The State of Western Australia v Verboon
[2017] WADC 165
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
PERTH
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- VERBOON [2017] WADC 165
CORAM: TROY DCJ
HEARD: 14-15 DECEMBER 2017
DELIVERED : 20 DECEMBER 2017
FILE NO/S: IND 924 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MONICA ALLISON VERBOON
Catchwords:
Trial of issue - Robbery - Nature of common intention to prosecute an unlawful purpose - Circumstantial evidence - Rule in Browne v Dunn - Turns on own facts
Legislation:
Criminal Code s 8, s 392
Result:
The accused to be sentenced on the basis contended for by the State
Representation:
Counsel:
The State of Western Australia : Ms G Colborne
Accused: Mr M Perrella
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Perrella Legal
Case(s) referred to in judgment(s):
AK v Western Australia (2008) 232 CLR 438
Barca v The Queen (1975) 133 CLR 82
Browne v Dunn (1893) 6 R 67
Dodd v The State of Western Australia [2014] WASCA 13
Higton v State of Western Australia [2016] WASCA 43
MWJ v The Queen (2005) 80 ALJR 329
Peacock v The King (1911) 13 CLR 619
R v Baden-Clay (2016) 258 CLR 308
R v Hillier [2007] 233 ALR 634
TROY DCJ: On 18 August 2017 the accused in this matter Ms Monica Verboon pleaded guilty to two counts on indictment 924 of 2017.
On 14 and 15 December 2017 I presided over a trial of issue to determine the basis of Ms Verboon's culpability on count 1.
Count 1, which pleads an offence contrary to s 392 of the Criminal Code, reads:
On 27 August 2013 at Spearwood Monica Allison Verboon stole from Wade Anthony Richards, with violence, $34,000 in cash, the property of Cancon Proprietary Limited and Cintryl Proprietary Limited trading as Spearwood Tavern.
Ms Verboon's acknowledged culpability arises because of the operation of s 8 of the Criminal Code.
The disputed criminal culpability
Prior to the hearing I sought clarification of the precise basis upon which, on her behalf, it was contended that Ms Verboon's criminal culpability arose.
By email dated 12 December 2017 defence counsel advised me that it was contended that Ms Verboon agreed with her co-offender (and partner) Steven Noakes, that she would leave the till in the bottle shop of the Spearwood Tavern open so as to enable Mr Noakes to steal money from that till. This constituted, from the defence perspective, the common intention to prosecute the unlawful purpose required by s 8. Ms Verboon was working as the duty bar manager at the Spearwood Tavern that night.
As it transpired, according to the evidence given by Ms Verboon, there was no express agreement that she would leave the till open. Rather, she implicitly encouraged Mr Noakes to steal from the till, although she did not do anything herself to further facilitate that theft.
Returning to the written basis of plea as outlined in the email, it was contended that immediately prior to the robbery occurring, Ms Verboon had been in the Tavern office performing her work duties reconciling cash from various tills. In the office were two unlocked safes.
Ms Verboon did not intend or plan for the contents of the safes to be stolen and she did not deliberately ensure that the safes were unlocked to enable Mr Noakes to steal money from them.
The theft of the money from the safes, it was accepted, was a probable consequence of the common intention to steal money from the bottle shop till.
Ms Verboon did not know that Mr Noakes would be armed or that he would detain anybody in the process of stealing money from the bottle shop till.
The point of difference between the prosecution and the defence is that the common intention to prosecute an unlawful purpose contended for by the prosecution was that Ms Verboon would deliberately leave the safes open, so as to facilitate the theft of the much larger amounts of money within the safes by Mr Noakes.
At the commencement of the hearing, counsel for Ms Verboon further accepted that the use of violence by Mr Noakes was a probable consequence of the unlawful purpose, whether that unlawful purpose was to steal from the till or from the safe. Otherwise, of course, Ms Verboon would be not guilty of robbery. It was common ground, however, that it was not a probable consequence that Mr Noakes would be armed.
Mr Noakes pleaded guilty to the offence of armed robbery in June 2014 and was sentenced by his Honour Justice Beech to a period of imprisonment. That period was reduced sharply for reasons of totality.
The onus of proof
It was uncontroversial that an unlawful common purpose to steal from the safes, as opposed to the till, is an aggravating circumstance for sentencing purposes and so the State were required to prove their contentions beyond reasonable doubt.
The State endeavoured to do so by tendering the prosecution brief as a whole, without objection, playing two intercepted conversations between Ms Verboon and Mr Noakes on 1 and 3 November 2013 and tendering two electronically recorded interviews of Ms Verboon respectively 5 November 2013 and 16 March 2016.
Principles applicable to circumstantial cases
The state's case was entirely circumstantial. The following well‑settled principles therefore apply.
Before I could find that Ms Verboon's culpability is as contended by the prosecution, the prosecution must exclude any reasonable hypothesis, or alternative rational explanation, consistent with the culpability contended for by the defence.
In this case the suggested alternative rational explanation is a simple one, namely that Ms Verboon implicitly encouraged Mr Noakes to steal the bottle shop till, containing as it did a certain amount of cash, as opposed to agreeing to facilitate the theft of the much larger amount of cash located in the safes.
My task was to assess whether any explanation offered by the defence, either from answers given in cross-examination of witnesses called by the prosecution, comments by Ms Verboon in the recorded calls and in her two interviews and the evidence given by Ms Verboon, that she only implicitly encouraged Mr Noakes to steal the bottle shop till is one that is reasonably open.
Circumstantial evidence is of course no less valid or cogent than direct evidence: AK v Western Australia (2008) 232 CLR 438 [27].
I cannot be satisfied beyond reasonable doubt that Ms Verboon's culpability is as contended for by the prosecution on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: R v Hillier [2007] 233 ALR 634 [46].
It is important to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Hillier [46].
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would give rise to an inference compatible with the innocence of the accused. Hillier [48].
A circumstantial case however is not to be considered piecemeal. I am required to consider the weight which is to be given to the united force of all of the circumstances considered together: Hillier [48] and the cases there cited.
In evaluating evidence I must decide whether to accept the evidence of a particular fact not by considering the evidence directly related to that fact in isolation but in the light of the whole of the evidence: Dodd v The State of Western Australia [2014] WASCA 13 [130].
I must examine any inference or deduction that I draw. I must see whether it is logical and reasonable. I must ask myself whether there are any other explanations that common sense and human experience tell me are not fanciful, because an inference of guilt cannot be drawn from the surrounding circumstances unless such circumstances as I find to exist exclude any reasonable hypothesis consistent with innocence.
For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury (or in this case a judge presiding over a trial of issue) from finding the prisoner guilty (in this case finding the basis of culpability to be as asserted by the prosecution), if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: R v Baden-Clay (2016) 258 CLR 308 [47] citing Peacock v The King (1911) 13 CLR 619, 661 quoted in Barca v The Queen (1975) 133 CLR 82, 104.
It is not open to me to find that Ms Verboon's culpability is as contended by the prosecution unless, on the totality of the evidence, I am satisfied of that beyond reasonable doubt: Dodd [130].
I am permitted to draw the inference that Ms Verboon's culpability is as contended by the prosecution if this is only rational and reasonable inference open on all the facts and circumstances established by the evidence: Higton v State of Western Australia [2016] WASCA 43 [17] and the cases there cited.
Evidence called by the prosecution
The prosecution called evidence from the two owners of the Spearwood Tavern, Mr James Parker and Mr Tim Robinson. In partnership together, the two men acquired the Tavern in 2009, were the owners as of 27 August 2013 and remain the owners.
The prosecution also called evidence from the only person, other than Ms Verboon, working at the Tavern that night namely Wade Richards. Mr Richards was of course specified as the victim in count 1.
The prosecution also called evidence from three present or former duty managers at the Spearwood Tavern. Ms Tracey Letch was a duty manager as of 27 August 2013 and had been in that role since late 2012/early 2013.
Ms Fiona Smith had been a manager at the tavern prior to the takeover by Mr Parker and Mr Robinson in 2009. Thereafter she was a member of bar staff until she left in early 2010.
Ms Sharron Pou had been a manager at the Tavern between 2009 and 2011/2012.
Finally, the prosecution called the investigating officer Detective Senior Constable Christopher Biggs and through him tendered the following DVDs:
•a recorded conversation between Ms Verboon and Mr Noakes at Acacia prison on 1 November 2013;
•a recorded conversation between Ms Verboon and Mr Noakes at Acacia prison on 3 November 2013;
•an interview with Ms Verboon on 5 November 2013;
•an interview with Ms Verboon on 16 March 2016.
Ms Verboon's evidence
Background
The defence called Ms Verboon to give evidence. I remind myself that no onus of proof rested on Ms Verboon. Her evidence can be summarised as follows. As of 27 August 2013 she was 29 and a single mother. Her son was then aged three. She started to work at the Spearwood Tavern in 2009 as a bar attendant. She was promoted to duty manager in roughly 2012.
She understood the procedures for closing down at the end of the evening from the experience she had accumulated since 2009. Nobody actually walked through anything with her particularly. She had last worked in the tavern about a week before but just as a bar attendant. It had been about a couple of months since she had last worked as a duty manager at the Spearwood Tavern.
Request to work on 27 August 2013
At about 10.00 am on 27 August Mr Robinson called her to advise that Ms Taylor Letch had hurt her lower back and needed to have that shift off. Mr Robinson asked if she could cover that shift. I note that this proposition was not put to either Mr Robinson or Ms Letch in cross‑examination.
Shortly after her shift commenced, Mr Robinson instructed Ms Verboon about emptying the ATM, a task that she stated she had never previously performed. He called her from behind the bar to the ATM. He had a 'cheat sheet' with him and quickly ran through the steps on that sheet concerning opening the ATM including providing the required code.
Conversation with Mr Noakes at the tavern
Ms Verboon accordingly commenced work, at somewhat short notice, at 2.30 pm. Whilst she was working Mr Noakes came to the bar at the tavern to have dinner and to speak with Ms Verboon. This was between 5.30 and 6.30 pm.
He asked Ms Verboon if he could borrow $500. She told him that she did not have that amount of money. I find that Ms Verboon knew that Mr Noakes had various debts at that time but not the full extent of them.
Mr Noakes persisted and asked if she could just take it out of the till. Ms Verboon said, 'No'. She could see that Mr Noakes was looking through the bar at the bottle shop till. He said, 'Can't you just grab it from there?' Ms Verboon said, 'No. I can't'. She testified that in saying that, she emphasised the word 'I' and that there was eye contact between them both.
Ms Verboon testified that there was an unspoken suggestion between them that she could not steal from the till but if that was what he was going to do, he could. When Mr Noakes left Ms Verboon said to him, 'Are you okay? What are you going to do?' He said, 'Just leave it with me', and then left. Her understanding when he left was that she presumed he would walk out the door and that he would drive his car through the bottle shop and then take the bottle shop till as a whole.
Ms Verboon stated that she pleaded guilty to this offence, 'because I knew him to come - for him to be able to come into the tavern and take off with the till'.
Ms Verboon did not suggest in her evidence that she actually did anything to facilitate that theft hence, as I have noted, her suggested culpability differs somewhat from the terms of the email sent on her behalf.
Ms Verboon said that she understood that Mr Noakes would use the $500 to purchase a small quantity of methamphetamine and then deal that to make a large profit which he would then use to discharge debts to people who were threatening him.
Events prior to the robbery
As it turned out Mr Noakes did not then drive his car through the bottle shop and steal the till. Ms Verboon continued with her work in an orthodox fashion until about an hour or an hour and fifteen minutes later, she started to close down the tavern.
Firstly, she took the lounge bar till into the office to reconcile that and put its contents into the main safe. Ms Verboon testified that both safes were unlocked throughout the time that she was at the tavern that day. Ms Verboon then took the cash from the poker machines and the ATM and put that cash into the safes.
Ms Verboon testified that as of 27 August 2013 anyone who was locking or unlocking the coin safe would need to use a key rather than just use a combination. Further, in her first interview she had told the police that sometimes it would take 15 ‑ 20 minutes to open the safe with the key. Those propositions were not put to Ms Letch, Mr Robinson or Mr Parker in cross‑examination.
Having placed the cassettes from the ATM in the coin safe she went back into the bar, removed the TAB till and took it to the office and placed it on the desk. This till contained the largest amount of money of any till.
Ms Verboon leaves the office
Ms Verboon was in the process of counting its contents when she found herself to be distracted by the noise coming from the jukebox. She decided to go and turn the jukebox down so she could concentrate properly.
Ms Verboon accepted that in her interviews she had stated that at the time of the robbery she had reconciled all of the tills, except for the bottle shop till. That differed from her evidence that she had just commenced, but had not concluded, the TAB till reconciliation.
Ms Verboon initially stated that she did not mention going to the jukebox just before the robbery during either interview because it was not something that was in her mind at that time. She then stated that she recalled sitting with the police officers off‑camera before being interviewed, with a map of the tavern pointing out that she was over by the jukebox.
There was no suggestion in either interview by either Ms Verboon or the police officers that there had been such an off-camera discussion. Ms Verboon could not say which interview this conversation preceded. Moreover, it was not put to Detective Biggs in cross-examination.
Ms Verboon stated that it took her less than a minute to get to the jukebox. She had left the safes in the office unlocked because she was about to come back and reconcile the tills. She had presumed however that the office door would have locked behind her. She had flicked the door closed.
Ms Verboon described a locking mechanism whereby if one used a key the door handle would unlock, and once one pulled the key out the door could be closed and it would lock. She grabbed the handle between her fingers and pulled it behind her. Although there was no evidence concerning this, I presume that in that scenario Ms Verboon would have ensured that she took a key with her so that she could get back in.
The robbery
On her return to the office the robbery commenced. Ms Verboon heard the chains from the roller door. She saw a person standing outside the coolroom door. She now appreciates that person was Mr Noakes but she did not recognise him at the time. Mr Noakes pointed something at her and she ran into the spirits room.
Having telephoned Mr Parker and the police, although she could not say in which order, she left the spirit room and went to find Wade Richards. As she ran towards where he was seated she noticed, through her peripheral vision, two people in the office.
There is no evidence that the office door was forced and it follows that on Ms Verboon's evidence, although she thought she had locked the door behind her when she went to the jukebox, she had not.
Analysis
Having considered the evidence I find that the following primary facts are established.
Background
When Mr Parker and Mr Robinson acquired the Spearwood Tavern in August 2009 Ms Verboon was an employee. Following her return from maternity leave she was made a duty manager at some stage in 2012. I find that she worked in that capacity with some regularity before 27 August 2013 although I accept that her ability to work in that role would have been interrupted on occasions by her son's ill‑health.
On any given night only one duty manager would be working. At some stage prior to 27 August 2013 Mr Parker and Mr Robinson had stepped back from a day‑to‑day involvement with the Spearwood Tavern to an extent, although I find that one of them would at that time still always open the tavern and conduct a reconciliation in the morning of the previous day's takings. I find that at that time the strong probability is that they were not routinely attending to close down the tavern.
I find that the ATM had been in place at the tavern for at least a year prior to 27 August 2013. As I have noted Ms Verboon had been a duty manager since some stage in 2012.
I make no finding as to whether Mr Robinson called Ms Verboon at short notice that day to ask if she could cover Ms Letch's shift.
I reject Ms Verboon's evidence, however, that 27 August 2013 was the first time she removed the cartridges from the ATM.
It would, I find, be an extraordinary coincidence that Ms Verboon, having started work as a duty manager in 2012, would be asked to empty the ATM for the very first time at about 3.00 pm on 27 August 2013 and that at about 7.45 pm her boyfriend would go straight to the office containing the ATM cash and steal it.
Emptying the ATM was not a complex procedure, once explained, but it was obviously important given the amount of money in it. I find that Ms Verboon would have, on some occasions at least, worked as the evening duty manager prior to 27 August 2013. Further, she would on those occasions have been responsible for closing the tavern down.
I regard Mr Parker or Mr Robinson as astute, mature and seemingly experienced businessmen. I find it innately implausible that they would not have acquainted all of their duty managers, including Ms Verboon, with the procedures relating to the ATM after it was acquired.
I reject Ms Verboon's observations in interview that it was common knowledge in Spearwood that the safes are always unlocked and that the office door is always open. As she accepted that would defeat the purpose of having a safe.
I am satisfied that shortly after the ATM's arrival either Mr Parker or Mr Robinson explained the procedure in relation to removing the cartridges containing money to Ms Letch. There is no logical reason why the same explanation would not have been given to Ms Verboon prior to 27 August 2013 if, as I have found she was, on occasions the evening duty manager.
I am satisfied that at some stage prior to 27 August 2013 either Mr Parker or Mr Robinson verbally explained the procedure concerning the ATM to Ms Verboon. I reject Ms Verboon's evidence that it was only on the day of the robbery that Mr Robinson verbally explained the procedure for removing the cartridges or cassettes containing money from the ATM to her.
The safes
There were two safes within an office at the Spearwood Tavern. Each could be locked using a combination lock. Knowledge of the combination was restricted to the owners and the duty managers.
One safe was referred to as a coin safe. As its name suggests it would contain coins, up to $2 coins but not notes (aside from overnight when cartridges containing cash from the ATM would be stored within it). It would quite often be left unlocked during the day for the duty manager to go in to change notes into coin for the various tills. At the end of each day cartridges containing cash from the ATM in the tavern were put into the coin safe along with the till from the TAB and it would then be locked.
I have commented on the absence of cross-examination of three prosecution witnesses on the issue of the coin safe locking mechanism. I acknowledge that the well-known rule in Browne v Dunn (1893) 6 R 67 must be applied with care when considering the conduct of an accused's defence in a criminal trial: MWJ v The Queen (2005) 80 ALJR 329 [18].
I am entitled, however, to remind myself that the relevant witnesses were not given the opportunity to respond to the particular evidence led from Ms Verboon. The failure to put matters to these witnesses concerning the difficulties in locking or unlocking the safe, into which the ATM cash would ultimately be placed, may be taken into account by me in assessing the weight to be given to Ms Verboon's evidence on this point.
That is particularly so when a critical issue is why this safe was left unlocked and a particular awkward time-consuming locking mechanism could readily explain why, on occasions at least, this safe might be left unlocked.
I do not accept Ms Verboon's evidence that the coin safe was locked and unlocked using a key and that that sometimes it would take 15 ‑ 20 minutes to open the safe with the key.
I find that the main safe was kept locked, apart from when it was opened at the beginning and end of each working day, unless one of the owners was in the office and needed access to it. I find that if either Mr Parker or Mr Robinson left the office briefly during the day, for example to use a toilet, they would lock that safe. That safe contained the previous day's takings, apart it seems from the TAB till, and any other cash on hand.
As of 27 August 2013 there were no written procedures concerning how the safes were to be operated, how to open and close a till at the tavern or the order in which certain tasks, such as which tills might be reconciled and put away first, were to be done.
I am, however, quite satisfied that either Mr Parker or Mr Robinson would have explained to each of their duty managers, including Ms Verboon, what needed to go into each safe at the end of each night and for each safe to be locked as soon as any items had been placed into it. That was what occurred when Ms Letch commenced to work as a duty manager, as well as another female called Jaime, and there is no logical reason why it should not also have been explained to Ms Verboon.
The reconciliation process
Based on the evidence of Ms Letch I find that as of 27 August 2013 the usual practice was still for the duty manager to reconcile the contents of the tills at the end of the working day. I find that this was a process that would occur in the office.
There were four tills in total, although based on the evidence of Mr Robinson one would not be in use in the early part of the week and in particular on the night in question, being a Tuesday. The tills that were in use were the till from the TAB (the largest of the tills), one from the bar and one from the bottle shop.
The full close‑down procedure involved putting the amount of cash from each till in excess of the starting float into a plastic bag along with a document generated by the till called a 'Y read'. This document records the total amount received into that till that day. Each bag of money from each till would be placed into the main safe and locked.
The till drawer containing the float, for example $250 from a till in the bar, would also be placed in the main safe. The person closing down would also remove the ATM cassettes containing cash from the ATM and put them in the safe which would then be locked.
Based on Ms Letch's evidence, I find that exchanging notes for coins, such coins being sourced from the coin safe, would often occur immediately prior to, but not during, the reconciliation process at the end of the day. I find, however, that Ms Letch's approach, consistent with the instructions she had received, was to keep the coin safe locked when she was conducting a reconciliation. If she needed to access that safe to obtain coins, it would follow that she would unlock the safe, remove any coins she required and then re-lock the coin safe. Ms Letch would then conduct the reconciliation.
I find that Ms Letch based on her experience, and on instructions that she received from Mr Robinson, understood the need to keep the coin safe locked as much as possible at the end of the evening. I find that Ms Letch would bring the contents of the ATM straight through to the office, put it in the coin safe and lock it to shut it.
The amount of money in the bottle shop till
There would always be at least $400 in the bottle shop till. That starting amount, or float, would be supplemented by any cash takings during the working day. I accept Ms Verboon's evidence that there would have been at least $600 in the till. Almost invariably that would be the last till to be closed down. This till could be removed from the bench on which it sat albeit with the use of some force. The amount in the bottle shop till would be relatively modest because, as Ms Verboon acknowledged, Tuesday nights were quiet.
I find that the amount of money in this till was inevitably far less than the money contained in the ATM which was, at the end of the evening, transported to the office to be placed in a safe.
The actions of Mr Noakes and the co-offender
I am satisfied that Mr Noakes and his unknown co-offender did not go to the bottle shop till at any stage when committing the robbery, despite the contended for implicit agreement to target that very till. If they had done so, I am satisfied that the witness Wade Richards could have seen them from his position within the coolroom. Mr Richards did not recall either of the two persons going to that till during the robbery.
Rather, the two intruders went straight to the office where the far larger amounts of money, some $34,000, was to be found.
The two intruders went straight to the office during the only time when Ms Verboon had left the monies from the ATM vulnerable to theft, that is in an office which she had walked away from, having failed to lock the door and having, contrary to every other witness' actual or recommended practice, left the safe unlocked. The window of opportunity, during which Mr Noakes and his co‑offender then commenced the robbery, was only about a minute.
Ms Verboon's absence from the office
In respect of Ms Verboon's evidence that she left the office to turn the jukebox down, I do not accept that she told the police that was the case before one of her interviews. I repeat my observations at [75] - [76] concerning the relevance of the omission to put this aspect to the relevant witness. I find that the assertion that she had told police officers prior to interview that she was on her way back from the jukebox was evidence that Ms Verboon decided to give for the first time in cross-examination and I reject it.
I find that she deliberately absented herself from the office. I further conclude that she did not attempt to lock the door behind her.
Ms Verboon's knowledge that Mr Noakes was one of the intruders
I accept that Ms Verboon appeared to Mr Richards to be shaken and in tears after the robbery so that she appeared to be frightened and scared. I regard this evidence as neutral. Her demeanour could be explicable by the fact that the whole episode was a shocking surprise to her. Or it could be that the actual reality of what she had agreed would occur was more confronting then she expected. Or that she was genuinely concerned for Mr Richards. Or that Mr Noakes went further than she had anticipated. Or that her distress was partially or wholly feigned.
In her evidence Ms Verboon testified that she did not realise that one of the intruders was her boyfriend until he came to her house later the following day. At no stage prior to that point did she connect in her mind the robbery and the conversation that she had with Mr Noakes just over an hour earlier. That evidence is inconsistent with par (8) of her witness statement dated November 2013, reflecting her interview of that date, where Ms Verboon related that at the time of the robbery, 'a small part of me thought that it (one of the robbers) was Steven'.
In any event I regard Ms Verboon's evidence that she failed to make the connection between what would, on any view, have been a significant conversation and a robbery just over an hour later, as innately implausible.
Other matters
I do not draw any inference from the conversation between Ms Verboon and the witness Ms Fiona Smith about the close‑down procedure in approximately June 2016.
I do not rely on any lies impacting on credibility emerging from the interviews nor do I ultimately place any reliance on the covertly recorded conversations. I do not rely on any parts of the prosecution brief other than those parts to which I have made express reference.
Conclusions
In eloquent submissions on behalf of Ms Verboon, defence counsel cautioned against giving way to cynicism. As the learned author of Cross on Evidence (11th Aust ed, 2017) point out at [1110], however, circumstantial evidence derives its main force from the fact that it usually consists of items pointing to the same conclusion. To engage in that process does not involve a preconception to scepticism.
The conclusion urged on me by the prosecution was that Ms Verboon deliberately left the safes open to facilitate the theft of the much larger amounts of money within those safes by her then boyfriend and now fiancé, Mr Noakes.
The items pointing to that conclusion are, to repeat, as follows:
•Ms Verboon had been working as a duty manager for between 8 and 20 months prior to the robbery.
•There were two safes kept in the office at the Tavern. Neither had any particular difficulties in locking and unlocking, providing one knew the code.
•The two owners and the past and present duty managers understood the need to ensure that the safes were secure when they had large amounts of cash within them. I reject Ms Verboon's evidence that she did not.
•The ATM had been in place at the Tavern for about a year prior to 27 August 2013.
•Ms Verboon had removed the cartridges from the ATM prior to that date and had been given appropriate instructions in that regard.
•Either Mr Parker or Mr Robinson had previously explained to Ms Verboon, what needed to go into each safe at the end of each night and for each safe to be locked as soon as any items had been placed into it.
•There would have been about $600 in the bottle shop till as opposed to $34,000 left unguarded in the office by Ms Verboon.
•On 27 August 2013 Ms Verboon was in a serious relationship with Steven Noakes. Mr Noakes was about to be sentenced for drug dealing and had a number of unspecified debts.
•Despite the contended for implicit agreement (as set out above) Mr Noakes and his unknown co-offender paid no attention to the bottle shop till. Rather they went straight to the office where the far larger amounts of money, some $34,000, was to be found.
•They went straight to the office during the only time when Ms Verboon had left the monies from the ATM vulnerable to theft, that is in an office which she had walked away from, having failed to lock the door and having, contrary to every other witness' actual or recommended practice, left the safe unlocked.
•The opportunity for them to do this was only about a minute.
On the evidence as a whole I find that the explanation offered by the defence that Ms Verboon merely implicitly encouraged Mr Noakes to steal the bottle shop till is one that is not reasonably open.
To the contrary, I am satisfied beyond reasonable doubt that the unlawful common enterprise was that Mr Noakes would steal the far larger amounts of cash that should be safely secured and that his partner, the duty manager at the tavern that night, would deliberately facilitate him in that regard. Further, that it was a probable consequence that Mr Noakes would threaten or use violence.
I will sentence Ms Verboon on count 1 accordingly.
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