R v Zarei - [2020] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ZAREI
Criminal Trial by Judge Alone
[2020] SADC 44
Reasons for the Verdict of His Honour Judge Durrant
17 April 2020
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Accused charged with offence of Attempted Aggravated Robbery of a 50-pack of cigarettes. The accused denied the requisite intention to deprive the owner permanently of the 50-pack of cigarettes.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 s 5, s 137, 270A(a); Juries Act s 7(1)(a); Evidence Act 1923 s 34P, referred to.
R v Hillier [2007] HCA 13; Edwards v The Queen (1983) 178 CLR 193; R v Nieterink (1999) 76 SASR 56, [1999] SASC 568; R v Maiolo (No. 2) (2013) 117 SASR 1, [2013] SASCFC 36; Douglass v The Queen [2012] HCA 34, considered.

R v ZAREI
[2020] SADC 44
Introduction

Mr Zarei pleaded not guilty to Attempted Aggravated Robbery but guilty to aggravated assault.
Statement of Offence
Attempted Aggravated Robbery. (Sections 137(1) and section 270A of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Arash Adam Zarei on the 3rd day of December 2018 at Christies Beach, attempted to commit the theft of cigarettes from ‘On The Run’ by threatening to use force against Joanna Marie Lynn Walker, and the threat was made at the time of, or immediately before, the attempted theft.
It is further alleged that Arash Adam Zarei threatened to use an offensive weapon, namely a syringe, to commit or when committing the offence.
The complainant was not called. Her unchallenged evidence was agreed and contained in three written statements.[1] CCTV footage recorded the movements and actions of the accused and his interactions with the complainant for the entirety of the time he was in the On The Run (OTR).[2]
[1] P1.
[2] P3 and P4 (a timeline of the footage).
What was said between the accused and the complainant, which can be seen but not heard on the footage, was set out in the unchallenged statements of the complainant and was also the subject of evidence from the accused.[3]
[3] T25.5-T55.2.
The accused is charged with an attempt; therefore, it must be proved that the accused intended to commit the offence of robbery.
The offence of robbery has three elements, which the prosecution must prove.
First, it must prove that Mr Zarei intended to commit the theft of the cigarettes.
A theft is committed if a person deals dishonestly with property, without the owner’s consent and at that time intended to either permanently deprive the owner of that property or make a serious encroachment on the owner’s proprietary rights. A person deals with property if they take, obtain or receive the property.[4]
[4] Section 130 Criminal Law Consolidation Act, 1935.
Second, it must prove that Mr Zarei threatened to use force, against the complainant at the OTR, in order to commit theft.
Third, it must prove that the threat was made, at the time of, or immediately before the attempted theft.
Finally, the offence is aggravated if the circumstance of aggravation, that Mr Zarei threatened to use an offensive weapon to commit or when committing the offence, is proved. [5]
[5] Ibid s.5.
Identity, and that a threat was made, was admitted.[6] The issue in dispute was whether Mr Zarei intended to commit the theft of the cigarettes: intending to dishonestly deal with that property, without the owner’s consent and at that time intended to either permanently deprive the owner of that property or make a serious encroachment on the owner’s proprietary rights.[7]
[6] T2.30-34 and T10.23-26.
[7] T10.9-16.
Therefore, the sole issue at trial, heard without a jury,[8] was whether Mr Zarei had the requisite intention to rob.
[8] By notice dated 15 October 2019, the accused elected under s 7(1)(a) of the Juries Act, 1927, to be tried by judge alone in respect of the attempted aggravated robbery charge.
Relevant Legislation
Section 137 and Section 270A of the Criminal Law Consolidation Act, 1935 provide:
Robbery
137(1) A person who commits theft is guilty of a robbery –
(a) the person –
(i) uses force, or threatens to use force, against another in order to commit the theft;
…
(b) the force is used, or the threat is made, at the time of, or immediately before or after, the theft.
Attempts
270A(a)Subject to subsection (2), a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence.
General Direction
The accused came before this Court with the presumption of innocence in his favour. The burden of proving all of the elements of the charge laid wholly upon the prosecution. It was for the prosecution to rebut any reasonable hypothesis consistent with innocence. The defence was not required to prove anything.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words proved, established or satisfied in each case, I mean to an extent which excludes a reasonable doubt.
The accused is presumed by law to be innocent of the charge unless and until the evidence that I accept satisfies me that each element of the charge has been proven beyond reasonable doubt. If, however, the evidence fails to satisfy me beyond reasonable doubt on any of the elements of the offence, then he remains innocent and I must return a verdict of not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by the witness. I can reject or accept all or part of the witnesses’ evidence.
The accused has given evidence. He was not obliged to give evidence but he chose to do so. His evidence must be considered along with the other evidence in the case. By giving evidence and presenting a case, he does not assume any burden of proof. That burden always remains with the prosecution. Even if I reject any explanation that was given by the accused, that is not the end of this matter. I must be satisfied that each of the elements of the charge under consideration has been proved beyond reasonable doubt, notwithstanding the case presented by the defence, before I can return a verdict of guilty.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy, prejudice or fear and not be influenced by public opinion.
Prosecution Evidence
Witnesses and Exhibits
The prosecution called only one witness, the lead investigator Detective Kilsby.[9] Through him, a record of interview with Mr Zarei was tendered.[10]
[9] T14.8-T24.13.
[10] P3 and P8.
As already mentioned, the evidence of the complainant was unchallenged and she was not called: three statements from her were tendered.[11]
[11] P1.
The CCTV footage tendered was recorded by cameras both inside and outside the OTR. A timeline for that CCTV footage accounted for the whole of the time Mr Zarei was inside the store. The timeline and footage clearly show the movements of Mr Zarei around the store and his interactions with the complainant.[12]
[12] P3 and P4.
The words spoken between the accused and the complainant, which can be seen but not heard on the footage, are set out in the complainant’s statements and were also the subject of evidence from the accused.[13]
[13] T25.5-T55.2.
Other exhibits included a map,[14] still photographs of the accused from the CCTV footage,[15] and documents relating to the search of the accused’s house and what was found.[16]
Agreed Facts
[14]    P2.
[15]    Attached to P1; P10.
[16]   P6, P7, P8 and D11.
Facts were agreed as follows:^[17]
[17] P5.
CCTV
DVD Exhibit P3 contains footage captured by the CCTV cameras at OTR Christies Beach, 159 Dyson Road, Christies Beach. The footage was captured by certain cameras on 1 and 3 December 2018.
The time and date shown on the footage is accurate.
The male shown at the counter on 1 December 2018 at 02:00:22 is the accused.
The man shown at the counter on 3 December 2018 at 02:03:22 is the accused.
The female working behind the counter on 3 December 2018 is the complainant, Joanna Walker.
Map
A marked map, showing the locations of the OTR and the accused’s house at 7/60 Davis Avenue, Christies Beach, and the distance between those properties, is Exhibit P2.
Identity Procedure
On 4 January 2019 at the Christies Beach Police Station Joanna Walker took part in a photographic identity procedure. She was shown a folder containing photographs of 8 males, and asked whether she was able to identify any person involved in the offence on 3 December 2018.
Ms Walker selected photograph 6, which is a photograph of the accused.
Police search of accused’s home.
During their attendance at 7/60 Davis Avenue, Christies Beach on 3 December 2018, police conducted a search.
The items seized included:
a.      Sneakers with orange shoelaces. Located next to front door.
b.      Blue jacket. Located on bed.
c.       White patterned bandana. Located in cupboard.
d.      Nobby’s Beef Jerky (x2). Located on bed.
e.       Grey Air Jordan track pants. Located on accused.
Guilty plea
·On 17 July 2019 in the Adelaide Magistrates Court the accused pleaded guilty to the offence of Aggravated Assault, alleged to have occurred on 3 December 2018. The offence alleges that the accused threatened the complainant with a syringe, being the same threat that is an element of the attempted robbery charge.
Defence Evidence
Mr Zarei gave evidence in his defence.
Mr Zarei said he had been injecting ice three to five times a week, whenever he had the cash. The evening before the alleged offending and early the following morning, he had been smoking weed and doing ice with friends at a house near the OTR. He went to the OTR to get cigarettes and drinks for the group and had not had enough money to pay for the ‘drinks and stuff’.[18] He looked at the price of the drinks he wanted while standing at the fridge and realised he could not afford drinks and cigarettes. He took a couple of drinks and put them inside his jacket. He placed one further drink - an Up & Go - on the counter, intending to pay for the drink and a packet of 50 cigarettes. He said to the complainant, ‘Can you please give me a pack of 50 smokes’. She said, ‘what type’. He replied, ‘Whatever comes in a 50’. After she got the pack out of a locked cabinet, he said, “Can I see it?”. He said that he asked that question because he had previously been given the ‘wrong’ cigarettes by that complainant and when he had attempted to return them unopened she denied him a refund.[19]
[18] T27.14-20.
[19] As noted, the complainant did not give oral evidence and was not subject to cross-examination. Her evidence was agreed and unchallenged. Her statements did not mention any previous interaction with the accused relating to the return of cigarettes or any item.
Mr Zarei said he asked the complainant to, ‘show me’ but she would not let him look at the pack. Mr Zarei said he felt paranoid and sick and he ‘pulled the syringe out that [he] had used earlier in the night [and] had in [his] pocket cause [he] didn’t want to throw it in the streets and [he] scared her, [he] wanted to scare her, that’s it, to hurt her a little because she was hurting [him]’.[20]
[20] T28.18-22.
The accused said the complainant then moved away from the counter. Mr Zarei walked out of the store but then thought he should go back into the store to get more drinks because the attendant was not there. He re‑entered the store a few minutes later and took more drinks without paying.
Mr Zarei said he had intended to pay for the cigarettes and the Up & Go: ‘I had a $50 note’.[21] After he finally left the OTR, he said that he returned to his friend’s house nearby and while there bought some weed with the $50 he had in his lanyard: being the $50 he said he had in his lanyard earlier and intended to use to pay for the cigarettes and drink.[22] Asked (in XN) whether he only wanted to look at the cigarettes Mr Zarei said, ‘Yes [he] wanted to see if they were the right ones’.[23]
[21]   T28.30-31.
[22]   T28.32-35.
[23]   T28.36-37.
Mr Zarei admitted, generally, to not telling the truth during his record of interview with Police.
In cross-examination, Mr Zarei was asked about the source of the $50 he said he had at the OTR. He said he had withdrawn $50 from the bank account of his father: who is his trustee. He said his father had given him a bankcard to access the account and that every time his father put money in the account, he had withdrawn it.[24]
[24] T29.34-T30.3.
The accused said that when he attended the OTR on 1 December, he did not have enough money for what he first wanted to buy, so he swapped that purchase to a packet of cigarettes.[25] When it was suggested to Mr Zarei, by the prosecution, that he had, in fact, changed his purchase to buy some crisps rather than cigarettes, Mr Zarei replied, that he did not remember what he had bought that night.[26]
[25] P3 at 2:00:18am.
[26] T31.29.
Mr Zarei said he often lost things. He said therefore he kept the things he would usually put in a wallet - his bankcard, money and transport cards - in a lanyard his mother had given him.
On 3 December, Mr Zarei said that when he went to the OTR he was wearing the lanyard but it could not be seen in the CCTV because it was covered by his shirt and jacket. In the lanyard, he said, he had a $20 note, a $10 note and another $20 note. He had earlier said he had withdrawn $50, but then said that earlier that evening he had withdrawn $30 cash at the Shell petrol station on Beach Road and that he already had $20 in cash, making up the $50. After the withdrawal of $30 he said he went to his friend’s house and they were hanging out there and talking. His friend had said to him, ‘Do you want a smoke?’ Mr Zarei said he had replied to his friend that he had cash and he would get the cigarettes. He said he made that offer because his friend had often let him use his house and had often given him cigarettes. Mr Zarei said that he had never purchased a 50-pack before and did not know how much a 50-pack cost. He said that he usually bought 40-packs and he knew they cost $42.
The accused said that he had injected ice at his dealer’s house before he went to his friend’s house. He said he had kept the syringe he had used because there had been nowhere to dispose of it at his dealer’s house. He said he still had the syringe in his right pant pocket when he was at his friend’s house. He said that he had not wanted to throw it away or that he had not been able to dispose of it at his friend’s house. He said that it must have been capped in his pocket because otherwise it would have stabbed him in the leg.
In answer to a closed question that he had not had enough money for the drinks he had wanted at the OTR, Mr Zarei told me that he had enough money for one drink and the 50-pack: $50. He said that he had wanted to buy three drinks plus a pack of 50 cigarettes but he recalled looking at the prices of the drinks, while standing in front of the fridge, and realising that three drinks would cost $15 (or $4.95 per drink) and making a calculation that he could not afford $15 for drinks and the cigarettes. He said he worked out that he had enough money on him for just one drink and the cigarettes. He admitted to stealing the other drinks.
Mr Zarei accepted that he had not tried to pay and nor had he made any motion to remove the money from his lanyard when he went up to the counter. He accepted that he had immediately got his bankcard out when he got to the counter at the OTR on 1 December. He accepted that on 3 December he had not asked for the cheapest cigarettes, just a pack of 50 cigarettes.
Mr Zarei admitted to wearing a white and black patterned bandana at the OTR on 3 December. He said he had got the bandana he was wearing from his friend’s house and that he was wearing it to impress a woman who was there. He said there had in fact been two white and black patterned bandanas: his friend’s and his. He maintained in cross-examination (as in the police interview) that the pattern on the bandana in the photos from the CCTV was different to the pattern on the bandana that had been found at his house. He said that he had been shocked, when questioned by Police, to realise that Police had also found a bandana at his house like the one he was shown wearing in the CCTV footage. He said that shock and realisation had made him believe he had been set up.
Mr Zarei said that when he was at his dealer’s house, he had bought $80 worth of ice using his bankcard and that he had obtained a further $80 of ice on credit. He said, in respect of the second purchase, he had given his bankcard to his dealer as collateral for the $80 he owed.
When he took the needle out of his pocket at the OTR, Mr Zarei said he recalled thinking, ‘Where did the cap go?’ Mr Zarei accepted that before he approached the counter he could have taken the cap off the syringe. He denied, having been shown the footage, that he had put his right hand into his right pocket while standing at the fridge in the OTR. He denied the suggestion put to him by Mr Edge that he had put his hand into his pocket to touch the syringe.
Mr Zarei accepted, that drugs had affected his memory. He volunteered that drugs had made him do stupid things like shoplifting and assaulting the complainant. When asked about the clarity of his recollection of what had happened on 3 December, Mr Zarei did not answer the question directly. Rather, he said he felt clear while giving evidence at Court because he had been exercising and had not taken drugs for 15 months. He agreed that he had told police things that had not been true and he had done so because he had been scared of admitting that he had done something wrong and also because he had not had a clear memory, when speaking to Police, of what had happened 10 hours earlier.
The defence called no other evidence.
Prosecution address
The prosecution said the admissions of stealing made by Mr Zarei showed a motive to steal the cigarettes because of a lack of funds. It was evidence also, Mr Edge submitted, of the accused’s intention in making the trip to the OTR.
Mr Edge submitted it was inherently implausible that Mr Zarei would obtain $80 worth of drugs on credit and leave his bankcard as collateral, when he had $50 of cash.
The accused’s actual memory of events, submitted the prosecution, was poor. In particular, his evidence concerning the bandana had been wrong as a matter of logic and common-sense. An explanation for that lapse, submitted the prosecution, is a memory flawed by drugs. The use of drugs had impacted his behaviour and decision making as Mr Zarei admitted that he knew that committing an assault and shoplifting was wrong but had done it anyway.
Mr Zarei, it was submitted, did use the syringe to try and steal the cigarettes. The CCTV had showed clearly the demand for the cigarettes was made after the threat. The difference between ‘hand me’ or ‘show me’, it was submitted, was therefore of no consequence. That was because, whatever words were used, the clear inference had been to require the cigarettes to be handed over. The combination of action and words established beyond reasonable doubt a requirement to hand the cigarettes over.
The Court was urged by the prosecution to reject the explanation given by Mr Zarei that he had not intended to steal the cigarettes. The prosecution said the accused’s version was inherently unlikely and that his plan had been to take the cigarettes and run out the door. It was submitted that Mr Zarei may now well believe his innocent explanation but that explanation was overwhelmingly against the evidence as he:
·usually paid for drugs in cash and by debit and it was unlikely that he had purchased $80 worth of ice and obtained another $80 worth on credit when he had $50 cash available in his pocket;
·had arrived at the OTR intending to steal items;
·knew the syringe was there and ready to be used;
·generally lacked funds and specifically lacked funds on this occasion to buy what he wanted;
·checked the syringe was still in his pocket when standing at the fridge and knew it was there and ready to be used;
·made a further decision to steal while in the store;
·requested the biggest and most expensive cigarettes when it had been his normal practice to buy 40-pack cigarettes;
·did not ask for the cheapest packet of 50 when price was important to him;
·asked for a 50-pack knowing a 40-pack was $42 and an Up & Go cost $4.95;
·did not care what brand the cigarettes were, in circumstances where he said he was trying to ensure he got the ‘right ones’; and
·approached his purchase on 1 December - when he had got his bankcard out early and up front - and on 3 December when he had made no movement to pay, very differently.
Defence Address

Mr Redford submitted the alternative versions as to what Mr Zarei had said to the complainant (‘show me’ or ‘give me’) meant the Court could not exclude, beyond reasonable doubt, that the intention of Mr Zarei was to simply look at the cigarettes.
The defence contended that it was self-evident Mr Zarei was intellectually challenged and suffering from the impact of drug use. It was also the case, Mr Redford submitted, that the accused was a ‘terrible liar’ and his record of interview was ‘laughable’. The difference in demeanour of Mr Zarei in his record of interview and when giving evidence was such that, having assessed those differences, the Court should find the explanation provided by Mr Zarei was too complex for a man of his intelligence to sustain as a lie and, accordingly, he should be believed. The Court, it was submitted, could also be satisfied that the difference between Mr Zarei’s behaviour on 1 December and 3 December 2018 could be explained because of the influence of drugs.
Mr Redford accepted there had been an intention to steal some drinks and that when the complainant walked away, Mr Zarei had taken the opportunity to steal more drinks. However, he submitted, that behaviour did not indicate an intention to steal the cigarettes.
Mr Redford conceded the evidence of Mr Zarei about the bandana had, to some extent, polluted the veracity of the balance of his evidence. He submitted that, in any event, the behaviour and conduct of Mr Zarei was bizarre and abnormal and opportunistic, rather than planned. The flawed recollection of Mr Zarei was accepted by his counsel to be problematic but, it was submitted, his explanation of an innocent intention held together and should be accepted as a reasonable hypothesis consistent with innocence.
The earlier thefts were conceded by Mr Redford to indicate a motive to steal. However, he submitted, the critical inference – an intention to steal the cigarettes - could not be drawn beyond reasonable doubt.
Mr Redford said the accused lied in his police interview to avoid admitting to the assault. He submitted those lies went to consciousness of guilt of the assault, to which Mr Zarei had entered a plea, and did not go to credit and could not be used for that purpose.
Specific Directions
Circumstantial evidence
The prosecution relied on several inferences that, it said, could be drawn from the whole of the circumstantial evidence presented in this case. While circumstantial evidence can afford very secure grounds for a conclusion of guilt, the amount of circumstantial evidence required to prove a charge beyond reasonable doubt varies from case to case. The number of circumstances proved can vary enormously, and so can the weight of the various circumstances to be proved. A case which depends substantially upon circumstantial evidence, as in this case, is sometimes likened to a rope and the many strands which go to make it up. A rope has the combined strength of all its strands. Some of the strands may be strong, while some of them may be weak. When they are all twined together, they may produce a total effect and strength which is greater than the strength of any one of the strands. The weight of this case, which is based substantially upon circumstantial evidence, ultimately depends upon the combined strength of all the evidence.
As the prosecution case relied upon circumstantial evidence, I must not return a verdict of guilty to this charge unless the circumstances exclude any reasonable hypothesis consistent with innocence. In being satisfied that Mr Zarei is guilty of this offence, I must be satisfied, not only that his guilt is a rational inference but that it had been the only rational inference that, the circumstances I find proved, enable me to draw.
My consideration of the circumstantial evidence in this case requires me to take two steps.
First, determine the facts established by the evidence. Second, consider what inference or inferences can be drawn from those facts. That second step requires me to consider the inferences capable of being drawn from the combined strength of all the established facts.[27] To return to the analogy of the rope, when all the established strands of facts are twined together, they may produce a strength which is greater than the strength of any one of the individual strands. A rope of very weak strands may still be very weak. I must consider whether the combined strength of all of the established facts is enough to prove the prosecution case beyond reasonable doubt. Any inferences drawn against Mr Zarei must be the only rational inferences which the established facts enable me to draw. I must not return a verdict of guilty unless the facts exclude any reasonable hypothesis consistent with innocence.
[27] R v Hillier [2007] HCA 13 at [46]-[48] per Gummow, Hayne and Crennan JJ.
I must have regard to the whole of established facts in considering what inference or inferences to draw.
Lies
The prosecution in this case also submitted that Mr Zarei told lies during his interview with Police on 3 December 2018 and in his evidence at trial. It was submitted by the prosecution that those suggested lies were important in the Court’s consideration of this case. The prosecution did not argue that the statements were lies that show that the accused knew that he was guilty of the offence.[28] The prosecution contended that the telling of lies by the accused was relevant only to his credibility.[29]
[28] Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.
[29] Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [23].
The defence accepted Mr Zarei told lies to Police but said that the lies of Mr Zarei told Police during his interview were relevant in respect of the assault and could not go to his credit.
Whether Mr Zarei did lie about one or more aspects of the relevant events is something which I must consider. In doing so, I must have regard to several matters.
People lie for all sorts of reasons. A person may lie through panic, shame, fear, threats, embarrassment, to protect some other person, or because of fear that someone will think the worse of them if they tell the truth, or perhaps they will not be believed by telling the truth. A person may lie because they fear the truth may falsely implicate them or because they fear that the truth may have an impact on another area of their life.
Usually, lies do no more than reflect on the credibility or believability of the evidence given by the accused - the telling of a lie may cause me to distrust his evidence. Much will depend upon how significant the lie is or any explanation for it.
I cannot infer guilt in these circumstances from the simple telling of a lie. I may, in the event Mr Zarei lied, consider those lies only in assessing his credibility.
Discreditable conduct
The prosecution also led evidence in this case of discreditable conduct on the part of the defendant: the stealing of drinks before and after the alleged offending. There was no objection to that evidence and while s 34P(1) of the Evidence Act, 1923 specifies that propensity reasoning is impermissible, s 34P(2) does not require the Court to intervene and exclude evidence where there is no objection. However, I must still decide what the permissible use of that evidence is.
Mr Redford conceded that the earlier thefts indicated a motive to steal. The prosecution went further and submitted the earlier and later thefts showed a motive to steal due to a lack of funds.
I must not use the evidence of either the earlier or later stealing for an impermissible purpose.[30] It cannot be used to merely show ‘that the accused had committed similar offences and that the accused was the sort of person who might commit the crimes charged, and find him guilty on that basis.’[31] To be used it must have a permissible use. In this case, the prosecution submits this is to establish a motive to steal the cigarettes. If I am satisfied that a motive is established this is a circumstance to be considered with all the other evidence in this case.
[30] R v MJJ (2013) 117 SASR 81; [2103] SASCFC 51 at [18].
[31] R v Nieterink (1999) 76 SASR 56; [1999] SASC 560 [86]; Approved in R Maiolo (No. 2) (2013) 117 SASR 1; [2013] SASCFC 36 [73]-[75].
Finding of Facts
As well as the agreed facts, I find the following facts established on the whole of the evidence.
There are two findings of fact I have made, as set out below, where the evidence of the accused differs from the CCTV footage. In both instances, which have been noted, I have preferred what is recorded by the CCTV.
On 1 December 2018, at 1:58:07am, the accused entered the OTR.[32] He placed nuts and chocolates on the counter and presented his bankcard to obtain a balance. His account contained insufficient funds. He grabbed two bags of crisps instead and purchased them by direct debit.
[32] At 159 Dyson Road, Christies Beach. Exhibit P3 and Exhibit P4 - the CCTV footage.
On Monday 3 December 2018,[33] at 2:00:12am, Mr Zarei again went to the OTR. He pushed the buzzer on the locked front doors of the store. He entered and while standing in front of the fridge, put his right hand into his right pant pocket.[34] Inside that pocket, he had earlier placed a used and capped syringe. Mr Zarei and the complainant made eye contact. The complainant became suspicious he was stealing. She could hear rustling and she could see on the big security mirror what looked like Mr Zarei putting things in his jacket. Mr Zarei had taken two drinks: placing them inside his jacket.
[33] P3 and P4, at 2:00:12am.
[34] P3 at 2:01:10am. In his evidence, Mr Zarei denied putting his hand in his pocket when standing at the fridge. The CCTV showed him doing so. That is the first instance in which the evidence of the accused differs with the footage and I have preferred the CCTV footage.
Mr Zarei then carried an ‘Up & Go’ drink to the counter. The complainant recognised him as a regular. Mr Zarei asked the complainant for a 50-pack of cigarettes. In December 2018, cigarettes at the OTR were kept in a locked cupboard behind the counter. Signage above the cupboard listed some of the stocked cigarettes including size and price. A 50-pack was the largest size.
The complainant asked what type. Mr Zarei responded, ‘Whatever comes in a 50’. The complainant got a packet of 50 cigarettes from the locked cupboard and held them up to Mr Zarei for him to see.[35] Mr Zarei said, while holding one of his hands out and towards the complainant, ‘Can you show me?’ The complainant replied, ‘I can’t hand them over until you’ve paid’.[36]
[35] P3 at 2:03:18am; Mr Zarei said the complainant did not let him look at the 50-pack but the CCTV shows the complainant holding out the cigarettes to Mr Zarei for him to look at. That is the second instance in which the evidence of the accused differs with the footage and I have preferred the CCTV footage.
[36] P1.
Mr Zarei reached his right hand into his right pant pocket and pulled out the syringe (now uncapped) with the needle facing the complainant. He then said either, ‘Hand them to me or I’ll squirt you with this blood’ or, ‘Show them to me or I’ll squirt you with this blood’.[37]
[37] P1.
The complainant was scared she was going to be squirted with blood or stabbed with the needle. She backed away towards the staff office where a duress button was located. She was worried Mr Zarei might jump the counter and knew she would be safe from him in the staff office, as she could lock the door. As she moved away, Mr Zarei repeated that she ‘show’ or ‘give’ him the cigarettes. The packet remained in her hands and Mr Zarei left,[38] holding the Up & Go. He then re-entered the store,[39] stole further drinks and exited again.[40]
[38] P3 at 2:04:11am.
[39] P3 at 2:04:21am.
[40] P3 at 2:04:38am.
By noon that day, Police were searching the home of Mr Zarei. They located the clothes he had been wearing earlier at the OTR, including a white and patterned black bandana. Mr Zarei was interviewed and lied to Police by denying:
·he had attended at the OTR earlier that day;
·he had pulled a syringe out and threatened the complainant;
·having been shown a still photograph of himself in the OTR, that he owned the bandana he was shown wearing;
·that the bandana located at his home was his and he was wearing it in the photos he was shown;
·that he had been wearing the same T-shirt at the OTR as he was then wearing;
·taking drugs earlier that day and the previous evening; and
·any offending whatsoever, as he had been set up by bikies.
Police did not locate the bankcard or any cash during the search.
Consideration
In respect of the matters the subject of specific direction, I have proceeded on the following basis.
I have had regard to the whole of the established facts in considering what inference or inferences to draw.
I have not had regard to any lies of Mr Zarei to infer guilt of this offence. I have, in respect of lies I have found that Mr Zarei told, considered those lies in assessing his credibility only.
I have not used the evidence of later thefts in my consideration of this offence. I have limited my consideration of the earlier thefts as indicative of a motive to steal due to insufficient funds.
In carefully assessing the evidence of Mr Zarei, I have considered whether he is a credible and reliable witness and whether his explanation of his intention at the time of the alleged offence is reasonably possibly true.[41]
[41] Douglass v The Queen [2012] HCA 34.
Mr Zarei gave evidence that he had not intended to commit the theft of the cigarettes and that he had $50 to pay for the cigarettes and Up & Go. His explanation is premised on his asserted desire to check that the 50-pack of cigarettes were the ‘right ones’. That desire, and the anger that motivated him to pull the syringe, were informed by an alleged previous denial by the complainant of a refund when he had got the ‘wrong’ cigarettes, and his express desire to scare her because she was hurting him.[42]
[42] As the complainant was not called that previous dealing was never put to her.
Mr Zarei purchased drugs whenever he had cash. He used his bankcard as a source of cash. Rather than use the cash he had on him to purchase drugs, on the evening in question Mr Zarei said he used funds on that card and then gave that card - his access to cash - to his drug dealer as collateral for another purchase. I find that it is implausible that retaining the cash he had - when he normally used cash or bank transfer to purchase drugs - was more important to Mr Zarei than retaining his bankcard. That implausibility is compounded by his ready use of the $50, he said he had at the OTR, to later purchase weed.
In his evidence, Mr Zarei said he recalled, when standing at the fridge, calculating the number of drinks and cigarettes he could buy. He said he knew that a 40-pack cost $42 but did not know the cost of a 50-pack. Notwithstanding that lack of critical information, he said he could still reason he could not afford three drinks and a 50-pack. I find it is implausible that Mr Zarei could have concluded he could afford a 50-pack and a $3.95 drink when he did not know how much a 50-pack cost.
Mr Zarei said he wanted to check the 50-pack of cigarettes were the ‘right ones’ and the complainant would not let him look at the pack. However, he was shown the cigarettes: the complainant was holding them up for him to look at.[43] He took no steps to obtain a type or brand. He declined the invitation of the complainant that he select a type or brand that he wanted. Having been shown the cigarettes taken from the cabinet, he did not ask for them to be moved closer. In response to the complainant telling him that she could not hand them over until he paid, he did not say he would pay or take any steps to show her the money he said he had, or, as he had done on 1 December, work out what he could afford and adjust if required.
[43] His evidence, contrary to the CCTV footage, was that she did not let him look at the 50-pack: P3.
I find that Mr Zarei’s violent reaction was a response to being told he would not get the cigarettes until he had paid for them. Her statement had nothing to do with type, brand or price or that he would not be shown or told about or be sold the ‘right ones’. Those topics had either been exhausted (type) or had not been raised (brand or price or ‘right ones’). He did not show the complainant his money or take any steps to indicate he had money or could pay.
I find that Mr Zarei said he wanted to buy any type of 50-pack. The complainant had told him he could buy the ones she was holding: he just needed to pay. Mr Zarei responded in a, threatening, violent and disproportionate way. His response makes no sense. He could not have thought he could retreat from that reaction and complete a sale and purchase of the ‘right ones’. His actions, when assessed in context and in totality, are the actions of someone who wanted to scare the complainant into giving him the cigarettes so that he could steal them.
Mr Redford’s submission that the alternatives (‘show me’ or ‘give me’) meant the Court could not exclude, beyond reasonable doubt, that the intention of Mr Zarei was to simply look at the cigarettes, has to be considered as part of the whole of the evidence. The dichotomy drawn by Mr Redford is not supported by the whole of the evidence. The actions of Mr Zarei were both verbal and non-verbal. He held his hand out: he threatened the complainant with an uncapped syringe and that he would squirt her with blood. He threatened the complainant to get her to do something she had said she would not do: put the cigarettes, without payment, in his hand. The words used, ‘show me’ or ‘give me’, may on their own be equivocal but those words and his actions demanded, without payment, the cigarettes be put in his hand.
Mr Zarei accepted he was drug affected during the police interview on 3 December and that he generally suffered the impact of drug use. Mr Zarei accepted that, when he spoke to Police, he did not have a clear recollection of what had happened just a few hours earlier. I do not consider that his recollection of what occurred to be more reliable at trial (15 months later) than just a few hours after the event. Mr Zarei conceded the negative affect of drugs on his memory and that at the time of this alleged offending: he was angry, not well mentally and paranoid.
A few important inconsistencies arose in Mr Zarei’s evidence. He had said at the beginning of his evidence that he had a $50 note. In cross-examination, he said he had two $20 notes and a $10 note. He originally said he had withdrawn $50 and later said he had withdrawn $30 from the ATM at the Shell Service Station, as he already had $20 cash. He said he went to the Shell service station before going to his friend’s house and seemingly after going to his dealer’s house. He did not say how he had withdrawn money at the Shell service station when his bankcard was with his dealer. Police did not find the bankcard or any money when they searched the defendant’s premises.[44] Those inconsistences and different versions go to his reliability in respect of a very important matter: whether he had $50 when he went to the OTR.
[44] I also note the evidence of the defendant that he spent the $50 in his pocket on marijuana (rather than purchase cigarettes from elsewhere).
For those reasons, I have concluded Mr Zarei was an unreliable witness.
Mr Zarei lied to Police when he denied: he had attended at the OTR earlier that day; he had pulled a syringe on and threatened the complainant; that he owned the bandana he was shown wearing; that the bandana located at his home was his and he was wearing it in the photos he was shown; that he had been wearing the same T-shirt at the OTR as he was then wearing; taking drugs earlier that day and the previous evening; and, any offending whatsoever. He also lied when he said he had been set up by bikies. I consider those lies to be significant.

Mr Zarei viewed the CCTV footage of himself standing at the refrigerator prior to the alleged offending. In the face of that video evidence, which showed him putting his hand in his pocket, he lied in his evidence by maintaining that he had not reached into his pocket. Mr Zarei maintained there were two different bandanas with similar designs which had to be examined. That evidence was conceded by Mr Redford to pollute the veracity of his evidence.
I have concluded that Mr Zarei was not a credible witness.
Having carefully considered the evidence of Mr Zarei, I have concluded, for the reasons set out above, that his evidence as to his intention to pay for the cigarettes was implausible, unreliable and incredible. I do not believe his evidence concerning his intention to pay for the cigarettes and I reject it. I find that his account is not reasonably possibly true.
Given the circumstantial case prosecuted in relation to intention, and having regard to the whole of the established facts as found, I am satisfied that:
·Mr Zarei would use cash to purchase drugs. If he did not have cash or other funds to pay for drugs he would obtain drugs on credit;
·Mr Zarei’s father limited the funds available to his son to make purchases and withdraw cash by drip feeding monies into the account his son had access to. The bankcard for that account was important as it was the means by which Mr Zarei accessed the account to obtain money to purchase drugs;
·Mr Zarei would not have left his bankcard with his dealer unless he had exhausted any credit in the account and cash on his person;
·When Mr Zarei left his dealer’s house, he had no means of lawfully obtaining cash. Mr Zarei could only have purchased goods at the OTR if he had sufficient cash on his person to do so. Mr Zarei wanted to get drinks and cigarettes at the OTR and intended to steal what he could not pay for;
·Mr Zarei knew a 40-pack of cigarettes and an Up & Go drink cost $46.95 ($42.00 + $4.95). Mr Zarei knew that a 50-pack of cigarettes and an Up & Go would cost more than $50;
·Mr Zarei was interested to have the 50-pack of cigarettes placed into this hand and wanted that to occur before he had paid for them and before he had demonstrated to the complainant an ability to pay for them: as he had done on 1 December 2018;
·Mr Zarei was disinterested in the brand, cost or type of 50-pack of cigarette he was being shown by the complainant;
·Mr Zarei knew he had a syringe in his pocket that could be utilised to make a threat to the complainant and to make her do something she would not otherwise do. Mr Zarei was determined, including by use of threat, to ensure that, without having paid for them, the complainant would place a 50-pack in his hands; and
·Mr Zarei had insufficient funds to pay for the 50-pack of cigarettes or the cigarettes and the Up & Go and once the cigarettes were placed in his hand he intended to take them without paying for them and permanently deprive the owner of those cigarettes.
I am satisfied beyond reasonable doubt from my consideration of the whole of the evidence that Mr Zarei intended to commit the offence of robbery in that:
·Mr Zarei intended to commit the theft of the cigarettes;
·Mr Zarei threatened to use force against the complainant at the OTR in order to commit that theft; and
·Mr Zarei made the threat at the time of, or immediately before the attempted theft.
Further, I am satisfied that Mr Zarei threatened to use an offensive weapon, namely a syringe, to commit or when committing the offence.
I find Mr Zarei guilty of Attempted Aggravated Robbery.