R v MESCHEDE - [2020] SADC 177

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MESCHEDE
Criminal Trial by Judge Alone
[2020] SADC 177
Reasons for the Verdicts of His Honour Judge Boylan
23 December 2020
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Accused charged with one count of aggravated robbery and two counts of aggravated theft - pleaded guilty to one count of aggravated theft - not guilty to the two remaining counts - elected for trial by judge alone - circumstantial case.
Held: Identity of offender not proved beyond reasonable doubt - not guilty to both counts.

R v MESCHEDE
[2020] SADC 177

These are my reasons for finding the accused not guilty of offences of aggravated theft and aggravated robbery.
In December 2018, there were “smash and grab” thefts and an armed robbery at three Adelaide jewellery shops. At a fourth shop, a masked man carrying a hammer ran off without committing any offence. On three of those occasions, the offender wore a mask with a skeleton pattern; on all of them, he wore a hooded top, track pants and running shoes; on three occasions, he escaped as a passenger in a getaway car; and on three of the occasions the getaway car bore false, home-made registration plates. Eyewitnesses at each shop gave descriptions of the offender which, in many ways, matched the appearance of the accused.
At the time of these offences, the accused was unlawfully at large. He had been on home detention bail but, on 27 November 2018, he removed his electronic monitoring device and absconded from his bail address. Thereafter, he was homeless, “couch surfing”. He spent some time staying with a friend, Andrew Morley, at Pooraka.
On 13 December 2018, the police found the accused at Morley’s house and arrested him. They searched the house and found clothing and footwear identical or similar to that worn by the offender. They also found two sets of false, home-made car registration plates. One of those plates matched the plates on a getaway car at one of the shops. Another set, found under the mattress of a bed in which the accused occasionally slept, was not connected to any known offence.
The accused was charged with offences of aggravated theft at Cash Converters at Glynde, and at Shiels at Hollywood Plaza; and with aggravated robbery at Prouds the Jewellers at Salisbury Downs. Further, it was the prosecution case that it was the accused who attended near Class A Jewellers at Walkerville but left without entering the shop. In the case of all three charged offences, it was the prosecution case that the accused was the principal offender; that is, that it was he who entered each of the shops.
After the accused’s arrest, police investigations continued. CCTV from the shops was seized and examined. Footage of the offender was compared with film of the accused taken on other, unrelated occasions. On those occasions, and at the time of his arrest, the accused was wearing Nike shoes identical to those worn by the offender at Shiels, and at an earlier arrest for an unrelated matter, the accused was wearing socks identical in pattern to a sock covering the offender’s left hand at Prouds. The police also found at Morley’s house a pair of white Everlast running shoes. The sole pattern of one of those shoes appeared to match a shoe impression left by the offender when he stood on a glass display counter at Prouds. In the garden was a fake home-made car registration plate. Other evidence was amassed and the prosecution mounted an apparently strong circumstantial case against the accused.
Upon his first appearance in this Court, the accused pleaded guilty to the offence of aggravated theft at Shiels, thereby admitting that it was he who entered the shop and stole jewellery. He pleaded not guilty to the other two offences and elected for trial before me, without a jury. Near the end of the trial, at the outset of his counsel’s address, the accused conceded that it was he who had attended near Class A Jewellers, masked and carrying a hammer in his backpack.
The trial
There is no doubt that an offence of aggravated theft was committed at Cash Converters on 1 December 2018 and an offence of aggravated robbery at Prouds the Jewellers on 11 December 2018. I shall not, therefore, set out the elements of those offences. The only issue for me is this: has the prosecution proved beyond reasonable doubt that the offender who entered those two shops was the accused?
I refused an application for separate trials. Each of the three counts originally charged and the circumstances of the incident at Class A were cross-admissible on the basis of improbability reasoning. Given my verdicts, I shall say no more about that.
The accused exercised his right not to give evidence.
This is a circumstantial case and I have directed myself accordingly. In particular, I have directed myself that the weight of a case which is based upon circumstantial evidence ultimately depends upon the combined strength of all of the evidence that I accept. I have also directed myself that I cannot be satisfied that the accused is guilty of either of these offences unless I am satisfied that his guilt is the only rational inference that the circumstances I find proved enable me to draw.
I turn now to the events at each of the four shops.
Class A Jewellers
As I have mentioned, the accused has admitted, through his counsel, that he was the masked man who attended at Class A Jewellers on 1 December 2018. Even without that admission, I am satisfied that he was the masked man on that occasion. I find the following.
At about 10.45 am on 1 December 2018, the accused was the front seat passenger in a white Commodore sedan, registration number S571 AOC, which drove into the carpark at the rear of Class A Jewellers on North East Road at Walkerville. As the accused got out of the front passenger seat, he was pulling a skeleton-patterned balaclava over his head, using his left hand. In his right hand he held a backpack and, visible in the top of the backpack, was a hammer or mallet. Through a rear window, the owner of Class A Jewellers saw the accused in the carpark and instructed his staff to keep the doors to the premises locked. The accused ran into an atrium outside the locked doors. He was wearing a dark hooded top, pale-coloured baggy track pants bearing the Nike logo and black, white and red running shoes. He ran past the door to the jewellery shop and up a flight of stairs. Seconds later he came down and left the shop, no longer wearing the balaclava. It was at that stage that he was captured by the CCTV for a second time. On the basis of that section of the footage, I am satisfied that the masked man was the accused. He ran into the carpark and got into the same white car, which sped off.
Cash Converters
Cash Converters at Glynde is about a 10-minute drive from Class A Jewellers. Cash Converters’ records show that the accused had been a customer there on a number of occasions. I find that he was familiar with the layout of the premises.
Twenty-five minutes after the accused ran out of Class A, a masked man entered Cash Converters, went straight to a glass jewellery display case, smashed the glass front of the case with a mallet, grabbed gold chains attached to a black display board, dropped the mallet and ran out. For reasons to which I shall come shortly, I find that the thief left the scene, as a passenger, in a white car bearing registration number S571 AOC. The offender at Cash Converters also wore a mask with a skeleton pattern.
I deal now with the getaway car. A customer at Cash Converters ran out of the shop after the thief, as did Mr Vannea, an employee at Cash Converters. The customer, who did not give evidence, called out to Mr Vannea the registration number of the getaway car. Mr Vannea wrote it on the palm of his hand. At trial, Mr Vannea had no independent recollection of the number but he had taken a photograph of his hand showing what he had written, namely, J718OC. I should say that it appears that the first letter is a “J”. Given that it was written on the palm of Mr Vannea’s hand and in haste, what appears as a “J” could be an “S”.[1] Further, Mr Vannea may well have heard “8” for “A”.
[1] Exhibit D1.
Mr Vannea described the getaway car as having a spoiler and, when shown a photograph of the white car used at Class A, he said that it was not the same car. I think that Mr Vannea mis-heard what the customer called out and wrongly recorded the registration number. I also think that he is wrong about the getaway car having a spoiler: he only saw the car at some distance as it sped away. I think he is mistaken because, if he is not, then there is a great coincidence: 25 minutes after the incident at Class A Jewellers a man unconnected with the events there wearing a skeleton mask and carrying a mallet entered Cash Converters, stole jewellery, and escaped in a different white car with registration plates bearing the numbers and letters 71-AOC. I do not accept such a coincidence. I am satisfied beyond reasonable doubt that the car used in the Cash Converters robbery was the same car as that in which the accused had left Class A Jewellers.
But I am not satisfied beyond reasonable doubt that the accused was the thief who entered Cash Converters. The description of the thief at Cash Converters, given by eyewitnesses, does not match the accused as to height and clothing. Mr Vannea described the thief as “very, very tall”, slightly taller than Mr Vannea himself. Mr Vannea is 185 centimetres tall. It is an agreed fact that the accused is 173 centimetres. Ms Chirgwin, another employee, also described the thief as “a tall figure”. Further, all three employees at Cash Converters who saw the thief said that he was dressed in all-black clothing and Ms Chirgwin said that the mask worn by the thief had something red around the eyes. There was no red-colouring in the balaclava worn by the accused at Class A Jewellers.
I have not overlooked the fact that Mr Pilla, one of the employees, said that the accused was between 170 to 180 centimetres tall. Mr Pilla estimated the accused’s height by reference to a height measurement bar at the doorway of the shop. But, because the thief was clutching a jewellery display board to his chest as he ran off, it is possible that he was bending over as he did so.
At Class A Jewellers, the accused was not dressed in all-black. Although he was wearing a dark top, he was wearing pale grey, baggy track pants. I think it unlikely that the thief would have changed his clothes before entering Cash Converters. Such a change would have involved removing the pale grey track pants. While a change of clothes may not be completely out of the question, the height of the thief at Cash Converters does not accord with the agreed height of the accused.
Shiels
As I said, the accused has admitted that he was the offender at Shiels.
CCTV from Shiels[2] shows that the accused committed a “smash and grab” theft there. He wore dark (non-baggy) track pants; a pale grey hoodie with the Adidas logo across the chest; black gloves; and his black, white and red Nike shoes. He wore neither mask nor sunglasses; his facial tattoos were visible. He carried a hammer, which he took with him when he ran off. He drove off alone in a Barina car.
[2] Exhibit P14.
Prouds the Jewellers
Prouds was robbed on 11 December 2018. The offence was more than a “smash and grab” theft; it was an armed robbery.
CCTV footage[3] shows that the robber wore dark pants; a pale grey hoodie with the Adidas logo printed on the chest; all-white running shoes; and, on his left hand, a white and aqua-coloured sock.
[3] Exhibit P20.
The evidence of a number of eyewitnesses is that the robber wore a face-covering with a skull or skeleton pattern - variously described as a bandana and half-mask - over the lower half of his face. He also wore sunglasses. One witness saw an aqua and white-coloured sock on his left hand and another witness saw that his right hand was uncovered. That witness does not remember seeing any tattoos on his hand.
The robber left the scene, as a passenger, in a white Ford Ranger bearing false, home-made registration plates S386 BUC. That was the numberplate found in an empty garden pot in the rear yard of Mr Morley’s house at Pooraka.
After his arrest, the accused was remanded in custody. In March 2019 police intercepted an “Arunta” telephone call between him and an unidentified woman. During their conversation, the accused told the woman that he had been homeless for a while and had been couch surfing; that he had started being bad again; that he had four counts of armed robbery; that he was saying that he was not guilty; and that he might end up in gaol for 10 years. I shall say a little more about that conversation shortly.
I said earlier in these reasons that the Crown mounted an “apparently” circumstantial case. I now turn to some of the principal circumstances upon which the Crown relies.
·The appearance of the robber in CCTV footage from Prouds generally matches the accused’s appearance in height, build and apparent age.
·At Prouds, the robber jumped onto a glass counter and left shoe prints. A qualified crime scene officer compared those prints with prints made by the white Everlast shoes seized from the house at Pooraka. I note here that the shoes were found in the bathroom at that house, not in the accused’s bedroom. The print made by the left Everlast shoe was potentially capable of having left the mark on the glass counter. That is, the seized left Everlast shoe was a possible source of the impression although other shoes with the same class characteristics, and in this case a randomly acquired characteristic in a particular location, could have produced the mark at the scene.
·On the occasion of a previous arrest, on 7 November 2018, the accused was wearing a pair of white and aqua socks identical to the sock worn on the robber’s left hand at Prouds.
·In the laundry at the Pooraka house police officers found an Adidas hooded top identical to that worn by the accused at Shiels and by the robber at Prouds. They also found a pair of grey track pants similar to those worn by the accused at Shiels and by the robber at Prouds.
The Adidas hooded top, the grey track pants, the white Everlast shoes and the Nike Airmax shoes, which the accused was wearing at his arrest, were all submitted for DNA analysis.
The apparent links between some of these items of circumstantial evidence and the accused is, on closer analysis, not as strong as it first appears.
The shoeprint
It is, of course, the prosecution case that the Everlast shoes link the accused to the robber. But there are problems with this evidence. First, the Everlast shoes are not the same size as those normally worn by the accused. The Nike shoes, the accused’s usual shoes, are one size bigger. Secondly, on every occasion on which the accused was photographed in the weeks preceding the robbery at Prouds, he was wearing the Nike Airmax shoes which he was wearing at the time of his arrest. He was wearing his Nike shoes at Class A Jewellers, at Shiels, and at the Elizabeth Police Station and Elizabeth Community Corrections Office when he attended at those places on 21 November 2018. Those shoes could not have left the impression on the counter at Prouds. Thirdly, while there were a number of contributors to DNA found on the inner heels and laces of those white Everlast shoes, the accused was not a contributor. In those circumstances, I am not prepared to use the Everlast shoe evidence at all.
The sock
At first glance, the coincidence of the accused being photographed while wearing socks identical to a sock worn on the robber’s left hand appears very telling. But there are problems with that evidence too. The arrest photograph[4] was taken on 7 November 2018, a little over a month before the robbery at Prouds. No matching socks were found at the Pooraka house. There is no evidence that the accused was in possession of such socks while living at his bail address and there is no evidence about where he had been living from the time he breached his bail other than that, from the beginning or middle of November up until the time of his arrest, he had stayed at Morley’s house once a week at least, sometimes sleeping in a bedroom and sometimes in the lounge. And, as I have mentioned, the accused said in the Arunta call that he was homeless and had been couch surfing. I do not know with whom he may have been living. I do not know what happened to the sock after the arrest photograph to which I have referred. Further, some evidence suggests that the accused may have been sharing clothes with others: the Adidas hoodie, the grey track pants and, indeed, the Nike shoes contained DNA profiles of five or more people. I am not prepared to rely on the evidence of the sock.
[4] Exhibit P4, photograph 1.
The track pants
There is also a difficulty with the track pants seized. The prosecution’s position is that those track pants, seized from the laundry at the Pooraka house, were the ones worn by the robber at Prouds. But it seems to me from an examination of the photograph in Exhibit P14 photograph 4 that the robber at Prouds was wearing pants that were too long for him and which may have been rolled up at the cuffs. I have compared the track pants in the photograph with the track pants seized.[5] The seized track pants bear the label size “M” and are not long in the leg. Given that the accused is about 173 centimetres tall the track pants seized from the Pooraka house would have been the right size for him and would not have needed to be turned up at the cuffs at all.
[5] Exhibit P57.
The accused’s hands
There is further difficulty in positively identifying the accused as the robber at Prouds. One of the witnesses there, Ms Nemeth, saw the accused’s uncovered right hand. Her evidence was that she did not remember seeing any tattoos. I saw the accused’s hands during the trial; the backs of both are heavily tattooed.
Modus operandi
Another difficulty is the modus operandi of the robber at Prouds. As I mentioned a little while ago, this was no “smash and grab”. It was an aggravated robbery, the accused being armed with a knife. The prosecution submitted that the change in modus operandi demonstrated an escalation in the accused’s desperation for money. In my respectful opinion, that submission entails some speculation.
The Arunta call
Nothing that the accused said during the course of the Arunta call was an unequivocal admission to his having committed any offence. He may simply have been talking about the number of offences with which he had been charged.
The prosecutor also submitted that those calls show that the accused had a motive to commit these offences: he was homeless and using a lot of drugs. But in my view, that must be the situation with many offenders.
Conclusion
At the time of the charged offences, it seems that the accused had been mixing with criminals. At Class A Jewellers, Cash Converters and Prouds, at least one other person was acting with the accused, namely, the drivers of the cars. And, although there is no reason for me to refer to it in detail, the Prouds getaway car had been in the possession of two other men earlier on the day of the robbery. Some of the people at the Pooraka house on the day of the arrest were known to police and at least one man connected with one of the getaway cars was wanted by police. Further, as I have already mentioned, the DNA evidence suggests that the accused may have been sharing some of his clothes. I am deeply suspicious about the accused’s involvement in the theft at Cash Converters and in the robbery at Prouds, but I am not satisfied beyond reasonable doubt that he was the thief and the robber who entered those premises.

I enter verdicts of not guilty on both counts.