The State of Western Australia v Taylor
[2020] WADC 86
•15 JUNE 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TAYLOR [2020] WADC 86
CORAM: PRIOR DCJ
HEARD: 25-27 MAY 2020
DELIVERED : 15 JUNE 2020
FILE NO/S: IND 728 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JOSHUA JAMES TAYLOR
Catchwords:
Criminal law - Trial by judge alone - Aggravated home burglary - Fraud - Aggravated armed robbery - Circumstantial prosecution case - Identification and recognition
Legislation:
Criminal Code (WA), s 392, s 401(2)(a), s 409(1)(c)
Criminal Procedure Act 2004 (WA), s 118, s 119, s 120
Evidence Act 1906 (WA), s 32
Result:
Accused found guilty of counts 1, 2 and 3
Accused found not guilty of count 4
Representation:
Counsel:
| The State of Western Australia | : | Mr B Stanwix |
| Accused | : | Ms P P Chong |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Patti Chong Lawyer |
Case(s) referred to in decision(s):
AK v State of Western Australia [2008] HCA 8
Alexander v The Queen (1981) 145 CLR 395
Bolitho v The State of Western Australia [2007] WASCA 102
Criddle v The State of Western Australia [2017] WASCA 17
Davies v The King [1937] HCA 27; (1937) 57 CLR 170
Durani v The State of Western Australia [2012] WASCA 172
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Graham-Helwig v The State of Western Australia [2005] WASCA 127
Kenworthy v The Queen [No 2] [2016] WASCA 207
May v The State of Western Australia [2018] WASCA 24
Okoli v The Queen [2019] WASCA 91
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Hallam (1985) 42 SASR 126; (1985) 18 A Crim R 221
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
PRIOR DCJ:
The State of Western Australia has charged the accused with four offences contained on the indictment 728 of 2019 dated 22 May 2020 as follows:
(i)On 13 October 2018 at Yokine Joshua James Taylor, while in the place of Amy Marie Holland without her consent, committed the offence of stealing.
And that immediately before the commission of the offence Joshua James Taylor knew or ought to have known that there was another person in the place.
And that the place was ordinarily used for human habitation (count 1).
(ii)On 13 October 2018 at Westminster Joshua James Taylor, with intent to defraud, by deceit or fraudulent means, gained a benefit, namely fuel to the value of $10.00, for Joshua James Taylor (count 2).
(iii)On the same date and at the same place as in count 2, Joshua James Taylor, with intent to defraud, by deceit or fraudulent means, gained a benefit, namely goods to the value of $4.70 for Joshua James Taylor (count 3).
(iv)On 15 October 2018 in Maylands Joshua James Taylor stole from Jarred Craig Russell, with threats of violence, a laptop, a mobile phone, a pair of sunglasses, a watch and money, the property of Jarred Craig Russell.
And that Joshua James Taylor was armed with a dangerous weapon, namely a knife.
And that Joshua James Taylor was in company with another (count 4).
The accused has pleaded not guilty to all four counts.
An order that these charges be heard by judge alone, pursuant to s 118 of the Criminal Procedure Act 2004 (WA), was made by his Honour former Chief Judge Sleight on 24 April 2020.
State case
The State's case in relation to count 1 is that some time between 4.00 am and 4.30 am on 13 October 2018, a person entered a property in Yokine whilst four of the persons who lived in the house were inside.
One of the occupants of the house, Amy Holland, had left her handbag on the kitchen table.
Inside Ms Holland's handbag was a wallet containing various cards including a Bankwest card linked to her partner Joel Newman's Bankwest account.
The person who entered the house, entered without permission, stole Ms Holland's handbag and left the house.
Ms Holland was asleep at the time the person entered the house and her partner Joel Newman was playing games on a PlayStation in the theatre room of the house. The person who entered the house entered and left through a sliding back door.
Approximately one hour later, just after 5.00 am Ms Holland's Bankwest card was used by a male person at the Caltex Star Mart in Westminster to purchase two items separately, fuel and a drink, without the permission of Ms Holland.
The State's case is that the male drove up to, and later left, the Caltex Star Mart in a red Honda sedan, and the male who makes two card transactions inside the Caltex Star Mart, which was recorded on CCTV footage, is the same person. Some of the details of the front number plate of the motor vehicle can be seen in the footage.
The card transactions are recorded on Mr Newman's bank statement at 5.09 am and 5.10 am. The State alleges these two transactions were fraudulently made with Ms Holland's stolen Bankwest card and are the subject of counts 2 and 3.
It is the State's case that the same person committed all three offences the subject of counts 1, 2 and 3. It is the State's case that the person who committed the three offences is the accused, Joshua James Taylor.
The State does not rely on any direct evidence as to the identity of the male offender for each of the three offences being the accused.
The State relies on circumstantial evidence to prove the identity of the accused as the offender. The State submits the facts proved by the evidence as a whole support an inference that the accused committed these three offences charged, and that the evidence as a whole excludes any reasonable inference consistent with the accused's innocence.
The State relies upon two circumstantial threads or lines of evidence as linking the accused to the red Honda motor vehicle driven into the Caltex Star Mart, Westminster on 13 October 2018 and what that person driving this motor vehicle was wearing. The State submits it can be inferred on the evidence the accused had possession of this red Honda motor vehicle on 13 October 2018 and possessed clothing very similar to that worn by the offender. The State further submits there is a general physical resemblance between the person inside the Caltex Star Mart carrying out the transactions on 13 October 2018 and the accused. It is the combination of all the factual circumstances which the State relies upon to prove identity of the accused as the offender.
The State's case in relation to count 4 is that on the morning of 15 October 2018, Jarred Craig Russell was asleep on a couch, in the lounge room, at the front of the house in Maylands. Mr Russell was the only occupant in the house at the time. A male and female entered the house through the front door without Mr Russell's permission.
When these two persons were inside the house, the male obtained Mr Russell's serrated hunting knife that was sitting on the couch backrest and held it up to him. The female stole items of property from the house while the male threatened Mr Russell with the knife. The male and female stole watches, clothes, a laptop and the hunting knife used to threaten Mr Russell.
The two offenders arrived and left Maylands in a red Honda motor vehicle.
Mr Russell had seen the male offender on two previous occasions in Maylands when a friend came to his house with this man.
On the morning of 19 October 2018, Mr Russell attended a police station and identified the male offender in a Digiboard shown to him by a police officer. The person Mr Russell identified was the accused. The accused was arrested on the same day in Mirrabooka a short time after 1.38 pm. The accused was in possession of a red Honda Civic motor vehicle bearing registration plates 1CWF 878 at the time of his arrest.
In relation to count 4, the State relies upon a combination of the complainant, Mr Russell's evidence and circumstantial evidence to prove the identity of the male offender as the accused.
Admissions made by the accused
Before any evidence was heard in the trial, counsel for the accused made the following admissions pursuant to s 32 of the Evidence Act 1906 (WA):
1.On 19 October 2018 at 1:38pm in Balga, Joshua James Taylor was driving a red Honda Civic bearing registration plates 1CWF 878.
2.At the time of driving it on 19 October 2018, Joshua James Taylor knew the car to be stolen.
3.Joshua James Taylor drove the car from Balga to Mirrabooka and parked it in the drive of 17 Mottlecah Street, Mirrabooka, and was then arrested by Police.
Legal principles
It is necessary to remind myself of the various relevant legal principles that have to be applied in coming to a verdict on each count.
I am to apply the same law and procedure for this trial that would have applied had the trial been heard before a jury.[1]
[1] Criminal Procedure Act, s 119(1).
I must direct myself in the same way that I would instruct a jury. This includes any appropriate warnings required in the circumstances of this case.[2]
[2] Criminal Procedure Act, s 119(3).
Pursuant to s 120(1) of the Criminal Procedure Act, I may make any findings and give any verdict that a jury can give. This judgment must include the principles of law I have applied and the findings of fact I have made.[3]
[3] Criminal Procedure Act, s 120(2); AK v State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [44] (Gummow & Hayne JJ).
As a matter of law, the following principles apply in this trial:
(i)The accused is presumed to be innocent of the charges brought against him and does not have to prove anything.
(ii)The State bears the burden of proof on each charge. Each and every element of the offences charged must be proved beyond a reasonable doubt. If I have a reasonable doubt on any charge then it is my duty to acquit the accused of the charge.
(iii)The State bears the burden of proof for any aggravating circumstances to a charge which must be proven beyond a reasonable doubt.
(iv)The accused does not have to prove anything.
(v)Beyond reasonable doubt is a high standard of proof. It is the highest standard of proof known to the law.
(vi)The evidence in this case is what the five witnesses have said on affirmation in the witness box, four statements of witnesses read by consent and 18 exhibits tendered by the State. What counsel have said is not evidence.
(vii)I must assess the evidence dispassionately and objectively and not decide the case on any prejudice or sympathy.
(viii)I must not guess or speculate about matters which are not in evidence. I may, however, draw inferences from proven facts. An inference is a logical deduction from facts which I find proven. I can only draw an inference against the accused if it is the only reasonable inference, or conclusion, that can be drawn consistent with the proven facts. In drawing inferences, I should not consider each piece of evidence in isolation or on a piecemeal basis, but I should consider and weigh them as a whole.
(ix)As this trial involves four separate offences charged, I am required to give separate verdicts for each charge and any aggravating circumstance which applies to the charge. The verdicts do not have to be the same on each charge. I need to look at each charge separately and make a decision on them separately. When I look at one charge I consider only the evidence that is relevant to that charge. I cannot draw an inference against the accused, or make any conclusions against him or be prejudiced against him because there is more than one charge.
(x)What a witness may have said in a statement 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 the witness. This principle is only relevant in relation to the evidence of the witness Jarred Craig Russell who was cross‑examined about his prior statements out of court to a police officer and the trial prosecutor.
Aggravated home burglary (count 1)
To prove the accused is guilty of the offence of aggravated home burglary, the State must prove each of the following elements beyond reasonable doubt:
(i)That the offender was the accused, Joshua James Taylor.
(ii)That he entered the place. The relevant place being in Yokine.
(iii)That the complainant, Amy Marie Holland, did not consent to the entry.
(iv)That while in the place, the accused committed the offence of stealing. The relevant property the accused is alleged to have stolen is Ms Holland's handbag and its contents.
(v)The place was ordinarily used for human habitation.
(vi)Immediately before the commission of the offence, the accused knew or ought to have known that there was another person in the place. This is an aggravating circumstance.
Fraud (counts 2 and 3)
To prove the accused guilty of each offence of fraud (counts 2 and 3), the State must prove each of the following elements beyond reasonable doubt:
(i)That the offender was the accused, Joshua James Taylor.
(ii)That the accused gained a benefit, namely fuel (count 2) and goods (count 3). These items of property are alleged to have been obtained from the Caltex Star Mart in Westminster.
(iii)That he did so with intent to defraud. To defraud is to deprive a person of something that has actual or potential economic value by dishonest means.[4]
(iv)That he did so by deceit or any fraudulent means. 'Deceit' means to induce a person to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. The deceit requires the offender to engage in conduct that induces a person to believe a thing is true which is false, and which the person practicing the deceit knows or believes to be false. Any 'fraudulent means' encompasses other conduct falling outside the scope of 'deceit' which can properly be stigmatised as dishonest.[5]
[4] Bolitho v The State of Western Australia [2007] WASCA 102 [152].
[5] Graham-Helwig v The State of Western Australia [2005] WASCA 127 [13] – [14].
Aggravated armed robbery (count 4)
To prove the offence of aggravated armed robbery, the State must prove beyond reasonable doubt that:
(i)that the offender was the accused, Joshua James Taylor;
(ii)the accused stole something capable of being stolen from the complainant, Jarred Craig Russell; and
(iii)the accused, at the time of, or immediately before or after stealing, used or threatened 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. A person's intent can only be proved as a matter of inference.
The use of 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.
The two aggravating circumstances that apply to count 4 are that the accused was armed with a dangerous weapon, namely a knife, and he was in company with another.
Elements not in issue
In relation to all four offences, the only issue in dispute is, whether the prosecution has proved beyond reasonable doubt that the accused was the offender in each offence.
Defence counsel in her closing address accepted other than identity, all elements and aggravating circumstances had been proved in relation to all four counts.[6] The defence position is that the evidence does not exclude the reasonable possibility that a person other than the accused committed the offences the subject of counts 1, 2, 3 and 4.
[6] ts 283 - ts 284.
On the evidence of Amy Holland, Joel Newman, Jarred Russell, the CCTV footage from the Caltex Star Mart in Westminster on 13 October 2018 (exhibit 5) and Mr Newman's Bankwest bank statement, (exhibit 2), I am satisfied the prosecution has proved beyond reasonable doubt all four offences on the indictment were committed. I am also satisfied the circumstances of aggravation in count 1 and the two aggravating circumstances in count 4 have been proved by the prosecution beyond reasonable doubt. For the rest of my reasons, I will therefore focus on whether I am satisfied beyond reasonable doubt that the accused committed the four offences.
Evidence
Five witnesses gave evidence at the trial:
a.Jarred Craig Russell, the complainant in count 4;
b.Amy Marie Holland, the complainant in counts 1, 2 and 3;
c.Joel Newman, Ms Holland's partner;
d.Police Constable Lauren Jayne Riley; and
e.Detective First Class Constable Matthew O'Hart.
Witness statements of Angela Tampalini, Muhammad Liaqat, Thomas Dworsky and Alexandra Gill were read by consent.
Ms Tampalini owned a red Honda Civic motor vehicle displaying registration number plates 1DPX 907 which was stolen from her address on 9 October 2018.
Mr Liaqat is the registered owner of a 2008 red Honda Accord sedan displaying registration number plates 1CWF 878. On 17 October 2018 after being contacted by police he saw the number plates on his motor vehicle were different. Both his rear and front number plates had been changed. Police took photographs of his motor vehicle.[7]
[7] Exhibits 11.1 - 11.10.
Mr Dworsky and Ms Gill lived at the same address in Yokine with Ms Holland and Mr Newman. They were asleep at the time when the burglary the subject of count 1 occurred on 13 October 2018.
The accused Mr Taylor did not give or adduce evidence. It is his right not to do so. No adverse inference can or should be drawn against him from exercising that right. The fact that he did not give evidence or adduce evidence proves nothing.
The question I must consider on each charge is whether, on all the evidence, has the State proved the charge beyond reasonable doubt? In particular in relation to this case, has the State proved beyond reasonable doubt the accused, Mr Taylor committed the offences the subject of counts 1, 2, 3 and 4?
I can only deliver a guilty verdict on a charge if on all the evidence the State has proved the charge beyond reasonable doubt.
Jarred Craig Russell
On 15 October 2018 Mr Russell was asleep on the couch in the lounge room located at the front of the house in Maylands. He woke up to an adult male and female in the house.
The couch is right in front of the front door. He was woken by a banging noise. He became aware that a male was standing over him.
The male was holding Mr Russell's hunting knife which he had placed on the couch backrest. It had a serrated blade approximately 22 cm long. It was in a sheath.
The male and female took items from the house. They did not say anything to him.
The male was mainly in the front bedroom which belonged to Mr Russell's father, who was not home at the time.
The male and female stole a couple of watches, papers and clothes from Mr Russell's father's bedroom. They put the items into a white plastic washing basket.
Mr Russell had seen the man on two previous occasions in Maylands when a friend came to his house with the man. The meetings occurred at the front of the house.
The first time he met the man was about one month before the burglary. The man and Mr Russell's friend stayed for 1 - 2 hours. Mr Russell only said 'hello' to the man.
Mr Russell thought the second occasion he met the man was one to two weeks before the burglary. They stayed for 5 - 10 minutes. He did not talk to the man on this occasion.
In relation to the burglary on 15 October 2018, Mr Russell could not remember what the man looked like except for that he was tall.
When the male and female left on 15 October 2018, the man said 'You know what will happen if you call the cops. I'll come back'.
Mr Russell's father called the police the same day.
Mr Russell believed the male and female were in the house for 20 ‑ 30 minutes.
Mr Russell stated his knife and two of his father's watches were stolen. He also thought a HP laptop computer was stolen from the lounge room table.
On 19 October 2018 Mr Russell selected the male who came into the house in a Digiboard shown to him by a police officer.
There was no physical contact between Mr Russell and the male and female.
He did not give the male and female permission to enter the house.
Under cross‑examination Mr Russell stated that he could not really remember anything from the incident as he is taking sleeping tablets.
Mr Russell was shown his statement dated 15 October 2018. He agreed that in that statement he said that he was woken by his dogs barking. He agreed that he had told the court he was woken by a banging on the front door.
Mr Russell also agreed that in his statement he said that he called '000' as soon as the male and female left. He agreed that he told the court his father called the police.
Mr Russell stated that he could not remember what the man or woman were wearing. Mr Russell agreed that in his statement he said the man was wearing steel cap boots. He stated that he could not remember telling police this.
Mr Russell could not remember what the man's face looked like. He agreed that he had met the man on two occasions.
Mr Russell could not remember if the rooms in the house were dark or if the blinds were up or down. However, when challenged about this in cross-examination, Mr Russell stated that the blinds were down, the lounge room was quite dark and that it would have been hard to see people in the house. He then stated that the lights were on in the lounge room and that he always sleeps with the lights on.
Mr Russell agreed that he had previously been convicted of two offences of possession of drug paraphernalia, five offences of possession of cannabis, two offences of possessing a controlled weapon, an offence of carried or possessed an article with intent to cause fear, an offence of possession of stolen or unlawfully obtained property and three road traffic offences.
Mr Russell agreed that on the first occasion he had met the man, he had sold his friend two points of methamphetamine for $100.
Mr Russell could not give a description of the man and woman who came into his house on 15 October 2018.
Amy Marie Holland
In October 2018 Ms Holland was living in Yokine with her boyfriend Mr Joel Newman and three housemates.
At 4.30 am on 13 October 2018 Ms Holland was woken by Mr Newman.
When Ms Holland got up, she saw that the back sliding door was open and her handbag was missing.
Ms Holland's handbag had been on the dining room table, which was a metre from the back alfresco sliding door.
Inside Ms Holland's handbag was a wallet with her Bankwest debit card which was linked to Mr Newman's Bankwest account, as well as a necklace and her house keys.
Mr Newman showed her an online Bankwest bank statement which showed that two transactions had been made using her debit card at around 4.00 am on 13 October 2018.
Ms Holland did not give anyone permission to enter the house or to steal her handbag and its contents.
Under cross-examination, Ms Holland stated that she went to bed at 11.00 pm on 12 October 2018. She saw her handbag on the dining table just before she went to bed.
Joel James Newman
In October 2018 Mr Newman was living in Yokine, with his girlfriend Amy Holland and three housemates.
On the night of 13 October 2018 Mr Newman was playing games on a PlayStation in the theatre room. He was the only person awake in the house.
At 3.30 am Mr Newman got up to have a cigarette in the alfresco area. When he finished he shut the sliding door behind him and went back into the theatre room.
At 4.00 am Mr Newman saw a figure behind the glass theatre room door. He thought it was one of his housemates.
All the lights were off in the house. The only light in the house was from the television in the theatre room.
About half an hour after seeing the figure, Mr Newman went outside to have another cigarette.
Mr Newman went through the theatre room door and saw that the sliding door to the alfresco was open almost entirely.
Ms Holland was asleep in their bedroom. Mr Newman woke her up.
When Ms Holland woke, she saw that her handbag was not on the dining table.
Mr Newman and one of his housemates went for a walk down the street to see if they could find Ms Holland's handbag. They were unsuccessful.
Mr Newman and his housemate got back to the house just after 5.00 am. Mr Newman checked his online bank account and saw that two transactions had been made using Ms Holland's debit card.
Mr Newman did not give anyone permission to enter the house or to take anything from it.
Under cross-examination, Mr Newman stated that there was no damage to the back sliding door.
Mr Newman stated that he called police after he noticed Ms Holland's handbag was missing. No police officers attended the house.
Mr Newman saw Ms Holland's handbag on the dining table when he had a cigarette between 3.00 am - 3.30 am.
Mr Newman stated that he only saw a figure walk past the theatre room door. His focus was on the television. He did not see if the person was a male or female. He could not give a description of the person.
Lauren Jayne Riley
On 7 October 2018 Constable Riley was conducting patrols in the Maylands area.
Constable Riley spoke to a man in a laundrette at the Maylands Shopping Centre.
The man was light-skinned, around six foot two and had a very distinctive gap in his front two teeth. He was wearing a black cap, with a flat peak and 'Nike' on the front. He was wearing a grey jacket with a black inner lining which looked like it was of woollen material, a white t-shirt or shirt underneath with a round neck and grey tracksuit bottoms which looked like they were quite baggy on him.[8]
[8] ts 158.
Constable Riley asked the man for his identification. The man provided her with a WA driver's licence. The man depicted in the licence was chubbier than him. Constable Riley did not believe he had given her the correct driver's licence. She decided to place the man under arrest.
Constable Riley took out her handcuffs. The man initially put his arms forward, then turned and ran away. Constable Riley got on her police radio and chased the man down Falkirk Avenue. She was not able to catch him.
Upon Constable Riley's return to the laundrette, she saw a white Hyundai Excel motor vehicle parked outside the laundrette that had two different number plates. A protective forensic area was placed around the motor vehicle.
Constable Riley was shown by a police officer from the Bayswater Police Station a still photograph from CCTV footage of a man at Masters Plumbing Association in Maylands on 7 October 2018 on his mobile telephone. The still photograph depicted a male wearing a black hat with an emblem at the front, a grey jacket with black lining, grey tracksuit bottoms and a white t-shirt. Constable Riley believed the man she attempted to place under arrest at the laundrette was wearing the exact same clothes as the man in the still photograph. Exhibit 3 is a CCTV footage still capture photograph which is similar to what was shown to Constable Riley. There is no dispute that this photograph is similar to what was shown to Constable Riley.
Constable Riley became aware on 10 October 2018 that the white Hyundai Excel motor vehicle was forensically examined. She also became aware a fingerprint had been identified from a man named Joshua James Taylor, (the accused). Constable Riley looked up this person on the police database. She saw a photograph of this person which she believed was a direct match to the man who ran away from her at the laundrette on 7 October 2018.[9]
[9] ts 163 and exhibit 4.
Under cross-examination, Constable Riley stated that she made a note of the name on the driver's licence provided to her on 7 October 2018 in her police notebook. She agreed that she did not make any notes of the physical description of the man.[10]
[10] ts 165.
Constable Riley agreed that when she made her statement on 15 October 2018, she had already seen the photograph on the police database, the CCTV still photograph on 7 October 2018 and had been informed on 10 October 2018 a fingerprint belonging to Joshua James Taylor had been found inside the white Hyundai Excel motor vehicle.[11]
[11] ts 171.
Constable Riley agreed that the white Hyundai motor vehicle was drawn to her attention by a member of public. She agreed that she had not noticed the motor vehicle before the member of the public brought it to her attention.[12] The person who drew her attention to the white Hyundai motor vehicle was not called as a witness at the trial.
[12] ts 166.
Constable Riley agreed that the man she talked to in the laundrette was wearing a plain black flat peak cap with 'Nike' on the top and a tick underneath. He was wearing a grey hooded jumper. She did not see what colour the back of the hood was but she saw black wool on the inside of the hood. She could not recall if there was a logo or pattern on the peak of the cap.[13]
[13] ts 171 – ts 72.
The jumper was a zip up jumper. Constable Riley was able to see that the white shirt underneath the jumper did not have a logo on it. The jumper was completely unzipped. There was about a 10 cm gap between each side of the man's chest.
Matthew O'Hart
Detective First Class Constable O'Hart was the investigating police officer in this matter. He produced the majority of the exhibits.
Detective First Class Constable O'Hart confirmed the following:
(a)On the morning of 13 October 2018, a burglary occurred at a house in Yokine.
(b)In the course of investigating the burglary complaint the subject of count 1, police obtained CCTV footage from the Caltex Star Mart, Westminster on 13 October 2018 (exhibit 5), the Master Plumbers Association at 108 Caledonia Street, Maylands on 7 October 2018 (exhibit 6), the Wembley BP on 3 October 2018 (exhibit 7), and CCTV footage taken on 15 October 2018 from a house in Maylands opposite the house where the robbery occurred (exhibit 8).
(c)In the CCTV footage that is exhibit 8, a red Honda motor vehicle registration 1CWF 878 is seen reversing from the property in Maylands. Inquiries were made by the police as to the registered owner of the number plate. The number plate was found to be registered to Muhammad Bilal Liaqat.[14] Mr Liaqat's motor vehicle displaying these number plates was a Honda Accord. Two photographs were taken of this motor vehicle by the police on 18 October 2018 (exhibit 9.1 and exhibit 9.2). These photographs reveal the number plates on the vehicle at the time are 1DPX 907. They are not Mr Liaqat's number plates.[15]
(d)Inquiries were made in relation to the registered owner of the motor vehicle associated with number plate 1DPX 907, who was Angela Tampalini of Ninth Avenue, Maylands (exhibit 10). Ms Tampalini's motor vehicle, a 2011 red Honda Civic motor vehicle, was stolen from Ms Tampalini's address on 9 October 2018. The motor vehicle was displaying the 1DPX 907 number plates when it was stolen.[16]
(e)The accused was in possession of a red Honda Civic motor vehicle displaying number plates 1CWF 878 on the afternoon of 19 October 2018. He had parked this motor vehicle at 17 Mottlecah Street, Mirrabooka (exhibits 11.1 - 11.10). The accused and Shanelle Drayton, who was in the passenger seat, were arrested shortly thereafter. The vehicle identification number of the red Honda Civic the accused possessed, matches the vehicle identification number of Ms Tampalini's red Honda Civic (exhibit 10 and exhibit 11.3).
(f)Two photographs were taken of the accused's teeth on 19 October 2018 (exhibits 13.1 - 13.2).
(g)At 9.33 am on 15 October 2018 Mr Russell called '000'.
(h)On 19 October 2018 Mr Russell selected the accused in a Digiboard (exhibit 14). This process was recorded on a DVD by police (exhibit 15).
(i)A forensic examination was conducted by police on the white Hyundai motor vehicle which had been parked outside the laundrette at Maylands Shopping Centre on 7 October 2018. A fingerprint was identified on the rear view mirror which matched the accused's right thumb (exhibit 17).
[14] ts 183.
[15] ts 214.
[16] ts 213 - ts 214.
Under cross-examination, Detective First Class Constable O'Hart stated he was not aware that Mr Russell's knife had been taken during the robbery at Maylands on 15 October 2018.
Detective First Class Constable O'Hart stated that he could not remember what items were stolen from Mr Russell's house.
Detective First Class Constable O'Hart agreed that a forensic examination was not undertaken at Mr Russell's house.
Detective First Class Constable O'Hart agreed that a forensic examination was not conducted on the stolen plates on Ms Tampalini or Mr Liaqat's motor vehicles.
Detective First Class Constable O'Hart agreed that police do not know who stole Ms Tampalini's car from her home address on 9 October 2018.
Detective First Class Constable O'Hart stated that he could not remember if Ms Holland's handbag or any of Mr Russell's possessions were found in the red Honda Civic motor vehicle on 19 October 2018.
CCTV footage and photographic exhibits
A number of photographs and CCTV footage are relied upon as part of the State's case. Some of this material is very significant in relation to my factual findings and the State's circumstantial case that the accused was the person who committed each of the four offences, the subject of the four counts on the indictment.
Exhibit 5 is edited CCTV footage of the interior and exterior of the Caltex Star Mart in Westminster on 13 October 2018 between the hours of 5.14 am and 5.18 am (according to the time on the CCTV footage). The State's case is the man seen in the footage driving a red Honda motor vehicle and making two transactions at the counter inside the Caltex Star Mart, is the accused. The State's case is that this motor vehicle is Ms Tampalini's stolen red Honda Civic. The State's case is given the proximity in time and location, the man is the same man who committed the aggravated burglary offence the subject of count 1. The State's case is the clothing worn by the man in the Caltex Star Mart on 13 October 2018 is very similar to the clothing the man is wearing on 7 October 2018 in exhibits 3, 6 and 16. Exhibit 3 is a photograph similar to the photograph shown by a police officer on his mobile telephone to Constable Riley on 7 October 2018, who she identified as the same man she had tried to arrest approximately one hour before being shown the photograph.
The two photographs, exhibits 13.1 and 13.2, which were taken of the accused when he was arrested on 19 October 2018, show a gap between his front two teeth. Constable Riley describes the man she attempted to arrest on 7 October 2018 as having a very distinctive gap in his front two teeth.[17]
[17] ts 158.
Exhibits 11.1 - 11.10 are 10 photographs taken of a red Honda Civic motor vehicle, with registration number plates 1CWF 878 which the accused had been driving at the time of his arrest in Mirrabooka on 19 October 2018. The State's case is this is Ms Tampalini's stolen red Honda Civic motor vehicle displaying Mr Liaqat's stolen number plates. The vehicle identification number in the photograph, exhibit 11.3, is the same number as in the certificate of registration for Ms Tampalini's motor vehicle (exhibit 10). The State's case is this is the same motor vehicle in the CCTV footage which is exhibit 5 at Caltex Star Mart, Westminster on 13 October 2018. It is the State's case that Ms Tampalini's number plates on her motor vehicle had been changed some time after the 13 October 2018.
Objection to evidence of Police Constable Riley
In relation to the evidence of the witness Police Constable Lauren Riley, some of her evidence is objected to by defence counsel and I therefore need to rule on the admissibility of this evidence. This evidence was heard as a voir dire during the trial.
The evidence objected to by defence counsel is described in [101] ‑ [103] and [105] - [106] and also includes exhibits 3, 4 and 16. Defence counsel also objects to exhibit 17, because this evidence of the fingerprint match with the accused's right thumbprint on the rear mirror of the white Hyundai motor vehicle was obtained after a person who was not called as a witness pointed out this motor vehicle to Constable Riley.[18]
[18] ts 91 - ts 94 and ts 229 - ts 246.
Counsel for the State submits all the evidence objected to is relevant to proving identity of the offender in relation to counts 1, 2 and 3.[19] Defence counsel accepts this evidence is relevant but submits its prejudicial nature exceeds its probative value and in exercising my discretion, I should exclude this evidence as it is unfair to the accused. It is submitted by defence counsel that the evidence of Constable Riley's identification of the accused was the product of suggestion and her knowledge of the Hyundai motor vehicle came about due to hearsay evidence she received from a member of the public. It is submitted by defence counsel that the member of the public pointing out the Hyundai motor vehicle contaminated the evidence relating to that motor vehicle.
[19] ts 234 - ts 235.
In response to the objections to the admissibility of the evidence described in par 122, the State relies upon the Court of Appeal decision in May v The State of Western Australia[20] and the High Court decision of Alexander v The Queen.[21] It is submitted the evidence was obtained as part of the process of police trying to detect a suspect on 7 October 2018.
[20] May v The State of Western Australia [2018] WASCA 24.
[21] Alexander v The Queen (1981) 145 CLR 395.
Defence counsel submits the facts of this case are distinguishable from May v The State of Western Australia.
Both counsel accept that there are cases where the element of suggestion involved in identification evidence may be so great that exclusion of such evidence is warranted on discretionary grounds.[22]
[22] See Alexander v The Queen (402 - 403) (Gibbs CJ); Davies v The King [1937] HCA 27; (1937) 57 CLR 170 and R v Hallam (1985) 42 SASR 126; (1985) 18 A Crim R 221, 224.
Every case is different, so an analysis of the particular circumstances in this case is required.
A significant factor in this case is I am sitting as both the judge of fact and law. Therefore, the concerns about the fairness of admitting the evidence objected to can also be considered by me in the weighing of this evidence, if admitted. I am aware of the general risks of false identification based on suggestibility and the dangers of photographic identification.[23]
[23] Alexander (409) (Stephen J); Criddle v The State of Western Australia [2017] WASCA 17 [107] - [109] and Okoli v The Queen [2019] WASCA 91 [44].
The fingerprint evidence matching the accused's right thumb obtained from the white Hyundai motor vehicle, parked outside the laundrette on 7 October 2018, was obtained after a member of the public drew Constable Riley's attention to this motor vehicle. She then noticed different number plates on the front and rear of the motor vehicle. Police then established a protected forensic area around the motor vehicle and it was examined.[24] There is no suggestion or submission that the chain of evidence in relation to the forensic examination of this motor vehicle leading up to a right thumbprint match with the accused, obtained from that motor vehicle on 17 October 2018, was broken.
[24] ts 160.
It is submitted the accused is prejudiced because the member of the public who pointed out the white Hyundai motor vehicle to Constable Riley was not called as a witness.
In my view, the probative value of this evidence exceeds the prejudicial nature of the evidence. At the time Constable Riley declared the white Hyundai motor vehicle as part of the police protected forensic area, she was carrying out an entirely legitimate police investigation in relation to a burglary complaint made on 7 October 2018. No suspect had been arrested. Constable Riley's actions immediately following the identification of the motor vehicle by the member of the public was based on a possibility that the motor vehicle was linked to the man she had tried to arrest. Subsequently, forensic evidence in the form of a thumbprint was discovered in the motor vehicle as part of the police investigation. I will admit this evidence.
In relation to the evidence of Constable Riley referred to in [102] and the CCTV screen capture photograph shown to her by a police officer which is similar to exhibit 3, this also occurred as part of the legitimate police investigation of who may be of interest in relation to a burglary complaint made on 7 October 2018. The police officer showed Constable Riley this photograph as part of the police investigation into the complaint.
In Constable Riley's opinion, the man in the photograph (similar to exhibit 3) was wearing the exact same clothing as the man she had spoken to and tried to arrest at the laundrette approximately one hour before being shown the photograph.[25] Constable Riley had spoken to the man earlier and could describe him. She was identifying a suspect to a police officer. The probative value of this evidence exceeds its prejudicial value. I will admit this evidence.
[25] ts 161 - ts 162.
In relation to the evidence described in [103] and exhibit 4 when Constable Riley carried out this activity, she was not then conducting a police patrol at the Maylands Shopping Centre. This activity occurred on 10 October 2018, three days after her patrol in Maylands. I consider given the passage of time, the fact it was a police database photograph she looked at and Constable Riley had been given information about a positive forensic match, there is a real risk of a displacement effect or suggestibility in Constable Riley's identification of the accused from this photograph (exhibit 4). I do not consider the activity of Constable Riley as part of the legitimate police investigation of the burglary complaint. I will exclude the admission of this evidence and its consideration in relation to the case concerning counts 1, 2 and 3.
In relation to the evidence I have admitted when engaging in the fact finding process, I will warn myself about the particular dangers of these forms of identification in relation to this evidence and remind myself of the particular circumstances in which the identification was made.
Circumstantial evidence
The State's case in relation to all four charges relies upon circumstantial evidence. In particular, in relation to counts 1, 2 and 3 as there is no eyewitnesses who identified the accused as the offender in relation to these three offences. The State submits due to a number of pieces of circumstantial evidence, the only reasonable inference is that the accused is the person who committed the offences which are counts 1, 2, 3 and 4.
As explained in Kenworthy v The Queen [No 2],[26] when the case against an accused person rests substantially upon circumstantial evidence, a jury or judge alone cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
[26] Kenworthy v The Queen [No 2] [2016] WASCA 207 [18] - [21]; and R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] - [47].
To enable me to be satisfied beyond reasonable doubt of the accused's guilt, it is necessary not only that his guilt should be a rational inference, but that it should be the only rational inference that the circumstances enable me to draw.
For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent me from finding the accused guilty if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.
In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. I must not look at the evidence in a piecemeal fashion.
I must decide whether I accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence.
I can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.
There is a distinction between the drawing of inferences from facts proved by the evidence and mere speculation or conjecture. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases, the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
Where an intermediate fact constitutes an indispensable step upon the way to an inference of guilty, that fact must be proved beyond reasonable doubt if the ultimate inference of guilt is to be the only reasonable hypothesis left open by the evidence. Otherwise, it is not necessary for each of the individual facts of pieces of evidence from which an inference of guilt is drawn to be proven beyond reasonable doubt.
Circumstantial evidence is no less valid or cogent than direct evidence. Regardless of the type of evidence, the question is always whether it is of sufficient strength that it lead to a conclusion that the prosecution has proved its case beyond reasonable doubt.
I must examine any inference or deduction that I draw. I must see whether it is logical and reasonable. I must ask myself whether there are any other explanations that common sense and human experience tell me are not fanciful.
The critical issue for me in this trial is whether I can properly be satisfied beyond reasonable doubt, that the only rational or reasonable inference which could be drawn from the primary facts established by the evidence is that:
1.the accused was the person who entered the home in Yokine without permission and stole property between 4.00 am - 4.30 am on 13 October 2018;
2.the accused was the person who engaged in two fraudulent transactions using Amy Holland's Bankwest card at the Caltex Star Mart in Westminster between 5.09 am - 5.10 am on 13 October 2018; and
3.the accused was the male person who robbed Jarred Russell whilst holding a knife to Mr Russell in his house in Maylands on the morning of the 15 October 2018.
Identification and recognition evidence
The State's case in relation to all four counts relies upon identification and recognition evidence.
In relation to counts 2 and 3, the State's case is that the accused can be identified by the similarity to the clothing the man is wearing in the CCTV footage at the Caltex Star Mart in Westminster on 13 October 2018, with the clothing the man was wearing who Constable Riley attempted to arrest in Maylands on 7 October 2018 and the circumstantial evidential links between the accused and the motor vehicles, the subject of evidence.
The State's case in relation to count 4 is the witness Jarred Russell recognised the male offender from two earlier meetings he had with him at his house within one to four weeks before the robbery. He then identified and recognised this male person in a Digiboard identification on 19 October 2018, four days after the robbery. The person Mr Russell identified was the accused. The State's case is the accused was the same person Mr Russell was robbed by and had also met on the two previous occasions at his house in Maylands.
Given the reliance by the State on circumstantial identification and recognition evidence, it is necessary I remind and warn myself about the risks of mistakes that could result in a miscarriage of justice. I therefore need to consider closely the factual circumstances in which there is reliance on this type of evidence.
I have considered the general principles concerning identification of an accused person by a witness outlined by the Court of Appeal in Criddle v The State of Western Australia [27]and Okoli v The Queen.[28] I have considered the submissions made by both counsel of the strengths and weaknesses in relation to the identification and recognition evidence that the State relies upon in this case. Unlike a jury, I have specialist expertise and knowledge as a judge sitting without a jury of the risks involved in relying upon forms of identification or recognition evidence in proving guilt.
[27] Criddle v The State of Western Australia [107] - [109].
[28] Okoli v The Queen [44].
In relation to counts 1, 2 and 3, the State does not rely on positive identification evidence, it relies on evidence in terms of the offender's physical characteristics and clothing compared to the accused. The State's case in relation to these three counts relies upon 'circumstantial identification evidence'.[29]
[29] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [55] - [56] (McHugh J); Durani v The State of Western Australia [2012] WASCA 172 [55] - [59] and [68].
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 can vary widely. An honest witness can be unreliable in identification or recognition evidence.
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 lighting at the time; 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 also need to consider if there were any distinguishing features about the offender. In relation to Mr Russell, I also need to examine and consider closely the circumstances in which he later identified the accused as being the male offender who committed the robbery. How well did Mr Russell know the person he identified? How often did he meet him; for how long and in what circumstances?
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 Mr Russell are honest, accurate and reliable.
Counts 1, 2 and 3 - aggravated burglary and fraud
In the Caltex Star Mart, Westminster CCTV footage (exhibit 5) the full facial details of the man cannot be seen, in particular, his front teeth. The State's case is the physical characteristics of the man resembles the accused. The State submits that when this evidence is combined with:
(i)the similarity of clothing worn by a man on 7 October 2018 shown in exhibits 3, 6 and 16;
(ii)the man described and identified by Constable Riley on 7 October 2018; and
(iii)the link to the red Honda motor vehicle driven by the man shown in exhibit 5 with a motor vehicle in the accused's possession on 19 October 2018,
the only reasonable inference is the man who committed the two frauds at the Caltex Star Mart on 13 October 2018 was the accused.
The State's case is that due to proximity in time and location, the same man who committed the two frauds using Ms Holland's debit card committed the burglary of her house the subject of count 1. The burglary was committed in Maylands between 4.00 am - 4.30 am and the frauds were committed in Westminster just after 5.00 am.
I have viewed exhibit 5 which is the edited CCTV footage taken from the Caltex Star Mart, Westminster on 13 October 2018. The man in the footage is wearing grey tracksuit pants rolled up into three‑quarter length, a grey long sleeve top with black sleeves, a white top underneath and a black flat peak cap with a white 'Nike' swish logo and the name 'Nike' on the front. There is a sticker on the flat peak of the cap. The man was barefoot.
I have also viewed exhibits 3, 6 and 16, which is CCTV footage and still frame photographs taken from the Masters Plumbing Association at 108 Caledonia Avenue, Maylands on 7 October 2018. The man in these exhibits is wearing grey tracksuit pants rolled up into three‑quarter length, a white round neck t-shirt, a grey zip-up hooded jumper with black thick lining, a black flat peak cap with a white 'Nike' swish logo and the 'Nike name on the front and black sneakers with white soles. When I watch the exhibit 6 footage, I can see a sticker on the flat peak of the cap.
I find the clothing worn by the man in exhibits 3, 5, 6 and 16 and the way the clothing is worn is very similar. The flat peak cap and three quarter length tracksuit pants the man is wearing look identical. Individually these items of clothing may not be unique but the combination and the way these two items are worn, makes them unique. I consider it is most likely to be the same man in all these exhibits. The State also relies on other evidence to link this man as being the accused.
I have also viewed exhibits 13.1 and 13.2, which are photographs of the accused taken when he was arrested on 19 October 2018.
I find that these photographs of the accused are consistent with Constable Riley's description of the man she saw and spoke to at the laundrette in Maylands on 7 October 2018, having a very distinctive gap in his front two teeth.[30]
[30] ts 158.
I have viewed exhibit 7, which is CCTV footage taken from BP Wembley on 3 October 2018. The footage shows a man in a white motor vehicle pulling into the BP service station in Wembley and putting fuel into the motor vehicle. The motor vehicle's front number plate is 1GJX 846. The footage does not show the motor vehicle's back number plate. The man looks similar to the man depicted in exhibit 5 although some of the clothing he is wearing is different. The man is wearing tracksuit pants rolled up into three quarter length.
Exhibit 5 shows a red Honda motor vehicle pulling into the Caltex Star Mart, Westminster. There is only one man in this motor vehicle, the driver. The body of the motor vehicle is consistent with Ms Tampalini's motor vehicle, shown in exhibits 11.1 ‑ 11.10. Ms Tampalini's motor vehicle was stolen from her address at Ninth Avenue, Maylands, on 7 October 2018. Exhibit 10 confirms Ms Tampalini is the registered owner of this motor vehicle. The number plates of her motor vehicle are 1DPX 907.
Only the first five digits or letters of the front number plate of the red Honda motor vehicle can be made out in the CCTV footage which is exhibit 5. The first five digits or letters are 1DPX 9. This is consistent with the first five digits or letters of Ms Tampalini's number plate. The footage does not show the motor vehicle's back number plate.
I have viewed exhibits 11.1 - 11.10, which are photographs taken by police of a red Honda Civic motor vechile at 17 Mottlecah Street, Mirrabooka, on 19 October 2018 which the accused was driving. The motor vehicle's front and back number plates in these photographs are 1CWF 878. In his witness statement, Muhammad Liaqat confirmed he is the owner of a red Honda Accord motor vehicle, registration number 1CWF 878. On 17 October 2018, Mr Liaqat was contacted by police to check his number plates. When Mr Liaqat checked his motor vehicle he saw that the motor vehicle's number plates had been removed and changed. Exhibits 9.1 ‑ 9.2 are police photographs taken on 18 October 2018 of Mr Liaqat's motor vehicle which show the motor vehicle with number plates 1DPX 907. These are Ms Tampalini's number plates.
I make the following further factual findings based on the evidence:
(a)The accused was in possession of Ms Tampalini's red Honda Civic motor vehicle on 19 October 2018. The motor vehicle had Mr Liaqat's number plates on it, 1CWF 878.
(b)On or before 7 October 2018, the accused had contact with the white Hyundai Excel due to a matching right thumbprint of the accused found in the motor vehicle.
(c)The man depicted in exhibit 5 CCTV footage resembles the man depicted in exhibits 3, 6 and 16. The description of Constable Riley of the man she attempted to arrest on 7 October 2018 meets the description of the man depicted in exhibits 3, 6 and 16.
(d)The person Constable Riley spoke to outside the laundrette in Maylands who she attempted to arrest on 7 October 2018 was the accused. The clothing the accused was wearing that day is what the person is wearing in exhibits 3, 6 and 16.
(e)The accused had been transported to the laundrette in Maylands on the morning of 7 October 2018 in the white Hyundai Excel motor vehicle Constable Riley saw out the front of the laundrette.
(f)The clothing worn and the way the clothing is worn by the accused on 7 October 2018 is very similar to some of the clothing worn by the man depicted in exhibit 5 at the Caltex Star Mart, Westminster at around 5.00 am on 13 October 2018.
(g)The man depicted in the CCTV footage at BP Wembley on 3 October 2018 (exhibit 7), resembles the man in exhibits 3, 5, 6 and 16.
(h)The red Honda motor vehicle depicted in the exhibit 5 CCTV footage is the same red Honda motor vehicle depicted in exhibits 11.1 - 11.10.
I am satisfied that the Red Honda motor vehicle seen in exhibit 5 is Ms Tampalini's stolen red Honda Civic motor vehicle, and that a reasonable inference is Mr Liaqat's number plates were swapped with Ms Tampalini's number plates sometime between 13 - 19 October 2018.
When I consider all the factual circumstances I have found described in [160] to [170], I am satisfied the only reasonable inference to be drawn is that the accused is the person who drives the red Honda motor vehicle into the Caltex Star Mart in Westminster at around 5.00 am on 13 October 2018 and carried out the two fraudulent transactions. On the totality of the circumstantial evidence, I find it implausible it was anyone other than the accused who carried out these activities.
I have no difficulty in finding the only reasonable inference is that if the accused committed the two fraudulent transactions the subject of counts 2 and 3, he was also the person who committed the aggravated home burglary the subject of count 1 in Maylands approximately 30 to 60 minutes before these transactions occurred.
I note in the exhibit 5 CCTV footage, the man carrying out the fraudulent transactions in the Caltex Star Mart produces a number of cards to the staff member at the counter which are declined before successfully making two purchases. Ms Holland had a number of cards in her wallet in her handbag which were stolen in the burglary. Mr Newman immediately attempted to cancel all these cards on 13 October 2018 when they discovered her cards were missing. He was unsuccessful in cancelling the Bankwest card.[31] This evidence indicates to me the only reasonable inference is that the person in the Caltex Star Mart possessed all Ms Holland's cards which were contained in her wallet and handbag and had been stolen from her home less than one hour before.
[31] ts 150 - ts 151.
Accordingly, for these reasons I am satisfied beyond reasonable doubt the accused committed the counts 1, 2 and 3 offences.
Count 4 - aggravated armed robbery
Mr Russell is the most significant witness in relation to count 4. He is the victim of the robbery and was the only occupant in the Maylands property when the two offenders came into the house on the morning of 15 October 2018. He was the only eyewitness as to the identity of the offenders.
In Mr Russell's evidence he stated he recognised the male offender from two previous visits to his house. He also identified him in a Digiboard shown to him by a police officer on the morning of the 19 October 2018.
His evidence as to his recollection of the description of the male offender was limited to he could only remember him being tall.[32]
[32] ts 101.
The State prosecutor conceded that Mr Russell was an unimpressive witness and his evidence alone was insufficient to prove that the identity of the male offender was the accused. The State prosecutor also conceded it would be unsafe to act on Mr Russell's evidence in isolation. The State prosecutor submitted there was circumstantial evidence which supported the reliability of Mr Russell's identification evidence that the male offender was the accused.[33]
[33] ts 271 and ts 274.
Mr Russell was an unimpressive witness. I did not find him credible or reliable.
On numerous occasions, when asked in cross-examination for more details about the robbery, Mr Russell responded with answers such as 'I can't remember', 'I don't know' and 'as far as I can remember'. Mr Russell stated he takes prescription sleeping tablets which affects his memory because they are anti-psychotics. At one stage Mr Russell stated 'I can't remember anything from last year cos … I'm on tablets, your Honour'.[34]
[34] ts 111.
Mr Russell stated in cross-examination he was now unable to give a description of the man and woman who came into his house on the morning of 15 October 2018.[35]
[35] ts 135.
Mr Russell's evidence was inconsistent with his out of court police statement made on 15 October 2018 and what he had told the State prosecutor leading up to the trial. These inconsistencies relate to the lighting in the room, whether his dogs barked, had Mr Russell met the female offender previously, how much time he had spent with the male offender at the two previous meetings and who rang the police. Some of these inconsistencies were significant and I do not accept his explanations for them. The inconsistencies impact on Mr Russell's credibility as a witness.
Mr Russell accepted that he had a significant record of miscellaneous criminal offences. About a month before the robbery, Mr Russell admitted he sold methamphetamine outside his house to a friend who was with the man he identified in the Digiboard.[36] I weigh Mr Russell's admitted criminal activity against his credibility as a witness.
[36] ts 127.
The State prosecutor relies on five pieces of circumstantial evidence which he submitted would support Mr Russell's identification of the accused as the male offender. It is submitted this circumstantial evidence should satisfy me it is implausible that Mr Russell was mistaken as to the identity of the offender.
The first factual circumstance the State relies upon is that the red Honda motor vehicle used in the robbery on 15 October 2018 is the same motor vehicle used by the accused on 13 October 2018 at the Caltex Star Mart, Westminster and the same motor vehicle that the accused was using on 19 October 2018 at Mirrabooka. I have found the accused used this motor vehicle on 13 October 2018 at the Caltex Star Mart, Westminster and on the 19 October 2018 he admits he used it. On the evidence, I accept it is the same red Honda motor vehicle on all three occasions. But in relation to the 15 October 2018 robbery, exhibit 8 does not assist with the identity of the two offenders who used this motor vehicle. Only the bottom half of each offender can be seen in the CCTV footage when they each go to the red Honda motor vehicle. Only the footwear and pants of both persons can be seen. Except for Mr Russell's evidence, there is no other direct evidence as to the identity of the offenders using the red Honda motor vehicle on 15 October 2018.
The second factual circumstance is that Mr Russell describes a female as one of the offenders in the robbery. It is submitted this is consistent with the exhibit 8 CCTV footage showing a person on the passenger side of the red Honda motor vehicle on 15 October 2018 who appears to be a female in body shape. The accused is also with a female in the red Honda motor vehicle on 19 October 2018. Given the limitations in the CCTV footage I have referred to in [185], I am not prepared to draw the inference that the person is a female. I am not prepared to find that the person in the front passenger seat in the white vehicle based on the exhibit 7 CCTV footage is a female.
The third factual circumstance is that Mr Russell describes a white plastic washing basket being used by the offenders to carry stolen items taken from his house.[37] It is submitted that this is consistent with the evidence of the CCTV footage in exhibit 8 where a white washing basket can be seen carried by a person to the passenger side of the red Honda motor vehicle.[38] I accept that activity is depicted in the exhibit 8 CCTV footage. This evidence does not assist the State's case about the identity of the male offender. The evidence only confirms what Mr Russell said about some of the details of how the robbery occurred are accurate.
[37] ts 99.
[38] Exhibit 8.
The fourth factual circumstance is that Mr Russell recognised the male offender from two previous meetings he had with him and a friend at his house not long before the robbery.
I give Mr Russell's evidence of recognising the accused as the male offender from two previous meetings with him at his house very limited weight. On Mr Russell's evidence, both occasions where he had met the male before the robbery were for short periods of time and there was no conversation between the man and Mr Russell. On one of these occasions, Mr Russell engaged in criminal activity with his friend. Mr Russell, in his evidence, provided very little detail about the man on each occasion he met him before the robbery.
The fifth and final factual circumstance is Mr Russell's Digiboard identification of the accused on 19 October 2018. It was submitted Mr Russell was not affected by sleeping tablets at this time and in the identification process, Mr Russell took time to consider the images on the Digiboard before identifying image 5 on exhibit 14, which was the accused.
I give very limited weight to Mr Russell's identification of the accused as the male offender in the Digiboard. When he identified the accused by selecting image number 5 on exhibit 14, Mr Russell said 'Yeah, that looks like him'.[39] This comment suggests to me this was not a confident identification by Mr Russell. Mr Russell may have been identifying image 5 (the accused) as merely someone who resembled the male offender.
[39] Exhibit 15.
I remind and warn myself of the possibilities of mistaken identification from a Digiboard as referred to in Winmar v The State of Western Australia[40] and I direct myself accordingly. Photographs on Digiboards are two-dimensional, static and only depict people's faces.
[40] Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [120].
In my view, given the concerns I have in relation to the various pieces of circumstantial evidence I have described in pars 185 to 192, the evidence is insufficient to corroborate and rehabilitate the unsatisfactory identification evidence of Mr Russell, that the accused was the male offender who committed the count 4 offence.
I consider there is a real risk that Mr Russell is mistaken in his evidence that the man who attended with Mr Russell's friend at the two meetings outside his house weeks or a month before the robbery was the offender and the same person he identified in the Digiboard.
I am not satisfied that the prosecution has proved beyond reasonable doubt that the accused committed the offence the subject of count 4 on the indictment.
Conclusion and verdicts
For the reasons that I have described, I find the accused guilty of counts 1, 2 and 3 and not guilty of count 4. I will enter judgments of conviction and acquittal in accordance with my four verdicts.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior15 JUNE 2020
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