forensic issues:

106.1. There is no physical or forensic evidence connecting the accused to the offence.

106.2. Further there is the oddity of there being no reference to a yellow boxcutter by Mr Singh in his statement and no trace of his blood on that implement.

106.3. Putting the lack of forensic evidence aside, there was no evidence of the box cutter being taken there by the accused, or of Mr Elphick having it, and it is not suggested he did the cutting (about which he gave no evidence). Mr Fuller had never seen the box cutter before 28 May, and did not use in his business. Did someone else bring it there?

106.4. This theory is added to when it is considered that the forensics did discover a Profile B on the box cutter which is not Mr Singh’s, or the accused, nor is it suggested that it is the profile of Mr Elphick.

106.5. This theory is further added to by the discovery of two fingerprints on the rear vision mirror of the car taken from the first location which were not those of Mr Elphick, the accused or Mr Singh or his sister.

Result

107. It is clear from the above summary that the Crown has failed to satisfy the high onus it bears. It is unnecessary to consider each of the elements of the two offences. The matters I have identified about the various aspects of the evidence that I find unsatisfactory mean that the evidence of the Crown’s two key witnesses, Mr Elphick and Ms Terbeeke is unreliable and further the evidence of phone calls and the forensic evidence as discussed is also unpersuasive. The evidence fails to satisfy me beyond reasonable doubt that the accused was party to the offending by Mr Elphick on 28 May 2018.

108. One way of considering this case at the risk of oversimplifying it is to consider whether it has been established that the accused and Mr Elphick were together on 27 and 28 May. The evidence of Mr Elphick about cars was unsatisfactory in numerous respects. He told the police that they walked to the first location of the offending. He told the court they drove his car and then walked the last kilometre to the first location. He said he caught the bus when they left the next morning and said his car was found burnt out at Bowraville 4 days later. It is accepted that his car in fact was not burnt out because 7 weeks later it was found abandoned but not burnt in Bowraville in connection with a stolen phone with an occupant bearing a marked similarity to Ms Terbeeke. Putting aside Ms Terbeeke’s possible involvement the fact is the burnt out car assertion was false. What then happened to the car? The evidence of catching a bus was not accepted by me, which gives rise to the scenario quite open on the facts overall that Mr Elphick and Ms Terbeeke did not catch a bus, were still in Bellingen at 9:42 AM on 28 May 2018 and may well have left in their own car.

107. If they did not leave from the accused’s house early in the morning, and given the confusion amongst them as to when they got there, it adds to a reasonable hypothesis that they were not at the accused’s house that night and left Bellingen in their own car.

108. It is of course not necessary for the accused to establish or prove anything. The result is I am not satisfied the Crown have established the facts necessary to prove the elements of the offences beyond reasonable doubt, and the fact that a reasonable hypothesis can be constructed quite inconsistent with the Crown case bears this out.

109. Accordingly I arrive at the verdicts set out below.

VERDICTS

Count 1:   Not guilty

Count 2:   Not guilty

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Decision last updated: 16 March 2021