R v Williams-Savage; R v Sloane (No 2) - [2021] ACTSC 137

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Williams-Savage; R v Sloane (No 2)
Citation:	[2021] ACTSC 137
Hearing Dates:	11, 15 – 18 and 21 June 2021
DecisionDate:	2 July 2021
Before:	Mossop J
Decision:	See [151] – [152]
Catchwords:	CRIMINAL LAW – TRIAL BY JUDGE ALONE – Attempted burglary – damaging property – burglary – theft – take motor vehicle without consent – aggravated burglary – drive motor vehicle without consent – trial involving co-accused – issue as to the identity of the offenders – strong circumstantial case against one accused – guilty on all counts except two – identity of other offender not established beyond reasonable doubt – second accused not guilty on both counts
Legislation Cited:	Criminal Code 2002 (ACT), ss 20, 44, 308, 311, 312, 318, 403 Supreme Court Act 1933 (ACT), ss 68B, 68C
Parties:	The Queen ( Crown) Jacob Williams-Savage ( Accused) Daniel Sloane (Accused)
Representation:	Counsel T Hickey ( Crown) S McLaughlin ( Williams-Savage) K Musgrove (Sloane)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT (Williams-Savage) McKenna Taylor ( Sloane)
File Numbers:	SCC 223 of 2020; SCC 225 of 2020 SCC 220 of 2020; SCC 221 of 2020

MOSSOP J:

Introduction

The charges against the co-accused, Jacob Williams-Savage and Daniel Sloane, arise out a series of events that took place on 5, 8, 11 or 12 and 13 April 2020.

Mr Williams-Savage is alleged to have been involved in the events that took place on each of those days. He is charged with 12 counts on a joint indictment dated 1 June 2021. The offences Mr Williams-Savage is alleged to have committed are as follows:

(a) Count 1: attempted burglary, contrary to s 311 by virtue of s 44 of the Criminal Code 2002 (ACT).

(b) Count 2: damaging property, contrary to s 403 of the Criminal Code.

(c) Count 3: burglary, contrary to s 311 of the Criminal Code.

(d) Count 4: theft, contrary to s 308 of the Criminal Code.

(e) Count 5: take motor vehicle without consent, contrary to s 318 of the Criminal Code.

(f) Count 6: aggravated burglary, contrary to s 312 of the Criminal Code.

(g) Count 7: damaging property, contrary to s 403 of the Criminal Code.

(h) Count 8: theft, contrary to s 308 of the Criminal Code.

(i) Count 9: aggravated burglary, contrary to s 312 of the Criminal Code.

(j) Count 10: burglary, contrary to s 311 of the Criminal Code (in the alternative to count 9).

(k) Count 11: drive motor vehicle without consent, contrary to s 318 of the Criminal Code.

(l) Count 14: drive motor vehicle without consent, contrary to s 318 of the Criminal Code.

Upon arraignment Mr Williams-Savage pleaded not guilty to each of these counts except for count 14 to which he pleaded guilty.

The charges against Mr Sloane relate only to the events that took place on 11 or 12 April 2020. He is charged with the following two counts on the joint indictment:

(a) Count 12: aggravated burglary, contrary to s 312 of the Criminal Code.

(b)Count 13: drive motor vehicle without consent, contrary to s 318 of the Criminal Code.

Mr Sloane pleaded not guilty to both counts.

Election

Mr Williams-Savage and Mr Sloane both filed elections for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT) on 16 February 2021 and 25 May 2021, respectively.

Directions

Under s 68C(2) of the Supreme Court Act I am obliged to set out:

(a) the principles of law applied; and

(b) the findings of fact which I make.

I am also obliged to take into account any warning or direction to be given, or a comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3) of the Supreme Court Act.

General principles

The Crown bears the onus or burden of proving the guilt of the accused. The Crown has asserted that each accused has committed criminal offences. The Crown must prove that the accused committed those offences. The accused does not have to prove that he did not commit those offences.

The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.

The accused is presumed by law to be innocent of the offences with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.

As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.

I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence.

I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.

I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.

I am not required by any rule of law, logic or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.

In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt. In this case neither accused gave evidence on oath or affirmation. They were not obliged to do so. The onus at all times lies upon the Crown. At all times the burden lies upon the Crown to prove each element of each offence beyond reasonable doubt.

Manner in which evidence was given

In this trial, some of the evidence was given by audiovisual link. The giving of evidence in this manner is a usual practice in the ACT. I must not draw any adverse inference against the accused and the evidence should not be given any greater or lesser weight because the evidence was given in that way.

Circumstantial case

The Crown case against both accused was a circumstantial one. The critical question in relation to the burglary charges was whether or not the relevant accused was the person shown in CCTV to have been involved in the relevant burglary. So far as Mr Sloane’s drive motor vehicle without consent charge was concerned, the critical issue was whether the evidence established he had driven the relevant vehicle.

Evidence may be either direct evidence (e.g. where an eyewitness says “I saw the accused commit the crime”) or circumstantial evidence, that is evidence of a fact that, by itself, does not establish the offence but which may make it more likely that the offence occurred.

Most cases involve both direct evidence and circumstantial evidence, but some cases depend entirely on circumstantial evidence. A circumstantial evidence case is one in which the prosecution seeks to establish certain facts (or circumstances) and argues that the only reasonable explanation for those circumstances is that the accused committed the crime. That is, the aggregation of circumstances allows the finder of fact to be satisfied beyond reasonable doubt that the accused committed the crime.

In this case before I can find the accused guilty I would have to be satisfied that there was no reasonable explanation for the circumstances other than that each committed the relevant offence which is under consideration.

In a circumstantial evidence case, I must first decide what circumstances are established by the evidence. In doing so I must consider the reliability of the evidence and carefully consider what that evidence proves or does not prove.

When I consider the circumstances that I found to have been proved I must not consider each of those circumstances in isolation. I must consider the established circumstances as a whole and determine whether, having regard to all the established circumstances, I am satisfied that the only reasonably available inference is that the accused is guilty.

A circumstantial evidence case is not necessarily less convincing than a direct evidence case. It may be just as convincing, or even more convincing, than a case based on direct evidence. Whether or not this is the case will depend upon the number and nature of the relevant circumstances and the result of considering them as a whole (not individually or in isolation).

I will address later in these reasons the circumstantial cases put by the Crown and the submissions made by counsel for each accused.

Coincidence evidence

In relation only to Mr Williams-Savage, the Crown relies upon the similarities that exist between the offending on 5, 8 and 12 April 2020 to support a submission that it was improbable that the events occurred coincidentally. The Crown therefore reasons that if the court is satisfied that Mr Williams-Savage committed one of the offences then it should also be satisfied that he committed each of the other offences.

Sometimes there may be such a strong similarity between two different acts and the circumstances in which they occur that a finder of fact would be satisfied the person who did one act must have done the other. That is to say, there is such a significant similarity between the acts, and the circumstances in which they occurred, that it is highly improbable the events occurred simply by chance, that is, by coincidence. The improbability of two or more events occurring by chance, or coincidently, may lead to a conclusion an accused person committed the act the subject of the charges.

In this case, the Crown says that, provided I am satisfied the Mr Williams-Savage did one or more of the burglary or attempted burglary offences with which he is charged, then the similarities in the circumstances between the offending is such that I should more readily conclude beyond reasonable doubt that the accused must have committed the other burglary or attempted burglary offences with which he has been charged.

Obviously this involves me finding beyond reasonable doubt that one or more of the offences was committed. If I find that the offence or offences were committed and the remaining charged acts were so similar that it is highly improbable both acts were committed by a different person, then that is a matter which I can take into account in considering whether the Crown has proved its case beyond reasonable doubt.

Expert evidence

In this case, experts on the analysis of DNA, fingerprint examination, crime scene examination and the operation of the Optus mobile phone network gave evidence.

An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. The value of any expert opinion is dependent on:

(a)the reliability and accuracy of the material which the expert used to reach his or her opinion; and
(b)the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.

Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion, where that opinion is based on that witness’s specialised knowledge. In this case there was no challenge to the expertise of the relevant witnesses. Nor was there any evidence called by the accused so as to contradict the expert evidence called by the Crown.

I am not obliged to act upon the expert evidence, particularly if the facts upon which the expert’s opinion is based does not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. In this case there was no real challenge to the reliability of the expert opinions expressed. Therefore, if I am to reject that evidence then there must be some good reason for doing so. I must, however, carefully consider what the expert evidence does and does not prove when considering its significance for the verdicts that I reach.

Evidence of the witnesses

23 witnesses gave oral evidence. 44 exhibits were tendered. It is not necessary to describe the evidence in detail. The oral evidence of witnesses was largely uncontroversial. It was not suggested that any of the witnesses were not honestly attempting to give accurate evidence or honestly expressing their expert opinions. Where it is necessary to describe the evidence when setting out the findings of fact that I have made below I will do so. Only exhibits 1, 2, 11-16, 18, 19, 21, 22, 24, 27-36, 38-39, 42, 44 were admitted against Mr Sloane as well as Mr Williams-Savage. The balance were admitted against Mr Williams-Savage only.

The evidence included CCTV from relevant locations, telephone records, fingerprint and DNA evidence. In the findings of fact that follow, I will not necessarily refer to the source of the evidence, unless it is necessary to explain that source in order explain some feature of the evidence.

Facts

Saturday, 4 April 2020

On 4 April 2020 Mr Williams-Savage purchased a white Toyota Camry (the old white Toyota Camry) for $500 from Mr Joshua Buchs. At the time the sale, the vehicle had Queensland registration plates, 114ZHP. Mr Williams-Savage provided identification to Mr Buchs at the time of the sale. Mr Williams-Savage signed a sale receipt. It turned out that Mr Williams-Savage lived only a short distance from Mr Buchs. Mr Williams-Savage did not have a licence at the time he bought the vehicle as he was disqualified from holding one.

Sunday, 5 April 2020

At approximately 3:07am on 5 April 2020, a white sedan which appears similar to the old white Toyota Camry parked next to the premises of Quintessence Nail and Beauty, a beauty therapy salon in Page, a suburb in the Belconnen area. A male wearing a blue coloured jacket with the large letters “SENH” on the back of it, black pants and black shoes got out of the car. He was carrying a crowbar. The male used the crowbar in an attempt to pry the front door of the premises open. The Crown alleges that the person was the accused, Mr Williams-Savage and that these facts give rise to count 1, attempted burglary.

The male then struck the glass door of the store with the crowbar, breaking the glass. This is alleged to be count 2, damaging property. For reasons which are not apparent on the CCTV of these incidents, the male then ran back to the white vehicle and drove away without making further attempts to enter the premises. He appears to have been disturbed by something and this led to him abandoning his attempts to do so.

At that time, Mr Williams-Savage was using a telecommunication service provided by Optus with the number XXXX XXX 919. Records from Optus show that Mr Williams‑Savage received a call at 3:05am. Those records show that the mobile phone utilised a cell tower located in Hawker. Hawker and Page are suburbs in the north‑west of Canberra. They are adjacent suburbs that share a boundary along Belconnen Way. Those Optus records show that Mr Williams-Savage made a call at 4:29am and his mobile phone used a cell tower located on Mount Rogers in Fraser. Fraser is also a suburb in north-west Canberra. It is further north and several suburbs from Page. The evidence did not describe the direction of the mobile phone from the cell tower and hence was not very specific. It was, however, sufficient to place Mr Williams-Savage’s phone in the Belconnen area of Canberra but not more specific than that.

At approximately 4:40am that morning a male wearing similar clothing to that seen at Quintessence Nail and Beauty entered Domino’s Pizza store in Florey. He wore a jacket with the letters “SENH”, gloves, pants and shoes. Although the CCTV is in black and white, the clothing is consistent with it being the same colours as those observed at Quintessence Nail and Beauty. Like the male at Quintessence Nail and Beauty, the male at Domino’s in Florey was in possession of a crowbar. The hood of his jacket was tied firmly around his face so as to obscure it from CCTV cameras positioned high on the wall or ceiling. Florey is a suburb in north-west Canberra immediately north of Page and south of Fraser.

The male entered the premises by forcing the bottom half of the front sliding doors open. His entry into the premises is alleged to amount to count 3, burglary. The male attempted to open the store safe using the crowbar. He searched the cupboards and the benchtop near the safe. He went to the manager’s office at the back of the store and rummaged through items on the table there. He located a number of keys and attempted to open the safe with them. He returned to the manager’s office and searched a filing cabinet and some drawers. He left the premises and returned with some additional items (which appear to be chisels or similar) with which he unsuccessfully attempted to open the safe. He searched the desk in the manager’s office again before making a further attempt to open the safe. He searched the filing cabinet in the manager’s office, made further attempts to open the safe and then left the premises some nine and half minutes after entering. In the minute that he was outside, he opened the door to a vehicle parked immediately outside the sliding doors of the store. He returns to the premises with the crowbar, making a final attempt to open the safe before running out of the premises.

The vehicle parked outside the sliding entry doors to the store was a white 2013 model Ford Fiesta with registration plates YNN88Y. About two minutes later a person entered the Ford Fiesta and drove it away. The Crown alleges that the person who drove the vehicle away was Mr Williams-Savage and this conduct is alleged to give rise to count 5, take motor vehicle without consent.

The items that were missing from the store following the burglary were $60 cash, a CCTV hard drive and keys to the white Ford Fiesta registration number YNN88Y. The theft of this property is alleged to give rise to count 4.

Unbeknownst to the driver of the Ford Fiesta, it was fitted with GPS tracking. The tracking device was contained within the Domino’s Pizza sign which, when the vehicle was being used for pizza deliveries, was placed on the roof. At night the sign was taken off the roof and placed within the vehicle. The GPS tracking device was charged through an electrical cable which could be plugged into the cigarette lighter outlet in the vehicle. Even when that cable was not attached to electrical power, the battery within the device would operate for a period until it was discharged. This meant that the location of the Ford Fiesta could be tracked.

The GPS tracker showed that the vehicle travelled from the Domino’s Pizza in Florey to premises in Darcy Close in Gordon, a suburb at the far southern end of Canberra. The vehicle arrived there at 5:28am and remained at that location until 7:29am. Optus records showed that a call from Mr Williams-Savage’s phone was made at 6:49am. The mobile phone used a cell tower located in Gordon to make that call. The evidence of Mr Raymond Chang (a senior technical specialist at Optus) which I accept, explained (by reference to exhibit 37) that the particular antenna on the cell tower that was involved in this call serviced an area in which there is only a small area of the suburb of Gordon and then a substantial area of rural land beyond the edge of the suburbs. That rural area does contain Tidbinbilla Road and Point Hut Road. However, over 90 per cent of calls made using that antenna were made from locations with 1.6 kilometres of the tower which captures the portion of the suburban area of Gordon within which Darcy Close is located. It is therefore very likely that Mr Williams-Savage’s phone was in this part of Gordon at the time the 6.49am call was made.

At 7:29am the GPS tracker showed the vehicle travelled from Darcy Close in Gordon to Burhop Close in Theodore, another suburb in South Canberra. Optus records show that Mr William-Savage’s phone made a call at 7:33am. Exhibit 37 and the evidence of Mr Chang about the antenna on the Calwell cell tower make it very likely that Mr Williams‑Savage’s phone was in this part of Theodore at the time. Mr Williams‑Savage’s ex-partner, Rachel Elliott, resided at a house in Burhop Close in Theodore. The Ford Fiesta remained at that location until 9:07am.

Wednesday, 8 April 2020

At a time shown on the CCTV from the Florey supermarket as 1:58am on 8 April 2020, a white vehicle similar to the Ford Fiesta that was stolen on 5 April drove through the Florey shops car park. It was travelling in the direction of the Domino’s store in that shopping centre. The evidence was not particularly clear but was consistent with the timing on this CCTV being accurate.

Shortly thereafter two males forced entry into the Domino’s store in Florey through the front glass sliding doors. This is alleged to give rise to count 6, aggravated burglary. The method of entry adopted was the same as had been adopted by the burglar on 5 April, namely prizing open the bottom of one side of the sliding door at the front of the premises. One male was wearing a hooded jumper, gloves, pants and shoes with a reflective stripe. His build is consistent with that of the burglar on 5 April. This male was carrying a crowbar and a cordless angle grinder. The Crown alleges that this person is Mr Williams-Savage. The other male is not identified. He was also carrying a cordless angle grinder.

The first male walked behind the counter and used the angle grinder on the safe while the second male stood watch at the front door. The first male successfully removed the door of the safe. This is alleged to give rise to count 7, damaging property. Once the safe door was removed, the first male set about using the angle grinder to open subsidiary containers within the safe and removed some items. The first male grabbed a Domino’s hot bag and he and the second male placed the contents of the safe into that bag. They left the premises five minutes after entering. At no point did the male who the Crown alleged was Mr Williams-Savage answer a mobile phone.

The records of the security company which monitored the back to base security system recorded the incident as having occurred at 2:08am. It is not clear from the evidence whether this time represented the time of first breach of the premises or some other time.

Taken from the premises were $7560 in Australian currency, the Domino’s Pizza hot bag and a number of keys, including a key to a gold Toyota Echo bearing registration YOD03H. This was one of the delivery vehicles owned by the business. The theft of these items is alleged to give rise to count 8, theft.

Optus records show that Mr Williams-Savage’s phone received a call at 2:11am. The mobile phone used a cell tower located in Florey. Mr Chang’s evidence and exhibit 37 indicate that the area served by the relevant antenna on the Florey tower is just to the north of the Domino’s store. It is consistent with Mr Williams-Savage’s phone being in the area to the north of Domino’s. Being in the area serviced by the relevant antenna would be most consistent with being a short drive away from the Domino’s store. Whether or not the call is consistent with Mr Williams-Savage being present at the scene of the burglary depends upon the exact time that the burglary occurred. I accept that the timing on the Optus records is accurate. The evidence of Constable Walters about the accuracy of the CCTV from the Florey supermarket and the records of the security company was not detailed enough to enable a precise finding about the time of the burglary. The evidence of Mr Chang and exhibit 37 are only clearly consistent with Mr Williams-Savage being at the scene of the incident if it was completed before 2.11am.

Friday, 10 April 2020

On Friday, 10 April 2020 Mr Williams-Savage checked into a room at the Abode Hotel in Tuggeranong. He booked the hotel on the booking.com website and provided the mobile phone contact number that the Optus records showed was registered to him (the number ending in 919). The check out date for the booking was 15 April 2020. CCTV around the hotel could be used to identify a person’s movement at the hotel. On a number of occasions while Mr Williams-Savage was staying at the hotel, a vehicle matching the description of Mr Williams-Savage’s old white Toyota Camry enters or exits the carpark before or after he is seen entering or leaving the lift near his room. Because this vehicle matches the appearance of Mr Williams-Savage’s vehicle, and its movements coincide with movements of Mr Williams-Savage within the hotel, I am satisfied that the vehicle shown in the CCTV is the old white Toyota Camry that belonged to Mr Williams-Savage.

Saturday, 11 April 2020

At 4:57pm on Saturday, 11 April 2020 the old white Toyota Camry owned by Mr Williams‑Savage was captured by a fixed speed camera travelling north on the Monaro Highway in Hume. The vehicle had registration plates YNN88Y (the registration plates that belonged to the white Ford Fiesta taken from Domino’s Pizza in Florey on 5 April 2020).

At approximately 6:40pm Mr Williams-Savage entered Bunnings Warehouse in Tuggeranong. He purchased a 10 pack of 115mm Irwin brand angle grinder discs and a Sutton brand drill bit. The receipt for this purchase was ultimately located by police in Mr Williams-Savage’s old white Toyota Camry, the vehicle captured earlier that day by the fixed speed camera.

Sunday, 12 April 2020

At 12:09am Mr Williams-Savage returned to his room at the Abode Hotel. On his left wrist he wore a silver watch with a dark coloured face. At 12:31am he left his room in the company of an unidentified female. He left the hotel car park in the old white Toyota Camry.

He returned to his room alone at 2:42am. At 2:51am he left his room again with an item under his arm. He left the car park in the same car as earlier at 2:53am.

At approximately 3:43am that morning, a gold Toyota Echo motor vehicle with registration plates YOD03H was stolen from the Domino’s Pizza store in Florey. The keys of this vehicle had been taken from the safe of that business on 8 April 2020. Tracking data for that vehicle showed it travelling from Florey to Fyshwick.

Between 4:01am and 4:54am there were eight brief telephone conversations between Mr Williams-Savage and the mobile phone number associated with Mr Sloane. The phone number associated with Mr Sloane was identified by a Constable Grigg when she attended premises at 60 Downard Street, Calwell in February 2020. She spoke to Mr Sloane who provided his address in Gordon and a phone number XXXX XXX 115. That number was in fact registered in the name of Nathan Shepherd who resided at the Downard Street address.

At 4:03am Mr Williams-Savage’s old white Toyota Camry was captured by a fixed speed camera travelling south on the Tuggeranong Parkway in Curtin. It was still using the number plate YNN88Y which came from the white Ford Fiesta.

At 5:37am the gold Toyota Echo with registration plates YOD30H drove into the car park next to the Domino’s Pizza store in Fyshwick and stopped.

A male (who I will refer to as “the SENH man”) got out of the driver’s seat. He was carrying a crowbar. The CCTV of the incident shows him to be wearing black gloves, a jacket with “SENH” written across the back, pants, shoes with a thick white midsole and three black stripes on the side, and a silver watch on his left wrist with a large dark coloured face. The Crown alleges that this person is Mr Williams-Savage. The driving of the vehicle is alleged by the Crown to give rise to count 11, driving a motor vehicle dishonestly taken without consent.

The SENH man gained entry to the store using the crowbar to force the front glass door open. This is alleged by the Crown to give rise to count 9, aggravated burglary or, in the alternative, count 10, burglary. The SENH man jumped the counter and attempted to open the safe with the crowbar. He was unsuccessful and returned to the vehicle. The vehicle drove around the car park before he emerged again and re-entered the premises with a Makita brand angle grinder. He then attempted to open the safe using the angle grinder.

A male (who I will refer to as “the bearded man”) who was heavy set, with facial hair, wearing black shoes with a reflective portion of the heel, tracksuit pants with a stripe down the outer leg, a black leather jacket with zipper pockets across the chest and a light-coloured hooded jumper got out of the front seat of the vehicle. The Crown alleges that this was Mr Sloane.

At one point, an unidentified female emerges from the rear of the vehicle and then returns to the vehicle.

After being unable to open the safe using only the angle grinder, the SENH man went out to the car again and returned with both the angle grinder and the crowbar.

Despite working on it vigorously with both the angle grinder and the crowbar, the SENH man was not successful in his attempts to open the safe.

After waiting outside the car for some time, the bearded man entered the store. This is alleged to give rise to count 12, aggravated burglary. He came into the store and then after a few seconds stood at the half open front door keeping a lookout. The SENH man continued to attempt to open the safe. Finally he gave up and he and the bearded man then returned to the vehicle

The SENH man entered the front passenger seat and the bearded man entered the driver’s seat. The vehicle then drove further up Yallourn Street. A minute later it was stopped with its lights on near the entrance to the car park, facing in the direction of Canberra Avenue. As a caged police vehicle approached from Canberra Avenue, the gold Toyota Echo drove through the car park in order to evade police. The caged vehicle followed and exited down Yallourn Street but did not continue the pursuit..

Between 5:55am and 6:11am Mr Williams-Savage’s phone service had four voice calls with Mr Sloane’s phone service.

At 8am that day police located Mr Williams-Savage’s old white Toyota Camry in Alford Place, Bonython. It had Victorian registration plates QPW865. Those plates came from one of the vehicles parked behind Domino’s Pizza in Florey on the night of 11-12 April 2020. Registration plate YNN88Y was observed attached to the rear of the vehicle underneath the Victorian plate. The vehicle was seized. Subsequent examination of the vehicle showed that the inside of the car was a mess. Amongst the items found inside it were:

(a)the receipt from Bunnings from 11 April 2020 for the Irwin brand angle grinder discs and a Viper Sutton Tools quarter inch drill bit.
(b)Viper Sutton Tools quarter inch drill matching that purchased by Mr Williams‑Savage at Bunnings.
(c)cardboard packaging for a packet of Lenox Metal Max angle grinder discs.
(d)a 20 pack of black nitrile gloves as well as a loose such glove.

The black nitrile gloves appeared similar to the glove which subsequently was found in the Toyota Echo.

Less than 5m away was a newer white Toyota Camry with New South Wales registration CU89PX. This vehicle had been reported stolen from Thrifty Car Rentals at Canberra airport on 11 April 2020. The vehicle was seized.

The vehicle was subsequently examined by police. Mr Sloane’s fingerprint was located on the rear vision mirror. The fingerprint was of his left thumb. It was located on the left‑hand side of the rear vision mirror at an angle consistent with the finger being placed on the mirror by a person sitting in the driver’s seat and only awkwardly able to have been placed there by a person in the passenger seat. Also located in the vehicle was a bankcard in the name of Mr Sloane and a black leather jacket with zipper pockets across the chest on the front passenger seat. There were also medical records relating to a Akira Dowling. Mr Sloane’s DNA was located on the inside of the collar of the black leather jacket. Ms Dowling could not be excluded as a contributor to the DNA on the driving controls. The other DNA on the controls was not suitable for analysis and the DNA expert, Jennifer Stone said that she would “lean towards” excluding Mr Williams‑Savage or Mr Sloane as contributors to the profile. The Crown alleges that Mr Sloane drove the vehicle on 11 or 12 April 2020 and that this evidence gives rise to count 13, drive motor vehicle dishonestly taken without consent.

At 10:21am 12 April 2020 a gold Toyota Echo entered the underground car park at the Abode Hotel in Tuggeranong. At 10:25am Mr Williams-Savage returned to his room.

At 6:03pm Mr Williams-Savage left room 105 and entered the lift. He was wearing a silver coloured watch with a dark-coloured face on his left wrist. At 6:08pm a gold Toyota Echo exited the underground car park of the Abode.

At 8:03pm Constable Jevtovic observed the stolen gold Toyota Echo YOD03H exit the driveway of 60 Downard Street, Calwell, the location where Mr Sloane and Mr Nathan Shepherd were spoken to by police in February 2020. He followed the vehicle as it turned right into Duggan Street. Although he activated the emergency lights on the police vehicle the Toyota Echo did not stop and accelerated away turning left onto Outtrim Avenue. Police lost sight of the vehicle.

At 8:08pm a Toyota Echo entered the underground car park of the Abode Hotel. At 8:14pm Mr Williams-Savage got out of the elevator on level one and entered room 105. He was carrying something in his left hand.

At 9:33pm Mr Williams-Savage left room 105 and entered the elevator. At 9:45pm the gold Toyota Echo exited the underground car park of the hotel.

On 13 April 2020 at 6:05am, Constable Cameron Holwell, who had come across the gold Toyota Echo at Domino’s in Fyshwick, found the vehicle reversed into a store in Fyshwick. It had only been recently abandoned. The bonnet was still warm. The vehicle was seized. The seized vehicle had damage to the front left bumper bar which matched that which can be seen on the vehicle entering the Abode Hotel at 10:21am on 12 April 2020.

A subsequent examination of the vehicle showed Mr Williams-Savage’s fingerprints on the exterior surface of the front driver side window frame, front door and rear driver side door. In the driver’s side was a black glove. There was a package of the same specification 10 pack of Irwin brand angle grinder discs as had been earlier purchased by Mr Williams-Savage. The package contained used discs and there was also such a disc on a Milwaukee brand angle grinder. Also in the car was a sledgehammer and a crowbar.

DNA taken from the black glove and the driver controls of the vehicle provided extremely strong support for the proposition that Mr Williams-Savage was a contributor to those profiles.

At 7am on 13 April 2020 police found a backpack within the premises of Howard Revell Steering in Fyshwick. It was hanging upside down on a fence with a hammer hanging out of it. A number of items, including an angle grinder and disc, and a bent screwdriver were found beneath the backpack. It was extremely likely that the DNA on the backpack included that of Mr Williams-Savage. There was very strong support for the proposition that Mr Williams-Savage contributed to the DNA found on a bent screwdriver within the backpack. The angle grinder disc was of the Irwin brand of the same specifications as had been purchased from Bunnings by Mr Williams-Savage on 11 April 2020. There were also Lenox Metal Max brand discs which matched cardboard packaging found in the old Toyota Camry.

On 14 April 2020 CCTV from the Abode Hotel in Tuggeranong shows a person of similar build and appearance to the bearded man involved in the Domino’s Fyshwick burglary appearing to visit the room which Mr Williams-Savage had been booked into. He was wearing tracksuit pants with a thick white stripe similar to that seen on the CCTV of the burglary.

Mr Williams-Savage participated in a recorded interview with police on the 18 April 2020.

(a)He declined to say anything about the incident on 5 April at Domino’s in Florey.
(b)He denied ever knowingly being in a white Ford Fiesta YNN88Y recently.
(c)He admitted having been in a gold Toyota Echo recently. He said that was a few days ago and “That’s all I’m going to say.” He said that after the fact he knew it was stolen. He said he was on the passenger side of the vehicle and that he did not know who the driver was.
(d)In relation to the burglary of the Domino’s store in Fyshwick (which the police alleged that he had committed with a “Jamie Rootsey”) he said he knew nothing.
(e)He identified the address in Burhop Close, Theodore as his ex-partner’s house.
(f)He said he had bought the old white Toyota Camry from someone in the street down from his.
(g)He said that he did not have a licence. He couldn’t tell the police anything about the Victorian registration plates QPW86S which were found on the old white Toyota Camry or the registration plates YNN88Y.
(h)He declined to say who had the vehicle last or identify anyone who had been in it lately. He said he had “no idea” why it was in Bonython and denied that he had put it there.
(i)He said he was not working at the moment did not get any government benefits and had no addictions.
(j)He said he had no licence and his licence was disqualified until 2028. He said he had bought the car so that he could get a lift.
(k)He denied knowing anything about a Ford Fiesta that was stolen on 5 April.
(l)In relation to Bunnings, he initially said that he could have been there but did not recall it. When he was shown a photograph from CCTV at Bunnings he agreed that it was him. He then recalled having bought Irwin brand angle grinder discs and a drill bit. He said he bought them because he was working on a shed at his grandmother’s place and levelling out the posts.
(m)He was told that the Ford Fiesta was tracked to Burhop Street in Theodore and he said there was nothing he wished to tell police about that.

Mr Sloane was arrested on 22 July 2020. Video of him at the ACT Watchhouse was tendered. In that video he is clean shaven. He appears somewhat thinner than the bearded man shown in the CCTV of the Domino’s Fyshwick and at the Abode. He walks in a similar manner to the man at the Abode.

Consideration

Is it Mr Williams-Savage?

A fundamental issue in relation to counts 1 to 11 is whether the person shown in the various CCTV videos is Mr Williams-Savage. It is clear that Mr Williams-Savage:

(a)bought the old Toyota Camry;
(b)purchased Irwin brand angle grinding discs from Bunnings; and
(c)occupied a room at the Abode Hotel in Tuggeranong on at least 11 and 12 April.

These facts provide uncontestable anchors for the Crown case.

The burglars are one person: The man who attempts entry to Quintessence Nail and Beauty, who burgles Domino’s Florey on 5 and 8 April and Domino’s in Fyshwick on 12 April are the same person. The use of the SENH jacket at Quintessence Nail and Beauty and Domino’s Florey on 5 April and Domino’s Fyshwick on 12 April makes that likely. The use of the crowbar in each incident reinforces that likelihood. The use of angle grinders in the incidents on 8 and 12 April and the obvious link between the failed attempt to open the safe on 5 April and the subsequent return of the person with an angle grinder on 8 April reinforce that the person involved was the same person.

Physical matters personal to Mr Williams-Savage: There are a number of personal features of the accused that connect him to one or more of the incidents. The physical appearance and manner of moving shown in the CCTV from the Abode Hotel is consistent with the appearance of the burglar at the attempted burglary and each of the three burglaries. What little can be seen of the burglar’s face is consistent with the appearance of Mr Williams-Savage. Mr Williams-Savage wears a black faced watch on his left wrist at the Abode Hotel. So does the burglar at Domino’s Fyshwick. Mr Williams‑Savage wears Adidas shoes with thick white soles and three stripes at the Abode Hotel. So too does the burglar at Domino’s Fyshwick. This aggregation of factors points towards Mr Williams-Savage being the person seen on the various videos of the incidents.

Non-physical matters personal to Mr Williams-Savage: Contrary to the submission made on behalf of Mr Williams-Savage, the tracking data starts at the Florey shopping centre where the Domino’s store is located. Following the burglary on 5 April, the stolen Ford Fiesta travelled to an address associated with Mr Williams-Savage, namely the address of his ex-partner. That is consistent with his involvement in the burglary. It is likely that there was more than one person involved in that burglary even though only one person went into the premises. I do not consider the fact that Mr Williams-Savage’s partner was not called or that his ex-partner’s mother had not seen him detracts from the significance of this evidence. The significance is that the vehicle went to a location which had a clear association with Mr Williams-Savage.

Consistency of GPS and telephone records: The mobile phone number ending in 919 was registered in Mr Williams-Savage’s name and was provided by him when booking at the Abode Hotel. Although this does not conclusively establish that this was the number of the phone that he was using at the relevant time, collectively those two matters provide reasonably strong support for that proposition.

The mobile phone location evidence places Mr Williams-Savage in North Canberra close to, but not in, Page (the location of Quintessence Nail and Beauty) or Florey (the location of Domino’s) in the time between the attempted burglary and the burglary on 5 April. Following the burglary of Domino’s Florey on that day, the mobile phone evidence is consistent with Mr Williams-Savage’s phone being at Darcy Close in Gordon and then at Burhop Close in Theodore when the stolen Ford Fiesta vehicle was there. At the time of the burglary of Domino’s in Florey on 8 April 2020 the mobile phone evidence clearly establishes him as being in the area. It is consistent with him being one or two minutes’ drive away from the Florey Domino’s store. Because of uncertainty surrounding the precise timing of the burglary, it cannot be said with complete confidence that the evidence is consistent with him being at the store. The evidence is consistent with him travelling south on the Monaro Highway shortly after the Domino’s Fyshwick burglary.

While there were only a selected number of telephone calls in relation to which the exercise of identifying the location of the cell tower and the relevant antenna was undertaken, that evidence is strong evidence that the person using the phone with the number ending 919 was involved in the burglaries.

I do not accept the submission that the calls which were the subject of the evidence in exhibits 37.2 and 37.3 are not strongly supportive of Mr Williams-Savage’s phone being near Darcy Close in Gordon and Burhop Close in Theodore. In both cases the 65 degree angle covered by each relevant antenna (of which Mr Chang gave evidence) and the distance from which 99 per cent of the calls were made during the relevant period provides strong support for the presence of the phone in the location indicated by the GPS tracking data. While it is clearly a possibility that a phone call may have been made from the rural areas encompassed by the 99 per cent of calls made within the 65 degree arc, it is much more likely that the call was made from within the suburban area encompassed within that area. That suburban area is relatively small and hence shows close consistency with the tracking data. The evidence that a tower identified as “Weston” captured a call at a time when the GPS tracking data showed the stolen Ford Fiesta as travelling down the Tuggeranong Parkway adjoining the suburb of Weston supports the contention that Mr Williams-Savage’s phone travelled the route shown by the GPS data, although there is clearly a greater degree of uncertainty relating to the location of that tower, having regard to the absence of specific evidence about the location or the antenna used for that communication.

I accept that the evidence does not disclose any calls made using a tower on Newcastle Street in Fyshwick at the time of the Domino’s Fyshwick burglary. There were no calls between 4:54am and 5:55am using the phone number ending 919. The absence of such calls during the critical period reduces the significance that the submission made on behalf of Mr Williams-Savage would have had if there had been calls during that period which had used towers inconsistent with Mr Williams-Savage being present in Fyshwick at the time.

Control of vehicles: Mr Williams-Savage is shown to be in control of the old white Toyota Camry (which was bought from Mr Buchs) and the Gold Toyota Echo (which was stolen on 12 April shortly prior to the burglary at Domino’s Fyshwick). Those were the vehicles that he drove when entering and exiting the Abode Hotel. Except on one occasion when he departed with a woman, it is highly likely that he did so alone. His control of the Toyota Echo and the use of the number plates taken from the Ford Fiesta stolen on 5 April are more consistent with him being a principal in the events on 5 and 8 April than a less direct participant. The gold Toyota Echo had been stolen from Domino’s in Florey on the morning of 12 April using keys stolen on 8 April. The number plates on the old Toyota (YNN88Y) came from the Ford Fiesta stolen on 5 April. A vehicle consistent with the Ford Fiesta was involved in the burglary on 8 April.

Number-plates taken from Domino’s Florey between 7:30pm on 11 April and 8am on 12 April (QPW865) were, by 8am on 12 April, affixed to Mr Williams-Savage old white Toyota Camry. The number plates from the Ford Fiesta appear to have been attached to the old white Toyota Camry some time after the morning of 10 April. That both the Toyota Echo and the number plates arising from the incidents at Domino’s Florey have come into Mr Williams-Savage’s possession supports the proposition that he was involved in those earlier incidents and that he was a principal rather than having some lesser role. The control of the car associated with subsequent offending not only ties Mr Williams-Savage to that later offending but also lends weight to the proposition that he was the burglar rather than having some more peripheral role. It is clear that the gold Toyota Echo delivered the burglars to and from Domino’s Fyshwick on 12 April.

Techniques: Mr Williams-Savage is closely linked to the techniques used by the burglar in the four incidents:

(a)crowbars are used in each; and
(b)angle grinders are used in the three Domino’s incidents.

A crowbar is found the Toyota Echo which Mr Williams-Savage was shown (by DNA and CCTV from the Abode Hotel) to have used.

Mr Williams-Savage is shown to have purchased Irwin brand discs for an angle grinder at Bunnings. Discs of the make and specification purchased from Bunnings were found in the Toyota Echo. A disc of a different brand was found with the backpack containing his property at Howard Revell Steering in Fyshwick. That disc matched a disc which can be seen on the angle grinder used in the Domino’s store in Fyshwick. Cardboard packaging matching the disc was found in Mr Williams-Savage’s old white Toyota Camry.

Some of the submissions made on behalf of Mr Williams-Savage have been referred to in the various items above. My assessment of them will be apparent. There was some evidence relied upon by counsel for Mr Williams-Savage of there being a business vehicle identified by Mr Cable, an owner of Domino’s Fyshwick and Florey, as having been around an employee’s house on 11 April 2020, the day before the Fyshwick burglary. The evidence was limited and very unclear. It was not clear which vehicle it related to. It was suggested by counsel that it was the previously stolen Ford Fiesta but neither First Constable Holwell nor Mr Cable could say that it was. The evidence, such as it was, does not detract in any significant way from the Crown case or create a doubt about the scope of the police investigation.

I accept the submission made by counsel for Mr Williams-Savage that no evidence was given about the prevalence of the SENH emblazoned jacket that was seen prominently in the attempted burglary at Quintessence Nail and Beauty, the burglary at Domino’s Florey on 5 April and the burglary at Domino’s Fyshwick on 12 April. In the absence of evidence, that appears to be a matter in relation to which I am entitled to take into account my own experience, which suggests that it is not a common brand, acronym or message. None was suggested during the course of the evidence. None was suggested in submissions. It is plainly in a different category to evidence such as that of the three Adidas stripes on shoes which must be assessed on the basis that shoes branded in that way are likely to be common. It appears, to me, that the SENH jacket is a distinctive and unusual jacket which is of significance, along with other similarities, in tying the offender on 5 April 2020 to the offending on 12 April 2020.

The use of a black faced watch with a silver metal wrist band is another matter which counsel for Mr Williams-Savage said should be characterised as common and hence of little significance. While I accept that the watch is of a reasonably generic type, I consider that I am entitled to take into account my own experience that watches are becoming less prevalent in an era of pervasive mobile phone use. The significance of the watch wearing by the burglar and the watch wearing by Mr Williams-Savage is considerably less than the link between offenders provided by the SENH jacket.

I accept the submission made by counsel for Mr Williams-Savage that it has not been proved that the glove found on the floor of the Toyota Echo was the same glove as used in any of the offences. However, the existence of the glove in that car and the packet of gloves in the old white Toyota Camry are both pieces of evidence consistent with Mr Williams-Savage being the person who used apparently similar gloves during the course of the burglaries. I did not consider the possibility that Ms Gita Lala (a forensic biologist who gave evidence) may have tested the outside of the black glove for DNA rather than the inside is significant. I accept that, having regard to the images of the glove in situ, it was uncertain as to which side of the glove was inside and which was the outside. While there is a possibility of DNA ending up on the glove from secondary transfer, Ms Lala said that there was a "reasonable amount" of DNA there and it was "more likely" from the person coming into contact with the glove. Any issues about the DNA on the black glove must be considered in the context of my conclusion that it was Mr Williams-Savage driving the vehicle at 10:21 am at the Abode Hotel after the old white Toyota Camry had been seized by police.

So far as the interview with police was concerned, I have to assess the weight that should be given to Mr Williams-Savage’s denials of knowledge of the Ford Fiesta, anything to do with the Fyshwick burglary and his explanation for the purchase of angle grinder discs from Bunnings. The answers given during the course of that interview on a range of matters were careful and noncommittal. While it is clear that Mr Williams-Savage had no obligation to say anything to police, the nature of the answers that he did give are not such as to significantly undermine the Crown case or give rise to a doubt in my mind.

I accept the submission made by counsel for Mr Williams-Savage that where it is possible to identify the brand, there appear to be different brands of angle grinder used in the CCTV from that found in the Toyota Echo or in the backpack. Given the fact that multiple angle grinders are associated with Mr Williams-Savage, I do not consider this to be significant. I have considered the innocent explanation given by the accused that he had half constructed a shed in his grandmother’s back garden and used the angle grinder and discs for that purpose. Those facts are not inconsistent with him being the burglar but slightly lessen the significance of the evidence.

Taken altogether, the matters I have referred to satisfy me beyond reasonable doubt that Mr Williams-Savage was the attempted burglar at the Quintessence Nail and Beauty and the burglar who attempted to or actually opened the safe during each of the Domino’s burglaries. In particular, I am satisfied beyond reasonable doubt that the hypothesis that he was somehow involved in the incidents but in a way which did not involve himself being the burglar has been excluded. The series of connections to the offending, the nature of those connections and the similarity of appearance between Mr Williams‑Savage and the burglar are, in my view, collectively sufficient to exclude that hypothesis beyond reasonable doubt. No other hypothesis consistent with innocence was suggested and, in any event, in my view any other hypothesis is excluded beyond reasonable doubt.

In reaching this conclusion I have not had to rely upon coincidence reasoning. In this case, it is the aggregation of circumstances which excludes any reasonable hypothesis consistent with innocence. Coincidence reasoning based upon similarities between the incidents is not necessary and would add very little to the strength of the circumstantial case.

Is it Mr Sloane the bearded man?

In relation to count 12, a fundamental issue is whether the bearded man on the CCTV from Domino’s Fyshwick on 12 April is Mr Sloane. In relation to Mr Sloane:

(a)His DNA was found on the black jacket matching that worn by the bearded man at Domino’s Fyshwick.
(b)A mobile phone associated with him had numerous telephone calls with Mr Williams-Savage just before and just after the burglary.
(c)His car was located close to Mr Williams-Savage’s car after the Domino’s burglary.
(d)There are similarities in the appearance of Mr Sloane at the police station in July 2020, the bearded man at Domino’s Fyshwick and the man visiting Mr Sloane’s room in the Abode Hotel in Tuggeranong.

However the following matters tend to weaken the case against him:

(a)Notwithstanding that it was more likely that the DNA obtained from the leather jacket was as a result of direct skin contact, the manner in which the evidence was handled by police gives rise to a possibility of secondary transfer from the blue jacket which it was photographed with. Further, the bearded man in the CCTV from Domino’s Fyshwick is shown to be wearing a hood which would have prevented direct skin to skin contact on that occasion. (I do not consider the possibility of secondary transfer from the console of the new Toyota Camry was of any significance.)
(a)There is some doubt cast upon the use of the mobile phone by Mr Sloane because it was registered in someone else’s name, Mr Sloane’s relationship with that person was not explained and there was no admission by him that this was the phone number he was using at the time.
(b)Although there are similarities of appearance and in the manner of movement between Mr Sloane in July 2020, the CCTV of the bearded man at Domino’s Fyshwick and the bearded man at the Abode Hotel, in July 2020 Mr Sloane was clean shaven and appeared to be not as fat as the men shown at Domino’s Fyshwick or the Abode Hotel.

While having regard to the circumstantial evidence relied upon by the Crown there must be grave suspicion that Mr Sloane is the bearded man involved in the burglary of Domino’s in Fyshwick, I am not satisfied of that beyond reasonable doubt.

That means that he must be acquitted on count 12.

Did Mr Sloane drive the stolen Toyota Camry?

So far as the driving of the new Toyota Camry is concerned, the presence of Mr Sloane’s jacket and his fingerprint on the rear view mirror are not sufficient to establish that he was the driver of that vehicle beyond reasonable doubt. I accept that the position of the left-hand thumb print on the left-hand side of the mirror and the orientation which appears in exhibit 21, photos 19 - 21 is more consistent with it being placed there by the driver of the vehicle. However that position and the orientation of the thumbprint is not such as to exclude the possibility that it was placed there by somebody in the front passenger seat. Further, while DNA was recovered from the driver controls, Mr Sloane was excluded as a contributor to the profiles obtained. I accept that it is possible that, having driven the vehicle, his DNA was removed from the driver controls intentionally or simply through use. However, the existence of the DNA of Ms Dowling on the controls, and the absence of Mr Sloane’s DNA on those controls is, in my view, significant. While I can be satisfied beyond reasonable doubt that he rode in the vehicle, I cannot be satisfied that he drove the vehicle. It is not possible to exclude beyond reasonable doubt the possibility that Ms Dowling was the driver of the vehicle when Mr Sloane was present in it.

That means he must be acquitted on count 13.

Elements of the offences

I must therefore turn to the elements of the offences charged against Mr Williams‑Savage.

Attempted burglary - Count 1

Attempted burglary is a charge under s 311 of the Criminal Code by virtue of s 44 of the Criminal Code which provides:

44Attempt
(1)If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.
(2)However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.
(3)The question whether conduct is more than merely preparatory is a question of fact.
(4)A person may be found guilty of attempting to commit an offence even though—
(a)it was impossible to commit the offence attempted; or
(b)the person committed the offence attempted.

(5)For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.
NoteOnly 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)).

(6)However, any special liability provisions that apply to an offence apply also to the offence of attempting to commit the offence.
(7)Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of attempting to commit the offence.
(8)If a person is found guilty of attempting to commit an offence, the person cannot later be charged with committing the offence
(9)The offence of attempting to commit an offence is punishable as if the offence attempted had been committed.
(10)This section does not apply to an offence against s 45 or s 48 (Conspiracy).

Section 311 of the Criminal Code provides:

311Burglary
(1)A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent—
(a)to commit theft of any property in the building; or
(b)to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or
(c)to commit an offence in the building that—
(i) involves causing damage to property; and
(ii) is punishable by imprisonment for 5 years or longer.
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.

(2)In subsection (1) (b) and (c), offence includes an offence against a Commonwealth law.
(3)Absolute liability applies to subsection (1) (c) (ii).
(4)For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building—
(a)for a purpose that is not the person’s intended purpose; or
(b)because of fraud, misrepresentation or someone else’s mistake.

(5)In this section:
building includes any of the following:

(a)   a part of any building;
(b)   a mobile home or caravan;
(c)   a structure (whether or not movable), vehicle, or vessel, that is used, designed or adapted for residential purposes.

The elements of the offence of attempted burglary are:

(a)The accused intended to commit a burglary, in that:
(i)The accused intended to enter or remain in a building.
(ii)The accused knew that entry into or remaining in the building would have been without permission.
(iii)The accused intended that, at the time of entering or remaining on the property, he would commit theft of any property in the building.

(b)The burglary was attempted (in that the accused engaged in intentional conduct that was more than merely preparatory to the offence of burglary).

Having regard to what can be seen in the CCTV of the incident and the evidence as to what occurred subsequently in the burglaries of the Domino’s stores, I am satisfied beyond reasonable doubt that the accused intended to commit a burglary. Although for reasons which were unclear, he was interrupted and desisted, he clearly wish to gain access to the premises and that was for the purpose of committing theft of property within the premises.

Further, I am satisfied beyond reasonable doubt that the offender took steps which were more than merely preparatory to the burglary and did so intentionally. Those steps were the attempts to prize open the door using the crowbar and the attempt to smash his way in through the glass.

I am therefore satisfied beyond reasonable doubt that this offence is established.

Damaging property - Counts 2 and 7

Damaging property is a charge under s 403 of the Criminal Code which provides:

403Damaging property
(1)A person commits an offence if the person—
(a)causes damage to property belonging to someone else; and
(b)intends to cause, or is reckless about causing, damage to that property or any other property belonging to someone else.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

The elements of the offence are:

(a)The accused engaged in conduct.
(b)The accused intended to engage in that conduct.
(c)The accused’s conduct caused damage to the property.
(d)The accused intended to cause damage to the property or any other property belonging to someone else, or was reckless about causing damage to the property or any other property belonging to someone else.
(e)The damaged property belonged to someone else.
(f)The accused was reckless as to whether the property belonged to someone else.

Recklessness may be established by proving knowledge or intention or proving the matters referred to in s 20(1) or (2) of the Criminal Code. Those subsections provide that recklessness in relation to a result or circumstance exists where:

(a)the person is aware of a substantial risk that the result will happen or that the circumstance exists or will exist; and
(b)having regard to the circumstances known to the person it is unjustifiable to take that risk.

In relation to count 2, I am satisfied beyond reasonable doubt that Mr Williams-Savage intentionally engaged in conduct which damaged the glass window of the premises when he swung the crowbar into it. I am satisfied beyond reasonable doubt that the property belonged to the A N Fragopoulos and A Fragopoulos trading as Quintessence Nail and Beauty, who were the lessees of the premises. I am satisfied beyond reasonable doubt that the offender knew that the property belonged to someone else. I am therefore satisfied that the elements of the offence have been established beyond reasonable doubt.

In relation to count 7, I am satisfied beyond reasonable doubt that Mr Williams-Savage intentionally engaged in the conduct which damaged the safe within the Domino’s Florey store when he used an angle grinder to remove its door and obtain access to the compartments within it. I am satisfied beyond reasonable doubt that the safe belonged to Ezy 10 Pizza Company Pty Ltd. I am satisfied beyond reasonable doubt that Mr Williams‑Savage knew that the property belonged to somebody else. I am therefore satisfied that the elements of the offence have been established beyond reasonable doubt.

Burglary - Counts 3 and 10

Burglary is a charge under s 311 of the Criminal Code and is set out at [119] above:

The elements of the offence are:

(a)The accused entered or remained in a building.
(b)The accused intended to enter or remain in the building.
(c)The accused was a trespasser (that is, he had no permission to enter or remain in the building).
(d)The accused was reckless as to whether his entry into or remaining in the building was without permission.
(e)At the time of entering or remaining on the property, the accused intended to commit theft of any property in the building.

These counts relate to the burglaries on 5 April 2020 at Domino’s Florey and on 12 April 2020 at Domino’s Fyshwick. Count 10 is in the alternative to count 9 which was dependent upon establishing that the other offender present during the burglary was Daniel Sloane. Because that has not been established it is necessary to deal with count 10.

In relation to both offences, I am satisfied beyond reasonable doubt that each element is made out. The offender intentionally remained in the building. He was a trespasser. He knew he was a trespasser. He intended to commit theft of property in the building when he entered the building and when he remained in the building.

Theft - Counts 4 and 8

Theft is a charge under s 308 of the Criminal Code which provides:

308Theft
A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property
Maximum penalty: 1000 penalty units, imprisonment for 10 years or both.
NoteFor alternative verdict provisions applying to this offence, see s 370, s 371 and s 372.

The elements of the offence are:

(a)The accused appropriated something.
(b)The accused intended to appropriate something.
(c)The something that is appropriated is property.
(d)The accused was reckless as to the fact that what was appropriated was property.
(e)The property belongs to another person.
(f)The accused was reckless as to the fact that the property belonged to another person.
(g)The appropriation was dishonest according to the standards of ordinary people.
(h)The accused knew that the appropriation was dishonest according to the standards of ordinary people.
(i)At the time that the accused appropriated the property, the accused intended to permanently deprive the person to whom the property belonged of the property.

Recklessness may be established in the ways referred to earlier.

Count 4 relates to the theft of $60, the closed-circuit television hard drive and keys to the white Ford Fiesta. Mr Cable gave unchallenged evidence that these items were missing from the premises after the burglary on 5 April. I am satisfied beyond reasonable doubt that the items were intentionally taken by the offender, that the property belonged to Ezy 10 Pizza Company Pty Ltd, the offender knew that it belonged to somebody else, that it was dishonest, that the offender knew it was dishonest and intended to permanently deprive the owner of the property. I am therefore satisfied beyond reasonable doubt that the elements of this offence are established.

In relation to count 8, I am satisfied beyond reasonable doubt that Mr Williams-Savage intentionally appropriated the following property of Ezy 10 Pizza Company Pty Ltd: $7560 in Australian currency, a Domino’s Pizza hot bag and a car key. I am satisfied beyond reasonable doubt that the offender knew that these items were property and that they belonged to another person. I am also satisfied that the appropriation was dishonest, that Mr Williams-Savage knew it was dishonest and that he intended to permanently deprive the owner of the property. I am therefore satisfied beyond reasonable doubt that the elements of this offence are established.

Take motor vehicle without consent - Count 5

Take motor vehicle without consent is a charge under s 318(1) of the Criminal Code which provides:

318Taking etc motor vehicle without consent
(1)A person commits an offence if the person—
(a)dishonestly takes a motor vehicle belonging to someone else; and
(b)does not have consent to take the vehicle from a person to whom it belongs
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
Note 1Pt 2.3 (Circumstances where there is no criminal responsibility) provides for defences that apply to offences under the Code. These include the defence of lawful authority (see s 43).
Note 2For the meaning of dishonest, see s 300.

…
NoteFor alternative verdict provisions applying to an offence against this section, see s 370.

The elements of the offence are:

(a)The accused took a motor vehicle.
(b)The accused intended to take the motor vehicle.
(c)The motor vehicle belongs to someone else.
(d)The accused was reckless as to the fact that the motor vehicle belonged to someone else.
(e)The taking was dishonest according to standards of ordinary people.
(f)The accused knew that the taking was dishonest according to the standards of ordinary people.
(g)The person to whom the vehicle belongs did not consent to the taking.
(h)The accused was reckless as to the fact that the person to whom the vehicle belongs did not consent to the taking.

Recklessness may be established in the ways referred to earlier in these reasons.

This count relates to the taking of the Ford Fiesta. The evidence about the taking of this vehicle is contained in the CCTV from Domino’s Florey and the tracking data which shows that the vehicle went to Mr Williams-Savage’s ex-partner’s house. There is also the telephone call information which shows that his phone used the Weston cell tower at a time consistent with the passage of the vehicle past the suburb of Weston at 5:07am. The tracking data shows that the vehicle left the premises at 4:55am. I have a doubt as to whether or not it was the offender who took the vehicle. That is because the CCTV from the Domino’s store is not clear enough to show that the same person who exited the premises was the person who ultimately got into the Ford Fiesta and drove away. The person who exited the premises can be seen moving about outside but, at the point immediately prior to the Ford Fiesta driving away, it is not clear beyond reasonable doubt that it was the same person who exited the store who got into the driver’s seat and drove away. The possibility that somebody else drove the vehicle away arises because it is likely that the offender arrived by car and it is unlikely that the car in which he arrived was left at the premises. It is therefore likely that he had an accomplice of some sort. It is a possibility, which based on the CCTV I cannot exclude, that the accomplice drove the Ford Fiesta. The probabilities are that the offender himself drove the Ford Fiesta but that is not sufficient. The tracking and phone data do not exclude the possibility that someone else drove the Ford Fiesta because it would make sense that offender and accomplice would meet up and the accused may only have subsequently taken over the driving of the stolen vehicle after it reached South Canberra. I am therefore not satisfied beyond reasonable doubt that the first element of this offence is established and hence the charge as a whole cannot be made out.

Aggravated burglary - Counts 6 and 9

Aggravated burglary is a charge under s 312 of the Criminal Code which provides:

312Aggravated burglary
A person commits an offence (aggravated burglary) if the person—
(a) commits burglary in company with 1 or more people; or
(b) commits burglary and, at the time of the burglary, has an offensive weapon with him or her,
Maximum penalty: 2 000 penalty units, imprisonment for 20 years or both.

The elements of the offence are:

(a)The accused entered or remained in a building.
(b)The accused intended to enter or remain in the building.
(c)The accused was a trespasser (that is, he had no permission to enter or remain in the building).
(d)The accused was reckless as to whether his entry into or remaining in the building was without permission.
(e)At the time of entering or remaining on the property, the accused intended to commit theft of any property in the building.
(f)The accused was in the company of one or more persons at the time of committing the burglary.
(g)The accused was reckless as to whether he was in the company of one or more persons.

Recklessness may be proved in the ways referred to earlier. Being “in company” involves two or more persons being present and sharing the same purpose to enter or remain in the building in order to commit theft of property in the building.

Count 6 relates to the burglary at Domino’s Florey on 8 April 2020. I am satisfied that the accused intentionally entered and remained in the building, that he did so as a trespasser, that he knew he was a trespasser, that he entered and remained in the building with the intention to commit theft of property in the building, that he was in the company of the unidentified accomplice shown on the CCTV and that he knew he was in company. I am therefore satisfied beyond reasonable doubt that the elements of this offence are established.

Count 9 cannot be established because it specifically refers to being in company with Daniel Sloane. For reasons I have given earlier I am not satisfied beyond reasonable doubt that Mr Sloane was the co-offender. The offence therefore cannot be established. The alternative charge of burglary simpliciter has been dealt with earlier.

Drive motor vehicle without consent - Count 11

Drive motor vehicle without consent is a charge under s 318(1) of the Criminal Code which provides:

318Taking etc motor vehicle without consent
…
(2)A person commits an offence if—
(a)the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and
(b)the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
NoteFor alternative verdict provisions applying to an offence against this section, see s 370.

The elements of the offence are:

(a)The accused drove the motor vehicle.
(b)The accused intended to drive the motor vehicle.
(c)The motor vehicle belongs to another person.
(d)The accused was reckless as to the fact that the motor vehicle belonged to another person.
(e)The driving of the vehicle by the accused was dishonest according to the standards of ordinary people.
(f)The accused knew that the driving of the vehicle was dishonest according to the standards of ordinary people.
(g)The motor vehicle had been dishonestly taken from the person to whom it belonged without that person’s consent.
(h)The accused was reckless as to the fact that the vehicle had been dishonestly taken from the person to whom it belonged without that person’s consent.

Recklessness may be proved in the ways referred to earlier.

Count 11 relates to the driving of the gold Toyota Echo by Mr Williams-Savage on 12 April 2020. I am satisfied beyond reasonable doubt that he drove that motor vehicle. He drove it to and from the scene of the Domino’s Fyshwick burglary and to and from the Abode Hotel at the times described earlier in these reasons. I am satisfied beyond reasonable doubt that the motor vehicle belonged to Ezy 10 Pizza Company Pty Ltd and that Mr Williams-Savage knew that it belonged to somebody else, knew that it was taken without consent, that the driving was dishonest and that he knew that the driving of the vehicle was dishonest. I am therefore satisfied beyond reasonable doubt that the elements of this offence are made out.

Orders

The verdicts that I return in relation to Mr Williams-Savage are:

(a)Count 1: guilty.
(b)Count 2: guilty.
(c)Count 3: guilty.
(d)Count 4: guilty.
(e)Count 5: not guilty.
(f)Count 6: guilty.
(g)Count 7: guilty.
(h)Count 8: guilty.
(i)Count 9: not guilty.
(j)Count 10: guilty.
(k)Count 11: guilty.

The verdicts that I return in relation to Mr Sloane are:

(a)Count 12: not guilty.
(b)Count 13: not guilty.

I certify that the preceding one hundred and fifty-two [152] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 11 August 2021