R v Marshall; R v Barker; R v Fletcher
[2012] NSWDC 223
•10 December 2012
District Court
New South Wales
Medium Neutral Citation: R v Marshall; R v Barker; R v Fletcher [2012] NSWDC 223 Hearing dates: 25 November 2012- 7 December 2012 Decision date: 10 December 2012 Before: Murrell SC DCJ Decision: Marshall
Guilty
Barker
Not guilty
Fletcher
Not guilty
Catchwords: Circumstantial evidence- joint trial- robbery in company- lies evidencing consciousness of guilty- judge alone trial- co-offender evidence Legislation Cited: Evidence Act 1995, s165, s165(1)(b) Cases Cited: R v Ray (2003) 57 NSWLR 616, R v Sutton (1986) 5 NSWLR 697 Category: Principal judgment Parties: The Crown
Robert John Marshall
Stephen Ashley Barker
Raymond FletcherRepresentation: Mr Fox (Crown)
Mr Hoare (Marshall)
Mr Pearsall (Barker)
Mr Lowe (Fletcher)
Office of the Director of Public Prosecutions NSW
Douglass & Ford Solicitors (Marshall)
Legal Aid NSW (Barker)
Paul Reynolds Solicitor (Fletcher)
File Number(s): 2011/00330494; 2011/00412683; 2012/00122756
Judgment
Opening Remarks
On 26 November 2012, each of the accused, Robert Marshall, Stephen Barker and Raymond Fletcher, elected to be tried by a judge alone and the prosecutor consented. I was satisfied that, before making the election, each accused had sought and received legal advice.
On 27 November 2012, each accused pleaded not guilty to the offence that, on 8 October 2011, while in the company of the co-accused, he robbed the proprietor of the Kangaroo Valley Friendly Grocer/ Roadhouse of cash and tobacco. The prosecution alleged that the accused were the three robbers who had entered the Friendly Grocer and removed cash from the safe.
The accused were tried jointly.
I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at verdicts.
Separate Consideration
For reasons of convenience, the accused were tried together. However, the case against each accused must be considered separately and a separate verdict returned for each accused.
Some evidence was admitted against only one accused. For example, most of Exhibit RRR (the Marshall telephone intercepts) was admitted against Marshall only. The Barker ERISP and Exhibit XX (the Barker prison telephone intercepts) were admitted against Barker only. Generally, where evidence was admitted against only one or two of the accused, the limited admission was noted on the record.
There was no evidence that, prior to the morning of 8 October, Barker or Fletcher had any involvement in a plan to rob the Kangaroo Valley Friendly Grocer. Consequently, evidence that links Marshall to the theft of the white utility that was later used in the robbery, evidence concerning Marshall's use of a vehicle belonging to his friend B and other evidence of Marshall's conduct prior to the early hours of 8 October is relevant to the cases against Barker and Fletcher only in the sense that it may bolster the case against Marshall. If the case against Marshall is proved, then his participation in the robbery is an important circumstance in the cases against the co-accused, who were in his company soon after the robbery.
Onus and standard of proof
The prosecution has the task of proving the guilt of each accused beyond reasonable doubt. In relation to each accused, the prosecution must prove each legal element or ingredient of the charge beyond reasonable doubt.
The evidence
In making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
Uncharged criminal acts
There was evidence of uncharged criminal acts, for example the alleged theft by Marshall of the white utility used in the robbery and the alleged attempted theft by all accused of a red utility in Moss Vale. There was evidence that Marshall and Barker used illegal drugs.
The prosecution relied upon some of the evidence as circumstantial evidence that the accused were the three Kangaroo Valley robbers. The accused led some of the evidence for the purpose of explaining their conduct in the period surrounding the robbery.
The evidence must be taken into account for these purposes. However, it cannot be taken into account as tendency evidence or as evidence of bad character on the part of the accused.
Right to silence
The accused were not obliged to give evidence. The onus is on the prosecution to prove the case against an accused beyond reasonable doubt.
Barker and Fletcher chose to exercise their right to silence. I draw no adverse inference based on their decision to do so.
Marshall chose to give evidence. I approach his evidence in the same way that I approach the evidence of any witness, but in the context that he carries no onus.
Section 165 warning re Marshall evidence
Insofar as it was relevant, the oral evidence of Marshall was admitted in the trials of the co-accused. Depending upon the view taken of it, aspects of Marshall's evidence could be considered to be either inculpatory or exculpatory of the co-accused.
In the prosecution cases against the co-accused, Marshall was a witness who "might reasonably be supposed to have been criminally concerned in the events giving rise to (the proceedings against Fletcher and Barker)". Consequently, pursuant to s165 of the Evidence Act 1995, there is a need for caution in determining whether to accept his evidence and in deciding the weight that it should be accorded in the prosecution cases against the co - accused.
Robbery in company
At the heart of an offence of robbery is the use of force or threats to effect the theft of property. In order to prove an offence of robbery in company, the prosecution must prove beyond reasonable doubt that:
(1) The accused (or a joint criminal participant) robbed the complainant, ie
(a) Without the complainant's consent
(b) Through the use of force or threats
(c) The person removed property from the complainant's immediate personal care
(d) With intent to permanently deprive the owner/ person entitled to the property
(2) At the time of the robbery, the accused was in company. An accused is "in company" with a co-accused if the accused knows or expects that the complainant is aware that the co-accused is present and is available to assist the accused, if called upon.
At about 6.00am on Saturday, 8 October, the complainant was setting up his business for the day's trading when he saw a utility truck pull out of the business's service station driveway. At about 6.10am, the utility reappeared and parked in front of the business. The back of the utility was white. It appeared to carry a tank with a red feature that may have been a pump handle. Three men disembarked and entered the store.
The first, was about 5 feet 4 inches (162.5 cm) in height (the height of the complainant) or slightly taller. He was wearing ski clothing including a red - striped jacket, a beanie and face covering. He carried a black and yellow rope, which he used to tie the complainant to a chair, and a knife, which he used to threaten the complainant.
The second was about 5 feet 10 inches (178 cm) in height. He was wearing dark blue or black clothing and a balaclava. He wielded a metal bar in a threatening motion. The first two men demanded to know the location of the safe and demanded that the safe be opened.
The complainant heard the third man but didn't see him clearly. He entered the store after the others. He told the others that the safe was already open.
The men removed a cream metal cashbox, cash drawers containing floats, calico bags containing cash, and several packets of White Ox tobacco. The money that was removed included about $200 in coins, five dollars notes and $50 notes.
At 6.24am, the complainant's wife telephoned 000, stating that the robbers had departed about two minutes earlier.
The complainant's evidence and the 000 call establish that, at about 6.10am (or perhaps a few minutes later) on 8 October 2011, three men removed property to which the complainant was entitled from his immediate personal care (he had immediate control of the open safe in which the cash was located), without his consent, and by the use and threatened use of force (threatening him with a knife and metal bar, and tying him to a chair).
There is no doubt that each of the robbers was a participant in a joint criminal enterprise in the sense that there was an arrangement or agreement between them that they would rob the store. They arrived together in the utility, each was disguised, they entered the store together, each was present when the complainant was tied up, each verbally expressed an interest in the contents of the safe, and the three men left together.
There is no doubt that each of the robbers was "in company" with the others. Each must have known that, from the complainant's perspective, they appeared to be acting in concert and each appeared to be available to assist the others.
The accused do not dispute that, on 8 October 2011, the complainant was the victim of a robbery that was committed by three men in company.
The contentious issue is whether, in relation to each accused, the prosecution has proved beyond reasonable doubt that he was one of the three robbers who entered the Friendly Grocer.
Circumstantial Evidence
The prosecution case on the critical issue of the identity of the three robbers depends very largely (but not exclusively) on circumstantial evidence.
In a circumstantial evidence case, the prosecution must establish that, given the proven circumstances, the only rational explanation is that the accused committed the crime in question, i.e. that the established circumstances show beyond reasonable doubt that the accused committed the crime.
The first question is: What circumstances are established by reliable evidence? The second question is: Taking the established circumstances as a whole, together with any direct evidence (both in the prosecution case and in the case of the relevant accused), is the Court satisfied that the only available rational inference is that the relevant accused is guilty?
The evidence against Marshall
In the case against Marshall, I am satisfied of the following circumstances.
(1) B was an associate of Marshall, with whom Marshall communicated frequently in the days before the robbery (Exhibit QQ and RR). B owned a Hi Lux utility vehicle with distinctive number plates.
(2) On the night of 6/7 October 2011, a white utility registered number VJP220 was stolen from a roadside position near the Shoalhaven Hospital, Nowra.
(3) At 2.22am on 7 October, Marshall told a friend that he was "Borrowing my friend's car so I can go fishing ..."
(4) At 12.40am, 3.13am and 5.47am on 7 October, Marshall called B (Exhibits QQ and RR). At 3.13am, B was at the Nowra (Shoalhaven) Hospital Emergency Department. Marshall asked why B was "running" and stated that he had "just watched" B "dancing around there". He asked B to be "not longer than 330". At 5.47am, B was still at the Hospital. Marshall told him "I needed a hand man" and "I did everything I had to do". They arranged to meet at "the toilets". Marshall stated that he was "sorta there now". In evidence, Marshall said that he was referring to the toilets in Drexel Park, North Nowra. I accept this aspect of Marshall's evidence; it was a statement that was inadvertently made against his interests.
(5) Drexel Park is very close to the North Nowra residence of Marshall's partner (Marshall's former residence) and to the bushland to which Marshall later drove B's vehicle.
(6) At 12.41am on 8 October, Marshall sent a text message to an associate asking whether he had a can of spray paint that Marshall could "use for this thing I'm doin". In cross-examination, Marshall agreed that he had been told that spray paint could be used "to knock out CCTV". Marshall stated that, prior to 8 October, he had been to the Friendly Grocer. CCTV cameras were installed at the Friendly Grocer but were not operational at the time of the robbery.
(7) At 1.32am on 8 October, Marshall telephoned Paul Acquilina (Marshall's stepfather) and asked him to "bring me the knife out, I forgot, it is under your mattress".
(8) I am satisfied beyond reasonable doubt that the stolen white utility was used in the robbery. The complainant saw something red on the tray of the utility used in the robbery. There was a red gas cylinder on the stolen white utility. The yellow and black rope that was used to bind the complainant was similar to yellow and black rope that had been in the utility when it was stolen. On Monday 10 October (or, possibly a day or two later), the stolen white utility was found in Moss Vale. It was well concealed in a corner of the Throsby Manor car park, Moss Vale (Exhibit V). The cream cashbox that had been taken during the robbery was located immediately adjacent to the vehicle (Exhibit P).
(9) At about 5.45am on 8 October, Marshall's mobile telephone 0435800680 was in the vicinity of cell towers that are between North Nowra (Cambewarra) and Kangaroo Valley (Exhibits DD and EE). Between 5.48am and approximately 6.35am on 8 October, Marshall's telephone was in the Kangaroo Valley cell tower area. From about 6.51am to 8.06am, it was in the Moss Vale cell tower area.
(10) There are only three routes in and out of Kangaroo Valley (east to Berry, east to North Nowra and west to the Moss Vale area). It is 35.5 km from the site of the robbery to the car park where the utility was abandoned. It takes 35 minutes to drive that route.
(11) By road, it is 600 metres from the Throsby Manor car park to the Moss Vale Newsagency.
(12) At about 7.30am on 8 October, three men attempted to steal a red utility from the Moss Vale Newsagency car park in Elizabeth Street, Moss Vale. A newsagency employee (Mr Shaw) approached them. They fled north along Elizabeth Street, in the opposite direction to the TAFE. Each was dressed in black. Mr Shaw described one as being 16 or 17 years old with bad acne, fair hair and a crew cut. The second was taller, 18 or 19 years old, and had a man bag strap over his shoulder. The third was wearing a "fisherman's hat" with a small brim. Another newsagency employee (Mr Woodhouse) saw that one of the men had a bag.
(13) By road, the Newsagency car park is 700 metres from the Moss Vale TAFE. From Elizabeth Street (where the three red utility offenders were last seen) there are a number of routes by which the TAFE grounds can be accessed, although those routes are through private property (Exhibit M). The relationship between the locations of the abandoned utility, the Newsagency car park and the TAFE can be seen in Exhibit L.
(14) At 7.53am on 8 October, Fletcher used Marshall's telephone to request a taxi from the Moss Vale Public School to Robertson (Exhibits QQ, RR). Barker's voice can be heard in the background. At 8.01am, Fletcher's telephone was used to correct the pick up address to the Moss Vale TAFE (Exhibit UU).
(15) At 8.08am (taxi CCTV footage, Exhibit G), a taxi driver collected the three accused from the Moss Vale TAFE and drove them to the Robertson Pie Shop. Barker and Fletcher were seated in the rear seat and Marshall was seated in the front seat of the taxi. The fare promised to be substantial. The taxi driver questioned the accused about their means and was assured by one of the rear seat passengers that they had plenty of money. A taxi CCTV image shows Barker waving a $50 note towards the taxi driver about thirty seconds after the accused entered the taxi (Exhibit G, photo 5). The fare was split between the accused.
(16) The taxi driver described the first man to exit the TAFE grounds (Barker or Fletcher?) as being fairly tall and thin with short hair and possibly carrying a backpack. Exhibit G photo 10 shows Fletcher with a strap over his shoulder consistent with a backpack or man bag strap. Barker had a crew cut and receding hairline (Exhibit G, photo 8). He was wearing a distinctive hoodie top. Exhibit G depicts Fletcher wearing a cap.
(17) Marshall wore a heavy, bright yellow and black ("high viz") jacket that was too large for him (Exhibit G photo 3) and the taxi driver said that he appeared to be "a little bit off the planet". The high visibility jacket that Marshall was wearing in the taxi is very similar to one that was stolen from the white utility. It had the same markings and was large in size (the stolen jacket was an extra large size). The quality of the taxi CCTV footage is inadequate to determine whether the distinctive logo on the stolen jacket was present on the jacket worn by Marshall.
(18) When the taxi driver arrived at the Robertson Pie Shop, she saw a dark green vehicle near the Shop. Shop employees observed that it was a dark green van with sliding doors. Apart from the accused, there was another person present at the van (inferentially, this person had driven the van to the Shop). The van was very similar to a van owned by Ms McAndrew, Mr Fletcher's partner. In the early hours of 8 October, Mr Fletcher had used the van to collect Ms McAndrew from a Dapto hotel. Calls made at 2.51am on 8 October are consistent with Fletcher being in touch with Ms McAndrew at this time (Exhibits AA and X). Ms McAndrew said that, when she arrived home in the early hours, she went to bed in a highly intoxicated condition. Apart from Ms McAndrew's mother, Ms McAndrew (and, through her, Fletcher) was the only person with a set of keys to the vehicle.
(19) At 1.08pm on 8 October, Marshall telephoned Barker. Fletcher's voice can be heard in the background with Marshall. There was a background discussion regarding McFlurries and marshmallows. The call then connected with Barker. Marshall told Barker "I'm walking home ... (to) the bank ... to change the money. They're closed, its Saturday ...". Barker asked whether Marshall had seen "Fletch". Marshall responded in the affirmative, saying "Can you get me... I'll give you the money when you get here ... Can you get me um, three bubblegum McFlurries with marshmallows and three Happy Meals?" At 2.04pm, Marshall sent a text to Barker "Where are you".
(20) At 1.50pm on 8 October, Marshall telephoned B and asked whether he was still at "Paul's" (Paul Aquilina). Marshall stated "I drove your car this morning from Paul's house, all right ... to up near my house where it's safe, where my old house ... I haven't touched it since ... I wouldn't drive your car around everywhere ... I ended up doing something not quite as intense as what I wanted to as far as ashcay was concerned because of a minor fuck up where a car and a dude was parked in the wrong spot, tell Paul and yourself sit tight right, I'll be back in about 25 minutes ... the main part of this conversation is I'm coming back then, like shortly, and um I've got the, I got some, a little bit of kick arse ice and um, got a bit of kick arse gear ... I drove your car from Paul's up to North Nowra and parked it facing ...". B complained: "I thought you were waking me up at three". In a telephone conversation on 29 September 2011, Marshall had used the expression "ashcay" when he was talking about money and "20 grand".
(21) At 7.12pm on 8 October, Marshall left a voicemail message on Aquilina's telephone that was directed to B. Marshall said "no one's been in the car, just me. I didn't lie to you, I drove it to there ... I barely had time to warm up ..."
(22) On the afternoon of 8 October, police saw B's car in the bushland at North Nowra. They also observed miscellaneous items such as sunglasses and clothing strewn around in the bushland. Recently, police located a worn size 14 boot and a cutdown Valvoline brand oil container in the bushland. Those items are very similar to items that were missing from the stolen white utility when it was recovered on 13 October 2011. On 8 October, police observed two sets of tyre marks in the bushland, one set belonging to B's vehicle and a second set belonging to a four-wheel drive tyre. The stolen white utility had such tyres (Exhibit P).
(23) On the afternoon of 8 October, police telephoned B and made enquiries about his utility, which had been located in the bushland. At 10.48pm on 8 October, B telephoned Marshall and informed him that the police had been in contact. Marshall said: "They probably just want to know how your car got there ... It's been recovered, so there's no dramas ... "
(24) Police information indicated that Marshall was 180 - 185 cm tall and of medium build.
Marshall's evidence
The quality of Marshall's evidence was such that it casts no doubt on the prosecution case against him. Nor can it be relied upon to support the prosecution case against Barker or Fletcher.
Marshall was described by his counsel as someone who, in October 2011, was "a desperate drug addict on the run from police", whose lifestyle was accordingly unconventional.
Allowing for Marshall's circumstances at the time of the robbery, his account of events on 7/8 October and his explanations of apparently incriminating statements and conduct were completely lacking in credibility.
He said that, in the early hours of 8 October, he and Barker (who was "zonked out" on Zanex) hitchhiked from Bomaderry (North Nowra) to Moss Vale, obtaining a lift in a white hatchback vehicle driven by an unknown female. Marshall was acquainted with a drug dealer who lived in Moss Vale. Marshall and Barker decided to go to Moss Vale to purchase drugs and for "something to do". They were dropped in Moss Vale and walked to the man's house, where they bought drugs. Somehow, Marshall and Barker met Fletcher in Moss Vale. Marshall thought that Fletcher had come to Moss Vale to meet Barker. At the house where he purchased drugs, Marshall saw Fletcher's green van. The van then disappeared, leaving Fletcher behind at the drug dealer's house. Marshall could not recall the reason for the van's disappearance. Perhaps the occupants had been refused entry to the drug dealer's house, perhaps they were asked to leave because it was feared that the van would attract attention to the house, or perhaps the van had left in order to purchase petrol. In any event, an arrangement was made that Marshall, Barker and Fletcher would reconnect with the van at the Robertson Pie Shop because "it was closer to where they were". When the accused arrived at the Pie Shop, there were about four men in the green van. The accused travelled back to Wollongong, where they went to a hotel and to Fletcher's house. At some stage, Marshall went to a McDonald's outlet.
This account of events was bizarre. Common sense suggests that a lone female driver would have been very reluctant to pick up two male hitchhikers, one of whom was drug affected, and drive them a considerable distance along a relatively isolated country road. Common sense suggests that, as Marshall was located in North Nowra, it would have been much easier to purchase drugs from his normal dealer, who lived in North Nowra, rather than travel to Moss Vale for that purpose. Marshall's account of Fletcher's appearance in Moss Vale and the temporary disappearance of Fletcher's van was difficult to follow and even more difficult to believe.
Marshall was unable to advance a believable explanation for apparently incriminating aspects of intercepted telephone calls (Exhibit QQ, Exhibit RR). For example, he said that the reference at 1.08pm on 8 October to "the bank" was a reference to drugs and drug dealing, but he conceded that it was ridiculous to suggest that "the bank" (a drug dealer) would be closed because it was a Saturday. He maintained that the reference to "ashcay" in the call of 29 September was a reference to drugs, but the references in the same conversation to money and "20 grand" make it clear that the reference to "ashcay" was a reference to money. The reference to "ashcay" was important because that expression was used in a conversation with B on 8 October. Marshall's explanation that, in the early hours of 8 October, he wanted a knife in order to try and sell it lacked all credibility. Similarly, I completely disbelieve his assertion that he was seeking a spray can for the purpose of spraying a message onto a wall adjacent to his partner's bedroom. He stated that he was not in the vicinity of Shoalhaven Hospital on the night of 6/7 October and that the reference to seeing B "dancing around" was a reference to B "dancing around" on drugs during the period leading up to that night. However, in the relevant telephone conversation, Marshall said that he had "just watched" B "dancing around there".
I am reluctant to place too much reliance upon the demeanour of any witness. Apparent nervousness and inconsistencies may be innocently explained. However, Marshall's demeanour can only be described as extremely unimpressive. He hesitated and visibly struggled to explain apparently incriminating conduct and statements.
Case against Marshall
The circumstances relied upon by the prosecution satisfy me that, on the night of 6/ 7 October, Marshall stole the white utility from near the Shoalhaven Hospital, and drove it to the bushland near Drexel Park. On its natural construction, the conversation at 3.13am on 7 October places Marshall at the location of the stolen white utility on the night that it was stolen. Marshall's statements "I needed a hand" and "I did everything I had to do" are consistent with Marshall having stolen the vehicle without the anticipated assistance of B. The utility would have served as transport for Marshall from the Hospital to the Drexel Park toilets, which were some distance from the Hospital. The white utility is connected to the bushland by the size 14 boot, the cutdown oil container and the four-wheel drive tyre marks observed on the afternoon of 8 October.
Counsel for Marshall submitted that, in order to link Marshall with the stolen white utility, it was critical for the prosecution to establish that the boot and the cutdown oil container found in the North Nowra bushland had come from the stolen white utility and had been left in the bushland prior to the robbery on 8 October. Consequently, the prosecution had to prove these matters beyond reasonable doubt. Further, counsel submitted that the evidence about the boot and the container was "identification evidence" within the meaning of s 165(1)(b) of the Evidence Act 1995 in relation to which a warning was required. Counsel submitted that I could not be satisfied beyond reasonable doubt that the boot and cutdown oil container found in the bushland were the very items that had been in the stolen white utility. Additionally, as the items were not recovered until fourteen months after the robbery, I could not be satisfied that they had been left in the bushland prior to the robbery. Consequently, the items could not be relied upon to link Marshall with the stolen white utility.
I do not accept that the boot and the cutdown container were the only evidence linking Marshall to the stolen white utility. For the reasons given above, I am satisfied that Marshall stole the white utility. The boot/container evidence is not "identification evidence". The high level of similarity between the items found in the bushland and the items that had been located on the stolen utility is merely a relevant circumstance. It is notable that two moderately distinctive items were both located in the bushland. I accept that, as the items were not recovered until 14 months after the robbery, there must be a doubt about when they were deposited in the bushland. Nevertheless, the location of the items in the bushland is a significant circumstance linking Marshall with the theft of the white utility and providing an explanation for the presence of B's vehicle in the bushland.
I am satisfied that, in the early hours of 8 October, Marshall was seeking a can of spray paint and a knife, items that may be useful for an armed robbery. There is no evidence that spray paint was actually used in the robbery and there is no evidence that the knife in question was the knife that was used in the robbery.
I am satisfied that Marshall was in Kangaroo Valley at the time of the robbery. Mr Lobeler, a telecommunications interception expert, was sure that Marshall's telephone was in Kangaroo Valley at 6.27am. Having regard to the timing of the cell tower connections and the topography, it is clear that the phone (and Marshall) travelled from North Nowra to Kangaroo Valley, reaching Kangaroo Valley at about 5.56am. By about 6.37am, Marshall had left Kangaroo Valley and was travelling towards Moss Vale. Marshall was not merely travelling through Kangaroo Valley. He was in Kangaroo Valley for a sufficient period and at precisely the right time for him to be in the white utility when it canvassed the Friendly Grocer, left, and then returned for the purpose of executing the robbery.
From about 6.51am (according to the telephone records) to about 8.06am, Marshall was in the Moss Vale area. There is no dispute that, at about 7.53am, he was in Moss Vale in the company of Barker and Fletcher, and that the three accused then travelled to the Robertson Pie Shop. Part of the one-hour period from 6.51am to 7.53am would have been occupied with finding a concealed location in which to abandon the stolen white utility.
There is no direct evidence implicating Marshall in the attempted theft of the red utility. The descriptions of the men who attempted to steal the red utility were not inconsistent with the descriptions of the Kangaroo Valley robbers. Having abandoned the stolen white utility, the Kangaroo Valley robbers would have needed transport. If they drove straight from Kangaroo Valley to Moss Vale, the robbers would have been in Moss Vale by about 6.50am. There is a common sense link between the robbers and the red utility thieves. I accept that the descriptions of the red utility thieves do not match the appearance of Marshall or the other accused as per the CCTV taxi footage. However, eyewitness evidence is notoriously unreliable. Although the evidence concerning the attempted theft of the red utility does not strengthen the prosecution case that Marshall was one of the Kangaroo Valley robbers, if other evidence establishes that he was one of the robbers, then the red utility evidence is a circumstance that may serve to explain the protracted period of one hour for which Marshall remained in Moss Vale.
The case against Marshall is overwhelming. I am satisfied that the only available rational inference is that Marshall was one of the three persons who robbed the Kangaroo Valley Friendly Grocer. The robbers used a stolen white utility. The circumstantial evidence of Marshall's location at the time that the vehicle was stolen, Marshall's link with the bushland at North Nowra, the evidence linking the stolen vehicle to the bushland, and the statements that Marshall made at about the time that the vehicle was stolen establish that he stole the vehicle and drove it to the bushland at North Nowra. In the early hours of 8 October, Marshall drove B's vehicle to the location of the stolen white utility, inferentially for the purpose of obtaining the white utility and using it in the robbery. At about the time that Marshall went back to the bushland, he was seeking a can of spray paint and a knife, items that could be useful for a robbery. The timing and duration of his presence in Kangaroo Valley on the morning of 8 October are completely consistent with him being one of the robbers. At 1.50pm on 8 October, Marshall made partial admissions to B in relation to "ashcay".
The fact that Marshall was one of the three robbers is an important circumstance to be taken into account in the prosecution cases against Barker and Fletcher.
Case against Barker
The most important aspects of the circumstantial case against Barker are:
(1) Marshall was one of the robbers.
(2) Barker and Marshall knew each other.
(3) From at least 7.53am on 8 October, Marshall, Fletcher and Barker were together in Moss Vale. They were without transport.
(4) Between 9.18pm and 9.50pm on 7 October, there were calls between Fletcher's telephone and that of Barker. Fletcher was in the Shellharbour/ Port Kembla area. At 4.54am, 5.22am, 5.23am and 5.35am on 8 October, Fletcher telephoned Barker, connecting through the Moyen Hill (Berry) cell tower. At 6.03am and 6.04am, Fletcher's telephone connected with Barker's telephone through the Kangaroo Valley cell tower. Between 4.54am and 6.04am, Fletcher telephoned only Barker. After Fletcher telephoned Barker at 6:04am, he attempted to ring him at 7.35am (the call did not connect), and then at 8.03am (the call did not connect). At 8.06am, a call from Fletcher's telephone connected with Barker's telephone for 46 seconds. Between 7.10am and 8.06am, Fletcher's telephone connected through the Moss Vale cell tower. By 9.01am, Fletcher's telephone was back in the Albion Park area.
(5) At 7.19am on 8 October, a text message was sent from Barker's telephone to Fletcher's telephone (Exhibit BB). Otherwise, the only person whom the Barker telephone contacted at about the time of the robbery was W (at 1.19am and then at 9.14am).
The prosecution relies on evidence that, at 1.08pm on 8 October, Marshall rang Barker and told him "I'll give you the money when you get here". Barker inquired about the whereabouts of "Fletch".
The prosecution relies upon the following statements by Barker:
(1) In a prison call made on 30 December 2011 (which he knew to be monitored), Barker stated that he "(didn't) really know (Marshall)" and "I've got on with him a few times, but that's about all" (Exhibit XX).
(2) In a prison telephone conversation with a male on 4 December 2011 (which he knew to be monitored), Barker was asked what happened at Kangaroo Valley and said: "No, nothing, oi I cant ... Can't talk about it, all right ...You're red hot ... You know what happened".
In an electronically recorded interview on 22 December 2011, Barker denied that he was involved in the robbery. In the same interview, he denied that he had been in a taxi in the Moss Vale /Robertson area and that he was the person depicted on the taxi CCTV. The prosecution did not rely upon the statements concerning the taxi as evidencing a consciousness of guilt, but argued that they showed that Barker lacked credibility in relation to his denial of involvement in the robbery.
The circumstantial evidence adduced against Barker convinces me that he knew about the robbery and, very probably, he assisted with the robbery. However, there was no direct link between Barker and the white utility used in the robbery. Other rational inferences are available apart from the inference that he was one of the men who actually entered the Friendly Grocer.
Case against Fletcher
The most important aspects of the circumstantial case against Fletcher are:
(1) Fletcher was a close associate of Barker, who knew Marshall.
(2) Marshall was one of the robbers.
(3) From at least 7.53am on 8 October, Marshall, Fletcher and Barker were together in Moss Vale. They were without transport.
(4) The records for the mobile telephone used by Fletcher on 8 October put him in Kangaroo Valley at 6.03am or 6.04am on 8 October, just before the robbery occurred.
(5) Between 9.18pm and 9.50pm on 7 October, there were a number of calls between Fletcher's telephone and that of Barker. Fletcher was in the Shellharbour/ Port Kembla area. At 4.54am, 5.22am, 5.23am and 5.35am, Fletcher telephoned Barker, connecting through the Moyen Hill (Berry) cell tower. At 6.03am and 6.04am, Fletcher's telephone connected with Barker's telephone through the Kangaroo Valley cell tower. Between 4.54am and 7.10am, Fletcher telephoned only Barker. After Fletcher telephoned Barker at 6.04am, his next attempt to contact Barker was at 7.35am (the call did not connect). The prosecution submitted that the hiatus could be explained if Fletcher and Barker were together between 6.04am and 7.35am (when the robbery was occurring).
(6) At 7.19am on 8 October, a text message was sent from Barker's telephone to Fletcher's telephone (Exhibit BB).
In addition, the prosecution relies upon evidence of the following conversations:
(1) When Detective Allen first spoke to Fletcher on 18 April 2012 and put the allegation, Fletcher replied: "I don't know anything. I have never been to Kangaroo Valley".
(2) In a prison telephone conversation with his mother on 30 April 2012 (which was recorded to his knowledge), Fletcher stated that he had been charged with the Kangaroo Valley robbery "with some bloke that I don't even know".
(3) In a conversation with an unknown male on the same day, he stated: "I've never even been to Kangaroo Valley".
(4) On 18 July 2012, he told his brother that he had never been to Kangaroo Valley and had been charged with two people from Nowra "one of them I don't even know, I've never met before".
(5) In a prison call on 13 July 2012 (Exhibit ZZ), Fletcher had a discussion with Ms McAndrew. Fletcher informed her that the police were aware that he had had her telephone in Moss Vale and had a photograph of him "in a taxi in (Moss Vale) with Ashley and Rob". He stated that, on the night in question, "Ritchie" had driven him to Moss Vale in Ms McAndrew's van for the purpose of purchasing yarndi (marihuana).
The prosecution submitted that repeated statements by Fletcher that he had never been to Kangaroo Valley were deliberate falsehoods about a significant matter connected with the offence (if he had never been to Kangaroo Valley then he could not have committed the offence), which must have been told to avoid implication in the offence. They evidenced a consciousness of guilt in relation to the offence.
A statement by an accused can provide evidence of consciousness of guilt if the statement was false, was a deliberate lie, concerned a significant matter connected with the offence, and if the reason for the lie was that the accused feared that he would be implicated in the offence if he told the truth. If the lie may have been told for another reason, it cannot be used as evidence of consciousness of guilt. When a prosecutor seeks to rely upon a lie as evidencing a consciousness of guilt, the court must be approach the matter warily: R v Ray (2003) 57 NSWLR 616 at [98], R v Sutton (1986) 5 NSWLR 697 at [701], [702].
In relation to whether the statement that Fletcher had never been to Kangaroo Valley was false, counsel for Fletcher submitted that calls on Fletcher's telephone could have been routed through the Kangaroo Valley cell tower even if Fletcher was in the Moss Vale area (or elsewhere). I dismiss that possibility. Generally, cell connections travel in straight lines. Surrounding hills isolated the cell tower in Kangaroo Valley. Theoretically, the Kangaroo Valley cell tower was able to receive calls made within the green areas marked on Exhibit Y, but few of those areas were near through roads. Moss Vale was not within the reach of the Kangaroo Valley cell tower. Further, the Southern Highlands areas that could reach the Kangaroo Valley cell tower, such as Bundanoon and Wingello, also had access to cell towers that were much closer. Calls from such areas would have been diverted to Kangaroo Valley only if a variety of circumstances occurred simultaneously, ie if several of the nearby towers had been simultaneously out of order or overloaded.
Counsel for Fletcher submitted that, if one has merely driven through a town, one might well say that they had never been to the town. Further, Fletcher may have driven through the town without realising its identity. In either case, the statement that he had never been to Kangaroo Valley would not have been a deliberate lie. I do not accept those contentions. In the context in which they were made (Fletcher had been charged with a robbery in Kangaroo Valley), the repeated and pointed nature of the statements establish that Fletcher lied deliberately.
It was submitted that, when he made the statement to his partner/family, Fletcher may have done so because he was embarrassed to tell the truth. I dismiss that submission. The fact that the statements were made to a number of people and the contexts in which the statements were made are inconsistent with embarrassment.
I accept that the statements evidence a consciousness of guilt in relation to the offence in question. However, the statements do not necessarily indicate that Fletcher was one of the three men who entered the Friendly Grocer. The statements are consistent with Fletcher having had some other involvement with the offence. Indeed, the calls to Barker at 6.03am or 6.04am suggest that, just before the robbery occurred, Fletcher was not with Barker. One does not know whether, at 6.03am or 6.04am, Marshall was in the immediate company of Barker, Fletcher or neither.
The circumstantial evidence and the evidence of consciousness of guilt establish a connection between Fletcher and the robbery. However, there is an available rational inference that Fletcher was not one of the three robbers who entered the Friendly Grocer, but was connected with the offence in another way.
I return the following verdicts:
Marshall: Guilty
Barker: Not guilty
Fletcher: Not guilty
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Decision last updated: 07 January 2013
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