R v Sullivan (No 2)
[2018] ACTSC 300
•30 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sullivan (No 2) |
Citation: | [2018] ACTSC 300 |
Hearing Dates: | 19 – 26 October 2018 |
DecisionDate: | 30 October 2018 |
Before: | Elkaim J |
Decision: | Accused found Not Guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by judge alone – circumstantial case - verdict – accused found not guilty |
Legislation Cited: | Supreme Court Act 1933 (ACT) s 68B |
Cases Cited: | Chifuntwe v The Queen [2018] ACTCA 12 |
Parties: | The Queen (Crown) Joshua John Sullivan (Accused) |
Representation: | Counsel Ms R Khazma (Crown) Ms J Campbell (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 43A of 2018 |
ELKAIM J:
In accordance with s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone.
At the commencement of the trial the accused pleaded not guilty to the single count in an indictment filed on 11 April 2018. This count alleges that the accused committed robbery in the company of an unknown person and at the time had an offensive weapon with him.
In particular it is alleged that on 21 August 2017, in the early hours of the morning, the accused entered the Raiders Belconnen Club and stole approximately $3,420. It is alleged that when he did so he was with an unknown person and he was armed with an offensive weapon.
Before looking at the evidence, it is necessary to state the legal principles that I must apply before arriving at a verdict. These are essentially standard directions.
The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. He is referred to as an accused because the indictment is essentially no more than a formal allegation against him.
Suspicion and probability must play no part in my decision-making. As long as there is reasonable doubt, the accused must be found not guilty.
The prosecution does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
The legal elements of the charge are:
(a)The accused appropriates something.
(b)The something that is appropriated is property.
(c)The property belongs to another person.
(d)The appropriation is dishonest according to the standards of ordinary people.
(e)At the time the accused appropriated the property he intended to permanently deprive the owner of the property, of that property.
(f)When committing the theft the accused used force on someone else or threatened to use force on someone else.
(g)The accused was in company with another person and had an offensive weapon with him at the time of committing the robbery.
In this case the defence has conceded that there is only one issue in the case: Was the accused involved in the robbery? If he was, then all of the elements of the charge have been established beyond reasonable doubt.
The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and contained in the exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.
If it is necessary for me to draw an inference from the direct evidence in the case I remind myself that I should only do so if the inference is the only available rational inference available from the direct evidence. I recognise that inferences may be justified or unjustified, correct or incorrect and that care must be taken in the drawing of any inference.
It is especially necessary for me to consider the limits of circumstantial evidence.
In this case, the Crown relies heavily upon circumstantial evidence. The Crown asks me to find certain basic facts and then from those facts, to draw a conclusion as to the existence of further facts.
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused.
In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken.
In a circumstantial case, however, no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence, then I am asked to reason in a staged approach. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon the basic facts is that the accused is guilty of the offence charged.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). It will also depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt.
The correct approach is first to determine what facts I find established by the evidence. As a general statement, any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt.
But if I find that such a conclusion is a reasonable one to draw based upon a combination of the established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with guilt, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused’s guilt.
I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.
In order to satisfy myself beyond reasonable doubt of the accused’s guilt, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove to me that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown’s circumstantial case has failed.
The prosecution case includes CCTV evidence. When drawing any findings of fact from such evidence it is necessary to be cautious having regard to the possible unreliability of such evidence, in the same way as occurs when examining a photograph.
In opening the case to me the Crown explained that the evidence was circumstantial and involved the bringing together of a number of facts and events which, said the Crown, would satisfy me beyond reasonable doubt of the guilt of the accused. Ms Campbell, on behalf of the accused, said that the various circumstances relied upon by the Crown were ambiguous or irrelevant. She said that the DNA evidence was capable of alternative interpretations and that ultimately I would not be satisfied of the guilt of the accused.
The evidence
I do not propose to recite the evidence in detail. That can be found in the transcript. Rather I will give a summary of what I consider to be the more important aspects of each witness’ evidence.
The first witness was Mr Gerard O’Dwyer. He is a casual worker at the Raiders Club in Kippax. The club is also known as Raiders Belconnen (Exhibit G). Mr O’Dwyer worked at reception and part of his duties was to register new members. On 18 August 2017, a Friday, at about 4:45 pm, a man called Joshua Sullivan became a new member having paid $2 for one year’s membership.
The application form is Exhibit A and records the accused’s details including his date of birth, phone number and address. There is no dispute that it was the accused who took out the membership.
Mr O’Dwyer said that a membership card would have been provided to Mr Sullivan. It was necessary to show this card upon entry and the card could be used to obtain credits of 2.5c for every $1 spent. If the card was not used in this way or not used to sign in a guest then there would be no record of the member entering or having been at the club.
Ms Natalie Wells was the next witness. She works at Raiders Club in administration and at the reception. On 14 November 2017 she made some enquiries into the membership records. These revealed that on 18 August 2017 the accused was at the club in the company of Mr Jack Peter (Exhibit B). The records did not disclose any other visits by the accused or Mr Peter. This of course does not necessarily mean that the accused did not attend at any other time, provided he had not used his card but had shown it upon entry.
Detective Sergeant Saunders was on duty on the evening of 20 August 2017. After midnight (on 21 August 2017) he was on patrol on John Gorton Drive when he pulled over a blue Mitsubishi Lancer bearing registration YMF 05W. It was travelling in a northerly direction and emerged onto John Gorton Drive from the service road just south of Swallowtail Road (Exhibit C). He said the Mitsubishi stopped a little past Holdens Creek. The driver was identified as a Jack Peter. Rhys Sullivan was in the front passenger seat and the accused was in the rear. The accused and Rhys Sullivan are brothers.
The officer conducted a check of Mr Peter’s drivers licence and discovered it had been suspended. He told Mr Peter that he was not allowed to drive. He then returned to his vehicle, performed a U-turn and came to a halt about 400 metres south of the Mitsubishi. He then observed the Mitsubishi for 40 to 45 minutes during which time the vehicle did not move and none of its occupants emerged. In addition, no other vehicle travelled past the scene and certainly no other vehicle stopped and picked up the occupants of the Mitsubishi.
According to Detective Sergeant Saunders’ notes (Exhibit 2) he stopped the Mitsubishi at 12:36 am. It was put to him that this entry of the time had been “fudged”. He denied that was the case. I was asked to look at the original of the notebook which clearly shows some interference with the entry. The officer thought this might have been because his pen had run out of ink.
It was also put to the officer that his estimate of waiting for 40 to 45 minutes was incorrect. Again he denied the suggestion, saying that he had taken advantage of being on patrol in the area to remain on John Gorton Drive and at the same time observe the Mitsubishi in case Mr Peter drove off contrary to the instruction he had been given.
Detective Sergeant Saunders was confident about having observed the vehicle for the 40 minutes because he said he would have been concerned to return to Woden Police Station by 2:00 am when his shift ended to allow him sufficient time to hand over to other officers. He was a supervisor.
The entry in the notebook certainly raises some suspicion about its accuracy. However, there is no basis upon which I could conclude that it had been altered. I can however confidently conclude that the 40 minutes waiting time is incorrect. This is because later evidence revealed that a car driven by a Mr Morris, who picked up Mr Peter and the Sullivan brothers from John Gorton Drive, was itself stopped by a police officer in Wright at 1:15 am.
Constable Barnsley gave evidence. She said that in the early hours of 4 November 2017 she executed a search warrant at the home of the accused and his parents. She seized an Alcatel mobile phone used by the accused (Exhibit 1).
On 7 September 2018, Constable Barnsley together with Constable Vickers, attended the Alexander Macanochie Centre (the AMC) where they spoke to Rhys Sullivan. The conversation is recorded in Exhibit D.
Detective Mundie attended the AMC on 10 October 2018 and also spoke to Rhys Sullivan. His notes were tendered (Exhibit E).
Detective Mundie conducted some enquiries about mobile phone numbers and was able to establish links between three numbers and respectively, Jack Peter, Rhys Sullivan and Jessica Bennett. Ms Bennett is the partner of Rhys Sullivan.
Rhys Sullivan gave evidence. He is the accused’s brother. He is three years younger than the accused. At the commencement of his evidence I informed the parties that he had previously appeared before me for sentence. The proceedings had been adjourned to enable preparation of an Intensive Corrections Order assessment and were due to return before me on 30 October 2018. No objection was taken to me continuing to hear this matter.
Rhys Sullivan’s evidence was unsatisfactory in many respects. Firstly, he is obviously a very unsophisticated person and had difficulty in understanding a number of the concepts that were put to him. He also appeared to have difficulty reading and his evidence, for example, about text messages and details on a map (Exhibit C) must be treated with caution. He was plainly concerned not to give evidence that would prejudice his brother’s chances of an acquittal. He conceded this to be the case.
Rhys Sullivan said that in August 2017 he either lived with his parents or spent time with his girlfriend who lived in Wright on Phillip Hodgins Street. He said that on 20 August he had been at his girlfriend’s house all day. His brother came to his house. Jack Peter picked them up. They were on their way to Rachel Morales’ home in Wanniassa. They were not going to the Raiders Club.
He said that the intention was to do a U-turn on John Gorton Drive. This was because they intended to travel in the opposite direction. I note here that looking at Exhibit C, it appears that no right-hand turn could have been made onto John Gorton Drive from the service road and a U-turn would have been necessary to travel in a southerly direction.
Rhys Sullivan recalled the police officer pulling the car over. He said that after Mr Peter had been told he could not drive, they were picked up by Chris Morris who is Mr Peter’s brother. He did not get on with Mr Morris.
He said they were stopped again and then they were dropped at Ms Morales’ home where they (he and the accused) stayed for about two hours. They then walked to their parent’s home which was also in Wanniassa.
Rhys Sullivan ultimately agreed that he used his brother’s phone from time to time, but he maintained his denial that he used the phone to access the internet.
Rhys Sullivan was an unimpressive witness. I essentially do not accept his evidence except where it is corroborated by an acceptable alternative source. Thus while I accept he was in the vehicle which was pulled over and that he was then picked up by Mr Morris, I do not accept that he was dropped at Ms Morales’ house. The latter evidence was a weak, and obvious, attempt to provide an alibi which ‘backfired’ without the support of Ms Morales.
It is important to note at this stage that it is very much part of the accused’s suggestion of an alternative hypothesis to the evidence against him that his brother was one of the robbers of the Raiders Club. This of course does not exclude the accused being the other robber but from the defence point of view the possible involvement of Rhys Sullivan was advanced as an alternative theory to explain a number of the circumstantial factors said, by the Crown, to indict the accused.
It is worth quoting [62] and [63] from R v Baden-Clay [2016] HCA 35; 258 CLR 308 at this point to emphasise the use of a positive hypothesis that had been put forward by the accused:
62. It may readily be accepted that "it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference." That proposition merely reflects that it remains for the prosecution to prove the accused's guilt of an offence beyond reasonable doubt. And it does not detract from, and is consistent with, the further proposition that a "trial judge must be astute to secure for the accused a fair trial according to law." A trial judge must adequately direct the jury "both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part”; the trial judge is under a "duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused" (emphasis added). No complaint is made in this Court that the directions given to the jury were inadequate. The directions "put fairly before the jury the case which the accused" made. The trial judge left manslaughter to the jury and put to them the four hypotheses identified by defence counsel.
63. But it is quite another matter, as occurred on appeal to the Court of Appeal and again to this Court, to contend for a hypothesis which was not put to the jury for tactical reasons, which is directly contrary to evidence of the respondent at trial, which is directly contrary to the way in which the respondent's counsel conducted the defence and which, in response to direct questions from the trial judge, was expressly rejected by the respondent's counsel. The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial. That is commonplace. But it cannot be ignored. The hypothesis identified by the Court of Appeal was not open. Once that hypothesis is rejected, no other hypothesis consistent with guilt of manslaughter, but innocence of murder, has ever been identified at trial, before the Court of Appeal or in this Court.
There can be no doubt in this case that the alternate hypothesis, effectively attributing blame or a source of explanation (for example about DNA evidence) to Rhys Sullivan was squarely raised.
I also note the Australian Capital Territory Court of Appeal in Chifuntwe v The Queen [2018] ACTCA 12 emphasised, at [67], the need to examine all of the evidence “to determine whether all reasonable alternative hypotheses that are inconsistent with guilt have been eliminated”.
Constable Smyth was the officer who pulled up the vehicle being driven by Mr Morris. He could not remember if he administered a random breath test. He did remember that shortly after the stop he observed another vehicle, a white VW Golf, which the police had been looking for. When he saw this vehicle he terminated the questioning of Mr Morris and immediately set off after the other vehicle.
Using Exhibit K as a guide, he thought that he pulled over the Ford Falcon at about 1:10 am.
Jack Peter was the next witness. Unlike Rhys Sullivan I did not get an impression from his demeanour and ‘style’ of giving evidence that he was plainly going out of his way to assist the accused. Nevertheless, there are aspects of his evidence which cause some suspicion. For example, he initially said that he had gone to Rhys Sullivan’s girlfriend’s home during the afternoon. The text messages are plainly contrary to this assertion. He agreed that he had been mistaken when taken to the messages.
He also agreed that his memory was not reliable in relation to having been at the Raiders Club on 18 August 2017. When shown Exhibit B he accepted that he must have been at the club.
According to Mr Peter, and consistent with the evidence of Detective Sergeant Saunders, the trio were travelling to a service station when they were pulled up. He also said the intention was to do a U-turn but, notably, he said that he “freaked out” when he saw the police car and continued driving straight ahead. This is an explanation for the vehicle having been pulled up to the north of Swallowtail Road.
Mr Peter said that following the officer telling him he could no longer drive, he telephoned his brother. He thought they waited no more than about 10 minutes for his brother to arrive. He conceded, however, that it might have been longer, especially in the light of the police having told him that it was about 40 minutes. He said that his brother’s vehicle was pulled over near Wanniassa and that the Sullivan brothers were then dropped at home. His evidence is therefore different to that of Rhys Sullivan who said they went to Ms Morales’ residence. To the extent that there is a conflict between the evidence of Mr Peter and Mr Rhys Sullivan I prefer the evidence of Mr Peter.
I also do not reject the evidence of Mr Peter that his intention was to travel south on John Gorton Drive and that he only travelled to the north of Swallowtail Road because he was being pulled up. There is no evidence about the traffic light sequencing or special rules at the intersection but if it would have been an offence to make a U-turn and one would not have expected him to do so once the police vehicle had indicated its presence.
This does not of course resolve the dispute as to whether or not the accused was dropped at or near the Raiders Club. There is, however, no allegation that Mr Peter was involved in the robbery and it is equally consistent that the accused could have travelled to the Raiders Club other than with the assistance of, or in the presence of, Mr Peter.
Mr Peter was asked about the text message entries which are time and date stamped 20/8/17 00:51:19 +1:00 AEST ‘Lets do it I am bored and need money’ and 20/8/17 1:17:11 + 1:00 AEST ‘Lets do it’, the suggestion being that these referred to the upcoming robbery (Exhibit J). He disagreed with the suggestion and said the conversation could have concerned doing lawn mowing or window washing work.
There are a number of reasons to be suspicious of the credibility of Mr Peter. Nevertheless, as noted above, he did not create a bad impression in the witness box. His evidence, with one exception, was believable and where it was contradicted by objective evidence (like Exhibit C and some of the text messages) he conceded that his memory may have been faulty.
The exception relates to his evidence that the text message from the accused concerning needing money may have related to them carrying out window cleaning or lawn mowing. While I cannot say the message was about a proposed robbery I think I can exclude its subject matter as being the activities stated by the witness.
The evidence from Chris Morris was fairly straightforward. He said he received a phone call from his brother, Mr Peter, who asked him to pick up the trio after they had been stopped by the police. He confirmed that he drove a Ford Falcon and that he picked up the three men. He said that his car was also stopped by the police who after some enquiries left in an obvious hurry.
Mr Morris said that he dropped the accused and Rhys Sullivan at their home in Wanniassa and then went back to his own home with his brother. This was in Kambah. I have no reason to doubt any of the evidence given by Mr Morris.
The next witness was Ms Rachel Morales. She was a friend of the accused and Rhys Sullivan although the friendship was through her partner, Mr Warren Bright. Mr Bright was in prison at the time and her best recollection seems to be that if the Sullivan brothers had visited her in his absence, it would only have been for a short period of time. She said that her memory was affected by her use of drugs and having Crohn’s disease. Ultimately, I do not find her evidence of much assistance, not because I think she was dishonest but rather because her history suggested an inherent unreliability.
Mr Shane Smith was a Duty Manager at the club when the robbery occurred. He initially noticed a man come to the entrance but left when he discovered he could not enter. A short time later he noticed someone enter from the direction of the smoking area. He was able to observe this person’s movements on a CCTV screen. He also noticed a second person. Because these people were obviously up to no good, and at least one of them had a knife, he instructed his staff (two others) to immediately go to the strong room where they would be safe.
There were still two or three patrons upstairs and it seems clear that the police were called by one of these patrons. This led to a telephone call from the police to the club which took Mr Smith a little by surprise as he had not called the police. Nevertheless he informed the police of his observations (Exhibit N) and eventually met them at the door. He also later ‘burned’ the CCTV footage which became Exhibit O.
The telephone call and the CCTV footage provide a good deal of detail of the robbery but little that helps to identify the robbers. An important matter relied upon by the Crown said to be visible in the CCTV footage, is one of the robbers holding a knife in his mouth when emptying a cupboard. I think that careful scrutiny of the CCTV footage does not permit this conclusion.
Joshua Bielski was also on duty at the Raiders Club at the relevant time. He was serving a patron who was asking for his winnings from the poker machines. A message on the radio from Mr Smith said that the premises were being robbed and he should go to the strong room. He told the patron that “he would be back” and left for the strong room.
Mr Bielski never saw the robbers but did hear them being active upstairs. When he returned to the ground floor of the club he noticed banknotes scattered about and damage to a door.
Under cross-examination Mr Bielski was reminded that he had told the police that a man had entered the club shortly before the robbery. He checked his membership and identification. The man had a Turkish sounding name.
Mr Daniel Hall was sitting at the reception desk with Mr Smith. He saw two people on the CCTV screen. They were moving quickly through the smoking room. One had a backpack. They had objects in their hands like a kitchen knife. One had a red balaclava and the other a white balaclava. Like his colleagues he went to the strong room and returned to find money scattered about.
Also under cross-examination, he said he had told the police about the man who had come in about 10 minutes before the robbery. He had the appearance of doing a “quick walk around”. He described this person as being in his late 20s or early 30s, of Indian or Middle Eastern appearance, slightly overweight and shorter than he was. The man did not use any of the facilities in the club. He simply walked around and then walked out.
Mr Rhys Kelly-Field was a patron in the club. He was there with his girlfriend, Ms Samantha Wallace. They had both finished shift work about an hour before. They were having some drinks and playing pool.
Mr Kelly-Field went to cash in his poker machine winnings. Ms Wallace was in the outdoor smoking area. When Mr Kelly-Field was standing next to the bar the man behind the counter left. This was obviously Mr Bielski who had been summoned to the strong room.
Mr Kelly-Field saw a man with a red balaclava jump over the bar screaming “this is a robbery”. Mr Kelly-Field joined Ms Wallace in the smoking area where he found her on the phone to the police. He later noticed another man who was all in black although, after a reminder, he said this person had a white facemask. He noticed this robber yelling through the glass, “open the door”. He tried to do so from the outside but was unsuccessful. Eventually the door did open and the robber ran past. He was carrying money boxes. He dropped one leaving money on the ground. One of the robbers had a knife that looked like a carving knife. The robbers ran off towards the car park.
Ms Samantha Wallace gave evidence. Ms Wallace said she was sitting outside in the smoking area. She saw two men climb over the fence onto the balcony. One of them, wearing a white balaclava, had a knife in his mouth. The part of the knife in his mouth was towards the handle end. The other robber, wearing the red balaclava, greeted her as he entered the premises. She thought he was between 5 foot 7 inches and 6 foot tall. He was wearing a black jumpsuit as was the other robber. The knife seemed to have a curved edge like a fish knife. I think the description is consistent with the knife tendered (Exhibit X).
A controversy in the case concerned Ms Wallace apparently seeing the robbers running east but the cash tin and knife were found to the west of the club. The defence submitted that I should draw an inference against the Crown because CCTV footage apparently seen by Mr Smith showing a man running to the west had not been put into evidence. I think the footage probably should have been shown by the Crown. Nevertheless, I do not think the question of which direction the robbers fled is significant. The simple and uncontested fact is that the tin and knife were ultimately found to the west of the club.
Ms Wallace said that when Mr Kelly-Field returned she telephoned 000. A recording of the call was played (Exhibit P). Although it refers to both robbers carrying knives she said this was an assumption on her part.
Ms Wallace said that she terminated the call when one of the robbers returned. He was having difficulty opening the door. He gestured for her assistance but she was unable to open the door. Consistent with the overall amateur nature of this robbery, the door was eventually opened.
Ms Wallace was asked about his accent which she said did not sound Australian. This is inconsistent with what she told police but one must bear in mind that any such evidence would be extremely unreliable. Not only were the words spoken from the other side of a door, but they were spoken through a balaclava.
Ms Wallace said that the robber was carrying a black box. He jumped over the fence and rapidly ran off. He dropped the box there. There was money everywhere. She said she saw both robbers running off through the car park which is adjacent to the smoking area.
Constable Nigel Laverty gave evidence. He attended the club at about 2:33 am on 21 August 2017. He found a cash tin in the car park as well as loose banknotes. There was a bundle of $50 notes about 50 metres away, alongside a fence by a gravel car park which can be seen in photograph ‘5’ of Exhibit 5.
Constable Laverty said he spoke to Mr Hall who told him about the person who had come in shortly before the incident.
The next witness was Mr Timothy Gronow. He is, and was, an Assistant Manager at the club. He was notified of the robbery and attended the premises at about 3:05 am. He conducted a stock take of cash belonging to the club and found that, after all the scattered monies had been returned, that there was still about $3,400 missing.
On the following day, that is 22 August 2017, at about 8:00 am, a groundsman told him that he had located a black tin. He then went with the groundsman to the area shown in Exhibit G as being just north of the loading dock. About 5 to 6 metres from the gate a cash float tin was seen. There was a knife lying upon it. I note here that the location of the tin is in the very opposite direction to the location of the money found by Constable Laverty. The tin and knife can be seen in Exhibit R.
Mr Gronow conducted some checks to see if the accused had been in the club. There were no records but the records would only have been generated if the accused had used his card in order to gain points or had signed in a visitor or a new member. As already noted, if he had attended the club he could have used its facilities without there being any record of his attendance, provided he had displayed his card upon entry.
Mr Hopman was the groundsman referred to by Mr Gronow. On 21 August 2017 he conducted an inspection of the area along the fence line parallel to Flack Street. He did not see anything untoward. The following day, while he was clearing rubbish from the fence, he noticed the tin on the inside of the fence. He did not touch it but reported it to Mr Gronow. He did not see the knife but I do not think this is significant. He saw the tin from the other side of a fence and the photographs in Exhibit R show that the knife is not particularly obvious against the background of the tin.
Detective Luxmoore is the informant in the case. He said he arrived at the Raiders Club at 4:40 am on 21 August 2017. He was told about the location of the tin the next day and he sent it for forensic examination on 23 August 2017. He took place in the execution of the search warrant at the accused’s parents’ home. The only item seized was the mobile phone. None of the other items of interest, as set out in Exhibit 8, were found. He did not ask the accused’s parents if they could identify the knife.
Detective Luxmoore said that the late arrival of the police at the Raiders Club following the report of the robbery was due to a car chase of a silver Audi TT which had been seen travelling rapidly in the area of the club. The Audi was later brought to a halt and its three female occupants were interrogated. They were suspects but they were not charged.
Detective Luxmoore was asked about CCTV footage that had apparently later been provided by Mr Smith, and perhaps also to the DPP, but has not come into evidence. The officer said he had not seen the footage and did not seem to think it was of particular interest. In fairness to him he has been unavailable for some time prior to the hearing.
Another matter raised with Detective Luxmoore concerned the information about the man of Middle Eastern appearance who had been seen in the club some 5 to 10 minutes before the robbery. The officer agreed that the actions of this man, essentially ‘casing’ the location were suspicious but he said, the suspicions were allayed because of the short time between the man entering the club and the robbery. Had he entered, say 30 minutes before the robbery, he would have been of greater interest.
Detective Luxmoore explained his opinion on the basis that a person conducting a pre-robbery surveillance would not do so very close to the robbery because of the suspicion that would immediately attach to him. There is an obvious common sense to this opinion except that it assumes a degree of professionalism on the part of the robbers. In this case, as Detective Luxmoore agreed, the robbers were plainly far from professional. Their inability to expeditiously leave the premises and their lack of an efficient means of taking the money with them (recalling that boxes and cash were dropped and left strewn about the premises) suggests a profound lack of efficiency.
Detective Luxmoore gave evidence about the analysis of the accused’s mobile phone. In particular, he explained Exhibit V which shows the internet sites that had been visited through the telephone’s internet facility. In addition to an extensive range of pornographic sites there were a number of visits to sites concerned with robberies in the Canberra area, including at the Raiders Club, and police information sites. The Crown relies on these entries to suggest an interest on the part of the accused in the club and also in police progress at apprehending the culprits. The suggestion is that the accused, assuming he was guilty, would have been considerably relieved to find that other persons had been arrested for the offence, or perhaps that the police were making no progress in their investigations.
Constable Stephen Onorato attended the club on 21 August 2017. He took the photographs which form Exhibit R. He described the location of various items found including the money box that had been dropped as the robbers departed over the smoker’s balcony. He then described the money trail heading east through the car parks and to the most eastern car park which has a gravel surface. The obvious inference is that after leaving the club the robbers headed in an easterly direction. This is of course inconsistent with the location of the money box and knife on the western side of the premises alongside Flack Street. It is of course possible that one or both of the robbers came back past the club heading in the opposite direction.
Constable Stocks said that he was shown the location of the money box and knife and he took the photographs in Exhibit Y. He also conducted a search to the north and found some notes in the playing field area to the north of the field which is immediately north of the club. It can be seen in Exhibit R.
Constable Stocks said that he secured the cashbox, knife and money, using gloves, and forward them for forensic analysis. I noticed some differences in the appearance of the box and knives as compared to the photographs taken at the forensic laboratory. There is no suggestion however that the items are not the same as those found near the club.
Constable Stocks’ notebook came into evidence as Exhibit 9. There are some obvious errors in the entries about persons going into and out of the club. This might be explained by an error in the source of the timing or it may indicate that different persons are involved.
Constable Stocks gave evidence about the three women located in the Audi TT. He said these were the women who came to the entrance of the club. He said the CCTV footage which he viewed showed that they were dressed ‘normally’ without any attempt at disguise.
Mr Joshua Schwartz is a forensic biologist employed by the AFP. His unit was asked to examine the knife and cashbox to reveal any DNA clues. Examination of the cashbox produced a number of DNA profiles none of which were reliable enough to be of assistance.
In respect of the knife at least two DNA profiles were obtained but only one was reliable enough for further analysis. Although Mr Schwartz was extensively and closely cross-examined I understood his evidence to ultimately disclose the following:
(a)Examination of the knife revealed two DNA profiles.
(b)One of the profiles was reliable, the other was not.
(c)The reliable profile could not be excluded as having emanated from the accused.
(d)The likelihood of it being from the accused could be stated as extremely likely.
(e)It could not be excluded that the unreliable profile had emanated from Rhys Sullivan.
(f)The accused’s DNA could have found its way to the knife by any one of a primary transfer, a secondary transfer or a tertiary transfer.
(g)The length of time the DNA had been present on the knife was uncertain.
(h)It could not be said that the DNA had been laid on the knife recently or that the accused was the “person who most recently held” the knife (Transcript 289.29).
(i)The source of the DNA, referring to the manner in which the DNA had been transferred, could not be identified. In particular it could not be said to have emanated from saliva. A test (called a RSID saliva test) had not been performed on the knife. Accordingly, saliva had not been identified on the knife.
Although Mr Schwartz said that DNA coming from saliva might be a very good source, it is to be noted that the balaclava worn by the person alleged to be the accused did not have an opening for his mouth. This is evident from the CCTV footage. Accordingly, the transfer of saliva would need to have occurred through whatever material constituted the balaclava. While Mr Schwartz said such a transfer was possible it would nevertheless weaken both the likelihood and quality of the DNA transferred. It could not therefore be said that the positive DNA finding was more likely to be associated with a strong source like saliva.
Mr Schwartz also gave evidence on separate testing that had been conducted on a pair of red Nike shoes (Exhibit 15). The photographs displayed a pattern consistent with the tread marks on the club doors (Exhibit Q, photographs 20-25). DNA taken from the shoes did not exclude its source as having been from Rhys Sullivan. Exhibit 17 revealed a similar ratio of likelihood to Rhys Sullivan as the ratio linking the DNA on the knife to the accused. The Crown pointed out that the shoes had been found at a location in Chisholm, which was not associated with either of the Sullivan brothers, and the shoes had not been seized until about a month after the robbery.
Nevertheless the DNA results on the shoes are consistent with the alternative theory put forward by the accused, essentially suggesting his brother was one of the robbers, in particular the one wearing red shoes and a red balaclava.
Mr Schwartz was the last prosecution witness. After the close of the Crown case an application was made for me to give myself a Prasad direction. After some discussion counsel for the accused accepted that it was probably a more appropriate and expeditious approach to proceed directly to final submissions. It was plain from counsel’s initial submissions that essentially the same submissions would be made in final addresses.
At this stage the accused tendered a final document (Exhibit 16) which was a record of phone calls to and from his phone. The accused did not give evidence nor did he call any oral evidence. He was not of course obliged to do so.
As described above the Crown case relied on circumstantial evidence to establish the guilt of the accused. This requires the bringing together of a number of established facts so as to reach a conclusion of proof beyond reasonable doubt of the accused’s guilt.
The most persuasive of these facts is clearly the presence of the accused’s DNA on the knife. This evidence must be treated with considerable caution. I should however note that I am satisfied that the reliable DNA profile identified on the knife did emanate from the accused. What I cannot reach any conclusion about, let alone beyond reasonable doubt, is whether the DNA on the knife was a product of a primary, secondary or tertiary transfer.
I can reach no conclusion about the time when the DNA was deposited on the knife nor can I reach any conclusion as to whether or not it was deposited there directly by the accused or whether it had travelled to the knife through one or more intermediary sources. The police did not ask the accused’s parents if the knife was from their household. If it had been then both the accused’s and his brother’s DNA might have been deposited on it in either a primary or secondary transfer. There are clearly alternative hypotheses consistent with the accused’s innocence. The situation here is not dissimilar to that which existed in Fitzgerald v The Queen [2014] HCA 28; 88 ALJR 779 (Fitzgerald). It is worth quoting from [36]:
On Dr Henry’s evidence, including that extracted above, the prosecution’s main contention, that the appellant’s DNA in Sample 3B derived from the appellant’s blood, was not made out beyond reasonable doubt. Secondly, Dr Henry’s evidence was not that secondary transfer of DNA was “rare”; rather, she said that a primary transfer is a much more likely source of contact or trace DNA than a secondary transfer, but that nevertheless a secondary transfer of contact or trace DNA is possible. There was no conflict in the evidence that there were at least two distinct occasions, described above, on which a secondary transfer of the appellant’s DNA to the didgeridoo may have occurred. Thirdly, the recovery of the appellant’s DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. For those reasons, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant’s guilt.9 Alternative hypotheses consistent with the appellant’s innocence, in particular the hypothesis that Sumner transferred the appellant’s DNA to the didgeridoo on Sumner’s first visit to the house on the day in question, were not unreasonable and the prosecution had not successfully excluded them. As the evidence was not capable of supporting the appellant’s conviction for either offence, no question of an order for a new trial arose.
In addition, being a vital part of the circumstantial case, it is necessary that I be satisfied beyond reasonable doubt that the accused’s DNA was deposited on the knife in circumstances associated with the robbery. The accused submitted that there were two plausible hypotheses, both reasonable, which could not be excluded. They were that the DNA had reached the knife through a primary transfer, but at some time before the robbery in innocence circumstances. This might include that if the knife came from the accused’s home it may have been used at that location. Secondly, that there was a secondary transfer through another person, such as Rhys Sullivan.
The Crown said that Fitzgerald was readily distinguishable from the present case because in Fitzgerald the Crown had relied on DNA evidence only and there was positive evidence of secondary transfer.
I disagree with the Crown because the accused has advanced, as noted above, an alternative theory namely by way of Rhys Sullivan being an explanation for many of the circumstances that the Crown alleges implicates the accused. This specifically includes his involvement in the train of transfer of the accused’s DNA to the knife.
The result is to substantially weaken what might otherwise have been regarded as the strongest circumstantial fact going to the accused’s guilt.
Turning now to the other pieces of circumstantial evidence relied upon by the Crown. These are:
(a)The text messages between the accused and a person called Vella.
(b)The text messages between the accused and Mr Peter.
(c)The accused’s movements on the night of 20 August 2017 and into the following morning.
(d)The path of travel of Mr Peter’s vehicle, namely in a northerly direction consistent with the location of the Raiders Club, before it was pulled over by the police. This factor includes the timing of the various events, remembering that the robbery occurred at 2:24 am on 21 August 2017.
(e)The internet searches allegedly conducted by the accused on the 20th and 21st of August (but before the robbery).
(f)The internet searches, again allegedly by the accused, shortly after the robbery.
The above pieces of circumstantial evidence are often intertwined so it will be necessary to deal with some of them together. This applies to the accused’s movements on 20 August 2017 and to the text messages between the accused and Mr Peter and also the text messages with a man called Vella.
For present purposes I will assume that the text messages are between a third party and the accused. This is not necessarily a conclusion that applies to all of the text messages because it is plain that the phone was also used by Rhys Sullivan to send and receive messages.
The Crown submitted that the messages with Vella established a need for money on the part of the accused. These messages are in Exhibit S and begin on 17 August 2017 (message No 14) with a request from Vella to obtain some money. The accused responds “How. Do I get your money to you” to which Vella replies “I’ll pick it up off you tomorrow night or something”.
The first difficulty with drawing any conclusions from the messages with Vella is that they do not suggest any amount of money nor any need to obtain money by illegal means. Secondly, there is the message (No 17) on 20 August 2017 at 1:24 pm suggesting that Vella had arrived to pick up the money. This of course is before the robbery.
The more important messages are those with Mr Peter commencing with message 199 (at 12:51 am on 20 August 2017) in Exhibit J. The accused writes “Let’s do it I’m bored”. Mr Peter responds “okay so where not tomorrow”. The accused replies “I need money hommie”. Mr Peter texts “Kk lets go then”. The accused replies “Let’s do it”.
The Crown suggests the above exchange of messages is consistent with a plan to do something to obtain money. Then later on 20 August 2017 there are a series of messages ostensibly telling Mr Peter the address where he should pick up the accused, and probably also Rhys Sullivan. This exchange begins with message number 204 at 7:33 pm.
The Crown’s submission is that Mr Peter went to the address in Wright to pick up the two brothers with the intent of travelling to the club to carry out the robbery. This, says the Crown, is moreover consistent with the various searches of Google maps to ascertain the location of the club.
According to the Crown the trio then set off from the address in Wright shortly before they were pulled over by Detective Sergeant Saunders at 12:36 am. The Crown then accepts that following Mr Morris’ vehicle being stopped, the Sullivan brothers were dropped at their home in Wanniassa. Assuming this police stop occurred at about 1:10 am the brothers would have been dropped home at about 1:30 am. This gave them about 54 minutes to travel to the club and commence the robbery. On this theory Mr Peter who was intended to be an original participant in the robbery has dropped out of contention.
The parties agreed that the driving time from the Sullivan’s home to the club was about 30 minutes. Thus the accused and his accomplice would have had to make arrangements to travel to the club fairly promptly. It is to be recalled that the accused did not have a licence or a car and he was not permitted to use his parents’ vehicle. I have also specifically referred to the second robber as the accused’s accomplice. The Crown does not allege that it was Rhys Sullivan.
Assuming it was not Rhys Sullivan, another person who had not previously been an intended robber, would have had to be contacted and swift arrangements made. If the other robber was Rhys Sullivan then he too did not have a licence or a vehicle. It is of course possible that the accused took his parents vehicle without permission. Such a conclusion would be pure speculation. In fact the whole of the Crown theory commencing with the text messages referring to a robbery is speculation.
I do accept that the text messages are consistent with the Crown’s case but they are also capable of other explanation. In relation to the searches of the club before the robbery I find it difficult to accept that the accused needed to find directions to the club when he had visited the club only two days earlier.
Further the searches in relation to the Raiders Club are somewhat ambiguous. If the intent was to see the inside of the club for purposes of locating relevant locations then one wonders why there were Trip Advisor searches of dessert at the club.
Once again the searches are (perhaps) consistent with the Crown’s case but there are other possible explanations. Most importantly is the possibility that Rhys Sullivan conducted the searches. His involvement has plainly been raised by the defence and he had not visited the club earlier and may have needed to know precisely where it was. As far as his denial that he used the internet function on his brother’s phone is concerned, as stated above, I do not accept his evidence.
If he did use the search function before the robbery, then that is also a possibility in relation to the searches after the robbery. In addition, it is also a possibility that the accused, if he knew or suspected that his brother had been involved in the robbery, may have been searching for clues in the interests of his brother.
I have already said that the fact that the vehicle was travelling north on John Gorton Drive is capable of explanation in the manner described by Mr Peter.
Another piece of circumstantial evidence relied upon by the Crown is the visit by the accused and Mr Peter to the club on 18 August 2017, presumably to gain an understanding of the layout of the interior and where cash may have been located. The visit during the afternoon, submitted the Crown, was consistent with the robbers knowing the way into the premises but not out of it. This was because their visit would not have disclosed to them that the doors leading onto the smokers’ balcony would have been secured in the early hours of the morning.
Mr Peter said that he and the accused frequently visited clubs. If they intended to rob the club in the near future then one wonders why they both provided detailed information revealing their identities to the club. Further, on the Crown case, the initiative to commit the robbery arose in the text messages referred to above on 20 August 2017. This does not sit well with a plan being prepared two days earlier.
In summary the strands relied upon by the Crown to establish its circumstantial case do not sufficiently come together to raise a justifiable inference that the Crown has proved its case beyond reasonable doubt. The most important circumstance, the DNA evidence, while certainly linking the accused to the knife, is capable of reasonable explanation which excludes the accused using the knife in the robbery. The other strands are either incapable of assisting the Crown or, even when taken together, so weak in their probative value that they must be rejected as intrinsic parts of a circumstantial case.
Accordingly there must be a verdict of Not Guilty on the single count in the indictment.
The formal finding of the court is that: on the single count in the indictment dated 10 April 2018, namely that the accused committed robbery in company with an unknown person and at the time had an offensive weapon with him, the accused is found Not Guilty.
| I certify that the preceding one hundred and thirty-three [133] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: |
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