R v Marafioti - [2009] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARAFIOTI
Criminal Trial by Judge Alone
[2009] SADC 17
Reasons for the Verdict of His Honour Judge Muecke
4 March 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
One charge of aggravated threatening life- found guilty.

R v MARAFIOTI
[2009] SADC 17
Introduction

The accused was charged on Information dated 15 September 2008 with the offence of aggravated threatening life (first count); possessing a firearm without a licence (second count) and carrying a loaded firearm in a public place (third count). When he was arraigned in this court on 15 September 2008 he pleaded not guilty to the first count and guilty to each of the second and third counts. He elected to be tried on the first count by a judge without a jury.
The charge at trial
At his trial the accused was charged as follows:
First Count
Statement of Offence
Aggravated Threatening Life. (Section 19(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Michael Angelo Marafioti on the 13^th day of May 2008 at Glen Osmond, without lawful excuse, threatened to kill or endanger the life of Danny Philip Agagliate, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.
It is further alleged that Michael Angelo Marafioti used an offensive weapon, namely a firearm when committing the offence.
The alleged offence
The Crown’s case at trial was that at about 6.30pm on 13 May 2008 the accused was alone and driving his VL Commodore motor vehicle registered no. WLU-545 when he pulled up adjacent to the driver’s side of the cabin of a semi-trailer vehicle that was then stopped at traffic lights at an intersection at the top of Glen Osmond Road, Glen Osmond. Mr Danny Agagliate was the driver of the semi-trailer and he had just set off from Adelaide to drive to Melbourne.
The Crown’s case was that the accused started screaming at Mr Agagliate saying that he (Mr Agagliate) had cut him off. It was alleged that at some point when the accused was “going off” at Mr Agagliate he reached in between his legs with his left hand, produced a gun, leant over the vacant passenger seat in his vehicle and pointed the gun at Mr Agagliate. When he did that the accused said “I’m going to fucking pop ya” or “I’m going to pop ya, you mother-fucker”, or words to that effect. The Crown’s case was that at that point the traffic lights for traffic travelling towards the Adelaide Hills along Glen Osmond Road at its intersection with Portrush Road and Cross Road turned green, and the accused drove his vehicle off from where he had stopped and threatened Mr Agagliate.
Section 19(1) of the Criminal Law Consolidation Act, 1935 provides that a person who threatens, without lawful excuse, to kill or endanger the life of another, and intending to arouse a fear that the threat is likely to be carried out, or is recklessly indifferent as to whether such a fear is aroused is guilty of an offence. This is the offence alleged against the accused in the first count of the Information on which the accused was tried.
To make out this charge the prosecution must first prove that the accused made a threat.
For present purposes, a threat means a declaration of hostile intent which is made seriously (as distinct from merely "sounding off") and intended to be taken seriously.
The threat can be made by words, either spoken or written, or by conduct or by a combination of words and conduct.
Secondly, the prosecution must prove that the threat was directed towards the life of another person. That is, that there was a threat to kill another person or a threat to endanger the life of another person.
Thirdly, the prosecution must prove that, at the time the threat was made, the accused intended to arouse a fear that the threat would be, or was likely to be, carried out or was recklessly indifferent as to whether such a fear was aroused.
It is not necessary for the prosecution to prove that, at the time the threat was made, the accused intended to carry it out. What the prosecution must prove is that, at the time the threat was made, the accused intended to arouse a fear that the threat would be carried out or was likely to be carried out.
Either intention or reckless indifference suffices. An accused is recklessly indifferent if, although not intending to arouse fear that the threat would be or was likely to be carried out, he realised that the consequence of making that threat would probably be to arouse a fear that the threat would be, or was likely to be, carried out, but nevertheless went ahead and made the threat.
To be an offence the threat must be without lawful excuse. If the prosecution has proved beyond reasonable doubt that the threat to kill or endanger life was made with the necessary intention or reckless indifference, the accused is nevertheless not to be convicted if he has proved on the balance of probabilities that he had a lawful excuse for his conduct. In the circumstances of this case no issue arises as to any lawful excuse.
An offence of threatening life is an aggravated offence if the offender uses an offensive weapon when committing it. It is alleged here that the accused’s offence was aggravated in this way. A firearm, or imitation firearm, is an offensive weapon.
There was evidence at the trial that when police arrested the accused at about 9.30pm on the same day of the alleged offence they found a handgun in a pouch which was secured by a strap around the accused’s waist. The pouch was down the front of, and inside, the accused’s pants when it was found.
It is this handgun which was the subject of the second and third counts on the Information dated 15 September 2008. The accused had pleaded guilty to those two offences in respect of the handgun police found on him. He did that prior to the trial.
By his plea of guilty to those two offences the accused is taken to have admitted all the elements that make up those two offences. The fact that the accused was in possession of the handgun the subject of the second and third counts cannot be used by me to reason that just because of that fact the accused is more likely to have committed the offence which was the subject of the trial, and therefore did commit it. That is impermissible reasoning and I shall not reason in that way.
However, the Crown case at trial was that that handgun was the gun used to threaten Mr Agagliate about three hours before the accused was arrested. If I am satisfied of that, it is circumstantial evidence which I can use when considering all the other evidence presented by the Crown at trial.
The prosecution based its case against the accused on circumstantial evidence. The Crown asked me to infer from all the evidence that the accused was the man who threatened Mr Agagliate with a gun near the traffic lights at the top of Glen Osmond Road at about 6.30pm on 13 May 2008.
Circumstantial evidence, as its name suggests, is evidence of the circumstances surrounding an alleged offence from which the prosecution asks me to infer, beyond reasonable doubt, that the accused committed that offence. All that is meant, when reference is made to the Crown’s case being based upon circumstantial evidence, is that I am asked to work out, from all the circumstances, what must have happened. In this case this means, in particular, whether the accused was the man involved in the incident that was alleged to have occurred near the traffic lights at the top of Glen Osmond Road as described by Mr Agagliate as having occurred when the Commodore stopped adjacent to the driver’s door of his semi-trailer.
The amount of circumstantial evidence which will suffice to prove a charge beyond reasonable doubt will vary from case to case. The number of circumstances proved can vary enormously and so can the weight of the individual circumstances. However, the process of reasoning remains the same.
First, I must decide what facts I accept as established by the evidence. Then, I consider what inference or inferences I am prepared to draw from the facts which I find established.
I must carefully examine each item of circumstantial evidence. When deciding whether I accept that a particular fact has been established, I am entitled to take into account the whole of the evidence. When considering what inference I am prepared to draw from the facts which are established, I do not reject an individual circumstance simply because no inference can be drawn from that circumstance alone. Instead, I keep that fact in mind and I may consider it in conjunction with the other facts that I find are established. I must have regard to the totality of the circumstances and united force of all the circumstances put together. The proper approach is for me to assess the combined effect of those items of circumstantial evidence which I accept, and to consider further whether, as a matter of inference, they prove beyond reasonable doubt that the accused committed the offence, and in particular in this case, whether or not I am satisfied beyond reasonable doubt that the accused was the man in the VL Commodore that pulled up adjacent to the driver’s cabin of Mr Agagliate’s semi-trailer, accused him of cutting him off, reached between his legs and pulled out a gun and then leant over and pointed it at Mr Agagliate and threatened to kill him.
In considering circumstantial evidence I must have regard to the possibility that it does not necessarily point to guilt. I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the charge. In other words, before I can be satisfied that the accused is guilty of the charge, I must be satisfied not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances I find proved enable me to draw.
The Crown case
Mr Danny Agagliate gave evidence that as at 13 May 2008 he was an interstate truck driver. On Tuesday 13 May 2008 he was engaged in that employment driving out of Adelaide towards Melbourne. He was driving his semi-trailer on Glen Osmond Road. He had not yet reached the freeway when he stopped at the top of Glen Osmond Road about 15 to 20 car lengths back from traffic lights there. The lights were at the intersection of Glen Osmond Road with Cross Road. Those lights were red. He had stopped in the kerb-side lane.
Mr Agagliate said that when he was stationary there a car pulled up along side him, by his driver’s side window. The passenger door of the car was right next to his driver’s door. The car had pulled up adjacent to him leaving a gap between the front of the car and the stationary cars ahead of it. Mr Agagliate said that the car was a VL Commodore, coloured blue and a bit of silver on the bottom. There was no-one other than the driver in the Commodore. He said that someone wound the car’s window down and started screaming at him saying that he had cut him off. He said that the driver was screaming at him saying that he had cut him off and he was saying that he hadn’t, he couldn’t have. When asked what happened then Mr Agagliate replied that the person reached in between his legs, in his groin area, with his left hand and pulled a gun on him. He said that the man then leant over the passenger seat of the car and pointed the gun up at him saying “I’m going to fucking pop ya” … “I’m going to pop ya, you mother fucker” or words like that. The man was leaning down and holding his arm up at about shoulder level pointing the gun at him. He could “pretty much” see the whole gun.
Mr Agagliate said that he (Agagliate) then said words like “pull the trigger” … “why don’t you just do it?” He couldn’t remember his exact words. He said that he was scared and angry.
Mr Agagliate said that then “the lights have gone green and he (the driver of the car) has taken off”. He said those events happened in maybe a minute or a minute and a half. He said that it wasn’t very long, it was very quick.
Mr Agagliate said that although he later lost sight of the car he wrote the registration number of the car on his hand. It was WLU-545. When he had crossed the intersection and had started heading up the freeway he rang police and gave them a brief description of the incident. He also gave them the registration number of the vehicle.
Mr Agagliate said that the car was a VE Commodore, probably about a 1986-1987 model. It was blue and silver.
Mr Agagliate said that the man who had pointed the gun at him was, he thought, Italian looking or Greek, he wasn’t sure. He thought that because the complexion of his skin was a bit darker than white. He said he was not able to say anything about the man’s face but said that his hair was dark, “as in like dark brown or black” and was short. It was “like a crew-cut type”. He said he thought the man had a dark T-shirt on, “like black or navy blue”. He said he saw that the man was wearing a “fairly thick gold chain” around his neck. He thought he had on a Bonds type T-shirt and the chain sat around on the rim of the T-shirt. He thought the man’s build looked fairly thin, not fat. He thought he was between 30 to 35 years of age.
Mr Agagliate said it was not completely dark at that time of night, there was a bit of sunlight.
Mr Agagliate said that the gun the man had was like a pistol or a handgun. It was about 10 to 15 cms in length and he noticed that it was black and silver. When he first saw it he thought it might be a replica. He thought it was a little bit too small but when the man “held it up like that to me I saw the reflection of the silver and I thought “No, that looks real””. Mr Agagliate was asked about the handgun that eventually became Exhibit P2. He was asked how that compared with the gun that was produced and pointed at him. He replied: “It was the one”. He said he based that on the size, the colour and he said: “You know, you just don’t forget something like that”.
Mr Agagliate said that on 28 August 2008 he met a police officer Senior Constable Maidment. She showed him a set of photographs in a manila folder. It was his understanding that he was looking at the manila folder “to see if I could recognise who the person was”. He said that he indicated photograph number 3. He said he indicated that “because I thought it was the person that I was trying to identify”. He said that he wasn’t confident at all about his identification. He was 50/50 that he had picked the right person. He had said to Senior Constable Maidment “I’m not sure if this is the right person”. He later said that he wasn’t 100% sure that it was the right person in the picture he picked. He said “It was quite a few months later when I looked at the picture, you know. There are a lot of things that do change. That looked the most familiar picture to me, that’s why I picked it”.
Mr Aitken, of counsel for the accused, raised a number of matters in cross-examination of Mr Agagliate. Those matters included questions as to the available light at 6.30pm on 13 May 2008, Mr Agagliate’s opportunity to see the man he said threatened him with a gun, his line of sight to that man from his seat in the cabin of the semi-trailer, his description of the man, his thoughts as to whether the gun was fake or real, his description of the chain that he said he saw around the man’s neck, and the colour of the man’s pants. There were some things that were put to him that he was said to have told police when he gave a statement over the telephone soon after the incident. I shall take all those matters into account when considering my verdict.
Mr Darren Slater said that he once owned a VL Commodore registered number WLU-545. He bought it from a Peter Grigg. That was around February 2008. He later sold that car to Michael Marafioti whom he identified in the dock as the accused. He sold it to the accused between 4 to 6 weeks after he purchased it.
Senior Constable Petraccaro said that after a report was received by police at about 6.30pm on the day of the incident, he started doing a systematic search of all the motels on Glen Osmond Road. At about 8.25pm he went into the car park of the Motor Inn that was on the corner of Queens Lane and Glen Osmond Road, near the intersection of Glen Osmond Road, Portrush Road and Cross Road. He had received information that the vehicle involved in the incident was a blue-on-grey VL Commodore registered WLU-545.
Senior Constable Slater said that he saw that vehicle parked in front of a room at the Motor Inn. It was facing towards a room there. He said that he then reversed out of the car park and took up a position in Queens Lane. He sought assistance from other police officers who arrived shortly afterwards and cordoned off the area. Police officers from the CIB Tactical Team arrived at about 9.30pm.
Constable Richards was at that time stationed at Adelaide CIB Tactical. He attended with other officers at the Motor Inn at about 9.30pm. He received information that the car of interest was associated with Room 32 of the Motor Inn. He saw that car parked directly outside Room 32. The front of the bonnet of the car was closest to Room 32.
Senior Constable Richards said he and other police officers approached the door of Room 32. His sergeant knocked on the door and announced that it was police. There was no response and no movement from within the room. The police officers retreated back from the room to reassess their position. As he was talking to his sergeant he heard the Commodore start. It started to be reversed out of the car park, at a slow speed. His sergeant called out “Stop, police”. The car did not stop. When the car did not stop he ran towards it. He had his torch in his hand because it was dark. He yelled out “Stop” and shone his torch in the window of the car. He saw the accused seated in the car and again yelled “Stop”. The accused continued to move. Senior Constable Richards then used his torch to smash the driver’s side window of the car. His sergeant told the accused to “take the keys out”. The accused turned the ignition off and did that. The accused was the only man in the car.
Senior Constable Richards said that the accused was removed from the vehicle and placed on the ground and restrained. He commenced a search whilst the accused was lying on his stomach on the ground of the car park.
Senior Constable Richards said that he and another police officer then assisted the accused to stand up and put him over the bonnet of the car to do a “pat-down search”. He said that whilst the accused had been on the ground he had rolled him onto his side and another officer had said “there’s something in his pants”. Once he had stood the accused up to get better access he could feel a bulge in the front of his pants, in his groin. When he investigated that further he found a black and red pouch strapped around the accused’s waist. The pouch was underneath the accused’s clothing. He cut the strap and removed the pouch. He looked inside the pouch and found a silver handgun. He removed the handgun, moved a distance away from the accused and removed the magazine from the gun. That was in the stock of the handgun. He saw at least one round in the ready position in the magazine. The rounds there appeared to be live rounds. He then opened the breech of the firearm and found a live round in the chamber of the firearm, which he removed. Exhibit P2 is the handgun he removed from the accused.

The evidence was that the handgun Exhibit P2 is a Bryco Arms Co. Jennings J-22 semi-automatic pistol, chambered for 22 long rifle ringfire ammunition. It has an overall length of 141mm. The magazine (Exhibit P2A) is a removable magazine to suit the Bryco pistol Exhibit P2. Exhibit P2B is three unfired cartridges of 22 long rifle ringfire ammunition. They are suitable for use in the handgun Exhibit P2.
Senior Constable Richards said that the accused was wearing a number of quite thick gold necklaces at the time he was searched at the Motor Inn, and later arrested. Those gold chains are Exhibit P5.
Senior Constable Richards said that he had a conversation with the accused in the car park of the Motor Inn. The video of that conversation is Exhibit P4. In that conversation the accused told police that he had come to the car park to meet someone. He said “they had said they were in a room”. He gave police a name but he said he was not “a hundred percent sure about the last name”. He said that he had arrived there a “couple of hours ago” (it being then 10.15pm) and had fallen asleep in his car.
Senior Constable Richards said that he had a conversation with the accused at about 11.35pm that night at the City watch-house. Exhibit P8 is a video tape containing the recording of that conversation. The accused said that he did not wish to answer questions.
During cross-examination by Mr Aitken Senior Constable Richards agreed that when the accused was arrested at the Motor Inn he was wearing a short-sleeved dark T-shirt. He agreed that tattoos were clearly visible on his arms. He agreed that the tattoo on his left arm was quite significantly large. He agreed that on one of the necklaces seized from the accused was a cross. He agreed that at the time of his arrest the accused was wearing “sort of a grey-coloured cargo-style pant”. He agreed they were not jeans.
Senior Constable Richards agreed with Mr Aitken that the motel at which the accused was arrested was “reasonably famous for some prostitution-style offences and drug manufacture offences”. He agreed that it was a motel “with some infamousness” attached to it. I ignored this evidence when considering my verdict. In particular, I do not draw any inference adverse to the accused from the fact that he was at such a motel for about an hour from when police first saw the Commodore there, until when he was ultimately arrested.
Senior Constable Richards agreed with Mr Aitken that the accused’s hair-style depicted in photograph numbered 4 of photographs taken on the night of 13 May 2008 (Exhibit P7) shows some bits appearing to be long and some bits appearing to be short. Senior Constable Richards agreed with the suggestion that the hair-style was “certainly not a standard crew-cut” (Mr Aitken’s words). He agreed that the hair-style showed short sides and what is “colloquially referred to as a mullet at the back” (again Mr Aitken’s words).
Detective Senior Constable Maidment said that she was part of the Adelaide CIB Tactical Team that night. She attended at the Motor Inn with other police officers, including Senior Constable Richards.
Detective Maidment said that after making some enquiries at reception she walked out to see where the car she was interested in was parked. It was parked closest to Room 32. She said that she did not at that time see anybody inside the car but that she didn’t at that time look inside the vehicle properly, or at all. She reported back to the other police officers.
Detective Maidment said that police adopted and maintained positions at cordoned points whilst one of the police officers knocked on the door of Room 32. There was no response. A short time after that she heard the noise of a motor vehicle start. That was the vehicle located outside Room 32. It was 4 metres away from the front door of Room 32. She saw the car reverse backwards and she heard some people shouting. She then saw a flash, which she now knows to be the torch of Constable Richards, and then she saw Constable Richards take the accused out of the driver’s seat.
Detective Maidment said that she believed that other police officers “did raise an occupant (in Room 32) and it was ascertained (the occupant) was not linked to (the Commodore) vehicle”.
Detective Maidment said that on Friday 29 August 2008 she showed a folder of photographs to Mr Agagliate. During the procedure she activated, or thought she had activated, a hand-held video camera to video tape the procedure. She found later that no images were recorded on it. She said, by looking at her notes, that when Mr Agagliate identified photograph no. 3 he said “I think so”. She asked him to sign that photograph as accepting that it was the photograph he had selected.
The defence case
I have already referred to the accused being arrested by police at a motor inn near the top of Glen Osmond Road on the night of 13 May 2008. Two videos of conversations police had with the accused on that night were tendered. After answering some questions at the City Watch-house the accused declined to answer further questions. That was a right that he had, and that he was told that he had. I draw no inference adverse to him because he exercised his legal right to decline to answer further questions.
An accused person, on his trial, is legally entitled to give evidence in his defence, or refrain from giving evidence. The choice is his. In this case, Mr Marafioti did not give evidence. He was not obliged to do so and there may have been many reasons why he did not do so. It is for the prosecution to prove its case beyond reasonable doubt and I shall draw no inference from the accused not having given evidence.
Addresses of Counsel
Mr Nitschke, of counsel on behalf of the DPP, submitted that I should be satisfied that the driver of the two-toned Holden Commodore registered WLU‑545 committed the offence of aggravated threatening life at about 6.30pm on 13 May 2008 by pointing an offensive weapon at Mr Agagliate and at the same time uttering words that amounted to a threat to shoot. He submitted that that has been proven by the evidence beyond reasonable doubt. He submitted that I should rely on the evidence of Mr Agagliate which he submitted established that.
Mr Nitschke submitted that I should find that the prosecution has excluded any reasonable possibility that it was someone other than the accused who was the driver of the Holden Commodore at the time of the incident. He submitted that the circumstances of the incident and what followed it are such that I should be satisfied beyond reasonable doubt that it was the accused who was the driver of the two-toned Holden Commodore who committed the offence of aggravated threatening life at about 6.30pm on 13 May 2008. He submitted that the evidence, in combination, permits no conclusion other than it was the accused who, some three hours earlier than his arrest, had been the driver and the sole occupant of the Commodore on Glen Osmond Road.
Mr Nitschke pointed to the evidence of Mr Agagliate’s description of the man in the car and he pointed to the circumstances surrounding the accused’s arrest 3 hours later in the vicinity of the incident to support his submission that the guilt of the accused of the offence for which he was tried has been established beyond reasonable doubt. He submitted that no aspect of the evidence that did not directly inculpate the accused, either together or in combination, should convince me to have a reasonable doubt as to the guilt of the accused.
Mr Aitken, of counsel for the accused, submitted that I should not be satisfied beyond reasonable doubt of the guilt of the accused. He submitted that I cannot be satisfied that the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the charge. He submitted, in effect, that I should not be satisfied that the accused’s guilt is the only rational inference that the circumstances I find proved enable me to draw.
Mr Aitken highlighted, in his submission, the differences between Mr Agagliate’s description of the accused and the accused’s appearance. He referred to the evidence about the jewellery Mr Agagliate described and the jewellery that was found on the accused. He referred to the fact that Mr Agagliate did not describe any tattoos on the man in the Commodore whereas the accused had an obviously visible and large tattoo, in particular on his left arm. He particularly drew attention to the fact that Mr Agagliate did not pick the accused from the photographic array and in fact picked a person who was not the accused. He submitted that “there remains a possibility that the negative identification evidence is indeed correct”. He drew attention to the period of something like three hours between the incident said to constitute the threatening life, and the arrest of the accused at the motor inn on Glen Osmond Road.
Legal Considerations and Directions
Accused persons come to this court with a presumption of innocence in their favour. The law regards them as innocent unless their guilt has been proved beyond reasonable doubt. The burden of proving a particular charge lies wholly upon the Crown. An accused person does not have to prove anything. If an accused person puts forward a defence, he does not have to prove it. Furthermore, nothing short of proof by the Crown beyond reasonable doubt will do. It is not for the Crown to show a mere suspicion of guilt or to show that an accused person is probably guilty. In this case the accused is not to be convicted of the charge against him unless his guilt has been proved to my satisfaction, beyond reasonable doubt.
Furthermore, the requirement of proof beyond reasonable doubt extends to each and every element of the offence. I cannot convict the accused so long as I have any reasonable doubt as to any essential element of the crime charged against him. If I am left with a reasonable doubt about his guilt as to the charge then I must give him the benefit of that doubt and find him not guilty.
If I am satisfied to the exclusion of reasonable doubt about the truth of the charge brought against the accused, I should bring in a verdict of guilty.
If, in these reasons for verdict I refer to the matters being “proved” or if I use the words “satisfied” or “established” relating to the proof of matters in issue I mean “proof beyond reasonable doubt”.
Conclusions and Verdict
I start by considering whether the events as described by Mr Agagliate on the evening of 13 May 2008 at the top of Glen Osmond Road occurred. That is, am I satisfied that the driver and sole occupier of a VL Commodore registered no. WLU-545 pulled up adjacent to the driver’s door of the cabin of Mr Agagliate’s semi-trailer. Am I satisfied that, if that happened, the driver of the Commodore accused Mr Agagliate of cutting him off and, following a short verbal exchange between them, the driver of the Commodore took from the area of his groin a handgun which, when he leant over the passenger’s seat, he directed at Mr Agagliate and threatened to shoot him.
This first issue depends on my assessment of Mr Agagliate’s credibility and reliability. I considered him to be an extremely impressive and straight-forward witness. He gave his evidence in a direct, no-nonsense and disarmingly frank way. I am convinced that his account of what happened when he had stopped near the lights at the top of Glen Osmond Road was not only the truth as he recalled it, but was an accurate account of what happened. I am satisfied that his evidence is a reliable basis upon which I can find that the incident he described occurred.
At this point in my reasons I am only dealing with the incident that was said by the Crown to constitute the commission of the offence charged by the driver of the Commodore.
I am satisfied beyond reasonable doubt that each and every element of the offence charged has been proved, and I am satisfied that the alleged aggravating feature of the offence has been proved beyond reasonable doubt. I am satisfied of that without making a finding as to whether the firearm produced by the man in the car was real or an imitation. The feature of aggravation is made out regardless of a finding as to that.
The next issue, and the issue that both counsel (including counsel for the accused) concentrated upon in their final addresses to me is whether I am satisfied that the accused was the man in the Commodore.
I am satisfied beyond reasonable doubt that the vehicle that pulled up next to Mr Agagliate’s semi-trailer was a VL Commodore registered no. WLU-545. I am satisfied and find that that vehicle was, as at 13 May 2008, owned by the accused. I am satisfied that he had, by then, been the owner of it for some several months.
I am also satisfied that the accused was arrested at a motor inn at about 9.30pm on the same day as the incident involving Mr Agagliate, in the near vicinity to that incident. I am satisfied and find that that was about three hours after the incident involving Mr Agagliate. I am satisfied and find that for about an hour before he was arrested the accused was sitting in his vehicle when it was in the car park of the motor inn, or was in the near vicinity of his car. That was the same car that was involved in the incident with Mr Agagliate. It had been in the car park for at least an hour. I am satisfied and find that the accused’s presence at the motor inn had nothing to do with Room 32. The accused told police that he was waiting for someone, and had been for a couple of hours. That statement was not on oath and not subject to cross-examination. Bearing that in mind I am unable to make any findings as to why the accused was at the motor inn that night.
I now deal with some of the evidence of what happened at the motor inn when police went there to investigate the VL Commodore WLU-545 that was seen parked outside Room 32. There was evidence that police said on at least one occasion that they were present before the vehicle was heard to be turned on and seen to move in reverse. There was other evidence that police identified themselves and called upon the driver of the vehicle to stop and he didn’t.
That evidence might be considered by me and used by me as evidence that the accused was attempting to flee from the police at the motel. What (if any) significance is to be attached to his flight (if I am satisfied of it) as evidence of his guilt?
Evidence that indicates a consciousness of guilt on the part of an accused person may be some evidence of his guilt. Before I can use the evidence to which I have referred in that way in this case, I must be satisfied that the accused did in fact attempt to flee and that his action in doing so is not explicable on some basis other than flight. I must be satisfied of these matters beyond reasonable doubt. I must also be satisfied that his attempt to flee (if I find it was such an attempt) was referrable in his mind to the offence with which he was tried before me, being an offence of aggravated threatening life which was alleged to have occurred about 3 hours earlier, although not far from the motel.
Sometimes flight is explicable by a desire to escape the consequences of some other wrong-doing, or has some other explanation unrelated to the offence upon which the accused was being tried. If, however, I am satisfied about those matters to which I referred earlier, I may, if I see fit, treat the attempted flight as some indication of a consciousness of guilt on the part of the accused of the offence for which he was tried, and is therefore some evidence of his guilt. There may, of course, be other explanations, such as fear of being arrested for some other offence. I must exclude that explanation or other explanations beyond reasonable doubt.
Shortly after he did eventually stop the vehicle the accused was found to be in possession of what might be considered to be a concealed and loaded handgun in a pouch down the inside of the front of his pants. He did not have a licence authorising possession of that firearm and he was carrying that loaded firearm in a public place without lawful excuse. That conduct constituted two criminal offences in respect of which he was charged and pleaded guilty. In those circumstances I am unable to exclude other explanations for what I am satisfied amounted to an attempt by the accused to escape arrest by the police beyond reasonable doubt. Therefore, I exclude from my consideration the evidence concerning his attempted flight as evidence of a consciousness by the accused of his guilt of the offence for which he was tried before me.
I am satisfied, however, that the accused, immediately prior to his search and arrest, started his vehicle in the car park of the motel when he knew police were there.
I am satisfied and find that when arrested the accused had secreted in the front of his pants, in his groin area, a handgun that contained live ammunition, both in its magazine and its breech.
I am satisfied and find that the gun that police found in the pouch that was adjacent to the front of the accused’s groin was the same gun which was used to threaten Mr Agagliate at the top of Glen Osmond Road about 3 hours earlier. Mr Agagliate said in evidence that it was. Whilst I consider that evidence must be accorded some weight, I think it should be accorded limited weight. I consider that I should not, and I do not, rely upon it solely for a finding that they were one and the same gun. It would be surprising if the only gun presented to Mr Agagliate during his evidence was said by him not to be the gun. I am inclined to take his evidence as no more than evidence that the gun given to him in the witness box was, so far as he could recall from his memory, similar in some significant aspects to the gun he saw on 13 May 2008. Those included its general size, its shape and its colour. Whilst Mr Agagliate said that he was not likely to forget the appearance of the gun that was pointed directly at him, his description of its features and their similarity to the gun found on the accused are such that I am satisfied beyond reasonable doubt that the gun he saw when he was in his semi-trailer on Glen Osmond Road is the same gun as the one found on the accused.
I consider that Mr Agagliate’s description of the man in the car corresponded, in material aspects, with features of the accused. His general appearance, which was described as Italian or Greek, his build, the fact that he had short hair on the top and at the sides, and his general description of a thick gold necklace the man was wearing are similar to the accused’s actual appearance on the night the incident occurred. There are, of course, features that are not exactly the same. The accused’s photograph taken later than night shows him with a mullet-type hair-style at the back of his head. He also had two gold chains rather than one. There was also a feature of the accused’s appearance which was not mentioned at all by Mr Agagliate. That is a large and somewhat prominent tattoo on the left arm of the accused, the same arm that Mr Agagliate described the man in the car using when he pointed the gun at him and threatened to shoot him. When considering all that evidence I have regard to the fact that Mr Agagliate was describing a man whom he had never seen before and who, in the space of a minute or a minute or a half, accused him of cutting him off and then produced a gun from between his legs, pointed the gun directly at him and threatened to shoot him. In so doing the man used the sort of language which Mr Agagliate might reasonably have understood, and I find did understand, that the man was serious in making the threat, and would carry it out. I do not consider that in those circumstances Mr Agagliate would get a very clear image of the detail of what the man was wearing, what he looked like, or of all the features of his appearance. What he did describe as having seen included features of the accused’s appearance and dress which were, in my view, quite similar to the accused’s actual appearance and dress that night. I do not think that Mr Agagliate would necessarily have seen any tattoo around the upper left arm of the man in the car where that man was using an extended left arm with a gun in his hand which was pointed towards him and that man was threatening to kill him.

There was evidence about the photographic array shown to Mr Agagliate about 3 months after the incident.
I approach this evidence with caution. That is because it is easy for an honest witness to make a mistaken identification and experience has show that miscarriages of justice have occurred as a result. Witnesses can be mistaken even when they are quite sure of their identifications. A mistaken witness who is sure of an identification can be a convincing witness and therein lies considerable danger.
The ability to form and retain an accurate impression of a culprit, including his physical appearance and features, his dress or any other distinctive feature, may be affected by many factors, including the witness’ involvement in the incident, as well as the frailty of human observation and memory, and a tendency to reconstruct events in the mind over a period of time.
The risk of error is much greater where the person is a stranger.
When carefully examining the evidence of Mr Agagliate I give consideration to the circumstances in which the identification was made. How long did he have the person identified or not under observation? At what distance? In what light? Was the observation impeded in any way? Was there anything distinctive about the appearance of the person identified or the accused? How long elapsed between the observation of the person identified and the subsequent identification to the police? Was there any material discrepancy between the description given to the police and the accused’s actual appearance? Did anything occur between the time of the observation of the person identified and the identification to the police, which could have contaminated the witness’ memory of the person identified? Experience has shown that people can pick out a photograph of a person who has been seen before or since a particular incident like the one said to have occurred at the top of Glen Osmond Road, as the person previously or subsequently seen, rather than the person seen at the incident.
Mr Agagliate’s evidence related to a folder of photographs. The array of photographs presented to him by police included one of the accused. There was no identification parade where the accused and other men were present and where the witness could see actual people in three dimensions. An identification line-up is a better and more satisfactory form of identification than one from photographs. Sometimes however it does not occur. Here it did not. Senior Constable Richards said a photographic identification occurred when he did not get a definitive answer as to whether the accused would participate in an identification parade.
The next best type of identification occurred here and that was from photographs. Photographs, are of course, static and two dimensional and usually do not give a realistic idea of a person’s physique. There might also be a risk that I mentioned earlier, that when the witness looked at the photographs some time after the incident he might have sub-consciously associated the photograph identified with someone he had seen before or after the incident rather than what he actually saw on the night.
It is regrettable that the video of the photographic identification procedure was not available. In this case Mr Agagliate’s evidence at one point was that he was only 50/50 when he chose a photograph in the folder Exhibit P3. He said that he told Detective Maidment that he wasn’t sure if the photograph he picked was the right person. Detective Maidment’s notes indicated that Mr Agagliate said “I think so” when he picked out photograph number 3. Mr Marafioti’s photograph is at position 10 in the photographic array Exhibit P3. I do not consider that the photographs at positions 3 and 10 to be obviously and significantly different.
I am satisfied and find the following facts proved:
·The accused’s VL Commodore was involved in the incident with Mr Agagliate at 6.30pm on the evening of 13 May 2008.
·The gun that was used by the man in that car to threaten Mr Agagliate was taken by that man from the front of his groin area and then pointed at Mr Agagliate.
·That gun was the same gun that was found by police in a pouch secreted in the groin area of the accused some 3 hours later in the car park of a motor inn.
·The motel where the accused was arrested was in the immediate vicinity to where the incident involving Mr Agagliate occurred.
·A number of features of the appearance of the man in the vehicle as described by Mr Agagliate and his description of a thick gold chain around the man’s neck were similar to the accused’s appearance and what he was wearing 3 hours after the incident.
All these findings lead me to conclude that the accused was the man in the car who threatened Mr Agagliate. Mr Agagliate’s identification of a photograph which was not the accused is not sufficient to raise a reasonable doubt in my mind as to the accused’s guilt. I am satisfied that the conclusion I have reached is not only a rational inference from all the evidence, but that it is the only rational inference that the circumstances I have found proved enable me to draw.
Accordingly, I find the accused guilty of the offence of aggravated threatening life.