R v McKeough - [2016] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCKEOUGH
Criminal Trial by Judge Alone
[2016] SADC 112
Reasons for the Verdicts of His Honour Judge Costello
21 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS
Criminal Trial by Judge Alone - accused charged with two counts of aggravated robbery contrary to s 137(1) of Criminal Law Consolidation Act 1935, two counts of dishonestly manipulating a machine contrary to s 141(1)(a) of the Act and one count of attempting to dishonestly manipulate a machine contrary to ss 141(1)(a) and 270A of the Act.
VERDICTS: Counts 1 - 5 guilty on each count.
Criminal Law Consolidation Act 1935 ss 137(1), 141(1)(a), 270A; Juries Act 1927 s 7(1), referred to.
R v Hillier & Reilly [2015] SADC 77; R v GK (2001) 53 NSWLR 317; R v Pantoja (1996) 88 A Crim R 554; R v Noll [1999] 3 VR 704; R v Rye [2007] VSCA 247; Aytugrul v The Queen (2010) 205 A Crim R 157; R v Joyce [2014] SADC 125; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Martin v Osborne (1936) 55 CLR 367; Knight v The Queen (1992) 175 CLR 495; R v Micallef [2002] NSWCCA 480; Shepherd v The Queen (1990) 170 CLR 573; R v Hillier (2007) 228 CLR 618; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Festa v The Queen (2001) 208 CLR 593; Domican v The Queen (1992) 173 CLR 555; R v Clarke (1997) 97 A Crim R 414, considered.

R v MCKEOUGH
[2016] SADC 112
Introduction

This is a trial by judge alone. The accused is charged with the following offences:
First Count
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Anthony David McKeough on the 28^th day of May 2015 at Modbury, used force against Clare Ann Lindop in order to commit the theft of a laptop computer bag, laptop charger and internet dongle, of the value of less than $2,500, and the force was used, or the threat was made at the time of, or immediately before and after, the theft.
It is further alleged that Anthony David McKeough used an offensive weapon, namely a meat cleaver, when committing the offence.
Second Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Anthony David McKeough on the 28^th day of May 2015 at Modbury, used force against Louie James Boniface in order to commit the theft of a wallet containing bank cards, a driver’s licence, and $5.00 cash, together of the value of less than $2,500, and the force was used, or the threat was made at the time of, or immediately before and after, the theft.
It is further alleged that Anthony David McKeough used an offensive weapon, namely a meat cleaver, when committing the offence.
Third Count
Statement of Offence
Attempting to Dishonestly Manipulate a Machine. (Sections 141(1)(a) and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Anthony David McKeough on the 28^th day of May 2015 at Clearview, attempted to dishonestly manipulate a machine, namely an ANZ Bank automatic teller machine, in order to benefit himself.
Fourth Count
Statement of Offence
Dishonestly Manipulate Machine. (Section 141(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Anthony David McKeough on the 28^th day of May 2015 at Prospect, dishonestly manipulated a machine, namely a Bendigo Bank automatic teller machine, in order to benefit himself.
Fifth Count
Statement of Offence
Dishonestly Manipulate Machine. (Ibid).
Particulars of Offence
Anthony David McKeough on the 28^th day of May 2015 at Prospect, dishonestly manipulated a machine, namely a Bendigo Bank automatic teller machine, in order to benefit himself.
The accused pleaded not guilty to the charges. He elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr Sale. Mr Powell appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, that the Court should detail every obvious and basic direction which might be given to a jury.
I do, nevertheless, record that I have reminded myself of the following:
1.      An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2.      The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3.      The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4.      It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5.      Each of the counts on the Information concerns a separate offence. I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6.      The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7.      In this case the accused elected not to give evidence and remained silent. The accused was not bound to give evidence and he had the right to decline to give evidence. Because that is his legal right, I am not permitted to draw any inference adverse to him or the case he put forward from the exercise of that right. There may be many reasons why the accused did not give evidence and I should not speculate on those reasons. I have not done so. The accused’s silence in Court is not evidence against him; does not constitute an admission by him; may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt.
8.      I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
9.      In assessing the evidence of the witnesses, I have had regard to their demeanour. I have considered their evidence in the context of the other evidence in the case. I have considered their answers in cross‑examination, and applied my judgment to the evidence. I am entitled to accept the evidence of any witness in whole, in part or not at all. Even if I were to find that a witness was unreliable about some part of the evidence, it does not follow that I must not accept other parts of the witness’s evidence.
10.   Finally, I remind myself that I must determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lays in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
The Prosecution Case
An Overview
At about 4:45 pm on Thursday 28 May 2015 two employees of the People’s Choice Credit Union, Ms Lindop and Mr Boniface were working at a branch office of the Credit Union at Reservoir Road, Modbury.
At that time a man entered the premises through the front sliding doors. He was wearing a ‘beanie’ over his head and pulled down over his face with holes cut out for the eyes in a balaclava-hat style.
He was also wearing a ‘hi-viz’, yellow and blue, long sleeved, collared shirt. He was holding a meat cleaver.
A few minutes prior to his entering the premises Ms Lindop happened to notice a person approach the front entrance to the premises. This person was wearing a ‘hi-viz’ shirt indistinguishable to her from the one worn by the man carrying the meat cleaver. This person paused at the entrance and then walked away. On the prosecution case this was the same person as the man who entered carrying the meat cleaver.
Seated in her office Ms Lindop saw the man, holding the meat cleaver, enter the premises and make his way to her office. Despite her attempts to resist him he forced his way into her office. He then lifted the ‘beanie’ from his chin (exposing his face briefly) and said ‘Give me your cash’. Ms Lindop told him that the premises operated only as an advice centre and that, as such, no cash was kept on the premises.
He then ransacked the cupboards and took her computer bag. This bag contained her laptop charger and a Telstra-brand dongle.[1] This is the subject of count 1.
[1] Mr Powell described a ‘dongle’ as a device which allows internet access from remote locations.
The man then left her office and went into the office occupied by Mr Boniface who, prior to this time, had been on the telephone. The man entered his office and demanded his wallet. The wallet, which Mr Boniface handed over, contained about $5 in cash, his driver’s licence, a People’s Choice Credit Union card, a Westpac Bank card and a Medicare card.
Having taken the wallet, the man left the premises. This is the subject of count 2.
Mr Boniface did not see the man’s face and was only able to give a general description of his appearance and clothing.
Both Mr Boniface and Ms Lindop said that the man acted in an aggressive, threatening manner whilst brandishing the meat cleaver in their respective presences.
Police attended the premises shortly prior to 5 pm and obtained CCTV footage of the man entering the Credit Union premises.
Police also detected activity on the credit cards which had been in Mr Boniface’s wallet. Police detected that the cards were first attempted to be used at a Caltex Service Station in Clearview at an ATM in that service station. This is the subject of count 3.
The cards were next observed to have been used on several occasions at an ATM in the Northpark Shopping Centre. These usages are the subject of counts 4 and 5.
Police also obtained CCTV from these locations. The combined footage, from the service station at Clearview, depicts amongst other things, a distinctive green-coloured Toyota Lexcen station wagon with the registration S821AUG (‘the Toyota’) pulling up at the service station.
The footage also shows a passenger in the Toyota apparently emerging from the vehicle. A man resembling this man is subsequently shown attempting to use credit cards in the service station shop. The man is dressed in a black Nike-brand T-shirt and a light coloured or white baseball cap.
Footage at the Northpark Shopping Centre depicts a man in a similar style of dress purporting to use an ATM at that location.
Subsequent police checks connected the Toyota to a Chris Fieldhouse. Police attended at the address where Fieldhouse was living and there saw the Toyota.
A search of Mr Fieldhouse’s premises uncovered the Telstra-brand dongle belonging to Ms Lindop and a yellow hi-viz shirt. Police also searched the Toyota and found other yellow hi-viz shirts, one short-sleeve and one long‑sleeve, the latter being similar in appearance to that worn by the man carrying the meat cleaver at the Credit Union premises.
Police also found a meat cleaver under the front passenger seat and a Medicare card in the name of Mr Boniface.
On the following day police went to a caravan park in Semaphore. Whilst there the accused was seen to arrive and enter one of the cabins on the site. Police seized a number of items from the cabin including a black, Nike‑brand T-shirt of the type seen being worn by the man near the Toyota at the service station and later seen attempting to use the ATM’s at Clearview and Northpark. They also seized a white baseball cap similar to that seen on the man in the CCTV footage as well as a pair of black pants similar to those being worn by the man who committed the robbery and who was depicted using the ATM’s.
DNA samples were taken from both the accused and Fieldhouse. The items seized and the samples taken were provided to the Forensic Science Centre.
Subsequent DNA analysis revealed that DNA on the black Nike T-shirt and the white Nike cap matched that of the accused. DNA on the short-sleeved hi-viz shirt matched that of Fieldhouse.
The DNA samples, obtained from the long-sleeved hi-viz shirt and the meat cleaver found in the Toyota, were too complex for there to be an analysis.
In summary, the prosecution case is one of joint enterprise whereby it says that two men were involved in the robbery of the Credit Union, one of whom (the man who entered the premises carrying the meat cleaver) was the accused.
In all likelihood the prosecution says that the driver of the Toyota on that afternoon was Fieldhouse.
Features of importance, to which the prosecution points, are the use of Boniface’s credit cards a short time after the robbery. CCTV footage from the service station shows a person whom the prosecution says is clearly the accused (and who is dressed in clothes similar to some of the clothes worn by the robber) attempting to use a credit card. This same person on the prosecution’s case is seen at the Northpark Shopping Centre, in the company of a person resembling Fieldhouse, again attempting to use an ATM.
These facts, allied to the discovery by police of the dongle, hi-viz shirt, meat cleaver and the Medicare card at either Fieldhouse’s premises or in the Toyota, together with the clothing similar to that worn by the robber located at the cabin entered by the accused, point inevitably, on the prosecution case, to the accused being the robber and the person who used and/or attempted to use Boniface’s cards.
Elements of the Offences
I now turn to the basic elements of the offences charged. The prosecution must prove each element of each charge beyond reasonable doubt.
Aggravated Robbery
The elements of robbery, relevant to these charges, are:
1.      That the accused committed a theft;
2.      That the accused used, or threatened to use, force in order to commit the theft; and
3.      That the force was used (or threatened) at the time of, or immediately before, the theft.
For the accused to be found guilty of robbery it must first be found that he was guilty of theft
Theft
The elements of theft are:
1.      That the accused dealt with the property;
2.      That the accused did so dishonestly;
3.      That the accused dealt with the property without the owner’s consent;
4.      That at the time the accused dealt with it he intended either:
(a)To deprive the owner permanently of the property;
(b)To make a serious encroachment on the owner’s proprietary rights; that is that the accused intended to treat the property as his own to dispose of regardless of the owner’s rights, or to deal with it so as to create a substantial risk that the owner would either not get it back or, if he did, that its value would be substantially impaired.
What is dishonest is a question that should be determined in accordance with the standards of ordinary people. The accused must be shown to have known that his dealing was dishonest in terms of those standards.
In this matter the prosecution alleges two counts of aggravated robbery. To succeed with these charges the Crown must also prove beyond reasonable doubt the aggravating feature, namely that when committing these alleged offences the accused used an offensive weapon, namely a meat cleaver in circumstances in which another person was likely to feel reasonable apprehension that he had it for the purpose of causing personal injury.
Dishonestly Manipulate a Machine
The elements of this offence, relevant to these charges, are:
(i)That the accused manipulated a machine;
(ii)That at the time he manipulated the machine he did so dishonestly;
(iii)That he dishonestly manipulated the machine in order to benefit himself.
‘Dishonestly’ in this context bears the same meaning as it does in relation to the aggravated robbery charges.
Attempting to Dishonestly Manipulate a Machine
Count 3 alleges an attempt to manipulate an ATM.
The attempts to manipulate the machine failed. Nevertheless, an attempted dishonest manipulation of a machine is still a crime. To prove this offence the prosecution must prove beyond reasonable doubt:
(a)That the accused intended to commit the crime of dishonestly manipulate a machine; and
(b)That the accused, in order to carry out that intention, performed an act or acts which amounted (in law) to an attempt.
The Hearing
Prior to considering the evidence, given by the witnesses who gave oral evidence in this case, it is necessary to deal with some more general evidentiary issues.
The DNA Evidence
Even though the DNA evidence in this case was not the subject of any serious debate (indeed a number of matters were agreed), it is necessary to say something about the concept of DNA evidence in general.
On this general issue, I gratefully adopt the observations of Judge Millsteed in R v Hillier & Reilly[2] where his Honour said:
[2] [2015] SADC 77 at [27]-[37].
DNA evidence is a type of expert evidence in which the DNA of the sample found at the scene or on an item associated with the scene of an alleged crime (forensic sample), is compared with a DNA sample provided by the accused and by other persons such as the alleged victim of an offence and other suspects (reference samples). Comparisons are made to determine if there are corresponding characteristics.
There are two forms of DNA, nuclear DNA and mitochondrial DNA. In the present case the forensic work focused on the former. Nuclear DNA is found in the nucleus of the human cell. It contains all the attributes that determines a person’s inherited characteristics. Accordingly, one half of a person’s DNA is inherited from one biological parent and the other half is inherited from the other biological parent. No two people have the same complete DNA except identical twins. However, the more related two people are, the more similarities will be present in their DNA.
DNA is found in most cells of the body and is uniform throughout the body. In other words the content of the DNA is the same in all cells containing nuclear DNA. So the DNA of a person’s blood, saliva, semen and bodily tissues will be the same, unless there is some cell mutation in an area of the body caused by disease such as cancer. Importantly, in the context of the present case DNA can be transferred through contact with the donor’s skin, called ‘contact’ or ‘trace’ DNA.
DNA consists of twisted strands held together by units or base pairs, much like the steps in a spiral staircase. There are approximately three billion units of which about 1% vary between individuals. Scientists at Forensic SA employ a widely recognized method of analysis called Profiler Plus which analyses ten specific sites (loci) of base pairs. One of the 10 loci indicates the person’s gender and the other nine contain DNA which varies between people.
The testing determines the lengths of repeated sequences or strings of DNA at the examined loci which varies between individuals. Because each person has two copies of DNA, one from each parent, there will be two sets of repeating sequences at each locus. The number of repeating sequences are called alleles. The DNA profile of a sample is the allele value across all of the examined sites.
Due to the uniqueness of nuclear DNA, if all the base pairs (where DNA is known to vary between people) in two samples were tested and matched, it would be possible to say that they came from the same person or an identical twin. Such a process, however, would not be practical because it would involve testing millions of loci. As I have said, Profiler Plus only targets DNA at 10 loci.
This means that even where there is a ‘match’ between an accused person’s reference sample and a forensic sample, it is not possible to say with certainty that the latter came from the accused. The forensic sample could have come from a different person who happens to have the same alleles at the tested loci. Such a match only establishes that the accused could be responsible for the forensic sample.[3]
Such a conclusion would have little probative value if every other person in the community or a large number of people in the community shared the same DNA profile at the examined loci. For DNA evidence to have any significance evidence must be given by a suitably qualified expert about the probability of a match between a forensic sample and a random member of the population.[4]
Obviously, the less likely the expectation of finding the same profile in other people the more value the evidence may have in implicating the accused in the charged offence. To reach these conclusions about a probability of a match, experts rely on the frequency with which certain alleles occur in the general population at the examined loci. These frequencies are recorded in databases built up from previous genetic testing.
There are two explanations or hypotheses considered by experts when comparing a DNA profile obtained from a forensic or crime scene sample with a DNA profile obtained from an accused person. One hypothesis is that the accused was the source of or a contributor to the forensic sample, sometimes called ‘the prosecution hypothesis’. The other hypothesis is that another unknown person is the source of or a contributor to the forensic sample, sometimes called ‘the defence hypothesis’.
Based on genetic databases, probabilities are calculated for each of the two alternate hypotheses and then compared in the form of a ratio, which is called the ‘likelihood ratio’ or ‘statistical weighting’. In other words, the statistical evidence calculates the probabilities of the prosecution hypothesis and the defence hypothesis being correct and expresses the competing probabilities as a ratio; for example, the hypothesis that the accused was the source of the DNA profile in a forensic or crime scene sample may be expressed as 100 times greater than the hypothesis that he was not the source.
[3] R v GK (2001) 53 NSWLR 317; R v Pantoja (1996) 88 A Crim R 554.
[4] R v Noll [1999] 3 VR 704; R v Rye [2007] VSCA 247; Aytugrul v R (2010) 205 A Crim R 157.

In addition to these general matters, the following further matters, which included matters specific to this trial, were also agreed by the parties:
…
2.    DNA cannot be dated.
3.    The detection of a DNA sample on an exhibit does not, without more allow for any expert evidence to be offered as to the mechanism by which the DNA came to be deposited on the exhibit.
4.    The detection of a sample of DNA, which matches a particular person to a sufficiently high ratio of probability to allow for a conclusion to be drawn beyond reasonable doubt that the person is the source of the DNA, on an exhibit does not necessarily mean that the exhibit was touched by the person.
5.    DNA can be deposited on exhibits through:
a.direct contact between the person and the exhibit sometimes referred to as primary transfer;
b.secondary transfer whereby the person’s DNA is deposited onto an intermediary (either a person or object) which later comes into direct contact with the exhibit;
c.DNA becoming airborne and being deposited directly onto an exhibit (e.g. sneezing, coughing, falling from an object such as a piece of clothing);
d.DNA being deposited on one object which then transfers it to another object it comes into direct contact with;
e.Combinations of the initial mechanisms in b, c and d.
As I indicated earlier, a number of items were forwarded by police to the Forensic Science Centre for analysis. Following that analysis two Forensic Biology Reports were provided which identified the following matters, inter alia, namely:
·       The baseball cap and dark coloured Nike T-shirt located in the cabin at Semaphore disclosed a DNA profile which strongly correlated to that of the accused;
·       The short-sleeved hi-viz yellow shirt located in the Toyota disclosed a similar result with respect to the accused;
·       The long-sleeved hi-viz yellow T-shirt found in Mr Fieldhouse’s unit disclosed a DNA profile which strongly correlated to that of Mr Fieldhouse;
·       The long-sleeved hi-viz shirt found in the Toyota produced a mixed DNA profile which was too complex for analysis;
·       Similarly the DNA profile on the handle of the meat cleaver was too complex for analysis.
Circumstantial Evidence[5]
[5]    On this topic generally, I have adopted the remarks of Judge Lovell, as he then was, in R v Joyce [2014] SADC 125, [128]-[134].
Where, as is the situation here, the case against an accused person rests upon circumstantial evidence, the jury or a judge sitting without a jury, cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’.[6] To enable me to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference, but that it should be ‘the only rational inference that the circumstances would enable [me] to draw’.[7]
[6] Peacock v The King (1911) 13 CLR 619.
[7] Plomp v The Queen (1963) 110 CLR 234.
A case is not bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that ‘according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed’.[8]
[8] Martin v Osborne (1936) 55 CLR 367.
While this statement of principle is uncontroversial it is really ‘no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt’.[9]
[9] Knight v The Queen (1992) 175 CLR 495 at 502.
However, for an inference to be reasonable it must rest upon something more than mere conjecture.[10] It is necessary to weigh and consider the totality of the evidence and in doing so the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.[11]
[10] Peacock v The King (supra).
[11] R v Micallef [2002] NSWCCA 480.
It is of critical importance to remember that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[12]
[12] Shepherd v The Queen (1990) 170 CLR 573.
Often in a circumstantial case there is evidence of matters, which looked at in isolation from other evidence, may yield an inference compatible with the innocence of an accused. But a circumstantial case is not to be considered piecemeal.[13]
[13] R v Hillier (2007) 228 CLR 618 at [48].
As was said in Chamberlain v R (No 2):[14]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence...
[14] (1984) 153 CLR 521 at 535.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said in Plomp:[15]
…All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done…
[15] At p 242.
Circumstantial Identification Evidence
The prosecution case is that the circumstantial evidence here includes the description evidence of Ms Lindop. This is part of what is sometimes described as circumstantial identification evidence. [16]
[16] Festa v The Queen (2001) 208 CLR 593 at [56]-[59].
Drawing a distinction between circumstantial identification evidence and direct or positive identification evidence can be decisive of whether an identification warning is required. If there is positive identification evidence a warning is necessary. If however, the identification evidence is part of the circumstantial evidence implicating the accused in the offending, then a warning may not be necessary.[17]
[17] Ibid at [57].
I do not regard the description given by Ms Lindop as evidence of a positive or direct identification. That being the case, there is, strictly speaking, no need to give myself a warning in accordance with the requirements set out in Domican v The Queen.[18] However, her description was based upon particular facial features said by the prosecution to be common to both the robber and the accused.
[18] (1992) 173 CLR 555.
Out of an abundance of caution, I propose to give myself a warning similar to that which I would otherwise have given myself had there been a positive identification.[19]
[19] Festa at [57].
Applying the principles laid down in Domican I warn myself that identification evidence, in general, for well-known reasons, requires a special need for caution.[20] Secondly, I need to have regard to any matter of significance in the context of the case which may reasonably be regarded as undermining the reliability of that evidence.[21]
[20] R v Clarke (1997) 97 A Crim R 414, 428.
[21] Domican at p 562.
Those matters comprise the unsettling effects occasioned by the incident itself, the short duration of her observations and the restrictions on her opportunity for observation.
I am also mindful of her reference in the photo display to a person, as the possible robber, who was not the accused.
Finally, her observations of the robber were made in the course of a forceful struggle amidst threats of violence. For all these reasons, I propose to weigh and assess her evidence with a particular measure of caution.
In a similar vein, I have observed both the CCTV footage, the still photographs taken from it and other photos of the accused before and after the incident, and then compared that material with the accused in the dock. In doing so, I remind myself that I too must not only exercise caution but also acknowledge the dangers of being influenced by such matters as suggestibility, and the effect of displacement.[22]
[22] I also remind myself of the need for caution when comparing the CCTV footage of the other person depicted at the Northpark Shopping Centre ATM and the still photograph of Mr Fieldhouse.
Section 34P
During the hearing evidence was admitted (without objection) of attempts being made, on the day of the robbery, to withdraw money using Mr Boniface’s credit card from a Commonwealth Bank ATM and the Smokemart in the Northpark Shopping Centre. This alleged conduct is not the subject of any charges.
The evidence was led by the prosecution as part of the overall circumstances and context in which the offending behaviour (comprising the offences in counts 1-5) is alleged to have occurred.
On the prosecution case it is circumstantial evidence tending to indicate that the credit cards were unlawfully used and repeatedly so by the same person who came into possession of them during the robbery. They are pieces of circumstantial evidence which are admissible to assist in determining the identity of the accused as both the robber and as the person who used, or attempted to use, the cards at other locations.
It is permissible to use the evidence for that purpose and I will have regard to it in this way.
However, as discreditable conduct evidence I must not use the evidence to reason that the fact, that the accused may be the person who used the cards at the Smokemart or the Commonwealth ATM, means that he has a propensity to unlawfully use credit cards or that he is more likely to be either the person who attempted to use the cards at the Clearview Service Station or the Bendigo Bank at Northpark, or the person who robbed Ms Lindop or Mr Boniface.
The Prosecution’s Witnesses
Ms Lindop
Ms Lindop said that she was working at the People’s Choice Credit Union at Reservoir Road, Modbury on 28 May 2015. She said that sometime after 4 pm she noticed a man who ‘slunk up sideways’ to the entrance to the premises, ‘peered in and seemingly ran off’ which she thought was a little peculiar.
This person was wearing a ‘hi-viz’ top and a baseball cap, light in colour with a dark logo on the front.
She said that at approximately 4:45 pm a person entered the premises. He then pulled out a meat cleaver from a paper bag. He was wearing what looked like a beanie pulled over his face with holes cut out of it. He forced his way into her office and then pulled his beanie up to his forehead (exposing his face) and demanded to know where the cash was. She told him that there was no cash. He then looked around, found her laptop bag in the cupboard, took it and left her office.
She said that the bag contained a battery pack and a remote-access dongle.
She said that the man then went into Mr Boniface’s office.
She said that when he pulled up the beanie his face was exposed to her for a ‘few seconds’. She had an opportunity to study his face briefly but that at this time she was ‘terrified’. The view of his face was ‘front-on’ and only inches from her face.
She described the meat cleaver as being a large blade with a curve on it and being silver. She said that after the man had left the premises Mr Boniface asked her to ‘cancel’ his People’s Choice card which she eventually did.
She described the shirt that the man was wearing as being ‘a work shirt with the [sic] fluorescent top’. She said he had a ‘very open stance … was short in stature, quite solidly built’ and that ‘he was approximately [her] height’, which is five foot five and a half to five foot six inches. She said that he was of ‘Aboriginal appearance, he had brown eyes, distinctive eyebrows’ which were ‘large, thick’ and he had a ‘slimmer nose’.
She agreed that she had participated in viewing a photographic display on 2 June 2015 at her home.
She said that when she looked at the photographs of various men she found them to be very confronting. She thought that one of the photographs perhaps was of the robber but that she ‘honestly couldn’t say out of all the faces that were looking up at me that I could pick a person off the page, so I chose not to’.
She said that she had been very traumatised by the entire experience, namely the robbery. She said that ‘it was just overwhelming to be looking at these pictures’. She said that at the time she inspected the photographs, from an emotional point of view, she was a ‘mess’. She said that she was off work for about two weeks after the robbery and was, at the time of the trial, still seeing a psychologist for a post-traumatic stress condition.
She then identified a dongle shown to her as the one which was in her computer bag at the time of the robbery.
In cross-examination she agreed that she didn’t select the accused’s photograph from the photographic display, even though she had ‘a good look at his face’. She accepted that she did tell police on the day of the robbery that she thought she would be able to recognise him.
She went on to say that the photographic display process was very confronting and stressful for her. She said that she mentioned one person (who it is accepted was not the robber) because she wanted to catch the person who had committed the robbery.
She agreed that she believed the meat cleaver was steel including the handle.[23] Later she said that the robber had his hand on the handle but that the part she saw she remembered as being steel.
[23] The handle of the meat cleaver was mainly wood albeit with a thin steel strip visible between two wooden sides.
She said that, in a statement she gave to the police on the day of the robbery, she had described the robber as ‘Aboriginal, medium build, approximately five foot four to five foot five, [who had] a wide stance, stride when he walked, short dark hair, brown eyes, slight stubble on his face, slim nose, slim lips, round face and predominant dark [thick] eyebrows’.[24]
Assessment of Ms Lindop
[24] While acknowledging that she may have used the word 'thin' to the police in describing his eyebrows, she said, which I accept, that this was a mistake on her part. She had meant to say 'thick'.
I found Ms Lindop to be a truthful witness. She gave her evidence in a forthright and open manner. She made concessions where it was appropriate to do so. I accept that she was reliable generally and, in particular, with respect to her description (on the day of the robbery) of the robber.
I do however, note her description of the meat cleaver as being all stainless steel including the handle. If the meat cleaver located by the police was the one used by the robber, she was in error. However, I do not regard this error as detracting, in any material way, from the thrust of the balance of her evidence. The handle would likely have been obscured to a large extent by the robber’s hand. It is also possible that she saw that part of the handle which is steel or that she assumed that it was all steel and has simply reconstructed this part of the episode. Whatever be the explanation, given the violent nature of the incident and the time it lasted, I do not regard this potential error as detracting from the reliability of the balance of her evidence. Nor do I regard her ‘selection’ of a photograph of someone other than the accused in the photo display as meaningfully detracting from the rest of her evidence. She was clearly traumatised at the time she was participating in that process. She said she felt confronted and stressed by the experience of the entire display process and, in my view, she may well have felt an unconscious pressure to make a selection. Even then the selection was nothing more than a ‘possible’. In the circumstances, I am not prepared to place any weight on the ‘selection’ and I discount, as a reasonable possibility, any suggestion that the man in the photograph that she ‘selected’ looked like the robber.
On the other hand, and making appropriate allowance for the stress she would have been under, I find her description of the robber, which she gave to police shortly after the robbery, as being generally reliable. Although this description (which she generally confirmed in her evidence) was given after a traumatic incident, there was nothing to suggest that at that particular point in time she had manifested any signs to suggest that she was precluded from being able to provide an accurate description.
Subject to these ‘qualifications’ I found Ms Lindop to be an impressive witness who was both truthful and reliable.
Mr Boniface
He was working at the Modbury branch of the Credit Union on 28 May last year. He had a meeting with clients which finished at about 4:20 pm to 4:25 pm. He then made a phone call which lasted some 10 to 15 minutes.
At approximately 4:45 pm he heard Ms Lindop screaming and then a person came into his office. This person said ‘Give me your wallet’. He had a meat cleaver in his left hand and was behaving in a threatening manner. As a result, Mr Boniface agreed to hand over his wallet. The person then left the building.
He then asked Ms Lindop to block his Credit Union card. Thereafter, he said that he phoned the police who arrived within about five minutes.
He described the person who robbed him. He said that the person was a man dressed in dark blue trousers and a hi-viz long-sleeved top. He said that his face was covered with a beanie which had a piece cut out for the eyes and mouth. The top was bright yellow with blue edges.
He said that the man was of a similar height to him, namely about five foot six and looked to be of a ‘lighter frame’. He was carrying a meat cleaver which had a blade about 10 cm long with a handle that had ‘some shiny bits on it’. The man held the meat cleaver by the handle in his left hand.
He said that his wallet contained a People’s Choice card, a Westpac Mastercard and a Medicare card. A Medicare card was produced to him which he identified as the one that had been in his wallet.
While the police were at the Credit Union premises he checked and confirmed that four attempts had recently been made to use his Credit Union card at both the Clearview Service Station and the Northpark Shopping Centre. He later provided police with a copy of his Westpac Branch Statement for May 2015 which showed two cash withdrawals on 28 May 2015 at Prospect.
He said that the transactions or attempted transactions on his Credit Union account occurred between the time his wallet was stolen and the time he sat down with police to review his Credit Union account, the latter of which occurred around 6:00 pm that day.
He said the ‘transactions’ on his Credit Union card and Westpac card were unauthorised. Some money, approximately $100, was taken from the Westpac account. He said this sum was likely to have been able to be withdrawn because he had left a piece of paper with a pin number for this account in his wallet.

In cross-examination he agreed that he had told police that the long-sleeved hi-viz shirt (which the robber was wearing) had a blue motif on the right chest.
He agreed also that he had told the police that the meat cleaver was all silver including the handle.
Assessment of Mr Boniface
I accept Mr Boniface as a truthful witness. I also accept that he was generally reliable.
He agreed that he had believed, at the time he spoke to police, that the meat cleaver was all silver, including the handle.
The meat cleaver found in the Toyota was not all silver and, accordingly, if Mr Boniface’s description was accurate it could not have been the meat cleaver used in the robbery. On the other hand, it may be that Mr Boniface made a mistake when telling the police it was all silver. The robbery took place in a highly charged atmosphere and lasted a matter of moments. I am inclined to think that Mr Boniface was mistaken when he described the handle as ‘all silver’. In the same way, if the shirt had a blue motif on the right chest, it could not be either of the long-sleeved shirts located by the police. However, I am inclined to think, for similar reasons, that he is simply mistaken in his description of the hi-viz shirt as having a motif on the chest.
Even though I am of the view that he was mistaken on these two matters, I still accept him as a truthful and reliable witness with respect to the balance of his evidence and, in particular, with respect to his description of the height and general build of the robber.
Detective Brevet Sergeant Agostino
CCTV footage, of activity at the Caltex Service Station Clearview, and the ATM in the shop at that location, was tendered through him. A still photograph of a man entering the Caltex Clearview shop was also tendered through him.
Sergeant Agostino said that, after reviewing the security camera footage from the Clearview Service Station, he made enquiries as to the ownership of the Toyota. These enquiries led him and other officers to attend at premises in Exeter occupied by a Mr Fieldhouse.
He and other officers searched the premises and the Toyota which was located in a driveway adjacent Mr Fieldhouse’s unit. In the unit police officers located the Telstra-brand dongle belonging to Ms Lindop and a yellow and blue long-sleeved hi-viz shirt.
In the Toyota police located a long-sleeved yellow hi-viz shirt and a short-sleeved yellow hi-viz shirt. They also located a silver-coloured stainless steel meat cleaver with a handle made of wood. The meat cleaver was tendered through him. However, as I have already said, despite the handle being wooden on both sides, I note that there is still exposed, in the middle, a thin stainless steel strip. Finally, in the Toyota, he said police also located the Medicare card belonging to Mr Boniface.
Thereafter, Sergeant Agostino and others went to a caravan park in Semaphore where they searched a cabin which officers observed the accused to enter. In the cabin police located a dark coloured Nike T-shirt, a white Nike baseball style cap and dark coloured pants.
Sergeant Agostino also took DNA samples from the accused and Mr Fieldhouse which, along with the items seized from the unit occupied by Mr Fieldhouse, the Toyota and the cabin at Semaphore, he said were delivered to the Forensic Science Centre for analysis.
Sergeant Agostino observed the accused, when signing his name, to use his left hand. CCTV footage from the Northpark Shopping Centre for 28 May 2015 was also tendered through him.
He also said that, by reference to police records, the phone call from the Credit Union to police reporting the robbery occurred at 4:50 pm and that police arrived at the scene of the robbery at 4:54 pm and 33 seconds.
He also produced a photograph of Mr Fieldhouse taken on the day of his arrest being 29 May 2015.
Finally, he produced the photo display board which included the accused’s photograph. He also measured the distance between the Credit Union and Northpark Shopping Centre as 12.2 kms.
Assessment of Sergeant Agostino
I am satisfied that Sergeant Agostino was both truthful and reliable. I accept his evidence.
The CCTV Footage
I studied the CCTV footage from the Credit Union, the Caltex Service Station and shop and the Northpark Shopping Centre. I also studied the various still images of the offender at the Credit Union, the man in the service station and using the ATM at the Caltex shop and of the two men depicted at the ATM at Northpark and of them then entering and leaving the shopping centre.
I studied these pieces of footage and the corresponding still images throughout the course of the trial and compared these various images, of one of the men in that footage and in the still images, with the accused in the dock. I also compared the images of the other man, in the footage and the still images, with the photograph taken of the man, Fieldhouse on the day of his arrest.
The Defence Case
The accused, as is his right, elected not to give or call on his behalf any evidence.
In answer to the charges Mr Sale made submissions as to why the Crown had not proven its case on any of the charges beyond reasonable doubt.
Amongst other things, he submitted that even the best of the still photographs of the accused at the service station, exhibit P11, was of questionable quality and a dangerous basis upon which to draw any meaningful conclusions. He also submitted that I should be mindful before drawing any such conclusions if they were based, even in part, upon my observations of the accused in the dock.
He pointed out that another weakness in the CCTV footage evidence from the service station was the uncertainty as to when it was taken. In short, it could, he submitted, have been taken at any time prior to it being collected by police at 8:45 pm on 28 May 2015.
He said that the attempt by the prosecution to connect the footage with the banking records invited circular reasoning which first, required an assumption that the man in the footage is using Mr Boniface’s cards, in order to conclude that time code on the Caltex footage was accurate. In turn, it required an assumption that the accused was the man using the cards.
He also submitted that the Court should not rely on exhibit P1 as the route identified in that exhibit was nothing more than speculation.
In relation to counts 1 and 2, he said that there was no evidence to place the accused in the vicinity of the Credit Union. Nor, he submitted, was there any evidence as to his actual height, his stance or stride, the way he walked or whether he had stubble on his face.
He said that Ms Lindop could not identify the accused from the photo-display despite having an intimate opportunity to view the robber’s face.
He submitted that even if a person was in possession of the credit cards 15 minutes later, that fact did not prove that the same person committed the robbery. He said there were a number of reasonable hypotheses as to how such a person could come into possession of the cards other than as a result of committing the robbery.
He also reminded me of the descriptions of the meat cleaver and hi-viz top given by Ms Lindop and Mr Boniface which, he submitted, differed from the items located in the Toyota.
Discussion
Against the background of this evidence, the specific directions regarding certain parts of that evidence and Mr Sale’s submissions on behalf of the accused, I now turn to consider the specific charges in the various counts. In what follows, if I use the words ‘satisfied’, ‘accept’ or ‘find’, I intend to mean beyond reasonable doubt.
Count 1
I am satisfied that shortly before the robbery a person approached the entrance to the Credit Union premises and that at the time this man was wearing a light or white coloured baseball cap with a logo on it, a yellow/blue hi-viz top, dark coloured trousers and shoes.[25]
[25] T25, 33-34 Ms Lindop; Exhibit P24.
I am satisfied that not long thereafter a person wearing a similar colour and style of top and similar coloured trousers and shoes entered the Credit Union at approximately 4:45 pm on 28 May 2015 armed with a silver coloured stainless‑steel, wooden handled meat cleaver.
I am satisfied that he was carrying the meat cleaver in his left hand.
I accept, as accurate, the description of the man’s height given by Ms Lindop, namely that of a person of approximately five foot four to five foot six.[26] On the issue of his height, I also accept the evidence of Mr Boniface.
[26] Although there was no evidence as to the accused's height, based on my observations of him as he moved to and from the dock, I am satisfied that he was a relatively short man in the order of the height estimated by her.
I am also satisfied that Ms Lindop’s description (which she gave to the police) of the robber, namely that of a man, aboriginal, medium build, short, dark hair, slim nose, slim lips, round face and prominent dark [thick] eyebrows was both credible and reliable.[27]
[27] T61-62. Once again, relying on my observations of the accused while sitting in and moving to and from the dock over some days, I am satisfied that this is an accurate, albeit general, description of the accused's facial features and appearance.
I am satisfied that during the robbery this man stole a number of items included among which were a dongle belonging to Ms Lindop and a Medicare card and credit cards belonging to Mr Boniface.
I accept the evidence of Sergeant Agostino that the robbery was reported to the police at 4:50 pm.
If these facts constituted the only evidence against the accused, although it is possible to conclude that the accused committed the robbery, I could not conclude beyond reasonable doubt that he did rob Ms Lindop.
However, I have also had regard to the following evidence as pieces of circumstantial evidence to assist me in my consideration of the charge against the accused on count 1.
Lest there be any uncertainty, I repeat what I said earlier, namely that in what follows in relation to these facts, if I use the words ‘satisfied’, ‘accept’ or ‘find’ I intend to mean beyond reasonable doubt.
It is an Agreed Fact, and I am therefore satisfied, that Mr Boniface’s credit cards were used at the Clearview Caltex Service Station ATM between 5:01 pm and 5:04 pm on 28 May 2015.
I accept that the distance between the Credit Union premises in Modbury and the Northpark Shopping Centre, Prospect is some 12.2 kms[28] and that the Caltex Service Station at Clearview is both approximately equi-distant between the two and accessible from the Credit Union premises by a relatively direct route.
[28] Exhibit P1.
I also accept the evidence of Sergeant Agostino that the accused used his left hand to sign his name at the police station.
I am satisfied that the CCTV footage at the Clearview service station depicts the following things:
·       the Toyota pulling into the Caltex Service Station;
·       a man in a white baseball-style cap and dark T-shirt in the passenger seat of the Toyota;
·       a man in a similar style white baseball-style cap, dark T-shirt (now both identifiable as a Nike brand) and dark trousers emerging into ‘camera shot’ from the vicinity of the Toyota;
·       that same man enter the Clearview Caltex Service Station shop;
·       that man in his white baseball-style Nike cap, Nike T-shirt and dark trousers use or attempt to use the ATM in the shop;
·       that man use his left hand when so doing;
·       that the time stamps on the CCTV footage depicting that man attempting to use the ATM record a time range of 4:58 pm to 5:02 pm.[29]
·       that man leave the shop and approach the vicinity of the Toyota before disappearing from view.
[29] Unlike the time stamps on the CCTV footage taken at the Northpark Shopping Centre, the accuracy of the time stamps on this footage is not agreed.
Exhibit P11 depicts the face of that man dressed in his white baseball cap, Nike T-shirt and black trousers entering the Caltex shop.
As I said earlier, I studied the CCTV footage plus the still images of this man carefully and compared these images with the accused in the dock.
I am satisfied that the man, depicted in the CCTV footage and still images taken at the service station and in the shop and of him using or attempting to use the ATM, is the accused. In so saying, I intend to convey that I am also satisfied that the man in the passenger seat, as the Toyota enters the service station, is the accused.
I am satisfied that Mr Boniface’s Westpac bankcard was used that afternoon (at the Bendigo Bank ATM at the Northpark Shopping Centre at Prospect) at 5:27 pm and that CCTV footage (the date time and stamps of which are agreed to be accurate) depicts a man dressed in a white baseball Nike cap, black Nike T-shirt and dark trousers appearing to use this ATM at about 5:30 pm. I am satisfied that this is the same man who is depicted in the Caltex Service Station footage, namely the accused.
This CCTV footage, which I am satisfied also depicts the accused using his left hand, also shows a second man, whom I note bears at least a general resemblance to the photo of the man Fieldhouse, seen in exhibit P25.
I am satisfied that the Toyota shown in the CCTV footage at the Clearview Caltex Service Station is the vehicle found at the premises occupied by Mr Fieldhouse.
I accept that a search of Mr Fieldhouse’s premises, revealed a Telstra-brand dongle belonging to Ms Lindop and a hi-viz shirt with DNA matching that of Mr Fieldhouse.
I accept that a search of the Toyota disclosed a short-sleeved, yellow, hi-viz shirt with DNA matching that of the accused, Mr Boniface’s Medicare card and a meat cleaver (which was retrieved from underneath the front passenger seat) with a blade which had a curve and was of a colour as described by Ms Lindop and Mr Boniface.
I am satisfied that a subsequent search of a cabin seen to be entered by the accused revealed a white Nike baseball cap and a black Nike T-shirt both with DNA on them matching that of the accused.
In summary, and having regard to the circumstantial evidence in its entirety on this count, I am satisfied as to the following matters, namely that the two victims (particularly Ms Lindop) gave descriptions, of the person who committed the robbery, in terms which generally correspond with the accused. The robbery occurred at about 4:45 pm. The man used a meat cleaver which he carried in his left hand during the robbery.
I am also satisfied that thereafter the accused is depicted in the Toyota at a Caltex Service Station a relatively short distance (using a readily accessible route) from the scene of the robbery and subsequently is shown using a credit card or cards at the ATM in the Caltex shop. An attempt was made to use Mr Boniface’s credit card at this service station ATM at around 5:00 pm. I accept that there is no evidence as to whether the time stamps on the CCTV footage from the Caltex Service Station shop (which depict a time of around 5:00 pm when the accused is seen to use the ATM) are correct. The accused is also depicted in CCTV using a credit card at the Bendigo Bank ATM at the Northpark Shopping Centre at around 5:30 pm in the company of a man bearing at least a passing resemblance to Fieldhouse. Northpark Shopping Centre is itself accessible from the Caltex Service Station at Clearview by a relatively direct route. Two withdrawals are recorded as having been made on Mr Boniface’s credit card from the Bendigo Bank ATM at the Northpark Shopping Centre at 5:27 pm. CCTV footage at the Caltex Service Station depicts the accused as the person in the passenger seat of the Toyota in which Mr Boniface’s Medicare card and a meat cleaver were later found (the latter under the seat where the accused was sitting), together with similar looking hi-viz tops to the one worn by the robber, one of which (albeit a short sleeve top) disclosed DNA correlating to that of the accused. Finally, clothing, in the form of a Nike cap and T-shirt (with DNA on them matching that of the accused) and trousers similar to that being worn by the accused in both the CCTV footage and still images, was found in a cabin he entered shortly before being arrested.
Against the background of the aforementioned facts which I am satisfied the prosecution has proven beyond reasonable doubt, I make the following findings:
1.      On 28 May 2015 a man dressed in a white cap, yellow hi-viz top, dark trousers and shoes approached the People’s Choice Credit Union at Modbury.
2.      A short while later, at approximately 4:45 pm that day, the same man, whilst armed with a meat cleaver, took a laptop computer bag, laptop charger and internet dongle from an office occupied by Ms Lindop at the premises of People’s Choice Credit Union, Modbury.
3.      In taking these items the man acted dishonestly.
4.      When taking these items he was acting without the consent of Ms Lindop.
5.      At the time he took the items he intended to permanently deprive Ms Lindop of the items.
6.      The man who took these items used force to enable him to take them.
7.      The force was used immediately before he took the items when he threatened Ms Lindop with the meat cleaver.
8.      The man who took the items from Ms Lindop by force was the accused.
I have given consideration as to whether, this being a circumstantial case, there is a reasonable hypothesis consistent with the innocence of the accused.
There can be no doubt, in my view, that it is the accused who is depicted at the Caltex Service Station shop using the ATM. Despite the absence of any agreement as to the accuracy of the time stamps on the CCTV footage, on the whole of the evidence, I am satisfied the accused is depicted using a credit card at the Clearview Caltex shop at the same time as Mr Boniface’s card was being used, namely at around 5:00 pm. I am also satisfied that it is the accused who is shown using Mr Boniface’s credit card to withdraw money from the Bendigo Bank ATM at Northpark at around 5:30 pm.
I reject any possibility that the accused did not take part in the robbery but then somehow, within a very short time thereafter, came into possession of stolen credit cards.
I am therefore satisfied beyond reasonable doubt that the accused committed the offence of aggravated robbery of Ms Lindop and is guilty on count 1.
Count 2
I recognise that each count needs to be considered separately. Nevertheless, I have, in general terms, had regard to the same evidence in relation to count 2 as I did in relation to count 1 and, in particular, on the issue of whether the accused was the man who robbed Mr Boniface. I have done so because, in my opinion, that evidence is relevant to the background and surrounding circumstances giving rise to the charge in count 2. As such, it is unnecessary to repeat the facts as to which I am satisfied.
In relation to count 2 I make the following findings:
1.      On 28 May 2015 a man dressed in a white cap, yellow hi-viz top, dark trousers and shoes approached the People’s Choice Credit Union at Modbury.
2.      A short while later, at approximately 4:45 pm that day, the same man, whilst armed with a meat cleaver, took a wallet containing credit cards, a driver’s licence, $5 cash and a Medicare card from Mr Boniface at the offices of People’s Choice Credit Union at Modbury.
3.      In taking these items the man acted dishonestly.
4.      When taking these items he was acting without the consent of Mr Boniface.
5.      At the time he took these items he intended to permanently deprive Mr Boniface of these items.
6.      The man who took these items used force to enable him to take these items.
7.      The force was used immediately before he took the items when he threatened Mr Boniface with the meat cleaver.
8.      The man who took these items from Mr Boniface by force was the accused.
For the reasons articulated in relation to count 1, I am satisfied that there is no reasonable hypothesis consistent with the accused’s innocence on this charge. I am therefore satisfied beyond reasonable doubt that the accused committed the offence of aggravated robbery of Mr Boniface and is guilty on count 2.
Count 3

I repeat that each count needs to be considered separately. In relation to count 3, I confirm that I have had regard to and carefully considered the CCTV footage and still images taken at the Caltex Service Station and shop and compared them with the accused as he appeared during the trial.
I accept that the CCTV footage depicts the following:
·       the Toyota pulling into the service station;
·       a man in a white baseball-style cap and dark T-shirt in the passenger seat of the Toyota;
·       a man in a similar style white baseball-style cap, dark T-shirt (now identifiable as a Nike brand) and dark trousers emerging into ‘camera shot’ from the vicinity of the Toyota;
·       that same man enter the Clearview Caltex shop;
·       that man in his white baseball-style cap, Nike T-shirt and dark trousers use or attempt to use the ATM in the shop;
·       that man use his left hand when so doing;
·       that the time stamps on the CCTV footage depicting that man attempting to use the ATM record a time range of 4:58 pm to 5:02 pm.
·       that man leave the shop and approach the vicinity of the Toyota before disappearing from view.
I am satisfied that the man shown entering the service station shop and attempting to use the credit card(s) using his left hand is the accused.
It is agreed that credit cards stolen from Mr Boniface (together with his Medicare Card) were used at this service station at about 5:00 pm, some 15 minutes after they were stolen from him.
There is no evidence as to whether the time stamps on the CCTV footage from the service station (which depict a time of around 5:00 pm when the accused is seen to use the ATM) are correct.
Based upon this evidence alone, whilst it is possible that the accused attempted to use Mr Boniface’s credit cards at the Caltex Service Station shop, I could not be satisfied beyond reasonable doubt that he is guilty of this charge.
However, I have also had regard to the following evidence (as to which I am also satisfied beyond reasonable doubt) to assist me in determining the guilt or otherwise of the accused on this charge.
At 5:27 pm a man dressed in clothing which is effectively indistinguishable from the clothing worn by the accused at the service station, is shown (in CCTV footage from the Northpark Shopping Centre) to use the Bendigo Bank ATM. At the same time Mr Boniface’s credit cards were used at the Bendigo Bank ATM at the shopping centre.
I note that a second man shown in this footage bears a resemblance to a Mr Fieldhouse. On the day after the credit cards were used, police located, amongst other things, the Medicare Card belonging to Mr Boniface in the Toyota which is parked outside Mr Fieldhouse’s unit.
As I have already indicated, I am satisfied the accused was a passenger in the Toyota prior to attempting to use the ATM at the service station.
Against the background of all these aforementioned facts which I am satisfied the Crown has proven beyond reasonable doubt, I make the following findings:
1.      On 28 May 2015, at approximately 5:00 pm, a man attempted to manipulate an ATM at the Caltex Service Station at Clearview.
2.      The man did so by attempting to use a credit card belonging to Mr Boniface by inserting it into the ATM.
3.      The man did not have the authority of Mr Boniface to do so and, in so doing, acted dishonestly.
4.      The man attempted to manipulate the ATM in order to benefit himself.
5.      The man who attempted to manipulate the ATM was the accused.
Whilst I recognise that the case against the accused on count 3 is also circumstantial, I am satisfied that, on the facts that I have found, there is no reasonable hypothesis consistent with the accused’s innocence.
I am therefore satisfied beyond reasonable doubt that the accused is guilty of attempting to dishonestly manipulate a machine.
Count 4
I again acknowledge that each count needs to be considered separately.
In considering count 4, first I will examine the evidence that directly relates to that count. I am satisfied as to the following facts.
At approximately 4:45 pm on 28 May 2015 a wallet containing credit cards and a Medicare Card were stolen from Mr Boniface. At approximately 5:30 pm on that day a person used Mr Boniface’s credit card at the Bendigo Bank ATM at the Northpark Shopping Centre at Prospect to make two withdrawals totalling approximately $100. At about the same time a person wearing a white Nike cap, black Nike T-shirt and dark trousers is seen in the company of another man attempting to use an ATM at the Bendigo Bank at Northpark Shopping Centre.
On the basis of this evidence I could not be satisfied that the accused is guilty of this charge.
However, I have also had regard to, and am satisfied, as to the following evidence.
At about 5:00 pm on the same day a person attempted to use a credit card(s) which I am satisfied belonged to Mr Boniface at the Caltex Service Station at Clearview.
The accused is depicted on CCTV footage from the service station as a passenger in the Toyota and later attempting to use the service station ATM, albeit at a time which, I accept, cannot be determined but which is shown on the CCTV to be about 5:00 pm.
The Toyota was later discovered to contain Mr Boniface’s Medicare Card and a meat cleaver resembling a meat cleaver used by the person who robbed Mr Boniface.
In relation to count 4 I make the following findings:
1.      On 28 May 2015, at approximately 5:30 pm, a man manipulated a Bendigo Bank ATM at Northpark Shopping Centre.
2.      The man did so by using a credit card belonging to Mr Boniface.
3.      The man did not have the authority of Mr Boniface to use the card and, in so doing, acted dishonestly.
4.      The man did so in order to benefit himself.
5.      The man who manipulated the ATM was the accused.
Whilst I recognise that the case against the accused on count 4 is circumstantial, I am satisfied there is no reasonable hypothesis consistent with the accused’s innocence.
I am therefore satisfied beyond reasonable doubt that the accused committed the offence of dishonestly manipulating a machine and is guilty of count 4.
Count 5
I now turn to consider count 5. I have had regard to the same evidence on this count as I have on count 4. There is no need to reiterate the evidence about which I am satisfied beyond reasonable doublt.
In relation to count 5 I make the following findings:
1.      On 28 May 2015, at approximately 5:30 pm, a man manipulated a Bendigo Bank ATM at Prospect.
2.      The man did so by using a credit card belonging to Mr Boniface.
3.      The man did not have the authority of Mr Boniface to use the card and, in so doing, acted dishonestly.
4.      The man did so in order to benefit himself.
5.      The man who manipulated the ATM was the accused.
Whilst I recognise the case against the accused on count 5 is circumstantial, I am satisfied that there is no reasonable hypothesis consistent with the accused’s innocence.
I am therefore satisfied beyond reasonable doubt that the accused committed the offence of dishonestly manipulating a machine and is guilty of count 5.
Verdicts
My verdicts are as follows:
Count 1 – Guilty
Count 2 – Guilty
Count 3 – Guilty
Count 4 – Guilty
Count 5 – Guilty