The State of Western Australia v Bouwman
[2020] WADC 46
•3 APRIL 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BOUWMAN [2020] WADC 46
CORAM: LEVY DCJ
HEARD: 23-25 MARCH 2020
DELIVERED : 3 APRIL 2020
PUBLISHED : 9 APRIL 2020
FILE NO/S: IND 1794 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JOSHUA BOUWMAN
Catchwords:
Criminal law - Trial by judge alone - Armed robbery - Circumstantial evidence - Alibi
Legislation:
Criminal Code (WA), s 392
Criminal Procedure Act 2004 (WA), s 118, s 119, s 120
Evidence Act 1906 (WA), s 121
Result:
Accused acquitted on count 1
Accused convicted on count 2, but acquitted on circumstance of being armed
Accused convicted on count 3 as charged
Representation:
Counsel:
| The State of Western Australia | : | Mr D McCallum |
| Accused | : | Mr W Burg |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Wayne Burg and Associates |
Case(s) referred to in decision(s):
Clune v R (No 2) [1996] 1 VR 1
Festa v R (2001) 208 CLR 593
Kenworthy v The Queen [No 2] [2016] WASCA 207
Murphy v The Queen (1994) 62 SASR 121
R v Baden‑Clay (2016) 258 CLR 308
R v Turner (2000) 76 SASR 163
R v Wilson [1999] SASC 377
Wark v The State of Western Australia [2020] WASCA 19
LEVY DCJ:
Mr Joshua Bouwman (the accused) was charged on indictment 1794 of 2019 dated 11 November 2019 with three offences of robbery contrary to s 392 of the Criminal Code 1913 (WA) (Criminal Code). The accused was allegedly armed for each offence. The offences are:
Count 1 -
On 21 January 2019 at Duncraig the accused stole from Grant Daniel Brown, with threats of violence, Australian Cash, the property of Ocean Connection International Pty Ltd trading as Glengarry IGA
And that the accused was armed with an offensive instrument, namely a knife.
Count 2 -
On 28 January 2019 at Duncraig the accused stole from Caroline Marie Korhomen, with threats of violence, Cigarettes,[1] the property of Ocean Connection International Pty Ltd trading as Glengarry IGA
And that the accused was armed with an offensive instrument namely a screw driver [sic].
Count 3 -
On 8 February 2019 at Woodlands the accused stole from Amelia Christie Owers, with threats of violence, Australian Cash and Cigarettes, the property of Mellway Holdings Pty Ltd trading as Farmer Jacks Woodlands
And that the accused was armed with an offensive weapon, namely a hunting knife.
[1] Count 2 on the indictment originally alleged that the accused stole 'Australian Cash and Cigarettes'. At the start of the trial the State made an application, which was allowed, to delete the particulars of 'Australian Cash'.
Trial by judge alone
On 19 March 2020, Sleight CJDC ordered that the trial of the charges on the indictment be by judge alone, pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
Section 119 of the Criminal Procedure Act requires me to apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If any written or other law requires information or a warning or instruction to be given to the jury in certain circumstances or prohibits a warning from being given to a jury in certain circumstances, then I must take that requirement or prohibition into account if those circumstances arise in the course of the trial.[2] Section 120 allows me to make any findings and give any verdict that a jury could have made or given if the trial had been before a jury and requires me to include in my judgment the principles of law that I have applied and the findings of fact on which I have relied.
[2] Criminal Procedure Act s 119(3).
The consequences of COVID-19 on the trial procedure
It is ordinarily the case that witnesses in a criminal trial are called and give their evidence from the witness box in the physical presence of the accused. The giving of evidence via video or audio link is permitted if the court is satisfied the link is available or can reasonably be made available.[3] The court shall not make such a direction if satisfied it is not in the interests of justice to do so.[4] It is now commonplace witnesses are permitted to give their evidence via video link from places elsewhere in the State or overseas. At the time of this trial, Western Australia faces an unprecedented health crisis from the COVID-19 pandemic. Consequently, I directed that the evidence of witnesses in this case, as far as practicable, be taken by video link from a remote room within the court building rather than from requiring the witness to come into court. Only one witness, Detective First Class Constable Belinda Ribbans, the case officer, gave evidence in the court room. That was necessary for practical reasons due to the number and type of exhibits that she needed to refer to in her evidence. One defence witness, Mrs Ursel Rogaunig, the accused's grandmother, gave evidence via audio link from her home.
[3] Evidence Act 1906 (WA) s 121.
[4] Evidence Act s 121(2a).
Overview of the trial
The trial commenced on 23 March 2020 when the accused was arraigned on the indictment. He pleaded not guilty to all three charges.
Counsel for the State, Mr McCallum, then made an opening address outlining the State's anticipated case. Counts 1 and 2, the alleged armed robberies committed on 21 January 2019 and 28 January 2019 respectively, relate to the same IGA supermarket situated within Glengarry Shopping Centre (Glengarry IGA). Count 3 relates to a further alleged armed robbery committed on 8 February 2019 at Farmer Jacks supermarket situated at Woodlands Shopping Centre (Farmer Jacks Woodlands).
The State's case is that all three offences were committed by the accused. Whilst there are a number of eyewitnesses to each offence, the State's case substantially relies upon a body of circumstantial evidence relevant to all three counts. Other circumstantial evidence is only relevant to individual counts, for example the clothes (excluding the face covering) worn by the person who committed the offence at the Glengarry IGA on 21 January 2019.
Counsel for the accused, Mr Burg, did not make an opening address at the start of the trial, but did make clear that the critical issue in the trial was whether the 'identity' of the accused could be proved by the prosecution beyond reasonable doubt.[5]
[5] ts 63.
On 9 March 2020, the accused filed an alibi notice pursuant to s 96 of the Criminal Procedure Act. The alibi notice provides the following details (as set out in the notice):
… in relation to counts one and two on the Indictment, at the relevant time [the accused] was at 241 Warwick Road, Warwick, with Sean Byrne, who was living with [him] at the relevant time (sic). Mr Byrne is approximately 24 years of age and is a fridge electrician. As I am in custody, I do not have access to my phone to be able to provide my legal representatives with his contact details.
In relation to count 3, I recall I was at my grandmother's house at the relevant time. Her name is Ms Ursel Rogaunig and the address is 13 Elmwood Avenue, Woodlands.
Overview of the evidence relied upon by the State on count 1
The State submits that at approximately 7.46 pm on 21 January 2019, just before closing time, the accused ran through the mall area of Glengarry Shopping Centre, approaching from the side opposite the carpark, and into the IGA store itself, knocking a customer, Daniel Maassen, into a stack of toilet rolls. Grant Daniel Brown, an employee of Glengarry IGA, was working on the checkout at the time.
The State alleges the accused then ran around the back of the checkout and approached Mr Brown with a knife in his right hand and a black bag in his left. It is alleged the accused then said to Mr Brown 'Give me the money or I'll stab you', or something similar.[6] Mr Brown then got all the notes out of the cash register whilst the accused held the bag open and indicated for Mr Brown to put the money in. Mr Brown gave him all the notes, being 5s, 10s, and 20s and, after the person lifted up the change tray, 50s. The amount of money allegedly stolen by the accused was not quantified. The State alleges the accused ran from the store after a female customer threw bottles at him.
[6] ts 83.
The State alleges that at the time of the armed robbery on 21 January 2019, the accused was wearing: a long-sleeved flannelette shirt; off‑white or grey gardening-type gloves; a black balaclava covering his face and head; black shoes; and grey tracksuit pants with black stripes.
The events on this evening were captured by three separate CCTV cameras. The footage relevant to count 1 are exhibits 1.1, 1.2 and 1.3.
The State alleges that as at 21 January 2019, the accused was living at 241 Warwick Road, Duncraig, an address not far from Glengarry Shopping Centre. The accused lived there with others, including Sean Byrne, David Stewart and the leaseholder Mr Stephen Parker. According to Mr Parker, Glengarry Shopping Centre was about 400 to 500 metres from the house.[7]
[7] ts 144.
On 19 March 2019, the accused was arrested by police and taken into custody. He remained in custody until 24 July 2019.
Also on 19 March 2019, Detective First Class Constable Ribbans, along with other police officers, executed a search warrant at 13 Elmwood Avenue, Woodlands, the home of the accused's grandmother Mrs Ursel Rogaunig. The State alleges that a number of items connecting the accused to this offence, as well as counts 2 and 3, were found in the house or in a red Ford Mustang owned by the accused and stored under a carport at the house.
In particular, the State points to a single whitish glove found in a bedroom used by the accused at the house. The State submits that this glove is consistent with the gloves used during the commission of the offence on 21 January 2019. Whilst a flannelette shirt was also found in the bedroom and two knives seized from a kitchen drawer, the State does not place much reliance on either the flannelette shirt or the knives.
The State alleges that on or about 26 March 2019, about a week after the police searched the red Ford Mustang, the accused's mother found a black balaclava in the red Ford Mustang. That item was subsequently seized by the police on 19 May 2019. The State alleges that this is consistent with the face covering worn by the accused during all three offences.
Detective First Class Constable Ribbans also obtained the accused's bank records for the relevant time. The State submits that those records reveal that in January and February 2019 the accused had very little money. The State also relies on data downloaded from the accused's mobile phone in the relevant period including SMS conversations between him and his girlfriend about his lack of money. The State submits this evidence in combination establishes that he was impecunious and therefore had a motive to commit the offences.
In relation to count 1, the State substantially relies upon:
1.The eyewitness accounts of Mr Brown and Mr Maassen, including their descriptions of the physical and personal characteristics of the person.
2.CCTV footage of the incident from three different cameras.
3.The location and subsequent seizure of items alleged to be associated with the accused, including a single off-white glove and a black balaclava.
4.Other circumstantial evidence, including:
(a)the accused's bank records showing the accused's lack of money at the time;
(b)data from his mobile telephone in the relevant period; and
(c)the proximity of the accused's residence to the shopping centre.
Overview of the evidence relied upon by the State on count 2
The State alleges that at about 7.50 pm on 28 January 2019 the accused walked relatively slowly into the mall area at the front of the Glengarry IGA supermarket. On this occasion it is alleged that he entered from the carpark side of the shopping centre (opposite where he is alleged to have approached on count 1) and was again wearing a face covering of some sort. Mr McCallum submits that it was a 'balaclava or mask worn over the face'.[8] I note that in relation to count 2, none of the State's witnesses described the face covering as a balaclava. All of the witnesses referred to the face covering as a mask.
[8] ts 310.
The State also submits that the accused was dressed differently to 21 January 2019. The State alleges that the accused on this occasion wore: a very distinctive high-visibility orange and black hoodie with a dark blue or black patch on the upper left sleeve; long black pants; black shoes; and a distinctive pair of thick black and red coloured gloves.
The State alleges that the accused was armed with a hard, off‑white object that he held in his right hand and a black-handled screwdriver which was partly secreted up the sleeve of one arm.
The State alleges that as the accused entered the mall area of the shopping centre, he walked up to Steven Vlahov, an off-duty store manager at Glengarry IGA, who was standing just outside the entrance to the store, and threatened him with the object in his right hand. This startled Mr Vlahov. The State alleges that the accused then relatively calmly and deliberately entered the IGA and walked around checkout 1 where Caroline Korhomen, an employee, was working. Cigarettes were kept behind the checkout counter. The State's case is that Mr Vlahov jumped over the counter and placed himself between the accused and Ms Korhomen to protect her.
The State alleges that the accused then reached behind into a cabinet and took cigarettes which he put in a black bag. The State alleges that the bag appears to be similar to the bag used by the accused on 21 January 2019.
The State's case is that Mr Vlahov's intervention, including the physical confrontation between Mr Vlahov and the accused, caused the accused to retreat from the store. The State alleges that the accused then left with the cigarettes.
Mr Brown, the complainant in count 1, was also working on 28 January 2019 and witnessed these events.
The events of 28 January 2019 were captured by CCTV, on this occasion by four separate cameras. The footage relevant to count 2 comprises exhibits 1.4, 1.5, 1.6 and 1.7, being footage from outside and inside the shopping centre.
In relation to count 2, the State substantially relies upon:
1.The eyewitness accounts of the three employees of the Glengarry IGA: Mr Brown, Ms Korhomen, and Mr Vlahov, as well as a customer at the shopping centre, Callan Ryan Meredith. Each gave evidence of what they witnessed, including their descriptions of the person.
2.CCTV footage of the incident from four different cameras.
3.The location and subsequent seizure of items alleged to be associated with the accused, including:
(a)two distinctive orange and black high-visibility hoodies with a patch on the upper left sleeve (seized by police about a month after the second and third alleged armed robberies - one found in a bedroom at the home of the accused's grandmother Mrs Rogaunig, the other at the Cottesloe home of a female friend of the accused).
(b)Items seized from the accused's vehicle located at his grandmother's home, being a distinctive pair of red and black gloves and a black balaclava.
4.A photograph of the accused taken at the Perth Police watch house on 12 February 2019 where he appears to be wearing the same or a similar distinctive orange and black high-visibility hoodie with a patch on the upper left sleeve.
5.Other circumstantial evidence including:
(a)the accused's bank records showing little or no money in the account in the period;
(b)data from his mobile telephone in the relevant period including SMS conversations between him and his girlfriend about his lack of money;
(c)the proximity of the accused's residence to the shopping centre. The State alleges that as at 28 January 2019, the accused was still living at 241 Warwick Road, Duncraig.
Overview of the evidence relied upon by the State on count 3
The State alleges that the accused committed the third alleged armed robbery just after 8.00 pm on 8 February 2019 at Farmer Jacks Woodlands.
The State alleges that the accused was dressed, save for perhaps his face-covering,[9] in identical or very similar clothes to what he wore when he committed the offence the subject of count 2. This included the distinctive orange and black high-visibility hoodie with the patch on the upper sleeve and the black and red gloves.
[9] Mr McCallum's final submissions, ts 310.
On this occasion, the State alleges that the accused again conducted himself in a relatively calm, unhurried manner, similar to his behaviour during the commission of the offence on count 2. The State alleges that having entered the store by the entrance closest to checkout 1, the accused walked around the counter and stood next to the young female checkout attendant, Amelia Christina Swang Owers, holding a knife in one hand and pointing it in her direction. The State alleges that he told her to open the till then instructed Ms Owers to fill a bag that he had with him. Ms Owers complied with the demand. Whilst Ms Owers filled the bag, the State alleges that the accused took cigarettes from a cabinet next to the counter and put them in the bag he was holding . The State alleges that the bag used by the accused was a distinctive white bag with yellow and grey images or drawings.
The State alleges that Emma Jane Downing, another Farmer Jacks employee who witnessed these events, then called for a manager on the PA system. The State alleges that shortly after this the accused left the store, going out the same way that he entered.
The State alleges that the accused was subsequently observed by Ms Downing at the Woodlands Shopping Centre on three further occasions, being 16 February 2019, 22 February 2019 and 5 March 2019. After the fourth alleged sighting, Ms Downing contacted police. She said that the person she saw on each subsequent sighting was the same person she had seen on 8 February 2019 and was wearing the same distinctive high-visibility top. His face was not obscured on any of the three further occasions. She was asked by police to identify the person she saw on the subsequent occasions. She selected a photo of a person that was not the accused.
At the time of the accused's arrest on 19 March 2019, in addition to the mobile phone seized from him, it is not disputed by the accused that he was also in possession of a distinctive white or light coloured bag with yellow and grey images or drawings with a black outline.
In relation to count 3, the State substantially relies upon:
1.The eyewitness accounts of three Farmer Jacks Woodlands employees: Ms Owers, Ms Downing, and Ms Sydney‑Smith, including their descriptions of the person.
2.CCTV footage of the incident from two different cameras.
3.CCTV footage alleged to be that of the accused at the shopping centre on 5 March 2019.
4.The distinctive white or light coloured bag with yellow and grey images or drawings with a black outline found in the accused's possession at the time of his arrest.
5.The location and subsequent seizure of items alleged to be associated with the accused, including:
(a)The two distinctive orange and black high-visibility hooded tops with a patch on the upper left sleeve seized by police about a month after the second and third armed robberies.
(b)Items seized from the accused's vehicle located at the accused's grandmother's home, being a distinctive pair of red and black gloves and a black balaclava.
6.A photograph of the accused taken at the Perth Police Station on 12 February 2019 where he appears to be wearing the same or a similar distinctive orange and black high-visibility top with a dark patch on the upper left sleeve.
7.Other circumstantial evidence including:
(a)the accused's bank records showing little or no money in the account in the period;
(b)data from his mobile telephone in the relevant period including SMS conversations between him and his girlfriend Valentine with respect to the accused carrying a knife and his lack of money;
(c)the proximity of the accused's residence to the shopping centre.
The State also submits that counts 2 and 3 have some strikingly similar features. That submission does not extend to count 1.
Overview of the defence case
The accused elected to give evidence and called his grandmother Mrs Rogaunig as a witness. The accused denied that he committed the offence and relied upon his alibi notice and evidence to the effect that he was elsewhere at the times that all the offences were committed. In relation to counts 1 and 2, the defence case is that he was at 241 Warwick Road, Duncraig, either with Sean Byrne having a barbeque, watching a movie, or with his girlfriend Valentine. In relation to count 3, the accused said that he was at his grandmother's home at 13 Elmwood Avenue, Woodlands.
The accused denied that either the black balaclava or the red and black gloves seized from his red Ford Mustang were his, or that he had put them there. He said that others had access to his car.
He admitted that he possessed two distinctive orange and black hooded high-visibility jumpers, but denied that he was the person that can be seen on CCTV committing the offences on 28 January 2019 and 8 February 2019.
Although he accepted that he did not have a lot of money in the period of the alleged offences, he said that he managed to pay his bills from his Newstart allowance and cash he earned doing odd jobs. He said that he did jobs for his grandmother Mrs Rogaunig, who paid him cash.
Mrs Rogaunig confirmed, without being specific about the date, that the accused stayed at her house around 8 February 2019 and that she gave him cash when he did odd jobs for her. Mrs Rogaunig also said that at times she heard noises coming from where the Mustang was kept that were consistent with someone accessing the car.
Applicable legal principles
The accused has been charged with three separate offences. As I am sitting alone as a judge, I must apply the law to the facts as I find them to be.
The accused is presumed to be innocent of all the charges brought against him. Any person who stands trial is presumed to be innocent. The presumption of innocence can only be removed by a guilty verdict.
The burden of proving each count is on the State. The accused bears no burden of proof. The standard to which the State must prove the charge is beyond reasonable doubt.
I cannot convict the accused of any count unless the State has satisfied me beyond reasonable doubt that the accused is guilty of the count it has presented. Beyond reasonable doubt is a high standard. It is the highest standard known to the law. If I have a reasonable doubt as to whether the accused person is guilty of the count that I am considering, then it is my duty to acquit.
The accused has been charged with three offences in this trial. I must look at each charge separately and make a decision on each charge separately. When I am considering whether the State has proved a charge, I must consider only the evidence that is relevant to that charge. My verdicts do not have to be the same on each charge. If I find Mr Bouwman guilty of one charge, it does not follow that he is therefore guilty of another charge.
I must reach my verdicts on all of the evidence adduced in this trial. I must consider the evidence objectively and dispassionately. I cannot allow myself to be influenced by prejudice or by sympathy.
In this case, whilst the State's case does not solely depend upon witness testimony, the credibility of witnesses plays a significant part in my assessment of the evidence. When I speak of credibility, I mean both the honesty and reliability of witnesses. I remind myself that a witness may be honest, but nonetheless unreliable. I must assess both the honesty and reliability of witnesses. In doing so, I also take into account the demeanour of the witness when they gave evidence. Matters personal to a witness are also relevant, including things such as: the passage of time; how quickly the events took place; the opportunity and view that a witness had at the time; and the fact that for some witnesses the events in question may have been traumatic.
I may accept the evidence of a witness in its entirety or reject it in its entirety. I may accept part of a witness' evidence and reject other parts of that witness' evidence.
The assessment of the honesty and reliability of witnesses in this case includes both the accused and Mrs Rogaunig, noting that the accused is presumed to be innocent and bears no onus of proof.
In relation to the credibility of the prosecution's witnesses in this case, I note that, save for the accused's mother Mrs Bouwman, no issue was raised with respect to their honesty. Each of the prosecution witnesses' reliability was however tested by the defence.
The accused elected to give evidence and call his grandmother Mrs Rogaunig as a witness during the trial. He was not required to give evidence in this trial. Because of the presumption of innocence that applies to any person who stands trial, he was quite at liberty not to give evidence. But he chose to give evidence and as a result to submit himself to cross‑examination by the prosecution.
The fact that the accused chose to give evidence and call evidence does not in any way detract from the fundamental principles of our system of law. The onus is on the State to prove the charges that it has presented; the accused is presumed innocent and remains innocent unless or until the charge I am considering has been proved; and the State must prove the charges it brings beyond reasonable doubt.
If I believe the accused's evidence or at the very least the critical parts of his evidence, then I would acquit him of the charge.
If I find difficulty in accepting the evidence of the accused, but think that it might be true, I must acquit.
Even if I were not to accept his evidence, I cannot find an issue against the accused contrary to his evidence if his evidence or any evidence for that matter, has given rise to a reasonable doubt on that issue. It is very important that I remind myself that the question for me to consider is whether, on all the evidence before me, the State has proved the charge I am considering beyond reasonable doubt and that if the accused's evidence or any evidence has given rise to a reasonable doubt, then I cannot convict him on any of the counts on which that reasonable doubt has arisen.
Furthermore, even if I were to reject the accused's evidence, it does not follow automatically that I would convict the accused of the offence charged. I remind myself that the accused does not have to prove anything. I can only deliver a guilty verdict if, on all the evidence, the State has proved the charge beyond reasonable doubt.
The State's case involves both the direct evidence of eyewitnesses, as well as circumstantial evidence. As the prosecution case is substantially based upon circumstantial evidence, inferential reasoning is called for. When I consider the evidence I cannot guess or speculate or look for theories not supported by the evidence. However, I may draw inferences from facts. An inference is a logical deduction or conclusion from facts. I can only draw inferences from facts which I have first found to be established. This is a criminal trial and the accused is presumed innocent unless proved guilty beyond reasonable doubt. Therefore, before I draw an inference against him, I must be satisfied that it is the only inference that is reasonably available on the evidence. If there is one or more competing inferences, reasonably available on the evidence, which points away from guilt, then I cannot draw an adverse inference against the accused.
Since this is substantially a circumstantial evidence case, I must evaluate and weigh all of the facts and circumstances established by the evidence in deciding whether the State has excluded any reasonably available inference which is consistent with the innocence of the accused. The State's circumstantial case is not to be considered by examining each piece of evidence or each fact or circumstance established by the evidence in isolation or on a piecemeal basis. The facts and circumstances established by the evidence in a circumstantial case must be evaluated and weighed in their entirety.[10]
[10] R v Baden‑Clay (2016) 258 CLR 308; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18] ‑ [21]; Wark v The State of Western Australia [2020] WASCA 19 [275] (Buss P).
As I have already noted, the State's case is partly based upon the eyewitness accounts, particularly their descriptions of the physical characteristics, clothing, weapons, demeanour, and other items said to have been in possession of the person. This evidence is sometimes referred to as 'circumstantial identification evidence'.[11]
[11] Festa v R (2001) 208 CLR 593, 611 - 612 [56] (McHugh J); Murphy v The Queen (1994) 62 SASR 121; Clune v R (No 2) [1996] 1 VR 1; R v Wilson[1999] SASC 377; R v Turner (2000) 76 SASR 163.
I note what McHugh J in Festa said about this sort of evidence:[12]
It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.
When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence.
[12] Festa v R (611) - (612) [56] – [57] (referenced authorities have been deleted).
In this case, none of the witnesses, save for Ms Downing in relation to count 3, viewed the face of the person asserted by the State to be the accused. Ms Downing did not see the face of the alleged person at the time of the offence itself since it was covered by some sort of face‑covering. On her evidence, on three occasions after 8 February 2019, she saw the face of the person she alleged to be the person who committed the offence. Police asked Ms Downing to identify the person she saw on those subsequent occasions from photographs. She identified someone other than the accused. The photographs police showed Ms Downing were not tendered in evidence. CCTV footage from 5 March 2019, being one of the occasions she allegedly sighted the person, was tendered in evidence.[13]
[13] Ex 1.10.
I note that eyewitness accounts, particularly descriptions of alleged persons unknown to the witness and where events unfolded quickly, are often notoriously unreliable. When it comes to some of the witness accounts in this case (which I will detail in due course), there are obvious differences and discrepancies between their accounts. I also have good quality CCTV footage of each of the events and the alleged sighting of the person on 5 March 2019, relevant to count 3.
None of the circumstantial identification evidence has an element of positive identification that is in dispute and the evidence of Ms Downing is of negative identification of the accused. Consequently, although none of the evidence has the potential unreliability of positive‑identification evidence, I do warn myself of the dangers of relying upon the eyewitness' accounts generally and the need to consider their evidence with special care given the speed with which these events occurred, the passage of time and their traumatic nature.
The alibi notice and alibi evidence
The accused filed an alibi notice on 9 March 2020. Although this was 14 days late ,[14] no issue was taken by the State.
[14] Criminal Procedure Act s 96 and Criminal Procedure Rules 2005 (WA) r 21.
When an accused person puts forward an alibi, the burden of proving the accused's guilt continues to rest on the State. There is no onus on the accused to prove the alibi or call Valentine as a witness. The State must disprove the alibi. If the State fails to satisfy me beyond reasonable doubt that the alibi evidence should be rejected, then I must acquit the accused. The State must prove beyond reasonable doubt that the accused was at the scene of the crime at the relevant time. The State cannot do so if there is any reasonable possibility that the accused was somewhere else at that time.
The accused gave evidence in accordance with what was contained in the alibi notice. His evidence also included further alibi evidence in that in relation to counts 1 and 2, he may have been at the home of his girlfriend, Valentine, at the time of those offences, or otherwise with his girlfriend somewhere other than at Glengarry IGA. No issue was taken by the State in relation to his failure to give notice of that aspect of his alibi.
The accused's grandmother Mrs Rogaunig also gave evidence generally consistent the alibi notice so far as count 3 is concerned.
I also note that Valentine was a person that the State were aware of since at least 20 March 2019 when Valentine's home at 38 Kathleen Street Cottesloe was searched by police. The State also had Valentine's telephone number from at least 20 March 2019. The State did not call Valentine as a witness.
The State must negative any reasonable possibility that the accused was, in relation to counts 1 and 2 either at: 241 Warwick Road, Duncraig; 38 Kathleen Street, Cottesloe; or otherwise with his girlfriend somewhere other than at Glengarry IGA. In relation to count 3, the State must negative that the accused was at 13 Elmwood Avenue, Woodlands.
The State must satisfy me beyond reasonable doubt that the accused was at Glengarry IGA in relation to counts 1 and 2 and Farmer Jacks Woodlands on count 3 at the relevant times.
Elements of the offences
To prove each of the charges on the indictment, the State must prove each and every element of the offence beyond reasonable doubt. Each of the three offences on the indictment are offences commonly referred to as armed robbery.
Each offence alleges that the accused stole from someone, with threats of violence, the property of another. Each is alleged to be aggravated because the alleged person is alleged to have been armed on each occasion with an offensive instrument[15] or weapon.[16]
[15] Counts 1 and 2.
[16] Count 3.
The elements required to be proved beyond reasonable doubt on each count are as follows.
First element, the identity of the person
The State are required to prove that on each count it was the accused and not some other person that committed the acts constituting the offence. This element is the real issue in this trial in relation to each count on the indictment.
Second element, that when the accused stole from someone, he used threats of violence
The State must prove that immediately before, at the time of, or immediately after stealing the sum of money, the accused threatened to use violence to any person or property in order to obtain the thing stolen, or prevent or overcome resistance to it being stolen.
A 'threat' or 'to threaten' is a statement or behaviour that expressly constitutes or may reasonably be regarded as constituting a threat to do something.
'Violence' is not defined under the Criminal Code. It has its ordinary English meaning. That is 'The exercise of physical force so as to inflict injury on a person'.[17] An injury in this context means physical harm of some sort.
[17] Shorter Oxford English Dictionary.
In relation to count 1, the State alleges that the threats of violence were directed to Grant Daniel Brown, the Glengarry IGA employee behind the checkout. The threats of violence are alleged to have occurred when the accused allegedly approached Mr Brown with a knife in his right hand and said to him 'give me the money or I'll stab you', or something similar.[18]
[18] ts 83.
In relation to count 2, the State alleges that the threats of violence were to Caroline Marie Korhomen and occurred when, immediately before entering, the accused threatened Mr Vlahov with a hard object in his right hand by raising it, then went and behind the counter in the store where Ms Korhomen was and, still holding the hard object, said to her 'give me the cash'. The State alleges the 'threats' to Ms Korhomen were implicit given the conduct of the accused immediately before he demanded the cash.[19]
[19] ts 113.
In relation to count 3, the State alleges that the threats of violence were to Amelia Christine Owers and are constituted by the accused walking around the counter, standing half a metre from Ms Owers, and telling her to 'Fill the bag' or 'Get the cash out'[20] whilst pointing a knife in her direction.
Third element, that the accused stole the property of another
[20] ts 159.
In relation to count 1, the State alleges that the accused stole Australian cash the property of Ocean Connection International Pty Ltd trading as Glengarry IGA.
In relation to count 2, the State alleges that the accused stole cigarettes the property of Ocean Connection International Pty Ltd trading as Glengarry IGA.
In relation to count 3, the State alleges that the accused stole Australian cash and cigarettes the property of Mellway Holdings Pty Ltd trading as Farmer Jacks Woodlands.
A 'stealing' occurs when a person: fraudulently takes anything capable of being stolen; or fraudulently converts to his own use or to the use of any other person any property. The relevant act is fraudulent if done with an intent to permanently deprive the owner of the thing.[21] A person who takes money does so fraudulently when he does so with an intent to use it at the will of the person who takes it.[22]
[21] Criminal Code, s 371(2)(a).
[22] Criminal Code s 371(2)(f).
The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
So to prove the accused stole in count 1, the State must prove that he: took cash; took that cash with an intent to permanently deprive the owner of the cash or took the case with an intent to use it at his own will even if he intended to repay the owner; and that he actually moved the cash or otherwise dealt with it by some physical act.
To prove the accused stole in count 2, the State must prove that he: took cigarettes; took those cigarettes with an intent to permanently deprive the owner of the cigarettes; and that he actually moved the cash or otherwise dealt with it by some physical act.
To prove the accused stole in count 3, the State must prove he took cash and cigarettes with comparable acts and intentions as described above.
No issue was taken at the trial by the accused that on each occasion the property particularised was stolen, or that it was the property of another. It was the defence case that whoever that person was, it was not the accused.
I am satisfied beyond reasonable doubt that in relation to each offence that this element has been proved.
Fourth element that the threatened use of violence was for the purpose of effecting the stealing
In other words, the State need to prove beyond reasonable doubt that Mr Bouwman threatened the use of violence in order to obtain the property that was stolen.
No issue is taken by the accused in relation to this element.
The circumstance on the indictment that the accused was armed
If the State proves the four elements of the charge beyond reasonable, the offence of robbery is established.
The State pleaded on each charge that the accused was armed. This is not an element of the offence of robbery, but a circumstance of the offending. In the event that I am satisfied beyond reasonable doubt of the four elements of the charge, but not satisfied beyond reasonable doubt that the accused was armed with an offensive instrument or weapon, then the offence of robbery will have been established.
For counts 1 and 2, the accused was allegedly armed with an offensive instrument, namely a knife and screwdriver respectively. For count 3, the accused was allegedly armed with an offensive weapon, namely a hunting knife. As with each element of each offence, this circumstance must prove beyond reasonable doubt.
As relevant to each count, the State must prove beyond reasonable doubt that the accused carried the offensive instrument or weapon, that the instrument or weapon could be used to inflict bodily injury, and that the offensive instrument or weapon was readily available for use to inflict bodily injury.
Neither instrument nor weapon is defined in the Criminal Code. The Oxford English Dictionary defines instrument to be 'an object, device, or apparatus designed or used for a particular purpose or task'. The same dictionary defines weapon to be 'an instrument of any kind used in warfare or in combat to attack and overcome an enemy'. There is nothing in the context or purpose of the Criminal Code which requires an alternative interpretation to be given to those words.
'Instrument' is clearly defined broader than 'weapon'. However, nothing in this case turns on the fact count 3 was pleaded as involving an offensive weapon while counts 1 and 2 pleaded an offensive instrument. No issue arises that, whoever committed the acts in relation to counts 1 and 3, they were armed with an offensive instrument and offensive weapon respectively.
The evidence
The State submits that where there is a difference between the evidence of a witness and the CCTV footage, I should accept and act on the CCTV footage as being the best evidence. I accept that all the CCTV footage tendered is of a good quality. However, there are certain areas of the evidence where the CCTV footage may be deficient or not necessarily better than the evidence of a witness.
First, none of the CCTV footage has sound. In that regard the State relies entirely on the witnesses' accounts of what was said at the time of these events.
Secondly, as to the evidence of the person's height, witnesses may be better placed than I am to give opinions of the person's height. The CCTV is limited in that respect.
Thirdly, some of the evidence of the witnesses detailed things or objects that the person is alleged to have been in possession of. The CCTV footage alone does not allow me to draw any conclusions that might be different to a witness' evidence about these details. In that respect a witness' evidence may be the best evidence.
The alleged armed robbery of the Glengarry IGA on 21 January 2019 (Count 1)
In addition to CCTV footage,[23] the prosecution relies upon the eyewitness evidence of Grant Daniel Brown and Daniel Joseph Maassen.
Grant Daniel Brown
[23] Exhibits 1.1; 1.2 and 1.3.
On Monday, 21 January 2019 Mr Brown was working at Glengarry IGA. At about 7.46 pm he was on the check-out serving people when he noticed someone run into the store and knock a customer, Mr Daniel Maassen, into a stack of toilet rolls. According to Mr Brown, that person then ran around the checkout with a knife and threatened to stab him unless he gave him money.
Mr Brown described the person holding the knife as 'kind of tall and a bit muscly'.[24] According to Mr Brown that meant someone five feet ten inches to six feet tall. The person was of slim build,[25] and aged in their 20s to 30s.
[24] ts 85.
[25] ts 94.
In relation to the person's voice, he said it sounded Australian and as if the person was 'trying to put on a voice, sounded a bit husky'.[26]
[26] ts 85.
With respect to the clothes worn by the person he said he was wearing: a black balaclava[27] that had holes for the mouth and eyes;[28] black gloves; a long-sleeved, buttoned-up, black and white flannelette shirt like a 'tradie uniform kind of thing';[29] and grey joggers.
[27] ts 84.
[28] ts 95.
[29] ts 85.
Mr Brown also saw someone else wearing a similar top that evening.[30] It is notable that someone else can indeed be seen on the CCTV footage wearing a checked flannelette shirt.
[30] ts 95.
In relation to the knife Mr Brown alleges the person was holding, he described it as a heavily-worn paring knife with a wooden handle. The blade, which was sharp and about 4 inches long, had chips in it. In cross-examination he described it as having a light grey pine handle, or light wooden handle.[31]
[31] ts 96.
Mr Brown described the bag he says the person held open for him to put the money in as a 'string sports bag' with strings on the top and bottom to open it and tighten it.[32] It was black.[33]
Daniel Joseph Maassen
[32] ts 82.
[33] ts 97.
Mr Maassen gave evidence that on the evening of 21 January 2019 he was a customer at Glengarry IGA. He was queuing at the checkout when he saw a person enter the store at a fast pace and come towards him. The person was wearing a black balaclava. The person in the balaclava 'gave a yell' or 'bellow', then put two hands into Mr Maassen's chest, pushing him, causing him to fall backwards into a toilet paper display.[34] Mr Maassen then ran to the back of the store.
[34] ts 101.
Mr Maassen said the man was wearing a blue-and-white checked shirt and gloves.[35]
[35] ts 102.
In cross-examination, with reference to the gloves, Mr Maassen said 'I don't recall seeing hands. I thought he was wearing some sort of - almost like gardening gloves'.[36]
[36] ts 103.
He was asked by counsel for the accused, Mr Burg, '… and were there fingers in the gloves, as best you can recall now?' to which he responded, 'I can't recall whether there were fingers or not fingers in the gloves'.[37]
[37] ts 103.
Mr Burg then suggested to Mr Maassen that he had earlier told police that the gloves may have been fingerless gloves. Again, Mr Maassen conceded that he had some difficulty with recalling the gloves and that at the time of the incident 'most of [his] full attention was on the figure's head, on his balaclava. [He] wasn't focused on his hands'.[38] He went on to say that 'the statement I gave police, to my mind whatever it says I can't stand by what he was wearing on his hands. What I can stand by is that he was wearing a black balaclava and he shoved me in the chest.'[39]
[38] ts 103.
[39] ts 103.
Mr Maassen agreed that what he had said to police in his statement, made in May 2019, possibly would have been more accurate than his memory now.
Mr Maassen was then taken to paragraph 20 of that statement and read:[40]
He was wearing gloves but I - they may have been fingerless gloves and I think I remember seeing his fingers. I didn't hear his voice.
[40] ts 106.
The point made by Mr Burg was that what Mr Maassen said to police in May 2019 was different to what he had said in evidence in court. Consequently, this may be a factor relevant to the assessment of Mr Maassen's credibility as a witness in that what he may have said at an earlier time out of court, was inconsistent with the evidence given in court.
Strictly speaking, Mr Burg did not comply with the law relating to proof of a prior inconsistent statement.[41] He did not ask Mr Maassen whether what was contained at paragraph 20 is what he told the police at an earlier time, or if he had, whether it was accurate. Nonetheless, Mr Maassen accepted that his recollection of what the person had on his hands was not good because he was focused on the person's head.
[41] Evidence Act s 22.
In examination-in-chief, Mr Maassen described the person as being in his 20s to 30s. In cross-examination, he said the person was 'anywhere from 20 to 50'.[42] He said that the person was approximately his height, which he said was 186 cm or 6 foot 1 inches tall, although the person may have been slightly taller.[43]
[42] ts 108.
[43] ts 103.
With reference to his clothes, Mr Maassen, like Mr Brown, recalled somebody else at the shop wearing a similar top to the person.[44]
The CCTV footage in relation to count 1
[44] ts 108.
Exhibit 1 is a disc containing 10 separate files of CCTV footage. It includes three files of CCTV footage relating count 1 each from a different camera located at different spots in Glengarry Shopping Centre. As already noted, the footage is visual only. Exhibit 1.1 captured the alleged person entering the Glengarry Shopping Mall and then the IGA. Exhibit 1.2 is CCTV footage of the entry to the IGA from inside the supermarket. Exhibit 1.3 is CCTV footage focussed on the checkout of the IGA. The footage from all thee CCTV cameras is of a good quality. The times recorded on the CCTV are not identical. The time displayed on the footage captured on exhibits 1.2 and 1.3 is approximately 41 seconds behind the time recorded on exhibit 1.1. Nonetheless, it is clear the person alleged to be the accused is in the IGA supermarket for approximately 30 seconds in total.
The alleged armed robbery of Glengarry IGA on 28 January 2019 (count 2)
Grant Daniel Brown
On the evening of 28 January 2019, Mr Brown was again working at the Glengarry IGA. Due to the earlier incident, the store had changed its protocols. Mr Steven Vlahov, one of the managers, had returned to the store nearing closing time. Mr Brown was there as 'back‑up security' for the person behind the counter,[45] who on that evening was Caroline Marie Korhomen. The three store personnel, including Mr Brown, were in or near the checkout area of the store at the relevant time.
[45] ts 86.
At about 7.50 pm, Mr Brown noticed a person walk into the mall area out the front of the IGA supermarket. This person entered from the carpark side of the mall near Nandos. According to Mr Brown, this person had a similar build to the person he saw on 21 January 2019 but this time was wearing a black paintball mask and orange tradie top.[46] Mr Brown said the top looked thick, 'like a wintery one'.[47] It looked like he was wearing something underneath it. The paintball mask on was different to the balaclava he saw on the first occasion.[48]
[46] ts 87.
[47] ts 88.
[48] ts 95.
Mr Brown said the person hand something in his hand right hand[49] which 'looked kind of like a bowl or something. It could be made of metal or it could have been just made of anything else'.[50] It was grey or off-white in colour with a pattern around it.[51] It look like a 'big soup bowl'.[52] In cross-examination he described the bowl as having a blue edge with a pattern.[53]
[49] ts 88.
[50] ts 87.
[51] ts 88.
[52] ts 88.
[53] ts 95.
Mr Brown also described seeing a bag in the person's other hand which he said was similar to the pull-string bag carried by the person who attended the supermarket on 21 January 2019. He thought it was black.[54]
[54] ts 97.
He could not say whether the person was wearing gloves or recall anything about the person's clothes on his lower half of the body.
Mr Brown said that as the person entered the store he held up the bowl in his hand in a gesture that made Mr Brown believe he was going to strike Mr Vlahov with it. This startled Mr Brown who exclaimed 'What the fuck?' causing Mr Vlahov to jump out of the way.[55] I find that the person did in fact make the gesture to Mr Vlahov described by Mr Brown, but having viewed the CCTV footage I am satisfied that it occurred before the person entered the store.
[55] ts 89.
There is no issue that the person then entered the store and went around the back of checkout 1 where the cigarettes were, or that Mr Vlahov jumped over the counter and placed himself between this person and Ms Korhomen, who was behind the checkout.
Nor is there any dispute that this person reached behind Mr Vlahov, managed to get a handful of cigarettes and put them in his bag.
The CCTV clearly shows Mr Vlahov pushing the person away and shouting loudly at him.
Mr Brown described the physical characteristics of the person as being of a about the same height[56] or similar height, maybe a tiny bit taller, than the person on 21 January 2019 due to the fact that he had a hat on. The hat was described as 'the paintball hat'.[57]
Caroline Marie Korhomen
[56] ts 94.
[57] ts 92.
On 28 January 2019, Ms Korhomen was working as the closing supervisor at the Glengarry IGA. She was working on a checkout that remained open for customers for the last hour of the shift.
Shortly before closing time, in response to Mr Brown saying 'Oh shit', she looked up and saw a person walking slowly towards Mr Vlahov who was standing nearby.[58]
[58] ts 113.
She described this person as wearing a 'worker's hi-vis jumper that you see trade workers wearing' which was 'orange on the top, black towards the bottom and then a hood.'[59] The hood was over the person's head.[60] She said was it was a 'tradie jumper' that she recognised 'all the time'.[61] She also said her ex-husband was a 'tradie'[62] and that she saw customers come into the store often wearing tops and jumpers like that.[63] The person was also wearing: long, full length, dark pants;[64] black gloves, that were thick and padded,[65] looking 'like motorbike gloves';[66] and an all-black skull mask, which 'almost looked like a skull just covering his whole face'[67] like a mask from a 'Jason movie'.[68]
[59] ts 111.
[60] ts 112.
[61] ts 112.
[62] ts 119.
[63] ts 120.
[64] ts 112.
[65] ts 113.
[66] ts 112.
[67] ts 112.
[68] ts 120.
The person turned around, faced her, slowly started walking towards her and entered the checkout area.
She was standing right at the register when he said to her, 'give me the cash', in a low muffled voice.[69] According to Ms Korhomen, the voice 'sounded like a regular person putting on a deeper voice'.[70]
[69] ts 113.
[70] ts 116.
Ms Korhomen said that when the person walked in he had his hands out to the side and that she noticed an object in the palm of his hand that she said looked like a round black 'hockey puck'.[71] He also had a black backpack in his hand.[72]
[71] ts 113.
[72] ts 114.
Ms Korhomen said that he walked around the entry to the service area and got part‑way through. At that point Mr Vlahov jumped over the counter and got between her and the person. One of the doors to the tobacco cabinet was slightly open. The person took tobacco pouches and put them in the bag before Mr Vlahov intervened.
The person started walking back away from the service area, again saying 'give me the cash'.[73] He was not making an attempt to exit. Mr Vlahov followed the person back around the outside of the checkout area. At that point things between Mr Vlahov and the person became more physical. Mr Vlahov screamed at him to 'Get out of my store, get out of my store'.[74]
[73] ts 116.
[74] ts 116.
Ms Korhomen said at that point she noticed what she believed to be the bottom of a black handle in the palm of the person's right hand which was facing down. Part of the object was obscured by his sleeve.[75] She thought that the person then put the object in a pocket in his pants.[76] When asked to describe it further, she said that it 'just looked like a handle to something'[77] and that it may have been 'a handle to a screwdriver or a knife but I didn't see any more of it'.[78] She never saw the complete object and it was never waved or brandished in any way.[79]
[75] ts 116.
[76] ts 117.
[77] ts 116.
[78] ts 116.
[79] ts 117.
Mr Vlahov then grabbed mango trays and used them to push the person away whilst screaming, 'Get out of my store. Get out of my store'.[80] The person then left the store.
[80] ts 117.
No money was stolen.
Ms Korhomen said that she had never seen the person before.
Ms Korhomen said the person was of average height and average build, which she explained to be 'around 6 foot, maybe a bit smaller'[81] and not overweight, just a solid, normal build.[82]
[81] ts 118.
[82] ts 119.
Ms Korhomen account is consistent with the CCTV footage and the other eyewitness accounts generally, save for her description of the object in the person's hand being a black hockey puck and that his gloves were black.
From the CCTV it is obvious that the object in the person's hand was of a light colour and appeared to be similar in shape to a small bowl or cup.
Steven Vlahov
Steven Vlahov was the store manager at the Glengarry IGA. On the evening of 28 January 2019, Mr Vlahov was not on duty, but just before closing time he was standing in the mall area out the front of the store. He was casually talking to Mr Brown when he heard him say 'oh, shit'. This caused him to look up at the main entrance and noticed someone walking towards him.
He described that person's attire as being covered head to toe and wearing an orange hi-vis jacket, with a black hood.[83] The person was wearing black gloves[84] without any noticeable markings;[85] a mask which he said was like from the 'horror movies, "Scream" ',[86] with white around the mouth and eyes[87] and the hoodie over it;[88] and black pants.[89]
[83] ts 125.
[84] ts 125.
[85] ts 131.
[86] ts 125.
[87] ts 131.
[88] ts 125.
[89] ts 131.
In relation to the physical characteristics of the person he said that he was about the same height as him, which was 6 foot,[90] and of slim build.[91]
[90] ts 129.
[91] ts 129.
In cross-examination Mr Vlahov said they had a lot of tradies coming into the store wearing that sort of hi-vis jumper.[92]
[92] ts 130.
Mr Vlahov was not able to make out what the person said initially. After the person walked inside the IGA and made his way near the cigarettes, Mr Vlahov heard him say 'give me your money' or 'give me the money'.[93] The voice was muffled.[94] He then walked around to the cigarettes counter. At that point Mr Vlahov entered the store and jumped over the checkout counter to protect Ms Korhomen.
[93] ts 126.
[94] ts 126.
Mr Vlahov did not see anything in the person's hands at that stage.[95]
[95] ts 127.
After the person opened the door to the cigarettes, Mr Vlahov pushed that door into him to push him away, repeatedly yelling 'Get out of my store. Get out. Get out'.[96] At that point the person slowly backed off.
[96] ts 127.
According to Mr Vlahov, the person then pulled something out of his pocket which he described as looking like a ceramic bowl.[97] This did not intimidate Mr Vlahov.[98]
[97] ts 127.
[98] ts 127.
Mr Vlahov said that he looked around for the nearest thing to defend himself. That turned out to be a box of mangoes which he used as a barrier between himself and the person.[99] He then pushed the box towards the man, using it as a shield. According to Mr Vlahov, the man 'very calmly just walked out the same entrance he came in'.[100]
[99] ts 129.
[100] ts 129.
Mr Vlahov's account is generally consistent with the CCTV footage. There are several differences. First, the timing the person is alleged to have first produced the object Mr Vlahov describes to be like a ceramic bowl. Secondly, he describes the orange high-vis jacket as having a black hood; it clearly had an orange hood. Thirdly, Mr Vlahov said the person had black gloves; the gloves were clearly red and black.
Callan Ryan Meredith
On 28 January 2019, Callan Ryan Meredith attended the Glengarry Shopping Centre to shop at IGA. As he was about to enter the IGA, he saw a person enter from the opposite direction, the western end of the shopping centre. He was drawn to the person who had a mask, hoodie and a white object in his hand. The person was calm, walking very slowly, without any urgency.
Mr Meredith said he was five to six metres away from this person, then backpedalled a few metres and called the police.
He saw the person enter the store, go around the counter and be have a relatively minor physical scuffle with Mr Vlahov. He then saw the person leave the store by the entrance that he came in. He also described him as leaving very calmly.
Mr Meredith described the person as wearing a 'skeleton' or 'Halloween‑type mask and a hoodie'.[101] The mask was a 'horror theme, skeleton, kind of skull‑type mask' which was mainly black with bits of white on it as well. The mask covered the man's entire face.[102] The person also wore a plain black hoodie which was up, black gloves and black pants with no distinguishing features.
[101] ts 134.
[102] ts 135.
He also described seeing the person with 'some sort of white, round object' in his right hand, perhaps a 'white rock' or 'saucer'.[103] The diameter of the object was about 10 cm to 12 cm.[104]
[103] ts 134.
[104] ts 139.
Mr Meredith said that the person was quite tall, six two or slightly. The person was of strong build; 90 to 100 kilos type weight range;[105] relatively stocky build and relatively broad shoulders.[106]
[105] ts 136.
[106] ts 139.
In terms of the differences between Mr Meredith's account and the CCTV footage, I note that, first, his description of the hoodie as being plain black is clearly wrong. It is orange and had a distinctive black or dark blue patch on the left upper sleeve. Secondly, like Mr Brown, Ms Korhomen and Mr Vlahov he too described black gloves when the CCTV clearly shows that the gloves were red and black.
The CCTV footage in relation to count 2
The CCTV footage relevant to count 2 is from four different cameras at the Glengarry Shopping Centre. As already noted, the footage is visual only. Exhibit 1.4 captured the alleged person walking outside the shopping centre in the carpark area as he made his way towards Glengarry IGA. Exhibit 1.5 is footage from inside the shopping mall and entry to the IGA. The person wearing the orange and black high visibility hooded jumper can clearly be seen entering via the sliding doors to the shopping centre from the carpark side at approximately 19:50:50. Seemingly the same person exits the IGA at approximately 19:51:20 hrs, approximately 30 seconds after first entering the mall area. Exhibit 1.6 is CCTV footage taken from inside the IGA looking towards the entry. The person in the orange top enters the store at approximately 19:50:14 and exits the same way at about 19:50:37. According to the timer on that camera, that is 23 seconds after entering the store. At 19:50:30 a light coloured object can clearly be seen in the person's raised right hand. He is holding the object in a red and black glove. Exhibit 1.7 is CCTV footage focussed on the checkout of the IGA. The person enters the store at 19:50:12 on the timer and leaves at approximately 19:50:35, 23 seconds later. Between 19:50:30 and 19:50:36, it is clear that the person is wearing a black face mark, not a balaclava. From the footage, it appears to be a plain black mask. The orange hood of his top covers the top of his head.
Farmer Jacks Woodland on 8 February 2019 (count 3)
Amelia Christina Swang Owers
On 8 February 2019 Ms Owers, who was 16 years old, was working as a cashier at Farmer Jacks Woodland.
At eight o'clock, or just after, she saw a man wearing a balaclava walking into the store from the entrance closest to where she was working on checkout 1. He walked purposefully around the counter and stood right next to her.[107] He said something like, 'Open the till', 'Open it',[108] or something along those lines. He had a knife which he held in her direction and a bag with him which he thrust at her.
[107] ts 157.
[108] ts 157.
On his instruction, she opened the till. The man was standing half a metre from her. He said something like 'Fill the bag', or, 'Get the cash out'.[109] He was pointing the knife in her direction. She started putting the cash notes into the bag. At that stage he turned and started taking cigarettes which he put into the bag as well. Ms Owers then moved onto the coins and started putting them into the bag.
[109] ts 159.
At about that time, Ms Downing, who was working on another checkout, called over the PA system for the manager to come to the front of the store. Shortly after that, the man quickly left the store, going out the same way that he had entered.
Ms Owers described the clothing she saw the person wearing as: a red or orange jumper;[110] a black balaclava;[111] and black pants.[112] She described his physical appearance. Based upon her own height of 165 cm, she estimated that he was 170 - 175 cm tall.[113] His build as 'maybe broader than average'[114] in the shoulders[115] and he was aged 25 to, at most, 35 years old.[116]
[110] ts 157.
[111] ts 157.
[112] ts 157.
[113] ts 163.
[114] ts 163.
[115] ts 166.
[116] ts 163.
Ms Owers said he spoke with a 'normal Australian male accent'.[117]
[117] ts 163.
In examination-in-chief, Ms Owers described the knife she alleges the man had in his hand as a hunting or a fishing knife, quite large and silver, with a slightly serrated top towards the handle.[118] When the police arrived, she drew a sketch of the knife.[119] In cross-examination she elaborated upon the sketch and said that at the time she thought the handle was 'darker grey' with 'possible grip indents' which were obscured by the hand.[120] The blade was not a reflective, shiny metal, but rather 'slightly darker', perhaps matte.[121] Part of the top of the blade, towards the handle, had a serrated edge. The blade was about 5 cm wide.[122]
[118] ts 157.
[119] Exhibit 5.
[120] ts 164.
[121] ts 164.
[122] ts 165.
In relation to the bag the person had with him, Ms Owers described it as being material, perhaps cotton but slightly thicker, like a 'bring your own shopping bag' that was a light beige in colour. She also said it had images or a picture on it. She was unable to say precisely what the images or pictures were, but they were yellow with a black outline.[123]
Emma Jane Downing
[123] ts 158.
At approximately 8.00 pm on 8 February 2019 Ms Emma Downing was working at Farmer Jacks as the checkout supervisor. She was operating checkout 2, serving customers, when she saw a man standing behind checkout 1 next to Ms Owers. Ms Downing was about three metres away.[124] She said he was holding a knife in his right hand and held it 'up to [Ms Ower's] head or throat'[125]. She also said that he was holding a 'brown sack' in his left hand.[126]
[124] ts 169.
[125] ts 170.
[126] ts 169.
Ms Downing said that she reached for the intercom and called for the manager to come to the front of the store. Whilst she did this, she maintained eye contact with the man and tried to remember as much as she could. He momentarily stopped what he was doing and looked at her. He then seemed to pick up his pace and was quite hurriedly trying to get as much as he could from the till into the sack.[127] The man then ran from the store.
[127] ts 171.
Ms Downing described the man as being a little bit taller than her. She was 5 foot 6 inches and estimated that the person was about 5 foot 8 inches tall.[128] He had a skinny build.[129] She said he was pale‑skinned, as she could see the skin around his eyes that were not obscured by the mask or sunglasses,[130] and could also see the start of his nose, around the inside of his eyes, and around the top of his eyebrows.[131] She thought he was in his 20s.[132]
[128] ts 172.
[129] ts 172.
[130] ts 172.
[131] ts 179.
[132] ts 172.
As to the person's clothing, Ms Downing said that he was wearing a scuba style headdress with a hole around the eyes.[133] She also described it as a 'mask'.[134] It covered his ears and hair.[135] He was also wearing quite narrow and black, plastic looking sunglasses over his eyes,[136] which she further described as being flat, rectangular shape over his eyes and about 4 cm wide.[137] He was wearing a long-sleeve hi-vis jumper that was orange on the top half, navy on the bottom half and had a navy patch over the left shoulder.[138]
[133] ts 170.
[134] ts 172.
[135] ts 180.
[136] ts 170.
[137] ts 183.
[138] ts 170.
As to the knife, Ms Downing described it as being like a camping knife, with a thick, black handle and blade that was about 15 to 20 cm long with a serrated edge. The blade was about an inch wide.[139] In cross‑examination she said it was serrated down one edge of the knife about two-thirds of the way down.[140] It was quite chunky and about an inch, or two and a half centimetres wide.[141]
[139] ts 170.
[140] ts 183.
[141] ts 183.
In relation to the bag or sack used by the person, she said that it was held in his left hand. She said that it looked like it was made of a 'calico type material and it was about the size of an A4 piece of paper'.[142]
Second sighting of the person by Ms Downing
[142] ts 170.
Before 8 February 2019 Ms Downing had never seen this person.[143] She said that between 5.00 pm and 6.00 pm on 16 February she again saw this person at Farmers Jacks whilst she was working at the store.[144]
[143] ts 183.
[144] ts 173.
She recognised the person on this occasion as the person who had held Ms Owers up at knifepoint on 8 February 2019 because 'he was approximately the same build'; 'he was a little bit agitated when he approached [her]checkout'; 'when [she] made eye contact with him as [she] was serving him, he became increasingly agitated and he started to move very erratically, and he paid for his items very quickly as he left'; and he 'was also wearing the same hi-vis jumper with the navy patch on the left shoulder'.[145]
[145] ts 173.
Ms Downing said that whilst they saw many people come into the store wearing high‑visibility jumpers, they never had 'that patch on the left side.'[146] He was also wearing a black cap.[147]
Third sighting
[146] ts 174.
[147] ts 174.
On 22 February 2019, at around 7.30 pm, she again saw the same person. She was sitting outside the store at the shopping centre when she saw him walk past her and out the sliding doors.[148] On this occasion she recognised the person's face from the second time that she had seen him.[149] Again he was wearing the same two‑tone hi‑vis jumper. He was also wearing a black cap.[150]
Fourth occasion
[148] ts 174.
[149] ts 174.
[150] ts 174.
On 5 March 2019 at approximately 7.30 pm she was on duty at the store when she again saw the person. He was again wearing the same hi‑vis jumper with the patch on the left shoulder and the same black cap. According to Ms Downing, he was trying to avoid making eye contact with anyone by keeping his head down.[151]
[151] ts 175.
On each occasion that Ms Downing saw the person she either recorded it in her calendar, or spoke to someone at the store about sighting the person.
On 5 March 2019 she contacted police. On 8 March 2019 she was asked to attend the police station at Curtin House in Perth. There she was shown a selection of photographs and asked whether she recognised the person that she had seen at Farmer Jacks. She identified him from one of the people in the photographs.[152] She identified the person that looked the same as the person she had seen on the second, third and fourth sighting.[153] The person she identified was not the accused.
Rachel May Sydney-Smith
[152] ts 175.
[153] ts 183.
On 8 February 2019, Ms Sydney-Smith was working at Farmer Jacks supermarket in the Woodlands Shopping Centre stacking shelves. She heard Ms Downing calling over the PA which caused her to go to the front to see if she could help. As she approached she could see a man at checkout 1. He was behind the counter taking money out of the till. Ms Owers was also behind the checkout. Ms Sydney-Smith was about five metres from him.[154] His movements when he stepped away from behind the counter and went out of the store were 'steady, certain, deliberate movements'.[155]
[154] ts 190.
[155] ts 191.
Ms Sydney-Smith described the clothing worn by the person as: plain black gloves;[156] a ski mask that had an open slit across his eyes[157] and he did not have glasses on;[158] black long pants;[159] part of his clothing was bright orange or yellow, but she was unsure whether it was the ski mask or his jacket, which was otherwise black.[160]
[156] ts 189.
[157] ts 189.
[158] ts 192.
[159] ts 195.
[160] ts 189.
As to the person's physical characteristics, Ms Sydney-Smith said that he was: Caucasian from the skin around his eyes;[161] taller than Ms Owers by roughly a foot;[162] of a slim build; and aged 20 to in his 30s.[163]
[161] ts 190.
[162] ts 190.
[163] ts 190.
As to the knife, Ms Sydney-Smith described it as having a black handle, with a blade that was about 10 to 20 cm long[164] and 2 cm wide.[165]
The CCTV footage in relation to count 3
[164] ts 190 and ts 192.
[165] ts 194.
The CCTV footage relevant to count 3 comprises three separate files taken from two different cameras at the Woodlands Shopping Centre. Two of the files relate to the events on 8 February 2019. The third is footage taken from a CCTV camera on 5 March 2019. All the footage is visual only. Exhibit 1.8 is CCTV footage of the person alleged to be the accused wearing a balaclava and an orange and black top walking into the shopping centre near the entry to Farmer Jacks Woodlands at approximately 20:02:03. He is seen to leave Farmer Jacks at about 20:02:51, which is approximately 48 seconds after entering the store. Exhibit 1.9 is footage taken from a camera directly above the checkout counter where Ms Owers is working. The footage commences at approximately 20:02:06 when the man walks into Farmer Jacks and around the counter. At approximately 20:02:52 the man appears to exit the store, which is approximately 46 seconds later.
Exhibit 1.10 is footage from inside the shopping centre near the entry to Farmer Jacks Woodlands on 5 March 2019. A man wearing an orange and black top with a distinctive patch on the left upper sleeve is seen to walk out of Farmer Jacks Woodlands. It is the State's case that person is the accused.
Stephen Gabriel Lawrence Parker
Mr Parker lived at 241 Warwick Road, Duncraig. He still lives at that address and has for nine years. He leases the property. It is a four bedroom, one bathroom house. He occupies one bedroom and, from time to time, has housemates who occupy the other rooms of the house.
In about April 2018[166] or June 2018[167] the accused became a housemate. Mr Parker thought that the accused moved out at the end of January or February 2019.[168]
[166] ts 145.
[167] ts 142.
[168] ts 142.
Two other people also lived in the house during the time that the accused lived there. One for the entire period and one for part of the period. Those two people were David Stewart and Sean Byrne. Mr Byrne moved in on 17 December 2018.[169] At times other people, friends and backpackers also stayed at the house.[170]
[169] ts 142.
[170] ts 146.
Mr Parker was overseas for a period of time in 2018. He returned in about August 2018. After that, he was employed fulltime and worked between the hours of 6.30 am till 3.15 pm or 3.30 pm. Mr Parker said the accused did not have regular work whilst he lived at the house.[171] To his knowledge, the accused had work on one day during the time he lived at the house.[172] The accused paid $120 per week in rent. Mr Parker did not always make him pay. Whilst he fell behind on rent, he generally caught up.[173]
[171] ts 143.
[172] ts 147.
[173] ts 145.
Mr Parker had a regular pattern during the period the accused lived in the house. He played sport on Tuesday and Thursday evenings and had dinner with his family on Wednesday evening. On other evenings he was generally home.[174] According to Mr Parker, both Mr Byrne and Mr Stewart played sport with him on Tuesdays and Thursday evenings. Mr Byrne did not always play.
[174] ts 143.
There were times when Mr Bouwman and Mr Byrne were home on weekday afternoons.[175]
[175] ts 144.
According to Mr Parker, Mr Byrne and the accused socialised in the house.[176] This included Mr Byrne and the accused having barbeques together at the house. This did not occur every night.[177]
[176] ts 147.
[177] ts 147.
The execution of a search warrant at 13 Elmwood Avenue, Woodlands on 19 March 2019
Detective Ribbans and other police officers executed a search warrant at 13 Elmwood Avenue, Woodlands on 19 March 2019. The address was the home of the accused's grandmother, Mrs Rogaunig. Police seized various items that day. Mrs Rogaunig and the accused's mother, Susane Bouwman, were at the house that day.
The search was visually recorded by police.[178] It was not a continuous recording of the entire time the police were at the premises. The areas recorded during the search included: a bedroom at the premises which the accused acknowledged in his evidence was the room he used when he stayed at the house; a search of the kitchen and a kitchen drawer; and the search of a red Ford Mustang covered by a grey canopy located under a carport at the premises.
[178] Exhibit 7.
The accused admitted that the red Ford Mustang was his.[179] In addition to things seized by police, police also visually recorded and photographed various items in situ. The relevant items seized or photographed are:
•From the bedroom: a long-sleeved hooded orange and black top with a dark blue or black patch on the upper left sleeve;[180] two pairs of black shoes;[181] grey, white, maroon and black long‑sleeved flannelette shirt;[182] black cap; [183] two grey and black gloves; one off-white glove with a blue band around the top edge;[184] and a basket of documents including documents addressed to Joshua Bouwman at 241 Warwick Road, Duncraig.[185]
•From the kitchen: a wooden knife-block containing nine different knives, including a grey-handled knife with long silver blade;[186] a small wooden-handled paring knife located in the kitchen drawer. [187]
•From the red Ford Mustang: a distinctive pair of red and black gloves with an emblem or logo near the wrist located in a black bag on the front seat of the red Ford Mustang.[188]
[179] ts 272.
[180] Exhibits 8.1 – 8.6; 12.1 and 12.2.
[181] Exhibits 8.6 and 8.7.
[182] Exhibits 8.8 and 8.9.
[183] Exhibit 8.10.
[184] Exhibit 8.11.
[185] Exhibits 8.12 – 8.14.
[186] Exhibits 10.1.
[187] Exhibits 10.1 and 10.2.
[188] Exhibits 9.4 – 9.6.
The accused did not admit that the bag was his and denied that the red and black gloves were his.[189]
The arrest of the accused on 19 March 2019 and the items found in his possession: the patterned bag with grey and yellow images and the mobile phone
[189] ts 274; ts 277.
The accused was arrested by police on 19 March 2019. At that time he was in possession of a distinctively patterned shopping bag that appears to be white or light coloured with grey and yellow images with a black outline. The bag is distinctive in that, apart from the colours, it is patterned with various child-like drawings.[190] The accused was also in possession of a mobile phone. The data from the mobile phone was later downloaded by police. An extract of that data was tendered by the prosecution.[191]
[190] Exhibit 6.
[191] Exhibit 17.
In his evidence, the accused admitted that at the time of his arrest he was in possession of the distinctive white, yellow and grey bag. He said that at some point before he was arrested on 19 March 2019 he found the bag in his car and used it to put clothes in.[192]
[192] ts 278 - ts 279.
From information found on the mobile phone, on 20 March 2019 police attended 38 Kathleen Street, Cottesloe. That address was the home of the accused's girlfriend, Valentine. There police located and seized another orange and black high-visibility hooded top with a patch on the upper left sleeve.[193]
[193] Exhibit 12.1 and 12.2.
The seizure of a black balaclava by police at 13 Elmwood Avenue, Woodlands on 19 May 2019
On 19 March 2019, as part of the execution of the search warrant conducted at 13 Elmwood Avenue, Woodlands, Detective Ribbans and other officers searched the red Ford Mustang. An officer went into the backseat area of the vehicle during the search.[194] Police were specifically looking for a balaclava. It was listed on the search warrant.[195] Part of the search was visually recorded that day.[196] Police did not seize, locate or record a black balaclava. The accused's mother, Mrs Bouwman, was present at the time the vehicle was searched. She can be seen standing next to the vehicle during the search.[197]
[194] ts 255.
[195] ts 256.
[196] Exhibit 7.
[197] Exhibit 7.
Similarities with count 1
In relation to count 1, the only circumstances that the State submits bears any real similarity with counts 2 and 3 are: that the person's face was concealed with a balaclava or some sort of face covering; the person was wearing gloves, albeit different gloves to those worn on counts 2 and 3; the person was willing to engage in a confrontation on counts 1 and 2; the offender in counts 1 and 2 was carrying a black bag, conceding that they were carried differently.
Mr McCallum concedes that there are many differences between the appearance and methodology employed as between count 1 and counts 2 and 3, including the clothes worn and, although counts 1 and 2 were both committed at Glengarry IGA, the offender entered from a different entrance.
Mr McCallum submits there is broad consistency in the descriptions given by the witnesses. This includes the age of the offender, generally given as between 20s and 30s and that the offender wore a face covering on all three occasions.
In relation to the various descriptions of the face covering worn by the offender on each occasion, the State submits that all of the descriptions were broadly consistent with the balaclava seized by police from the red Ford Mustang on 19 May 2019.
Circumstances from which the State submits the identity of the accused can be concluded
The State points to a combination of factors proving the identity of the accused as the offender on count 1. First, the off-white glove seized by police from the bedroom at 13 Elmwood Avenue, Woodlands on 19 March 2019.[275] The State submits that, when a comparison is made of that glove with the gloves worn by the person responsible for the robbery on 21 January 2019 seen in the CCTV exhibit 1.2 at 19:46:15, they are similar.
[275] Exhibit 8.11.
Secondly, the black balaclava seized from the Mustang on 19 May 2019 which the State submits fits the description of the one worn by the offender.
Thirdly, the proximity of Glengarry IGA to the accused's address at the time, 241 Warwick Road, Duncraig.
Fourthly, the absence of mobile phone use at the time of the offence.
Fifthly, the physical characteristics of the accused which the State submits are 'not inconsistent with the images depicted in the CCTV footage'.[276]
[276] ts 324.
Sixthly, the strained financial circumstances of the accused.
In relation to the circumstances relating to the seizure of the black balaclava on 19 May 2019, the State submits that I should accept the evidence of Mrs Bouwman and that the more likely scenario is that the balaclava was in the car on 19 March 2019, but missed by police during the search.
The State points to a combination of factors proving the identity of the accused as the offender on counts 2 & 3. First, the discovery of two orange and black high-visibility hooded tops with a distinctive rectangular patch above the left elbow, the first at the accused's grandmother's house at 13 Elmwood Avenue, and the second at the accused's girlfriend's house at 38 Kathleen Street, Cottesloe. The State submits that there is a striking resemblance between the orange and black hooded top worn by the person during the commission of the robberies on counts 2 and 3 and captured in the CCTV footage, and the one worn by the accused when he was arrested on an unrelated matter on 12 February 2019.
Secondly, the pair of red and black gloves with what the State submits is an emblem on the top of the wrist area that were found in the Mustang on 19 March 2019.[277] The State submits that these gloves are the same or strikingly similar to the gloves used during the commission of counts 2 and 3.
[277] Exhibit 9.6.
Thirdly, the accused's possession of the distinctively patterned bag at the time of his arrest on 19 March 2019 (count 3 only)[278] and a comparison of it with the stills taken from the CCTV footage.[279]
[278] Exhibit 6.
[279] Exhibits 1.9A and 1.9B.
Fourthly, the proximity between the accused's residence and the place of the offence. Glengarry IGA to 241 Warwick Road, Duncraig on count 2, and 13 Elmwood Avenue, Duncraig and Farmer Jacks Woodlands on count 3.
Fifthly, the absence of mobile phone use at the time of the commission of the offences the subject of counts 2 and 3.
Sixthly, the physical characteristics of the accused which the State submits are 'not inconsistent with the images depicted in the CCTV footage'.
Seventhly, the black shoes found during the execution of the search warrant at 13 Elmwood Avenue on 19 March 2019 which are consistent with the shoes worn during the offences.
Eighthly, the strained financial circumstances of the accused, the bank statements in exhibit 18 demonstrate that he was in receipt of Newstart allowance.
Ninthly, in relation to count 3, the black balaclava allegedly found by Mrs Bouwman on 26 March 2019 which the State submits is consistent with that worn by the offender on count 3.
The offensive instrument - count 2 (the 'screwdriver')
In relation to count 2, the State particularised the offensive instrument as a 'screw driver [sic]'. That is not the object that the State relies upon as being used to threaten violence. That object is the object held in the hand of the offender when threatening Mr Vlahov, before entering the store and before he left the store. That object was variously described by the relevant witnesses as a ceramic bowl, white object, and even a black hockey puck.
Mr McCallum, during the course of closing submissions, made clear that that the State's case is that the threats of violence on count 2 are the implicit threats of violence made to Ms Korhomen when the offender stole from her. Mr McCallum made clear that the offensive instrument, based upon the way the State has run its case, is not the round object, but rather the implement that was partly concealed by the person's sleeve'.[280] The State's case is that item was a screwdriver. The State submits that I do not have to be satisfied beyond reasonable doubt that it was a screwdriver. I do have to be satisfied beyond reasonable doubt that it was an offensive instrument. I accept the State's submission that I do not have to be satisfied beyond reasonable doubt that it was a screwdriver.
[280] ts 307.
The defence submissions
Mr Burg submits that I should accept the evidence of the accused. The defence points to the alibi notice and the evidence of Mr Parker which generally supports the accused's account in relation to counts 1 and 2.
The defence also relies upon the evidence of Mrs Rogaunig and Mr Parker to support the accused's alibi in relation to count 3. The defence also relies upon Mrs Rogaunig's evidence in a number of other ways. First, it supports an inference that someone other than the accused had accessed his car and put the red and black gloves and distinctively patterned bag in the Mustang. Secondly, that someone else may have left the balaclava in the car. Thirdly, that the accused had other sources of money.
Mr Burg pointed to the inconsistencies in the accounts of the prosecution witnesses as to their descriptions of the offender on each occasion, including the differences in relation to the height of the offender and clothing worn by the offender.
In relation to the clothing, differences included the colour of the gloves on count 1 (Mr Brown described them as black); the colour of the gloves in relation to counts 2 and 3 (all witnesses described them as black).
There were various descriptions of the knife, including the sketch drawn by Ms Owers, and the inconsistency with the knives seized from Mrs Rogaunig's home.
There were differences in relation to the face covering utilised by the offender on each of the occasions. The descriptions were 'balaclava' on count 1; various descriptions of the 'mask' on count 2; and various descriptions of the face covering on count 3 including, 'balaclava', 'ski mask' and 'scuba-diving mask'.
There were also differences in the description of the bag used by the offender on count 3.
In relation to counts 2 and 3, Mr Burg highlights the fact that Ms Downing, when asked by police to identify the offender from photographs, identified someone other than the accused.
Mr Burg submits that the explanations given by the accused in relation to his bank account and the messages between him and Valentine should be accepted. He submits that nothing he said in that regard was contradicted by the State. Likewise, Mr Burg submits that the accused's evidence with respect to the red and black gloves, balaclava and the patterned bag should be accepted.
Whilst I accept parts of the accused's evidence, for the reasons that follow, I reject his evidence which relate to the critical elements of all three offences.
Further directions in relation to relying upon eyewitness evidence of circumstantial identification and CCTV footage
I remind myself of the need to take special care in considering the eyewitness accounts and the CCTV footage, including its limitations. In this case the State alleges that all offences were committed by the same offender. Eyewitness accounts, as demonstrated in this case, can vary widely. Honest witness can be unreliable. For example, in relation to the descriptions of the height of the offender on counts 2 and 3, they varied considerably. In relation to count 2, Ms Korhomen said he was around 6 foot, maybe a bit smaller.[281] Mr Vlahov said about 6 foot. Mr Brown said 5 foot 10 inches to 6 foot or maybe a little bit taller. Mr Meredith said 6 foot 2 inches or more.
[281] ts 118.
In relation to count 3, Ms Owers said he was 170 cm to 175 cm tall. Ms Downing said he was about 5 foot 8 inches tall. Ms Sydney‑Smith said he was roughly a foot taller than Ms Owers (who said she was 165 cm).
Consequently, it is only Ms Owers and Ms Downing who described the offender as being in the range of 170 to 175 cm or roughly 5 foot 7 inches to 5 foot nine 9 tall.
All of the witnesses, save for Mr Meredith, generally described the person as slim or average build. Mr Meredith said he was 90 to 100 kilos type weight range.[282]
[282] ts 136.
I remind myself that in scrutinising all of the eyewitness' evidence I need to bear in mind matters such as the speed with which these events occurred; the passage of time between the events and the giving of evidence; the traumatic nature of these events and the various positions and distances from which each person viewed the events.
I need to take into account the deficiencies of relying upon CCTV footage, including that they are two dimensional images without sound and viewed from above or particular angles.
Bearing in mind all of those factors, I am satisfied that all of the prosecution witnesses, save for Mrs Bouwman, are honest. Some of their evidence (where indicated), particularly in light of the CCTV footage, I am not satisfied is either accurate or reliable.
I do not find Mrs Bouwman to be credible in relation to the issue of when and where the balaclava was located on 19 or 26 March 2019.
Findings of fact in relation to count 1
Having viewed the footage from all the cameras and carefully considered the evidence of Mr Brown and Mr Maassen, including the differences between their accounts and the CCTV footage, I am satisfied of the following
1.The person alleged to be the accused is a Caucasian male. On the CCTV footage, the wrists, back of the neck and the skin around the person's eyes can be seen at various times when he is behind the counter.[283]
[283] Exhibits 1.3 at 19:46:27 – 19:46:27.
2.He is wearing:
(a)a black balaclava with holes for the eyes (two separate holes) and small hole for the mouth;[284]
(b)predominantly black runners with a white symbol on the outside of the shoe, the bottom of the soles of the shoes are white;[285]
(c)grey tracksuit pants with two black stripes running down the sides;
(d)a long-sleeve, button-up flannelette shirt; the pattern on the shirt is of irregularly shaped squares; the shirt is blue, maroon and grey looking in colour; and
(e)off-white gloves similar to that used for gardening or other labouring work[286] (I note that Mr Brown describes the person as wearing black gloves and Mr Maassen apparently told the police in May 2019 that he thought he could see the fingers of the person. Both of these accounts are, when the CCTV footage is viewed, clearly wrong).
3.When the person enters the IGA he is wearing a black bag with thin or shoe-string handles on his back. The bag has some white on it.[287]
4.The person is holding a knife. The knife has a silver blade and dark handle. The blade is of a similar length to a $20 note, about 15cm long.
5.The person is of slim build.
[284] Ex 1.2 at 19:46:16 as the person enters the IGA supermarket
[285] Ex 1.2 at 19:46:46 as the person exits the IGA supermarket
[286] Ex 1.2 at 19:46:16
[287] Ex 1.1 at 19:46:57
I am satisfied that Glengarry IGA is not far from 241 Warwick Road, Duncraig.
I am unable to make any specific findings as to the height of the person. I note the descriptions given by Mr Brown and Mr Maassen varied between 5 foot 10 inches and about 6 foot 1 inches.
On 19 March 2019, police officers including Detective Ribbans executed a search warrant at 13 Elmwood Avenue, Woodlands. On that occasion they seized two knives from a kitchen drawer. One knife was a grey handled knife with a long silver blade. The other knife was a small-bladed knife with a wooden handle.[288] I accept that Mr Brown was obviously in a better position to see the knife than I am given that I am relying upon the CCTV footage. Nonetheless, when the length of the blade is seen near a $20 dollar note,[289] it appears to have a blade considerably longer than 4 inches and a dark handle. This is different to the description of the knife given by Mr Brown. I am not satisfied that either of the knives seized by the police from the kitchen drawer at 13 Elmwood Avenue, Woodlands on 19 March 2019 was the knife used by the person on 21 January 2019.
[288] Exhibit 7, DVD of search conducted at 13 Elmwood Avenue, Woodlands on 19 March 2019.
[289] Exhibit 1.3 at 19:46:26.
Consistent with the accounts given by both Mr Brown and Mr Maassen, there was a customer within the IGA at the time of the offence wearing a shirt similar to that worn by the person, namely a long-sleeved flannelette shirt. It is also clearly different in colour and pattern to that worn by the person holding the knife. I am satisfied beyond reasonable doubt that the flannelette shirt seized by police from 13 Elmwood Avenue, Woodlands on 19 March 2019[290] is not the shirt worn by the person holding the knife on 21 January 2019.
[290] Exhibit 7, DVD of search conducted at 13 Elmwood Avenue, Woodlands on 19 March 2019.
I am also satisfied that neither the pair of black shoes seized by police from 13 Elmwood Ave, nor the pair of black runners seen in the accused's bedroom were the shoes worn by the person on 21 January 2019. The seized pair is a different type of shoe, and the runners in the bedroom are different in a number of respects including the sole.
The single off-white glove seized by police from the bedroom at Mrs Rogaunig's home on 19 March 2019 is generally consistent with the gloves worn by the person on 21 January 2019.
Given the accused's explanations in evidence, noting he bears no onus of proof, I cannot draw any adverse inference against the accused in relation to any issues arising from either the bank account records or the data extracted from his mobile phone. I accept that in relation to those issues there are reasonable inferences that point away from guilt.
In relation to the black balaclava seized by police on 19 May 2019, I note that the on 19 March 2019 police were specifically looking for a balaclava. The red Ford Mustang was searched, including the backseat area of the car. Mrs Bowman's evidence is not supported by the search video or the evidence of Detective Ribbans. Whilst Mrs Bowman is the accused's mother, they do not have a happy relationship. I do not accept the State's submission that the police missed the black balaclava on 19 March 2019. I am not satisfied that it was in the car on 19 March 2019.
Given that the prosecution accepts that the accused had no opportunity to put the balaclava in the vehicle after 19 March 2019, I cannot be satisfied that the balaclava was either in the vehicle on 26 March 2019 as claimed by Mrs Bouwman, or in any way connected to the accused.
The method of execution of the offence on count 1 is different to counts 2 and 3. Differences include: the clothing worn; the type of face covering; the weapon or instrument used by the person; the point of entry; the gait and movements of the person alleged to be the accused, and the urgency of the offender's actions on count 1 which is not replicated on counts 2 and 3. When those factors are considered, I am not satisfied beyond reasonable doubt that the person alleged to have committed count 1 is the same person that committed the offence on count 2 or 3.
I also note that other than the single off-white glove found in the bedroom at Mrs Rogaunig's house, no other item seized by the police supports the State's case on count 1.
Conclusions on count 1
No issue was taken by the accused in relation to any element required to be proved by the State save for the element of identity. Nonetheless, I am satisfied beyond reasonable doubt that the State has proved all other elements of the offence on count 1. They are:
1.Immediately before, and at the time of stealing the Australian cash, the offender threatened to use violence to Grant Daniel Brown by approaching him with a knife in his right hand saying 'give me the money or I'll stab you', or something similar;[291] and
2.The offender stole property of another being Australian cash which was the property of Ocean Connection International Pty Ltd trading as Glengarry IGA and that at the time the offender intended to permanently deprive the person of the property; and
3.The threatened use of violence was for the purpose of effecting the stealing.
[291] ts 83.
In relation to the issue in dispute, namely the identity of the offender, when I consider all of the evidence, I am not satisfied beyond reasonable doubt that the State has proved this element. I am not satisfied beyond reasonable doubt that the accused committed the offence the subject of count 1.
Findings of fact in relation to count 2
I have viewed the footage from all the relevant cameras and carefully considered the evidence of Mr Brown, Mr Vlahov, Ms Korhomen and Mr Meredith, including the differences in their accounts, I am satisfied of the following:
1.The person alleged to be the accused is a male of slim or athletic build, and approximately the same height of Mr Vlahov, that is about 6 foot tall.
2.He is wearing:
(a)a black face mask (not a balaclava);
(b)an orange and black high-visibility hooded top. The hood is orange and the left upper sleeve has a distinctive dark blue or black patch on the upper sleeve;
(c)black shoes;
(d)black tight-fitting long pants, narrow at the ankle; and
(e)distinctive red and black gloves with an emblem or some other marking near the wrist.
3.When the person enters the IGA he is carrying a light coloured hard looking object in his right hand that has the appearance of a bowl or cup.
4.He is in possession of a black bag.
5.He walks in a deliberate, calm but purposeful manner. He has a particular gait that makes his movements appear agile.
There is no dispute that the police seized two orange and black high‑visibility hooded tops with a distinctive rectangular patch above the left elbow. The first during search of Mrs Rogaunig's house on 19 March 2019 and the second at the accused's girlfriend's house at 38 Kathleen Street, Cottesloe on 20 March 2019.
There is a striking resemblance between the orange and black hooded top worn by the offender, described by the witnesses and captured in the CCTV footage of the robberies on counts 2 and 3, and the one worn by the accused when he was arrested on an unrelated matter on 12 February 2019. The accused accepts the tops seized by police on 19 and 20 March 2019 were his and that he wore one, or a similar one, on 12 February 2019.
The footage taken from Woodlands shopping centre on 5 March 2019 shows a person, with some similar physical features to the accused (age, ethnic appearance, facial features and build) wearing a strikingly similar top. I note that the accused was not asked when he gave evidence whether the person seen in the CCTV footage on 5 March 2019 was him.
The pair of red and black gloves with an emblem or some other marking on the top of the wrist area were found in the red Ford Mustang on 19 March 2019.[292] They bear a striking resemblance to the red and black gloves worn by the offender during the commission of the offences on 28 January 2019 and 8 February 2019.
[292] Exhibit 9.6.
I have already noted the proximity of Glengarry IGA to 241 Warwick Road, Duncraig on count 2.
Whilst there is no dispute that black shoes were found during the execution of the search warrant at Mrs Rogaunig's house on 19 March 2019, they do not significantly assist the State's case. There is nothing distinctive about the shoes.
I have already noted that I cannot draw any adverse inference against the accused in relation to any issues arising from either the bank account records or the data extracted from his mobile phone in light of the accused's evidence giving rise to other reasonable inferences available on the evidence.
The offensive instrument - screwdriver
The only evidence relating to the alleged offensive instrument on count 2 is the evidence of Ms Korhomen. She said that she noticed what she believed to be the bottom of a black handle in the palm of the person's right hand which was facing down. Part of the object was obscured by his sleeve.[293] She thought that the person then put the object in a pocket of his pants.[294] Her evidence never rose above the level of speculation as to what the object was. She never saw the complete object and it was never waved or brandished in any way.[295]
[293] ts 116.
[294] ts 117.
[295] ts 117.
I am not satisfied beyond reasonable doubt that the object was an offensive instrument, let alone a screwdriver.
Findings of fact in relation to count 3
Having viewed the CCTV footage from both the cameras and carefully considered the evidence of Miss Owers, Ms Downing, Ms Sydney‑Smith, including the differences between the eyewitnesses' descriptions of the mask, the bag used by the offender, the height of the person, that only Ms Downing described the person as wearing sunglasses, and the fact that all of the witnesses described the gloves as being only black, I am satisfied of the following:
1.In relation to the person seen on the CCTV footage of 8 February 2019 (exhibits 1.8 and 1.9) and described by the witnesses in evidence:
(a)he is a male of slim or athletic build,
(b)he is considerably taller than Miss Owers (Ms Owers is 165cm tall);
(c)he is wearing:
(i)dark sunglasses with a white rim;
(ii)a black balaclava that is over the sunglasses, with sunglasses protruding through the eye‑holes;
(iii)an orange and black hooded top. The hood is orange and is worn down. The left upper sleeve has a dark blue or black patch on the upper sleeve;
(iv)black shoes;
(v)long black tight-fitting pants, which are narrow at the ankle; and
(vi)distinctive red and black gloves with an emblem or some other marking near the wrist.
(d)When the person enters the IGA he is carrying a knife in his right hand.
(e)He is in possession of a light coloured shopping-type bag that has distinctive yellow and grey images or pictures, some with a black outline.
(f)He walks in a deliberate, calm but purposeful manner. He has a particular gait that makes his movements appear agile.
2.In relation to the person seen by Ms Downing on 5 March 2019, described by her in evidence and captured in CCTV footage (exhibit 1.10):
(a)The person is male and of similar build to the person who attended on 8 February 2019. He has similar features to the accused (age, ethnic appearance, facial features and build).
(b)The person is wearing a strikingly similar top to the one worn on 28 February 2019 and 8 February 2019, namely an orange and black high-visibility hooded jumper with a patch on the upper left sleeve, a black cap and black runners with white rimmed soles.
I am satisfied that Farmer Jacks Woodlands is not far from Mrs Rogaunig's home.
I am not satisfied that any of the knives seized by police were used or were similar to the knife used by the offender. Nor am I satisfied that they bore any resemblance to the description of the knife given by Ms Owers (a 'hunting or fishing knife') or the sketch drawn by her or the description of the knife given by Ms Downing ('camping knife'). Ms Sydney-Smith described the knife as having a black handle and silver blade. Whilst some of the knives seen in the butchers block at Mrs Rogaunig's kitchen had a black handle, no evidence was produced as to the blades of those knives.
I repeat my findings set out above in relation to count 2 with respect to the red and black gloves, black shoes, bank records, and mobile phone data.
Striking similarities between counts 2 and 3
The State does not submit that the evidence on count 2 is cross‑admissible in relation to count 1. The State does submit that the evidence on count 2 supports the evidence on count 3 and vice versa.
There are strong similarities in relation to the evidence relating to the commission of the offences the subject of counts 2 and 3. I will detail those similarities. I remind myself that I need to consider the evidence that is relevant to each offence separately. If I find the accused guilty of one offence, I do not reason that therefore he is guilty of another, or the other offences. That would be an impermissible process of reasoning. I need to give separate consideration to each charge.
There are differences between counts 2 and 3. First, they include the offence the subject of count 2 involved the use of a bowl, cup or similar object to threaten violence and going armed with an instrument, pleaded as a screwdriver up the offender's sleeve. Count 3 involved only one weapon, a knife.
Secondly, count 2 involved the use of a mask, whereas count 3 involved a balaclava.
Thirdly, the offences were committed at different shopping centres in different suburbs.
Fourthly, count 2 involved a black bag, whereas count 3 involved the distinctive patterned bag.
When it comes to counts 2 and 3, I have already noted the facts that I am satisfied of when considering the evidence relevant to the eyewitness accounts and CCTV footage. The similarities between the two events includes that the person seen and described in relation to both offences is a male of slim build or athletic build; tall, being around 6 foot; walks in a deliberate, calm but purposeful manner. He has a particular gait that makes his movements appear agile.
In relation to the clothes, he is wearing a very distinctive orange and black hooded high visibility top with a dark blue or black patch on the upper sleeve; a face-covering (black face mask on count 2 and black balaclava and sunglasses on count 3); black shoes on each occasion; long black tight-fitting pants, narrow at the ankle; distinctive red and black gloves with a marking or emblem on the wrist.
In addition, both offences are committed at similar times of the day, about or close to 8.00 pm.
Given all of the above, I am satisfied beyond reasonable doubt that the offences the subject of counts 2 and 3 were committed by the same offender.
The 'negative identification' by Ms Downing
It is necessary to carefully consider the evidence of Ms Downing in relation to her 'negative identification' of the accused and whether that evidence alone, or in combination with any other evidence, causes me to have a reasonable doubt as to whether the State has proved that the accused committed either or both of counts 2 and 3.
I again remind myself that the State must disprove the alibi. I remind myself I cannot find the accused guilty of any count if any evidence has given rise to a reasonable doubt in relation to that count.
Ms Downing's evidence in relation to the person she saw on 8 February 2019 included he was about 5 foot 8 inches tall;[296] he was wearing a 'scuba-style headdress'[297] and sunglasses, and could see he was pale‑skinned. She also said that he had a brown sack with him that day.
[296] ts 172.
[297] ts 170.
Ms Downing said that on 16 February 2019, whilst at Framers Jacks Woodlands, she again saw the offender and recognised him as the person she had seen on 8 February 2019, albeit that on 8 February 2019 the person's face was obscured by a balaclava and sunglasses.
She said that she recognised the person on 16 February 2016 because[298] he was approximately the same build; was a little bit agitated when he approached her checkout and when she made eye contact with him he became increasingly agitated; was wearing the same hi-visibility jumper with the navy patch on the left shoulder. She also said he was also wearing a black cap.
[298] ts 173.
On 22 February 2019 she said she recognised the person from his face which she had seen on 16 February 2019 and because he was wearing the same hi-visibility jumper[299] and the same black cap that she had seen him wear on 16 February 2019.
[299] ts 174.
On 5 March 2019 she said she again recognised him wearing the same high visibility jumper and the same black cap. He was also trying to avoid eye contact with anyone.[300]
[300] ts 175.
On 8 March 2019 Ms Downing was asked by police to see if she could identify the person. She was shown a selection of photographs and selected the person she recognised on the second, third and fourth occasions. The person she selected from the photographs was not the accused.
I carefully watched the CCTV footage of the person walking out of the Farmer Jacks Woodlands on 5 March 2019.[301] In addition to the striking similarity of the orange and black high-visibility top worn by that person to the orange and black tops worn by the offender on counts 2 and 3, and that worn by the accused on 12 February 2019, the person in the footage bears a strong resemblance to the photograph of the accused taken on 12 February 2019 at Perth Police Station.[302]
[301] Exhibit 1.10 particularly at 18:54:00.
[302] Ex 15
In addition, the person in the footage on 5 March 2019 is wearing a black cap and black runners with white around the sole. Both a black cap[303] and similar runners[304] were located at the home of Mrs Rogaunig on 19 March 2019.
[303] Ex 8.10
[304] Ex 8.6
Analysis of the alibi evidence on counts 2 and 3
I remind myself that even if I do not positively accept the accused's evidence as to his whereabouts on 28 January 2019 and 8 February 2019, I am still obliged to consider whether there is a reasonable possibility that his account was true.
When the accused's evidence is analysed with respect to each offence, he was not able to definitively say where he was, save for the positive assertion that he was not present when the offence was committed. He of course bears no onus of proof. There is some support for his account in the evidence of Mr Parker on count 2, and the evidence of Mrs Rogaunig on count 3. However, neither Mr Parker nor Mrs Rogaunig could definitely say where the accused was on each occasion. That of course is not the test.
When all of the circumstantial evidence proving the identity of the offender as to the accused (set out below) is considered in combination, I am satisfied beyond reasonable doubt that there is no reasonable opportunity that the accused's alibi evidence could be true in relation to either count 2 or count 4.
Conclusions in relation to count 2
No issue was taken by the accused in relation to any element required to be proved by the State save for the element of identity. Nonetheless, I am satisfied beyond reasonable doubt that the State has proved all other elements of the offence on count 2, namely that:
1.Immediately before and at the time of stealing the cigarettes, the person threatened to use violence to Ms Korhomen to obtain the thing stolen by first threatening Mr Vlahov with a hard object in his right hand it and then going straight into the store where Caroline Marie Korhomen was, and still holding the hard object saying 'give me the cash'; and
2.The accused stole cigarettes the property of Ocean Connection International Pty Ltd trading as Glengarry IGA and at the time he had an intention to permanently deprive the owner of the property.
3.The threatened use of violence was for the purpose of effecting the stealing.
In relation to the element of identity, when all of the evidence is considered, I am satisfied beyond reasonable doubt that the alibi has been disproved beyond reasonable doubt and that the accused committed the offence the subject of count 2.
In arriving at the conclusion that the State has satisfied me beyond reasonable doubt that the accused committed the offence the subject of count 2, I take into account all those findings of fact that I have previously set out as being proved, relevant to count 2, with particular emphasis on the following evidence:
(a)The orange and black high-visibility hooded top with the distinctive patch on the left upper sleeve worn by the offender is strikingly similar to the two tops seized by police, one from Mrs Rogaunig's house and the other from Valentine's house which the accused admitted were his. The accused was wearing a strikingly similar top on 12 February 2019. A strikingly similar top was worn by the person with similar features to the accused seen at Farmer Jacks Woodlands on 5 March 2019.
(b)The distinctive red and black gloves were found in the accused's Mustang on 19 March 2019. I reject his evidence that, inferentially, they were left there by someone else. The only reasonable inference available on the evidence is that the accused put the black and red gloves in the Mustang before 19 March 2019.
(c)The proximity of Glengarry IGA to 241 Warwick Road, Duncraig on count 2, meaning that even if the accused was at home during the evening, he had the opportunity to leave his home, commit the offence and return home in a very short time.
Conclusions in relation to count 3
No issue was taken by the accused in relation to any element required to be proved by the State save for the element of identity. Nonetheless, I am satisfied beyond reasonable doubt that the State has proved all other elements of the offence on count 3, namely that:
1.Immediately before and at the time of stealing the Australian cash, the person threatened to use violence to Amelia Christine Owers by telling her to 'Fill the bag', or, 'Get the cash out'[305] whilst pointing a knife in her direction.
2.The Australian cash and cigarettes the property of Mellway Holdings Pty Ltd trading as Farmer Jacks Woodlands were stolen and at the time they were stolen the offender had an intention to permanently deprive the owner of the property.
3.The threatened use of violence was for the purpose of effecting the stealing.
[305] ts 159.
In relation to the final element of identity, when all of the evidence is considered, I am satisfied beyond reasonable doubt that the alibi has been disproved and that the State has proved beyond reasonable doubt that the accused committed the offence the subject of count 3.
In arriving at the conclusion that the State has satisfied me beyond reasonable doubt that the accused committed the offence the subject of count 3, I take into account all those findings of fact that I have previously set out as being proved relevant to this offence, with particular emphasis on the following evidence:
(a)The evidence that causes me to be satisfied beyond reasonable doubt is first the orange and black high-visibility hooded top with the distinctive patch on the left upper sleeve worn by the offender is strikingly similar to the two tops seized by police, one from Mrs Rogaunig's house and the other from Valentine's home which the accused admitted were his. The accused is wearing a strikingly similar top on 12 February 2019. A strikingly similar top was worn by the person, bearing similar features to the accused, at Farmer Jacks Woodlands on 5 March 2019.
(b)The distinctive red and black gloves were found in the accused's Mustang on 19 March 2019. As already noted above, I reject the accused's evidence that they were left there by someone else.
(c)On 19 March 2019, the accused was in possession of the distinctive patterned bag that bears a striking similarity to the bag used during the commission of the offence the subject of count 3.
(d)The proximity of Farmer Jacks Woodlands to 13 Elmwood Avenue, Woodlands, affording the accused the opportunity to commit the offence.
Verdicts
I find the accused not guilty on count 1.
In relation to count 2, I find the accused guilty of the offence of robbery, but not guilty of the circumstance of being armed with an offensive instrument, namely a screwdriver. Consequently, I record a conviction for the offence of robbery on count 2, but an acquittal in relation to the circumstance of being armed with an offensive instrument, namely a screwdriver.
In relation to count 3, I find the accused guilty of the offence of robbery. I also find the accused guilty of the circumstance of being armed with an offensive weapon, namely a knife. Consequently, I record convictions for both the offence of robbery on count 3 and the circumstance of being armed with an offensive weapon, namely a knife.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy9 APRIL 2020
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