The State of Western Australia v Jones-Coxon
[2020] WADC 48
•15 APRIL 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JONES-COXON [2020] WADC 48
CORAM: STAUDE DCJ
HEARD: 7 APRIL 2020
DELIVERED : 15 APRIL 2020
FILE NO/S: IND 2057 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
BRANDYN DEAN JONES-COXON
Catchwords:
Criminal law - Trial by judge alone - Aggravated armed robbery - Identification
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Result:
Judgment of conviction
Representation:
Counsel:
| The State of Western Australia | : | Ms S Jessup |
| Accused | : | Ms F Mehta |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Farah Mehta Barrister & Solicitor |
Case(s) referred to in decision(s):
Nil
STAUDE DCJ:
Introduction
The accused is charged on indictment dated 19 December 2019, as follows:
On 26 January 2020 at Port Kennedy Brandyn Dean Jones-Coxon stole from Charlie Elliot Bell, with threats of violence, a moped registration number MH82920 the property of Charlie Elliot Bell.
And that Brandyn Dean Jones-Coxon was armed with an offensive instrument namely a knife.
And that Brandyn Dean Jones-Coxon was in company with another.
The accused has pleaded not guilty. A trial by judge alone was ordered on 1 April 2020 after a previously listed trial by jury was vacated due to the COVID-19 crisis.
Section 119 and s 120 of the Criminal Procedure Act 2004 (WA) apply. Section 120(2) provides that the judgment of the judge in a trial by judge alone must include the principles of law that have been applied and the findings of fact upon which the judge has relied.
Directions
I direct myself, as I would a jury, as follows:
1.The accused is presumed to be innocent of the charge against him. The presumption is not removed unless the court is satisfied beyond reasonable doubt of his guilt.
2.The burden of proof is on the prosecution throughout. The accused does not have to prove his innocence or anything else.
3.Each element of the charged defence must be proved beyond reasonable doubt. Those words bear their natural and ordinary meaning. They denote the highest standard of proof known to the law.
4.My verdict must be based solely upon the evidence presented at the trial. I may not inform myself by any other means.
5.Neither sympathy nor prejudice may play any part in my decision making. I must consider the evidence objectively and dispassionately.
6.The evidence is the testimony of the witnesses given in court and the documents received as exhibits. The court is bound to consider all of the evidence presented at trial. It is for me to decide what weight to give to the evidence. I may accept some, but not all, of a witness' testimony.
7.The court is entitled to draw inferences from facts established by the evidence. Any inference must be drawn logically. Because the standard of proof is beyond reasonable doubt, I may not draw an inference adverse to the accused, that is, leading to a conclusion of guilt, unless it is the only reasonable inference to be drawn from the facts I find to be established. If there are competing inferences open, and at least one is consistent with innocence, then I should not draw an adverse inference. In deciding the facts in this way, I am bound to consider the evidence not in a piecemeal fashion, but as a whole.
8.What a witness may have said in a statement made out of court is not evidence, but if a witness is shown on a prior occasion to have said something different from what they said in evidence that may affect the credibility of that evidence.
9.In this case the accused elected not to give evidence. It was his right not to give evidence. No inference adverse to the accused may be drawn by reason of his election not to give or adduce evidence. The fact that he did not give evidence proves nothing one way or the other.
The prosecution case
The prosecution case is that on 26 January 2019, the complainant, Charlie Bell, then aged 17, went with his friend, Jack John Pin, on Mr Bell's moped to a park in Port Kennedy. Mr Bell parked the moped and he and Mr Pin went for a walk. The accused and a companion, said to be Marshall Kake, then arrived at the place where the moped was parked on another moped driven by the accused. Mr Bell and Mr Pin heard the sound of someone trying to start Mr Bell's moped. They went to where they left the moped and encountered the accused and his companion. The accused demanded the keys to Mr Bell's moped. As he did so he produced a knife and implicitly threatened Mr Bell and Mr Pin who backed away in the face of the threat. Mr Bell's moped was then started and driven away. Mr Bell reported the matter to the police.
Whilst the State has the burden of proving beyond reasonable doubt every element of the charge, the main issue at the trial was identification. The State's case that the accused was the offender is circumstantial. The State submits the facts proved by the evidence as a whole support an inference that the accused committed the offence charged and that the evidence as a whole excludes any reasonable inference consistent with the accused's innocence.
The defence position is that the evidence does not exclude the reasonable possibility that a person other than the accused committed the offence. The defence also puts in issue the allegation that the offender was armed with an offensive instrument.
Elements
To prove the offence of robbery, the State must prove beyond reasonable doubt that:
1.The accused was the offender.
2.The accused stole something capable of being stolen from the complainant.
3.The accused, at the time of or immediately before or after the stealing, used actual violence or the threat of violence in order to obtain the property stolen.
A stealing occurs if a person takes something capable of being stolen fraudulently, that is, with the intent to permanently deprive the owner of it and actually moves or deals with it by some physical act. A taking is also fraudulent if the thing is taken with an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time it was taken. (There was no evidence, and it was not alleged, that the moped was a motor vehicle, such that the extended definition of stealing in s 371A of the Criminal Code has application in this case.) A person's intent can only be proved as a matter of inference.
The use of a threat of violence to obtain the thing stolen includes the use of such a threat to enable the offender to escape with the thing stolen and to secure its removal beyond the reach of immediate recovery.
A threat is something that is said or done for the purpose of intimidating or overcoming the will of the person to whom it was made, to compel the person to do something that they were lawfully entitled not to do. The State must prove that the threat was made deliberately.
To prove the circumstances of aggravation, the State must prove beyond reasonable doubt that the accused was armed with an offensive instrument and the accused was in company with another. An offensive instrument in this context is an object made or adapted to cause injury or fear of injury that the offender intends to use for that purpose.
The evidence
Evidence was heard from the complainant, his companion, Mr Pin, and the investigating officer, Detective Senior Constable David McCallum. A number of exhibits were tendered to which reference will be made in these reasons.
Charlie Elliot Bell
Mr Bell gave evidence that on 26 January 2019 he was aged 17 years. He lived in Port Kennedy. He owned a white moped described as an Adlee GT8. He said that on the day in question he picked up his friend, Jack Pin, and went with him on the moped to a park near St Bernadette's School in Port Kennedy. He parked the moped and then he went for a walk with Mr Pin. While he was away from the moped he heard the sound of it being started. He returned to where it was parked and encountered two male persons, one of whom he said was on or near a black moped. That person he described as having a large star tattoo on the right side of his neck and wearing a tan coloured cap that was embroidered with a Gucci logo in red and green. He described this person as about 6 feet tall or just under, and of average build ('not much muscle, but not too skinny, just sort of average build'). The other person he described as having a close shaved head and beard, and shorter and stockier than the other male.
He said he initially tried to defuse the situation before the male with the star tattoo pulled out a knife and started to threaten them. He did not recall the specific words used by this person, but he was asked for the keys of the moped. He refused. He said he was quite scared. He stopped conversing and 'just let him sort of do as he pleased'. Mr Bell said he was confident the male with the star tattoo had a knife; if it were not, it was a sharp object.
Mr Bell said the two males were able to start the moped. He said 'they must have had a screwdriver or something, but they managed to hotwire it somehow'. The two rode away. He could not recall which moped each of them was on. He then called the police.
On 12 February 2019 at Perth he described the first male person to a police artist who made a composite picture (exhibit 1). This depicts a young adult male wearing a Gucci cap, with a star shaped tattoo on his neck, to the right hand side of the midline.
On 26 February 2019 at Rockingham, Mr Bell participated in a digiboard photo identification procedure. A video recording of this procedure was made (exhibit 2). Mr Bell was unable to confidently select any one of the 12 images on the digiboard as the offender's.
Mr Bell said the moped was returned to him some months later. It had been altered and resprayed.
He said he did not know the accused or Marshall Kake.
When he was cross-examined he said he was pretty confident that the first male had a knife, but he said it could have been a long sharp piece of metal. He described it as a blade, 'just a pocketknife type of thing'. He could not see a handle. He did not accept the suggestion that it was a screwdriver, saying that he would have noticed if it was a tool.
Mr Bell said that he recalled the first male as having a star tattoo on the right side of his neck. When it was put to him that in his police statement he said there were star tattoos on both sides of the person's neck, he said there might have been some smaller ones, but there was one main one on the right side. He said the description he gave in his statement would have been correct.
In my view, any mistake made by Mr Bell in his recall of the number of tattoos he saw is not material to the reliability of his evidence overall.
Moreover, the failure of Mr Bell to confidently identify, and he was directed to do, if he could, the accused's face on the digiboard does not reduce the reliability of his description of the first male in evidence and to the police artist who composed exhibit 1.
Jack John Pin
Mr Pin was also aged 17 at the date of the incident. He knew Charlie Bell as a good friend. He said that Mr Bell picked him up on his white moped. They went to an oval where they took a walk and had a cigarette. When they returned to where the moped had been parked it was not there. He heard it being started up in the bush. He saw another moped and two male persons, one of them trying to start Mr Bell's moped.
He described the first as having scruffy blonde hair and wearing a Gucci tan coloured cap with red and green embroidery. He said the person had two star tattoos on the front of his neck. He described him as being skinny and of medium height. The other person he described as having a shaved head and beard and being short and stocky.
Mr Pin said that the blonde male came over and asked if they wanted to fight. Mr Pin said he tried to convince that person that the moped belonged to his grandfather for the key to Mr Bell's moped. He said, 'they didn't ask for the key, we didn't give it to them, and they said "if you have no keys, no proof", and then drove off'.
He said the person in the hat pulled out something that looked like a knife from his waistband and 'tried threatening us' with it. He did not recall any conversation. He could not recall what the person did with the knife. He said that he and Mr Bell let them go off on the mopeds. The blonde male was on the black moped and the other on Mr Bell's moped.
In cross-examination, Mr Pin confirmed that the first male was of medium height, but he said he was not certain. He said he held what looked like a knife. He accepted it was possible that the object held by the blonde male was a screwdriver. Mr Pin confirmed that he recalled that the blonde male had multiple tattoos on the front of his neck (as opposed to the right side as Bell described).
In my view the variance between the respective descriptions of the first male by Mr Bell and Mr Pin, and their accounts of what was said and done does not materially affect the credibility of their evidence. The evidence of each of Bell and Pin was broadly consistent. In matters of detail, inconsistencies between the accounts of these witnesses to a brief, unexpected encounter with two unknown persons in which they were threatened with a knife or knife-like weapon can be expected.
Detective Senior Constable David McCallum
Detective McCallum was assigned this matter for investigation. He produced the proforma record of the digiboard identification procedure by Mr Bell (exhibit 3). He said that the digiboard image of the accused came from his motor driver's licence.
Detective McCallum identified a disc containing CCTV footage that was taken from a private dwelling on 26 January 2019. The footage depicts two mopeds, one black and the other white, being driven from vacant land onto a roadway. The footage corresponds in time to the incident described by Mr Bell and Mr Pin. The driver of black moped is wearing a black helmet, a dark-coloured long-sleeved jacket and white shoes.
Detective McCallum also identified a disc that contained an audio visual recording of an interview with the accused on 7 March 2019 (exhibit 5).
In the interview the accused said he could not remember where he was on 26 January 2019, but admitted he was staying at a friend's house in Warnbro at that time. Warnbro is near Port Kennedy. He said that he could not recall what happened on that day because he was taking Xanax. He said he was staying at a friend's house. He said that he had owned a moped some years before and had last been on a moped around New Year. The accused said he had no memory of going to Port Kennedy. He did not know Charlie Bell.
The accused said that he had had star tattoos on his neck for almost a year.
He admitted that he owned a hat that was depicted in still images that were shown to him. Those images came from two separate CCTV video recordings. The first (exhibit 6) came from video recorded on 27 January 2019, the day after the incident in question, at a 7‑Eleven store in Rockingham. This image depicted a young adult male wearing a cap similar to that described by Mr Bell, a dark-coloured long-sleeved jacket and white shoes. The other still image (exhibit 7) was taken from CCTV video obtained from Free Choice, a tobacconist at Shoalwater, on 13 January 2019. It appears to depict the same person wearing the same cap and jacket. Shoes are not depicted.
Detective McCallum also produced a photograph of the accused taken in custody on 4 March 2019 that depicts him as being about 180 cm in height.
Detective McCallum said that Mr Bell's moped was recovered in a badly damaged and altered condition. On forensic examination of the moped, fingerprints and a DNA profile were obtained that matched the fingerprints and DNA profile of Marshall Kake. Mr Kake had not been charged. Detective McCallum produced two photographic images of a person that he said was Mr Kake. One of these images shows Mr Kake to have a closely shaved head and beard. The other shows him shaven and with longer hair.
Detective McCallum confirmed that no forensic evidence had been obtained that associated the accused with the incident. He said that Mr Kake when interviewed gave an explanation for the presence of his DNA and fingerprints on the moped. There was insufficient evidence upon which to prosecute him.
Factual findings
Mr Bell and Mr Pin gave cogent and credible evidence of an incident on 26 January 2019 in which they encountered two male persons trying to steal Mr Bell's moped. They knew neither of them.
On the evidence I find that they were threatened with physical injury by one of the males holding a knife or a similar bladed object as they described. The threat was made implicitly after a demand been made for the keys to the moped. In response to the threat Mr Bell and Mr Pin stood back and allowed Mr Bell's moped to be driven away.
The taking of the moped in those circumstances amounted to a stealing. I infer as the only reasonable inference to be drawn that the moped was taken fraudulently, that it with the intention of permanently depriving the owner of it. I find that the threat of harm was implicit, but deliberate, and was made in order to enable the moped to be stolen. By threatening harm to Mr Bell the two offenders were able to start the moped and make off with it without resistance from Mr Bell and Mr Pin.
I am satisfied that that the knife-like object described by Mr Bell and Mr Pin was an offensive instrument. On the facts established by the evidence of Mr Bell and Mr Pin I infer as the only reasonable inference to be drawn that the person so armed intended to threaten them in order to steal the moped.
I find that the object held by the offender was not a screwdriver or other tool with which the offender may have been trying to start the moped, but an object made or adapted to cause injury or fear of injury that the offender produced intending to cause fear of injury to the person.
Accordingly I am satisfied beyond reasonable doubt that the offender described by Mr Bell and Mr Pin stole the moped, having made a threat of violence in order to do so. I am satisfied beyond reasonable doubt that the offender was armed and in company with another.
As to the element of identity, the State's case is circumstantial. There was no positive identification made of the accused as the offender. I need to consider all of the evidence in order to determine whether the inference the State asks the court to draw can be drawn, and whether it is the only reasonable inference to be drawn.
A reasonable inference that the accused was one of the offenders is supported by the following facts:
1.Both Mr Bell and Mr Pin, who I find to be honest and reliable witnesses, described the person who produced the knife as having blonde hair, wearing a Gucci cap, and having star‑shaped tattoos on his neck.
2.Mr Bell said that person was about 6 feet tall, as the accused was shown to be.
3.Mr Bell formed an accurate impression of the offender's face that he was able to describe in sufficient detail to enable a composite picture to be made which bears a striking resemblance to the accused's face as depicted in exhibits 6, 7 and 8.
4.The accused admitted that he had three star-shaped tattoos on his neck. He admitted that he had a cap like the one depicted in the composite picture and the still images that were shown to him.
5.The CCTV footage of two mopeds leaving the area of the park where the incident occurred shows that the black moped was driven by a person with a dark coloured jacket and white shoes as the accused was shown to be wearing the following day (exhibit 7). The accused also had a Gucci cap on.
6.The accused tacitly admitted that he is the male person depicted in exhibit 7. In any event the facial likeness can be seen, as well as the similarity of the cap and clothing.
7.It is not in issue that the accused is depicted in exhibit 7. His appearance corresponds with the appearance of the person depicted in exhibit 6 and exhibit 1.
8.The accused admitted that he was living in Warnbro at the time, a locality immediately north of Port Kennedy.
9.The accused admitted that he was familiar with mopeds.
10.No DNA profile or fingerprints matching the accused were found on the moped when it was recovered (consistent with the evidence of Mr Pin, confirmed by the CCTV footage, that it was the second male who drove Mr Bell's moped from the park).
11.The DNA profile and fingerprint from the moped matched Marshall Kake, whose photograph (exhibit 9) matches the description of the second male described by Mr Bell and Mr Pin.
These facts support an irresistible conclusion that the accused was the offender. Moreover, these facts taken together exclude as a reasonable possibility that it was a person other than the accused who committed the robbery. The chances of another person having the same physical appearance as the accused and wearing the same type of cap as the accused was seen to be wearing on 13 January 2019 and 27 January 2019 are too small to constitute a reasonable possibility that he is not the offender.
I have had regard to the accused's denial of guilt in his police interview. I am satisfied beyond reasonable doubt that his denials could not as a reasonable possibility be true. That possibility is excluded by overwhelming evidence supporting the inference that he was the person who committed the robbery against Mr Bell.
For these reasons I find the accused guilty as charged. I find the circumstances of aggravation proved beyond reasonable doubt. I would enter a judgment of conviction accordingly.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Staude15 APRIL 2020
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