The State of Western Australia v Westberg - [2010] WASC 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- WESTBERG [2010] WASC 17

CORAM: BLAXELL J

HEARD: 19 & 20 JANUARY 2010

DELIVERED : 9 FEBRUARY 2010

FILE NO/S: INS 80 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LEE KENNETH ARNOLD WESTBERG
Accused

Catchwords:

Criminal law and procedure - Trial by judge alone - Trial on charges of aggravated burglary, armed robbery and grievous bodily harm allegedly committed at home of 81-year-old woman - Concurrent trial of issues following accused's convictions for aggravated burglary and armed robbery committed at home of 78-year-old woman - Turns on own facts

Legislation:

Nil

Result:

Not guilty of counts 1, 2 and 3, but guilty of being an accessory after the fact to aggravated burglary
Guilty of counts 4 and 5 as an accessory and not as a principal offender

Category: B

Representation:

Counsel:

Prosecution : Mr D W A MacLean
Accused: Donna Webb

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Donna Webb & Associates

Case(s) referred to in judgment(s):

Edwards v The Queen (1993) 178 CLR 193

BLAXELL J: Lee Kenneth Arnold Westberg has come before me on an indictment alleging five offences committed in the course of two separate home invasions during August 2008. The first three counts allege an aggravated burglary, armed robbery, and grievous bodily harm committed at the home of an 81‑year‑old woman, to which the accused has pleaded not guilty and stood trial by judge alone. The fourth and fifth counts are an aggravated burglary and an armed robbery committed at the home of a 78‑year‑old woman. The accused was convicted of these offences following his pleas of guilty, but there has been a concurrent trial of the issue whether he was the principal offender.
I now set out the reasons for coming to my verdicts on counts 1, 2 and 3, and my findings in respect of counts 4 and 5.

The counts in the indictment

The indictment alleges that ‑
(1)On 3 August 2008 at Jane Brook, [the accused], while in the place of Mavis Ellen Pilmoor without her consent, committed the offence of stealing
And that [the accused] was armed with an offensive weapon, namely a knife
And that [the accused] was in company with another
And that [the accused] did bodily harm to Mavis Ellen Pilmoor
And that immediately before the commission of the offence [the accused] knew or ought to have known that there was another person in the place
And that Mavis Ellen Pilmoor was of or over the age of 60 years.
(2)On the same date and at the same place as Count 1, [the accused] stole from Mavis Ellen Pilmoor, with actual violence, a purse, a set of keys and money, the property of Mavis Ellen Pilmoor
And that [the accused] was armed with an offensive weapon, namely a knife
And that [the accused] was in company with another
And that [the accused] did bodily harm to Mavis Ellen Pilmoor
And that the place was ordinarily used for human habitation.
(3)On the same date and at the same place as Count 1, [the accused] unlawfully did grievous bodily harm to Mavis Ellen Pilmoor
And that Mavis Ellen Pilmoor was of or over the age of 60 years.
(4)On 8 August 2008 at Carlisle [the accused], while in the place of Maureen Gwendoline Newsham without her consent, committed the offence of stealing
And that [the accused] did bodily harm to Maureen Gwendoline Newsham
And that immediately before the commission of the offence [the accused] knew or ought to have known that there was another person in the place.
And that the place was ordinarily used for human habitation.
(5)On the same date and at the same place as Count 4, [the accused] stole from Maureen Gwendoline Newsham, with actual violence, a handbag and its contents and a gold watch, the property of Maureen Gwendoline Newsham
And that [the accused] did bodily harm to Maureen Gwendoline Newsham
And that Maureen Gwendoline Newsham was of or over the age of 60 years.

The undisputed evidence as to the first home invasion

During the early hours of 3 August 2008 two male intruders entered the home of Mrs Mavis Pilmoor at Jane Brook and committed the offences alleged in counts 1, 2 and 3. Mrs Pilmoor was 81 years of age and lived in the house alone. It is her evidence that she was awoken at 4.00 am when her cat was disturbed by the intruders. She got out of bed to investigate and walked from her bedroom into the family room of the house.
Mrs Pilmoor then turned the lights on and saw a male person standing 2 m or 3 m in front of her. She describes him as being 18 to 19 years old, of slim build and about 170 cm tall. He had black medium‑length curly hair and an olive coloured skin. Mrs Pilmoor also saw a second man on the other side of the family room. The only relevant description she is able to give of the second intruder is that he was slightly taller than the first man but with the same sort of build.
The first man was holding a 30 cm long carving knife in his right hand and he waved it towards Mrs Pilmoor and shouted at her. Mrs Pilmoor backed away into a corridor and then either tripped or was pushed to the floor. The first man then kicked Mrs Pilmoor in the groin and lower back about half a dozen times. The two men then left.
As a result of the kicking, Mrs Pilmoor sustained serious injuries including a fracture to the left hip. However, she was able to drag herself into her bedroom where she activated an emergency alarm that had been installed by the Silver Chain Association. Mrs Pilmoor's daughter Gail was notified of the emergency and arrived at her mother's home very soon afterwards. As a result, the police were called and an ambulance took Mrs Pilmoor to hospital.
The police investigation revealed that the intruders had gained entry via a gate into Mrs Pilmoor's garage, and then through a security screen and solid door leading into the family room. The padlock on the gate had been forced, and the wire on the security screen had been cut to enable manipulation of the lock inside. There was no sign of forced entry through the solid door which according to Gail Pilmoor was normally kept locked. (There is no direct evidence from Mrs Mavis Pilmoor as to whether or not she had locked the door that night, but by reason of the facts that follow I draw the inference that she had.)
On the door mat in front of the security screen the police found four loose keys. These keys came from a key ring which had been kept in Mrs Pilmoor's car parked in the garage. The keys together with a remote control 'beeper' on the key ring provided access to Gail Pilmoor's house. (The only reasonable inference from these circumstances as well as the fact that Mrs Pilmoor's car had been ransacked is that one of the intruders had used the discarded keys in an attempt to gain entry through the locked solid door.)
Mrs Pilmoor's house was located in a cul-de-sac, and was directly opposite a laneway which connected with a neighbouring street. At the nearest end of that laneway, the police found a purse belonging to Mrs Pilmoor together with various of her credit cards, papers, and other items scattered about. Amongst those items were two circular key rings (without any keys attached) as well as a plastic key tag (which is described in a forensic report as having a 'Veterans Affairs logo and a metal ring attached').
The police officers asked Gail Pilmoor to inspect the items at the end of the laneway. According to her, she saw amongst them the remote control beeper which was normally kept on the key ring in her mother's car. The beeper was lying on the ground 'by itself with no ring or keys'. (However, there is no evidence from police officers concerning the beeper, and it was not amongst the items collected for forensic examination.)
Various of the items from the house and the laneway were sent for DNA analysis. No DNA was recovered from swabs of the loose keys on the doormat but a positive result was obtained from one of the key rings. The DNA profile recovered from the key ring matched the DNA profile of the accused. The probability of finding this DNA profile if the cellular material on the key ring had come from someone other than and unrelated to the accused was less than one in 10 billion.
As a result of this DNA match the accused was interviewed by police on 12 September 2008. It is not in issue that the accused told numerous lies to the police including that he was home all night on 3 August 2008, that he did not know where Jane Brook was, and that he had no knowledge of the offences committed at Mrs Pilmoor's house.
The accused was charged with the offences in counts 1, 2 and 3 of the indictment, and some weeks later his lawyer contacted the police to arrange for him to be re‑interviewed. During that second interview (on 12 November 2008), the accused made admissions to the following effect:
-On the afternoon of 2 August 2008, the accused had driven with his cousin 'Shaun' to the house of a drug dealer ('Shane') who had been supplying him with amphetamines. They were in the accused's girlfriend's car. At Shane's house, the accused purchased a 'half weight' of amphetamines for $200.
-The accused and Shaun used the amphetamines while still at Shane's house. Shane then started talking about the 'bikies' being after him because he owed them money, and said that he wanted to sell what drugs he could that night. The three men then went off in the accused's girlfriend's car and were 'cruising around' so that Shane could 'sell some drugs to make money to pay the bikies'. (The accused made contradictory statements as to whether it was him or Shane who was driving (ts 5, 16).)
-In the early hours of the morning, while the accused was driving, he stopped the vehicle (at Shane's direction) at the end of an alleyway in Jane Brook. After stopping the car, the three men had a 'shot' of amphetamine.
-Shane and Shaun then walked off down the alleyway while the accused remained behind in the car. Prior to leaving, Shane had said that he 'wanted to go and sell some more drugs' and the accused believed that that was what he was going to do.
-About 20 minutes later, the two men came 'running back with a handbag' (ts 13). They stopped at the other end of the alleyway, and the accused got out of the car to see what they were doing.
-When the accused approached the other two men they told him that they had broken into a house. The accused responded angrily and said that 'I'm not here for this here, I only come here for drugs'.
-Nevertheless the accused picked up certain items of property that were on the ground including a 'key card, a photo, and a bank paper'. There was then the following exchange (at ts 16 ‑ 17) between the interviewing detective and the accused:
Q.All right, what else did you pick up anything?
A.No not that I remember.
Q.Okay, what about a set of keys?
A.No I don't think I did.
Q.All right, mate your ‑ your DNA was found on key ring?
A.Yep and did that key ring have a photo?
Q.Have a photo on it, a little ‑ a little on the tag?
A.Yep.
Q.I couldn't tell you I haven't seen it personally, I've only seen the photo, so I couldn't tell you, but is that what you think you might have picked up?
A.Yep.
Q.All right, did it have any keys on it?
A.No.
Q.All right, what happened to the keys?
A.I don't know.
Q.Okay. All right, so you - if you need they broke into a house why would you pick the - the stuff up?
A.Because I was checking it out - that's all.
Q.Yeah, did you take any of it?
A.No.
(NB there are inaccuracies in the transcript of exhibit 3 and the above passage has been corrected to accord with the words actually said)
-The three men then drove off and the accused dropped the others home.
Subsequently the detectives interviewed 'Shane' and 'Shaun' but were unable to obtain any evidence of their involvement in the offences.

The undisputed evidence as to the second home invasion

On 13 August 2008 Mrs Maureen Newsham was aged 78 years, and living on her own in a unit at Mars Street Carlisle. Some time before 6.00 am, she got out of bed to unlock the back gate of her property (to allow access by her daughter whom she was expecting). Mrs Newsham then returned inside her unit leaving her back security door unlocked, but a sliding glass door locked. She went back to bed, and shortly afterwards heard an 'almighty crash'.
Mrs Newsham walked out of her bedroom to investigate, and was immediately confronted by a 'big man' of Aboriginal descent. He pushed her backwards and she fell to the floor. The man then jumped over Mrs Newsham, entered the bedroom, and took her handbag as well as three rings from a dressing table. He jumped over Mrs Newsham once again as he left.
Mrs Newsham immediately telephoned the police who arrived within 10 minutes. The police found that the rear sliding glass door had been smashed and that it had a hole big enough to allow entry by the intruder. As a result of her fall, Mrs Newsham had suffered cuts and abrasions to her right foot and lower legs.
While the police were still at the unit (approximately half an hour after the incident) a lady telephoned from High Wycombe to say that the handbag had been found. It is not in issue that the handbag was found in bushland on a vacant block in High Wycombe, and that when found it contained not only items that would normally be there, but also a blue and yellow 'mustang' brand work glove.
A police officer collected the handbag and brought it back to the unit in Carlisle. Mrs Newsham did not recognise the glove at first but then realised it was one of a pair that she had received as a present the previous Christmas. She had not used the gloves but had left them in their original plastic packaging in her back shed. When the back shed was inspected, only one glove (the right hand glove) was there, and it matched the left hand glove found in the handbag.
The left hand glove was submitted for forensic analysis, and a red brown stain on the inside of the cuff gave a positive reaction to a presumptive chemical test for blood. The stain also provided a mixed DNA profile consistent with it having come from at least two individuals. The major component of that mixed profile matched the DNA of the accused. The probability of finding that component of the DNA profile if the cellular material had come from someone other than and unrelated to the accused was less than one in 10 billion.
In her evidence at trial Mrs Newsham further described the offender as being 5'9" or 5'10" tall, 'very dark skinned' with very dark hair and 'well built' (ts 101). However, there is also evidence that on 1 December 2008, when shown a digiboard of 12 photographs of relatively light skinned men (including the accused as photograph number 11), Mrs Newsham indicated that the offender 'could have been' any of photographs 2, 3 or 5 (ts 100).
On 20 November 2008 the accused was interviewed by detectives in respect of the offences committed at Mrs Newsham's unit. It is not an issue that he lied to the detectives by denying any involvement at all in what had occurred.

The other evidence before me

The prosecution has tendered (as propensity evidence) the transcript of proceedings in this court on 4 December 2001 when the accused pleaded guilty to offences which included an aggravated burglary and an armed robbery which had occurred in similar circumstances to the present matters. The victim of the offences was a 78‑year‑old woman who lived alone and could walk only with the assistance of a walking frame. At 9.15 pm on 27 May 2001, the accused jumped the back fence of the complainant's property and knocked on a rear sliding door. When he received no answer he entered the house by which time the complainant had been roused from her sleep. During the confrontation that followed, the accused threatened the complainant with some scissors and she fell to the floor. The accused then removed a watch from the complainant's wrist, and also stole some cash and other items of jewellery.
The accused's evidence at trial as to the first home invasion is largely (but not entirely) consistent with his version of events when interviewed on 12 November 2008. He confirmed that in the early hours of 3 August 2008 he was driving 'Shane' and 'Shaun' around 'selling drugs and shooting up and trying to make some money back because Shane was in debt with some bikies' (ts 115). The accused did all of the driving because he was the only one with a licence and he was getting paid with 'speed'.
After parking the car at the end of the alleyway at Jane Brook, he believed that the others were getting out of the vehicle 'for fresh air or (to) go and sell a bit more drugs' (ts 115). About 20 minutes later he saw the other two men come running back to the far end of the alleyway where they sat or squatted on the ground and searched through a handbag (ts 116).
The accused then got out of the vehicle and 'just joined in and searched too'. However he was also 'shouting at them and swearing at them for doing a crime when we wasn't meant to be doing stealing. We're just going out to sell drugs and that' (ts 116 ‑ 117).
While searching through the handbag, the accused 'touched the key rings and a couple of key cards and that too'. He also picked up a key ring on the ground which he took with him (ts 117). He took the key ring because his own key ring was not big enough to accommodate all of his keys as well as a key tag with a photograph of his daughter which he wished to place onto it. The key ring he picked up was a bigger key ring, and he then and there threaded the keys off his old key ring and threaded them onto the new one that he had stolen. He then threw his old key ring onto the ground (ts 117 ‑ 119, 148 ‑ 149).
The accused has also testified to the effect that when he drove the other two men away from Jane Brook he knew that the stolen handbag must have come from a house that had been burgled.
With regard to the second home invasion it is the accused's evidence that on 13 August 2008 he was living at his girlfriend's house in High Wycombe. Early that morning he drove away from the house in his girlfriend's car with his brother-in‑law 'Cody' as a passenger. After having a 'shot' of amphetamines the two men decided to break into a house to obtain money for more drugs.
The accused then drove the car to 'Belmont' (viz Carlisle) where 'I just pulled over and Cody went for a walk' (ts 124). The accused remained in the car, and 15 minutes later Cody returned with a handbag and wearing a glove.
The accused then drove the car back to High Wycombe where he pulled over on a back street and searched the handbag. While searching the handbag, the accused put on the glove and his reason for this was:
Because the police already got my DNA and my fingerprints and that, so that's why I done it, but ‑ because I thought if I put it on when I searched I won't be able to get caught, yeah (ts 125).
There was money in the handbag, and the accused and Cody used it to buy some 'speed' and marijuana.
The accused acknowledged that he told lies to the police when interviewed about the second home invasion. He told them lies because in a prison environment you 'don't dob people in'. If you do dob people in you become a 'dog' and 'you fight for the rest of your life' (ts 126).
It is also relevant to note the accused's admission during cross‑examination that at the time of the offences in August 2008 he had an amphetamine habit that was costing him $200 per day. He was unemployed at the time and therefore did not have any income to support that habit (ts 147).

The general principles of law that apply

Section 120(2) of the Criminal Procedure Act 2004 (WA) requires that I state the principles of law applied in coming to my verdicts on counts 1, 2 and 3. The most fundamental principle is the presumption of innocence, and the burden on the State to prove each element of each offence beyond reasonable doubt. The presumption of innocence means that if the prosecution fails to bring sufficient evidence in respect of a particular count, or if I am left with a reasonable doubt in my mind as to the guilt of the accused, then the only proper verdict is not guilty.
The State alleges that the accused committed each of counts 1, 2 and 3 as a principal offender in that he was the person who entered the house and became involved in the confrontation with Mrs Pilmoor. However, the accused can also be guilty of each count if he was not the principal offender but made himself a party or accessory to that particular offence. He would have made himself a party if he did or omitted to do any act for the purpose of enabling the principal offender to commit the offence, aided the principal offender in committing the offence, or counselled or procured the principal offender to commit the offence.
I can only find the accused guilty of count 1 as a principal offender if I am satisfied beyond reasonable doubt that on 3 August 2008 he was in the place of Mrs Pilmoor, that he was there without her consent, and that he committed the offence of stealing. Alternatively, if I am satisfied beyond reasonable doubt that the accused was a party to the principal offender doing those things, then he would be guilty of count 1 as an accessory. Those elements alone constitute the offence of burglary, and I can only find him guilty of each additional circumstance of aggravation if I am satisfied as to the existence or occurrence of that particular circumstance and of the accused's connection to it as a principal offender or accessory.
With regard to count 2, I can only find the accused guilty of robbery if I am satisfied beyond reasonable doubt that the accused was a principal offender or a party to the stealing of the various specified items of property from Mrs Pilmoor, and to that being done with actual violence. Similarly, with regard to each alleged circumstance of aggravation, I can only find the accused guilty of that particular circumstance if I am satisfied beyond reasonable doubt in the manner I have specified in respect of count 1.
With regard to count 3, there are three elements that must be proven beyond reasonable doubt. Firstly, I must be satisfied that the accused was a principal offender or a party to the infliction of an injury on Mrs Pilmoor, secondly that that injury endangered or was likely to endanger life or caused or was likely to cause a permanent injury to health, and thirdly that the injury was not authorised, justified or excused by law. It is not in issue that Mrs Pilmoor was of or over the age of 60 years.
In coming to my findings of fact it will be necessary to decide whether I should draw particular adverse inferences against the accused. I can only draw such an inference from facts which I have found on the first place to be established; and there is no room for speculation, conjecture, or for theories unsupported by the evidence. Furthermore, before I draw any inference against the accused, I must be satisfied that it is the only inference which can be reasonably and rationally drawn consistent with the proven facts. If I consider that there is an alternative inference consistent with innocence which can be reasonably drawn and which is open on the proven facts, I should not draw the adverse inference against the accused.
As there is no direct evidence that the accused committed any of the offences in the indictment, the State's case is entirely circumstantial. Accordingly, I am asked to draw an inference that the accused is guilty of each offence from all of the proven circumstances. In deciding whether I can draw that inference of guilt, it is not necessary that each and every fact or piece of evidence relied upon by the State must itself be proven beyond reasonable doubt. I am required to look at the whole of the evidence of the surrounding circumstances and to decide whether the only reasonable inference is that the accused is guilty. If there is any other reasonable explanation consistent with innocence, then I would necessarily be left with a reasonable doubt and it would be my duty to acquit. Put another way, I can only bring in a verdict of guilty if the united force of all of the surrounding circumstances excludes any reasonable inference consistent with innocence, and satisfies me beyond reasonable doubt as to the accused's guilt.
The prosecution also relies upon alleged lies told by the accused during his interviews or evidence which are said to show a consciousness of guilt. However, I can only find that an alleged lie by the accused is inconsistent with innocence and constitutes an implied admission of guilt if I am satisfied as to a number of things. Firstly, there must be independent evidence to prove that the particular statement was indeed a lie. Secondly, I must be satisfied that the lie was a deliberate one. Thirdly, the lie must relate to a material issue which is of significance to the accused's guilt or innocence. Lastly, I must be satisfied that the accused's motive in telling the lie was a realisation of his guilt of the particular offence in the indictment and for that reason was a fear of telling the truth (and was not due to causes such as embarrassment, panic, or a desire to escape an untrue accusation). It is only if I am satisfied as to those four things that I am entitled to treat the lie as evidence helping to establish the guilt of the accused. I must also remember that lies on their own prove nothing. They are only of value by way of support for other evidence, which if accepted, establishes the accused's guilt.
In this case, the prosecution further relies upon propensity evidence which has been received without objection under s 31A of the Evidence Act 1906 (WA). This propensity evidence has come in the form of the transcript of the proceedings in 2001 when the accused was convicted of similar offences against an elderly woman, as well as the evidence of his alleged conduct in each of the home invasions the subject of the present trial (which are said to be cross‑admissible in respect of the other). 'Propensity evidence' is defined very widely by s 31A to include evidence of the character or reputation of the accused or of a tendency that he has or had. Nevertheless, in the particular circumstances of the present case where the identity of the principal offender(s) is the critical issue, I consider that the propensity evidence can only have real probative value if it shows that the accused has a particularly distinctive manner or pattern of offending which was manifested once again in each of the subject offences. Obviously the fact that the propensity evidence shows the accused to be a person of bad character has no probative value in the context of the particular issues in the present case.
Finally, in coming to each verdict, I must guard against the effect of any prejudice or sympathy that I may feel towards anyone involved in this case. I am obliged to put aside any feelings of prejudice or sympathy and to assess the question of the accused's guilt or innocence of each count in the indictment objectively and dispassionately.

The credibility of the accused

The accused has provided explanations (in his evidence and in his video record of interview of 12 November 2008) as to why cellular material with DNA matching his profile was on the key ring found near Mrs Pilmoor's property, and inside the work glove belonging to Mrs Newsham. If I accept his evidence as to either of those matters, or if that evidence raises a reasonable doubt in my mind, then I could not be satisfied that he was a principal offender who committed the relevant home invasion. Accordingly, my assessment of the accused's credibility is of critical importance.
In relation to the first home invasion, it is relevant to note that when the accused was first interviewed by the police on 12 September 2008, he was told that his DNA had been found on 'a little key ring'. After the accused obtained legal advice he was interviewed by the police a second time because he had decided to 'tell them everything'. Although his version of events during that second interview was broadly consistent with his evidence, his explanation for his DNA being on the key ring was significantly different. In this regard he made no mention of replacing his own key ring with one that he picked up off the ground at the end of the laneway. He instead referred to picking up a key ring with 'a photo' on the tag. He also said that he did not take any of 'the stuff' he had picked up off the ground.
In his evidence at trial, the accused's only reference to a key tag was to one with his daughter's photograph which would not fit on his existing key ring. When he picked up a larger key ring in the laneway, he decided to use it for his own keys. He then and there threaded each of the keys off his old key ring and onto the larger ring (ts 149). He threw the old key ring on the ground, thus leaving behind his DNA.
This explanation at trial is not only inconsistent with the previous explanation, but in my view is inherently implausible. The accused claims to have changed the key rings in a place which had good street lighting and was in full view of Mrs Pilmoor's house and of the neighbouring properties (ts 148). It is hardly credible that the other two men would have interrupted their flight to sit or squat in that area while searching through the handbag, or that the accused would have taken the time to laboriously change his keys over to a different key ring in such circumstances. Furthermore, if the accused was truthful and accurate with his evidence, he surely would have remembered changing the key rings at the time of his second interview.
With regard to the second home invasion, I consider that the accused's explanation for his DNA being inside the glove is similarly implausible. He claims to have had the wits to wear the glove while searching through Mrs Newsham's handbag so that his DNA would not be left on the items he touched. However, he disposed of this same glove containing his DNA along with the handbag. It is also my view that the bulky nature of the work glove would have made it highly impractical for use in searching through small items in a handbag.
The accused's evidence bears all of the hallmarks of clumsy attempts to tailor his explanations to fit the known facts. Although there is no independent evidence to conclusively prove that his explanations are lies, I have no hesitation in rejecting them as being deliberately untruthful versions of what occurred.

Findings of fact

My rejection of the accused's evidence concerning the DNA results cannot of itself establish the prosecution's case in respect of either of the home invasions. That rejection cannot even bolster the prosecution's case because there is no independent evidence to prove the lies that I am satisfied he has told (Edwards v The Queen (1993) 178 CLR 193). Accordingly, I must now examine all of the remaining evidence to see whether or not it satisfies me beyond reasonable doubt that the accused is guilty of each of counts 1, 2 and 3 and that he was a principal offender in respect of counts 4 and 5.
With regard to the first home invasion, the only evidence which implicates the accused is the presence of DNA matching his profile on one of the key rings found in the laneway, but there is a good deal of uncertainty as to how that DNA might have got there. I have already found that the loose keys on Mrs Pilmoor's doormat were discarded by one of the intruders when attempting to enter the house through the solid locked door. I also infer from the fact that the door was not damaged that the intruder must necessarily have found a key which fitted the lock. Although the evidence does not establish from where this last key could have come (or where it went), it may well have been attached to the key tag with the 'Veterans Affairs' logo which had its own ring.
The key ring bearing the DNA matching the accused's profile was one of three key rings found in the laneway. In my view, I am not in the position to draw the inference (as the only reasonable inference) that it was that particular key ring to which the loose keys on the door mat had been attached. It is also significant that a forensic police officer took swabs from each of the loose keys, but none of those swabs returned any DNA results. (One would expect that if the person who removed each key from the ring had been barehanded, thus leaving his DNA on the ring, then some of his DNA would have also ended up on at least one of the keys.)
Although it is nevertheless possible that the accused's DNA came to be on the key ring as a result of him removing the keys that were found on the door mat, another possible inference is that this occurred as a result of him touching the key ring for some reason after the offences had been committed and while he was in the laneway.
In my view, the propensity evidence relied on by the State is of little probative value in determining whether or not the accused was one of the two intruders who entered Mrs Pilmoor's house. There is nothing in the circumstances of the accused's offence in 2001, or of the offences against Mrs Newsham, which reveals a distinctive pattern of conduct which would tend to identify him as one of the two principal offenders against Mrs Pilmoor.
Furthermore, Mrs Pilmoor's general descriptions of the first intruder as having a 'slim build', and the second intruder having the 'same sort of build' are inconsistent with the accused's build (which I would describe as fairly large). Similarly, her evidence that the first intruder was aged 18 or 19 is inconsistent with the accused's age of 25 years at that time.
For all of these reasons, I cannot be satisfied beyond reasonable doubt that the accused was one of the two intruders who entered Mrs Pilmoor's house. Nevertheless, he admits driving the two offenders away from the scene in his car after seeing them with Mrs Pilmoor's handbag, and I am satisfied that he was an accessory after the fact to the aggravated burglary.
With regard to the second home invasion, the issue to be determined is whether it was the accused who was the principal offender who entered Mrs Newsham's home. Here again (and for the same reasons) the accused's lies and the propensity evidence do not assist the prosecution's case, and the only evidence implicating him as the principal offender is the DNA found on the glove.
In light of all of the surrounding circumstances, I consider that there are compelling inferences that the principal offender stole the glove from the back shed before entering the house, and that he did so for the purpose of smashing the glass door. The presence of a stain presumptive for blood inside the cuff, is consistent with that offender receiving a slight injury from the broken glass.
The fact that the intruder chose the left‑hand glove and left behind the right‑hand glove gives rise to a compelling inference that he was left handed. However, I have no evidence as to whether the accused is left handed, right handed, or ambidextrous.
The DNA from the stain inside the glove provided a mixed profile, the majority component of which matched that of the accused. However, these facts do not prove that the stain (assuming that it was blood) came from the accused. An alternative reasonable inference is that the stain came from the other person (or persons) who contributed to the DNA inside the glove.
It is very significant that when the glove was stolen it was unused and still in its plastic wrapping. Clearly, this (along with the mixed DNA profile inside the cuff) establishes that at least two persons (including the accused) wore the glove on the night that the offences occurred. Self‑evidently, I cannot be satisfied beyond reasonable doubt that it was the accused who was wearing the glove at the time that the glass door was smashed and the house was entered. An alternative reasonable inference is that it was the co‑offender who first used the glove to break into the unit, and that it was the accused who put it on afterwards. For these reasons I cannot be satisfied that it was the accused who was the principal offender.

Verdicts

It follows from the above reasons that I must find the accused not guilty of counts 1, 2 and 3 of the indictment, but guilty of being an accessory after the fact to the aggravated burglary of Mrs Pilmoor's house.
It also follows that the accused is guilty of counts 4 and 5 as an accessory and not as the principal offender.