R v POLANSKI

[2005] SASC 361

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v POLANSKI

Criminal Trial by Judge Alone

Judgment of The Honourable Justice Nyland

19 September 2005

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT AND BEING OR BEING FOUND WITH INTENT

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT

Accused charged with offences of aggravated serious criminal trespass in a place of residence and theft - trial by judge alone -whether joint enterprise with co-accused who pleaded guilty - circumstantial evidence - proximity to co-accused insufficient to prove joint enterprise - verdict not guilty.

Criminal Law Consolidation Act 1935 (SA) ss 5, 134, 170(1)(2) and (3); Firearms Act 1977 (SA) s 29A(1); Juries Act 1927 (SA) s 7(1), referred to.

R v POLANSKI
[2005] SASC 361

Trial by Judge Alone
Nyland J:

The Charge:

1. The accused is charged on information with two offences.  The first count alleges the crime of aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (CLCA).  The particulars of the offence are that the accused, together with Edgar Elias Khammash (Khammash), on 7 November 2003 at Parafield Gardens, entered or remained in a place of residence of David Schrenk-Mariner, as trespassers, with the intention of committing an offence, namely theft, and at the time of the trespass they had in their possession weapons, namely, a replica firearm and a folding knife.

2. The second count alleges the crime of theft, contrary to s 134 CLCA.  The particulars of that offence are that on 7 November 2003 at Parafield Gardens, together with Khammash, the accused dishonestly dealt with property, namely, cannabis plant material, without the consent of David Schrenk-Mariner, the owner of that property, intending to permanently deprive him of the property, or to make a serious encroachment upon his proprietary rights.

3. Upon his arraignment, the accused entered a plea of not guilty to both charges.  The prosecution then asked that a nolle prosequi be recorded with respect to a third count of possessing a silencer, contrary to s 29A(1) of the Firearms Act 1977. 

4. The trial thereafter proceeded before me as a judge sitting alone, pursuant to an election filed by the accused in accordance with s 7(1) of the Juries Act 1927 (SA).

   Onus of Proof:

5. In considering the issues which arise for determination I have at all times borne in mind that the accused does not have to prove his innocence.  The accused is to be presumed not guilty of the charges against him unless and until I am satisfied of his guilt beyond reasonable doubt.  It is for the prosecution to prove that the accused is guilty of each of the charges against him and nothing short of proof beyond reasonable doubt will do.  It is not enough for the prosecution to show a mere suspicion of guilt, nor to show that the accused is probably guilty.  The requirement of proof beyond reasonable doubt applies to each and every element of each of the offences charged against the accused.

6. If, in the course of these reasons I indicate that I find something proved or am satisfied about something, that means that I have so concluded beyond reasonable doubt.

   Multiple Counts:

7. In this case, the accused is charged with two offences.  I have therefore considered each offence separately.  With regard to each charge, I have considered whether or not the evidence which has been put before me proves beyond reasonable doubt that the accused is guilty of that particular charge.  I also bear in mind that it is open to me to come to different conclusions with respect to each of these charges, although in the circumstances of this case I think it is fair to say that the same process of reasoning will apply to both charges.

   Prosecution case:

8. The prosecution case is that the accused was involved in a joint enterprise with Khammash which involved the entry as trespassers upon premises situated at 20 Tecoma Court, Parafield Gardens on 7 November 2003 for the purposes of stealing cannabis therefrom, the theft of which is the second count charged on the information.  It is alleged by the prosecution that at the relevant time Khammash was armed with a replica firearm and the accused with a knife.

   Witnesses for the Prosecution:

9. Constable Brett Anthony Anesbury and Constable Rebecca Anne Groves gave evidence for the prosecution.  Both of them are police officers and were, at the relevant time, stationed at the Salisbury police station on patrols.  They were on patrol in the early hours of 7 November 2003, and observed and subsequently arrested, the accused and Khammash.  The only other witness was Constable Michael John Tobiasen, a crime scene examiner attached to the Crime Scene Investigation Brach who examined the premises at 20 Tecoma Court, Parafield Gardens and took the photographs contained in Exhibit P6.

10. In addition, the prosecution relied upon the following exhibits which were admitted into evidence:

Exhibit P1

Photocopy of page of street directory with Shepherdson Road and Oleander Drive, Parafield Gardens highlighted thereon.

Exhibit P3

Field receipt number B19168 relating to the accused’s beanie.

Exhibit P4

Bundle of copies of field receipts B19165 - B19171, inclusive, relating to items seized.

Exhibit P5

Bundle of 3 photographs taken by Sergeant Baans.  These photographs show cannabis which was wrapped in a blue sheet located by Sergeant Baans near 55 Shepherdson Road, Parafield Gardens.

Exhibit P6

Bundle of 23 photographs taken by Constable Tobiasen at the house at 20 Tecoma Court, Parafield Gardens.

Exhibit P7

Statement of Johannes Jacobus Baans dated 22 December 2003.  Sergeant Baans is a police officer.  In his statement he mentions seeing Khammash crouched beside a vehicle later identified as belonging to Khammash’s mother.  He said that he saw Khammash stand up and that as he did so, Khammash was putting something down the back of his trousers.  Sergeant Baans also searched the vehicle and located a pillow case filled with two jemmy bars, a small crow bar and a large kitchen knife, plus two pairs of tin snips.  He also found a Ryobi cordless drill in the car.

Exhibit P8

Statement of Peter Bernard Doughty dated 3 January 2004.  Mr Doughty lives at 4 Oleander Drive, Parafield Gardens, where a jemmy was found in the front yard.  Mr Doughty is a plumber but did not own a jemmy and said he had not left any tools lying about.

Exhibit P9

Statement of Ben Goreing dated 22 December 2003.  Probationary Constable Goreing is the police officer who took the cannabis back to the Salisbury police station.

Exhibit P10

Statement of David Salter dated 23 December 2003.  Constable Salter is a police officer.  He tracked a trail of cannabis from outside 55 Shepherdson Road to the house at 20 Tecoma Court.  When Constable Salter arrived at that address, he observed that the front door appeared to have been forced open.  He later searched the premises where a hydroponically grown crop of cannabis was located.

Exhibit P11

Statement of Garreth Lee Jones dated 27 December 2003.  Probationary Constable Jones was involved in the search of the premises at 20 Tecoma Court, Parafield Gardens.

Exhibit P12

Statement of Stephen Rodell dated 2 December 2003.  Senior Constable Rodell was also involved in the search of the premises at 20 Tecoma Court and arranged for Constable Tobiasen to attend to carry out a detailed investigation of the house.

Exhibit P13

Statement of Mark Atkinson dated 9 September 2004.  Senior Constable Atkinson was involved in the preparation of the drug warrant application with respect to the premises at 20 Tecoma Court, Parafield Gardens and the subsequent search of those premises.

Exhibit P14

Statement of Shaurya Bikram Shah dated 10 September 2004.  Constable Shah conveyed a firearm and silencer to the South Australian police ballistic section on 7 November 2004.

Exhibit P15

Statement of Luci Belinda Vance dated 3 September 2004.  Constable Vance was involved in the transport of a number of items to the forensic science centre for testing.

Exhibit P16

Statement of David Schrenk-Mariner dated 8 August 2004, the owner of the premises at 20 Tecoma Court, Parafield Gardens.

Exhibit P17

Statement of Andrew Donnelly dated 28 July 2005 with attachments.  Mr Donnelly is a forensic scientist.  He conducted a swab of a jemmy bar from which a weak incomplete DNA result was obtained.  No conclusion could be made as to whether or not Khammash and/or the accused had contributed DNA to this sample.

Exhibit P18

Certificate of analysis of Gregory Webber dated 2 August 2004 with attachments.  Mr Webber is an analyst attached to the forensic science centre.  The results of his examination of items submitted to him were as follows:

(a)    a pair of scissors on which tetra hydro cannabinol was not detected;

(b)    a pocket on which tetra hydro cannabinol was not detected;

(c)    black windcheater on which no identifiable plant material was detected;

(d)    black beanie on which several cannabis leaf fragments were detected;

(e)    rubber gloves on which no identifiable plant material was detected;

(f)    a black jacket upon which several cannabis leaf fragments were detected;

(g)    black Puma jacket on which no identifiable plant material was detected.

Exhibit P19

Ballistics section report of Peter Alan Lawrence dated 26 May 2004.  Senior Constable Lawrence is attached to the police ballistics section.  He examined the revolver which he described as “a PTB brand, model 72 blank firing revolver”.  He said it was designed to fire a 6 mm blank cartridge.  He said a short barrel from an actual .22 calibre firearm had been fitted and a silencer fitted to the muzzle of the barrel.  Metal obstructions in the chambers in the cylinder, designed to prevent live ammunition from being fitted into the firearm had been removed.  Modifications had been made but live ammunition would not fire in the modified chambers.  The “new” barrel had a length of 84.7 mm.  The silencer had a length of 154 mm and a diameter of 21.9 mm.  He concluded that an unsuccessful attempt had been made to convert the blank firing revolver into a firearm but live ammunition could not be loaded or fired in it.

Exhibit P20

“Preliminary Report” signed by Kahlee Redman on 11 August 2005.  Ms Redman examined a number of items for evidence of fibre transfer but that examination did not result in anything of assistance to the investigation.

Agreed Facts:

1. At the conclusion of the prosecution case, the following matters were agreed:

   (1)    That the white Nissan sedan SA UEB 801 belonged to Nada Khammash, the mother of Khammash.

   (2)    That at the time of his arrest, Khammash lived at 31 Catalina Avenue, Parafield Gardens.

   (3)    That the accused lived at 2 Holmfield Court, Parafield Gardens.

   (4)    Khammash pleaded guilty to Counts 1, 2 and 3 on the information before the court on a previous occasion.

   Accused declines to answer questions of police:

2. The accused was arrested on 7 November 2003 and taken to the Elizabeth police station where police conducted an interview with him.  The accused then declined to answer any questions the police.  I draw no adverse inference against the accused as the result of him exercising the right given to him by law not to answer questions put to him by the police officers.

   Accused elects not to give evidence:

3. At the conclusion of the prosecution case, Mr Sykes, for the accused, made a submission that there was no case to answer.  In the alternative, Mr Sykes  asked that I give myself a Prasad direction due to the unsatisfactory nature of the evidence given by the prosecution witnesses.

4. I subsequently ruled that the accused had a case to answer and declined to give myself a Prasad direction.  The accused then elected not to give evidence nor call any witnesses in his defence.  I draw no adverse inference against the accused as a result of his election not to give evidence at the trial.

   The charges:

5. The first charge against the accused is that of aggravated serious criminal trespass in a place of residence.  Section 170(1) CLCA  provides that a person who commits a serious criminal trespass in a place of residence is guilty of an offence.  Section 170(2) provides that

   A person who commits a serious criminal trespass in a place of residence is guilty of an aggravated offence if –

   (a)the person has when committing the trespass, an offensive weapon in his or her possession; or

   (b)the person commits the trespass in company with one or more other persons; or

   (c)another person is lawfully present in the place and the person knows of the other’s presence or is reckless about whether anyone is in the place.

6. There are a number of elements to be proved by the prosecution with respect to a charge under s 170(2) CLCA.  First, the prosecution must prove that the accused entered or remained in a place of residence.  Section 170(3) CLCA defines a place of residence for the purposes of this charge as:

   … a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence.

7. The place of residence in this case is alleged to be the house property situated at 20 Tecoma Court, Parafied Gardens, in the State of South Australia.  David Schrenk-Mariner says in his statement (Exhibit P16) that he is the owner of that house and that he has lived there for the last nine years, although he was absent from those premises from about 6 pm on 6 November 2003, to about 3.15 pm on 7 November 2003.  There is no dispute that this was a place of residence as defined by the Act and I so find.  The defence maintain, however, that there is no evidence to prove that the accused entered or remained upon those premises at any time and I will return to that aspect of the matter later in these reasons.

8. Secondly, the prosecution must prove that the accused entered or remained on those premises as a trespasser, and thirdly, that he knew he was a trespasser.  A trespasser is a person who deliberately enters a place without authority or permission to do so.

9. The fourth element to be proved by the prosecution is that the accused entered the place of residence with the intention of committing an offence, in this case, theft.  There are four elements to be proved with respect to the crime of theft, which is also the second charge on the information.  First, that the accused dealt with another’s property, in this case, the cannabis belonging to Mr Schrenk-Mariner.  Secondly, the prosecution must prove that the dealing was done dishonestly.  What constitutes dishonesty is determined by reference to the standards of ordinary people, and the accused must know that the dealing is dishonest.  Thirdly, the prosecution must show that the dealing was done without the owner’s consent, and fourthly, the prosecution must show that the dealing is done with the intention of permanently depriving the owner of his property.

10. The final matter which the prosecution must prove in order to establish the crime of aggravated serious criminal trespass relates to the circumstances of aggravation set out in s 170(2) CLCA. In this case, the only circumstance of aggravation alleged by the prosecution is that referred to in s 170(2)(a), ie the possession of an offensive weapon. “Offensive weapon” is defined in s 5 CLCA as:

    (a)an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including -

    (i)    a firearm or imitation firearm (ie an article intended to be taken for a firearm); or

    (ii)     an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive); or

    (b)an article or substance that a person has -

    (i)    for the purpose of causing personal injury or incapacity; or

    (ii)     in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity.

11. In this case, the prosecution says that at the relevant time the accused had in his possession a knife and Khammash a replica firearm.  Each of those came within the definition of being an offensive weapon, and as they were engaged in a joint enterprise, the possession of the relevant item by each of them was attributable to both. 

12. There is ample evidence to establish that Khammash entered the house at Tecoma Court and stole some cannabis therefrom.  I am satisfied that when he did so he had in his possession the firearm later seized by the police.  In order for the accused also to be guilty of these crimes, however, I must be satisfied that he was engaged in a joint enterprise with Khammash.  The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then while that arrangement or understanding is still on foot and has not been called off, one or other of them does, or they do between them, in accordance with their understanding or arrangement, all of the things that are necessary to constitute the crime, they are equally guilty of that crime, regardless of what part each played in its commission.  In such circumstances, they are said to be participants in a common purpose or joint enterprise in committing the crime.

13. This doctrine implies that the persons concerned were acting as a team to achieve a specific mutually agreed result.  The standard example usually given to juries to explain this principle is that of an armed robbery.  If three people agree to rob a shop and they further agree that two of them will go into the shop, that one will carry a gun, and another will give assistance in the shop and actually seize money from the till and carry it away in a bag, and the third remains outside as the driver of the get-away car to enable the other two to flee from the scene, and an armed robbery is staged in that fashion, then all three would be guilty of the crime of armed robbery.  The person waiting outside in the car will be equally guilty with the two who went into the shop.

14. For people to be so acting in the commission of a crime their consent to the understanding or arrangement between them need not be expressed by words.  Their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do.  The understanding or arrangement may not be longstanding.  It may be reached on the spur of the moment or just before the doing of the act or acts constituting the crime.

15. In this case, the evidence establishes that there was an unlawful entry into the house at 20 Tecoma Court on 7 November 2003.  Mr Schrenk-Mariner in his statement (Exhibit P16) says that there was cannabis growing in a bedroom of his house and that cannabis plants were taken therefrom.  He said they were there when he left his house but when he returned they were missing.  He said they were situated in the bedroom that had a locked door and was jemmied open.  He also said that the front door had been smashed in.  The door was of hollow construction and had a normal door lock and deadlock.  The wood was split where the locks were and it looked like it had been hit with something heavy.  The forensic evidence also supports the statements made by Mr Schrenk-Mariner that his home had been forcibly entered by someone.  Mr Schrenk-Mariner also said in his statement that he gave no person permission to enter his house nor to take any items from it nor to cause damage to his premises and I am satisfied as to those matters.

1. I am also satisfied that Khammash entered upon the premises owned by Mr Schrenk-Mariner and that when he did so he had in his possession a firearm which was an offensive weapon as defined by s 170(3) CLCA.  I am satisfied that Khammash entered upon the premises as  trespasser, that he knew that he was a trespasser, and that he did so with intention of committing the theft of the cannabis.  I am also satisfied that the four elements of the crime of theft of the cannabis are proved against him. 

2. Although there is no forensic evidence such as fingerprints nor DNA to link either Khammash or the accused to entry upon those premises, it is also an agreed fact that Khammash earlier pleaded guilty to the three counts alleged against him on the information.  As I earlier indicated, the issue for decision in this case is whether the accused was involved in a joint enterprise with Khammash to commit these offences.

3. The prosecution case against the accused is circumstantial, and it is therefore necessary to have regard to the issue of circumstantial evidence.  Circumstantial evidence is to be distinguished from direct evidence, that is, the evidence of a person who witnessed the actual offence.  Circumstantial evidence as its name suggests is evidence of the circumstances surrounding the alleged offence from which the prosecution asks me to infer beyond reasonable doubt that the accused committed the offence.

4. Circumstantial evidence, like direct evidence, can be good, bad or indifferent.  It all depends on the case.  There is nothing inherent in the quality of either direct or circumstantial evidence that makes it good, bad or indifferent.

5. In saying that the prosecution case is based on circumstantial evidence, all that is meant is that, instead of having a witness who was so placed at the time of the alleged offences who can describe what he/she saw of the actual events constituting the alleged offences, we have witnesses who have described a number of acts, events, circumstances and statements, from which I am asked to work out what must have happened.

6. Speaking generally, crimes are not usually committed in front of witnesses and therefore it becomes almost inevitable that a great deal of evidence which is received in court is circumstantial evidence, that is, evidence of the surrounding circumstances.  The amount of circumstantial evidence which will suffice to prove a charge beyond reasonable doubt will vary from case to case.  The number of circumstances proved can vary enormously and so can the weight of the individual circumstances.  However, the process of reasoning remains the same.

7. In this case, first, I must decide what facts I accept as established by the evidence.  I must then consider what inference or inferences I am prepared to draw from the facts which I find established.  Each item of circumstantial evidence must be carefully considered.  When deciding that a particular fact has been established, I am entitled to take into account the whole of the evidence.  Then, when considering what inference I am prepared to draw from the facts which are established, I do not reject an individual circumstance simply because no inference can be drawn from that circumstance alone.  Instead, I keep that fact in mind and consider it in conjunction with the other facts which I do find proved.  I must have regard to the totality of the circumstances and the united force of all of the circumstances put together.  In other words, the proper approach is to assess the combined effects of those items of circumstantial evidence which I accept and to consider further, as a matter of inference, whether they prove beyond reasonable doubt that the accused committed the offence.

8. In considering the circumstantial evidence, however, I must have regard to the possibility that it does not necessarily point to guilt.  I cannot return a verdict of guilty unless the circumstances which I find proved are such as to be inconsistent with any reasonable hypothesis, other than that the accused is guilty of the particular offence which I have under consideration.  In other words, before I can be satisfied that the accused is guilty I must be satisfied, not only that his guilt is as a rational inference, but that it is the only rational inference that the circumstances I find proved enables me to draw. 

9. In order to resolve these matters it is necessary to have regard to the evidence given by the prosecution witnesses.

   Overview of the evidence:

10. At about 4.49 am on Friday, 7 November 2003, Constable Anesbury and Constable Groves were on mobile patrol in Shepherdson Road, Parafield Gardens.  They saw a male person later identified as the accused running across the road and that attracted their attention.  They then saw a second man, later identified as Khammash also cross the road and observed that he was wearing pink rubber gloves on his hands.

11. Constable Anesbury said he saw the accused turn left into Oleander Drive and into the front yard of No 4 and go behind some bushes near the front of the house.  The police car drove their car into Oleander Drive and parked near a white Nissan.  When they got there, the accused was standing behind a bush in the front yard of No 4 with only the top half of his body visible.  Khammash was crouched down next to the white Nissan which belonged to his mother.  He was on the passenger side of the car, between the car and the footpath.

12. At this point, the distance between the two men was about six to seven metres.  The police said that when they got out of their car, they smelt a strong smell of cannabis.  Constable Anesbury then approached the accused whilst Constable Groves kept an eye on Khammash.

13. Constable Anesbury said that as he approached the accused, the accused had both hands down by his waist and the bush in front of him was moving.  Constable Anesbury said he saw a jemmy bar in the bush.  He then walked the accused back towards the car so that Khammash and the accused would be in the same area.

14. It appears that Sergeant Baans arrived at the scene as Constable Anesbury was approaching the accused.  This is when he saw Khammash stand up from crouching behind the white Nissan and move towards Constable Groves with his hands behind his back.

15. Sergeant Baans warned Constable Groves that Khammash might have something in his hands.  Constable Groves said that she told Khammash to stop and show his hands and he complied.  Constable Groves then asked Khammash to sit down on the footpath and when Constable Anesbury returned, the accused was also told to sit on the footpath.

16. According to Constable Groves, Constable Anesbury then went back to the bush where the accused had been seen.  He looked around and then returned with a jemmy bar.  Constable Groves also saw Sergeant Baans look in the gutter near the Nissan sedan where Khammash had been crouching.  Sergeant Baans then found the firearm.

17. Constable Anesbury searched the accused and said he located a fold up knife in his front pocket.  He could not recall the colour of the blade, nor the handle, nor the length of the blade.  He was unable to describe the knife other than to say that it was single bladed and not a multi tool knife.  Constable Groves observed the search but was also unable to describe the knife.

18. Constable Groves recalled putting various items into paper bags in the back of the police vehicle which included the knife.  It appears, however, that the knife was subsequently destroyed by the property office at the Salisbury police station.

19. Constable Anesbury also searched Khammash.  Khammash was wearing two jackets, a pair of pink rubber gloves and smelt strongly of cannabis, and a pair of scissors was located in his front pocket.

20. Constable Groves and Sergeant Baans then conducted a search of the car and found the various tools therein which are mentioned in Exhibit P7, as well as a small bag of cannabis and some loose cannabis.  The police then arrested Khammash and the accused and took them both to the Elizabeth police station.

    Prosecution Submissions:

21. The circumstances relied upon by the prosecution as establishing a joint enterprise between the accused and Khammash to commit these crimes are as follows:

    (1)    Khammash and the accused were in close proximity to each other when seen by the police in the early hours of 7 November 2003.  At that time, Khammash was wearing dark clothes and pink rubber gloves on his hands.  He was observed crouched down next to a motor vehicle which belonged to his mother and within that motor vehicle was found a pillow case filled with assorted implements which could only have been designed to break into houses, such as a number of jemmy bars, tin snips and the like.

    (2)    The two men were in close proximity to the two cannabis plants which were found wrapped in a sheet which I am satisfied belonged to Mr Schrenk-Mariner.

    (3)    A trail of cannabis led from the cannabis wrapped in the sheet back to the house at 20 Tecoma Court, Parafield Gardens.

    (4)    The house at 20 Tecoma Court had been broken into by a person/persons who were unauthorised to enter and who were therefore trespassers.

    (5)    The accused was dressed in dark clothing and smelt strongly of cannabis when spoken to by police.

    (6)    A jemmy bar was found in a bush close to where the accused had been observed by the police, from which it can be inferred that he was in possession of it just before it was found.

    (7)    The accused had in his possession a fold-up knife, and must also have known that Khammash was in possession of a firearm as its barrel was 84.7 mm long and the silencer fitted to the barrel was 154 mm long.

    Defence submissions:

22. The defence say, however, that at the end of the day, the only evidence produced by the prosecution to support a joint enterprise by the accused with Khammash is his proximity to Khammash at the time that he was observed by the police.  There was no evidence of the accused having played any role in the entry upon the premises at 20 Tecoma Court, Parafield Gardens, nor any evidence of any act done by him in furtherance of the asserted joint enterprise. 

23. Mr Sykes submitted that there was nothing unusual about the clothing worn by the accused, as compared to that worn by Khammash who had been wearing two jackets, and pink rubber gloves.  There was no suggestion that the accused had been wearing gloves, yet none of his fingerprints nor DNA had been found either in the house or on the jemmy bar which the prosecution asserts was in the possession of the accused just before it was found.

24. Mr Sykes further submitted that the evidence relating to the jemmy bar was completely unsatisfactory.  Neither of the police officers had noted the finding of it in his/her contemporaneous notes, nor in the daily log.  Their evidence in court as to its location was imprecise and what eventually happened to that particular jemmy bar thereafter was unclear.

25. Mr Sykes pointed out that neither of the police officers mentioned the accused carrying anything when first observed by them and there was nothing about his clothing which would have assisted him in concealing such an object.  On that basis, the possibility of a jemmy having been left by Khammash as opposed to the accused could not be excluded. 

26. Mr Sykes submitted that there was no evidence to show that the accused knew that Khammash had a firearm.  The firearm was found in the gutter by the car and when Khammash had been approached, he had his hands in the back of his pants where presumably the gun had been concealed

27. Further, there was a paucity of evidence about the knife which the police say was located upon the accused.  Constable Anesbury was unable to give any description of it, other than it was a fold-up and not a multi tool.  There was no photograph taken of the knife and it had since been destroyed.

    Conclusion:

28. I am satisfied that Constable Anesbury and Constable Groves were honest witnesses who did they best they could to give an accurate account of what occurred.  Regrettably, however, there were aspects of their evidence which was imprecise, particularly with respect to the location of the jemmy bar and the subsequent dealings with it.

29. The evidence as to the dealing with the items seized was generally unsatisfactory, as evidenced by the destruction of the knife taken from the accused.  The prosecution was also unable to exclude the possibility of contamination of the beanie taken from the accused on which cannabis fragments were detected and which might otherwise have been probative of the guilt of the accused.

30. The accused’s proximity to Khammash at such an early hour of the morning is highly suspicious, but that alone is insufficient to establish a joint enterprise with Khammash. 

31. I am unable to be satisfied that the accused had the jemmy in his possession, nor can I be satisfied that he knew that Khammash had a firearm in his possession. The knife taken from the accused was a significant piece of evidence which might well have linked the accused to some of Khammash’s activities, but in view of its destruction, and the inability of the police to give any meaningful description of it, I am unable to find that it was an offensive weapon according to s 5 CLCA.

32. Having considered all of these matters, I am left with a doubt about the role that the accused might have played in the activities undertaken by Khammash on the night in question.  The evidence falls short of satisfying me to the requisite degree that the accused was involved in a joint enterprise with Khammash which included the unlawful entry upon the premises at 20 Tecoma Court and the theft of the cannabis therefrom.

33. I am therefore left with a reasonable doubt about the accused’s involvement in either of these offences and I therefore return a verdict of not guilty to each charge.