The State of Western Australia v Yarran

[2021] WADC 31

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- YARRAN [2021] WADC 31

CORAM:   BOWDEN DCJ

HEARD:   30 & 31 MARCH 2021

DELIVERED          :   8 APRIL 2021

FILE NO/S:   IND 231 of 2019

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

JERRY ROBERT YARRAN

Catchwords:

Criminal law - Trial by judge alone - Aggravated robbery - Stealing a motor vehicle

Legislation:

Criminal Procedure Act (2004) (WA)

Result:

Not guilty on count 1
Guilty on count 2

Representation:

Counsel:

Applicant	:	Mr S D Packham
Accused	:	Mr C Y Stockdale

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	Aboriginal Legal Service of Western Australia (Inc)

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

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Domican v The Queen (1992) 173 CLR 555

DW v The State of Western Australia [2011] WASCA 52

Edwards v The Queen (1993) 178 CLR 193; (1993) 68 A Crim R 349

Festa v The Queen (2001) 208 CLR 593

Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389

Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394

NAD v The State of Western Australia [2013] WASCA 2

Parker v The Queen (Unreported, WASCA, Library No 960740, 20 December 1996)

Peacock v The King [1911] HCA 66; (1911) 13 CLR 619

Piccolo v The State of Western Australia [2007] WASCA 149

R v Baden-Clay [2016] HCA 35

R v Kotzmann (No 2) [2002] VSCA 21; (2002) 128 A Crim R 479

R v Merritt [1999] NSWCCA 29

Raux v The State of Western Australia [2012] WASCA 1

Shepherd v The Queen (1990) 170 CLR 573; (1990) 51 A Crim R 181

Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319

WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

Weglewski v The State of Western Australia [2020] WASCA 28

BOWDEN DCJ:

On 8 April 2021 I orally delivered these reasons for judgment.  The written reasons which follow have been edited to remove the specific address of the witness for privacy reasons.  The judgment has been suppressed pending the finalisation of other charges against Mr Yarran.

1. In this matter it is alleged in count 1 that on 1 December 2017 at Wembley, Mr Yarran stole from Mark Anthony Kenny, with violence, a grey BMW 5-Series sedan bearing registration 1CYJ218, the property of Mark Anthony Kenny.

2. Two circumstances of aggravation are alleged the first being that Mr Yarran pretended to be armed with an offensive instrument, namely a knife.

3. The second alleged circumstance of aggravation is that Mr Yarran did bodily harm to Mark Anthony Kenny.

4. Count 2 alleges that on the same date and at the same place Mr Yarran stole a motor vehicle, namely a grey BMW 5-Series sedan bearing registration 1CYJ218, the property of Mark Anthony Kenny.

Trial by judge alone

1. An order that the trial be heard by judge alone was made by his Honour Chief Judge Sleight on 7 April 2020 pursuant to s 118 of the Criminal Procedure Act2004 (WA).

Brief overview of the parties case

Principles of law

1. The trial proceeded on 30 and 31 March 2021 at the Perth District Court.

2. The law and procedures applying to this trial is the same as would have applied had the trial been before a jury pursuant to s 119 of the Criminal Procedure Act.

3. As a matter of law the following principles apply.

4. Mr Yarran is presumed to be innocent of the offence.

5. Mr Yarran is not required to prove his innocence or to prove anything or to give or call evidence in his defence.  The burden of proving guilt rests on the State.

6. The State discharge its burden by proving each and every element of the offence.  Proving some elements but not others does not suffice.  Mr Yarran is to be acquitted if there is a reasonable doubt as to any of the elements of the offence.

7. The standard of proof is proof beyond reasonable doubt.  That is the heaviest burden of proof known to law.  Establishing that guilt is more likely than not or it is possible that Mr Yarran is guilty or probable that he is guilty does not suffice.  Proving strong suspicion does not suffice.

8. The State do not need to prove beyond reasonable doubt each and every thing that their witnesses say but they must prove beyond reasonable doubt each and every element of the offence.

9. The verdict must be based solely on the evidence presented at the trial.  The evidence consists of the witnesses' answers to questions under oath or affirmation, the exhibits, the agreed facts and my physical observations of the witnesses.  Counsel's questions, submissions, comments and observations are not evidence.

10. Any publicity about Mr Yarran or anyone or anything connected to this case must be ignored.  I am not aware of any such publicity.

11. As a matter of law each count must be considered separately and a separate verdict is required in respect of each count.  A verdict of guilty or not guilty on one count does not necessarily mean that the same verdict is reached in respect of the remaining count.

12. The verdict must be reached without prejudice, sympathy, speculation or conjecture and based solely on the evidence.

13. During the trial I was told by defence counsel that Mr Yarran was remanded in custody.  The fact that Mr Yarran has been remanded in custody is not evidence of his guilt and does not support the State's case in any shape or form whatsoever.  It does not lead me to draw any adverse inference against Mr Yarran.  It is irrelevant and I put it out of mind.

14. Evidence led at the trial established that Mr Yarran had previously been arrested.  The police officers were cross‑examined by defence counsel as to the information police completed at the time of that arrest relating to Mr Yarran's physical attributes.  The fact that Mr Yarran had previously been arrested is not evidence of guilt, it is not evidence which strengthens the State's case in any shape or form whatsoever.  It does not lead me to draw any adverse inference against Mr Yarran.  It is irrelevant and I put it out of mind.

15. During Mr Yarran's evidence he admitted that he had stolen other property not the subject of any charges before me.  That evidence is admissible when I consider the credibility of Mr Yarran's evidence.  The fact that he has stolen property not the subject of charges before me is, like the evidence that he has previously been arrested and is currently on remand, not evidence that he is guilty of either of the offences and is not evidence which supports the State's case or adds weight to the State's case and cannot be used by me to say that he is guilty of either of the offences before me or that he is the type of person who is likely to have committed either offence.

16. The court must not speculate or guess about matters or look for theories not supported by the evidence.

17. The court, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which does not exactly represent what either party [has] said':  Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14]; DW v The State of Western Australia[2011] WASCA 52 [22]; Raux v The State of Western Australia[2012] WASCA 1.

18. I may draw inferences from proven facts.  An inference is a logical deduction from the facts that have been proven.  In drawing inferences I do not consider the facts in isolation but consider the combined weight of the facts which I find proven.

19. In a circumstantial evidence case I can only be satisfied of guilt if the combined weight of the circumstantial evidence establishes beyond reasonable doubt that only one inference can be drawn, and that inference is that Mr Yarran is guilty of the offence: Shepherd v The Queen (1990) 170 CLR 573; (1990) 51 A Crim R 181.

20. Guilt must not only be a rational inference but the only rational inference that the circumstances enable me to draw: R v Baden-Clay[2016] HCA 35. The State must exclude all reasonable hypothesis consistent with innocence before I could convict: R v Baden-Clay.

21. It is not for the defence to establish that some inference other than guilt can or should be reasonably drawn from the evidence or prove particular facts that would tend to support such an inference: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 105; R v Baden-Clay [62].

22. The bare possibility of innocence should not prevent a finding of guilt if the inference of guilt is the only inference open to a reasonable man upon consideration of all the facts established by the evidence: Barca v The Queen, R v Baden-Clay; Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661.

23. When looking to see if there is a hypothesis consistent with innocence, the hypothesis of innocence must be more than mere speculation or conjecture: R v Baden-Clay [55]. The hypothesis to be reasonable must possess some degree of acceptability or credibility and not be fanciful, impossible, incredible, not tenable, too remote or too tenuous: Parker v The Queen (Unreported, WASCA, Library No 960740, 20 December 1996); Piccolo v The State of Western Australia [2007] WASCA 149 [281].

24. The individual facts from which inferences are sought to be proven by the State do not have to be proven beyond reasonable doubt unless that individual fact is an element of the offence or an indispensable link in the chain of reasoning towards the inference of guilt: Shepherd v The Queen; Chamberlain v The Queen(No 2) (1984) 153 CLR 521; Edwards v The Queen (1993) 178 CLR 193; (1993) 68 A Crim R 349; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389.

25. The standard of proof of the individual facts which are not elements of the offence or indispensable links in the chain of reasoning towards the inference of guilt has been described as a 'different but unexplained standard': R v Merritt [1999] NSWCCA 29.

26. The court must find those facts proven before they can be considered in combination with other facts: NAD v The State of Western Australia [2013] WASCA 2 (the direction to that effect being approved by the Court of Appeal) or, put another way, the individual facts from which the inferences are sought to be proven must be proven to the courts satisfaction: R v Kotzmann (No 2) [2002] VSCA 21; (2002) 128 A Crim R 479; Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394. A submission that such facts need to be proved on the balance of probabilities was rejected in R v Kotzmann (No 2) [492].

27. I may accept or reject the whole or part of the evidence of any witness.

28. It is the witness's evidence given on oath or affirmation at this trial which I must consider.  If a witness has made a statement out of court or given evidence under oath on a prior occasion that is not evidence of the truth of what was said on those prior occasions unless the witness adopts that evidence or statement in this trial.  Otherwise any inconsistency shown by a prior statement or evidence is only relevant to the assessment of the witness's credibility.  Whether the inconsistency affects the witness's credit and, if so, how it affects the witness's credit is a matter entirely for me.

29. In determining whether I am satisfied beyond reasonable doubt of Mr Yarran's guilt I must not be concerned with the consequences of my verdict one way or another.

30. Mr Yarran's evidence is to be assessed in the same manner as the evidence of any other witness.  I can accept all that has been said.  I can reject all that has been said.  I can accept part of what he said.

31. If I accept Mr Yarran's evidence which is essentially that he did not commit this offence, then he must be found not guilty.  Even if I have difficulty in accepting his evidence but find what he said might be true or a reasonable doubt is raised in my mind by any of the evidence adduced at the trial, Mr Yarran must be found not guilty.  Even if I do not believe what Mr Yarran had to say, that does not mean by that fact alone I find him guilty.  I put his testimony to one side and ask myself whether, based on the evidence that I do accept, the State has proven guilt beyond reasonable doubt.

32. Any alleged lies told by Mr Yarran were not relied upon by the State in opening or closing as Edwards type lies and thus showing a consciousness of guilt and therefore being evidence from which guilt could be inferred.

33. If I reach a conclusion that Mr Yarran has deliberately lied that is not evidence of the guilt of Mr Yarran of any of the charges.  It is not evidence that it is capable of supporting an inference of guilt but it is a factor I may take into account in assessing the credibility of his evidence.

34. I should only accept evidence which I find to be truthful, that is, honestly given, reliable and accurate.  The court must be aware that an honest witness doing their very best to assist the court can be mistaken and inaccurate.  A dishonest witness setting out to deliberately mislead the court can be convincing.  The court must consider and assess the credibility or believability of each witness and the weight to be given to their evidence.

35. It is not a question of whether I prefer the evidence presented by the prosecution over the evidence of the defence.  It is quite possible to prefer the evidence of the prosecution over that of the defence but still have a reasonable doubt.  I can only convict if I am satisfied that Mr Yarran is guilty of the offence beyond reasonable doubt and that is only established if the State prove beyond reasonable doubt each and every element of the offence then being considered.

Elements of the offence

1. The date and place alleged on the counts on the indictment are not elements of the offence.  They do not have to be proven beyond reasonable doubt.  They are simply particulars given to Mr Yarran so he knows the date and place where the offence is alleged to have occurred.

2. The elements of each offence that the prosecution must prove beyond reasonable doubt are as follows.

Count 1 - Aggravated armed robbery

1. To convict Mr Yarran of the offence of aggravated armed robbery the State must prove each and every element of that offence.

2. The first element the State must prove is that Mr Yarran stole from Mr Kenny, a grey BMW 5-Series sedan registration 1CYJ219.

3. To prove that Mr Yarran stole that motor vehicle the State must in turn satisfy beyond reasonable doubt of each of the following:

   1.that Mr Yarran drove that motor vehicle;

   2.that he drove the motor vehicle without the consent of Mr Kenny; and

   3.that his driving of that motor vehicle was unlawful in the sense it was prohibited by law and not excused by law.

4. Secondly, that at the time or immediately before or immediately after the stealing Mr Yarran used or threatened to use violence to Mr Kenny.

5. Thirdly, that the violence was used to obtain the car or to prevent or overcome resistance to it being stolen.

6. Fourthly, that the motor vehicle was the property of Mark Anthony Kenny.

7. If the State prove each of these four elements beyond reasonable doubt, Mr Yarran would be guilty of the offence of robbery.

8. If the State do not prove any one of these four elements beyond reasonable doubt, Mr Yarran would be entitled to be acquitted.

9. If the State prove beyond reasonable doubt that Mr Yarran is guilty of robbery, the circumstance of aggravation referred to in the indictment must be proven by the State beyond reasonable doubt.

10. Each circumstance of aggravation must be considered separately and each circumstance of aggravation must be proven by the State beyond reasonable doubt.

11. The first circumstance of aggravation the State must prove beyond reasonable doubt is that Mr Yarran pretended to be armed with an offensive instrument, namely a knife.

12. In this regard the State must satisfy me beyond reasonable doubt both that Mr Yarran pretended to be armed with a knife and a knife is an offensive weapon.

13. To pretend to be armed means that he must have pretended that he had a knife available for immediate use.

14. An offensive weapon is an article capable of being used for an offensive purpose, even though it might be capable of being used for an offensive purpose, and for which Mr Yarran intends to use for a  non‑offensive purpose, that is he intended to pretend to use the knife to inflict injury or pretended to threaten to inflict injury with the knife if the need arose.

15. The second circumstance of aggravation the State must prove beyond reasonable doubt is that Mr Yarran did bodily harm to Mark Anthony Kenny.

16. In this regard the State must satisfy me beyond reasonable doubt both that Mr Kenny suffered bodily harm and Mr Yarran caused that bodily harm.

17. Bodily harm in law is defined as a bodily injury which interferes with health or comfort.

18. Bodily injury refers to a physical disorder of the body, that is some damage to the bone, muscle, tendon, skin or organ or part of which the human body is constructed.

19. The State must prove that Mr Kenny suffered a bodily injury and that the bodily injury interfered with health or comfort.

20. A bodily injury can cause pain, but a sensation of pain itself and without more is not bodily injury.

21. The question of whether Mr Yarran caused that bodily harm is determined by applying common sense to the facts.

22. Mr Yarran's action do not have to be the sole or only cause of the bodily harm but his actions must be a significant or substantial cause of the bodily harm.

Count 2 - Stealing a motor vehicle

1. The State must establish beyond reasonable doubt each of the following.

2. Firstly, that Mr Yarran either used the motor vehicle or took the motor vehicle for the purpose of using it or drove or otherwise assumed control of the vehicle.

3. Secondly, that he did that act without the consent of Mr Kenny.

4. Thirdly, that his use, taking, driving or otherwise assuming control of the motor vehicle was unlawful.  In this regard, unlawful means something that is prohibited by law and not excused by law.

The evidence

Mr Cyril Watson

1. Mr Watson's statement was read by consent.

2. Mr Watson is 71 years of age and lives at [REDACTED] Lake Monger Drive, Wembley.

3. About 5.40 pm on 1 December 2017 he was lying on the bed in his bedroom when he saw two dark skinned males both quite tall and skinny with black face coverings, short black hair and wearing all black clothes in his house.  He said one of the males was slightly taller than the other.

4. Mr Watson asked what they wanted and they rushed into his room and yelled out a number of times that they wanted cash.

5. Both males then walked out of the room.

6. Mr Watson stayed in the room, a few moments passed and he could not hear any noise and thought they may have left.  He called out but received no reply.

7. He then used his phone to dial 000 and spoke to the operator.

8. The taller male then returned to his room, snatched the phone from him and threw it onto the ground.

9. Mr Watson told them that they had better get out of the house as he had just called the police who were nearly there.

10. Both males ran off out of the room.

11. It is an agreed fact that Mr Watson's phone call was made at 17:59:04.

Mr Colin Francis Stewart

1. Mr Stewart is 35 years of age and works as a cartographer for a government agency.

2. On 1 December 2017 he was travelling to his home in Kewdale at around about 6.00 pm to 6.30 pm.

3. He was in the right hand turn lane at the intersection of Orrong Road and President Street waiting to make a right‑hand turn from Orrong Road into President Street.

4. As he went to make his turn into President Street his entry into President Street was blocked by a dark grey/silver BMW which was on the wrong side of President Street.  The BMW was in the very lane that he wished to turn into.

5. Mr Stewart described the driver as having dark skin, being Aboriginal or Middle Eastern origin, medium build, not obese nor thin.  He had a dark bandana across the face covering the mouth and nose area.

6. Mr Stewart did not recall the person's hair being long and could not recall any clothing or the colour of the clothing.

7. Mr Stewart saw the male for about 30 seconds and the driver was the only person in the car.

1. The BMW then moved out of President Street and turned right into Orrong Road and headed towards the city along Orrong Road.  The vehicle was being driven quickly and accelerated quickly.  Mr Stewart described the vehicle as 'driving like it was stolen' and as being 'pushed'.  The BMW then turned left from Orrong Road into Briggs Street.

2. Mr Stewart continued onto his home, rang the police and reported what he had seen.

3. It is not in dispute that his phone call was made at 18.24.

4. Mr Stewart gave the police a partial number plate and it is an agreed fact that the number he gave to the police was 1CYJ.

5. Mr Stewart said he rang the police around about five minutes after he saw the car.

6. I find Mr Stewart to be an honest, credible and reliable witness giving his evidence as best he could to assist the court.

Mr Mark Anthony Kenny

1. Mr Kenny is a 56‑year‑old electrical engineer who resides at [REDACTED] Lake Monger Drive, Wembley.

2. On 1 December 2017 he had been to work, then to a funeral in Cottesloe and had made his way home.  He arrived home just before 6.00 pm and was driving his BMW 5-Series 520D motor vehicle, registration number 1CYJ218.  His vehicle was in very good condition with no damage either to the interior or exterior.  Mr Kenny said he was the only person who drove his BMW other than the mechanic when the vehicle was serviced.

3. As Mr Kenny approached his residence he drove past [REDACTED] Lake Monger Drive which is literally two houses away from his residence.  He saw one male about 6 foot tall on the Lake Monger Drive service road.  The male was wearing dark black clothing and was walking quickly.

4. Mr Kenny stopped at the bottom of his driveway, got out of the vehicle, checked his mail box, then got back into his car and drove up his driveway and into his open garage.

5. He parked his vehicle inside the garage, stopped the car, opened the door and started to get out.

6. As he got out he noticed a man around about two metres away.  Mr Kenny said it was quite bright and he was facing directly at that man and had a good view of him.  He had never seen that person before but was of similar build and wearing similar clothes and looked the same as the person he had seen outside [REDACTED] Lake Monger Drive as he drove up to his residence.

7. He said the man had a dark handkerchief over the lower part of his face from the bridge of his nose down beyond his chin.  He said that the handkerchief was dark and seemed to have a swirly pattern on it.

8. The man was wearing dark clothing, dark jeans, had a t-shirt or top with short sleeves, was solid build with a well‑built frame, not overweight with an athletic build.

9. He said the man was dark skinned.  He could not see his face but saw the colour of his arms.  He said there was nothing distinctive about his face or neck and he did not see anything below the bridge of the man's nose and was unable later on to help the police draw a sketch because of that fact.  He said the handkerchief covered the front of the man's neck but did not seem to cover the sides of the neck.

10. Mr Kenny said the person did not have any accent and therefore he assumed he was Australian.  He said that the man was at least 6 foot or 183 cm tall, that he was a little bit taller than Mr Kenny who said his height was 6 foot but not a lot, may be 5 cm or more.

11. Mr Kenny said the man had short black hair and had no features which stood out.  He did not see a backpack or bum bag.

12. He said that the person said to him virtually straight 'give me the keys, I have a knife.'

13. Mr Kenny saw the person holding something under his t-shirt that made the t-shirt stick out around about the midriff range.  Mr Kenny was naturally concerned for his own safety.

14. Mr Kenny was out of the car when the man spoke to him and the door was still open.  Mr Kenny tried to get back into the car but the person grabbed him before he could close the door.

15. At the time he was grabbed, Mr Kenny had made it back into the driver's seat and the man commenced to punch him repeatedly in the face.  Mr Kenny put his arms up to protect his face and a couple of blows hit his arms but some blows hit his face just below his nose knocking his teeth in and breaking bones in his mouth and causing bruising to his face.

16. Mr Kenny said the man grabbed him by the left wrist and physically pulled him out of the car, as he did so Mr Kenny's watchband snapped and his watch went up his arm causing injury to his arm.  The man flung him to the garage floor where he landed on his hip.

17. While he was on the garage floor, Mr Kenny said he was kicked to the head, the back and the side.  He told the man to take the car.  The offender said 'give me the key'.  Mr Kenny tried to explain he did not know where the keys were.

18. Mr Kenny was able to get to his feet and the man had hold of his arm and put his other hand into his pocket but was unable to find the key.

19. Mr Kenny put his hand in his pocket but could not get the key.  Mr Kenny then got half into the car with the man was still holding his arm and looked into the centre console then he double checked his pocket and located the keys and gave them to the man.

20. As Mr Kenny got out of the car he grabbed his jacket and stood next to the car.  The man was still holding his arm.  The robber tried to start the car whilst standing outside by pushing the start button however, the car would not start.  The robber then put his foot on the brake and the car started.  The robber got in the car and Mr Kenny backed away.

21. Mr Kenny dialled 000 literally whilst the car was reversing out of the garage into the turning area of his driveway and, having done so, the robber then drove his vehicle out of the driveway and headed east towards the city at a normal place.  Mr Kenny said he could see his now stolen BMW as it went past the third house to the east of his residence.

22. Mr Kenny rang the police and it is an agreed fact that the phone call was made at 18:03:24.

23. Mr Kenny said his vehicle did have some cash in it being coins and some notes for parking purposes but he had no idea how much was there and it was not a significant amount.

24. When shown photographs of the vehicle which showed a water bottle,  some tissue, a towel and some material from the funeral being in the back driver's side footwell, he said the photograph did not depict where he had left those items.

25. He could not recall whether the coins and notes were in his car when it was returned to him.

26. Mr Kenny did not notice any tattoos or any scarring on the robber.

27. Mr Kenny was an impressive witness.  He was measured in his answers in both evidence-in-chief and cross-examination.  I find Mr Kenny to be an honest, truthful, credible and reliable witness.  I accept his evidence and accept he was endeavouring to assist the court as best he could.

Dr Wade

1. Dr Wade's medical report was read by consent.

2. Dr Wade is a doctor at Royal Perth Hospital and said that Mr Kenny attended Royal Perth Hospital on 1 December 2017.

3. Dr Wade did not see Mr Kenny but compiled the report from the medical records of the hospital.

4. She said the following  injuries were noted:

   1.Tenderness and bruising over the hip.

   2.Abrasions to the right forehead and the left shin.

   3.A right infraorbital bruising with swelling and tenderness.

   4.Swelling and tenderness above the top lip.

   5.The two frontal upper incisors were loose and pushed back.

   6.One left lower incisor was loose.

   7.Multiple small abrasions to the left medial forearm.

   8.Small abrasions to the back of the fifth digit, palmar aspect.

   9.Left lateral thoracic back abrasion.

5. Mr Kenny was treated with analgesics, given head injury advice and sent for a dental review.

6. In the doctor's opinion, the nature of the injuries were consistent with having been inflicted as alleged and were of such a nature as to interfere with health or comfort of Mr Kenny.

Mr Rino Trolio

1. Mr Trolio's statement was read by consent.

2. He is 48 years of age and resides in Coogee and is the owner of a 2008 grey BMW registration number 1CYJ335.

3. In 2017 Mr Trolio was employed on a fly‑in fly‑out basis and on 1 December 2017 was away working when his vehicle was at his home address in Coogee.

4. He was not aware of any reason why his vehicle would be in the Carlisle or Kewdale area, and  the only other person who had access to his vehicle was his wife Maria who had long dark hair at that time.

Mr Gavin Trotter

1. Mr Trotter's statement was read by consent.

2. He is 36 years of age and resides in Ocean Reef.  He is the registered owner of a 2008 grey BMW 323i sedan, registration number 1CYJ221.

3. In 2017 he was employed as a fly‑in fly‑out worker in a remote country location.  However, on Friday, 1 December 2017 he was at his home.

4. He said he had no reason to drive in the Carlisle or Kewdale area and he rarely travels south of the river.  He says that as of Friday, 1 December 2017, he was 35 years of age and Caucasian.

Mr Anthony Drakeford

1. On 1 December 2017 Mr Drakeford was living at [REDACTED] Gravity Street, Beckenham.

2. He left the house about 6.30 pm with his wife and one of her friends to walk their dogs.  They walked down to Woodlupine Brook Reserve (the Reserve) and were on their way back to their house after walking for about 20 minutes when he saw a vehicle in the cul‑de‑sac travelling about 30 - 40 km per hour.

3. It was a BMW vehicle which he described as a silver grey sedan.  He was about 50 m away and saw the vehicle go up on the kerb then drive literally through a copper log knocking it over and it then drove down and parked at the back of the fence line, approximately behind number [REDACTED] Gravity Street.

4. Mr Drakeford said that when the car stopped the driver got out of the car by the driver's door window literally by climbing through it.  The driver took a couple of steps away from the car then returned to the car, lent through the window with his torso inside the car then took off on foot walking quickly away but not running.

5. Mr Drakeford said that the only person he saw was the person who was driving the vehicle.  That person had dark clothing on with no bright colours, and described the person as having olive skin, Middle Eastern or Malaysian and accepted that he was skinny.

6. Mr Drakeford was pretty sure that the driver had a hoodie but he could not see if the hoodie was up or down when the person was driving but said that when the driver left the car the hoodie was up.  Mr Drakeford said there was nothing distinctive about the driver's face or hair.

7. He said the person was taller than 173 cm describing him variously in his evidence as 180 cm, 5 foot 8 inches to 5 foot 9 inches, close to 5 foot 9 inches or maybe 5 foot 10 inches.  He agreed that his description was a bit of a guess.  He said that his description given to the police that the person was 5 foot 8 inches to 5 foot 9 inches was what he estimated at the time and more likely to be accurate.

8. Mr Drakeford thought the person had long sleeves with the sleeves down.  He said the person was medium build, not overweight, nor heavy set or super thin.  He agreed that he previously described the person as skinny and accepted that is the description he used when he made that statement to the police on 21 August 2018 when the incident was fresher in his mind.

9. Mr Drakeford said that after observing the vehicle he walked to his house, obtained his phone and went back to the car.  When he got back to the car the engine was still running.  He tried to turn the engine off, and used his shirt to try and open the car door but he could not.  He looked in the back of the vehicle and saw some identification but it did not have any phone numbers of anything of that nature on it.  He then took photos of the vehicle (exhibits 9.1 and 9.3) and rang the police and started to walk back to his home and had lost sight of the car for about 10 - 15 seconds before the police arrived.

10. It is not disputed that Mr Drakeford rang the police at 18:51:28.  The photos of the car that Mr Drakeford took are date stamped 6.40 pm (exhibits 9.2 and 9.4).  Mr Drakeford said his phone was accurate within a few minutes and these photos were taken about 5 - 10 minutes before he rang the police.

11. I find Mr Drakeford to be an honest, truthful, credible and reliable witness giving his evidence as best he could to assist the court.

Senior Constable Ball

1. Officer Ball has been a forensic investigator with the WA Police Force for approximately eight and a half years.

2. On 4 December 2017 he attended the police holding yard and examined the BMW in question.

3. He took a number of photographs (exhibit 10) and took swabs that were later analysed for DNA from various parts of the motor vehicle.  The photographs show the areas swabbed.  Of significance were the swabs taken from the steering wheel, driver's door handle and door grab, the driver's seat buckle, the driver's seatbelt receiver and the gear lever.  He took other swabs from various parts of the vehicle.  He did not swab the glovebox or the rear passenger seat of the vehicle.

4. No fingerprints suitable for comparison were obtained from the vehicle.

5. Officer Ball said that there were no coins or notes found in the vehicle when he examined it.

6. I find Officer Ball to be an honest, truthful, credible and reliable witness giving his evidence as best he could to assist the court.

Detective Senior Constable Le Boydre

1. Detective Le Boydre has been a police officers for 11 years.

2. On 1 December 2017 she declared [REDACTED] Lake Monger Drive a forensic protected area and arrived at Mr Kenny's address at about 7.15 pm.

3. She arranged for the seizure of Mr Kenny's wrist watch and glasses from the garage floor.  Mr Kenny's shirt had been seized at the scene by other officers before he was taken to hospital and Detective Le Boydre later seized Mr Kenny's jeans at Royal Perth Hospital.  All of these items were later sent to PathWest for examination.

4. Detective Le Boydre said she met with Mr Kenny to see whether he would be able to participate in the preparation of a computer generated image of the offender however, he was unable to give sufficient information to enable a composite picture to be drawn.

5. Detective Le Boydre said that the only DNA or forensic material located from Mr Watson's residence at [REDACTED] Lake Monger Drive matched people who were legitimately at that premises and no‑one was charged with any offence in respect of [REDACTED] Lake Monger Drive.

6. Detective Le Boydre organised for a search of the vehicle registry for grey BMW sedans with number plates commencing 1CYJ and ascertained that there were three such vehicles, one owned by Mr Kenny, one by Mr Trolio and one by Mr Trotter.

7. She did a total of 10 test drives from Mr Kenny's residence at [REDACTED] Lake Monger Drive to the corner of President Street and Orrong Road in Carlisle.  Of the 10 trips she took, the quickest she travelled was 13 minutes and 4 seconds, the longest 21 minutes and 40 seconds (exhibit 12.3).  On each occasion she followed the road rules and the speed limit and took the shortest route (exhibits 12.1 and 12.2).

8. She was unable to say if the sequence on the traffic lights had changed since the date of the offence or whether there were any roadworks being done at the time of the offence.

9. Detective Le Boydre also timed the travelling on six occasions from the corner of Briggs Street and Orrong Road, Carlisle to [REDACTED] Gravity Street in Beckenham, the quickest that was done was eight minutes, the longest 16 minutes (exhibit 12.4).  She said that she took the shortest possible route and on each occasion she followed the road rules and the speed limit (exhibits 12.1 and 12.2).

10. Detective Le Boydre seized CCTV footage from [REDACTED] Gravity Street in Beckenham which showed a vehicle which had a similar rear to a BMW.  She did not check whether the times on the CCTV footage were accurate as she said she had no concerns about the time.  She said she could not read the number plate of the vehicle shown in the CCTV footage at 18:40:36 but it was a similar shape to the BMW vehicle (exhibits 13.1 - 13.3).

11. WA Police Crime Statistics showed that in the year 2017 - 2018 there were 27 reports of stolen motor vehicles in the Beckenham area (exhibit 14), 346 reported stealings, 142 drug offences and in the metro area there were 1,093 reported robberies and 5,238 reported stolen motor vehicles (exhibit 15 )The  statistics were produced as exhibits through her.

12. Detective Le Boydre agreed that WA Police kept custodial records so that when a person was brought into custody, whether it be at the watch house or at a police station, an officer sitting behind the desk would complete a custodial form which, in her experience, took 15 ‑ 20 minutes to complete.

13. She said that the custodial form included sections of height, build and characteristics and notations made on Mr Yarran's custodial form indicated he had a tattoo on the left hand side of his neck which had two Chinese characters, 3 cm in height just below his left ear and he may also have tattoos on the back of both hands, although it was difficult to detect due to scarring.  The report also indicated there was scarring on the lower part of his arm and significant burns scars on both his left and right lower arms and wrists and some scarring also on the rear of his left hand.

14. She agreed that a resident of [REDACTED] Orbit Street, Beckenham at the material time in 2017 was Ms Amy Roffey.

15. I find Detective Le Boydre to be an honest, truthful, credible and reliable witness giving her evidence as best he could to assist the court.

Dr Penny Cooper

1. Dr Cooper is a forensic scientist from PathWest.

2. Her role is to compare the DNA recovered from various exhibits to the DNA obtained from reference samples or from the DNA database.

3. She explained that a person could touch an item and not leave DNA because, for example, that person is not a good shedder, they were wearing gloves or they had cleaned the item and wiped the DNA off it.  Dr Cooper gave as an example a recent test whereby the steering wheels of vehicles used by PathWest staff on a daily basis were tested for DNA and in many cases the DNA of the drivers were not located on the steering wheels.  A person could also leave DNA on the item in an area that had not been sampled.

4. Dr Cooper explained that some surfaces are better at retaining DNA than others and whether DNA remains on an item can depend on the pressure of the contact at the time of the DNA transfer.

5. She agreed that DNA could not be dated and you could not say how long any DNA had been on a particular item.

6. Dr Cooper said Mr Kenny's DNA was located on his watch and the glove and his jeans and his t-shirt.

7. Of significance to this trial was that on the DNA samples taken from the steering wheel, DNA consistent with coming from three individuals was located.  The DNA from the steering wheel swab was tested against the DNA database, which at that time contained 390,000 individual's profiles.  It was ascertained there were two main contributors.  Mr Yarran could not be excluded as one of the contributors of the DNA on the steering wheel and it was 46 billion times more likely that he was a contributor than that he was not a contributor.

8. DNA was also located on the interior driver's door handle and door grab consistent with coming from two individuals.  Mr Yarran could not be excluded as a possible contributor and it was 1.3 billion times more likely that he was a contributor than he was not.

9. DNA was also located on the driver's seat buckle consistent with coming from three individuals.  Officer Ball's evidence was that the area sampled was the seatbelt clasp being the plastic area and the metal part that sits inside the seal belt receiver seat (exhibit 10.24).  The seatbelt itself was not sampled.  Dr Cooper said Mr Yarran could not be excluded as a possible contributor and it was 44 billion times more likely that he was a contributor to the DNA than he was not.

10. DNA was also located on the driver's side seatbelt receiver consistent with coming from two individuals.  Officer Ball's evidence was that the area sampled was the red push down 'button' that is normally pushed down to release the seatbelt (exhibit 10.25).  Dr Cooper said Mr Yarran could not be excluded as a possible contributor and it was 3,600 times more likely that he was a contributor than he was not.  Dr Cooper explained that this result could in fact be coincidental, that is, that result could be produced even though Mr Yarran was not a contributor to the DNA mix.  Accordingly, its evidentiary value is minimal and even considering it with other DNA results and other evidence, I attach no weight to this finding.

1. DNA was also obtained from the sample from the gear lever consistent with coming from two individuals.  Officer Ball's evidence was that the area sampled was where you would normally grip the gear lever to change gears.  Dr Cooper said Mr Yarran's DNA profile matched the contributor identified as the major contributor and it was 100 billion times more likely that Mr Yarran was a contributor to that DNA than he was not.

2. Dr Cooper said that in relation to mixed DNA profiles you could not tell the precise number of contributors to that mixed DNA profile.  So that a finding that there was mixed DNA profile consistent with, for example, being from two people, does not exclude the scientific possibility for there to be an additional contributor that is masked by the other two contributors or there could be a third contributor contributing DNA below a reportable level which made that potential contributor considered not scientifically sound.  You could not therefore say that there definitely was not another contributor, nor could you say there definitely was another contributor.

3. However, using her experience, expertise and knowledge, Dr Cooper said she was able to determine the most likely number of contributors to that mixture, and for the purpose of the statistical analysis, the mixed DNA profiles were consistent with having come from the number of people that she had reported.

4. I find Dr Cooper to be an honest, credible and reliable witness giving her evidence as best she could to assist the court.

Mr Jerry Robert Yarran

1. Mr Yarran elected to give evidence.

2. Mr Yarran said that when he was 3 years of age he was involved in a house fire and suffered 60% burns to his body including burns to his right arm, his left arm and his back.

3. Mr Yarran showed his scars and burn marks to the court.  There was discoloration to both arms and his right arm was more scarred than his left and of a slightly lighter colour.

4. Mr Yarran had a tattooed star the size of a 10 cent piece on his left hand and on the left side of his neck.  He had two Asian characters each the size of around about a 50 cent piece situated just below his ear.  He said he had had those tattoos since he was a teenager.

5. He also had a relatively small scar on his forehead.

6. It is an agreed fact that Mr Yarran is 6 foot 3 inches or 190 cm.  He said that his current weight is 109 kg, his average weight is 102 kg ‑ 103 kg and he never goes below 97 kg - 98 kg.

7. Mr Yarran said that as of 1 December 2017 he was 26 years old and was residing with his aunty in Fremantle.  His cousin Reece was at that address on that day and one of Reece's friends came to visit.  Mr Yarran said he had not previously met that person and described him as a male Caucasian.

8. Mr Yarran said he was intending to visit his friend Ms Roffey at her address on the corner of Galaxy Street and Orbit Street, Beckenham by bus.  However, Reece gave his friend, who was going to Forrestfield, $30 to give him a lift towards Beckenham.

9. Mr Yarran said he accepted the lift and was dropped off just down the road from the Beckenham train station and walked down Bickley Street for about 20 minutes heading towards his friend Amy's residence.

10. When he arrived at an area that he marked on exhibit 16 he saw a grey/silver BMW in good condition with the front window down and the engine off, parked on the verge.  He described the area where the vehicle was parked as the Galaxy Street elbow (the Elbow).  Mr Yarran said he could not recall what time it was that he saw the car other than it was in the afternoon.  In re‑examination he said he saw it as the sun was going down.

11. Mr Yarran's evidence, not mentioned on the two previous occasions that he gave evidence, was that he was aware of a drug house in the same street as Ms Roffey's residence and he thought that the people in the drug house got their customers to park their vehicles at the Elbow.

12. Mr Yarran said as he approached the vehicle, he looked but did not see anyone around it.  He noticed the engine was off.  He said he did not open the door because he was frightened that the alarm would go off.  He lent inside the vehicle, put his right hand on the steering wheel and grabbed the 'B pillar' with his left hand, put his right leg through the window, then his left leg and manoeuvred himself inside the vehicle.

13. Mr Yarran said that at the time he had no money and was cut off from Centrelink and was hoping to get some coins.  Mr Yarran's evidence on a prior occasion was that he was hoping to get coins and a phone.

14. Mr Yarran said he saw a bum bag stuffed down near the driver's seatbelt buckle, that is, jammed between the console and the driver's seat.  He said the seatbelt was already buckled in and he thought it would be easier to undo the seatbelt to gain access to the bum bag.  He agreed in cross‑examination that the seatbelt was threaded through the bum bag strap.  He undid the seatbelt buckle and got the bum bag.

15. Mr Yarran said he looked in the back seat and lent over and saw $5 notes.  He said there was about $50 all up just lying lose on the back seat in $5 notes and he took those.  He did not search the whole of the back seat area just the two back pouches located at the rear of the front seats and behind the driver's seat floor (the driver's side rear passenger's footwell).  He also searched the glove box, the ashtrays, the side of the doors and the centre console.  He said he looked underneath the driver's seat, leant from the driver's seat to the passenger's seat and searched the car and could not specifically say where he had put his hands.  He said he was in the car for maybe over a minute but later said he could not specifically say how long he had been in the car but it was not that long.

16. Mr Yarran said he was not worried about the alarm going off when he was getting out of the car as he had already obtained what he wanted and if anything happened he could run.  When he went to leave the car he tried to open the driver's door from the inside but it did not open.  He then put his hand outside the window and tried to open the door from the outside but it would not open.  He then manoeuvred himself outside of the window by putting his hand on the top of the roof, his bottom on the window sill and got out one leg at a time.

17. He said he then went to Ms Roffey's house and knocked on the doors and windows, no‑one answered, so walked back towards where the car was and noticed that the car had gone.  Mr Yarran said he was at Ms Roffey's house for about 5 - 10 minutes.

18. He then cut through the park and walked towards the Kenwick bridge to go to his aunt's.  He said he did not see the vehicle again.

19. He categorically denied that he was in Wembley or committed the robbery or drove the motor vehicle, saying his only contact with the vehicle was at outlined in his evidence.

20. I reject Mr Yarran's evidence as to how he came across and entered the vehicle.  It is, I find it, inherently implausible.  I find the evidence was simply tailored towards explaining how the DNA came to be located in the car in the areas it was found.

21. Mr Yarran had said at a previous trial that he was given the lift by the unidentified acquaintance in the early afternoon.  His evidence at this trial was that he was given the lift and travelled directly to the area where he was dropped off which was around about a 30 - 40 minute drive and said the sun was going down.  On anyone's timeline he must have been at the Elbow at around about 6.30 pm.  When challenged about this he simply said that he could not remember exactly what time he was given the lift.  He did not have a watch or a phone and said his interpretation of what was early afternoon may be different to another person's.  I found this an unconvincing explanation to try to justify why in an earlier trial he said that he took the lift in the early afternoon, where his evidence at this trial was that it must have been around about 6.00 pm.

22. I find it inherently implausible that a robber having bashed a man to steal his vehicle would then drive the vehicle to an area, leave it unattended with the windows open, cash on the back seat and a bum bag in the vehicle.

23. I also find it implausible that Mr Yarran was going to a pre‑arranged meeting with Ms Roffey and yet she with full knowledge on his evidence that he was attending she was not at his resident when he arrived.

24. I also find it implausible that Mr Yarran was so concerned about setting off an alarm when he entered the vehicle that he did not open the doors and entered the car by the windows yet when he exited the vehicle he was not concerned about the alarm because he had gotten what he wanted and could run away if the arm went off so he tried to open the door handle firstly from the outside and then from the inside.  I find that he was simply making up a version of events to explain how his DNA came on the door handle.

25. I also find it inherently implausible that a robber would steal a motor vehicle, drive it to an area, abandon it for a few minutes with the windows down, money and a bum bag lying in the vehicle then return to the vehicle and drive the vehicle approximately 300 m up to the Reserve and then abandon it.

26. In my view Mr Yarran's evidence of how he touched the red button, the seatbelt receiver and the seatbelt buckle while looking for the bum bag was just given to explain how his DNA got on those items.

27. Mr Yarran's evidence that he asked Reece's friend to drop him off in the location where he alighted the vehicle because the friend was talking crap and making him feel uncomfortable is contradicted by his evidence on a prior occasion that he could not recall why he was being dropped off.

28. The combination of these inherent implausibility's and inconsistencies leads me to find that Mr Yarran was not a witness of truth and I do not accept his evidence as to how he came across the car at the Elbow and entered the car.

29. I do accept Mr Yarran's evidence as to his physical descriptions relating to the scarring and the tattoos.  I personally observed those marks.

30. I also accept his evidence relating to his current height and his height and weight as in 2017.  He was not challenged on those matters.

31. Having rejected Mr Yarran's evidence on the matters referred to, that does not mean I move to a point where I say he is guilty of the offences, it means I put his evidence to one side and ask myself whether, from the combined weight of that evidence which do accept, am I satisfied beyond reasonable doubt that the only reasonable inference to be drawn is that Mr Yarran was the robber.

32. Other matters that the State raised I do not find to be of significance.  Mr Yarran's evidence that he entered the car to steal some coins whereas previously he said he was going to steal both coins and a phone, in my view, is not of any significance.

33. Mr Yarran's evidence that he did not see the phone in the glove box again is not, I find, of any significance.  I do not know whether the items photographed in the glove box had been moved before they were photographed.

34. I do not find it inherently implausible that the driver giving Mr Yarran a lift did not have want to detour and go out of their way to drop Mr Yarran at Ms Roffey's.

35. The State made much of Mr Yarran's evidence that he said for the first time at this trial that there was a drug house located near the Elbow and customers of the drug house used the Elbow to park their cars while they resorted to the drug house.  Mr Yarran's evidence was that he had not said this at prior trials because he was advised by his lawyer not to say anything about a drug house.  That explanation was not challenged.  Accordingly, it is not a matter that I took into account when I assessed Mr Yarran's credibility.

The central issue and matters not in dispute

1. Both parties agree that the central issue in this case is identity, that is, have the State proven beyond reasonable doubt that Mr Yarran was the man who committed the robbery and stole the vehicle.

2. I find the following facts established by the evidence.

3. Firstly, Mr Kenny's grey BMW 5-Series sedan, registration number 1CYJ219 was stolen from him.  I accept Mr Kenny as a witness of the truth.  I accept without reservation his evidence that his BMW was stolen from him.

4. Secondly, I am satisfied beyond reasonable doubt that at the time or immediately before the BMW was stolen violence was used to Mr Kenny.  I am satisfied beyond reasonable doubt that Mr Kenny was punched whilst seated in the car, forcefully removed from the car, thrown to the ground, kicked whilst on the ground and forcibly restrained by the wrist.  I accept without reservation Mr Kenny's evidence in this regard.

5. Thirdly, I am satisfied beyond reasonable doubt that that violence was used in order to obtain the stolen property or to prevent or overcome resistance to it being stolen.  The violence started after Mr Kenny was told by the robber that he was to hand over his keys and after Mr Kenny had manoeuvred himself back into the driver's seat.  After this the robber held the door open and violently assaulted Mr Kenny and, at one stage, rifled through Mr Kenny's pockets to obtain the key.  The only reasonable inference to be drawn from these proven facts is that the violence that was visited upon Mr Kenny to ensure that the robber was able to take Mr Kenny's car.

6. Fourthly, I am satisfied beyond reasonable doubt that the vehicle was owned by Mr Kenny, it was not in dispute and I accept Mr Kenny's evidence in this regard.

7. As to the first circumstance of aggravation, I am satisfied beyond reasonable doubt that the robber pretended to be armed with an offensive weapon, namely a knife.  I accept Mr Kenny's evidence the robber said he had a knife and positioned his hand under his shirt so as to cause the shirt to be pointed out towards Mr Kenny as one would expect a knife to be held if the knife was being hidden.  I accept that the statement made by the robber that he had a knife and the physical actions as described, constitute pretending that he had a knife that was available for immediate use.

8. I am satisfied that in the circumstances it was a pretence that the robber was armed with an article capable of being used for an offensive purpose and that the robber impliedly threaten to inflict injury if the need arose.  This is the irresistible inference to be drawn from the robber's words and actions.

9. In relation to the second circumstance of aggravation, I am satisfied beyond reasonable doubt that Mr Kenny suffered bodily harm.  The medical evidence of Dr Wade is entirely consistent with Mr Kenny's evidence and I accept Dr Wade's evidence that the injuries were of such a nature as to interfere with the health and comfort of Mr Kenny.

10. I am satisfied that Mr Kenny's injuries constituted of more than mere pain and constituted damage to the muscle and skin, organs or part of which the human body is constructed.  I am satisfied that those injuries were caused by the beating inflicted upon Mr Kenny by the robber.

11. In relation to count 2, I am satisfied beyond reasonable doubt by Mr Kenny's evidence that, firstly, the robber took this motor vehicle by driving it away, secondly, that he did not have the consent of Mr Kenny to take the vehicle and, thirdly, that the taking was unlawful.

Have the State proven beyond reasonable doubt that Mr Yarran was the offender?

The State's submissions

1. The State say that the combined weight of all the circumstances means that I can be satisfied beyond reasonable doubt that the only reasonable inference to draw is that Mr Yarran was the robber who stole Mr Kenny's car.  In this regard the State rely on the following.

2. DNA consistent with Mr Yarran's DNA was located in the vehicle on the gear lever, the steering wheel, the door grab and handle, the red button on the seatbelt receiver and the seatbelt buckle in areas that you expect the DNA of a driver to be on and the finding of this DNA in those areas is consistent with Mr Yarran being the driver of the vehicle.

3. The State say the timeline is such that it is highly improbable there was an opportunity for the vehicle to have stopped and for any other person to have gotten into the vehicle from the time of the robbery to the time Mr Drakeford saw the driver of the stolen BMW exit the vehicle at the Reserve.

4. The State say Detective Le Boydre's evidence shows that the combined driving time from Mr Kenny's residence to [REDACTED] Gravity Street is, at the least, 21 minutes and, at most, 36 minutes in circumstances were all road rules including speed limitations are complied with.

5. The State says the timeline established by the evidence is that the robber was in the vehicle at 6:03:24 pm when Mr Kenny rang the police.

6. The same vehicle was seen at the corner of Orrong Road and President Street, Carlisle with the same person driving at a time that must have been at around 6.15 pm - 6.19 pm.

7. Mr Stewart rang the police from his house at 6.24 pm and gave evidence that he rang the police about 5 minutes after he saw the car which places his sighting of the vehicle at 6.19 pm.  In another part of his evidence Mr Stewart said that he saw the vehicle at approximately 6.15 pm.  He said he had the vehicle under observation for about 30 seconds.

8. Mr Drakeford rang the police at 6.51 pm and said he first saw the vehicle enter the park 5 - 10 minutes before he rang the police.  On that basis he must have seen the vehicle enter the park at around about 6.41 pm to 6.46 pm.  The photos of the vehicle he took are time stamped 6.40 pm.

9. Before Mr Drakeford took those photos he had seen the vehicle come down the cul-de-sac, go over the kerb, knock down the bollard and seen the driver alight from the car, take a few steps away from it, return and partially re-enter the car.  Mr Drakeford then went home, spent a couple of minutes at his home, obtained his phone, went back to the car, tried to turn the engine off, looked at the identification in the car, took the photos and then rang the police.  Therefore the State says he must have first seen the vehicle closer to about 6.36 pm or 6.40 pm at the latest.

10. CCTV footage from [REDACTED] Gravity Street shows a vehicle with a similar rear end to a BMW going past that address which is only a very short distance from where Mr Drakeford would have first seen the vehicle at 6:40:36 pm.

11. The State say the timeline therefore leads to the inference that the driver who got out at the Reserve was the robber.

12. The State also rely on in varying degrees the circumstantial identification evidence of Mr Kenny, Mr Stewart, Mr Watson and Mr Drakeford.  They say that the description of the skin colour, the height, the body build, the body shape whilst not positive identification evidence, is evidence that the robber shared several physical characteristics generally consistent with Mr Yarran's characteristics.

13. The State also say that the location where the stolen vehicle was dumped is an area that, on Mr Yarran's own admission, he was familiar with.

14. The State also rely on Mr Drakeford's evidence that he saw the person exiting the vehicle via the front driver's window which is the same way Mr Yarran admitted he exited the vehicle, albeit in a different location.

15. The State's position is that Mr Yarran's evidence is that he did not commit the robbery or steal the motor vehicle, is unreliable and inherently unbelievable and cannot be accepted.

16. The State say that I can reject Mr Yarran's evidence that he was not the offender because it is inconsistent in material particulars with what he has said on previous occasions and is inherently implausible.  The State point to inherent implausibility's and inconsistencies which I have dealt with in detail when summarising Mr Yarran's evidence.

The defence submissions

1. The defence say that Mr Yarran's evidence should be accepted.

2. The defence say Mr Yarran, whilst not a sophisticated person, was honest and believable.  The defence say Mr Yarran was straightforward and admitted matters adverse to his interest such as stealing from the car.

3. The defence say it is not surprising that Mr Yarran cannot be precise about the time he came across the car at the Elbow as he had neither a phone nor a watch, although he could remember that the sun was going down.

1. The defence say it is not implausible for Mr Yarran to have seen an unattended high value car in the Beckenham area with the windows down and cash and in a bum bag within it.  The defence point to the number of reports of stolen motor vehicles in Beckenham and the metropolitan area as supporting this contention.

2. The defence say that in relation to the phone in the glove box, the glove box contained other items and it is quite plausible that when Mr Yarran looked in the glove box he did not see it.  The defence point out that the photograph (exhibit 10.16) was taken from an angle that is not necessarily the view that Mr Yarran had when he looked in the glove box and it is not known if any items were moved in the glove box before the photograph was taken.

3. The defence say Mr Kenny's evidence supports Mr Yarran's evidence in some respects.  Mr Kenny's evidence was that the water bottle, towel, the tissue and the funeral material and identity card were in a different position to where he left them supports Mr Yarran's evidence that someone other than himself had been in the car.

4. The defence say any inconsistencies between Mr Yarran's evidence at this trial and previous trials are minor and must be viewed in the context that this is the third time he has given his evidence and the events occurred over three years ago.  The defence say its only human nature that the more thought a person gives to a matter the more they are going to remember.

5. The defence say the evidence is consistent with Mr Kenny's robber being one of the burglars of Mr Watson's residence who was frightened after being told by Mr Watson that the police had been called and were on their way.  As a result the burglar went the short distance to Mr Kenny's house, bashed and robbed him, stole his vehicle to use as a getaway vehicle, driven it to the Elbow to obtain drugs and then having done so, returned to the vehicle, drove it to the Reserve and abandoned it.

6. The defence say that Mr Kenny's evidence that the debris shown in the photographs was more debris than he remembered being in his car, is consistent with other people getting in and out of the car from an outdoor area and not a solid garage floor and transferring material in the car, which is consistent with Mr Yarran saying he got into the vehicle at the Reserve.

7. The defence say that the suggestion that Ms Roffey would necessarily have kept the meeting commitment she made with Mr Yarran was a misunderstanding of human nature - some people keep to their arrangements others do not.

8. The defence say that the DNA evidence has to be viewed in the light that the only swabs that were taken were from areas that a driver would be expected to touch and other areas, such as the rear interior were not swabbed.

9. The defence point out that the DNA from the steering wheel and driver's seatbelt buckle was of mixed profile consistent with coming from three persons which supports the hypothesis that people other than Mr Yarran and Mr Kenny had been in the vehicle.

10. The defence say that Mr Kenny described the robbery and specifically stated that the robber was wearing short sleeves.  Mr Kenny said he saw the robber's arms and neck and yet made no mention at all of the visible scarring on Mr Yarran's forehead nor the burn and scarring marks on his arms and the tattoos on his neck.

11. Notwithstanding the agony of the moment and the vicious beating that Mr Kenny received, the defence say in circumstances where the robber was looking directly at him, punching him, dragged him out of the car, throwing him to the ground and holding onto his arm and searching through his pockets, Mr Kenny had ample opportunity to observe these distinguishing features if Mr Yarran was the robber and yet Mr Kenny said there were no distinguishing features on the robber.

12. The defence say that further doubt is created by Mr Watson's description of the person who entered his house as being tall and skinny, a description which does not fit Mr Yarran.

13. The defence say that further doubt is created by Mr Stewart's description that the driver who he saw for 30 seconds was a dark skinned male of Aboriginal or Middle Eastern origin of medium build.  The defence say you cannot be satisfied that the car seen by Mr Stewart was Mr Kenny's stolen BMW.

14. The defence say that further doubt is created by Mr Drakeford's evidence that the person he saw get out of the car, who the State say is the robber, was either 5 foot 8 inches or 5 foot 9 inches, skinny with olive skin and of Middle Eastern/Malaysian.  The defence say this description does not accord with Mr Yarran's physical attributes.

15. The defence say that further doubt is created by the absence of any evidence of what Mr Yarran looked like on 1 December 2017.

16. As to the timeline, the defence say that all that you can say is that the vehicle was robbed shortly before Mr Kenny's 6.03 pm call to the police.

17. The defence say the CCTV footage from [REDACTED] Gravity Street shows the vehicle going past at 6.40 pm and that is only a short distance from where it was ultimately found.  Detective Le Boydre's normal practice was to check the time on the CCTV footage and her evidence was there is no reason not to think that the CCTV time was incorrect.  The defence ask me to infer that the detective followed her normal procedures.

18. The defence say the time of about 6.40 pm is supported by the time stamp on the photos taken by Mr Drakeford and Mr Drakeford's phone showed that he had taken the images at around about 6.40 pm.

19. The defence say that the timeline is more than enough opportunity for the vehicle to stop and another person take over the driving or more than enough time for the robber to have parked the vehicle at the Elbow, gone to a drug house and for Mr Yarran to come upon the vehicle, entered it, stolen property, exited the vehicle and then for the robber to come back to the vehicle, drive it the short distance to the Reserve and dump the vehicle.

20. The defence say Detective Le Boydre's timeline is of little value.  She obeyed all speed limits.  The vehicle, as observed by Mr Stewart, was being 'pushed' and driven like a stolen car and the speeds the stolen car was being driven at was likely to mean the travel time was less than that shown by Detective Le Boydre and therefore the window of opportunity was much greater than submitted by the State.  The defence also says that there is no evidence that the traffic lights' timing and road work conditions were the same as at the date of the offence and the date of the detective's time trials.

Conclusions

1. In a circumstantial evidence case the court must look at the combined weight of all the evidence not just at each individual piece of evidence in a piecemeal fashion.

2. However in a trial by judge alone both parties are entitled, and appeal courts expect, a judge's reasoning to be exposed to appealable review and that must necessarily involve examining each piece of circumstantial evidence and then assessing the combined weight of the circumstances.

3. In relation to the timeline my findings are as follows.

4. It is an agreed fact that Mr Kenny called the police at 6:03:24 pm literally as a robber was reversing the vehicle out of the driveway in the turning area of his residence.

5. It is an agreed fact that Mr Stewart called the police at 6.24 pm after he had arrived home having seen the vehicle at the corner of Orrong Road and President Street, Carlisle for about 30 seconds.  He said that he rang the police about five minutes after he sighted the vehicle which puts the vehicle at the intersection at around about 6.19 pm.  He said in another part of his evidence that he estimated the time that he saw the vehicle to be 6.15 pm so the estimated time the vehicle was at that intersection is between 6.15 pm - 6.19 pm.

6. It is an agreed fact that Mr Drakeford called the police at 6:51:28 pm.  He said he had first seen the car 5 - 10 minutes before he made the call which put him first seeing the car at 6.41 pm - 6.46 pm.  The photograph he took shows the vehicle at 6.40 pm.  Before he took that photograph he had seen the driver get in and out of the vehicle, he had walked to his residence, been at his residence for about two minutes, obtained his phone, walked back to the vehicle, tried to turn the vehicle off, looked inside for identification and then taken the photograph.  So the time that he saw the vehicle might well have been around about 6.36'ish.  The CCTV photo shows a vehicle which had some similarities to the stolen BMW going past address [REDACTED] Gravity Street which is in close proximity to where the vehicle was later found at 6.40 pm.

7. All that can be concluded from the timeline is that the vehicle was taken at approximately 6.03 pm and it was abandoned at the Reserve at approximately 6.36 pm - 6.40 pm.

8. I find Detective Le Boydre's time trials are at best only a very rough guide for travelling times.  Those time trials show that the total time taken to get from Mr Kenny's residence to the end of the cul‑de‑sac in very close proximity to where the vehicle was abandoned is between 21 minutes and 4 seconds and 36 minutes and 40 seconds.

9. I infer that the stolen vehicle would have been travelling at speeds greater than the speeds that the detective travelled at in the time trials, as is supported by Mr Stewart's evidence, and therefore, the travel times would in fact be less that those referred to by Detective Le Boydre.  It is not known if the route taken by the stolen vehicle is the same route Detective Le Boydre took.

10. Even taking the State timeline, the time between the vehicle leaving Mr Kenny's and being abandoned is approximately 33 minutes.  The drive time is approximately 21 minutes.  That leaves approximately 12 minutes when the vehicle was not travelling.

11. If the State's proposition is that this is too small an opportunity for the robber to have left the vehicle and another person to have entered the vehicle and driven the vehicle, then that proposition is completely rejected.

12. The approximate 12 minute window of opportunity is more than sufficient for the robber to have gotten out of the vehicle and another person, be it Mr Yarran or another, to have entered into the vehicle and driven it to the Reserve.  That could occur irrespective of whether that person took an interlude to the Elbow.  Alternatively the timeline does leave sufficient time for the robber to have driven to the Elbow left the vehicle unattended and for a person to come across the vehicle, enter the vehicle, steal items, and depart and then the robber return and drive the vehicle to the Reserve.

13. Mr Kenny's evidence was that the whole stealing of the vehicle including his brutal bashing took 60 - 90 seconds.  For a person to enter into a vehicle, rifle through it, steal items and get out would not, I infer, take many minutes.  Nor, I infer, would it take long to leave a vehicle unattended go to a drug house and then return to the vehicle.

14. If the State's proposition is that the timeline leaves no time for anything other than the robber to have committed the robbery and then driven to the Reserve via Orrong Road/President Street and Briggs Street and therefore the robber had to be the driver who got out at the Reserve, then that proposition is rejected by me.

15. If the State's proposition is that the timeline leaves limited time for any event other than that referred to in the preceding paragraph to occur, and that is a matter I am entitled to take into account in determining whether it is inherently improbable that what Mr Yarran said occurred in fact occurred, then it is a valid proposition and is a matter that must be considered by me.

16. In relation to the circumstantial identification evidence the State say the description given by various witnesses of the person they saw in the BMW matches the general physical attributes of Mr Yarran.

17. Mr Kenny said that the robber was solid, with a well‑built frame, an athletic build, not overweight, dark skin, short black hair with nothing distinctive about his face or neck, taller than 6 feet or 183 cm although not a lot taller maybe 5 cm taller.  Mr Kenny said the person who robbed him looked similar to the person he had previously seen walking along Lake Monger Drive access road whom he described as male approximately 6 foot 1 inch tall and wearing dark black clothing.

18. Mr Stewart said that the driver of the vehicle was male, of Aboriginal or Middle Eastern origin, medium build, not obese, not  thin, dark skin.  He had him under observation for about 30 seconds.

19. Mr Drakeford said that the person he saw getting out of the BMW in the Reserve was male, of medium build, not overweight, not super thin, not heavy set.  He conceded that in his statement to the police made close to the incident he described the person as skinny and he accepted that that description was more likely to be accurate because it was made closer to the event.  He said the male was dark skinned, Middle Eastern or Malaysian with olive skin, taller than 173 cm and describing him variously as between about 5 foot 8 inches or 5 foot 9 inches, closer to 5 foot 10 inches, maybe 5 foot 10 inches.  Mr Drakeford agreed that the description he made to the police close to the event that the driver was approximately 5 foot 8 inches to 5 foot 9 inches was more likely to be accurate.  He said the man had a hoodie on when he was out of the vehicle.

20. In each case there were matters which affected the witnesses' ability to make accurate observations.

21. In Mr Kenny's case it was the terror of the moment.  He was being physically and violently assaulted.  His attention was first drawn to the handkerchief over the person's face and the person threatened him and told him he had a knife.  Mr Kenny's attention was then drawn to the protruding shirt of the robber at around the midriff.  Mr Kenny was naturally concerned about what would happen.  The incident was sudden and unexpected and took between 60 - 90 seconds.

22. Mr Kenny made no mention at all of distinguishing features of Mr Yarran being the visible scarring on Mr Yarran's forehead, the burn and scarring marks on his arms and the tattoos on his neck.  Mr Kenny was looking at the robber however he was threatened with a pretend knife, punched, dragged out of the car, thrown to the ground, kicked and restrained by the arm, had his pockets searched and car stolen with that 60 - 90 seconds.

23. I accept Mr Yarran's evidence that he has visible scarring on his forehead, and burn and scarring marks on his arms and the tattoos on his neck and hand and had those features in 2017.

24. I observed those features however the scarring on his arms and the difference in skin tone was barely visible to me from a distance of approximately 2 m away in circumstances where I was actively looking for such marks.  The ink coloured tattoo on the left hand is slightly bigger that a 10 cent piece and was visible dependant on the way Mr Yarran held his hand.  The two ink coloured Asian characters tattooed on the left side of his neck each about the size of a 50 cent piece and structured one almost directly above the other were clearly visible.

25. I find it is perfectly understandable that in the limited time over which the robbery occurred, and in the terror of the moment, these features were not observed by Mr Kenny.  This just highlights that what was observed by Mr Kenny was not any unique identifying feature possessed only by Mr Yarran but generalized features shared by many ie height, dark skin, short black hair and athletic frame.

26. Mr Stewart had the driver under observation for 30 seconds only in circumstances where the driver was seated in a car and had a bandana across his face.

27. Mr Drakeford had limited time to view the driver who had his hoodie up when he was outside the car.  Mr Drakeford observed the driver get out of the car by the window, walk a few steps away, return lean through the window then walk away quickly.  He was viewing from a distance of around about 50 m away.

28. The descriptions vary of course with what each person considers to be well built or medium build or athletic.

29. The State are using this evidence as circumstantial identification evidence to establish that the offender had some physical characteristics that are shared by Mr Yarran.

30. As a matter of law circumstantial identification evidence neither requires nor excludes a Domican v The Queen (1992) 173 CLR 555, 561 - 562 type warning.

31. As a matter of law I must consider whether a warning is required.

32. The reason for a judicial warning is the court's knowledge based on the experience of courts of the possibility that an honest but mistaken witness may very convincingly, but wrongly, identify characteristics of the offender.

33. A prerequisite for the warning is that the circumstantial identification evidence must be at least a significant part of the proof of the guilt of the accused and there must be some feature of the evidence in respect of which the court has special knowledge, experience and awareness that may adversely affect the evidence's reliability that may not be evident to a trier of fact about which a tribunal of fact needs to be warned: Festa v The Queen (2001) 208 CLR 593 (McHugh J); Weglewski v The State of Western Australia [2020] WASCA 28.

34. I am satisfied that both factors exist in this case.  The State's case is the robber drove the car from Mr Kenny's and was the person seen by Mr Drakefield leaving the BMW at the Reserve.  It is an important part of their circumstantial case that that person shared physical characteristics similar to that of Mr Yarran.

35. As a matter of law I warn myself that honest and confident witnesses can give evidence relating to identifying features of an offender or object which can be inaccurate.  Neither a witness's honesty nor confidence guarantees the reliability of the evidence.  An honest witness can be mistaken, a convincing witness can be mistaken, and a number of honest and convincing witnesses may be mistaken.  Proven miscarriages of justice have occurred in the past as a result of mistakes in identifying persons or objects.  The circumstantial identification evidence of the witnesses referred to may be relied upon only after it is examined with care, bearing in mind the warning that I have referred to, and the reasons behind it.

36. I find from my own observations that Mr Yarran has dark skin, is not overweight, nor skinny, has short black hair and has what I would describe as an athletic frame.

37. It is an agreed fact that Mr Yarran is 190 cm (6 foot 3 inches).  I accept Mr Yarran's unchallenged evidence that his December 2017 weight was 97 kg - 98 kg.

38. I find that Mr Yarran's height, dark skin, short black hair and athletic frame are general physical characteristics that are characteristics shared by the robber as observed by Mr Kenny whose evidence I accept in this regard.

39. Other circumstances which I find proven to my satisfaction are that Mr Yarran was familiar with the area where the stolen vehicle was dumped.

40. It has been proven to my satisfaction that it was Mr Kenny's stolen BMW observed by Mr Stewart at the intersection of Orrong Road and President Street.  Mr Stewart's description of the colour and make and the manner in which the vehicle was being driven at the time of the observation and the fact that the driver was wearing a bandana across their face, leads me to infer that it was Mr Kenny stolen BMW.

41. It has not been proven to my satisfaction that the driver seen by Mr Stewart was the robber.  Mr Stewart saw the driver for only 30 seconds.  The driver, as observed by Mr Stewart, shared several physical characteristics with the robber, that is, he was male, of dark skin and not overweight.  He had some physical characteristics that were dissimilar to Mr Kenny's description of the robber.  Mr Stewart saw a medium build driver, Mr Kenny saw a person who was solid, well-built frame and athletic build.

42. I accept Mr Stewart only saw the driver while he was seated in a motor vehicle for a limited period of time and that people's descriptions of body shapes vary from person to person.  Bearing in mind the difference in his description to that of Mr Kenny and bearing in mind the limited period of time that Mr Stewart saw the driver, I am not satisfied that the driver seen by Mr Stewart was the robber.  The time of Mr Stewart's sighting was anywhere between 6.15 pm ‑ 6.19 pm.  Even using Detective Le Boydre's timeline of approximately 13 minutes driving time from Mr Kenny's to the point of Mr Stewart's observation, I am not satisfied that the driver at that point was the robber.  There is just insufficient evidence to prove to my satisfaction that the driver observed by Mr Stewart was the robber. Mr Stewart saw a driver with a bandana and Mr Kenny a robber with a face covering however Mr Watson said there were two men with face coverings in the area.

1. It has been proven to my satisfaction that it was Mr Kenny's stolen BMW observed by Mr Drakeford at the Reserve.  The photographs of the vehicle taken by Mr Drakeford (exhibit 10) put this beyond doubt.

2. It has not been proven to my satisfaction that the person seen getting out of the car was the robber.  The person observed by Mr Drakeford shared several physical characteristics with the robber, that is, he was male of dark skin, not overweight.  He had some physical characteristics that were dissimilar to Mr Kenny's description of the robber.  Mr Drakeford said the person was medium build and agreed that what he said to the police shortly after the incident, that the person was skinny, was more likely to be accurate.  Mr Kenny said the robber was solid, of a well-built frame and athletic build.  Mr Drakeford said the person was about 180 cm but then agreed that what he said to the police that the person was 5 foot 8 inches or 5 foot 9 inches was more likely to be accurate.  Ultimately, he seemed to say that the person was maybe 5 foot 10 inches.  Mr Kenny said the robber was taller than him, maybe 5 cm taller.

3. I accept there was always going to be differences between how two people describe an individual and Mr Drakeford did not have the same precision in his description as Mr Kenny.  Mr Drakeford's evidence does not persuade me, even considering the police officer's timeline, that the person that Mr Drakeford saw was the robber that Mr Kenny saw.  There is just insufficient evidence to prove to my satisfaction that the driver observed by Mr Drakeford was the robber.

4. The State's case is that the robber was the person who Mr Drakeford saw abandoned the stolen BMW at the Reserve (ts 594, ts 597, ts 598) and therefore, that fact must be an indispensable link in their chain of circumstantial reasoning and the State would need to satisfy me beyond reasonable doubt that the person seen by Mr Drakeford was Mr Yarran.  For the reasons expressed, I am not satisfied that the person seen by Mr Drakeford is the robber seen by Mr Kenny, let alone satisfied of that fact beyond reasonable doubt.

5. A rejection by me of Mr Yarran's evidence as to how his DNA came to be in the vehicle does not establish that his DNA was in the vehicle because he was the robber.  A rejection of Mr Yarran's evidence in this regard means I put his evidence to one side.

6. I find that Mr Yarran's DNA was in the BMW in a place one would expect the driver's DNA to be.

7. I find that Mr Yarran's DNA was in the vehicle because he had driven that vehicle at some point.  The DNA is consistent with coming from him, it is in areas you would expect the DNA of the driver to be located in and I am satisfied his DNA is present because he had driven that vehicle at some point.

8. The combined weight of the DNA finding, the timeline, the circumstantial identification evidence and Mr Yarran's familiarity with the Beckenham area does not lead me to be satisfied beyond reasonable doubt that Mr Yarran was the robber.

9. There are differences in the descriptions given by Mr Drakeford of the person who abandoned the stolen BMW and Mr Kenny's description of the robber.

10. The timeline I find shows that for the 32 minutes from the robbery to the car being abandoned, the driver was under observation for what I find at most must have been 4 - 5 minutes (Mr Kenny said he watched the driver take his car go down his driveway and head east and could see it as it went past the third house (ts 616).  Mr Stewart said he saw the driver for about 30 seconds.  Mr Drakeford saw the driver only briefly as he drove down the cul-de-sac over the kerb through the bollard and then left the vehicle).

11. I find that there were two dark skinned males both quite tall and skinny, both with black face coverings and short black hair, wearing black clothing who had committed an opportunistic aggravated burglary (Mr Watson had left his front door open following an earlier visit from Silver Chain ts 635) in Mr Watson's premises only five houses from Mr Kenny's residence at 5:59:04 pm approximately four minutes before the robbery.

12. I find that Mr Watson told these two burglars that the police had been called and were nearly there and they had better go.

13. Within four minutes an opportunistic but brutal robbery of Mr Kenny occurred.  Mr Kenny had just arrived home and driven up his driveway having stopped at the bottom of the driveway to check his mail.  The robber stole Mr Kenny's car and on the State's case abandons it about 36 minutes later at the Reserve.

14. The timeline does not satisfy me that the vehicle travelled to the Reserve without stopping.  Nothing in the timeline compels a conclusion that the driver at the Reserve was the robber.  The timeline is neutral on this point.

15. The circumstantial identification evidence of Mr Kenny at the very highest for the State shows that the robber and Mr Yarran share very general physical characteristics (height, build, sex, race) at the best for Mr Yarran's, Mr Drakeford's and Mr Kenny's evidence shows differences in height and build between the robber and the driver at the Reserve.  The circumstantial identification evidence is very general.

16. The DNA evidence establishes that Mr Yarran drove the stolen vehicle sometime after it was stolen between 6.04 pm and 6.36 pm ‑ 6.40 pm.

17. The stolen BMW was abandoned in an area that Mr Yarran is familiar with.

18. The combined weight of the State's case that is the DNA, the timeline, the circumstantial identification evidence and the familiarity of Mr Yarran with the Beckenham area does not satisfy me beyond reasonable doubt that Mr Yarran was the robber.

19. The only reasonable inference to be drawn from the combined weight of the circumstance I find proven is not that Mr Yarran was the robber. Clearly the combined weight of the evidence compels suspicion towards Mr Yarran.

20. Proving guilt beyond reasonable doubt is a high but not an impossible standard.  It is not enough for the State to establish suspicion or prove that Mr Yarran is possibly guilty or indeed probably guilty.

21. It is not speculation, conjecture, fanciful, impossible, incredible, not tenable, too remote or too tenuous for the robber to be someone other than Mr Yarran.

22. Mr Watson's evidence which is not in dispute shows that there was not one but two dark skin, tall, short black haired males wearing face coverings within five houses only four minutes before the robbery at Mr Kenny's.  They had been told the police had been called and were on their way.  The DNA evidence shows DNA consistent with persons other than Mr Yarran and Mr Kenny on the steering wheel and the driver's seatbelt buckle.  Mr Drakeford's and Mr Kenny's evidence leaves open the possibility of differences in height and build between the robber and the driver at the Reserve.  I have a reasonable doubt as to whether Mr Yarran is the robber.  I am not satisfied by the combined weight of the facts I find proven that he was.

23. In relation to the stealing a motor vehicle charge the State opened their case on the basis that Mr Yarran drove away from Mr Kenny's in the BMW and later abandoned it at the Reserve (ts 594), he attacked Mr Kenny, stole his BMW at about 6.03 pm and abandoned it in the Reserve at about 6.40 pm (ts 598).

24. I am satisfied beyond reasonable doubt that the DNA located in the vehicle is consistent with Mr Yarran's and, satisfied beyond reasonable doubt, due to the location of the DNA and my findings on the timeline that the only reasonable inference to draw is that the DNA was deposited when Mr Yarran drove the vehicle at some point after the robbery.  The circumstantial identification evidence is not resorted to because it is not necessary for me to determine whether he was the driver at Orrong Road and President Street or at the Reserve.

25. I am satisfied beyond reasonable doubt that the vehicle was driven without Mr Kenny's consent.

26. I am not able to say beyond reasonable doubt whether Mr Yarran was driving the vehicle at the intersection of Orrong Road and President Street nor am I able to say beyond reasonable doubt that he was the driver when the vehicle was abandoned in the Reserve.

27. I am satisfied beyond reasonable doubt that the only reasonable inference to draw from the facts I find proven is that Mr Yarran drove the vehicle sometime after the robbery.  Any rational hypothesis consistent with innocence has been excluded by the State.

28. Although that is not the case opened by the State, it is a factual scenario which is available on the evidence and the defence accept that they cannot point to any prejudice in my reaching that factual finding other than it is not the case the State opened on.

29. It is not a case of an alternative charge being found proven.  It is a case where evidence produced by the State satisfies me beyond reasonable doubt of Mr Yarran guilty respect of count 2, albeit on a different and more limited factual basis than the State opened and closed upon.

30. I find Mr Yarran not guilty on count 1 and guilty on count 2.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

KH

Associate

4 JUNE 2021