The Queen v Isidoro Zocchi - [2011] ACTSC 174

THE QUEEN v ISIDORO ZOCCHI
[2011] ACTSC 174 (4 November 2011)

CRIMINAL LAW – offences against the person – aggravated robbery – question of the presence of an offensive weapon in the course of the robbery – offence proved

Criminal Code 2002 (ACT), Dictionary
Supreme Court Act 1933 (ACT), ss 68B, 68C

No. SCC 57 of 2010

Judge: Burns J
Supreme Court of the ACT

Date: 4 November 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 57 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

R
v
ISODORO ZOCCHI

Judge:  Burns J
Date:  4 November 2011
Place:  Canberra

VERDICT:

The accused is guilty of Count 1 of the indictment.

On 11 October 2011 the accused was arraigned on an indictment of the same date containing 2 counts:
First Count: That on the 10^th day of December 2009 at Canberra in the Australian Capital Territory Isidoro Zocchi robbed Robert Rodden of four hundred and eighty dollars in Australian currency and, had with him an offensive weapon, namely a replica black pistol.
Second Count: And in the alternative to count one, on the 10^th day of December 2009 at Canberra in the Australian Capital Territory Isidoro Zocchi robbed Robert Rodden of four hundred and eighty dollars in Australian currency.
The accused entered a plea of not guilty to the first count on the indictment and a plea of guilty to the second count. The plea of guilty to the second count was not accepted by the Crown in full satisfaction of the indictment and the matter proceeded to trial on the first count.
The accused had originally been arraigned on an indictment containing one count only, in the same terms as the first count on the indictment of 11 October 2011. The accused originally elected for trial by jury. However, when the Crown filed the fresh indictment of 11 October 2011, containing the alternative count which had not been included on the original indictment, the accused applied to make a fresh election for trial by judge alone pursuant to the provisions of s 68B of the Supreme Court Act1933 (ACT). The application was not opposed by the Crown. I granted the application and the proceedings continued as a trial by judge alone.
Since the accused elected to be tried by judge alone, I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:
(1)   A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)   The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)   In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.
(4)   In this section: “territory law” includes the Evidence Act1995 (Cth).
I remind myself that the prosecution must establish each of the elements of the contested charge to the standard of beyond reasonable doubt. The accused holds no onus in these proceedings and, in particular, holds no onus to establish his innocence. It is for the Crown to establish his guilt to the standard of beyond reasonable doubt. In this particular case, the accused has entered a plea of guilty to the second count on the indictment, alleging an offence of robbery. That is an alternative to the first count. The only difference between the first count and the second count is that the first count alleges that at the time the accused committed the robbery he had with him an offensive weapon, being a replica black pistol. The accused’s plea of guilty to the second count on the indictment constitutes an admission by him with respect to each of the elements of the first count, with the exception of the allegation in the first count that the accused had with him, at the time of the robbery, an offensive weapon being a replica black pistol.
The first Crown witness was Robert Thomas Rodden. Mr Rodden testified that he is a cleaner employed at the Canberra Institute of Technology in Bruce. He has been employed there for about three years. Mr Rodden testified that on 10 December 2009 at about 7:45 am he caught a bus from Dickson to work. When he alighted from the bus at the Bruce CIT campus, he saw the accused across the road. The accused was known to Mr Rodden. Mr Rodden knew the accused simply by the same of Sid. He had known the accused for about four or five months at that time, having met him around his neighbourhood and in other neighbours’ houses. In cross-examination it emerged that Mr Rodden and the accused had both been residing in Tompsitt Court in Charnwood in the period leading up to 10 December 2009.
The accused and Mr Rodden approached each other. The accused then punched Mr Rodden once to his face, the blow landing in the area of Mr Rodden’s nose or mouth. Mr Rodden began to bleed from his nose and in his mouth. Mr Rodden testified that the accused was wearing a black bum bag from which he produced a gun, described by Mr Rodden as a semi automatic, and pointed it at the stomach of Mr Rodden. He then directed Mr Rodden to cross the road to the bus stop. The accused then directed Mr Rodden to sit down and told Mr Rodden that he was to give the accused $200 every fortnight. Mr Rodden took out his wallet and gave the accused some money. The accused then said that he would have the rest of the money that Mr Rodden had in his wallet. Mr Rodden gave the accused a total of $480. Mr Rodden testified that the accused told him “Not to play games or else he’ll come and hunt me down”. After taking the money, the accused apologised for hitting Mr Rodden, and then left on a blue pushbike.
Mr Rodden gave evidence that at the time the accused produced the gun and pointed it at him he believed that it was a real gun. He said that he was very scared. He said that there was nothing obstructing his view of the gun when the accused pointed it at him. He described the gun as being about 20 centimetres in length and coloured black. He described it as “Maybe a James Bond type of a gun. I don’t know. I don’t really know about guns that much”.
Mr Rodden was then shown a photograph of a gun (photograph 2 in Exhibit 1) and said “Yes, it looks the gun that was used that day on 10 December”. Mr Rodden was then shown a gun (Exhibit 4), which in fact is a replica firearm, and said that it looked like the gun that was used on 10 December 2009. Mr Rodden testified that he only became aware that the gun was a replica, and not a real gun, at a later time when told by Police.
Cross-examination of Mr Rodden was significantly directed towards his relationship in 2009 with Brett Debreueys, another resident of Tompsitt Court in Charnwood. Over a period of time, Brett Debreueys had been “borrowing” money from Mr Rodden. Mr Rodden agreed that, from time to time, he had been threatened by Brett Debreueys. Mr Rodden agreed that he had made arrangements to meet Brett Debreueys at his workplace at the CIT on the morning of 10 December 2009 to loan him some money. Mr Rodden denied that, on this occasion, Brett Debreueys had made any threats towards him. Mr Rodden testified that on the morning of 10 December 2009 he withdrew $500 from his bank account. He used $30 to buy cigarettes, leaving $470. Of that sum he had arranged to loan $200 to Brett Debreueys. The balance of the money he had withdrawn that morning was to be used for rent.
Cross-examination of Mr Rodden was directed to the proposition that he had invented his evidence that the accused was in possession of a firearm and used it in the course of the robbery on 10 December 2009. It was suggested to Mr Rodden that the reason he had invented that fact was to placate Brett Debreueys, who would otherwise have been angry because Mr Rodden had no money to give him.
It was suggested to Mr Rodden that either Brett Debreueys or an associate of Brett Debreueys had assaulted him by pushing him at the CIT on 10 December 2009 after the robbery. Clearly the purpose of this line of questioning was an attempt to give substance to the proposition that Mr Rodden was afraid of Brett Debreueys, and had invented his evidence about the accused possessing and using a firearm in the course of the robbery for the purpose of placating Brett Debreueys. In one sense, it is not really necessary to determine precisely what happened between Mr Rodden, Brett Debreueys and his associate on the morning of 10 December 2009. Mr Rodden agreed in his evidence that he was afraid of Brett Debreueys. He also agreed that Brett Debreueys had been extorting money from him in the past, although he denied that he was doing so on 10 December 2009. He also denied that he had been assaulted or threatened by Brett Debreueys on that date.
In my opinion, the suggestion that Mr Rodden invented the detail that the accused possessed and used a firearm during the course of the robbery on 10 December 2009 so as to placate Brett Debreueys does not hold up to scrutiny. First, Mr Rodden consistently denied the suggestion. Secondly, if the invention of the detail of the accused possessing and using a gun in the course of the robbery was for the benefit of Brett Debreueys, there would be no need for Mr Rodden to have subsequently lied to the Police about that detail. By the time that Mr Rodden gave a statement to the Police, he had already left the CIT in the company of Brett Debreueys and his associate and withdrawn a further sum of $200 from his bank account at Belconnen and given this money to Mr Debreueys. By the time that Mr Rodden gave a statement to the Police, the suggested motive for him lying about the detail of the accused possessing and using a firearm in the course of the robbery was no longer relevant. Thirdly, Mr Rodden had been physically assaulted by the accused on 10 December 2009, resulting in injuries to his nose and mouth. Whilst he had taken some steps to clean himself up before he met Brett Debreueys that morning, there was still blood around his nose and mouth, as well as blood on his clothing. This was far more likely to have convinced Brett Debreueys of the truth of the statements made by Mr Rodden than some allegation about a firearm.
My rejection of the suggested motive for Mr Rodden to lie about the accused possessing and using a gun during the robbery adds no weight to the Crown case. It is not incumbent on the accused to prove anything in these proceedings, including any motive to lie on the part of Mr Rodden. It is for the Crown to prove beyond a reasonable doubt that the accused possessed and used an offensive weapon, in this case a gun or replica firearm, in the course of the robbery. I must still scrutinise the Crown evidence to determine whether they have proven this fact to the requisite standard.
The next witness called by the Crown was Yon Soo Choe, also known as Steven Choe. On 10 December 2009 he was employed as a commercial cleaner at the CIT at Bruce campus. He was a fellow employee of Robert Rodden. On 10 December 2009 he arrived at work at approximately 8:00am, and saw Mr Rodden at about 8:05am. When he saw Mr Rodden he observed that there was blood in Mr Rodden’s mouth and also some sort of injury to his nose. Mr Rodden was fumbling and shaking so hard that he had trouble rolling a cigarette. When Mr Choe asked Mr Rodden what had happened, Mr Rodden replied “It’s nothing, it’s nothing”. Mr Choe said that he saw two strange men nearby whom he felt were suspicious, and he said to Mr Rodden “Are these the men who beat you?”. Mr Rodden replied “Don’t get involved. It’s not your problem. It’s nothing. It’s nothing”. Mr Choe denied that he had seen anybody hitting Mr Rodden.
In cross-examination Mr Choe said that the strange man he identified didn’t appear to be staring at him, although he kept looking at Mr Choe and Mr Rodden. He did not believe that Mr Rodden looked at that man whilst they were together. Mr Choe described the man as in his early twenties, around 170cm tall and wearing track pants and a blue shirt, which was perhaps sleeveless, and a hoodie. The hoodie covered the man’s hair, so Mr Choe could not give any evidence of the colour of that person’s hair.
Mr Choe went about his business after speaking to Mr Rodden. Later he said he saw the man in the hoodie together with another man approach Mr Rodden. He said it seemed like Mr Rodden was being threatened by these two men. He described the second man as much bigger than the man in the hoodie, and he seemed to have curly hair. Mr Choe said that he saw the bigger man holding Mr Rodden with his arms around his shoulder. He said that he saw the man in the hoodie holding Mr Rodden by his collar and it looked like he was about to hit Mr Rodden. It was not clear from the evidence of Mr Choe what led him to the belief that the man in the hoodie was about to hit Mr Rodden. Mr Choe said that he only watched the three people for about five to ten seconds, and then ran into a teacher’s office to get help.
The next witness was Moiya Tresize. She testified that she is a resident of Charnwood, and was a neighbour of the accused. She said that in December 2009 she was ripping up her carpet in the lounge room and the accused had provided her assistance in moving the furniture. Amongst the furniture was a glass display cabinet in which she had kept a toy gun she had purchased from the Salvation Army. She testified that two to three weeks after the accused helped her move her furniture, she noticed that the gun was missing from the display cabinet.
At some time in December 2009, Ms Tresize was asked by the accused whether he could leave his blue pushbike in her yard. The witness was shown the bicycle depicted in photograph 3 in Exhibit 6. She testified that it looks like the accused’s bicycle. The witness testified she went away for a weekend in December 2009 and on her return, she noticed that the bike was still in her yard. There was a plastic bag tied to the handle. Her son opened the bag, and discovered two toy guns. One was similar to a silver revolver, and the witness was able to identify that as the gun that had been in her display cabinet. Photographs of this gun are found at photographs 14 and 15 in Exhibit 6. The witness then identified the gun depicted in photographs 16 and 17 of Exhibit 6 as the other gun which was found in the plastic bag attached to the bicycle. That gun is very similar, if not identical to, the gun identified by Robert Rodden as similar to the gun used by the accused in the course of the robbery on 10 December 2009.
I note that both of the guns which were found in the white plastic bag attached to the handle of the bicycle were subject to fingerprint and DNA analysis. A partial DNA profile was obtained from the exterior surface of the black toy pistol located in the white plastic bag attached to the handle bars of the bike. The accused was excluded as the source of that DNA profile. No finger prints were found on either of the guns.
The Crown also called Alison Coomber to give evidence. Ms Coomber was also a resident of Tompsitt Court in Charnwood and had known the accused for about three years. She testified that in December 2009 the accused and a companion attended her premises and had a conversation in her presence. She said during that conversation the accused said, with respect to Robert Rodden, that he was going to “Stick a gun up his ass and get money”. I do not propose to examine the evidence given by Ms Coomber in depth. I did not find her a particularly credible witness, and she had a tendency to embroider her evidence as she went along. I am not satisfied to the requisite standard that the accused made the statement attributed to him by Ms Coomber.
Mr Steven Bell gave evidence on behalf of the Crown. He is the campus manager at the Bruce CIT, and has been employed at CIT for 30 years. On the morning of 10 December 2009 he was advised that Robert Rodden had been assaulted. He attended at the scene and spoke to Robert Rodden. He asked Robert Rodden who had assaulted him. At first Mr Rodden said that he did not know. Subsequently he told Mr Bell “Yeah, Sid assaulted me and he had a gun”. At the time he spoke to Mr Rodden, Mr Bell observed a red car with three people in it which made its way out of a car park and parked on Vowels Crescent near the bus stop. He saw Robert Rodden approach the vehicle and someone in the vehicle said “We have to take Robert to the bank”. Mr Bell suggested that they should wait for the Police, but told them that they would have to hurry if they went because the Police would be there soon. Mr Rodden left in the vehicle and returned about 15 or 20 minutes later.
Mr Bell was cross-examined about his recollection of Mr Rodden saying that the person who assaulted him had a gun. It was suggested that Mr Rodden in fact said that the person had a “replica firearm”. Mr Bell said that he had a recollection that Mr Rodden said that the man had a gun. He said that he had no recollection of Mr Rodden referring to it as a replica firearm. It was pointed out to Mr Bell that in his Police statement, made shortly after the event, he had told Police that Mr Rodden told him that the person had a replica firearm. Despite being taken to the statement, Mr Bell said that he could not remember saying that to the Police and that his clear recollection was of Robert Rodden telling him that the person he referred to as Sid had a gun.
Shelley Fountain, a Forensic Biologist employed by the Australian Federal Police, was called to give evidence on behalf of the Crown. Her statement and report were tendered as Exhibit 5. Ms Fountain conducted DNA testing on a number of items, including the black replica pistol and the silver toy revolver found in the white plastic bag attached to the handle bars of the bike located in the rear yard of the house of Moiya Tresize. A partial DNA profile was obtained from both the black replica pistol and the silver replica revolver. The accused was excluded as the source of each of those DNA profiles.
Ms Fountain testified that there are a number of factors that can contribute to whether a DNA profile can be obtained from an item which has been touched by an individual. Those factors include the length of time that the item has been handled by the individual, the nature of the surface, the amount of force or friction that is applied and also personal characteristics of the handler. Some individuals have more propensity to shed DNA than others. Additionally, the persistence of DNA on an object can be affected by ultra-violet light, temperature, humidity, and any bacterial growth. These factors can degrade DNA and may result in an inability to obtain a DNA profile.
Ms Fountain was shown Exhibit 4, the black replica pistol found in the white plastic bag attached to the handle bar of the bike located in the rear yard at Moiya Tresize’s house. Ms Fountain testified that in her experience it is possible to find DNA profiles on guns. She stated that there is often a lot of ridges or patterned areas and those areas are quite good surfaces for obtaining DNA profiles.
After the close of the Crown case, Mr Archer on behalf of the accused indicated that the accused would call no evidence. As the accused is not required to prove anything in these proceedings, there is no obligation on him to give evidence or to call any witnesses. Certainly no inference adverse to the accused can be raised based upon his election not to give evidence or to call other witnesses.
I formed the view that Mr Rodden is an honest witness, doing his best to recall the events of 10 December 2009. He was criticised by Mr Archer, on behalf of the accused, for initially not having told the Police about his dealing with Brett Debrueys on 10 December 2009. With respect, this criticism is only valid if you start with the proposition that those dealings were in some way relevant to the events Mr Rodden was describing to Police. If, as Mr Rodden consistently asserted, he was not being threatened by Brett Debrueys on that date, and his dealing with Brett Debrueys were unconnected to the robbery, there is no reason why he would be expected to mention those dealings to Police at that time. The vague evidence of Mr Choe about his observation of Mr Rodden with another man on 10 December 2009 and his unexplained belief that that man looked like he may be about to hit Mr Rodden does not give me any reason to doubt Mr Rodden’s evidence.

I am satisfied beyond a reasonable doubt based on the evidence of Mr Rodden that the accused produced what appeared to Mr Rodden to be a gun and pointed it at Mr Rodden on 10 December 2009 at Bruce CIT when he demanded money from Mr Rodden.
There is further evidence that provides additional support to this finding. Mr Rodden never identified Exhibit 4 as the gun used by the accused in the course of the robbery. But he did describe it as looking like the gun the accused used. That gun is linked to the accused by the evidence. First, it was located in the property adjoining the residence of the accused. Secondly, it was found in a plastic bag attached to the handlebars of the accused’s bike, a bike he left at those premises. This is strong circumstantial evidence linking Exhibit 4 to the accused.
In order to convict the accused of the charge in count 1 of the indictment, it is not necessary for the Crown to prove that Exhibit 4 was the gun the accused used in the course of the robbery. As such, proof of that fact is not part of an essential chain of proof establishing the Crown case. It is not incumbent on the Crown to prove to the standard of beyond reasonable doubt the link between the accused and Exhibit 4 before I am entitled to use that link as circumstantial evidence relevant to proving Count 1.
The guns in the white plastic bag attached to the accused’s bike, including Exhibit 4, were located on 29 December 2009, some 19 days after the robbery. I am satisfied that the evidence establishes the accused had access to a gun, Exhibit 4, which resembles the gun Mr Rodden says was used in the robbery, around the time the robbery occurred.
The fact that neither the accused’s DNA nor fingerprints were found on these guns, and more particularly Exhibit 4, does not affect my finding in this regard. I cannot know what was done to the guns before they were placed in the plastic bag, or whether the conditions the guns were subjected to before and after they were placed in the plastic bag were such as to degrade any DNA deposited on them.
The fact that the accused had access to a gun similar to the one described by Mr Rodden as being used in the robbery is not, of itself, sufficient to establish the disputed element in Count 1 to the standard of beyond reasonable doubt. It is, however, circumstantial evidence that supports my finding, based on the evidence of Mr Rodden, that the accused possessed and used a gun, or what appeared to be a gun, in the course of his robbing Mr Rodden on 10 December 2009.
One final matter must be addressed. Mr Archer submits that if I find the accused possessed and used the replica firearm, Exhibit 4, in the course of the robbery, then I should also find that Mr Rodden knew that it was a replica firearm. Mr Archer submits that if Mr Rodden knew that the accused was using a replica firearm, the charge in Count 1 cannot be made out. I will not go into detail about this submission, which turns upon the definition of an offensive weapon found in the Dictionary to the Criminal Code 2002 (ACT). There may be legal merit to the submission that a charge of aggravated robbery alleging the use of an offensive weapon cannot be made out where the offender uses a replica firearm, and this fact is known to the victim, but I will leave the resolution of that question to a case where the issue is directly in point. Mr Rodden testified that he believed the gun produced by the accused was real. Mr Bell testified that his recollection was that the terms of Mr Rodden’s complaint to him was that the accused had a gun. He maintained this evidence even after he was referred to his Police statement in which he said that Mr Rodden had used the term “replica firearm”. I am satisfied beyond a reasonable doubt, based on the evidence of Mr Rodden, that he believed the gun produced by the accused was genuine. It is therefore inherently unlikely he would have used the term “replica firearm” when speaking to Mr Bell. This is consistent with Mr Bell’s strong testimony that he does not recall Mr Rodden using the term “replica firearm”.
I am satisfied beyond a reasonable doubt that on 10 December 2009 the accused was in possession of a gun, probably the replica pistol Exhibit 4, and used it to threaten Robert Rodden in the course of robbing Mr Rodden of $480.
I find the accused guilty of count 1 on the indictment.
I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 4 November 2011

Counsel for the prosecution:  Mr D Sahu-Khan
Solicitor for the prosecution:  ACT Director of Public Prosecutions
Counsel for the accused:  Mr K Archer
Solicitor for the accused: Legal Aid ACT
Date of hearing:  12 October 2011
Date of judgment:  4 November 2011