The State of Western Australia v Te Kani
[2020] WADC 109
•5 AUGUST 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TE KANI [2020] WADC 109
CORAM: DAVIS DCJ
HEARD: 24-30 JUNE 2020
DELIVERED : 5 AUGUST 2020
FILE NO/S: IND 1268 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
LUKAS TE KANI
ISAAC SCHICKER
Catchwords:
Criminal law - Trial by judge alone - Charges of extortion and steal motor vehicle - Two co-accused - A third person present during incident with the two co-accused not called by the State - Whether a Jones v Dunkel direction required - Admissibility of third party statement to the police - Whether trial judge, after conclusion of trial, can admit that third party statement - Verdicts turn on own facts
Legislation:
Criminal Code Act Compilation Act 1913 (WA)
Evidence Act 1906 (WA)
Result:
Verdict of not guilty for each accused on Count 1; judgment of acquittal recorded for each accused
Verdict of guilty for each accused on Count 2; judgment of conviction recorded for each accused
Representation:
Counsel:
| Applicant | : | Mr S W O'Sullivan |
| First Accused | : | Mr K G Robson |
| Second Accused | : | Mr D P J Cripps |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| First Accused | : | Mr K G Robson |
| Second Accused | : | Damien Cripps Barrister & Solicitor |
Case(s) referred to in decision(s):
Ahern v The Queen (1998) 165 CLR 87
Aubertin v The State of Western Australia [2006] WASCA 229
Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632
Bannon v The Queen (1995) 185 CLR 1
Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533
De Silva v The Queen [2019] HCA 48; (2019) 375 ALR 1
Dyers v The Queen (2002) 210 CLR 285
Edwards v The Queen (1993) 178 CLR 193
Evans v The State of Western Australia [2020] WASCA 26
Hoy v The Queen [2002] WASCA 275
Jones v Dunkel (1959) 101 CLR 298
Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565
L v The State of Western Australia [2016] WASCA 101
Lawrence v The Queen (1981) 38 ALR 1
Manyam v The State of Western Australia [2010] WASCA 107
MEN v The State of Western Australia [2020] WASCA 118
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Michaels v The State of Western Australia [2009] WASCA 174
NAD v The State of Western Australia [2013] WASCA 2
Nguyen v The Queen [2020] HCA 23
O'Meara v The State of Western Australia [2013] WASCA 228
Punevski v The Queen [2000] WASCA 71
R v Apostilides (1984) 154 CLR 563
R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109
R v Chin [1985] HCA 35; (1985) 157 CLR 671
R v Collister (1955) 39 Cr App Rep 100
R v Jessen [1997] 2 Qd R 213
R v Kelly [1991] QSCCA 198
R v Palmer (1998) 103 A Crim R 299
R v Rasmussen and Spiegelglass (1928) 28 SR (NSW) 349
R v Succarieh [2017] QCA 282
Re Attorney General's Reference (No 1 of 1977) [1979] WAR 45
Roberts v The State of Western Australia [2010] WASCA 223
Roberts v The State of Western Australia [2019] WASCA 83
Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365
Skubevski v The Queen [1977] WAR 129
Smith v The Queen [2008] WASCA 128
The State of Western Australia v Sinclair [2019] WADC 109
Tracey v The Queen (1999) 20 WAR 555
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1
Whitby v The State of Western Australia [2019] WASCA 11
Whitehorn v The Queen (1983) 152 CLR 657
Winning v The Queen [2003] WASCA 245
Wittensleger v The State of Western Australia [2014] WASCA 205
DAVIS DCJ:
The accused, Lukas Te Kani (Mr Te Kani) and Isaac Schicker (Mr Schicker), are jointly charged with two offences, one of extortion and one of stealing a motor vehicle.
Count 1 is that between 16 September 2018 and 1 November 2018 at Bayswater, Mr Te Kani and Mr Schicker, with intent to extort or gain, orally demanded from Peter William Hamilton a Mitsubishi Triton (Triton), registration 1EGA-245, and money, without reasonable cause, and with threat of injury and detriment if the demand was not complied with.
Count 2 is that on 17 September 2018 at Bayswater, Mr Te Kani and Mr Schicker stole a motor vehicle, namely a Triton, registration 1EGA‑245, the property of Peter William Hamilton.
The trial of these charges took place before me, sitting as both the judge of the law and of the facts, over five days between 24 and 30 June 2020.
For the following reasons I find each accused not guilty of count 1, but guilty of count 2.
General legal principles and directions
I have had regard to the principles set out in s 119 and s 120 of the Criminal Procedure Act 2004 (WA) relating to trials by judge alone. I have reminded myself of the following legal principles which apply to my consideration of this case.
Each accused is presumed to be innocent of the charges brought against him.
The burden of proving each charge rests on the State of Western Australia. The accused do not have to prove anything in this trial.
The State must prove each charge beyond reasonable doubt. If there is a reasonable doubt as to whether an accused is guilty of one or more of the charges then it is my duty to acquit him on such charge or charges upon which I have such a reasonable doubt.
There are two offences with which each accused has been charged in this trial. I must not draw any inference against the accused or make any conclusion against either of them or be prejudiced against either of them because there is more than one charge. I must determine each charge against each accused separately, based on the evidence relevant to that accused on each charge. My verdict does not have to be the same on each charge or for each accused. I cannot find either of the accused guilty of any charge unless the evidence in relation to it satisfies me beyond reasonable doubt that the accused, whose case I am considering, did commit that offence.
The evidence is of course what witnesses have said on oath and the exhibits which have been produced. The evidence includes a witness statement from a police officer which was read into evidence, with the consent of counsel for all parties. What counsel have said otherwise is not evidence.
I must assess the evidence dispassionately and objectively and not decide the case on any prejudice or sympathy.
I am not permitted to undertake, and I have not undertaken, inquiries or research of my own in respect of the evidence and I must decide the case only on the evidence which the parties have decided to place before me. In particular, as I informed the parties, before the commencement of the trial the only documents I had read were the indictment and the statement of material facts, in order to familiarise myself with what the case was about. I had not read the prosecution brief. It is still the case that I have not had regard to anything on the prosecution brief other than photographs and documents from the brief which were tendered during the course of the trial, and passages from witness statements upon which cross-examination took place.
I must not guess or speculate about matters which are not in evidence.
While I may not speculate 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 do not consider the facts in isolation but consider them as a whole.
So far as the evidence of witnesses is concerned (and the witnesses include the accused Mr Schicker, who elected to give evidence in his defence in this trial), it is necessary for me to consider the credibility or believability of each witness, the weight to be given to his or her evidence and its reliability and accuracy. A witness may be truthful but have a poor memory or otherwise be mistaken. I am able to accept all or part of the evidence of any witness and disregard all or part of the evidence of that witness.
There are some other specific directions about the evidence which I set out later in these reasons.
The elements of the offences
For each of the charges there is a date or dates and a specified place for the alleged offence. The State does not have to prove the date and place of the alleged offence beyond reasonable doubt.
There is a common element in each charge, which is the element of identity. The State must establish that it was the accused who is the alleged offender, who did the act or acts alleged in each charge. In this case there is no issue about the identity of either accused. That is not to say that they are guilty of either offence; simply that they are the alleged offenders and not some other person or persons.
When the State opened its case it did so on the basis that the two accused were jointly liable for each offence ‑ in other words they committed each offence together.
Section 7(a) of the Criminal Code (the Code) provides that every person who actually does the act which constitutes the offence is deemed to have taken part in the commission of the offence and to be guilty of the offence.
A person can be guilty of an offence pursuant to s 7(a) of the Code, by acting jointly or in concert with another person or persons to commit the offence. The law provides that two or more persons, acting in concert, each doing one or more acts which, in aggregate, would constitute an offence if done by one person can all be guilty of the offence, regardless of the part each person played.[1]
[1] L v The State of Western Australia [2016] WASCA 101 [32] - [33] and [53]; Whitby v The State of Western Australia [2019] WASCA 11 [96] - [118].
That is what the State alleges in this case ‑ that the accused committed the extortion offence and the stealing of the motor vehicle together and they are equally guilty of each crime even though they did different things.[2]
[2] The concept of 'joint criminal enterprise' does not apply to s 7 of the Code. The operation of s 7(a) differs from the common law of joint criminal enterprise in that, under s 7(a) of the Code, it is necessary for the accused to have done at least one act in a series of acts which constitutes the offence. If no such act is committed, liability for the offence can only arise on the alternative legal bases in s 7(b) - s 7(d) ie aiding, counselling or procuring: L v The State of Western Australia [33], [53] and [66]; Roberts v The State of Western Australia [2019] WASCA 83 [57].
Extortion
For this charge, which is brought pursuant to s 397(2) of the Code, the elements of the offence which the State must prove beyond reasonable doubt, for each accused, are that the accused:
1.made an oral demand on the complainant Mr Hamilton;
2.made that demand with threat of injury or detriment if the demand was not complied with;
3.made that demand without reasonable cause; and
4.made that demand with intent to extort or gain.
On the first element of demand, the definition of 'demand' is in accordance with the ordinary use of language. There does not have to be an express demand in words.[3]
[3] R v Collister (1955) 39 Cr App Rep 100 (Pilcher J).
The State case here is that there was a demand, made by Mr Schicker, confirmed or agreed to by Mr Te Kani. The demand was for Mr Hamilton's motor vehicle, the Triton, and also money.
The defence position for both accused is that no demand was made.
On the second element which the State must prove, that the demand was made with a threat of injury or detriment if the demand was not met, the law is as follows.
A threat is something that is done for the purpose of intimidating or overcoming the will of the person to whom it is made, to compel the person to do something they were entitled to abstain from doing.[4]
[4] Tracey v The Queen (1999) 20 WAR 555 [11], [12] and [15] (Kennedy J).
A detriment is a violation or breach of a person's legal right, contractual or otherwise.[5]
[5] Tracey v The Queen [13] - [16] (Kennedy J), [102] - [103] (White J). A detriment can include a threat to withhold advantageous evidence in court proceedings: R v Jessen [1997] 2 Qd R 213, 218 - 200.
It is not necessary for any express threat to be made. The threat can be by act or words.[6] A threat may also be implied from a person's conduct and statements.[7] It is enough if the demeanour of the accused and the circumstances were such than an ordinary reasonable person could understand that a demand was being made and that the demand was accompanied by a threat.[8]
[6] Tracey [11].
[7] R v Jessen (219); R v Rasmussen and Spiegelglass (1928) 28 SR (NSW) 349, 353 ‑ 354.
[8] R v Collister.
It does not matter if the threat does not specify the injury or detriment that is to be caused, or the person or persons to whom or the property to which injury or detriment is to be caused.[9]
[9] Jessen [41]; R v Kelly [1991] QSCCA 198.
So far as the threat is constituted by words, the context of the words must be considered. Words which, if interpreted literally, would amount to a threat to cause an injury or detriment to someone, are frequently made in jest or temper in a context where they are not intended to be taken seriously.
For example, sometimes one person will say to another words such as 'I'll punch you' in circumstances in which it is obvious that they do not constitute a statement of an intention to punch that person. They may be uttered in anger, in jest, as a means of expressing embarrassment or just as a means of letting off steam. Taken in isolation the words may very well expressly constitute a threat, but when considered in the context of the circumstances in which they were uttered, they would not be a threat.
Whether a threat to cause injury or detriment was made in this case is a question for me to determine, first by finding what words were used or what behaviour was demonstrated, and then by deciding whether those words or that behaviour, in the context in which they occurred, can reasonably be regarded as a constituting a threat to cause injury or detriment.
The State does not have to prove that the accused intended to carry out that threat.[10]
[10] Tracey [6].
The issue is not whether the accused actually intended to cause injury or detriment to Mr Hamilton. The issue is whether the words that I find were used or the conduct which occurred, in context, constituted a threat to cause injury or detriment.
The State's case is that the accused together made the following threats:
1.An implied threat by telling Mr Hamilton about a person being hung over a balcony for not paying money.
2.An implied threat of breaking his legs.
3.An implied threat of taking his dog.
The State's case is that these threats were made with the demand, and that both the threats and the demand were made at Mr Hamilton's home.
The defence case for each accused is that there was no threat.
The third element that the State must prove is that the demand was made without reasonable cause. A reasonable cause is a cause that, having regard to what is demanded, is for a legitimate purpose. The test is an objective one. I must determine whether the purpose of making the demand was one which, in all the circumstances, including the threats accompanying the demand, constituted a reasonable cause.[11]
[11] Tracey [50] - [64]; R v Succarieh [2017] QCA 282 [29], [30], [110].
Finally, the demand that was made must be made with intent to extort money from Mr Hamilton. This element of intention, if it exists at all, resides in the accused's mind.
The State cannot call a witness to say what an accused's intention was, what was in his mind. Here the State is asking me to draw an inference as to what was each accused's intention at the time, based on all of the facts and circumstances.
Steal motor vehicle
Section 371A of the Code provides that when a person unlawfully uses a motor vehicle, or takes a motor vehicle for the purpose of using it, or drives or otherwise assumes control of a motor vehicle without the consent of the owner or person in charge of the motor vehicle, that person steals the motor vehicle.
Accordingly, to prove count 2 against each accused, the elements of the offence which the State must prove beyond reasonable doubt are that:
1.The accused used, took for the purpose of using it, drove, or otherwise assumed control of the Triton.
2.The Triton was the property of the complainant Mr Hamilton, in that he owned or was the person in charge of the motor vehicle.
3.The accused took, used, drove or otherwise assumed control of the Triton without the consent of Mr Hamilton.
4.The accused did so unlawfully. Something is unlawful if it is not authorised or justified or excused by law
There is no issue about the first element. The Triton was taken from Mr Hamilton on 17 September 2018, as admitted by each accused.
There is no issue about the second element. The Triton was registered in the name of Mr Hamilton's father, however Mr Hamilton had exclusive possession and use of it and was, therefore, the person in charge of that motor vehicle.
As to the third element of consent, there is no definition of 'consent' for the offence of stealing in the Code. However, the dictionary definition provides that consent means 'voluntary agreement to or acquiescence in a proposition etc.; compliance, permission'.[12]
[12] Shorter Oxford English Dictionary (6th ed, 2007).
The State's case is that the accused took the Triton without the consent of Mr Hamilton. It is also the State's case that each accused used and drove the Triton without the consent of Mr Hamilton.
The accused Mr Te Kani says that Mr Hamilton lent him the Triton to use when Mr Hamilton was away working fly in, fly out (FIFO).
The accused Mr Schicker says that Mr Hamilton lent him the Triton so that he could move some furniture and he then asked Mr Te Kani to return the Triton to Mr Hamilton.
As to the fourth element, counsel for Mr Schicker submitted that an issue of honest and reasonable mistake arises pursuant to s 24 of the Code. The submission was based on the evidence that Mr Hamilton handed the car keys to Mr Schicker without saying that he did not want the Triton taken.[13] It was conceded, however, that if Mr Schicker is guilty of count 1, there was nothing which authorised, justified or excused the accused taking the Triton and the issue of mistake could not arise. I will therefore direct myself on the law regarding mistake only if I make a finding of not guilty on count 1.
[13] ts 484.
The evidence
Matters not in dispute
The following facts were either undisputed or are uncontroversial.
In September 2018, Mr Hamilton lived in an address in Bayswater. He had previously, only some months before, lived with his parents.
Mr Hamilton's friend and housemate was Joel Bryce. Mr Bryce had not been living long with Mr Hamilton. Although they had been friends since their school days, for a time Mr Bryce had lost touch with Mr Hamilton because of Mr Hamilton's illicit drug use.
Mr Hamilton worked on a FIFO basis doing shut downs on mine sites. When he returned to Perth he did subcontract work, using the Triton to do so.
Mr Hamilton and Mr Schicker knew each other. Mr Hamilton knew Mr Schicker as 'Zac'.[14] (Each of Mr Hamilton and Mr Bryce referred to Mr Schicker as Zac throughout their evidence.) Each of Mr Hamilton and Mr Schicker said that the last time they had seen each other was six to eight months before the day of the alleged events, 17 September 2018.
[14] ts 94.
Mr Schicker and Mr Te Kani knew each other.
On 17 September 2018 Mr Hamilton arranged to purchase some methylamphetamine from a person whom he knew as 'Rowe'. Mr Hamilton drove his car to the Noranda Shopping Centre. Mr Bryce accompanied him, sitting in the passenger seat.
Soon after Mr Hamilton parked the Triton, a white rental car - which I will refer to as the 'hire car' - pulled up alongside. In that hire car were Mr Te Kani and Mr Schicker. Evidence from each of Mr Hamilton, Mr Bryce and Mr Schicker was that a third person, subsequently identified as Alec Rowe (Mr Rowe) was also in the hire car.[15] Mr Te Kani has, however, denied that a third person was in the hire car - a matter I will address in more detail later.
[15] Both Mr Hamilton and Mr Bryce later identified the third male during a digiboard process as Mr Rowe: ts 141 and exhibit 6; ts 286 - ts 287.
A discussion took place in the car park. Who the discussion took place between and where, and what was discussed are matters I must determine in this trial.
After that discussion, the two vehicles containing the five men (although the evidence as to who was in which vehicle differs) drove to Mr Hamilton's house, where some further discussions took place. Again, what discussions took place at Mr Hamilton's house is a matter I must determine.
Mr Schicker subsequently left Mr Hamilton's house with the Triton (although the evidence as to the circumstances and when he left differs).
The next day, 18 September 2018, Mr Hamilton left to work on his FIFO job. He was away for a week or two weeks.[16]
[16] This was established in cross-examination ts 166, ts 168, ts 200.
On 3 October 2019 someone driving the Triton - a driver who was not Mr Hamilton or his father; a driver who looks like Mr Te Kani - was caught and photographed by a speed camera.[17] As the registered owner of the Triton, Mr Hamilton's father then received notice of the speeding infringement and confronted his son about where the Triton was.
[17] Exhibit 7.
Between 19 and 28 October 2019, Mr Te Kani sent a number of text messages to Mr Hamilton. These are set out in exhibit 4, a download taken by police from Mr Hamilton's mobile phone. Mr Te Kani's phone number at the time was xxxx xxx 281. That was the phone number saved in Mr Hamilton's phone as the contact 'Luke (TK)'.[18]
[18] Exhibits 4 and 12.
On 19 October 2018 Mr Te Kani wrote 'Hey brother when did you say you were gonna put a payment thu (sic)'. He then sent a screenshot of an ANZ Access Advantage card with bank account details on it, and said 'This is the number again'.[19]
[19] Exhibit 4 page 260.
On 20 October 2019 Mr Hamilton and Mr Te Kani had the following text exchange.[20]
[20] Exhibit 4 pages 260 - 265.
Mr Te Kani:Hey brother just touching base with wats going on with paper work bro.
Mr Hamilton: Hey brother sorry I had to buy phone credit. I fly out tomorrow and payday is usually on a Wednesday night. I'm not sure when the pay week ends so hopefully I get paid for the days I work before Wednesday.
I'll keep you posted though bro.
Mr Te Kani:Oh ok I thort this Wednesday gone was the fornight and that this week was the payment I'm asking thus bruz cos every time I ask it to be banked it I keep getting the bank number didn't work bro I get money sent from nz to the same number and it's there 15-20 mins and then some how the last payment come thu from north bridge when I was told the bro was at your house
You got any to put in at all
Mr Hamilton: Yeah bro sorry ive had to turn down a fair bit of work whilst back here due to not having a work ute. So I've only been making just enough to pay the rent n shit while I'm here so fly out times are the only time I can get make enough money to pay you.
I have a job I can book in for the week I'm home after the shut. Would you be willing to let me use the Ute for the week I'm back and you can take it again when I fly out?
That way I can make enough to pay you 3 weeks in row.
Yeah I gave old mate the cash, he said he was with you so he must have deposited it into your account.
All I've got is a $50 note bro.
Mr Te Kani:I' was driving brother.
Bro can we grab that 50 for fuel.
Mr Hamilton: Yeah bro I'm about to go out though, want me to leave it in the letterbox?
Mr Te Kani:Brother if that's ok.
Legion my brother
Mr Hamilton: It's in a ziplock bag in the letterbox. My letterbox is the small brown on of the left hand side of the driveway.
No dramas bro.
On Sunday, 21 October 2018 Mr Te Kani sent two further text messages to Mr Hamilton:[21]
Mr Te Kani:Hey brother I only realised wat the time was I was ment to call in and see you and grab the ph shit is it at yours.
Wea you.
[21] Exhibit 4 page 265.
Mr Te Kani sent further text messages to Mr Hamilton on 27 October 2018 at 11.30 am,[22] 12.27 pm and 1.40 pm:[23]
Mr Te Kani:Bro it's luke can u call me ASAP need to know what is happening with coin call my number
Mr Te Kani:Hey brother it's tk I wanted to no wats the go with coin are you able to bank thu some so I'll be able to come see you.
Mr Te Kani:Can u let me no wat the go is.
Yea brother send a message so I no wats happen.
[22] Exhibit 4 page 268.
[23] Exhibit 4 pages 266 - 267.
The next day, 28 October, Mr Te Kani sent a message saying 'You there bro'.[24]
[24] Exhibit 4 page 266.
On 29 October Mr Hamilton received a hang up message from Mr Te Kani's phone number:[25]
0434417281 reached your MessageBank on 29/10/2018 at 18:58 & did not leave a message.
[25] Exhibit 4 page 266.
On 29 October 2019 Mr Hamilton and his father went to the police. Mr Hamilton gave a first written statement to the police.
On 30 October 2019 Mr Hamilton made a second written statement to the police.
On 31 October 2019 police found the Triton in Mr Te Kani's possession, at his home. They also found the keys for the Triton in Mr Te Kani's pocket.
On 1 November 2019, at the request of Major Fraud Squad Detectives Devine and Keane, Mr Hamilton made a third, more detailed, statement to the police.
Summary of evidence relating to issues in dispute
The following is my summary of what I consider to be the evidence most relevant to the issues in this case. (There was also some evidence about Mr Hamilton giving a mobile phone to Mr Te Kani, however, that was not something which the State relied upon at the conclusion of the case.)
On occasions I have used the names (Christian names or nicknames) used by the witnesses in this case. 'Zac' is a reference to the accused Mr Schicker. 'Luke' or 'TK' is a reference to the accused Mr Te Kani. 'Joel' is a reference to Mr Bryce. Finally, 'Peter' is a reference to the complainant Mr Hamilton.
The complainant Mr Hamilton
There was extensive cross‑examination of Mr Hamilton by counsel for each accused about what Mr Hamilton said or did not say in one or two or all of the statements which he gave to the police, which I will come to in a moment. However, in evidence‑in‑chief Mr Hamilton explained that the first time he spoke to police he was unsure of dates.[26] He went away and checked his bank statement to obtain dates.
[26] ts 93.
Mr Hamilton gave evidence that on 17 September 2018, a date he ascertained after going through his bank statements, he went to 'buy some drugs off someone' and drove with Joel Bryce to the shopping centre to pick them up.[27] (The drugs were later clarified to be methylamphetamine.)[28]
[27] ts 93.
[28] ts 222.
Mr Hamilton saw the arrival of the hire car, which parked right next to him. He saw three people inside and he saw Zac get out of the hire car. The other two males remained inside the white car.[29] Mr Hamilton described one of them as 'the guy that I talked to on Facebook to get the drugs', although he did not recognise or know it was him at that point.[30] These two males were subsequently identified by Mr Hamilton as Mr Te Kani and Mr Alec Rowe.
[29] ts 94 - ts 95.
[30] ts 95.
Mr Hamilton described in his evidence how Zac got out of the hire car, came over to Mr Hamilton's car and asked Joel to get out of the car so that he (Zac) could have a word with Mr Hamilton. Mr Hamilton first mentioned that Zac came to the passenger side but then said he was 'pretty sure' that Zac came to the driver's side to ask to have a chat. Joel said he would get out and then he (Zac) went around and into the passenger's side. Joel got out and stood outside.[31]
[31] ts 95 - ts 96 and in cross-examination ts 171.
As to the conversation which he and Zac had inside the Triton, because of the way in which his evidence was given, I consider it is important to set out Mr Hamilton's evidence in full:[32]
[32] ts 96 - ts 97.
Okay. And what did Zac do?‑‑‑Just sort of said he hadn't seen me in a while and basically asked me where Chris was.
Did you know who he was talking about when he asked who Chris ‑ ‑ ‑?‑‑‑Chris, yes, I ‑ ‑ ‑
Where Chris was, I'm sorry?‑‑‑I didn't know where Chris was but I do know who - they were talking about Chris, yes.
Who were they talking about? Well, who was he talking about? It's not they, is it?‑‑‑No. A mutual, like, person we knew a while back.
Do you know the rest of his name?‑‑‑Seabrook.
Chris Seabrook?‑‑‑Yeah.
All right. And what did he say about Chris, if anything?‑‑‑That Chris owed money.
Owed money. Did he say to whom the money was owed?‑‑‑To him, I think.
To him, you think. That's to Zac, you think?‑‑‑Either to ‑ ‑ ‑
Do you remember what words he used?‑‑‑I don't know exactly but I knew that - the words he used were that Chris owed money.
...
All right. Okay. So was there any further conversation in relation to Chris and the matter that he owed money?‑‑‑Well, they wanted me to get in touch with him and I said that I hadn't been in contact with him for a while
Mr Hamilton had a tendency to refer to 'them' and 'they' when giving evidence. It was clarified at this point that when he said that 'they', he was referring to Zac. Mr Hamilton's evidence then continued:[33]
[33] ts 97 - ts 101.
So it's Zac who's talking and what did he say about Chris?‑‑‑That Chris owed money.
Yes?‑‑‑And he wanted to get in touch with him and if I could get in touch with him.
All right. And did you know where Chris was?‑‑‑No. I hadn't talked to him in a long time.
And what did you say to Chris about - sorry, what did you say to Zac about Chris?‑‑‑Yeah, that I - that I hadn't been in touch with him and I don't know how to get in contact with him.
All right. And did Zac then say anything further to you about Chris and the money?‑‑‑Yeah.
What did he say?‑‑‑That I - that I had to get in touch with him and that I owed money too.
So you had to get in touch with Chris and you owed money ‑ ‑ ‑?‑‑‑As well.
‑ ‑ ‑ as well. All right. Did you owe money to ‑ ‑ ‑?‑‑‑I don't believe that I ‑ ‑ ‑
‑ ‑ ‑ Zac or anyone?‑‑‑I don't believe I did.
No. All right. And so when that was said to you, did you reply or what did you say?‑‑‑Well, I wanted to give him my number to be able to get in contact with me because I was flying out ‑ ‑ ‑
Before we get to that, you're asked - you're told that you need to pay some money?‑‑‑Yes
so what was your ‑ ‑ ‑?‑‑‑Well, I asked what for and it was for this replica gun that I had possession of.
All right. Did you speak to Zac about that?‑‑‑Yeah, I said I didn't have it and that I gave it to Chris.
All right. And that's what you've called a replica gun?‑‑‑Yes.
All right. Did you tell - where did you get the replica gun from to give to Chris?‑‑‑I got it from Zac.
You got it from Zac. So you get a gun from Zac. You give it to Chris?‑‑‑Yes, because - yeah.
All right. So did you have any further conversation about the gun at that point with Zac?‑‑‑Well, basically that I needed to pay money for that gun.
All right?‑‑‑Yeah, I did say I would get in contact with him but they wouldn't let me sort of go.
All right. And how long had you had the gun before you gave it to Chris?‑‑‑I'd say it would have been a month or two that I - or a couple of months at least before I gave it to him.
All right. Okay. So Zac is saying that you have to pay some money. Did he tell you how much?‑‑‑No.
No. Was that in relation to the gun?‑‑‑Yes.
Did you know how much the gun was worth?‑‑‑No.
No. All right. All right, so he's asking you for money. What did you say about whether you would pay him any money?‑‑‑Well, I said that I will try and get in contact with Chris, you know, to - for him to be able to pay. I didn't think I had to pay because I thought they were aware that I gave it to Chris because Chris said that ‑ ‑ ‑
Again you said they, they were aware. Who was aware?‑‑‑Well, I'm - yeah, so Zac was aware.
….
Okay. So you thought that Zac knew?‑‑‑Yes.
Yes. All right. And what made you think that Zac knew?‑‑‑That Chris said that he had organised it with Zac's friend - you know, Zac's friend to get rid of the gun.
So you had some information from Chris that suggested that Zac knew. Is that the situation?‑‑‑No, well, he - when I gave it to Chris, I said that, you know, I didn't want it to bite me back on the arse because I was given it by Zac. So I had responsibility of it so I wanted to make sure that they knew that, you know, everything was above board and I ‑ ‑ ‑
Who's they?‑‑‑Sorry, Zac. Yeah.
Okay, Zac?‑‑‑So Zac knew. So he knew so that it wouldn't bite me back on the arse, you know, when it gets sold.
Okay. So, anyway, at this point you were being asked for money. Is that right?‑‑‑Yes.
Okay. So what happened about that?‑‑‑I said that I could give them some but, you know, I would have to come back from work. I had to fly to work. But, yeah, they wouldn't let me.
Why was that? Why couldn't you give them some now or ‑ ‑ ‑?‑‑‑Well, I didn't ‑ ‑ ‑
DAVIS DCJ: When you say, 'them some', who are you talking about?‑‑‑I didn't have any money then so I couldn't ‑ ‑ ‑
Who was asking for money?‑‑‑Zac was.
And it was for a gun?‑‑‑For the gun that ‑ ‑ ‑
The replica gun?‑‑‑ ‑ ‑ ‑ that I had.
We'll just call it the gun?‑‑‑Yeah, that I ‑ ‑ ‑
That he had given to you?‑‑‑Yes.
You say a couple of months earlier?‑‑‑It would have been a long time earlier. They hadn't - they - so ‑ ‑ ‑
Sorry, they? Who?‑‑‑Sorry, yeah, okay. Yeah, so I had that a long time, like, beforehand, the gun, and I gave it away. So I hadn't talked to Zac or anyone for a long time until that day. So basically I gave the gun to Chris and I thought everything was above board and everyone knew, so I was happy to give it away. And then that's when I found out that they didn't know.
O'SULLIVAN, MR: Who are these ‑ ‑ ‑?‑‑‑So that's - that when I - that's when I found out that Zac didn't know about the gun. So Chris basically didn't tell him.
You keep using the word they and there may be a reason for that, but were there other people involved in this transaction other than Chris and Zac?‑‑‑A guy named G.
A guy named G. All right. Okay?‑‑‑But I don't know who he is.
All right. So you've got no money because you - well, you've got no money and you need to fly out to do your work?‑‑‑Yeah.
And what were you going to do about paying any money?‑‑‑Well, all I was going to do is get a hold of Chris, basically. They said that's what they wanted me - to get a hold of Chris to start paying that. And I pretty much said I would give them money so they would get off my back and maybe give them my number so I could organise something maybe when I got home, when I was in a better ‑ ‑ ‑
Yes. Did you regard yourself as owing the money?‑‑‑I didn't think I did, but, you know, I was ‑ ‑ ‑
Well, why did you offer then to pay the money?‑‑‑Well, I felt like I was under threat, you know, because I wasn't allowed to go. I was in the car. I wasn't allowed to leave, you know.
…
So what made you think you weren't allowed to go anywhere?‑‑‑Because I was told. I ‑ ‑ ‑
What was said?‑‑‑He said, 'I don't trust you. I'm not letting you leave. I'm coming with you.'
Okay. So you offered - I think you started to say you offered to give them something?‑‑‑Yes, some money.
Yes, but you - rather than go to where you lived, you offered to do something else?‑‑‑To give my phone number, you know, so ‑ ‑ ‑
Your phone number?‑‑‑ ‑ ‑ ‑ I could contact them later on.
Yes. Again you're saying them?‑‑‑Sorry, Zac, yes.
Zac?‑‑‑Yes.
Mr Hamilton then gave evidence that when he realised he was not going to be let go, Joel got back in the Triton and Mr Hamilton drove back to his house with the hire car following. Zac remained in the front passenger seat and Joel sat in the back.[34]
[34] ts 101.
On arrival at his home, Mr Hamilton gave evidence that he parked in the driveway and the hire car parked behind him. Everyone got out of the cars. It was then that Mr Hamilton recognised Mr Rowe as the guy from whom he had bought drugs before. Mr Hamilton said that he and Joel used to call him 'Half Tooth Holstie' because he had a half tooth, but Mr Hamilton knew him as 'Rowe', from his name on Facebook. He did not recognise the other man (whom Mr Hamilton subsequently identified as Mr Te Kani).[35]
[35] ts 102; and also in cross-examination ts 149 - ts 151 Mr Hamilton maintained he did not recognise Mr Rowe as one of the passengers in the rental car until they got to his house and Mr Rowe got out of the car.
Mr Hamilton then gave evidence of the discussion which took place, which I consider it is important to set out, as follows:[36]
[36] ts 102 - ts 103.
So the five of you are out of the car?‑‑‑Yeah.
And what happens?‑‑‑Basically they're - it was trying to form a plan to ‑ ‑ ‑.
Well, when you're saying they, who says and does what?‑‑‑I don't know who specifically said what but it was - it was about getting money from me. You know, that they wouldn't leave without me - having a plan for me to give them money and not - they wouldn't - they wouldn't leave without taking something from me.
All right. Did anyone say anything to you about that that you can recall, that so‑and‑so said this or that?‑‑‑I'm trying to think. Yeah, I remember Zac saying something about G hanging someone off a - off the side of a building off a ledge, and, you know, like as if something was going to happen to me. That they were going to take my dog, and something about breaking my legs.
Who said that?‑‑‑Zac.
Zac. All right. Okay. Was anything else said by Zac?‑‑‑I'm trying - I can't remember, sorry.
Was any ‑ ‑ ‑
DAVIS DCJ: Sorry, this is all outside the front of your house?‑‑‑This is all outside the front of my house.
And who was standing where?‑‑‑So it was - I think Joel may have went inside, or I can't remember where Joel was standing. But it was basically I was standing here and then the three guys were in front of me.
As to whether there was any discussion about how much money they wanted from him, Mr Hamilton gave evidence that there was no total but he said that he could give them $500 each pay when he got paid, and told them he was pretty sure he only had $100 in the bank at the time. When he was talking about money he was talking to Zac, but the others were there with Zac, all three of them standing in front of Mr Hamilton, outside his house.[37]
[37] ts 103 - ts 104.
Mr Hamilton's evidence was that, on telling Zac that he only had $100 in the bank, Zac told him to transfer it to TK's account. TK was the third man, who at that stage Mr Hamilton did not know. All of them then went inside the house to 'do a transfer'.[38]
[38] ts 104, cross-examination ts 253.
Mr Hamilton explained that rather than sending all the money he had and it going to a wrong account, he wanted to first do a test transfer for 10 cents. Mr Hamilton did that 10 cent transfer after finding out the details of TK's account. TK gave Mr Hamilton those details, although Mr Hamilton was unsure how TK did so, whether by a screenshot, a slip with the account details, or just verbally giving him the details. Mr Hamilton did not think that the 10 cent transaction went through instantaneously.[39]
[39] ts 105.
Mr Hamilton gave further evidence as to what was said to him about somebody dangling someone off a balcony, and what else was discussed. Again it is necessary to set this evidence out in full:[40]
[40] ts 105 - ts 106.
And when was that conversation? Before or after the 10 cent transaction?‑‑‑See, it's all a bit hazy now. It might have been - might have been after.
Mm hmm?‑‑‑Yeah.
All right. So who said what about that?‑‑‑Zac's - Zac's - see, I don't - it's either the one or two. It's either Zac or TK because I know Rowe - Rowe didn't say much
All right. So it's not Rowe?‑‑‑No.
And are you saying you don't know whether it's TK or Zac?‑‑‑Zac. I'm pretty sure Zac that said it.
Yes, you're pretty sure that it's Zac?‑‑‑Yes.
All right. And what was it that was said?‑‑‑That someone was hung off a balcony because they was owed money.
Was the person who was hung off the balcony named?‑‑‑I'm pretty sure, I think, Chris, was it, hung off the balcony? Or G hung someone off a balcony.
So it's G hung someone off a balcony or Chris was ‑ ‑ ‑?‑‑‑Was the one getting hung off the balcony.
‑ ‑ ‑ was hung off a balcony?‑‑‑Yeah.
And what else? You said something else about what happened, that was said?‑‑‑Well, they said that they were thinking of taking my dog and ‑ ‑ ‑
So they - again, this is who?‑‑‑Zac.
Zac says this?‑‑‑Yep, and ‑ ‑ ‑
So what was said about the dog?‑‑‑They - they were going to take my dog.
That they were going to take your dog. Did Zac say‑ ‑ ‑?‑‑‑'We - we were going to take your dog. We were ‑ ‑ ‑'
We will take your dog?‑‑‑Yes, 'We were thinking of taking your dog'.
So he didn't say, 'I will take your dog' He said ‑ ‑ ‑?‑‑‑No, 'We - we will'. Yeah.
We will?‑‑‑'We'll take your dog. We're going to break your legs'.
All right. So something about the - 'We will take your dog', and - and there was something else you said about injury?‑‑‑Breaking my legs.
What was said about that and by whom?‑‑‑Well, it was something - it was - Zac was saying about, 'You - you were lucky. You should have came to deed [sic - me] about the gun'. He was saying, 'You were lucky cos we were all going to come and break your legs'.
Okay?‑‑‑'We were going to find the Asian and break his legs', they said.
All right. So who's the Asian?‑‑‑They referred to me as the Asian.
That's - and they refer to you as the Asian?‑‑‑Mm.
Mm hmm.
DAVIS DCJ: Sorry, what - what did Zac say?‑‑‑He said that because of the gun ‑ ‑ ‑
Yes?‑‑‑‑ ‑ ‑ I - I should have went to him and G just to, you know, to tell them about the gun. That, you know, I gave it to Chris which I thought they already knew because Chris told me that. And they said, 'You should have came. Everything would have been okay but, you know, now we - we were going to come and break your legs. Take your dog and break your legs'.
They mentioned together, taking your dog and breaking your legs?‑‑‑And breaking my legs, yes. 'The Asian. Come and find the Asian'.
O'SULLIVAN, MR: Now, just - can we just sort that out because he's not going to say to you, 'Come and find the Asian'. How did that ‑ ‑ ‑?‑‑‑Well, it was ‑ ‑
Can you just try and remember just what exactly was said?‑‑‑Like, there - he was - he was talking in - you know, like, 'Okay, so you have came and told G and everything would have been okay'.
All right?‑‑‑Yep. And then he goes, 'If - cos you - you know, well, you should of', and I'm trying to think word by word but I can't remember.
That's fine. Take your time and just try and get it in order in your mind?‑‑‑Yeah, okay. Yeah, well, he - yeah, that - that's basically what was said cos I was - I was lucky because they were going to come over, steal my dog and break my legs.
All right?‑‑‑Mm.
So how did you feel about that?‑‑‑I was threatened, yeah.
Mm?‑‑‑I didn't want my dog taken or my legs broken so ‑ ‑ ‑
No, all right. So what happened after that?‑‑‑Zac and I were talking about how we were going to get, you know - or - or how I was going to get the money to him. And I did say every time when I got paid I'd give him, you know, $500 if they're okay with that. And they said, 'Yep', and so once everything was, sort of, cleared out I thought everything was good and all going to go but they said they weren't going to leave without something of mine so that I would make sure that I would pay.
So who said that?‑‑‑Zac.
Zac?‑‑‑Yeah.
And did he say - did he use the word, 'they', or was that just a - the way you were describing it again?‑‑‑Well, yeah, so Zac - Zac said that.
What did they say exactly?‑‑‑He said that they're not leaving without something that they - of mine of value so they, like - so he could make sure I would pay.
So did he say, 'He was not leaving', or 'We were not leaving', or ‑ ‑ ‑?‑‑‑We were not leaving. They weren't leaving, yes.
'We weren't'. So your impression was none of them were leaving?‑‑‑None of them were going to go, no.
Yes, all right. All right. And you didn't have any money to pay at that point?‑‑‑At that point, yes.
So they said they wanted to take something else?‑‑‑Yes, to make sure I'd pay.
So who said what was to be taken?‑‑‑Well, I had nothing of value so they said my car.
So who said - who - who mentioned the car first?‑‑‑Either Zac or TK.
Not sure?‑‑‑Not sure.
All right. So what did you think about that? What did you say about that?‑‑‑Well, I didn't want to because that was my only mode of transport. I needed to use that for work.
Mm hmm?‑‑‑But, you know, Zac did say that if I give him $500 one pay, $500 next pay, I'd get my car back.
So they - it's decided it'll be the car and that's Zac who says that to you or ‑ ‑ ‑?‑‑‑Yeah, well, it's ‑ ‑ ‑
‑ ‑ ‑ it's TK but you're not sure which?‑‑‑I'm pretty sure it was Zac and that TK, sort of, like, approved it ‑ ‑ ‑
Yes?‑‑‑‑ ‑ ‑ saying that was okay.
…
How - how did he indicate he was approving it, TK?‑‑‑With a nod and said, 'Yes, that's okay'
Sorry?‑‑‑With - like, with a nod and saying, 'Yes, it's okay'.
With a nod and saying, 'Yes, it's okay'?‑‑‑And that they're okay with that.
All right. So you saw that and ‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ ‑ you heard that?‑‑‑Yes.
Mr Hamilton then described how his car was taken. He said that he gave them the keys to the Triton because he 'had to hand them over'. He handed the keys over to Zac, explaining he did so because the men said they were not going to leave without something of value. He felt he was in danger and, although the Triton was his father's, giving it to them was literally the only option he thought he had.[41]
[41] ts 110.
Mr Hamilton gave evidence that the three men left the house, Zac driving the Triton and the other two in the hire car. Later that evening Zac returned to the house, in the Triton. This was pursuant to an arrangement which Mr Hamilton was 'pretty sure' had been made before they left, that Mr Hamilton would give them the money which was in his bank account.[42]
[42] ts 112.
Mr Hamilton gave evidence that he made two trips in the Triton with Zac. The first was to go to an ATM at a nearby Puma service station where Mr Hamilton withdrew $100 from his account and gave it to Zac. On this trip Zac drove the Triton.[43] The second was a trip to Mr Hamilton's parents' home so that he could collect a laptop and a hard drive which belonged to Zac's friend. On this trip Mr Hamilton withdrew money out from an ANZ ATM at a Caltex service station near his parents' home. Because Mr Hamilton did not want Zac to go to his parents' house, after they drove to a local IGA store, Zac got out of the Triton and waited while Mr Hamilton drove to his parents' house. He returned to pick up Zac and then returned home, giving the Triton back to Zac.[44]
[43] ts 112 - ts 113 and ts 116 - ts 117.
[44] ts 113 - ts 114.
Mr Hamilton's evidence about these two trips was confusing, but I understood that these two trips took place on the same day of 17 September 2018.[45]
[45] This appeared to be confirmed in cross-examination at ts 250.
Mr Hamilton gave evidence that he made another payment to 'them' on 5 October 2018, after he had been paid. After Mr Rowe had come to his house to ask for money, Mr Hamilton made an ATM withdrawal of $500 and gave that cash to Mr Rowe to give to TK.[46] On this occasion Mr Hamilton spoke to TK on the phone, although he could not remember if TK had called him or Mr Rowe gave Mr Hamilton his phone to talk to TK. The conversation was 'to say that I only need to give another $500 and I'd get my car back'. As Mr Hamilton explained in his evidence, he withdrew cash rather than transferring the money to TK's bank account as he was 'pretty sure' he had lost the numbers, because he did not save them in his banking app.[47]
[46] ts 120 - ts 123 and in cross-examination ts 195.
[47] ts 121 - ts 122.
Mr Hamilton's evidence was that he made a further payment of $500. He could not remember how he made that payment, whether as a cash payment or by bank transfer. However, he gave evidence that he had a discussion with TK about this payment, although he could not remember whether that was a discussion by phone or text. Mr Hamilton said that he thought the transaction was handled by Mr Rowe, and that an arrangement was made to get the money out and meet up with Mr Rowe near the Galleria in Morley. Mr Hamilton parked on the side of the road and Mr Rowe arrived in a taxi. Mr Rowe got out, Mr Hamilton gave him the money, Mr Rowe said that TK was going to get it and then got back into the taxi and left.[48]
[48] ts 123 - ts 124.
During Mr Hamilton's evidence a screenshot from the banking application on his phone (exhibit 2) and bank account statements from his ANZ Access Advantage account were produced (exhibit 5). These show the following:
1.The 10 cent transfer made on 17 September 2018.
2.A withdrawal of $100 made on 17 September 2018, from an ANZ ATM at Beechboro Caltex.
3.A transfer of $100 from one account to another account made on 17 September 2018 (which appears as a debit from Mr Hamilton's ANZ Access Advantage account in exhibit 5).
3.A withdrawal of $500 from an ANZ ATM at Beechboro Caltex, on 3 October 2018.
4.A withdrawal of $500 from a non-ANZ ATM at Puma Beechboro, on 9 October 2018.
After paying the second $500 (or the third payment, taking into account his evidence of the first payment of $100 on 17 September 2018), Mr Hamilton gave evidence that one day after working at Gidgegannup, he returned home to find a note with TK's phone number on it and a card with TK's bank account details on it (exhibit 3). He was told something by his housemate, Joel, about how the note and bank details had got there.[49]
[49] ts 125.
I pause here to note that the bank account details on exhibit 3 are the same details on the card which Mr Te Kani sent by way of screenshot to Mr Hamilton on 19 October 2018 (exhibit 4 - see [67] above).
Mr Hamilton recounted how he tried messaging TK to see if he could get his car back, because he needed it for work. These are the text messages which are contained in exhibit 4, which took place between 19 and 28 October 2018, the details of which I have set out in [67] - [71] above.
Mr Hamilton gave evidence as to the meaning of the following references in that text message exchange:[50]
1.Reference to 'paperwork' is a reference to money.
2.Reference to 'Kao' is a reference to Chris. Kao is his nickname.
3.Where he said 'Yeah, I gave old mate the cash', reference to 'old mate' is a reference to Mr Rowe.
4.'Legen' means 'legend'.
[50] ts 128 - ts 130.
Mr Hamilton's evidence was that he decided to go to the police when he did not get a reply from TK about getting his car back.[51]
[51] ts 125.
There were a number of inconsistencies between what Mr Hamilton said in his evidence and what he had told police. One of these inconsistencies was addressed in examination-in-chief. In his first statement he told police that he had gone to the Noranda Shopping Centre with another friend, Robert Smithers. Mr Hamilton explained that he just got the name wrong and it was actually Joel who was with him on that day.[52]
[52] ts 126.
There was cross-examination of Mr Hamilton by counsel for each of the accused about other inconsistencies between his evidence and previous out‑of‑court statements, as follows:
1.In his evidence Mr Hamilton gave the date of the events as 17 September 2018; in his first police statement he gave the date as 3 October 2018.[53] However, Mr Hamilton explained, more than once, that he was bad with dates and had worked out the dates by reference to his bank statements. He denied matching his story to suit the bank statements, explaining that he knew what happened, but did not know the date or day on which it happened.[54] He was confused about dates, not what happened.[55]
[53] ts 161.
[54] ts 159, ts 160, ts 165 - ts 166.
[55] ts 210.
2.While Mr Hamilton said in evidence that when he drove to the Noranda Shopping Centre Joel Bryce was with him, in his first statement he said that Robert (Smithers) was driving the Triton.[56] Mr Hamilton said nothing about Joel being with him in either his first or second statement. [57]
[56] ts 144.
[57] ts 145.
3.In his first statement, Mr Hamilton had described the first meeting with the men in the hire car as occurring, not at the Noranda Shopping Centre, but in the driveway of his home. The three males got out of the car and Zac then asked him whether he had seen Chris.[58] Mr Hamilton accepted that he had lied in his statement, explaining that he did not want to get anyone in trouble. Mr Hamilton also said that 'I made it … as small as I can because I didn't think it was going to be a big thing. I just wanted to get my car back'.[59]
[58] ts 225 - ts 226.
[59] ts 226 - ts 227.
4.Mr Hamilton said nothing in his first statement about giving Zac (Mr Schicker) $100 on 17 September 2018.[60]
[60] ts 148.
5.Mr Hamilton did not say in any of his statements to the police that he was going to the Noranda Shopping Centre on that day to buy drugs.[61] However, he said that when the detective called him on the phone and asked him what he was there for, Mr Hamilton told him 'to buy drugs'.[62] In fact, in his third statement Mr Hamilton said that he was at Noranda Shopping Centre in order to buy food, as he buys food for Joel before he flies out (for work). Mr Hamilton did not distinctly admit that he had lied to police, explaining that he did buy food that day, too.[63] Later in cross-examination, Mr Hamilton agreed that he did not want to talk to the police about drugs so he chose to leave it out.[64]
[61] ts 152
[62] ts 152.
[63] ts 170.
[64] ts 222.
6.Mr Hamilton said during cross-examination by counsel for Mr Te Kani that he was buying the drugs for himself. While Mr Bryce was with him, 'he doesn't really use it like I do; or I did'.[65] During cross‑examination by counsel for Mr Schicker, it was established that Mr Hamilton had sent a text message to Mr Rowe on 17 September 2018 saying 'I've got a mate who's after 100 worth. I wonder if you could help him out' (exhibit 8).[66] The following exchange then took place:[67]
[65] ts 148.
[66] ts 242 - ts 244; ts 246' Exhibit 8; Re-examination ts 261.
[67] ts 244.
Coming back to your evidence yesterday where you said you were buying the drugs for yourself?‑‑‑Yeah.
Can you tell the court which is the truth?‑‑‑Well, obviously here I was buying it for a mate. That's what it says here.
So your evidence is now today ‑ ‑ ‑?‑‑‑Well, I thought it was for myself. Usually it is for myself.
So you didn't pay attention to the detail ‑ ‑ ‑?‑‑‑Well, if ‑ ‑ ‑
‑ ‑ ‑ when you - when you gave that evidence yesterday?‑‑‑If I was getting it for a mate, it probably would have been for the both of us.
DAVIS DCJ: Who's, 'the both of us'?‑‑‑Whoever - whatever mate I was with at the time. It would have been Joel maybe.
You told me yesterday Joel didn't use drugs?‑‑‑He doesn't do those - these type of drugs, no.
7.Mr Hamilton gave evidence that he had not met Mr Rowe before but had only known him through Facebook.[68] However in cross‑examination by counsel for Mr Schicker, Mr Hamilton agreed that he must have met Mr Rowe previously, since he had purchased drugs from him before 17 September 2018 (as evidenced by the text message exchange he had with Mr Rowe on 17 September 2018).[69]
8.He had never mentioned anything before giving evidence, either to the police or prosecutor, about a threat made to break his legs.[70]
9.In his evidence about the visit with Zac to his parents' house on 17 September 2018, Mr Hamilton said he went there to pick up a laptop and hard drive; in his third statement there was no mention about the laptop to the police. He said he went to his parent's house to pick up 'some stuff' for fly-out day the next day.[71]
10.Mr Hamilton did not tell police about the replica gun in his first and second statements. It was only in the third statement that he spoke about the replica gun. The reason for that, he said, was that he did not want anyone to get in trouble and just wanted his car back.[72]
11.Mr Hamilton's evidence, both in examination-in-chief[73] and cross-examination[74] was that Zac said he would take the car (the Triton) and after two payments of $500, Mr Hamilton would get the car back, and that TK nodded and said 'Yes, that's okay'. In his third statement to police Mr Hamilton mentioned only that TK had nodded.[75]
[68] ts 152; ts 223.
[69] ts 245; Exhibit 8.
[70] ts 203; ts 234 - ts 235.
[71] ts 166 - ts 168; ts 239 - ts 240.
[72] ts 172; ts 231.
[73] See [91] above.
[74] ts 182.
[75] ts 182 - ts 184.
There was much cross-examination by both counsel for the accused regarding the alleged threat about hanging someone over the balcony, which produced both inconsistencies with what he had previously told police, as well as some internal inconsistencies within the evidence given by Mr Hamilton in this trial.
Mr Hamilton agreed that he had made no mention in his first statement about anything being said about someone being dangled over a balcony. Mr Hamilton also agreed with counsel for Mr Te Kani that this was very important. He explained to both counsel he had left that out because he had just wanted his car back, and did not want trouble, or anyone to get into trouble.[76] He disagreed with the suggestion by counsel for Mr Te Kani that he did not mention it because it never happened, and gave the explanation that he was scared. He disagreed with the suggestion that he had mentioned this in his second statement to make his statement look more important or more compelling. He denied making up the statement about someone being dangled over a balcony.[77]
[76] ts 162 - ts 163; ts 233 - ts 234.
[77] ts 162 - ts 163.
Counsel for Mr Te Kani then cross-examined Mr Hamilton about what he had previously said to police about the alleged threat of hanging someone over the balcony. It is necessary, in my view, to set this out in full:[78]
[78] ts 185 - ts 186.
In your second statement, if you can have a look - a quick look at that one, or a long look. I don't mind?‑‑‑Yeah.
Page 7, if you can find that?‑‑‑Yeah.
There you said - can you find that, paragraph 6‑‑‑Mm.
I have also since remembered that on that day the man I know as Luke TK said words similar to, 'One of my mates, G, has hung someone over a balcony over money before.'
?‑‑‑Yeah. I did say it was either Zac or Luke
...
This morning you didn't know. I thought you said it was Zac?‑‑‑Well, there I must have done because there - there I did remember. Because how long ago was this?
Which is true, Mr Hamilton?‑‑‑This was in October. This was in ‑ ‑ ‑
Which is true? Luke said it or Zac said it?‑‑‑Luke said it. Luke said it then. That's what it says here.
Luke said it. So what you said this morning was wrong?‑‑‑Must have been wrong. But I knew one of the two said it.
And also you said:
G has hung someone over a balcony.
?‑‑‑Mm hmm.
But in your third statement - do you remember what you said in your third statement?
Well, firstly, can you remember what you said in your statement? I'm not saying you have to or you don't ‑ ‑ ‑?‑‑‑Well, I can't remember now.
No. Your answer is no?‑‑‑No.
Okay. Well, then look at page 16?‑‑‑Yeah.
Which is paragraph 69. See that?‑‑‑Yeah:
Dangled Chris off a balcony.
Luke said that G had dangled Chris off a balcony and then chucked him in the hotel room and couldn't - wouldn't let him out because he owed G money.
?‑‑‑Yeah.
Is there a reason why you said 'someone' on the second statement, but it was ‑ ‑ ‑?‑‑‑Not that I can remember why, no
O'SULLIVAN, MR: You should give ‑ ‑ ‑
ROBSON, MR: Chris and ‑ ‑ ‑
O'SULLIVAN, MR: ‑ ‑ ‑ you should give him paragraph 68 as well.
ROBSON, MR: In paragraph 68 it says:
Whilst this was going on Zac said, 'Luke, tell him what G said - what G did to Chris last time he saw him'.
?‑‑‑It must have been Chris, but I don't remember why I didn't say Chris:
'One of my mates, G, has hung onto someone over the building before.'
I don't ‑ ‑ ‑
Is ‑ ‑ ‑?‑‑‑‑ ‑ ‑ remember why I didn't say Chris.
In your second statement, paragraph 6, is the reason you said:
G has hung someone -
- because you didn't remember ‑ ‑ ‑?‑‑‑No, I just ‑ ‑ ‑
‑ ‑ ‑ who it was?‑‑‑‑ ‑ ‑ didn't say it.
Sorry?‑‑‑I just - I just didn't say it, I just said 'someone'. I don't think it was because ‑ ‑ ‑.
Why didn't you say ‑ ‑ ‑?‑‑‑‑ ‑ ‑ I didn't remember.
‑ ‑ ‑ who it was?‑‑‑I don't know.
…
You see, earlier on just - I mean this - when I was asking you questions before, you said you didn't want to get Luke or Zac into any real trouble. You just wanted to get your car back?‑‑‑Yes.
But now you're going to the trouble in this second statement of saying something that looks pretty bad?‑‑‑Because it's becoming ‑ ‑ ‑
Do you agree with me?‑‑‑‑ ‑ ‑ it's becoming more of a - you know, it's a thing now, like - before I just wanted to get my car though. Now I just tell them the truth of what happened.
Did you feel compelled to start giving details about things that never happened?‑‑‑No.
Did you feel compelled to - to - to tell the police that it was more serious than it was ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ in your first statement?‑‑‑No.
When counsel for Mr Te Kani cross-examined further about the change in his description from Mr Hamilton's first statement:[79]
Did you feel pressure, not - not illegal pressure, but did you feel pressure in the sense that you - you needed to make this look more serious?‑‑‑No. No, why would I need to make it look ‑ ‑ ‑.
Each time ‑ ‑ ‑?‑‑‑‑ ‑ ‑ more serious? There's no point in me trying to make it more serious. We can see it was trying to be less serious here, less serious, and less serious. But then it becomes the truth ‑ ‑ ‑.
[79] ts 187.
Counsel for Mr Schicker took Mr Hamilton to the above passage from the transcript and then the following exchange took place:[80]
So in saying that, are you saying that previously it had been untrue?‑‑‑Not that it was untrue; it's just that I didn't tell everything.
So you'd withheld some of the truth in the previous versions?‑‑‑I did, yeah.
[80] ts 247.
Mr Hamilton was cross-examined about the person referred to as 'G' and whether he in fact existed. Mr Hamilton gave evidence that he had met this person once, with Zac and Chris. They called him G and Mr Hamilton only knew him as G, and did not know his real name.[81]
[81] ts 163.
Mr Hamilton was asked further questions by each counsel for the accused about the replica gun which was given to him by Zac. Mr Hamilton said Zac had come to his parents' place (where he was then living) about six to eight months before 17 September 2018.[82] Zac simply asked him to 'hold on to it' to 'keep it safe', and he agreed. He did not ask why Zac wanted him to hold onto it. He was not to be paid for this. He did not know what the gun had to be kept safe from. He kept it at his parents' house, in his room.[83] He understood the replica gun belonged to G. He did not ask why he was holding onto G's gun.[84] He did not know how long he was going to have to hold onto the gun - he was holding it for an unknown period of time.[85] He was 'mates' with Zac at the time and that is why he looked after the gun, although Mr Hamilton explained that he had not really seen Zac since then.[86]
[82] ts 249.
[83] ts 249.
[84] ts 174 - ts 176.
[85] ts 177.
[86] ts 174 - 176.
In re-examination Mr Hamilton gave evidence that at the time Zac gave him the gun, he told Mr Hamilton that it was G's gun.[87]
[87] ts 264.
Mr Hamilton expanded upon how this replica gun left his possession and why he gave it to Chris. Chris asked him for it because Chris explained that he and G were going to sell it for money. Mr Hamilton did not check with Zac whether that was okay because he did not have Zac's contact details at that time. He would have to go through Chris to get Zac's contact details. Chris knew Zac and G better than he did, and he thought it was already organised and that everything had been 'sorted'. Mr Hamilton said to Chris, 'As long as they know it's all above board, they know, then I'll give it to you'. And Chris said, 'Yes'. On this assurance, Mr Hamilton gave the gun to him.[88] He assumed everything was above board with the gun he gave away.[89]
[88] ts 177 - ts 179; re-examination ts 265.
[89] ts 194.
In relation to the taking of the Triton on 17 September 2018, counsel for Mr Schicker put to Mr Hamilton that he had agreed to him taking the Triton. Mr Hamilton responded 'Because I felt like I was under threat, yes'. Mr Hamilton agreed he had handed the keys to Mr Schicker, and did not say to Mr Schicker that he did not want him to take the Triton. When asked whether he had communicated to Mr Schicker that he felt threatened, Mr Hamilton responded 'I didn't think it would be needed.[90]
[90] ts 209.
Mr Hamilton was cross-examined about why he did not say anything to his parents when he went to their house on the evening of 17 September 2018. Mr Hamilton explained that he was concerned for their safety,[91] and then that he was scared and did not want any danger to come to them.[92] When it was suggested that the police could have looked after him, Mr Hamilton said he did not want to go to the police because he was scared to.[93]
[91] ts 168.
[92] ts 190.
[93] ts 191; ts 241.
Mr Hamilton was asked by counsel for Mr Te Kani about whether he had got into trouble with his father when the speeding ticket arrived. He denied this. He also denied that the speeding ticket was what caused him to go to the police, saying 'I would have just taken the speeding fine'.[94] Later in cross-examination by counsel for Mr Schicker, Mr Hamilton clarified that by taking the fine, he meant 'that if any points or fines, you know, money would have had to have been paid, I would have paid it', notwithstanding that he was not the driver.[95] When it was put to him that he would have misrepresented the situation to the police, Mr Hamilton then stated that by taking the fine, he would have taken responsibility for it; 'It's, not saying I'd pay the fine and say "Yes, I was driving". No, I would - I would take the fine and then try and sort it out'.[96]
[94] ts 179.
[95] ts 212.
[96] ts 213.
Mr Hamilton was asked whether he had ever had a conversation with Mr Bryce about the speeding ticket, and he said he could not remember. He could just recall speaking to his father about it, which was 'more of giving the fine to me so I could take care of it'. This happened 'a fair while' before Mr Hamilton went to the police. He thought he had given the speeding fine to the police and that was the last he heard of it.[97] Counsel for Mr Te Kani suggested that the main reason Mr Hamilton went to police was because he was in a 'bit of a corner' with the fine, his father was not going to take the points and Mr Hamilton was without a licence. This was denied by Mr Hamilton, who explained again that he just wanted his car back, and as the speeding fine happened, he took the fine with him to the police.[98]
[97] ts 217 - ts 218.
[98] ts 218 - ts 219.
Mr Hamilton consistently denied voluntarily lending his car to either accused or permitting either of the accused to use it while he was away on FIFO.[99]
[99] ts 195, ts 259 - ts 260; and in re-examination ts 267.
Mr Hamilton denied consuming methylamphetamine at his house that day with Mr Te Kani, Mr Schicker and Mr Rowe.[100]
[100] ts 253.
In re-examination two further inconsistencies were established, not only between Mr Hamilton's police statement and his evidence, but also within the evidence he had given earlier.
The first of these inconsistencies related to how much money he had given Mr Schicker and the discussion he had with Mr Schicker about getting his car back. The amount of money he gave Mr Schicker on the day changed from $100 to $500, while the further payments he had to make before he could get his car back also changed. It is best to set this exchange between counsel for the State and Mr Hamilton in full:[101]
[101] ts 262 - ts 263.
You were asked whether you ever told the police you would get the car back if you paid $1,000. Do you remember being asked that - that question by Mr ‑ ‑ ‑?‑‑‑Yes.
Yes. Could Mr Hamilton see the first statement, please.
Would you look at - just first of all satisfy yourself that's the first statement that you made to police. Is that right?‑‑‑Yeah.
On 29 October '18?‑‑‑Yeah.
Could you look, please, at paragraph 38 through to 43?‑‑‑Yeah.
Could you just read those out for us, please?‑‑‑:
He asked how much I could give ‑ ‑ ‑
'How much money'?‑‑‑Yeah:
How much money I could give. I offered him 500 and he agreed. I asked him to drive me to the ANZ ATM. I got into my car and drove us to Caltex on Beechboro Road. It was Caltex near a school. There's an Indian grocery store and bottle shop nearby.
Keep going?
Yes, keep going?‑‑‑Yeah:
I went inside and withdrew 500 from the ATM before getting back into the car and handing Zac the money.
Yes, keep going?‑‑‑Yeah:
And Zac drove me back to my house.
Next one?‑‑‑:
When we got back to my house Zac said, 'Give us another 500 and you can have your car back.' I said, 'Yeah, okay. I'll have to give it you next pay.'
Is that the position? Is that what happened?‑‑‑Yes.
The second inconsistency related to whether or not Mr Hamilton actually took delivery of and had paid Mr Rowe for the drugs he had asked for that day (and related to this, whether he paid Mr Schicker $100 as he had said in his evidence-in-chief).
When cross-examined by counsel for Mr Te Kani, Mr Hamilton agreed that he gave Mr Rowe $100 for drugs that day, and he had taken that money out of the bank.[102] When cross-examined by counsel for Mr Schicker, Mr Hamilton agreed that he had taken $100 out of an ATM that day and used that money to buy the drugs from Mr Rowe.[103]
[102] ts 157.
[103] ts 200.
Later, in cross-examination, Mr Hamilton gave this evidence:[104]
[104] ts 250 - ts 251.
Do you agree that on that day you had two outings from your house with Mr Schicker?‑‑‑Two outings. How do you mean, the first time around the shops and then the second time to my parents?
Correct?‑‑‑Yes.
And when - on the first outing ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ you went to the ATM, didn't you?‑‑‑Yes. I'd say so but to - to buy - yeah, buy the drugs. I would have had to go to the ATM to get money out unless I had cash on me.
That's your evidence?‑‑‑I don't remember, yeah. I may have had the cash on me.
You - do you recall giving $100 cash to Mr Rowe on that day?‑‑‑No.
Well, you agree that you had set out to purchase $100 worth of drugs?‑‑‑That was my intention, it was my intention, it was my intention, yes.
Can you recall, did you have $100 on you?‑‑‑I don't recall if I had it on me. I would say I would but I can't recall what I had in my wallet at that time.
Okay. So you - so to the best - you don't know?‑‑‑Yeah. No, I don't know.
In re-examination counsel for the State attempted to clarify Mr Hamilton's evidence, but in my view, this only led to a further inconsistency:[105]
[105] ts 266.
It was put to you or suggested to you ‑ ‑ ‑?‑‑‑Yeah.
Put to you is the legal way of saying it, but suggested to you that the $100 on 17 September, the day that you met at the Noranda shops, was not to pay for Chris's debt but to pay for drugs that you were to buy from Rowe?‑‑‑Yeah.
So this - we're talking about the $100 that you say was paid to Zac later on in the day?‑‑‑Yeah, because ‑ ‑ ‑
So was it indeed paid to Zac or was it money for Rowe?‑‑‑No, it was paid to Zac. It was initially meant for Rowe but it was paid to Zac because ‑ ‑ ‑
All right, yes?‑‑‑ ‑ ‑ ‑ that transaction didn't happen.
So do you remember when you acquired that 100?‑‑‑I don't remember when I got that 100, no.
When you went with Mr - went with Zac in the evening, and ultimately the IGA, and then to your parents' - - -?‑‑‑Yeah.
- - - did you withdraw any money from an ATM on that ‑ ‑ ‑?‑‑‑I think I may have withdrew some money.
Yes?‑‑‑Yeah, that day.
And when did you give $100 to - to Zac?‑‑‑It would have been in the - - -
Specifically? Early - earlier in the day, when he was there the first time, or the second time?‑‑‑No, it would have been the next time he came and saw me.
So if you had $100 from earlier on, why didn't you give it to him when he was at the house the first time?‑‑‑I don't know.
You don't know?‑‑‑Maybe I didn't have the 100 then, I don't know.
All right. And I think you've told us this. You didn't give $100 to Rowe that day?‑‑‑No.
Mr Bryce
Mr Bryce gave evidence about how he accompanied Mr Hamilton on the visit to the shopping centre. Mr Hamilton was going there to purchase drugs for himself. Mr Bryce explained that he did not partake in methylamphetamine use. He was just 'going along for the ride'. He sat in the front passenger seat while Mr Hamilton drove.[106]
[106] ts 272.
Mr Bryce explained that Mr Hamilton had parked away from the shops and there was a service station and 'little construction site' nearby. The people in the hire car came up. Mr Bryce gave evidence that Mr Hamilton looked a little nervous.[107]
[107] ts 272.
Mr Bryce gave evidence that there were three people in the hire car. One of the men got out and approached Mr Hamilton's car and asked if Mr Bryce could step out of the vehicle so that he could speak to Mr Hamilton. Mr Bryce got out of the Triton and the man, whom Mr Bryce had not seen before, got into Mr Hamilton's car and started talking with him. Mr Bryce stood at the back of the Triton to 'give them privacy'. Although he could hear a conversation going on between Mr Hamilton and this man, Mr Bryce could not hear what words were spoken.[108] The other two men remained in the hire car.[109]
[108] ts 273 - ts 274; cross-examination ts 293 - ts 294.
[109] ts 275.
At the conclusion of the conversation, Mr Hamilton and the man who was talking to him indicated that 'we were leaving the car park and we were going back home'. Mr Bryce got back into Mr Hamilton's car, he believed in the front passenger side. The other man got out and into the back seat. Mr Bryce then said 'or maybe I was sitting in the back seat'. However, the three of them drove in the Triton together from the shopping centre to home.[110] Mr Bryce gave evidence that the other two men followed in the hire car.[111]
[110] ts 276; cross-examination ts 301- ts 302.
[111] ts 278.
On the trip home, Mr Bryce recalled that there was a conversation just between Mr Hamilton and the other man, whom Mr Bryce learned was called Zac. Mr Bryce said that Zac and Mr Hamilton knew each other. The conversation was that a group of people were 'not happy' with Peter because 'he had disappeared from the whole scene year - years ago when he knew them or whatever' (the 'scene' being the drug scene). Those people wanted money from Mr Hamilton and wanted him to pay the money back for something that had happened in the past.[112]
[112] ts 276 - ts 278.
On arrival at the house, Mr Bryce gave evidence that all men got out of the vehicles and went inside the house.[113] Later in cross‑examination Mr Bryce said that everyone got out of the vehicles and were all out the front for a little bit, about five minutes, before going inside into the lounge room. There was a conversation out the front. However, Mr Hamilton did not want to have this conversation outside, because his boss lives in the house at the back, so he wanted to go inside.[114]
[113] ts 278 - ts 279.
[114] ts 303 - ts 304.
Mr Bryce described how things were 'very awkward' and Mr Hamilton looked nervous. Mr Hamilton asked Mr Bryce to stay, which he did.[115]
[115] ts 278 - ts 279; cross-examination ts 309.
In the course of the conversation inside the house, Mr Bryce introduced himself to the three men, whom he had not met before. There was a Luke, and a Zac and the third man, a tall white guy. Mr Bryce and Mr Hamilton called this man 'Half Tooth Holstie' because he looked like a friend of theirs. This man, of course, was later identified as Mr Rowe.
Mr Bryce's evidence of the conversation which took place, mainly between Mr Hamilton and Zac, was as follows:[116]
[116] ts 279 - ts 280.
What happens then and where do you go from there?‑‑‑So we're all just in the lounge room inside and they were talking about how the - you know, the thing about saying - not happy with him saying that they - they could have, you know, implied that they could have broke his legs and took his dog and his car but instead they were going to allow him to pay them $5,000.
And where did you get that information from?‑‑‑Just overhearing the conversation.
All right. Do you remember who said it?‑‑‑It was mainly Peter and Zac talking, yeah.
Yes. Well, did Peter say it?‑‑‑No, Zac had said it.
Zac said it?‑‑‑Yeah.
All right. So what did he say?‑‑‑That they referred to him as the Asian and that they're the people that they consorted with. They weren't happy with him and they were looking for him or something and that they could have - if they wanted to, they could have broken his legs and taken his car and his dog but that instead they were going to do him the favour of letting him pay them back. And that they would then take the Triton just - just until he paid them back or something.
Right. Now, you said there was a reference to the Asian, who's the Asian?‑‑‑Peter was referred to as the Asian.
Peter?‑‑‑Yeah.
He is Asian, is he?‑‑‑Yeah.
Or of Asian background?‑‑‑Yeah.
Yes, all right?‑‑‑Thai, half Thai descent, yeah.
Yes, all right. So this is all said in the lounge room?‑‑‑Yeah.
Yes. What else happens there?‑‑‑So there was only about maybe half an hour or so conversation about that and there was kind of the arrangement that was made. I was just kind of hanging around and was just a bit nervous. I was just kind of there in the room, you know, while it was all happening.
Mr Bryce gave evidence that they were coming to an arrangement for Mr Hamilton to pay $5,000, and the men would take the Triton until he paid it back.[117]
[117] ts 281.
There was discussion about how 'they'll be coming back again to catch him and check in'.[118] Phone numbers were exchanged and Mr Bryce said he gave out his own phone number because of the fact that Mr Hamilton worked away sometimes.[119]
[118] ts 281.
[119] ts 281 - ts 282; cross examination ts 308.
Mr Bryce gave evidence that, at the end of the conversation, everyone left in the two vehicles, different people driving the hire car and Mr Hamilton's Triton. Mr Bryce was not able to say who drove Mr Hamilton's Triton. They left towards the end of the day, around 6.00 pm.[120]
[120] ts 281 - ts 282.
Mr Bryce gave evidence that either on that day or the following day, he, Mr Hamilton and Zac went to Mr Hamilton's parents' place to get a laptop. Zac did not go to Mr Hamilton's parents' place. Mr Hamilton and Mr Bryce dropped Zac at the IGA around the corner from his parents' in the car park, while Mr Hamilton went to get the laptop, which he gave to Zac.[121]
[121] ts 282 - ts 283.
A couple of weeks after this, Mr Bryce gave evidence that when Mr Hamilton was away at work and he, Mr Bryce, was at home, he received a 'brief' visit one evening by two or three of the men. Mr Bryce believed that Zac and Luke made this visit. They arrived in Mr Hamilton's car, and said something to the effect that Peter was late on a payment. They left a note which they asked Mr Bryce to give to Peter. Mr Bryce was shown exhibit 3 and confirmed that was the note and said he believed that the card was given at the same time. According to Mr Bryce, they wanted Mr Hamilton to 'get in contact with them and to pay into the account'.[122] Mr Bryce gave this to Mr Hamilton when he got home.[123]
[122] ts 283 - ts 285; cross-examination ts 313 - ts 315.
[123] ts 286.
Mr Bryce gave evidence that Mr Hamilton's parents were asking about where the Triton was. He overheard Mr Hamilton tell them 'My mate Luke's got it'. According to Mr Bryce this was not, technically, lying because Mr Hamilton has another friend Luke.[124]
[124] ts 285; cross-examination ts 316 - ts 317.
Although Mr Bryce initially said he did not know anything about a speeding fine or traffic infringement, he did give evidence that there 'may have been' a conversation about a fine that Mr Hamilton was 'maybe going to take or something'.[125] In cross-examination by counsel for Mr Schicker, Mr Bryce was asked to explain what he meant by 'a fine Peter was going to take'. Mr Bryce confirmed this was a speeding fine, that one of the men in the group had been 'flashed' driving the Triton and Mr Hamilton had mentioned taking the fine, the points or 'taking the rap' ‑ something along those lines.[126]
[125] ts 285.
[126] ts 315 - ts 316.
Mr Hamilton eventually came clean to his parents about what had happened to the Triton and it was reported stolen. After the Triton was recovered by police, Mr Bryce went with Mr Hamilton to the police and made a statement. That was a statement signed and dated 2 November 2018.
In cross-examination by counsel for Mr Schicker, Mr Bryce gave evidence that before any report was made to the police Mr Bryce had lied to Mr Hamilton's parents, at Mr Hamilton's request, about not knowing where the Triton was and not knowing where Mr Hamilton was. This happened once when his parents came around to the house looking for their son. Mr Hamilton was home but asked Mr Bryce to tell his parents that he was not at home. Mr Bryce answered the door to Mr Hamilton's parents. They asked where Peter and the Triton were, and Mr Bryce said Peter was out and he did not know where the car was. Mr Bryce gave evidence that he felt bad about lying to Mr Hamilton's parents, as he did not like lying.[127]
[127] ts 288 - ts 290, ts 317 - ts 318.
Mr Bryce gave the following evidence in cross-examination:[128]
Okay. Did Pete give you a reason that he came clean with his parents, when he said he came clean with them?‑‑‑Yeah, I just think it had all been going on too long, and he didn't like lying to them, and they were figuring out what was going on anyway, I believe.
Was it about the speeding fine?‑‑‑Yeah, I think that was the - you know, the straw that broke the camel's back, that it was something happened with a fine. I think - yeah, that's right, someone - yeah, someone got - on of the three, I don't know, someone who was driving the vehicle got flashed or something, and then Pete had to explain to his parents, cos the car's registered in his father's name, about what happened there, and I think that's when it all happened, yes
[128] ts 298.
Mr Bryce was asked about whether Mr Hamilton did in fact buy the drugs that he was going to buy that day. Mr Bryce said he did not know if he did, as 'the attention really shifted to them coming back and the arrangement that was made, so I'm not actually sure'.[129]
[129] ts 291.
As to Mr Bryce's own drug use, he gave evidence that he in the past he had smoked marijuana but 'never got into meth'.[130]
[130] ts 292.
Mr Bryce agreed that inside the house the men smoked methylamphetamine, it was used by 'pretty much the group', but Mr Bryce did not have any.[131]
[131] ts 304.
Mr Bryce was asked if he had ever heard of a guy called G. He answered he had, and believed that this was a person these three men had affiliated with, but Mr Bryce did not know G.[132]
[132] ts 293 - ts 294.
Mr Bryce was cross-examined about what, if any, threats were made. He gave evidence that at the shopping centre when he was asked to get out of the Triton so that Zac could talk to Mr Hamilton, Zac made no threat. Mr Bryce did not hear any threats made by Zac to Mr Hamilton during that conversation in the Triton at the shopping centre, as Mr Bryce could not make out any of the conversation; he could hear voices but not any of the words. In the Triton going back to the house, Mr Bryce said there was just talking and catching up, but no threats.[133]
[133] ts 294 - ts 295.
As to what threats were made at the house, Mr Bryce stated:[134]
And what exactly was said by Zac, exactly said by Zac, in terms of any kind of threat in the house?‑‑‑Um - - -
Not during the day, or not implied, but what exactly was said?‑‑‑I don't know exactly what was said, because, like, it was two years ago, you know.
I understand that, for sure?‑‑‑Yeah, like, that - when I say, 'they', or whoever he was affiliated with in the past wasn't happy with him because he disappeared from the scene, and got himself cleaned up and got all out of that scene, or whatever.
Yes?‑‑‑And that - I think the reason that they wanted money from him, I believe from my understanding, was that someone owed money to someone, and they would have thought it - and they wanted to blame him, or thought it was him, or something. Like I said, it was my understanding just from overhearing a conversation, and that. Because I remember Pete saying to me he wasn't happy about having to pay this money, cos he didn't do anything, but he was just going to do it anyway, so they'd leave him alone.
Did it all sound bizarre to you?‑‑‑Yeah.
And what about Luke? Did he say anything specific to Pete?‑‑‑(No audible answer).
By way of a threat, I mean, sorry?‑‑‑No.
All right?‑‑‑I just remember one part saying someone had said - because I remember it stuck in my head, implying that they were doing us a favour by letting - were doing Pete a favour by letting him pay money, instead of just straight up taking his car and breaking his legs, or whatever.
[134] ts 295 - ts 296.
In cross-examination about this Mr Schicker often became defensive and argumentative, which demonstrated to me an unwillingness to answer questions honestly where to do so would or might reflect poorly upon him. This was apparent to me when Mr Schicker was being asked about why he gave the motor vehicle keys to Mr Te Kani, why he could not have made a phone call from prison either to Mr Te Kani or to Mr Hamilton, or why he could not have returned the Triton to Mr Hamilton after moving the furniture.[232]
[232] ts 401 - ts 403.
In addition, more than once when counsel suggested something to him, instead of answering directly, Mr Schicker responded something along the lines of 'This is my evidence, I was there, this is what happened'.[233]
[233] ts 391; ts 396; ts 398; ts 407; ts 408; ts 409; ts 411.
Mr Schicker's evidence that the visit to Mr Hamilton's house on 17 September 2018 was a friendly one and that the Triton was taken from Mr Hamilton pursuant to a friendly loan arrangement is improbable and implausible, and I do not believe him.
As I have directed myself, I need to put that evidence aside and determine whether, on the evidence which I do accept, the State has proved its case against Mr Schicker beyond reasonable doubt.
The evidence from the State
The State's case depends on Mr Hamilton's evidence. It is fair to say, particularly given the passages of the transcript I have set out when summarising his evidence, that Mr Hamilton's narrative was often confusing, difficult to follow and also, at times, internally inconsistent.
There were of course, as I have set out in [105] - [109] above and each of counsel for the accused took me through in closing submissions, a number of inconsistencies between Mr Hamilton's evidence and what he had previously told the police.
Some of these inconsistencies do not cause me to doubt Mr Hamilton's evidence. For example, the inconsistency in the dates between his first and second statement, as I have set out in [105.1] can be explained. It is clear that Mr Hamilton struggled with dates, and in any event there appears to have been no issue, certainly not from Mr Schicker, about the date of 17 September 2018. Similarly, nothing turns on the inconsistency which I have set out in [105.2].
In relation to the inconsistency as I have set out in [105.5], as counsel for Mr Te Kani conceded,[234] it is understandable that Mr Hamilton did not want to mention that the real purpose for going to the Noranda Shopping Centre on that day was to buy drugs.
[234] ts 503.
However, the combination of the other inconsistencies both in the rest of [105] and as I have set out in [106] - [110], plus the internal inconsistencies within his evidence at trial, as I have set in [121] ‑ [126], do cause me to wonder whether the evidence Mr Hamilton gave about the essential elements of these charges - particularly whether a threat was made, and who made it - is truthful, accurate and reliable.
Because of this, when considering the elements of the case which the State must prove, I will carefully consider Mr Hamilton's evidence in light of any inconsistency or inconsistencies and look at whether there is other evidence which I accept and supports Mr Hamilton's version.
I turn now to the evidence of Mr Bryce. Of the four witnesses to the events of this day (Mr Te Kani in his police interviews, Mr Schicker, Mr Hamilton and Mr Bryce), Mr Bryce was in my view the most impressive and convincing witness. He gave evidence in a measured and calm way. He did not exaggerate or overstate matters. He was co‑operative and made concessions where necessary - often a good indication of a truthful and reliable witness.
Counsel for the accused stressed differences between Mr Hamilton's and Mr Bryce's evidence, such as whether Mr Bryce sat in the front or back of the Triton in the car journey from Noranda Shopping Centre, but in my view this is not an inconsistency which makes me doubt either of the men's accounts. While Mr Bryce's evidence differed in some respects from that given by Mr Hamilton, I would not expect these two witnesses to give exactly the same version of the incident.
There were however, some inconsistencies between Mr Bryce's evidence at trial and what he told the police, as I have set out in [155], which I will look at carefully when considering his evidence and whether it supports Mr Hamilton's account.
Findings - count 1
Based on the undisputed facts which I have set out in [54] - [56] (which includes the telephone communications between Mr Te Kani and Mr Hamilton as contained in exhibit 4), together with the evidence from Mr Hamilton and Mr Bryce, I am satisfied that the two accused together took part in a debt collection, demanding money and the Triton for a debt which was not owed by Mr Hamilton.
I am satisfied of the following facts and circumstances:
1.Mr Te Kani, Mr Schicker and Mr Rowe were in the hire car which parked next to Mr Hamilton's Triton in the car park of the Noranda Shopping Centre.
2.The accused Mr Schicker was the only one in the hire car who got out. He approached the Triton and requested Mr Bryce to leave the vehicle so that he, Mr Schicker, could have a 'chat' to Mr Hamilton. (It matters not whether Mr Hamilton was unsure in his evidence as to whether Mr Schicker made that approach and request from the passenger side or the driver's side. This is not an inconsistency which makes me doubt Mr Hamilton's evidence about this.)
3.Mr Bryce got out of the Triton and stood outside while Mr Schicker got into the front passenger seat.
4.A conversation between Mr Schicker and Mr Hamilton took place in the Triton during which Mr Schicker demanded payment of money from Mr Hamilton which he did not owe, but was owed by Chris Seabrook. The justification for the demand made by Mr Schicker was that Mr Hamilton had given the replica gun to Chris.
5.The amount which Mr Hamilton had to pay was not specified.
6.Mr Schicker would not allow Mr Hamilton to leave, nor would he accept Mr Hamilton's offer of providing his telephone number. I am satisfied that Mr Schicker said to Mr Hamilton 'I don't trust you. I'm not letting you leave. I'm coming with you'.
8.When the two vehicles left the Noranda Shopping Centre to travel to Mr Hamilton's home, Mr Hamilton drove the Triton with both Mr Schicker and Mr Bryce as passengers, while the other two men, Mr Te Kani and Mr Rowe, followed in the hire car.
9.On arrival at Mr Hamilton's house, all men got out of the vehicles. Mr Hamilton had a discussion with Mr Schicker, who stood in front of him with both Mr Te Kani and Mr Rowe standing next to him.
10.That discussion related to the money which Mr Schicker had earlier demanded from Mr Hamilton. The demand for money was repeated with:
(a)a request for payment to be made to Mr Te Kani;
(b)a statement that they were not leaving without something of value of Mr Hamilton's to make sure that he would pay; and
(c)a demand that Mr Hamilton provide his Triton as security for payment, coupled with the statement made by Mr Schicker that Mr Hamilton would get the car back after two payments of $500.
11.Mr Te Kani took part in this discussion, indicating his approval of the arrangements for payment by nodding and then by providing his bank account details to Mr Hamilton to enable a test transfer of 10 cents to his bank account.
12.Mr Hamilton handed the keys to Mr Schicker to the Triton pursuant to the demands made for the money and to provide his car as security.
13A further demand for money was made by the two accused when they subsequently visited Mr Hamilton's home and saw Mr Bryce. They told Mr Bryce that Mr Hamilton was late in making payment, handed a note and a card with Mr Te Kani's bank account details to Mr Bryce (exhibit 3), and asked him to give this to Mr Hamilton.
14Mr Hamilton made two payments of $500 which he provided to Mr Rowe, in the expectation that this money would be given by Mr Rowe to Mr Te Kani. (I am not, however, satisfied that Mr Hamilton made a payment of $100 to Mr Schicker on 17 September 2018, because of the inconsistencies in his evidence about this, as I have set out in [121] - [126]).
Mr Hamilton's account of the demand made for money is supported by Mr Bryce's evidence of what he heard discussed, both in the car trip back to Mr Hamilton's house, and again at the house. I accept Mr Bryce's evidence that from what he had heard, a group of people were not happy with Mr Hamilton because he had disappeared from the drug scene, those people wanted money from Mr Hamilton and wanted him to pay the money back for something that had happened in the past.[235]
[235] See Mr Bryce's evidence as I have summarised [131], [135] and in cross-examination [151].
The discussion between Mr Schicker and Mr Hamilton in the Triton was not a friendly 'catch up' between old mates as Mr Schicker suggested in his evidence. The purpose of going to Mr Hamilton's house was not for any friendly chat or to smoke methylamphetamine, but to make an arrangement for payment by Mr Hamilton.
Counsel for Mr Te Kani submitted that the evidence given by Mr Hamilton about the replica gun was implausible. I do not agree. These were men who were involved in the drug scene, both admitting to using methylamphetamine. While more than once during his evidence Mr Schicker said he did not agree with Mr Rowe's drug dealing, Mr Schicker apparently had no difficulty driving Mr Rowe to his drug deal at the Noranda Shopping Centre. It is not fanciful or implausible that Mr Hamilton was asked by Mr Schicker to look after a replica gun and I believe Mr Hamilton's evidence about how he came to give it to Chris. He was generally consistent in his evidence about this, in examination-in-chief and cross-examination.[236] Mr Hamilton may not have known the value of this replica gun, and it may well not have been worth much, but I accept Mr Hamilton's evidence that this was the reason given by Mr Schicker as to why Mr Hamilton owed money. In addition, I consider Mr Bryce's evidence of these people wanting money from Mr Hamilton for something that happened in the past, also supports Mr Hamilton's evidence on the issue of the replica gun.
[236] See examination-in-chief [84] and cross-examination summarised [112] - [114].
The evidence from Mr Bryce also supports Mr Hamilton's evidence about the demand for and the taking of the Triton as 'security' for payment of the money.[237]
[237] Mr Bryce's evidence as summarised [136] and see also [151] and [152].
Mr Bryce's evidence confirms, in my view, that the demand for both payment of money and Mr Hamilton's Triton was made at Mr Hamilton's house. There is a difference in Mr Hamilton's and Mr Bryce's evidence about whether that discussion took place outside the house or inside the house. This difference does not cause me to doubt the veracity of both Mr Hamilton's and Mr Bryce's evidence about the fact that the demands were made. Mr Hamilton's account of what occurred outside the house is believable and I accept that Mr Bryce may have gone inside. I do not have any doubt that the payment of money and delivery up of the Triton were also discussed inside the house, as witnessed by Mr Bryce.
Mr Te Kani's lies, as I have set out in [255] and [256] above, also support the State's case on these issues. The first lie relates to circumstances connected with count 1. The second lie relates to circumstances connected with both counts 1 and 2. Applying the directions I have given myself in [211] - [218] above, I am satisfied that each of these lies arises from a realisation of guilt and a fear of the truth by Mr Te Kani.
In my view, there was no reason for Mr Te Kani to be asking for money from Mr Hamilton, unless it was pursuant to the demands initially made on 17 September 2018 for the money and the Triton as security. There was no reason for Mr Te Kani to be providing Mr Hamilton with his bank account details, unless it was pursuant to the demands made on 17 September 2018 for the money and the Triton as security. The text messages provide significant support for Mr Hamilton's evidence.
I am satisfied beyond reasonable doubt that the demands for both Mr Hamilton's car and money were made, as submitted by the State. I am satisfied beyond reasonable doubt that the two accused demanded Mr Hamilton to make payments to Mr Te Kani, and demanded and took Mr Hamilton's Triton as 'security' for the payments.
I turn now to whether the demands were made with a threat of injury or detriment and, if a threat was made, which of the accused made the threat.
I believe that Mr Hamilton was nervous, as described by Mr Bryce.[238] I also have no doubt that Mr Hamilton was worried about the demands made of him and that he did not want the accused to take the Triton, which was not only the vehicle he used for work, but which was also his father's.
[238] See [128] and [133] above.
However, having carefully considered the inconsistencies and discrepancies in the evidence of Mr Hamilton, I have a reasonable doubt that a threat was made with the demands at Mr Hamilton's house.
As to the first implied threat relied upon by the State, I am not satisfied beyond reasonable doubt that Mr Hamilton was told a story about a person being dangled over a balcony, for the following reasons.
First, Mr Hamilton made no mention of this threat in his first statement. I do not accept his explanation that when he made his first statement, all he wanted was his car back and did not want anyone to get into trouble. I would expect him to relate to the police all of the surrounding circumstances which led to the Triton being taken. If that included a threat, I would have expected this to have been uppermost in Mr Hamilton's mind as part of the surrounding circumstances relevant to how his car was stolen, particularly taken without his consent.
Secondly, Mr Hamilton was unreliable in his evidence in relation to who made the threat. In evidence-in-chief he said he was pretty sure Zac said it.[239] Later in his evidence, when presented with his second statement to the police, he said it was TK who had made the threat.[240]
[239] See [91] above.
[240] See [108] above.
Thirdly, Mr Hamilton was inconsistent about the details of this threat. In his evidence he said that he was told that G had dangled 'somebody' over a balcony. In his third statement to police Mr Hamilton had said that G had hung Chris over the balcony. When presented with that prior statement, Mr Hamilton could not explain why he did not say that it was Chris who had been dangled over the balcony.[241]
[241] See [108] above.
Fourthly, Mr Hamilton was unreliable within his evidence at trial as to when it was said - he ended up not being sure whether it was said before or after the 10 cent transfer.[242]
[242] See [91] above.
In his evidence Mr Hamilton said that the details were 'a bit hazy' because of the effluxion of time. However, as a matter of common sense and logic, if such a threat had indeed been made I am sure that the details would be remembered.
Finally, Mr Hamilton's evidence is not supported by the evidence of Mr Bryce, who gave no evidence of any threat being made about dangling someone over a balcony.
I cannot be satisfied beyond reasonable doubt that there were any words spoken by either or both of the accused which could constitute an implied threat of someone being dangled over a balcony.
I am not satisfied that the other matters relied upon by the State, as I have set out in [247] above, support Mr Hamilton's evidence about the making of this alleged threat. In particular, while I have found that the text exchange in exhibit 4 provides support for Mr Hamilton's account of the demand for payment of money and the taking of his motor vehicle, on a plain reading of their content, they do not provide independent support for the making of any threat.
In these circumstances, I have concluded I am not able to proceed on the basis of the lies told by Mr Te Kani as evidence of any threat or consciousness of guilt in relation to the making of a threat, relevant to count 1.
I turn now to the second threat, said by the State to be implied, that Mr Hamilton's legs would be broken. This is a significant threat of physical injury, yet it was not mentioned in any of Mr Hamilton's statements, nor was it mentioned by Mr Bryce in his statement to the police. If such a threat had been made, as a matter of logic, common sense and experience I would have expected this to have been in the forefront of each of these men's minds when giving an account to the police of the events of 17 September 2018.
The explanation that Mr Hamilton gave about the absence of other important details in his first two statements to the police, that he just wanted his car back and did not want to get anyone in trouble, do not explain his failure to mention this threat when he gave his further, detailed third statement to the police.
It seems inherently implausible that at the time of giving any one or more of his police statements, or in proofing with the prosecutor, Mr Hamilton would not have recalled a threat that his legs would be broken and only recalled it during his evidence at the trial.
While I found Mr Bryce generally credible and reliable, his failure to mention the breaking of legs when making his statement to police raises a considerable doubt as to whether, in fact, such a threat was made.
This is no minor discrepancy that could readily be explained by memory lapse, mistake, confusion or other reasonable cause. In my view it is a discrepancy which goes to the heart of the credibility of Mr Bryce as to whether in fact, any threat was made.
Mr Bryce was also uncertain during cross-examination whether the threat of what was said about breaking of legs and taking the car, happened at the car or in the ride home or at the house.[243]
[243] See [154] above.
My concerns about the reliability and credibility of the evidence of each of Mr Hamilton and Mr Bryce about this alleged threat, affect my assessment of their credibility that threat was made to take Mr Hamilton's dog if payment was not made and he did not provide his car. This is because, on their evidence, the threats of breaking his legs and taking his dog were made together.
The inconsistencies between what Mr Hamilton said in his evidence and what he said to the police, as well as the internal inconsistencies in his evidence as I have identified, are significant. Taken in combination with the other inconsistencies in Mr Hamilton's evidence which I have already addressed above when considering the first threat about hanging someone over a balcony, whether or not he paid for the drugs he was going to buy from Mr Rowe that day, and whether or not he paid $100 to Mr Schicker, there is a reasonable doubt in my mind as to whether any threat was made by either of the accused.
For these reasons, I cannot be satisfied beyond reasonable doubt that any of the threats were made by either of the accused.
There is one final matter I need to address. At the conclusion of the evidence in discussions with counsel, I raised whether the evidence that the accused advised Mr Hamilton his car would not be returned to him until he had made two payments of $500, would constitute a threat of detriment.[244]
[244] ts 567.
Of course the prosecution did not open on the basis that this would constitute a threat of detriment which, in itself, raises an issue of prejudice for the accused.[245] However, I called for submissions about this from counsel for the State and each accused.[246]
[245] Roberts v The State of Western Australia [32]; Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 [138] - [149].
[246] The following submissions were subsequently received - State submissions dated 14 July 2020; submissions on behalf of Mr Te Kani dated 12 July 2020 and submissions on behalf of Mr Schicker dated 14 July 2020.
Having regard to the parties' submissions, in my view the taking of the car on the basis that it would be returned once Mr Hamilton made the payments, does not constitute a threat of detriment. This is because:
1.On the evidence and as I have found, the Triton was being taken as security for the payment of money allegedly owed by Mr Hamilton.
2.The way the State case was both pleaded in the indictment and run at trial, was that demand was made for money and the Triton.
3.To establish the offence of extortion, the demand must be made 'with', or accompanied by, a threat of injury if the demand was not complied with, or threat of detriment if the demand was not complied with.[247] In other words, a threat of injury or detriment must be made in order to obtain the money and the Triton.
4.Accordingly, the detriment would have to be more than having to pay the money as demanded which Mr Hamilton did not owe, or having to provide the Triton for security, as demanded, for money which he did not owe.
5.To constitute a threat of detriment, something had to be said to Mr Hamilton, in the nature of a threat that, if the demand for the Triton as security was not complied with, ie if Mr Hamilton did not hand over the Triton, there would be some detriment to him.
[247] These are the express words set out in s 397(2) of the Code.
In these circumstances any statement that the Triton would be returned after payment was made (or to put it another way, the Triton would not be returned if payment was not made) could not constitute a threat of detriment. It was a statement confirming that the Triton was being taken as security for the payments, which is a demand for the Triton.
I am therefore not satisfied beyond reasonable doubt that the State has proved all of the elements of the offence in relation to count 1. I find the accused not guilty of this count.
Findings - count 2
Turning now to count 2, given my findings and the reasons for them as I have set out in [280] - [289], I am satisfied beyond reasonable doubt that Mr Te Kani and Mr Schicker worked together, taking the Triton as 'security' for money allegedly owed by Mr Hamilton and thus both are principal offenders pursuant to s 7(a) of the Code. Each accused took a part in stealing the Triton.
I am satisfied beyond reasonable doubt that the taking of the Triton from Mr Hamilton on 17 September 2018 was without his consent (as to which, see [291] above).
I will now address the issue of mistake.
The law is that a person who does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist.
Criminal responsibility is based on the facts as an accused person honestly and reasonably believed them to be.
If an accused honestly and reasonably but mistakenly believed that a complainant was consenting to the taking of an item of property, the accused would not be criminally responsible for stealing that thing.
There is no onus on an accused person to prove he had an honest and reasonable but mistaken belief that the complainant was a consenting party. The burden lies on the State to prove beyond reasonable doubt that the accused did not honestly and reasonably hold the belief in question.
The State may discharge this onus by proving either one or both of two things:
1.That the accused, whose case I am considering, did not honestly believe Mr Hamilton was consenting to his car being taken.
2.That his belief was, in all the circumstances, unreasonable. The reasonableness of the accused's belief is judged by the standard of a reasonable or ordinary person of the same age, background and level of intellectual functioning as the accused, and familiar with all the circumstances that were known to him at the relevant time.[248]
[248] Aubertin v The State of Western Australia [2006] WASCA 229 [42] - [44] and [46] (McLure JA).
In the circumstances as I have found them, I am satisfied beyond reasonable doubt that each of the accused did not honestly believe Mr Hamilton was voluntarily handing over the keys to his car and consenting to the taking of the Triton.
I am also satisfied beyond reasonable doubt that such a belief, if the accused did hold it honestly, was unreasonable. No person in the position of either Mr Schicker or Mr Te Kani, having made the demands that they made for both payment of money and the Triton in the circumstances as I have found them, would have reasonably believed that Mr Hamilton was consenting to having his Triton taken.
I therefore find each accused guilty of count 2.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SC
Court Officer5 AUGUST 2020
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