R v Miller - [2008] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Appeal Against a Master's Decision)
R v MILLER
Criminal Trial by Judge Alone
[2008] SADC 86
Reasons for the Verdict of Her Honour Judge McIntyre
3 July 2008
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
One count of aggravated robbery contrary to s137(1) of the Criminal Law Consolidation Act - prosecution case wholly circumstantial - verdict, Not Guilty.
Criminal Law Consolidation Act 1935 s.137(1) , referred to.
Chamberlain & Anor v R (No 2) (1984) 153 CLR 521; Shepherd v R (1991) 170 CLR 573, considered.

R v MILLER
[2008] SADC 86
Introduction

The accused, Shane Ashley Miller, was charged on Information dated 26 September 2007 with two offences; Aggravated Robbery contrary to s.137(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’) and Criminal Trespass in a place of Residence contrary to s.170A of the CLCA. Throughout this verdict I refer to the accused as either ‘the accused’ or ‘Miller’ interchangeably.
The accused pleaded not guilty to the first count of aggravated robbery but guilty to criminal trespass in a place of residence.
The accused filed a rule 9 notice on 2 June 2008. This application was heard by me on 10 June 2008. By that notice the accused applied for an order excluding from the evidence to be adduced by the Director of Public Prosecutions (‘DPP’) the evidence of the witness Marciej Henneberg. The application further sought an order, in the event that Marciej Henneberg was permitted to give evidence, for the rules ordinarily applicable to the timing of an election for trial by judge alone to be dispensed with.
Professor Henneberg is a scientist with experience in the field of anthropological and comparative anatomy. There was no challenge to his expertise. The issue on the voir dire related primarily to the quality of the material upon which Professor Henneberg was asked to comment. The Professor examined CCTV footage of the robbery that is the subject of count 1 and compared it with footage of Miller taken at Yatala Labour Prison on 4 May 2008. He was asked to compare anatomical details of a person shown in the CCTV footage and the accused. After hearing from counsel, I took time to consider the matter and delivered a ruling on Wednesday 11 June 2008. I allowed the prosecution to lead evidence concerning similarities noting an undertaking by the DPP not to lead evidence concerning any opinion as to identity. I further excluded Professor Henneberg’s evidence concerning probability.
Following that ruling the accused, through his counsel, sought to pursue his application for an extension of the time limits applicable to the making of an election for trial by judge alone. There was no opposition from the Director of Public Prosecutions either to the making of the application or to a late election. Upon hearing from counsel for the accused I was satisfied that there was a proper basis upon which to waive compliance with the prescribed time limits. The evidence of Professor Henneberg was only available to the accused and his representatives in May 2008 and, given the ruling that I made concerning Professor Henneberg’s evidence, I further formed the view that it would be unjust not to grant the application.
Counsel for the accused filed in court a Juries Rule 10 certificate and an election both dated 11 June 2008. I was satisfied that the accused had been properly advised of his rights prior to making this election. Accordingly I ordered that the trial proceed by Judge alone.
The Charge
The accused was charged on Information with the following offence:
Statement of Offence
Aggravated Robbery (s.137(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Shane Ashley Miller on 29 day of December 2006 at Largs Bay, used or threatened to use force against Deborah May Gray and others in order to commit the theft of money in the sum of $8,000, and the force was used or the threat was made at the time of or immediately before the theft.
It is further alleged that Shane Ashley Miller used or threatened to use offensive weapons, namely an imitation firearm and a knife, when committing the offence.
It is further alleged that Shane Ashley Miller was in company with another person when committing the offence.
Legal considerations and general directions
The Court of Criminal Appeal in this state has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
1.     An accused person is presumed to be innocent of the charge unless                   and until guilt has been proven beyond reasonable doubt.
2.     The prosecution bears the burden of proving the charge beyond   reasonable doubt and this requirement extends to proof beyond   reasonable doubt of each and every element of the offence. 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.
3.     By way of amplification, it is not sufficient for the prosecution to           show suspicion of guilt or even to demonstrate that the accused is                  probably guilty. Only proof beyond reasonable doubt can give rise to                  conviction. It follows that if I am left with a reasonable doubt as to                   any element of the offence, then I must give the accused the benefit of          that doubt and find him not guilty.
4.     In this trial the prosecution case is wholly circumstantial. In such a                  case, before returning a verdict of guilty, the trier of fact must be               satisfied that the circumstances exclude any reasonable explanation                 consistent with innocence. In other words, I must be satisfied not only             that the accused’s guilt is a rational inference but also that it is the           only rational inference available in the circumstances before I could                  reach a verdict of guilty.
5.     In coming to my decision in this matter, I remind myself of the   standard direction given to juries in this state where a case is based            wholly on circumstantial evidence and, in particular, as to the proper           approach to be adopted when considering whether or not an ultimate                inference of guilt is to be drawn beyond reasonable doubt.
6.     I have reminded myself of the normal directions given in this state to               juries concerning the proper approach to assessing the various   witnesses who gave evidence, their credibility and reliability and the          proper approach to drawing inferences of fact. I specifically note that              in this case the accused elected to give evidence in this court. I   remind myself of the following matters. He was not bound to give                 evidence. He has gone into the witness box and he has taken the oath           like any other witness. He has exposed himself to the test of cross-                 examination. He could have remained silent leaving the prosecution                  to discharge its burden of proving the case. I should assess that   evidence and the weight to be attached to it in the manner in which I                 assess the evidence of all the other witnesses. I further note by   entering the witness box the accused does not assume any onus of               proof. The onus remains with the prosecution.
7.     Finally, I remind myself that it is not a question of preferring one            version over another. The sole task before me is to determine whether                   or not the prosecution has proved the elements of the charge beyond             reasonable doubt.   If I am unable to say where the truth lies in respect              of a charge, then it necessarily means that the prosecution has failed.
Elements of the offence
I turn now to the basic elements of the offence charged. The prosecution must prove each element beyond reasonable doubt.
Robbery
The elements of robbery, relevant to this case, are:
1.     That the accused committed a theft;
2.     That the accused used, or threatened to use, force in order to commit               the theft;
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 owners 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 is dishonest in terms of those standards.
In this matter the prosecution allege aggravated robbery. To succeed with this charge the Crown must prove beyond reasonable doubt the aggravating features alleged. There are two features of aggravation alleged. First, that the accused had an offensive weapon in his possession at the time of committing the basic offence, namely an imitation firearm and a knife. Second, that the accused was in company with another person in committing the offence.
Background
There is no dispute on the evidence that, at about 7.00 am on 29 December 2006, two men robbed Wee Willie’s Tavern at 565 Military Road, Largs Bay. One of the men was carrying a pistol and the other was carrying a knife.
Present at the time of the robbery were a number of customers and two tavern staff; the duty manager Ms Deborah Gray and the Boots barman Mr Wayne Morton. Both Ms Gray and a customer, Mr Nathan Knowles, gave evidence that the two men threatened to use force in order to commit the theft. In addition the CCTV recording of events show clearly that patrons were menaced with both a knife and a pistol. The men opened a gaming drawer in the pokies bar and removed the contents being a sum of money.
Mr Binns, the tavern manager, gave evidence that he did a full count at the Tavern following the theft and determined that the takings were short $7,222.[1] He confirmed that he did not consent to anyone taking money from the tavern.[2]
[1] Transcript p82
[2] Transcript p84
The elements of robbery are made out, as are the aggravating features. The issue is whether Miller was one of the two men.
It is alleged by the prosecution that Miller was the person described by the witnesses, and shown in the CCTV footage, as wearing a dark hoodie and black track pants. He is also alleged to be the person holding the pistol.
The accused was arrested on the day of the robbery following an incident at 90 Causeway Road Exeter and a pursuit involving surrounding premises. The incident at Causeway Road is the subject of count two on the information to which Miller has entered a plea of guilty. Evidence was called about this incident, as certain aspects of it were relevant to the Crown case on Count 1.
The prosecution case in summary
The Crown case is circumstantial. The Crown seeks to establish a combination of circumstances which it is said, lead to the ultimate inference of the accused’s guilt. The Crown submits that the combination of circumstances is capable of no rational conclusion other than the accused’s guilt.
The circumstances upon which the Crown relies are summarised as follows:
·The accused’s possession of a replica pistol shortly prior to his arrest. The replica pistol, it is said, was used in the robbery.
·The accused was, on arrest, wearing an individual and distinctive style of shoe reflected in the offender shown on the CCTV footage holding the firearm.
·The accused, on arrest, was in possession of money in denominations and an amount consistent with having been taken from the tavern.
·Distinctive articles of clothing comprising an Akademiks hoodie, Adidas hoodie, Adidas track pants and Rusty scarf consistent with clothing worn by the offenders were located in places to which the accused and/or his associates had access.
·The accused was driving a Holden Commodore sedan WAW-198 on the day of his arrest generally consistent in description with a Holden Commodore seen at (and likely connected with) the robbery.
·The accused was in possession of a balaclava (from which his DNA was not excluded) shortly prior to his arrest. Some witnesses observed the offender with the firearm wearing a balaclava.
·Calico bags of a type used by the tavern were located at premises the accused resorted to when escaping the police later that afternoon.
·The evidence of Professor Henneberg indicates that the accused exhibits a number of physical features also apparent in the offender brandishing the firearm in the CCTV footage.
Evidence relied upon by the prosecution
The prosecution adduced oral evidence from a number of civilian witnesses as follows:
·Employees of Wee Willie’s Tavern - Mr Andrew Binns, Ms Deborah Gray, Ms Roselyn Fergusson, Mr Wayne Morton and Mr Josip Rajan, gave evidence concerning the circumstances surrounding the robbery.
·A patron of the tavern, Mr Nathan Knowles, also gave evidence of his observations.
·A former employee of the tavern, Ms Samantha Kelso, gave evidence concerning observations outside the tavern at the time of the robbery.
·Two witnesses concerning events that happened at 90 Causeway Road, Exeter on the afternoon of the robbery - Ms Susan Dixon and Ms Kahlia Dixon.
·Ms Jean Pinkie concerning searches of her premises at Third Avenue, Wingfield and a Holden Commodore. Her son Russell Pinkie was called to give evidence concerning his ownership of a Holden Commodore.
·Two expert witnesses were called to give evidence. Dr Duncan Taylor concerning DNA testing of various items seized by the police and Professor Marciej Henneberg whose evidence I have referred to above in the context of the Rule 9 notice.
A large number of police officers were called. Officers Everitt and Lang gave evidence of investigations at the tavern following the robbery. Officers Girardi, Sodomka, George, Wylie, Mitchell, Goodwin, Miles, Thomas and Miller gave evidence concerning events that occurred on the afternoon of the robbery including police observation of a Holden Commodore left in Nile Street, Exeter; events at 90 Causeway Road, Exeter; a police pursuit of the accused following his departure from 90 Causeway Road and his arrest some hours later at 182 Semaphore Road.
Evidence was called from Brevet Sgt Heath, from the Forensic Response Section, concerning his examinations of certain items and his comparison of shoes worn by Miller at the time of his arrest and those worn by the offender in the dark hoodie visible on the CCTV footage.
Brevet Sgt. Peter Lawrence, a member of the Forensic Services Branch Ballistics & Armoury Section, gave evidence concerning his examination of a replica pistol found in possession of the accused at the time of his arrest and of a magazine for a replica pistol located at the tavern.
Sgt. Nicholas Maiden, also a member of the Ballistics & Armoury Section, gave evidence of his examination of the replica pistol and magazine together with his viewing of CCTV footage from the tavern and his views as to a comparison of the two.
Finally, evidence was called from Detective Shaun Osborn who, at the time of these events, was attached to Operation Counteract and his senior officer Detective Brevet Sgt. Brain. These officers were the investigating officers for the robbery at the Tavern and gave evidence concerning their investigations.
Miller gave evidence and also called his girlfriend, Renee Allen, to give evidence of the events in the days leading up to his arrest.
In consequence of Miller’s evidence the prosecution sought leave to call a further witness. Leave was granted and the prosecution called Adam John Wiwatowski, an assistant manager at the West Thebarton Hotel.
In addition to the oral evidence, prosecution and defence tendered a large number of exhibits.
Prosecution Exhibits
P1     Photographs of Robbery;
         P2     Curriculum Vitae of Professor Henneberg;
         P3     WWT2-CCTV Video of Robbery;
         P4     CD Rom;
         P5     Comparison Video of Accused;
         P6     Photographs of Tavern;
         P7     Map of Tavern Area;
         P8     Westpac calico bag;
         P9     ANZ calico bag;
         P10   Plan of Tavern;
         P11   Photographs of Exhibits;
         P12   Map of Exeter;
         P13   Booklet of Photographs of Exeter property;
         P14   Black balaclava;
         P15   Adidas Windcheater;
         P16   Brown scarf;
         P17   Replica pistol;
         P18   CCTV-CD;
         P19   Nike Shoes;
         P20   Comparison chart relating to shoes;
         P21   Bundle of 5 frames – CCTV;
         P22   Pistol magazine;
         P23   Akademics Hoodie;
         P24   Adidas track pants (black);
         P25   Watch;
         P26   Waist bag;
         P27   Puma track pants (blue);
         P28   Transcript of voir dire evidence of Professor Henneberg;
         P29   Nike Airmax Tailwind brochure 2008;
         P30   Book of payment vouchers – no. 21594;
         P31   Book of payment vouchers – no. 21601;
         P32   Original gaming voucher no 21594.
Defendant exhibits
D1    Copy of handwritten plan of 90 Causeway Road;
         D2    Photocopy of offender profile of Lindsay Goldsmith;
         D3    Photocopy of offender profile of Leonard Kobe aka Pinkie;
         D4    Photocopy of offender profile of Albert Morrison;
         D5    Copy of Gaming Voucher no 21594 of Thebarton Hotel;
         D6    Copy of Centrelink Health Care Card in the accused’s name;
         D7    Grey shirt.
Examination of Prosecution evidence
The Crown case is circumstantial. The Crown submits that it does not have to prove each individual item of circumstantial evidence beyond reasonable doubt relying on the High Court decision of Shepherd v R[3].
[3] (1991) 170 CLR 573
Mr Tonkin, for the accused, invited me to consider the decision of Chamberlain & Anor v R (No 2)[4] and in particular pp534 – 539. It was submitted that the thrust of the decision was that the Crown must prove beyond reasonable doubt the existence of the evidence relied upon for circumstantial evidence before any inference can be drawn in relation to those facts. Having considered both Shepherd and Chamberlain I accept the Crown’s position that it does not have to prove each individual item of circumstantial evidence beyond reasonable doubt. I note the following passage from the decision of Dawson J in Shepherd at p581 commenting upon the decision in Chamberlain:
…It is, I think, quite plain that, in saying that a “fact as a basis for an inference of guilt” must be proved beyond reasonable doubt, their Honours are referring to an intermediate fact which is a necessary basis for the ultimate inference. They must be doing so, for it is otherwise not possible to say, as they do previously, that the jury can draw an inference of guilt from a combination of facts, none of which viewed alone would support the inference. And, of course, it is quite correct to say that an intermediate fact which is an indispensable step upon the way to an inference of guilt, whether it be a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence, must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis. To take the same example I gave previously, the presence of the accused when the crime was committed is in many cases an intermediate fact which is essential before an ultimate inference of guilt can be drawn. Often it may be unnecessary to identify it as an intermediate fact, but if it is necessary to do so then it is clearly correct to say that it must be proved beyond reasonable doubt before an inference of guilt can be drawn consistently with the criminal standard of proof.
[4] (1984) 153 CLR 521

This is precisely the position in this case. The Crown must prove that the accused was present at Wee Willie’s Tavern beyond reasonable doubt before an inference of guilt can be drawn. The Crown does not however have to prove each individual item of circumstantial evidence beyond reasonable doubt in order for that intermediate fact to be established. Each circumstance cannot be viewed in isolation but must rather be looked at in combination with each other circumstance.
I will deal first with the evidence of each of the circumstances relied upon by the Crown as summarised above.
Firearm
Three witnesses from the tavern gave evidence concerning the use of a firearm in the commission of the robbery. Deborah Gray did not see a firearm. She was threatened by the co-offender using a knife. She then moved into the office and closed the door. She did however notice the presence of a portion of a firearm following the incident. She raised the alarm and then locked the doors of the hotel. On returning to the Pokies bar she noticed a black item on the bar floor. She described the item and identified it in photograph 8, 9, 11 and 12 of exhibit P6.[5]
[5] Transcript p117-118
Nathan Knowles, a patron, described the offender said to be the accused as holding a gun and described this gun as a square shaped black/greyish pistol. He said that it was not like a police gun it was a “squarish kind of one”.[6]
[6] Transcript p168
Mr Josip Rajan, the tavern manager, was not present in the tavern at the time of the robbery. He lived next door and was alerted to the fact of the robbery by Mr Morton. As he was attempting to telephone the police Mr Morton told him that the offenders were running past his house. Mr Rajan gave chase down Military Road towards Kybunga Street in a generally north direction. The co-offender was further ahead than the offender said to be the accused. Mr Rajan described how, as he got closer to the person in the dark hoodie, that person turned around, pulled up his shirt, drew out a pistol and said, “what are you going to do”. Mr Rajan described the pistol as being black and indicated that he was familiar with the difference between a revolver and an automatic style pistol. He said it was an automatic.[7] Mr Rajan also gave evidence of returning to the tavern after the chase and seeing the magazine on the floor of the pokies bar. He also identified the magazine in the photographs.[8]
[7] Transcript p155
[8] Transcript p159
The police officers who attended the tavern after the robbery gave evidence of their observations. Officer Everitt took the photographs that are exhibit P6 including those of the magazine. He also collected the CCTV footage from the tavern on a CD. The CD was tendered in evidence as exhibit P4. Officer Laing collected the magazine from the floor of the bar. He sent the magazine for fingerprinting. No suitable fingerprints were located on the magazine[9].
[9] Transcript p369
Miller was arrested on the afternoon of 29 December 2006 following an incident at 90 Causeway Road, Exeter. Officer Mitchell gave evidence that he was part of a police cordon around the house property at 90 Causeway Road when he saw Miller jump out of a window onto the fence of a neighbouring property. Officer Mitchell grappled with the accused and they both fell to the ground in the neighbouring property. There was a short struggle during which Officer Mitchell observed the outline of a black semi-automatic pistol. He then backed off from the accused and drew his firearm from his holster. The accused ran off in a westerly direction whereupon Officer Mitchell demanded that he drop the firearm. Miller threw the firearm into the air and continued to run. Officer Mitchell continued his pursuit until he was forced to cease that chase whereupon he returned to collect the firearm. He noted that the magazine was missing and undertook a search of the rear yard of 91 Causeway Road, particularly paying attention to the route that the accused had travelled. He did not locate a magazine.[10] When he located the firearm the hammer was in a pulled back position, he could not move the hammer up. He checked the slide if there was a round left in the barrel of the firearm. He could not find one.
[10] Transcript p356
Officer Cram received the firearm from Constable Mitchell. He also attempted to ascertain if there was a round in the chamber ready to be discharged. He had difficulty because the chamber would not open up. He and Constable Mitchell searched the rear yard of 91 Causeway Road to search for the magazine. This took about 10 – 15 minutes. They did not locate the magazine.
There was forensic evidence concerning the firearm. Brevet Sgt. Heath swabbed the firearm located on the accused for DNA analysis. Dr Taylor gave evidence about the results of that analysis. He located three types of DNA on the pistol. The DNA was that of the accused and at least two unknown people.
Brevet Sgt. Lawrence, who has extensive experience in examining firearms and armoury, gave evidence concerning his examination of both the firearm in Miller’s possession and the magazine found at the tavern. He described the firearm as a full size metallic replica of a Colt model 1911 semi-automatic pistol. He said that it would be difficult for the untrained eye to detect the difference between the replica and a real colt pistol. The replica was a common design and style. The replica has some of the functionality of a firearm without being able to discharge live ammunition. The slide would operate as with a normal firearm. The trigger and hammer were operational. The grip safety would operate normally and the magazine release would normally retain the magazine in place. There was a modification to this firearm as the slide stop or takedown lever was missing and had been replaced by a piece of silver coloured wire that ran parallel along both sides of the firearm for a length of about 30 mm.
Sgt. Lawrence also undertook an examination of the magazine, which was of a type to suit the replica pistol located on the accused. It was made from cast metal aluminium painted black and was quite different from a genuine magazine for a full size weapon.
The magazine was kept in place within the pistol grip by means of a spring-loaded catch operated by a button on the left hand side of the grip. When Sgt. Lawrence first received it the magazine would not engage the retaining clip and stay locked into the base of the replica firearm located on the accused. It would sit in place by friction and could easily be dislodged with a bump or by pulling it. After his examination the problem appeared to correct itself in that the magazine properly engaged the catch and properly released. In demonstrating the pistol to counsel however the fault reoccurred. Sgt. Lawrence considered that there was an intermittent fault with the magazine clip[11].
[11] Transcript p284
Brevet Sgt. Nicholas Maiden gave evidence concerning his comparison of the replica pistol with footage from the closed circuit TV at the tavern. He also noted the modification to the replica pistol being the piece of wire inserted through the slide stop and takedown area. This was a non-standard component. It was silver. The appropriate component would be the same blue or black colour as the pistol itself. His observation of the video and in particular various frames of the video reproduced in exhibit P1 as photographs 10 and 11 show a small shiny item in a horizontal position on the right hand side of the pistol just above the trigger guard. That was a unique feature that in his opinion could be the silver coloured section of wire inserted through the slide and takedown lever on the replica pistol located on the accused.[12]
[12] Transcript p296 - 298
Sgt. Maiden agreed that Sgt Heath had undertaken a similar examination or comparison of the replica pistol and the images from the surveillance disc but that he had an inconclusive result. Asked if this meant they had reached different conclusions, Sgt. Maiden said that it depends how the word “inconclusive” was defined. If it was that the pistol on the CCTV footage was similar to the exhibit but cannot be identified or excluded as the actual pistol then both had the same finding.
Shoes
The accused was arrested wearing a pair of Nike shoes. These were tendered as exhibit P19. Brevet Sgt. Heath made a comparison between these shoes and the shoes worn by the person in the CCTV footage said to be the accused. He produced a comparison chart, which is exhibit P20. His evidence was that he examined the CCTV footage that showed a heel structure with some distinctive shapes. The CCTV footage suggested that the shapes may be circular or cylindrical. He thought there was a general similarity in the overall shape and heel structure of the accused’s shoes and the shoes on the CCTV footage and that they were capable of being the shoe depicted in the security footage; however, another shoe with similar features could not be excluded.[13] He conceded that the images were somewhat hazy and pixilated.[14] He did not make any enquiries to determine how common or otherwise the heel structure was in the market.[15] There was some discussion about whether the video showed a lengthy tongue on the shoes worn by the offender. There is no corresponding lengthy tongue on Miller’s shoes. There was also some discussion about the respective dimensions of the shoes. Likewise there was examination and cross-examination concerning different colouration on the shoe uppers. Mr Heath said it was possible that there was a depiction of what appeared to be a solid band of colour on the shoe. If that was the case then it was potentially inconsistent with the shoes taken from Mr Miller.[16]
[13] Transcript p249
[14] Transcript p243
[15] Transcript p253
[16] Transcript p253
Money
At the time of his arrest the accused was in possession of the sum of $510. This money was broken down as follows:
16 x $20 notes 18 x $10 notes 2 x $5 notes.[17]
[17] Evidence of Detective Osborne, Transcript p476-477
The money was located in the front pocket of his jeans, it was folded and in one bunch. The money is depicted in photographs 3,4 and 5 of exhibit P11.
It is the Crown case that the money came from the robbery. The sum of $7,222 was stolen from Wee Willie’s Tavern.[18]
[18] Evidence of Mr Binns, Transcript p82
Ms Gray gave evidence that the pokies float, which was in the drawer emptied during the robbery, was between $6,000 - $8,000. The denominations used were 50’s, 20’s, 10’s and 5’s.[19] She said that usually when she sets a float up there would be between $1,500 and $2,000 in $50 notes and the rest would be made up mainly of $20’s and $10’s. Exhibit P6 photographs 9 and 10 show $20 and $5 notes on the floor of the pokies bar.
[19] Transcript p99
Clothing
The clothing of the two offenders was described by a number of the witnesses present at Wee Willie’s Tavern including Mr Knowles, Ms Gray, Ms Fergusson, Mr Morton and Mr Rajan. In addition I have viewed the CCTV footage.
It is plain from the evidence that the co-offender was wearing an Adidas windcheater of light colour. It is also possible that he wore a scarf. None of the eyewitnesses gave evidence of a scarf. I was referred to an object that might be a scarf in the CCTV footage and the photographs taken from that footage that form exhibit P1.
The offender said to be the accused was wearing a darker coloured windcheater according to the various witnesses. This windcheater has a distinctive logo and a dual colour pattern.
The description of the appearance of the offenders by each of the witnesses is as follows:
Deborah Gray
The man pulling out the gaming room drawer had a dark blue coloured hoodie[20]. In Court she was unable to say anything about the ethnic background or race of that person. When she was interviewed by the police officer shortly after the robbery she said she thought he was aboriginal and that he was dark skinned because she could see the side of his face. She could not recall what he was wearing on his face or whether he was clean-shaven.[21] She described the second man as wearing a grey or light coloured top. She saw the side of his face and says he was clean-shaven and wore nothing on his face.
[20] Transcript p107
[21] Transcript p118-119
Roselyn Fergusson
Ms Fergusson was an employee of the tavern but saw the events from her home, which was next door to the tavern. She saw two men exiting the tavern running across the car park and then towards Military Road. Both had windcheaters with hoods on. She said one windcheater was dark but she couldn’t say what colour. She was unable to see the face of either of them.[22] She thought both were about 5ft 9.[23]
[22] Transcript p123
[23] Transcript p126
Wayne Morton
Mr Morton described one man as wearing a brown or light brown/fawn khaki jacket with a hood on it and the other as having a dark or black jacket with a hood which had a couple of stripes on it. He thought the men were thin. The taller one was on the 6ft mark and the one with the dark jacket was probably about 5ft 6 or 7. He thought both were either wearing a balaclava or the hood of their jacket pulled down and the jumper pulled up. He only saw their eyes. He thought both looked aboriginal.[24]
[24] Transcript p137
Josip Rajan
Mr Rajan described one person as wearing a black top, black pants and a balaclava. The black top was a track suit zip-up top. He said the balaclava fully covered over the head with big eye sockets. He saw dark skin around the eyes and thought the person was probably aboriginal.[25] The other one was wearing a grey top with an Adidas logo.[26] He could not remember whether the hood of the person in the dark jacket was over his head. He couldn’t tell whether there were any markings on the balaclava.[27]
[25] Transcript p153-154
[26] Transcript p155
[27] Transcript p160
Nathan Knowles
Mr Knowles described one of the offenders as wearing a black parachute jacket with silver squiggly bit on the back of it and the other was wearing a cream parachute jacket. Both had hoods. Both hoods were up. Both men wore balaclavas. He described one of the men as being a bit smaller than him about 5ft 8-9 and the other about 6ft 1-2. He thought both had black skin.[28] He heard the person with the gun speak in what he described as an aboriginal accent.[29] He thought that this man’s balaclava had white stitching around the eyes.
[28] Transcript p166-167
[29] Transcript p169
Five items of clothing have been tendered in evidence:
1.     Exhibit P15 - an Adidas windcheater.
2.     Exhibit P16 - a brown Rusty scarf.
3.     Exhibit P23 - an Akademics windcheater.
4.     Exhibit P24 - black Adidas track pants.
5.     Exhibit P27 – Blue Puma track pants.
The black Adidas track pants; blue Puma track pants; Adidas windcheater and brown scarf were located at Third Avenue, Wingfield the home of Mrs Jean Pinkie. The Akademics windcheater was located at Ted Campbell’s house.
Ms Pinkie gave evidence that she knows Miller. He is the cousin of her son Leonard Pinkie. She also knew Ted Campbell. All three boys grew up knowing each other. She was asked:
QShane and Ted and your son Leonard, at about that time – that is, December 2006, January 2007 – did you see all of those lads at your house on a regular basis at that time.
AI can’t say three together, not that I very rarely take much notice, but I know Ted has been calling for Leonard. Yeah, I’d say they were – but not necessarily at the same time, but in and out.[30]
[30] Transcript 227
The Adidas windcheater and the brown scarf were examined for DNA purposes. Insufficient DNA was obtained from these items to reach any conclusions according to the evidence of Dr Taylor.[31] The blue Puma track pants revealed DNA profiles of a number of individuals of whom a major component was Lindsay Goldsmith. The Akademics windcheater and the black Adidas track pants were not examined for DNA purposes.
[31] Transcript p424-5
The Commodore
It is uncontentious that shortly prior to his arrest the accused was driving a dark blue VR Holden Commodore bearing the registration no. WAW-198. Russell Pinkie was the registered owner of this vehicle.
Mr Pinkie gave evidence that he bought this vehicle in early December 2006 and sold it a couple of days before Christmas 2006.[32] He was not able to say whether his brother Lenny Pinkie had possession of the Commodore on 29 December 2006.[33] He described the differences between his Commodore, which was a 1993, or 1994 Commodore to those produced from the year 2000 onwards. He said the car is bigger and the back is more rounded. The front lights are bigger and rounder and the tail light assembly isn’t as wide. His Commodore had mag wheels with 6 spokes and a chrome strip that ran along the doors. These strips were factory standard.
[32] Transcript p257
[33] Transcript p259
Ms Jean Pinkie said that she never saw her son Leonard Pinkie with a dark blue Commodore. She also said that Russell Pinkie had never owned such a vehicle. She did not recall seeing a dark blue Commodore in her driveway. She did not recall whether she was at home on 29^th December 2006[34]
[34] Transcript p,232
Ms Samantha Kelso used to work at Wee Willie’s Tavern. She was driving along Military Road to her new place of work on the morning of the robbery. She thought this was around 7.00 am. She saw Mr Morton outside rolling kegs. She turned into Cheapside Street - the next street south of the tavern. As she did so she saw a car parked in Cheapside Street right on the corner with Military Road. Its proximity to Military Road attracted her attention as it made negotiating the corner difficult. She described it as follows[35]
[35] Transcript p143
AIt was a Holden Commodore.
QWhat colour.
AIt was a black, dark sort of colour.
QIn terms of the model, how modern or recent or old, or what.
AIt wasn’t an old one, but it wasn’t like the brand new model. It was sort of one in between.
QI’m not asking you VNs or VKs or whatever. In terms of vintage, last century or this century.
AThis century. A newish one.
QAnything beyond that. 2000 and what, if you know.
ANo.
She noted that she thought there were three people in the car, two in front and one in the back. They were aboriginal males. She was asked what they were wearing her evidence was as follows:[36]
[36] Transcript p144
AYes. The driver was wearing sort of like a tracksuit or parachute sort of top.
QWhat colour, if you recall.
AIt was darkish, but it was another colour as well.
QSo dark in predominance.
AYes.
QBut one other colour as well.
AYes.
QThat other colour, in contrast, or the same sort of colour, or what.
ALighter.
QDo you recall how the light colour was distributed within the dark colour.
ANo, sorry.
QAnything that you recall in terms of the other persons within the car, in terms of what they were wearing.
ANo.
When Ms Kelso was describing the vehicle to the police shortly after the robbery she described it as “blackish coloured, newish Holden Commodore”.
She did not notice whether it had any chrome strips on the side and did not notice anything about the wheels. In terms of the occupants of the vehicle she was unable to say whether the tracksuit top had a hood on it. She was unable to describe the vehicle or the occupants further. She said the vehicle was gone when she returned to the same location some twenty minutes later.[37]
[37] Transcript p144
Balaclava
I have already set out the evidence of the witnesses at the tavern concerning the issue of the balaclava. The witnesses Knowles and Rajan said the offender in the dark hoodie was wearing a balaclava. Morton was less certain about the balaclava but indicated that his face was covered in some manner.[38]
[38] Knowles Transcript p167, Morton Transcript p137, Rajan Transcript p153

A balaclava was located at 90 Causeway Road following Miller’s arrest hidden behind a sofa in the lounge room. Mrs Susan Dixon indicated that the balaclava did not belong in her house. It was not hers, nor did it belong to anyone in the house as far as she was aware.[39]
[39] Transcript p214-215
The balaclava was tendered as exhibit P14.
Dr Taylor gave evidence that the inner surface of the balaclava was examined for biological material. It was searched for hairs that were suitable for DNA analysis and also a tape lift was used to sample the complete inner surface of the balaclava. No DNA profile was obtained from the analysis of the hair located but the tape lift provided a mixed DNA profile from at least 4 contributors. When this profile was compared with the reference sample from Mr Miller, Mr Miller could not be excluded from the mixture but a statistical rating could not be calculated.[40] Dr Taylor said that the DNA profile was from so many contributors and were so complex it was not suitable for upload to the DNA database. He could not compare it to anyone’s reference DNA profile unless he received their DNA profile. He agreed that if Mr Miller had used the balaclava to wipe some sweat off his face that could be an explanation for his partial profile being found on the balaclava. He further indicated that it was not possible to determine when the DNA was deposited or in what order.[41]
[40] Transcript p423
[41] Transcript p428
Calico Bags
Ms Susan Dixon said that just after New Year’s Day 2007 she was folding her washing at 90 Causeway Road when she came across two calico bags. One was a Westpac Bag tendered as exhibit P8 and the second was an ANZ calico bag tendered as exhibit P9. She rang the police to collect them because they were not hers.
Ms Dixon did not know whether they had been in the washing machine. It is possible that she washed them.[42] She said that the people who visited her house between 29 December 2006 and 2 January 2007 were her daughter Kahlia Dixon, her youngest son Kyran, her son Daniel and his partner Natasha Mundy, her daughter Kahlia’s baby and Peter Miller who is Kahlia’s partner and the accused’s cousin.
[42] Transcript p216-218
The police conducted a search of the Causeway Road premises on 29 December 2008. Officer Cram focussed on the lounge, front door area and kitchen.[43] He may have poked his head in the laundry but did not search it.[44] Officer Thomas said it was a cursory search and there was no formal search with an exhibit log.[45] Officer Miller said there was no formal search. He only went to the areas pointed out by the occupants, specifically the lounge, kitchen and rear bedroom.[46] Officer Goodwin attended and drew a plan and took photographs of relevant areas. He did not take any photographs of the laundry.[47]
[43] Transcript p439
[44] Transcript p420
[45] Transcript p454
[46] Transcript p464
[47] Transcript p391
Ms Gray gave evidence that the tavern obtained dollar coins for use in the pokie machines in calico bags. She said there were a number of calico bags stored at the Tavern. Some were stored in the gaming room bar area and some would be kept out the back. She described the fact that calico bags were thrown at the back of a corner cupboard directly under the counting machine. She gave evidence as follows:[48]
[48] Transcript p102
QLooking at Exhibit P1, and photo No. 4 in that sequence, do you recognise that as a photo taken from the security camera which is trained on the pokies drawer where you had the float that you’ve described.
AYes.
QWhere, in reference to that photo perhaps, did you store the calico bags.
ADirectly under the drawer there is a set of scales with a silver bowl on top, then there is the gaming room drawer, then underneath you can see the cupboard.
QYes.
AWell, in there.
QIn that photo are you able to discern any calico bags or not.
AI couldn’t be 100% sure.
Ms Gray examined exhibit P8 and agreed that this was the type of calico bag that she had referred to.[49] She looked at exhibit P9 an ANZ calico bag and indicated that she recognised that style of bag, she gave evidence as follows:[50]
QWhat do you recognise that style as.
ABecause it’s smaller from the hotel’s point of view we wouldn’t have put a thousand dollars of coins in there but it could have been possibly been used where we put the social club chequebook and money, or where we had gone to the bank and got rubber bands or quite often they would load the smaller bags up with plastic bags.
QDid you have smaller bags of that description in addition to the larger style at Wee Willie’s.
AWe would have, yes.
[49] Transcript p103
[50] Transcript p104
Mr Binns also gave evidence that the tavern obtained calico bags full of coins. He identified exhibit P8 the Westpac calico bag as the style of bag that the tavern obtained. In relation to exhibit P9, the ANZ calico bag, his evidence was:[51]
QLooking at this bag in addition –
AThat bag is probably a little bit smaller than the ones we normally use. That is all I can say about that one. It would hold a thousand $1 coins, but it would be not a size we generally put coins in.
QDo you sometimes have bags of that size there.
AWe have many sorts of bags there. We could have had a bag there that size, yes.
[51] Transcript p81
In cross-examination Mr Binns agreed that he told Detective Brain that the ANZ bag seemed smaller than usual. He went through the exercise of trying to see whether there were any similar bags at the tavern on 16 March 2007. He was able to show Detective Brain a bag similar to the Westpac bag but not the ANZ bag.[52] Mr Binns also gave evidence that calico bags were kept under the coin-dispensing machine. He gave evidence concerning calico bags in that location with reference to exhibit P1 as follows:[53]
[52] Transcript p89-90
[53] Transcript p92
QIn photograph No. 4 are you able to see any calico bags.
AWell, I can. There is calico bags on the ground there.
QWhen you say ‘on the ground’ are they actually on what appears to be the base of that –
AOn the base.
Q– of that area that you described as the shelved area without the shelf.
AYes, that’s where we left the empty bags.
QYou are not actually able to say whether any bags were taken from that area though.
ANo, I didn’t have a count of empty bags.
Later in evidence he said:[54]
[54] Transcript p93-94
QYou describe them as what appear to be calico bags under some sort of lunch box or box sitting there.
AYes, I’m not sure what that is.
QWhat you are referring to is the white object underneath that box; is that right.
AYes.
QIf you go to photo 17, that’s showing the same area of the pokies bar, isn’t it.
AYes.
QObviously later in time because the drawer has been pulled out at that time.
AYes.
QUnderneath that drawer can you see what appears to be that lunch box or that box of some description appears to have been removed.
AYes, it does.
QWhat you thought were calico bags, do they still appear to be there.
AThey don’t appear to be there, no.
Mr Rajan said that the tavern had about 50 calico bags. He said that they were all kept below the pokie drawer. He demonstrated this with reference to exhibit P1 photograph 9. This is the same location as that identified by Mr Binns and Ms Gray. He recognised exhibit P8 the Westpac calico bag as the type of bag that was kept at the tavern. He did not however recognise exhibit P9 as the style of bag present at the tavern.[55] He was unable to say whether any calico bags were taken from the tavern that morning.[56]
[55] Transcript p157-158
[56] Transcript p162
Professor Henneberg
As indicated previously Professor Henneberg is a scientist with experience of anthropological and comparative anatomy. He examined CCTV footage of the robbery and compared it with footage of Mr Miller taken at Yatala Labour Prison on 4 May 2008.
He explained the methodology that he adopted. He studied the CCTV footage and the photographs taken from that footage in order to form a general description of the anatomical character of the person of interest. He then made a comparison of that information with some footage of Mr Miller. He viewed the footage of the robbery first to avoid a phenomenon of displacement which he described as follows:[57]
…In other words if I was shown, as they are good quality detailed images of a particular person, let’s say from prison, and only then was studying more blurry, so less clear images from the CCTV, I would be in my mind adding what I have already learnt from better quality, which is what I can see on the poorer quality, a phenomenon of displacement. So therefore in my work I first inspect evidence from the place of alleged crime, form already a description of a person of interest, anatomical description, as much as I can from images, depending on the quality.
[57] Transcript p19
He described the quality in this matter as[58]
not high, they are grainy, there is also a degree of lens distortion when one observes straight lateral lines are that possibly straight in a building.
[58] Transcript p16
He then described the anatomical characteristics of the person in the CCTV footage. The general body shape was ectomorphic with a shoulder width similar to the hips.[59] The shoulders were not sloped, held rather high.[60] The offender was right handed.[61] The offender had dark skin.[62] He further described the person as having a nasal profile in which the root of the nose was sitting deep down towards the face. He said this was a feature of less than one-third of the population but he could not recall the exact number. He based this on a study of a sample of 175 faces.[63] The effect of a balaclava on this observation was discussed as follows:[64]
QI would like you to consider one hypothesis, that is that the person in the black jacket or dark jacket wearing the hood may have been described as wearing a balaclava; does that affect your opinion at all.
ANo. I have studied several cases where a balaclava was worn and why it doesn’t affect my opinion is that – obviously depending on the exact type of balaclava but most balaclavas are made of elastic knitted fabric that therefore adheres to the surface of the body so it adheres to the skin, and things like head shape or the shape of the face profile can be seen through the fabric. The only possible distortion, depending on the strength of the balaclava material, will be a bit of a flattening of the nose.
[59] Transcript p23
[60] Transcript p26-29
[61] Transcript p29
[62] Transcript p30
[63] Transcript p31
[64] Transcript p32
He described the accused, from the Yatala footage, as ectomorphic in body shape[65] with a deep-seated nose.[66] He said he was right handed.[67] He described Mr Miller as having high shoulders that did not slope[68] but agreed that Mr Miller as he sat in the dock in court did not have sloping shoulders. He said that postures differ depending on the actions of a person.[69]
[65] Transcript p34
[66] Transcript p35
[67] Transcript p36
[68] Transcript p35-37
[69] Transcript p40-41
Professor Henneberg indicated that he could not tell the weight or the height of a person from CCTV tape.[70] There were three types of body shape. He was unable to say what proportion of the male population in South Australia would have an ectomorphic body profile as studies were still be conducted.[71] He commented that the Australian Bureau of Statistics figures of the adult population of Australia showed increasing levels of obesity which is the opposite of ectomorphic. His evidence concerning the numbers of people with sloping shoulders related principally to women and he could not give evidence about the number of males with sloping shoulders.[72]
[70] Transcript p47-48
[71] Transcript p41
[72] Transcript p42-43
General comment on Crown Evidence
I accept that all of the witnesses gave their evidence honestly and did their best to recall and accurately describe the things that they saw and heard. There were some minor inconsistencies in the evidence of the eyewitnesses that are understandable in the circumstances. The only Crown witness about whose evidence I have reservations is Kahlia Dixon.
Kahlia gave evidence that another male intruder was present at 90 Causeway Road at the time Miller broke in. There is no other evidence that this was the case. None of the other occupants saw this man. The police cordoned off the area shortly after Miller entered the property. The police did not observe another male in the property. Ms Dixon’s description was also at odds with the description she gave to the police shortly after the incident. It is difficult to see that she could have been mistaken about this rather it appears she fabricated the evidence for reasons that are not immediately apparent. I find that Miller was the only intruder at 90 Causeway Road on 29 December 2006.
There is also a dispute on the evidence between Miller’s account of what occurred at 90 Causeway Road and Kahlia Dixon’s. He says she attempted to assist him. She denies this. He says she gave him drinks from the fridge. She and other witnesses say he helped himself. She admits a phone call to Ms Allen but denies that she indicated in that call that she attempted to help Miller. It is difficult to know what to make of this evidence. I am not required to make a finding in order to determine this matter.
Examination of Evidence called by the Defence
Mr Miller gave evidence concerning his activities prior to his arrest. He denied having anything to do with the robbery at Wee Willie’s Tavern.
He did not have a permanent address in December 2006 as there was a warrant out for his arrest. He said he was moving around, staying at various locations. He agreed that when he was arrested on the afternoon of 29 December 2006 he had $510 in the pocket of his jeans.
He initially said that on 28 December 2006 he had won $920 at the pokies at the West Thebarton Hotel. His evidence was as follows:[73]
QDo you recall who you were with, if anyone, when you won that money.
AYes. I was with my partner Renee Allen, my sister Emily Drover and her partner Jodie Colby.
QCan you remember at what time on 28 December you won the money.
AIt was sometime in the morning, early hours.
[73] Transcript p511-512
He produced a payment voucher exhibit D5 for the sum of $920 and indicated that he had signed his name in an area where it said ‘Player’s name’ and a further area where it said ‘Player’s signature’. He didn’t print his name because he didn’t want his name to be shown.[74] His health care card with an expiry date of 23 November 2006 demonstrating his signature was tendered as exhibit D6.
[74] Transcript p512
In cross examination however Miller indicated that he won the $920 in the early hours of 29 December 2006 the same day the incident with police occurred at Semaphore.[75] The balance of his version of events at the hotel remained the same.
[75] Transcript p537
The discrepancy with the dates also lead to some inconsistency in Miller’s account of what occurred following the pokies win.
In examination in chief he said that after he left the hotel he said he was taken back to Lenny Pinkie’s house at Third Avenue, Wingfield in his sister’s car.[76] His sister, her partner and Renee left immediately. He stayed for some time at Lenny Pinkie’s house in the shed with a number of others but left before the sun came up in a blue Holden VR Commodore which he said was owned by Lenny Pinkie.[77] He went to Mansfield Park to buy drugs and spent about $300 - $400 before returning to Third Avenue. He consumed drugs and then left later the same day, sometime after 11, it could be 12 or 1 taking the VR Commodore.[78]
[76] Transcript p514
[77] Transcript p516
[78] Transcript p517
In cross examination he said that he arrived at Third Avenue at about 5 am and left before daybreak to get drugs.[79] It took about 5-10 minutes to drive to the drug dealer’s house.[80] He bought drugs and stayed there about 20 minutes before returning to Wingfield in the dark.[81]
[79] Transcript p554
[80] Transcript p555
[81] Transcript p558
Before he left on the second occasion, Lindsay Goldsmith and another man came at about 10.00 am. Lindsay Goldsmith asked if he wanted a gun. He identified exhibit P17 the replica pistol as the gun he was given. He had the gun in a bum bag also given to him by Lindsay Goldsmith, which he identified as exhibit P26.
He was planning to drop the rest of the money from his winnings off to his partner Renee when he saw a police car. He thought it was following him and he took off because he had a warrant. He had no awareness of the time he says he was feeling pretty reckless and that he was under the influence of the drugs he had taken being Ice amphetamine.[82] He realised that the police were looking for his car and he drove to Nile Street at Exeter where he left the car and he headed to Susan Dixon’s house.
[82] Transcript p520.
He had not been inside the house before but he knew the house as he had conversations with Peter Miller, his cousin, outside the house. He entered the house through the back window.[83] He was not sure why he went in the house. He was erratic. When he got into the house he spoke to Kahlia Dixon. He asked her to help him. She said to him to go to the car. He asked Kahlia for a drink, she went to the fridge and got him a drink of coke.[84] As they approached the front door Kahlia said there is police out the front and walked into the bathroom and told him to climb in the manhole. He refused to do so as he thought the police would look there. Kahlia then suggested that she hide him in a wardrobe in the front bedroom.[85] He did not remain there however, he removed the gun from the bum bag that he was wearing across the shoulder. He hit the glass in the dining room with the handle of the gun attempting to get out that way and then he walked to the front door and reached into the bum bag and pulled out something which appeared to be a beanie. He used it to wipe the sweat off his face. It unrolled and he saw it was a balaclava. He threw it behind the couch in the lounge room.[86] There was then a struggle with the police at the front screen door during which he locked the screen door. He then ran to the back room through which he entered the house and jumped out onto the fence.
[83] Transcript p522
[84] Transcript p523
[85] Transcript p525
[86] Transcript p526
He had a struggle with a police officer on the fence. The police officer asked him to drop the gun. He threw the gun away and put his hands in the air before jumping another fence.[87] A chase then ensued through a number of premises. Shortly prior to his arrest he threw down his mobile, his watch and the bum bag. At the time of his arrest he was wearing a button through shirt that he thought was blue and blue jeans. He said he had been wearing the shirt for 2 days prior to his arrest. The shirt was tendered as exhibit D7.
[87] Transcript p528
He identified exhibit P19 as his shoes. He said that he had had them for about 6 – 8 months. They were Nike ‘Shox’. He looked at exhibit P20 the comparison chart prepared by Sgt. Heath. He thought the shoes shown on the CCTV tape could be Nike ‘Tailwinds’. They have the same sole as his Nike Shox but a different upper. Tailwinds have a tongue and different patterns on the side.[88]
[88] Transcript p535
Renee Allen
Renee Allen is Mr Miller’s girlfriend. She has known him for 6 years and they have a child. On the day of Mr Miller’s arrest she received a phone call from Kahlia Dixon saying that ‘her boyfriend had just run through Kahlia’s house. There were cops everywhere and that she had tried to hide him’. She then got into a Taxi and went straight to Causeway Road.

She was then asked:[89]
QI want you to think about the last time you’d seen Shane before that afternoon when you went to Semaphore.
AThe morning before we dropped him off. That’s the last time I seen him. I never seen him for over 24 hours, the whole night.
[89] Transcript p614
Ms Allen said they had dropped him off at Lenny Pinkie’s house following an evening together. Also present were Emily Drover and her girlfriend Jodie Colby. They went to the West Thebarton Hotel and played pokies. She became aware that Shane had a significant win of $920.[90]
[90] Transcript p619
QHow did you become aware of the win.
AHe said ‘I won 920’ and I looked over and said ‘Go call the attendant’.
QThen what happened.
AThe attendant came over to him – when someone wins you walk over to them with like a slip. I don’t know how to explain it. It says what machine, what date, what win, then you ask them to sign their name and signature.
QThat’s what you had done as an employee yourself.
AYes, and that’s what they done to Shane; walked up to him, did the writing, he signed, or he scribbled, actually.
QWhen you were employed in the gaming field, had you written out these documents yourself.
AYes.
QHow many times, approximately.
AHundreds.
QI understand you to be saying you actually saw the attendant dealing with Shane in relation to this win.
AYep.
QYou saw Shane scribble on some paper.
AYep.
QWere you actually watching him do that.
AYeah. I looked at him as he done it because he didn’t write his name.
QYou said you looked at him. Why did you look at him.
ABecause I looked at his like – he didn’t write his name, he scribbled.
Ms Allen identified exhibit D5 as the document she saw him sign.
Following the win at the hotel they left and went back to Emily and Jodie’s. She became unhappy with him because he had another shot of speed so they dropped him off at Lenny Pinkie’s house. As they dropped him off she saw a dark blue Commodore in the driveway. She was not too good with models she thought it was a VN or a VR. She was told it was Lenny’s or Lenny’s brother but Lenny was driving it.[91]
[91] Transcript p63
Ms Allen says that there was a day between the pokies win and Mr Miller’s arrest.[92]
[92] Transcript p630
General comment on Defence evidence
I have considered the written submissions prepared by the Crown in relation to the defence evidence. These highlight a number of inconsistencies between the evidence of Ms Allen and Miller. I formed the view that Miller was generally honest in giving his evidence. He admitted that he had taken substantial quantities of amphetamines at the time of the events he was attempting to describe. This has in my view clearly affected his recall of events and in particular the timing of them. I found Ms Allen to be an impressive witness who I thought did her best to accurately describe the things she saw and heard. Where there is a discrepancy in their evidence I prefer that of Ms Allen.
I will deal with the Crown’s submissions concerning what it says are the internal inconsistencies or inherent improbability of the defence evidence below.
Crown rebuttal evidence
Mr Wiwatowski was called by the Crown in relation to the accused’s evidence concerning his win on the pokies at the West Thebarton Hotel. Mr Wiwatowski was the gaming manager who signed the document exhibit D5. He does not remember the transaction but identified his writing on the docket. He tendered further exhibits being the original docket exhibit P32 and some docket books exhibit P30 and P31.
He confirmed that the transaction took place on the morning of 28 December 2006.
If a player presented a voucher for the sum of $920 it would be paid in 100 dollar notes if the till still held them. If not it would be paid in 50 dollar notes. He did not consider that it was likely this payout would have been broken down into smaller notes due to the time it would take to count them out and because it would leave the till short of these denominations. He could not however exclude the possibility that this may have happened.[93]
Findings
[93] Transcript p55
Replica firearm
I consider that it is possible to draw an inference that the replica firearm in the possession of the accused shortly before his arrest was the one used in the robbery from a combination of the following factors:
·The replica firearm was located without a magazine and that a replica magazine suitable for the replica firearm was located at the tavern
·The firearm has an intermittent fault meaning the magazine was likely to fall out clearly support that proposition.
·The comparison of the firearm found in the possession of the accused and the CCTV surveillance neither confirms nor excludes that firearm as the one used in the robbery. .
The accused has given evidence that the gun was given to him, together with the bum bag by a friend, Lindsay Goldsmith on the morning of his arrest.[94] This evidence is not inconsistent with the DNA evidence, which shows the accused’s DNA together with at least two unknown persons DNA. The Crown has not disproved this evidence.
[94] Transcript p517-518
Shoes
The CCTV footage was of poor quality and the images of the offender’s shoes extracted from that footage are hazy, pixilated and indistinct. It is my view that the CCTV footage is so unclear as to make the comparison virtually impossible. For example, the debate about whether the shoes in the CCTV tape had a lengthy tongue in contradistinction to the accused’s shoes, which had no tongue, could not be resolved. The CCTV tape is ambiguous. The white portion might be a lengthy tongue or the continuation of the white stripes on the track pants worn by the offender.
This lack of clarity combined with the lack of any evidence concerning the number of shoes with this heel configuration sold by Nike in 2006 and whether there is any variation in the upper style of such shoes renders this evidence most unhelpful.
I do not consider it possible to conclude either that the shoes are similar or that there are no significant dissimilarities.
Clothing
There are some minor differences in the evidence concerning the clothing worn by the offenders but in general terms the evidence is clear that one offender was wearing a dark hoodie and the other wearing a light hoodie. Opinion was divided as to whether balaclavas were worn. I find that the person said to be the accused, the person in the black hoodie, was wearing a balaclava.
The evidence concerning the presence or otherwise of the brown scarf is equivocal. No eyewitness described it. In my view it is not possible to say that what is visible on the CCTV footage is the same as the garment tendered as exhibit P16.
The two windcheaters and the Adidas track pants tendered in evidence are distinctive articles of clothing and certainly appear similar to the articles worn by the two offenders conducting the robbery according to the evidence of the witnesses and the CCTV footage. The blue Puma track pants are less distinctive but are consistent with the evidence I find that the offender said to be the accused wore black Adidas track pants and an Akademics hoodie whilst committing the robbery.
There is no evidence as to whether these articles of clothing are common garments.
The articles of clothing were not found together. There is no DNA evidence linking Miller to the clothing.
There was evidence that the accused went to the Wingfield premises. Ms Pinkie’s evidence demonstrates that a large number of people had access to the shed in which the Adidas track pants were located. I find there is a link between the accused and the black Adidas track pants albeit tenuous.
Although it is apparent that Miller knew him, there was no evidence that he went to Ted Campbell’s premises where the Akademics hoodie was located.
I do not consider that the Crown has established a link between the accused and the Akademics hoodie.
Commodore
Three witnesses have given evidence concerning the presence of the dark blue Holden Commodore at Ms Pinkie’s Wingfield premises. The accused, Ms Allen and Mr Russell Pinkie. It is uncontroversial that Miller was driving the Commodore shortly prior to his arrest.
Ms Pinkie contradicts her son’s evidence. She is of the view that her son has never owned a dark blue Holden Commodore. There is however proof that such a vehicle was registered in his name. I therefore conclude that Ms Pinkie must be mistaken in her evidence on that point.
Whilst Mr Russell Pinkie was not present at the property on 28 or 29 December 2006 he is aware of the Commodore having been present there on previous occasions contrary to Ms Pinkie’s evidence. Miller and Ms Allen give evidence that the vehicle was there, certainly when Mr Miller was dropped off. I accept this evidence.
The key issue is whether it can be said that the Commodore driven by Miller is the same as Commodore observed by Ms Kelso to be in the vicinity of Wee Willie’s Tavern shortly prior to the robbery. The vehicle Mr Miller was driving was dark blue and a 1993 or 4 model. It had chrome strips on the side and mag wheels. According to the evidence of Russell Pinkie there are significant differences in design between that model Commodore and later models released after the year 2000.
It is unfortunate that, given her lack of knowledge of motor vehicles, Ms Kelso was unable to provide a detailed description of the vehicle she saw. She said it was a black or dark sort of colour, it was not old but not new and that it post-dated 2000. Ms Kelso did not make any observation of the wheels and did not recall any chrome strips. Her description of the occupants of the vehicle is likewise limited. I make no criticism of Ms Kelso. She did the best she could.
There was no evidence of any search of the Commodore driven by the accused nor any material produced that established a link between it and the robbery at Wee Willies Tavern. The sole evidence is that of Ms Kelso. Her description of the vehicle and its occupants is so vague that the inference the Crown asks me to draw about the link between the vehicle that Ms Kelso saw in Cheapside Street and the vehicle subsequently driven by the accused is tenuous.
Balaclava
The DNA found on the balaclava was of limited evidentiary value. I note Miller’s explanation as to how his DNA came to be on the balaclava. This was not disproved. At least three other contributors were present in the DNA. It was not possible to tell when the DNA came into contact with the balaclava and in what order.
The Crown invited me to test the accused’s evidence by placing the replica pistol and the balaclava in the bum bag. It was submitted that when both items were in the bag the bag becomes bulky and spongy than the replica pistol. Whilst this is undoubtedly true, the bag is capacious enough that this would not necessarily be appreciable and it does not, of itself, cause me to doubt the accused’s evidence that he could not feel the balaclava in the bag and did not notice whether the bag appeared cushioned or not.
The prosecution case is that the money found on the accused was in denominations and in an amount consistent with being the proceeds of the robbery at Wee Willie’s Tavern. If this is so, it seems Miller either received considerably less than a half or third share of the robbery proceeds. There is in my view no actual correlation between the amount in his possession and the robbery.
The money
The accused was located with the sum of $510. He explained this by saying that he won $920 at the pokies. The prosecution did not disprove this. His evidence was inconsistent as to the date on which he won the money. He said first that he won it on 28 December 2006[95] and then he said he won it on the morning of his arrest 29 December 2006.[96]
[95] Transcript p511
[96] Transcript p537
The evidence of Mr Wiwatowski and Ms Allen establishes that the win occurred on 28 December 2006. Given the accused’s evidence about the amount of amphetamines that he took it is unsurprising that his evidence concerning the date was unclear. I accept the evidence of Ms Allen and Mr Wiwatowski that the pokie win occurred on 28 December 2006.
I accept the prosecution submission that the accused’s evidence concerning the amount he spent on the drugs was somewhat contradictory and unsatisfactory. If however he was so affected by drugs that he lost a whole day between the win and his arrest it is likely he was mistaken about the precise amounts spent and occasions on which he spent money.
I find that the denominations in the possession of the accused were, at least in part, similar to those placed in the gaming drawer that was cleaned out during the robbery. Notes in the denomination of 20 and 10 dollars were present in the gaming drawer but there were also 50 dollar notes. Miller had no 50 dollar notes in his possession.
Mr Wiwatowski, not surprisingly, had no independent recall of the payment he made on 29 December 2006. He gave evidence of his usual practice in making payments. He did not exclude as a possibility that he handed out lower denomination notes on request. The accused gave evidence that he requested lower denomination notes, as he liked the feeling of a lot of money.[97]
[97] Transcript p608
Calico Bags
The Crown asks that I make several inferences about the calico bags. First I am asked to infer that the bags were of a type used by the Tavern, second that they were stolen in the robbery and finally that they were placed in the laundry by Miller.
I accept the police evidence that there was no formal search of 90 Causeway Road and that the search consisted of police viewing areas pointed out by the householders.
Officer Goodwin took photographs of everything of apparent relevance but it is instructive that he did not take any photographs of the laundry, which is highly suggestive of the fact the laundry was not searched. I therefore find that the laundry was not searched.
I accept Ms Susan Dixon’s evidence that she located the laundry bags some days after these events. I further accept that she had no knowledge of the calico bags prior to finding them. No evidence was called from other occupants of the house concerning this issue.
The Westpac bag was of a type used at the tavern. It is less certain that the ANZ bag was of a type used by the Tavern. Certainly it appears unlikely to have been used in connection with the coins for the poker machines as opposed to some other purpose such as the social club. Accordingly it is somewhat challenging to ascertain why such a bag would have been placed in the pokies bar. There is however sufficient evidence to draw an inference that the bags were of a type used by the Tavern.
There is no conclusive evidence that bags were stolen from the tavern. In saying this I note Mr Binns evidence concerning the photographs and the submissions of defence counsel that the photographs show what may have been a calico bag still in situ behind the lunch box and closer to the interior of the shelving space in photographs 9 and 17. It is my view that the photographs are inconclusive.
Henneberg evidence
I have reviewed the CCTV tape of the robbery and the evidence of Professor Henneberg. In summary Professor Henneberg’s evidence was that there was morphological similarities between Mr Miller and the offender on the CCTV footage and there were no striking differences. I also note the evidence of Ms Allen that Mr Miller’s body shape is medium build with an athletic body build and that he has always had sloping shoulders.[98]
[98] Transcript p65
Professor Henneberg was hampered by the poor quality of the CCTV footage and the clothing worn by the offenders. Whilst his evidence was in some respects helpful, it was far from conclusive. I accept that the offender had an ectomorphic body shape in which his hip and shoulder width are of similar proportions and that the offender was right handed. I further accept that the accused has an ectomorphic body shape and is right handed. I am less convinced that the accused displays a high shoulder line as opposed to sloped shoulders. Professor Henneberg indicated that this is affected by posture. In court Professor Henneberg agreed the accused did not have a high shoulder line, rather he had sloped shoulders. Ms Allen gave evidence that he has sloped shoulders.
I further have difficulty with Professor Henneberg’s evidence concerning the nose profile of the offender. He considered this feature was still apparent whether or not the offender was wearing a balaclava.[99] If however the balaclava is the item exhibit P14 as contended by the prosecution this is a bulky knitted garment which would, in my view, render it virtually impossible to ascertain that the offender had a small nose in profile in which the root of the nose sits deep. I have viewed the CCTV footage carefully and I am unable to make the same observation as Professor Henneberg.
[99] Transcript p32-33
In any event, even if this feature was apparent Professor Henneberg was unable to give evidence concerning the prevalence or otherwise of such a feature with any degree of certainty. Whilst the accused certainly has a deep seated small nose, I note the exhibits tendered by the defence of offender summary profile reports depicting photographs of other people – exhibits D2, D3 and D4. It appears that of those three profile reports at least the people photographed in exhibits D2 and D3 have a similar nose profile to Mr Miller. It is difficult to discern a nose profile from the photograph in D4.
I find that the CCTV footage does not exclude the accused.
Summary
In summary I make the following findings noting as I have indicated earlier that the prosecution does not have to prove these matters beyond reasonable doubt:
·There was a strong inference that the replica firearm in possession of the accused shortly before his arrest was the one used in the robbery.
·The accused has given evidence how he came to be in possession of the firearm. The Crown has not disproved this.
·It is not possible to conclude that the shoes worn by the accused at the time of his arrest and those worn by the offender are either similar or that there are no significant dissimilarities between the shoes.
·I find that the person said to be the accused was wearing a balaclava. The accused’s DNA was on the balaclava. There were at least three other contributors to that DNA.
·The accused has given an explanation as to how his DNA came to be on the balaclava which was not disproved.
·There is a tenuous link between the accused and the black Adidas track pants.
·The offender said to be the accused wore black Adidas track pants whilst committing the robbery.
·The Crown has not established a link between the accused and the Akademics hoodie.
·The offender said to be accused was wearing an Akademics hoodie.
·There is a tenuous link between the vehicle that Ms Kelso saw in Cheapside Street prior to the commission of the robbery and the vehicle subsequently driven by the accused.
·There is no actual correlation between the amount of money in the accused’s possession at the time of his arrest and the robbery.
·There is a similarity of the denominations in the possession of the accused and those taken from the tavern.
·The accused has given an explanation of the denomination of money found in his possession. This is not disproved by the prosecution.
·The calico bags found in the laundry at Causeway Road were of a type used by the tavern.
·Calico bags were stolen in the robbery.
·Whilst Miller undoubtedly had access to the laundry and could have placed calico bags there it is equally possible that other persons could have done so given the fact it is not possible to say how long the bags had been in the laundry or who had access to the laundry during that time.
·The CCTV footage does not exclude the accused nor does it confirm his presence.
Conclusion

As I indicated at the beginning of this judgment the prosecution case is wholly circumstantial. The prosecution put a number of propositions said to be available on the evidence and upon which the prosecution relied. I am asked to infer from this evidence that the accused was the man in the dark hoodie who robbed Wee Willie’s Tavern on the morning of 29 December 2006.
As I indicated earlier, before I could draw such an inference I would have to be satisfied beyond reasonable doubt that it is not just a rational inference available or arising from facts directly proved by the evidence but that it is the only rational inference open on the evidence.
It is my view that the prosecution has not made out all the matters on which it relies. I do not consider that the combination of the remaining matters discharges the prosecution’s onus of proof.
I cannot be and am not persuaded beyond reasonable doubt that Mr Miller was the person who took part in the robbery at Wee Willie’s Tavern.
For this reason I acquit Mr Miller of the charge of Aggravated Robbery contrary to s137(1) of the Criminal Law Consolidation Act 1935.