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1. Mr Aga Khan Kan, the accused, signed an election on 24 June 2025 to be tried by judge alone pursuant to s 68B(1)(a) of the Supreme Court Act 1933 (ACT).

2. Mr Kan is charged with the following offences, set out in an updated indictment filed 9 April 2026: (a) Count 1 (CC 12222/2024): dishonestly drive motor vehicle without consent contrary to s 318(2) of the Criminal Code 2002 (ACT). (b) Count 2 (SCCAN 365/2025): joint commission damage to property belonging to someone else contrary to s 403 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT). (c) Count 3 (CC 12221/2024): joint commission damage to property belonging to someone else contrary to s 403 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT). (d) Count 4 (CC 12219/2024): joint commission aggravated burglary with intent to commit theft contrary to s 312 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT). (e) Count 5 (CC 12220/2024): joint commission theft contrary to s 308 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT).

3. Mr Kan’s trial commenced on 13 April 2026. He was arraigned and entered pleas of not guilty to all counts.

4. Before reaching a verdict, I must take into consideration any warning or direction which in the ordinary course may have been given to a jury in these proceedings. I must include in this judgment the principles of law which I have applied and the findings of fact upon which I rely.

5. For the following reasons, I find the accused, Aga Khan Kan, not guilty on each count on the indictment as I am not satisfied beyond reasonable doubt that he has been correctly identified as the offender on each count.

Prosecution case

6. In summary, the prosecution alleges on 12 November 2024 in the late evening, Abiathar Templar, parked her white Subaru Outback bearing ACT registration YMW73F in her garage at a property in Braddon. In the early hours of 13 November 2024, unknown persons gained entry to the garage and stole the Subaru belonging to Ms Templar.

7. At about 2:00pm on 5 December 2024 Mr Kan and Ian Jeffrey Heron attended the Cash Converters store at Woden, ACT (“Cash Converters”). Mr Heron is the co-accused. They spoke with a staff member about an electric tricycle for sale and left the store a short time later.

8. At about 2:50am on 6 December 2024 Mr Kan drove the white Subaru Outback to a location adjacent to the Gerald Slaven Ford dealership at Woden. He proceeded to remove the license plates from a Ford Everest motor vehicle parked outside the dealership, and placed them on the Subaru.

9. Shortly thereafter Mr Kan and Mr Heron drove the Subaru into the entrance doors of Bonner House, which is attached to the Westfield shopping centre at Woden, damaging the doors. Mr Kan entered the centre through the damaged doors and attempted to enter Cash Converters. Initially he tried to gain entry by kicking the roller shutters at the entrance to the premises. When that failed, he drove the Subaru into the shopping centre, significantly damaging the vehicle and the premises on the way. Mr Kan drove the Subaru into and shattered the glass windows at the entrance to the Cash Converters store. He then exited the Subaru and entered the store, where he removed an E-tricycle. He departed the location on the E-tricycle and Mr Heron departed in the Subaru.

10. The Subaru was later located by police on 10 January 2025 in Braddon, having been severely damaged by a fire. The vehicle was located a short distance from an apartment where Mr Kan and Mr Heron were then residing.

11. Mr Heron entered a plea of guilty to charges of joint commission damage property (CC 2025/773), joint commission aggravated burglary with intent (CC 2025/772), drive whilst disqualified (CC 2025/774), joint commission theft (CC 2024/12121) drive a motor-vehicle without consent (CC 2024/12122), use a vehicle with improper number-plating (CC 2024/12123) and unlawful possession of stolen property (CC 2024/12124) , together with other charges unrelated to the matter before me. It is agreed between the Prosecution and Mr Kan the charges to which Mr Heron pleaded guilty are characterised as: causing damage to property belonging to the Scentre Group trading as Westfield Woden and Cash converters Pty Ltd trading as Cash Converters Woden, breaking into the Cash Converters store inside Bonner Court with intent to commit theft, on the basis that he did so in the company of the man wearing dark pants, a white T-shirt and a dark cap and joint commission theft of the E-tricycle taken from the Cash Converters store by the man wearing dark pants, a white T-shirt and a dark cap, as well as charges relating to his driving of the Subaru Outback on 6 December 2024. A coroner’s certificate was in evidence confirming Mr Heron’s death was reported to the coroner on 18 January 2026. Elements of the offences

12. The Counts to be addressed are: (a) Count 1 – drive motor vehicle without consent; (b) Counts 2 and 3 – joint commission damage property; (c) Count 4 – joint commission aggravated burglary; and (d) Count 5 – joint commission theft.

13. As the only issue in dispute between the parties was the identification of the offender I have not set out the elements of each count. Agreed facts

14. At the outset of the trial the parties handed up an admitted matters of fact document pursuant to s 184 of the Evidence Act 2011 (ACT). The agreed facts are: (a) Between 1:00am and 7:00am on 12 November 2024, a white Subaru Outback bearing ACT registration number YMW73F and belonging to Abiathar Templar was stolen from Ms Templar’s garage at 5/4 Coolac Place, Braddon, ACT. (b) On 3 December 2024, Craig Watson took his Ford Everest bearing ACT registration number AYAC61T to the Gerald Slaven Ford dealership in Woden for repairs. The vehicle was left parked outside the dealership overnight on 5 December 202[4]. (c) At approximately 2:48am on 6 December 2024, a white Subaru Outback pulled up alongside Mr Watson’s Ford Everest. A man dressed in a white T-shirt and a dark coloured cap was seen to exit the Subaru and remove the front and rear registration plates from the Ford Everest, after which the Subaru drove off. (d) At approximately 3:07am on 6 December 202[4], a white Subaru bearing ACT registration number AYAC61T was used by two men to smash entry through the main entrance doors into Bonner Court (attached to Westfield Woden), and then to break through the entrance door to the Cash Converters store inside Bonner Court (Shop 2). This was the same Subaru Outback stolen from Ms Templar’s garage on 12 November 2024. (e) The driver of the Subaru Outback (wearing dark pants, a white T-shirt and a dark cap) exited the vehicle and entered the Cash Converters store, from where he removed an electric tricycle and rode it out of Bonner Court. (f) A second man dressed in dark clothing, later identified as Ian Heron, followed the Subaru Outback into Bonner Court on foot, got into the driver’s seat and drove it out. (g) The Subaru Outback belonging to Ms Templar and used to break into Bonner Court on 6 December 2024 was found abandoned and burnt out in the rear garage at 40 Ijong Street, Braddon on 10 December 2024. (h) Neither the man wearing dark pants, a white T-shirt and a dark cap nor Ian Heron had permission to enter the Cash Converters store located in Bonner Court in Westfield Woden on 6 December 202[4] and entered with intent to commit theft. (i) The man wearing dark pants, a white T-shirt and a dark cap dishonestly appropriated the electric tricycle taken from and belonging to the Cash Converters store. (j) The same man wearing dark pants, a white T-shirt and a dark cap caused damage to property belonging to the Scentre Group trading as Westfield Woden (namely, the front entrance doors to Bonner Court). (k) The same man wearing dark pants, a white T-shirt and a dark cap caused damage to property belonging to the Cash Converters Pty Ltd trading as Cash Converters Woden (namely, the entrance door to the Cash Converters store inside Bonner Court). (l) The same man wearing dark pants, a white T-shirt and a dark cap dishonestly drove the white Subar[u] Outback belonging to Ms Templar (and used to break into Bonner Court) on 6 December 2024. (m) On 30 April 2025, Ian Heron entered a guilty plea to a charge of breaking into the Cash Converters store inside Bonner Court with intent to commit theft, on the basis that he did so in the company of the man wearing dark pants, a white T-shirt and a dark cap. (n) On the same day, Ian Heron also entered guilty pleas to charges of causing damage to property belonging to the Scentre Group trading as Westfield Woden and Cash Converters Pty Ltd trading as Cash Converters Woden (o) Ian Heron also entered guilty pleas to a charge of joint commission theft of the electric tricycle taken from the Cash Converters store by the man wearing dark pants, a white T-shirt and a dark cap, as well as charges relating to his driving of the Subaru Outback on 6 December 2024. Directions

15. In the matter of DPP v Campbell [2023] ACTSC 307, Taylor J, helpfully outlined the general directions I must give myself in the context of a judge alone trial. I give myself the following directions.

Onus and standard of proof

16. The prosecution bears the onus of proving Mr Kan’s guilt, and I can only be satisfied of his guilt, if I am satisfied beyond reasonable doubt. Mr Kan is presumed to be innocent unless and until the evidence I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept fails to satisfy me to that degree, then I must find Mr Kan not guilty. Each element of the offences must be proved beyond reasonable doubt.

Fact finding and evidence

17. The facts I find must be based on the application of an open and unbiased mind in assessing the evidence. The evidence must be assessed without emotion, and I must adopt a clinical and dispassionate decision-making process. Both sides of the bar table are entitled to my verdict free of partiality and prejudice. I may draw inferences from the facts I find established by the evidence; however, those inferences must be justifiable and rational in the circumstances. I may use my common sense and individual life experience in assessing the evidence.

18. I must assess the evidence of each witness to determine whether they have an accurate and reliable memory of the events about which they give evidence. I am not required to accept a witness’ evidence wholly or to reject it wholly. I may find the evidence of a witness to be truthful but wholly unreliable. I may also find the evidence of a witness to be truthful but partially unreliable. I may also reject the evidence of a witness as wholly untruthful and wholly unreliable.

Accused did not give evidence

19. Mr Kan did not give evidence. There is no obligation on an accused person to give or call evidence in a criminal trial. No adverse inference may be drawn from that decision. The accused person is entitled to say nothing. It is for the prosecution to prove his guilt beyond reasonable doubt. I cannot use the absence of evidence from Mr Kan to fill in gaps in the prosecution case nor can I use it to strengthen the prosecution case. I must not speculate about what may have been said had Mr Kan given evidence. In summary, I must not use the decision of Mr Kan not to give evidence in deciding the case. Circumstantial evidence

20. There is no contention between the parties the “man in the white T-shirt” committed each of the offences. The prosecution asks me to draw the inference, from all the circumstances proved, that Mr Kan is the man in the white T-shirt.

21. The prosecution will fail to prove its case beyond reasonable doubt unless the conclusion that the accused person committed the offences is the only rational inference available from the whole of the circumstances established to my satisfaction on the evidence I accept. That is, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances established by the evidence. That evidence is to be assessed as a whole and the probative force of the evidence may be cumulative.

22. This is a “strand in the cable” case. It is not necessary for the various factual strands to be proved beyond reasonable doubt. It is only the elements of the offence itself which need to be proved beyond reasonable doubt. In assessing whether each of the elements is proved beyond reasonable doubt it is relevant to consider the probative value of the whole of the evidence which may be greater than the sum of its parts.

23. Reliance placed on circumstantial evidence does not indicate a case that is weaker than one reliant upon direct evidence. In each case the question to be addressed is whether the prosecution has proved the elements of the offence to the requisite standard. I must be satisfied the inference Mr Kan is the man in the white T-shirt has been proved beyond reasonable doubt. If I am not satisfied of this, I must acquit.

Identification evidence

24. The main issue in this case concerns the identification of Mr Kan. The prosecution asserts Mr Kan is the man in the white T-shirt seen in Cash Converters on the afternoon of 5 December 2024, then seen driving the white Subaru, and finally seen in Bonner House and Cash Converters in the early hours of 6 December 2024, committing the offences alleged in the indictment. Mr Kan accepts the man in the white T-shirt depicted in each of the episodes I have described is the same man, but denies he is that man.

25. I must approach the evidence of the prosecution, in so far as it identifies the man before me as the man in the white T-shirt, with caution. Identification evidence may be unreliable. In this case there were no witnesses to the incident. Instead, I am asked to make a comparison of the man in the white T-shirt observed in CCTV footage with Mr Kan. Special attention or care is called for as I may be mistaken in my assessment of the identification evidence. The experience of courts in Australia and overseas over many years has demonstrated conclusions reached about identification may prove unreliable. I must examine the evidence very carefully, mindful of the fact there have been many occasions where conclusions about identification reached by judicial officers have been shown to be incorrect.

26. In this case I am asked to make an assessment of Mr Kan’s physical appearance in court and to compare it with the physical appearance of the person in the CCTV footage. In undertaking that task, I am mindful of the particular risks of in court identification: Festa v the Queen [2001] HCA 72; 208 CLR 593 at [18]. To similar effect I note the warning of Baker J in Wolter v Broomhall [2023] ACTSC 331; 106 MVR 54 at [73]: Although s 116 of the Evidence Act does not apply where the evidence requires a comparison by the Court rather than evidence of an identification by a witness, the common law concerns about the reliability of such evidence which underlie s 116 apply with added force to such evidence: see R v Kirby [2000] NSWCCA 330 at [43]-[44] and [57]. Challenge to admissibility of police search evidence obtained on 11 December 2024

27. Mr Kan objects to the admission of all evidence obtained by police in the course of a search of premises described as 21/65 Lowanna Street, Braddon, conducted on 11 December 2024. In particular, he objects to admission of evidence obtained as a consequence of that search in the following forms: (a) the items of clothing seized by police; and (b) anything said by Shannon Lofts on that day, and in the voir dire.

28. The basis of the objection is s 138 of the Evidence Act, which provides, relevantly: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained— (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it must take into account— (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

29. In written submissions, counsel for Mr Kan relies on two improprieties: (a) an alleged culture of police treating their obligation to activate body-worn cameras as an afterthought, rather than a core obligation; and (b) the systemic misuse of the crime scene powers of police, where use of the threat of creating a crime scene is not limited to cases where the power is enlivened, but rather is utilised in every case.

30. There is no suggestion the physical obtaining of the evidence itself was improper or unlawful. Mr Lofts provided ostensible consent for the search. The asserted improprieties or contraventions occurred prior to the obtaining of the evidence. The objection is therefore based on s 138(1)(b) of the Evidence Act, as being evidence obtained “in consequence of” an impropriety or in contravention of an Australian law. The contraventions or improprieties relied on are: (a) police failed to activate their body-worn cameras when seeking to obtain Mr Lofts’ consent for police to search his home; and (b) prior to gaining Mr Lofts’ consent for police to search his home, Senior Constable Nikias represented to Mr Lofts that the consequence of not providing consent was that a crime scene may, or would, be established in his home.

31. Although “improperly” for the purposes of s 138(1)(b) of the Evidence Act, is not defined, Mr Kan relies on the observations of Murrell CJ in R v Vincent; R v Young (No 2) [2021] ACTSC 50 at [34], where her Honour quoted with approval the decision of Basten JA (with whom Barr J agreed) in Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 at [23]. His Honour there observed: It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. Thirdly, the concepts of “harassment” and “manipulation” suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced.

32. In further illustration of the point Mr Kan relies on the decision of the New South Wales Court of Appeal in Parker v Comptroller-General of Customs [2007] NSWCA 348; 243 ALR 574 at [52] where Basten JA observed a police officer inducing the occupants of premises to allow a search to be undertaken voluntarily in the false belief, induced by that officer, they held a warrant which could be relied upon if consent were not forthcoming, was as an example of improper police conduct.

33. Mr Kan accepts the establishment of an impropriety associated with the obtaining of evidence is not enough to satisfy the requirements of s 138(1)(b) of the Evidence Act. There must also be an established causal connection between the impropriety and the obtaining of the evidence. An attenuated causal link may suffice as long as the circumstances do not weaken the link to the point of destruction. A weak link will be a relevant matter in the balancing exercise required of the court: Slater v The Queen [2019] VSCA 213 at [42]-[44].

Police use of body-worn cameras – was there a contravention?

34. Sections 43B(2)-(4) of the Crimes (Surveillance Devices) Act 2010 (ACT) (the CSD Act) provides: 43B Use of body-worn cameras by police officers … (2) A police officer who is wearing a body-worn camera must use the camera when dealing with a member of the public in the course of the officer’s duties. (3) Subsection (2) does not apply in circumstances in which the use of a body-worn camera— (a) is not reasonably practicable; or (b) could cause or increase a risk to a person’s safety; or (c) would unreasonably limit a person’s privacy. (4) The use of a body-worn camera by a police officer under this section must be— (a) overt; and (b) in accordance with the guidelines under section 43C. … (examples omitted by this court)

35. Senior Constable Nikias is the informant. The BWC footage was in evidence before me. There can be no doubt the Senior Constable’s BWC was not activated until after the consent of Mr Lofts had been secured for a search of the premises. The footage commences just prior to Mr Lofts admitting the police officers into the apartment at 8:13:09am on 11 December 2024 with sound being turned on at 08:13:38am (Transcript 26.22 – 27.26 and 34.5 – 35.26). Although there is some inconsistent evidence as to who else was present with Senior Constable Nikias, I accept it is likely Constable Ngakham was also present outside the apartment when the initial discussion with Mr Lofts took place. Constable Ngakham’s body-worn camera footage was not activated until he entered Mr Lofts’ apartment (Transcript 59.34 – 60.9). There is no suggestion any of the elements of s 43B(3) of the CSD Act are satisfied in the circumstances. That is, there is no suggestion there was some impracticality preventing earlier activation of the BWC, nor was there any relevant safety or privacy risk. The discussion with Mr Lofts, with a view to securing his consent to search his place of residence, was clearly an interaction in the course of the officers’ duties. The obligation to use the camera, absent one of the exceptions in s 43B(3) of the CSD Act applying, was in the circumstances mandatory, and the obligation was breached by Senior Constable Nikias and Constable Ngakham in the circumstances. I am therefore satisfied a breach of the requirements of s 43B of the CSD Act is established.

36. Having reached that view, I accept the submission of the prosecution to the effect there was no evidence of a deliberate or reckless attempt by the officers to subvert the CSD Act, nor to undermine the policy reasons behind the legislation and the guidelines as to the use of BWCs. On the contrary, the failings of the officers appear to me to have been entirely inadvertent. I note in the case of Senior Constable Nikias, a significant element of that failure was likely attributable to the 30 second lag time in the commencement of audio once the BWC is activated.

Was there a causal link between the BWC contravention and obtaining the evidence?

37. Mr Kan contends the question to be answered is whether Mr Lofts’ consent was improperly influenced by a threat to establish a crime scene, being a threat the police should not have made. He says, without the BWC footage, it is impossible to know precisely what was said to Mr Lofts about the establishment of a crime scene, the way in which the words were said and the reaction and response of Mr Lofts, before his consent was proffered. The absence of that evidence makes it impossible to know whether the giving of consent by Mr Lofts was influenced by an improper assertion regarding the establishment of a crime scene in contravention of ss 210D(1) and (2) of the Crimes Act 1900 (ACT).

38. I do not accept a causal connection is established between the delayed activation of the BWC and the giving of consent for a search of the premises. The situation may have been different if there was evidence either from Mr Lofts, or from the police officers, supportive of the proposition that activation of the BWC was delayed to facilitate an opportunity for the placement of some undue pressure on Mr Lofts, or to enable the delivery of some statement contrary to law, so as to influence him to provide his consent. There is no indication at all of any conduct of that kind occurring. On the voir dire Mr Lofts gave evidence to the following effect on the topic: Would you agree that when police asked if they could enter your home, you didn't actually want police to go through and look through your belongings in your home? Is that - sorry, you will need to verbalise your answer?---It didn't faze me at the time. HIS HONOUR: Your answer was it didn't faze you at the time. Was that - - -?---No, not really, no. … How did it make you feel, the prospect of police standing outside your door?---It didn't really phase me because since a couple of people – I was being – I was being kind of standing – stood – stood over at this time by Aga and another person in my flat. (Transcript 45.35 – 41 and 46.29 – 32)

39. In the absence of evidence of undue or unlawful influence in the process of securing consent, I am not satisfied that even an attenuated link between the failure to activate BWC and the securing of consent for a search is established.

The crime scene issue

40. Sections 210D(1) and (2) of the Crimes Act provide: 210D Establish crime scene—private premises (1) A police officer may establish a crime scene at private premises if— (a) the police officer reasonably suspects that an offence punishable by a term of imprisonment has been or is being committed at the premises or somewhere else within or outside the ACT; and (b) the police officer considers that it is reasonably necessary to immediately establish a crime scene at the premises to protect or preserve evidence relating to the offence; and (c) consent has been given by— (i) if the premises are occupied—the occupier of the premises; or (ii) if the premises are not occupied—the owner of the premises. (2) However, a police officer may establish a crime scene at private premises without consent if— (a) the police officer reasonably suspects that the offence is a serious offence; and (b) the police officer— (i) has made reasonable attempts to obtain the consent of— (A) if the premises are occupied—the occupier of the premises; or (B) if the premises are not occupied—the owner of the premises; or (ii) considers that it is reasonably necessary in the circumstances to establish a crime scene without consent.

41. Section 210D was inserted into the Crimes Act upon the introduction of the Crimes (Police Powers and Firearms Offences) Amendment Act 2017 (ACT) which commenced on 8 December 2017. My attention was drawn to relevant portions of the explanatory statement for the amendment act in the following terms: Statutory crime scene powers As the legislation currently stands, police have no express statutory power to establish and control a crime scene in a public place or private premises. While there are a number of common law powers to secure crime scenes these powers are limited in scope. For example, a police officer has the power to enter premises without a warrant where the officer is pursuing an offender who enters the premises. The inability for police to secure a crime scene in a private premise while obtaining a search warrant under sections 194 or 205 of the Crimes Act is especially problematic in relation to OMCG related shootings where rival gangs, despite being the victim of a crime, will not consent to police entry as they do not want to be seen to be cooperating with investigations. The inability to secure a crime scene in a public place means police have no power to exclude or remove persons who may be deliberately or inadvertently interfering with evidence. For example in February 2016, police received information from a source that a drive-by shooting had occurred at an OMCG member’s property. Police attended the home and spoke with the victim who denied that a shooting had taken place and declined to give police consent to search. Police observed damage from what appeared to be shotgun pellets to several surfaces at the front of the home. Tradesmen were already on site in the process of removing and replacing the damage. Police considered applying for a search warrant under section 205 Crimes Act however it was apparent that any evidence would be destroyed by the time the warrant was issued. The application for the warrant was abandoned. A suspect was identified and during the execution of a later search warrant at the suspect’s apartment, a shotgun was recovered from a common area near his unit. In the absence of any forensic evidence from the scene of the offence, it was not possible to link the shotgun to the shooting. Providing crime scene powers in statute will assist the public to understand the powers police have when establishing a crime scene and using crime scene powers. While in most instances a person will consent to the establishment of a crime scene the Bill provides certainty around the powers available and places a set of obligations on police officers to ensure rights are protected and where the powers are exercised it is in the least restrictive way. It also provides certainty in relation to the duration that crime scenes can be established. The statutory crime scene powers are explained in detail in the clause by clause section of the explanatory statement. … For example, a bullet is fired into a tattoo shop at 2am, when the shop is closed and known to be unoccupied. Police know that there is a fired projectile of forensic value somewhere within the shop, but nobody is there so they wait outside. The owner arrives at 6am and asks to go inside. Police form the view that it is immediately necessary to exercise a power to prevent the owner entering his store as he may deliberately or inadvertently damage the forensic evidence. Of all the various crime scene powers available to police under new section 210G, only 210G(2)(c) is necessary and justified at that time. If the circumstances at the crime scene do not change there is no need to exercise any other power. … [sic]

42. Mr Kan submits the purpose of the crime scene powers is to preserve evidence pending the issue of a search warrant, in circumstances where police are reacting to an urgent stimulus. It is not intended that crime scene powers are used routinely as part of pre-planned evidence gathering of the kind occurring in this instance. He says that is relevant in construing the words “reasonably necessary to immediately establish a crime scene at the premises to protect or preserve evidence”. Mr Kan notes there appears to have been no judicial consideration of the meaning of those words in the ACT.

43. As to the words “reasonably necessary,” he relies upon recent consideration of the phrase by Kirk JA (with whom Mitchelmore JA and Basten AJA agreed) in State of New South Wales v Dennis [2025] NSWCA 118; 117 NSWLR 404 at [60]: In summary, then, s 99(1)(b) [of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)] requires that the arresting police officer subjectively is satisfied that the arrest is reasonably necessary for one or more of the identified reasons. Reasonably necessary connotes, in this context, appropriate and adapted to achieve one or more of the identified reasons. The arresting officer’s satisfaction must not be manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide. The existence of alternatives to arrest might in some cases be relevant to assessing that issue. But the provision does not require police officers subjectively to consider alternatives to arrest in every case as a condition of validity. And it is not for the courts to substitute their own view as to whether alternatives should have been pursued. (insertion and emphasis as per defence written submissions)

44. Mr Kan submits the interpretation of “reasonably necessary” applied in Dennis is apposite in interpreting s 210D of the Crimes Act. He submits the evidence in this case points to a systemic practice of police warning a crime scene would be established as an automatic consequence of a denial of consent for a search, or warning a crime scene may be established without police turning their minds to whether they had power to do so. He relies on the following passages of evidence from Senior Constable Nikias: …but I explained we’d like consent to search, and the process is after that is, if we suspect something is in there, we would crime scene it, have everyone removed and crime scene it, and apply for a search warrant. That's the procedure… (Transcript 27.18 – 21) What would have been the consequences had Mr Lofts either not consented at this point, or later on during the course of the search not consented?---If that was – if – if – and I – in general what we do is, if the person withdraws their consent then we’d ask – we’d inform them now that we are going to crime scene the place, explain why we’re crime scening [sic] it for the purpose of – it was a ram raid burglary, and we believe there’s evidence here, we suspect there's evidence here. We ask those persons to leave the premises. We stand outside, then we make an application for a search warrant. (Transcript 29.11 – 18) … as I stated earlier, if there's no consent given - and this is not - if there's no consent given and we believe or if an officer suspects there's something – I believe there's something there, then we enact the crime scene power where, as I explained before, we will apply for a warrant. So is it your evidence, then, that you said to Mr Lofts words to the effect of 'If you do not consent to us coming in, we will establish a crime scene in your home'?---I can't - my exact words, I can't recall my exact words. That is, anything I would have said would have been the way we do it in a procedure. I have my diary with me at the time. Yes?---Within that diary, which I bought early on, it has a - like, a - what do you call? Like, an information card on it, which we sort of follow if we need to. So are you saying that what you have told Mr Lofts is standard procedure?-- Yes. Is there anything of concern to you about that?---No. No. (Transcript 35.45 – 36.17)

45. And from Detective Sergeant Billings: Is it standard practice to tell an occupier that if they don’t consent, a crime scene would be established in their premises?---No. It's standard practice to say may be established, not will be. Okay, but it is standard practice to say it may be established?---Yes, because that's - that's the next step that could happen. That could occur. So we allow the occupier to know everything. And that's for every single instance when police seek consent to enter someone's home?--- Well, every single one that I've been part of. (Transcript 68.35 – 44)

46. Mr Kan points to the absence of evidence from any of the police officers to the effect there were circumstances of urgency applying to the search proposed to be conducted at Mr Lofts’ apartment. He relies on the following passages of evidence: To your knowledge, was there any circumstances of urgency that required police to establish a crime scene at Mr Lofts’ home?---Not that I can think of, no. … Would you agree that the basis upon which Senior Constable Nikias said that is not clear to you? That is, the basis for him claiming that the crime scene ---?---The way I would normally word it – sorry. The way I’d normally word it is that we may apply for a search warrant. That’s how I would say it. I don’t - - - But no reference to using a crime scene?---Generally, no. No, I wouldn't say that. (Transcript 52.8 – 10 and 54.39 – 46, Re Senior Constable Klebber cross-examination) So there was some sort of briefing between the four of you? Is that right?---Yes, a briefing just to plan which is why we were going to Mr Lofts’ apartment. … There was nothing discussed about evidence needing to be urgently secured, was there?--- Not of – not of I can recall. … So to your know at that point in time there was no basis to establish a crime scene, was there?---No, I guess not, no. [sic] (Transcript 60.18 – 20, 60.26 – 27 and 62.12 – 14, Re Constable Ngakham cross-examination) So would you agree that there was time to seek a search warrant as an alternative to seeking Mr Lofts' consent?---There's always time to seek a search warrant. And there was nothing told to you that you make you think that evidence would urgently be disappearing if a crime scene was not established?---Not at that stage, no. … Weren’t you worried that you would tip off the occupier of that premises by stating that you wanted to get into that home?---That's what crime scene powers are for. (Transcript 67.42 – 68.3 and 67.34 – 36, Re Detective Sergeant Billing cross-examination)

47. Mr Kan says with reference to the evidence described above I should: (a) find Senior Constable Nikias did not turn his mind to whether it was ‘reasonably necessary’ to establish a crime scene because such an exercise would only occur if consent was denied; (b) find there was no circumstance of urgency regarding the loss of evidence prior to police approaching Mr Lofts; (c) find there was no evidential basis to conclude Mr Lofts would tamper with evidence; (d) find there was no evidential basis to conclude Mr Kan was going to imminently attend 21/65 Lowanna Street Braddon; (e) construe s 210D(1)(b) of the Crimes Act as imposing the following preconditions: (i) a police officer must believe it is necessary to establish a crime scene at a private premises to protect or preserve evidence relating to the offence punishable by imprisonment; and (ii) such a belief must not be manifestly unreasonable, arbitrary, capricious, irrational or not bona fide. (f) find that a bare theoretical possibility of the interference with evidence is likely to be an ‘arbitrary’, ‘capricious’ or ‘manifestly unreasonable’ belief of the necessity to establish a crime scene, given such a low threshold will be met in all circumstances where evidence is beyond the control of police; (g) construe s 210D(1)(b) of the Crimes Act as generally requiring police to react to some urgent stimulus, having regard to the purpose of the legislation; (h) disapprove of a practice where occupiers are threatened with the creation of a crime scene, and all the consequences it entails, without police turning their mind to whether a crime scene could be established in any individual case; and (i) disapprove of the exercise of crime scene powers as part of a pre-planned, evidence-gathering exercise where no urgent circumstance exists prior to the seeking of consent.

48. The prosecution submits the interactions of Senior Constable Nikias with Mr Lofts were entirely consistent with the police officer’s obligations under s 210D of the Crimes Act. The clear intent of the legislation is to empower police to mitigate deliberate or inadvertent interference with evidence, in circumstances where consent of an occupier to search premises is not forthcoming. The crime scene powers operate so as to preserve the integrity of the scene for the time it takes police to exercise other entry and search powers. The necessity of time, or urgency, arises at the moment an occupier or other person is on notice that police are seeking to search particular premises. In the present case the prosecution submits if consent was not provided by Mr Lofts the test of whether it was reasonably necessary to establish a crime scene would have been established so as to protect the integrity of evidence in the form of the clothing subsequently located. To that end Senior Constable Nikias told Mr Lofts what he believed might be there. In fairness to you, can you just tell us again what your evidence is as to your recollection about what discussion you had with Mr Lofts relating to crime scenes?---It would have been 'I'm here for' the specific reason why. I wasn't here for him, I was here for Mr Kan, and we were looking for items that belonged to Mr Kan in - that's what we're there for. Those - they weren't my exact words. I don't recall my exact words. (Transcript 35.37 – 42, Re Senior Constable Nikias cross-examination)

49. The information held by police that Mr Kan was coming and going from the property is a relevant matter in assessing whether the requirements of s 210D of the Crimes Act are met (he was in fact arrested there on the following day). The prosecution submits there is nothing emerging from the BWC footage to suggest any unfairness in the procuring of Mr Lofts’ consent to the search process.

50. The prosecution points to the absence of any legislation or guideline directing or prohibiting police officers from warning an occupier of premises of the consequences of not consenting to a search. It is therefore a matter for the discretion of the attending officer, and, as Senior Constable Nikias explained, he makes the disclosure as a matter of fairness to the person from whom consent is sought.

51. The prosecution submits there is no basis for concluding there is a systemic practice of misusing the crime scene powers in the context of a consent search. In this case Senior Constable Nikias provided the warning after turning his mind to whether he believed the powers were available to him. The prosecution highlights his use of the word “may” in describing the prospect of a crime scene being declared.

52. In short, the prosecution submits there was no impropriety in the way Senior Constable Nikias explained to Mr Lofts the powers which may have been available to him had Mr Lofts not consented to his apartment being searched.

Crime scene powers – legislative objects and interpretation

53. Before the Crimes (Police Powers and Firearms Offences) Amendment Act 2017 (ACT) was introduced on 8 December 2017, police had no express statutory power to establish and control a crime scene in a public place or on private premises. Some common law powers were recognised, such as the right to enter premises without a warrant in pursuit of an offender, but they were limited in scope. Some relevant portions of the explanatory statement accompanying the Bill are set out above. It also records: “[i]mportantly the Bill provides that police may only exercise a power where it is immediately necessary to protect or preserve evidence.”

54. With particular reference to s 210D of the Crimes Act, the explanatory statement provides: In relation to a private premises, the Bill takes a best practice approach, by requiring a police officer to obtain consent to establish the crime scene from the owner or occupier. In seeking consent the police officer must tell the owner or occupier of the premises the offence to which the crime scene relates and the expected duration of the crime scene. It is enough that the offence be described in general terms and it is not necessary to describe the offence precisely or using technical language. If consent is not provided or impracticable to obtain a police officer can establish a crime scene at a private premises if: a) the officer reasonably suspects that the offence is a serious offence; and b) the officer— (i) has made reasonable attempts to obtain the consent of the owner; or (ii) considers that it is reasonably necessary in the circumstances to establish a crime scene without consent.

55. And on the explanation to be provided to an occupier where consent is withheld: It would be operationally impractical to further legislate the exact way police undertake this obligation as it will depend on the circumstances of each matter.

56. And finally: If it is not immediately necessary to establish a crime scene at a private premises the police officer should apply for a search warrant under sections 194 or 205 of the Crimes Act or use a power under another Territory law. In relation to new sections 210C and 210D the model provides that a crime scene can be established where there is evidence in a place of the commission of an offence that is being or was committed elsewhere, including an offence committed outside the Territory and it is immediately necessary to establish the crime scene to preserve and protect evidence.

57. I am mindful of what was said about the use of extrinsic material by Gageler J in North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569: Extrinsic material “cannot be determinative; it is available as an aid to interpretation”. Extrinsic material does not displace the text but can illuminate the meaning conveyed by the text.

58. Acknowledging the limitations that apply to the use of explanatory material in interpreting legislation, it is clear the introduction of the statutory crime scene regime was directed to providing police with additional powers of inspection and preservation of evidence in circumstances where there is a reasonably held belief evidence may be lost if police simply wait for a search warrant to issue.

59. Where a crime scene is established, either with or without consent of the occupier of private premises, ss 210D(3) and (4) of the Crimes Act mandate matters that must be communicated to the occupier, or in respect of which reasonable steps must be taken to communicate with the occupier. There is no direction given in the legislation as to what should or may be communicated to an occupier of premises about the prospect of a crime scene being established in circumstances where the exercise occurring is that of seeking consent for a search of premises without first establishing a crime scene.

60. I accept, as the prosecution submits, I have not been taken to any legislation or related guideline directing that a police officer warn or not warn an occupier of premises about the consequences of not consenting to a voluntary search.

61. The particular obligations under s 210D of the Crimes Act arise where a police officer seeks to establish a crime scene at private premises. In that event the following considerations apply: (a) the police officer must reasonably suspect an offence punishable by a term of imprisonment is or has occurred at the premises or elsewhere in the ACT; and (b) they must consider it reasonably necessary to establish a crime scene to protect or preserve evidence; and (c) where consent to the establishment of a crime scene is sought the police officer must tell the relevant person: (i) if reasonably appropriate, in general terms the offence to which the crime scene relates; and (ii) the expected duration of the crime scene. (d) where a crime scene is established without consent the police officer must take reasonable steps to tell the relevant person: (i) that a crime scene has been established; (ii) if reasonably appropriate, in general terms the offence to which the crime scene relates; and (iii) the expected duration of the crime scene.

62. The conduct of Senior Constable Nikias was, in the circumstances described, consistent with those obligations. He was clearly concerned evidence within Mr Lofts’ property, where Mr Kan had been staying, needed to be preserved, and may be lost or damaged where it wasn’t secured at the time of the inspection. It was therefore appropriate for him to alert Mr Lofts to the prospect that a crime scene may be established at the premises.

Systemic misuse?

63. Mr Kan relies on the evidence of the police officers concerning the application of crime scene powers as demonstrating a systemic practice of either, warning a crime scene would be established as an automatic consequence of a denial of consent, or, warning a crime scene may be established without police turning their mind to whether the power to do so existed in the circumstances. The evidence relied on in this regard was that of Senior Constable Nikias and Detective Sergeant Billing.

64. There are a number of difficulties with Mr Kan’s proposition. The first is the lack of clarity about just what was said to Mr Lofts at the door before he provided his consent for a search of the premises. It was quite clear Senior Constable Nikias did not have a recollection of the words he used and he was doing his best to answer the defence questions with reference to what he believes he would have said. The second difficulty is the approach to the questioning of the police officers was itself lacking in clarity. It was not apparent whether they were being asked about the usual practice in seeking consent to conduct a search of premises or the usual practice in seeking consent for the establishment of a crime scene pursuant to s 210D of the Crimes Act or both. Unsurprisingly there was some consequent confusion in their responses. In addition, given the questioning on this particular topic was limited to evidence of three police officers attending on the day, whatever may be gleaned from the answers of those three officers falls well short of establishing a systemic practice of the kind asserted.

65. To the extent their responses evidenced some inconsistency of understanding as to the application of crime scene powers it is unsurprising, given the lack of specificity of the questioning, and the lack of guidelines concerning the particular words to be used in giving effect to a crime scene beyond those set out in s 210D of the Crimes Act. By way of illustration of the point the following exchange occurred between counsel for Mr Kan and Senior Constable Nikias: In fairness to you, can you just tell us again what your evidence is as to your recollection about what discussion you had with Mr Lofts relating to crime scenes?---It would have been 'I'm here for' the specific reason why. I wasn't here for him, I was here for Mr Kan, and we were looking for items that belonged to Mr Kan in - that's what we're there for. Those - they weren't my exact words. I don't recall my exact words. But what did you say about crime scenes?---A crime scene would have been - as I stated earlier, if there's no consent given - and this is not - if there's no consent given and we believe or if an officer suspects there's something - I believe there's something there, then we enact the crime scene power where, as I explained before, we will apply for a warrant. So is it your evidence, then, that you said to Mr Lofts words to the effect of 'If you do not consent to us coming in, we will establish a crime scene in your home'?---I can't - my exact words, I can't recall my exact words. That is, anything I would have said would have been the way we do it in a procedure. I have my diary with me at the time. Yes?---Within that diary, which I bought early on, it has a - like, a - what do you call? Like, an information card on it, which we sort of follow if we need to. So are you saying that what you have told Mr Lofts is standard procedure?-- Yes. Is there anything of concern to you about that?---No. No. I just want to make it clear. Your evidence is not that you said to Mr Lofts, 'If we find something of value, we will crime-scene your home.' It's 'If you do not provide consent, we will crime-scene your home.' Is that right?---If we're not given - so if we're not given consent to search, then we will apply for a crime scene, yes. (Transcript 35.37 – 36.23, Re Senior Constable Nikias cross-examination)

66. The questioning began with an enquiry directed to the words used by the Senior Constable in securing his consent for a search of the premises. The witness immediately responded with words framed in terms of what he would have said. When the questioner pressed him about crime scenes, the Senior Constable proceeded to give a response that was clearly directed to describing the usual practice in establishing a crime scene as opposed to his usual practice in seeking consent to undertake a search of premises.

67. In summary the evidence falls well short of establishing a systemic practice of the kind contended for by Mr Kan.

Was the reference to use of crime scene powers in this case improper or in contravention of an Australian law?

68. Dealing first with the initial conversation outside the door of the premises between Senior Constable Nikias and Mr Lofts, as counsel for Mr Kan concedes, just what was said is unknown. Senior Constable Nikias’ evidence on the topic was: (a) Transcript 27.10 – 22: To – to the best of my knowledge, I’ve asked him if I – if we – he’ll allow us to do a consensual search of his premises or words to that – something like that. … He consented to having a search. … To the best of my knowledge, yes, if – I’m trying to recall something now that happened a while ago, but I explained we’d like consent to search, and the process is after that is, if we suspect something is in there, we would crime scene it, have everyone removed and crime scene it, and apply for a search warrant. That's the procedure. I can't recall my exact words. I can't recall. (b) Transcript 35.39 – 36.1 – 12, 36.21 – 30 and 36.36 – 45: It would have been 'I'm here for' the specific reason why. I wasn't here for him, I was here for Mr Kan, and we were looking for items that belonged to Mr Kan in - that's what we're there for. Those - they weren't my exact words. I don't recall my exact words. … A crime scene would have been - as I stated earlier, if there's no consent given - and this is not - if there's no consent given and we believe or if an officer suspects there's something – I believe there's something there, then we enact the crime scene power where, as I explained before, we will apply for a warrant. … I can't - my exact words, I can't recall my exact words. That is, anything I would have said would have been the way we do it in a procedure. I have my diary with me at the time. … Within that diary, which I bought early on, it has a - like, a - what do you call? Like, an information card on it, which we sort of follow if we need to. … I can't recall the actual legislation, but I have an information card inside my diary that I need to refer to. … I can't recall that, sorry. … It gives the opportunity to see the person. It's - it gives the opportunity to Mr Lofts. He has a right to know what's happening, the big picture. Either he can consent - he needs to be aware that - why I'm there, which I explained why I was there, and what rights he has. That's what it is. It's his right to know what happens, the whole procedure. … Because that was the - that's the decision we made there and then. We didn't - that was just on the decision there and then. (c) Transcript 37.36 – 38.3: That is the procedure, where anyone inside a premise, we would have them stand outside. … I can't recall the exact conversation, no. … Yes. That's correct, yes. If - that's correct, yes. … I don't recall that part. No, I don't recall it. … I don't recall. Again, with all due respect, yes, I don't recall the exact conversation.

69. The second conversation of relevance occurred when the Senior Constable was inside the apartment with Mr Lofts. At that point a search of the premises had already at least commenced. The second conversation is recorded in BWC footage and is transcribed below (Mr Lofts’ responses have not been inserted): …alright Shannon what we’re gonna do is [inaudible]. Shannon do you have a middle name? … L-O-F-T-S One second mate, I’ll just mute for your date of birth ... Personal details. You are the lawful occupier at unit 21 of 65 Lowanna street Alright Shannon. So, Shannon, mate um this a um consent to conduct a search of your premises. Um So obviously um you--- you ---you’ve given us --- you agree that you’ve given us consent to search your premises. Um This is the form that allows us to do it, um mate at any time um --- obviously we’re gonna be conducting this in relation to Aga Kan, and I ---and in relation to an aggravated burglary that occurred at Cash Converters Woden. Again this is not anything to do with you, its just like I said previously our information says that he’s come and gone from here there may be some of his belongings here ok. That’s nothing to do with you. You understand Shannon that at any time you wish you can cease the consensual search. So I’ll just remind you, if that happens what we may have to do then, is we’ll create a crime scene then make an application for a warrant to search your premises. So we have to crime scene it, no one can come in and out, we just have to stand outside and we make an application ok. So that’s what it’ll be. You got any questions in relation to that mate? … [sic]

70. There are portions of the BWC footage where there is no audio attached. Senior Constable Nikias addressed those portions by stating they reflected periods where he was conversing with his colleagues. The video footage demonstrates Mr Lofts was also speaking at times during the periods where there is no audio, including what appears to be an extended conversation between Senior Constable Nikias and Mr Lofts just prior to securing Mr Lofts’ signature on the consent to search form. However, Senior Constable Nikias was not cross-examined further about the content of the unrecorded discussion with Mr Lofts and neither of the parties addressed the issue in their submissions before me.

71. Importantly, for the purposes of my analysis, the police officers present at Mr Lofts’ apartment on 11 December 2024 were not engaged in seeking his consent for the establishment of a crime scene. They were seeking his consent to conduct a search of the premises. To the extent that Senior Constable Nikias made references to the prospect of a crime scene being established where a consensual search was not permitted, I am not satisfied there is any relevant breach of s 210D of the Crimes Act. The section is only enlivened in the context of seeking to establish a crime scene. The evidence does not demonstrate the communications with Mr Lofts were delivered so as to suggest to him, in some improper way, if he did not consent, a crime scene would be established in his apartment, so as to unreasonably or unlawfully influence his decision to consent to the search.

72. The analysis relied upon by Mr Kan from Dennis as to the meaning to be given to “reasonably necessary” in s 210D of the Crimes Act only arises where an officer is seeking to establish a crime scene. That point had not been reached. To disclose to Mr Lofts the prospect of it being reached in the circumstances of this case, where there was a sound basis for regarding Mr Kan as a suspect, and a sound basis for believing that he was coming and going from the premises, were matters that may well have properly supported the reasonable necessity of establishing a crime scene had consent been withheld. That is clearly the view reached by Senior Constable Nikias.

73. I am not satisfied there is otherwise evidence of undue influence being exerted on Mr Lofts to secure his consent for a search of the premises. Ultimately, his evidence on the voir dire was he was not fazed by providing the police with access to the premises. He was aware he was not a person of interest, and Mr Kan was. His relationship with Mr Kan at the time was one where he felt he was being stood over by him and his resultant antipathy towards him is consistent with his consent for the search being given willingly.

74. For the reasons given above, Mr Kan’s application to exclude all evidence obtained by police as a result of their search of 21/65 Lowanna Street, Braddon, on 11 December 2024 is dismissed and I order the admission of evidence obtained in the form of: (a) items of clothing seized by police; and (b) the oral evidence of Mr Lofts.

The evidence at trial

CCTV footage CCTV Cash Converters

75. There are three distinct categories of CCTV footage before me. The first is the footage from within Cash Converters itself on the day before the burglary. This comprises exhibits 2 and 6 respectively. Exhibit 2 is a high angle shot of the Cash Converters store looking away from the cash register. The footage was played in court for some 11 minutes and 55 seconds where it was paused and exhibited with a time stamp of 14:10:58 on “05/12/2024”. The footage clearly shows the layout of the Cash Converters store, with the E-tricycle partly visible on the left-hand side. There are a number of musical instruments in the foreground and the left wall. The store has three aisles and a back wall display of large televisions. There are a number of individuals observed throughout the footage. Notable is Mr Heron, sporting a distinct haircut and some kind of branded black clothing – tracksuit in nature. Mr Heron wears nothing covering his head in the footage, and his face, whilst not displayed in high definition, is clearly visible. The man in the white T-shirt also appears in the footage. He is wearing the white T-shirt in question, black tracksuit pants and grey running sneakers. Importantly, he is wearing a black cap that partially obscures his face. He has a grey hoodie on his shoulder. Through the nearly 12 minutes of footage that is exhibit 2, the two individuals being Mr Heron and the man in the white T-shirt can be seen wandering the length and breadth of the store looking at different items. The man in the white T-shirt is seen approaching and observing the E-tricycle. He is perhaps closest to the camera at the 1 minute and 12 second mark and again at the 2 minute and 36 second mark. His face is not particularly clear in either of these sections. From my perspective it is unclear whether Mr Heron and the man in the white t-shirt interact directly with each other in this footage.

76. The second piece of CCTV footage displaying the Cash Converters store on the day prior to the burglary is exhibit 6. It displays an angle of the store showing the cash register and entrance areas. This footage was commenced at a time stamp of 15 minutes and 15 seconds and stopped at 19 minutes and 11 seconds. Again, in this footage Mr Heron is clearly visible. The man in the white T-shirt can be seen standing to the left-hand side. The CCTV depicts a bare Christmas tree in the foreground, what appears to be items of jewellery in the back left and a keyboard piano in the front right foreground. Mr Heron and the man in the white T-shirt are seen interacting on the left-hand side of the screen for some minutes. At the 18 minute and 3 second mark, the man in the white T-shirt is seen interacting with two members of staff at the cash register. During that period his face is partially visible, albeit from some distance and not in any great resolution. The two individuals leave the store around the 19 minute and 9 second mark.

CCTV Gerald Slaven Woden

77. Exhibit 3 displays a parking area outside the Gerald Slaven car dealership in Woden at 2:48am on the morning of the burglary. It is a black and white video capturing what may be the white Subaru used in the burglary. That car parks in the car park directly next to another SUV-like vehicle; to its left. At the 46 second mark an individual is seen next to the bonnet of that second vehicle. The prosecution alleges the footage shows the number plates were stolen from the SUV vehicle and placed onto the white Subaru used in the burglary. The theft of the number plates by the man in the white T-shirt is an admitted fact. CCTV Burglary

78. The third part comprises five separate pieces of footage showing four angles of CCTV of the Westfield shopping centre in Woden during the burglary (exhibits 7, 8, 9 and 11) and one overhead angle of the inside of the Cash Converters store covering the same period (exhibit 12).

79. Exhibit 12, is an overhead ‘fisheye’ shot of the entire store. It runs for 5 minutes. At approximately 2 minutes something can be seen moving outside what appears to be the roller door at the entrance to the store in the lower left portion of the screen; when matched with the other footage it is likely to be the man in the white T-shirt attempting to kick the roller door to gain entry to the store. At the 3 minute and 50 second mark the white Subaru is clearly visible smashing through the front window of the Cash Converters store. Shortly after the man in the white T-shirt is seen dragging the E-tricycle out of the store.

80. Exhibit 11 covers a wide section of the ground floor of Westfield, with the large escalators in the centre. In the left background one can see from early in the footage the Cash Converters store and the man in the white T-shirt attempting to do something with the closed roller door. To the right background the white Subaru is seen attempting to make its way inside the Westfield via force, and driving through the front window of Cash Converters after gaining entry to the shopping centre. The footage closes with the white Subaru exiting the premises and the man in the white T-shirt riding out of the Centre (utilising the stolen E-tricycle). The footage lasts a total of 2 minutes and 57 seconds.

81. Exhibit 9 depicts a similar angle to Exhibit 11. At the start of the footage one can see the man in the white T-shirt kicking the roller door at the front of Cash Converters. The white Subaru is seen breaking through the doors to the shopping centre in the background. The same events then play out as seen in the first angle. The footage lasts a total of 2 minutes and 56 seconds.

82. Exhibit 8 is from a camera apparently positioned above the main entrance doors to the Westfield shopping centre. It is clear from the footage the man in the white T-shirt first gains entry into the shopping centre after the white Subaru has smashed its way through the main centre doors. Also clear from this angle, is the Subaru makes four attempts to fully break through the shopping centre doors before driving around the large centre escalators and into the front window of Cash Converters. In the latter portion of the footage, Mr Heron is clearly visible on the scene, as well as the man in the white T-shirt entering Cash Converters and coming out with the E-tricycle. The footage lasts a total of 2 minutes and 56 seconds.

83. Exhibit 7 depicts the main centre doors. The man in the white T-shirt is seen, with the Teenage Mutant Ninja Turtle graphic visible on his T-shirt, as it was in the footage from the store on the day prior. Mr Heron is visible in the background. The man in the white T-shirt is seen attempting to break through the shopping centre doors in the white Subaru from this angle, with Mr Heron apparently keeping a lookout in the background. The footage lasts a total of 2 minutes and 56 seconds.

Other identification evidence

84. The remainder of the evidence as it relates specifically to identification of the man in the white T-shirt is in exhibits 4, 5, 10 and 18.

85. Exhibit 4 is a three-page document with pages 2 and 3 comprising photographs taken by police. The photographs are detailed as “photograph 1” with a description of “left lower leg front” and “photograph 2” with a description of “left lower leg side”. The photos each have the date on the bottom right of the image – 12 December 2024. The photographs were taken by Senior Constable Nikias. The Senior Constable agreed they were photographs of Mr Kan when he was initially arrested. The first photograph depicts Mr Kan’s legs, with his left pants raised to his knee height. On the shin of his left leg is a black and green tattoo. The tattoo covers the entire portion of his shin from around his ankle to just below his knee. The tattoo has a number of motifs including but not limited to a clearly visible cross symbol, some portion of a skull with teeth bared, an eye and scale-like designs on the upper left-hand side. Importantly from the perspective of the submissions made on behalf of Mr Kan, the tattoo appears to have a pointed end on the bottom right-hand side in the photograph. Photograph 2 is of the same leg but viewed from the left-hand calf side. The photo is closer and of slightly better quality and, again depicts the motifs of the large tattoo on Mr Kan’s shin and calf. The skull design is more prominent in the centre of the left side of the calf. In the top portion of the tattoo there is a design that appears to be a kind of dagger as well as a ‘ying and yang’ symbol and a flower. The bottom portion of the tattoo near the ankle shows some kind of skull or facial design. The tattoo from this angle is coloured black.

86. Exhibit 5, is a zoomed in still image taken from the CCTV footage that is exhibit 6 (erroneously referred to as exhibit 4 in the transcript). The image shows the man in the white T-shirt in a crouched position with his white T-shirt, grey hoodie, black pants and running shoes all visible. One can see this is an image taken from the footage of exhibit 6 as the background showing the two distinct flooring patterns of Cash Converters is the same in the photograph as in the footage: (the wood panelling and dark textured carpet). The image shows a portion of the man’s ankle clearly exposed above the running shoe and below the cuff of the black pant. There is a black ‘smudge’ or mark seen on the ankle of the man in the white T-shirt, with what may be a sharp point to the bottom right edge touching the man’s ankle.

87. Exhibit 10 is a two-page document comprising still images taken from the footage that is exhibit 9. The first image shows the man in the white T-shirt riding the E-tricycle in the ground area of the Woden Westfield shopping centre. It has a description of “CCTV: Bonner Ground 3 – at 2:39 minutes”. He is seen wearing the white T-shirt, a black cap, a blue surgical face mask, red gloves, black pants and black and white running shoes. In the bottom right portion of the image the man’s pants are raised so as to expose his ankle above the running shoe. A black smudge or mark is visible with no sharp or defined features. No pattern or design is discernible on the ankle. The second image is similar to the first, with a description of “CCTV: Bonner Ground 3 – at 2:40 minutes”. The difference in the image is a larger portion of the man’s lower calf is visible on the left-hand side. A dark smudge or mark is visible on that portion of his leg. No distinct motif or design is discernible.

88. Exhibit 18 is a seven-page document with a number of photographs taken by Senior Constable Nikias. The photographs are dated 30 January 2025. The first image titled “photograph 1” is described as a “white ninja turtles t-shirt”. The T-shirt is draped over a mattress and is crumpled; it is generally white. It depicts a graphic similar to that seen in exhibit 7, being the four Teenage Mutant Ninja Turtles with weapons brandished in a fighting stance. One of the figures is holding two large knives or katana like swords. A text bubble on the right side of the graphic encircles the words “well, before their trigger fingers get too itchy---.” The graphic has a square border and is positioned in the centre of the T-shirt (although the T-shirt is laid askew). Below the graphic are words that are partly obscured, however, the words “teenage mutant ninja turtles” are partially visible. The graphic is black, with the wording below it coloured brown or gold. There is a yellow food stain appearing near the top of the graphic close to one of the ninja turtles’ heads.

89. “Photograph 2” is described as “white ninja turtles t-shirt back”. It appears to be an image of the same shirt in “photograph 1” being held up by an individual wearing black gloves. The shirt is less crumpled and the image has greater clarity. In addition to depicting what was visible in “photograph 1”, “photograph 2” shows in greater clarity the four individual ninja turtles brandishing their weapons – nun-chucks, a staff, two “sai” (apparently a preferred weapon of mutant turtles) and two katana style swords. The writing below the graphic is seen and reads “Eastman and Laird’s Teenage Mutant Ninja Turtles”.

90. “Photograph 3” is described as “white ninja turtles t-shirt front”. It depicts the front view of the same shirt, held up by an individual wearing black gloves. On the left-hand side of the shirt (the right-hand side being worn) is a depiction of a scene, split into three ‘panels’ having the appearance of pages from a Teenage Mutant Ninja Turtle comic. The first two ‘panels’ are not clearly visible, however the third ‘panel’ clearly shows one ninja turtle against a wall. That image is in black and white. On the right side of the shirt, from the perspective of the viewer are the words “Eastman and Laird’s Teenage Mutant Ninja Turtles”, with a large graphic ‘panel’ appearing directly below the words. That panel depicts, a Mutant Ninja Turtle in a front-on pose with its arms across its body and a scowl on its face. Its face takes up a large portion of the ‘panel’. The turtle wears a dark brown or possibly red mask. The T-shirt has yellow stains near the collar as well as on the lower sections of the shirt.

91. “Photograph 4” is described as “heresy hoodie front”. The hoodie has a large open-ended pocket on the front and a baggy hood above the collar with drawstrings. The hoodie is dark grey or black. In the centre appears the partially obscured word “her[e]sy”.

92. “Photograph 5” is described as “heresy hoodie back”. Unlike the front image, there is no writing or particular features of note. It is dark grey or black. It has stitching areas around the armpits, the collar where the hood is, and the lower waist area. It appears baggy in design.

93. “Photograph 6” is described as “black cargo pants”. There appears to be an elastic waistline and drawstrings around the waist to tighten the pants. The pants are baggy. There may be pockets toward the knee, or just below the knee area however these are obscured and unclear. The pants are black and have no particular features of note.

Witness evidence

94. In summarising the evidence of the witnesses, I have included the evidence relevant to the s 138 issue dealt with above.

Shannon Ian Lofts

95. Most of the evidence of Mr Lofts was concerned with the consent to search.

96. In relation to the items of clothing found in his apartment and seized by police, although he positively identified the clothing as not belonging to him, he did not positively identify it as belonging to Mr Kan. Mr Lofts is seen at one stage to point in the direction of the clothing but does not, in words, positively identify its owner; (exhibit 17 regarding the body-worn camera footage of the Senior Constable, from approximately 40 seconds to 1 minute and 50 seconds). In that portion of the footage Mr Lofts does not say the items to which he is pointing belong to Mr Kan. He is “not sure” if anything in the room belonged to Mr Kan. In a later portion of exhibit 17, around the 14 minute mark, Mr Lofts states he is not sure if any of the clothing around his apartment is that of Mr Kan. Further, he says he does not know to whom the clothing belongs; exhibit 17, 14 minutes and 37 seconds.

97. On the topic of people traffic through his apartment in the period from 5 December 2024 to 11 December 2024, Mr Lofts is vague, indicating he was drinking heavily at the time. He says there were three “main people” living in the house with him. They were Mr Kan, Ian Herron (the co-accused) and a woman named Gillian. Mr Lofts is unable to say precisely when he last saw Mr Kan.

Senior Constable Elias Nikias

98. Senior Constable Nikas was the informant for the proceedings and the lead investigator for the burglary. He gave evidence of his involvement from a very early stage, including attending Westfield Woden and securing the CCTV footage of the burglary in evidence before me. He confirmed the evidence established there were two suspects. The person of interest for these proceedings was observed in the CCTV footage wearing a black cap, and a white T-shirt, with a Teenage Mutant Ninja Turtles logo on the front, and a distinct graphic on the back. He was also wearing dark pants.

99. The Senior Constable established from interviewing staff at Cash Converters Woden the same two men had been in the store on the previous day. CCTV footage was secured and is in evidence. Senior Constable Nikias was able to identify the co-accused, and the man in the white T-shirt, after viewing portions of the CCTV footage. He confirmed the registration number shown on the Subaru vehicle in the CCTV footage on the day of the burglary was not the correct registration. Senior Constable Nikias subsequently discovered the registration plates seen on the Subaru vehicle used in the burglary belonged to a Ford Everest motor vehicle, that had been left at the Gerald Slaven Ford dealership at Woden for a few days prior to 6 December 2024. He then secured CCTV footage depicting a white Subaru arriving next to the Ford Everest vehicle adjacent to the Gerald Slaven dealership in the early hours of 6 December 2024. That footage was also secured and is in evidence before me.

100. The Senior Constable gave evidence that following Mr Kan’s arrest, he was brought into police custody and observed to have a tattoo on his leg. Senior Constable Nikias was shown a series of photographs taken on 12 December 2024, depicting the accused’s left leg and displaying a substantial tattoo on the lower part of the leg. The photographs are in evidence before me. The Senior Constable was also shown a zoomed in screenshot of the man in the white T-shirt kneeling down in the Cash Converters store on the afternoon of 5 December 2024. The screen shot depicts the man’s lower left leg. The zoomed in photograph is in evidence before me together with the CCTV footage from that day.

101. Returning to the evidence from Westfield Woden, the Senior Constable was shown screenshots depicting the man in the white T-shirt positioned on the e-tricycle as he departed the Woden shopping centre following the burglary. Two screenshot images from one of the CCTV camera angles at Westfield Woden are in evidence before me.

102. Senior Constable Nikias identified CCTV footage from within the Cash Converters store depicting the actual theft of the E-tricycle and showing the man in the white T-shirt as the person responsible for the theft. The officer said he was able to secure evidence from Cash Converters concerning the value of the tricycle and a statement of value made by a Cash Converters employee, Robert Robertson, is in evidence before me. Mr Robertson says the tricycle was valued at $1,279.

103. Senior Constable Nikias gave evidence that the Subaru belonging to Ms Templar was found a few days after the burglary in a burnt-out state located at an address in Braddon. Photographs of the burnt-out vehicle are in evidence. The property where the vehicle was found was vacant, as it was a demolition site. Senior Constable Nikias said the vehicle’s location was within walking distance of Mr Lofts’ apartment.

104. The Senior Constable confirmed as a consequence of the search of Mr Lofts’ apartment three items were seized being a white T-shirt showing a Teenage Mutant Ninja Turtles logo, a grey hoodie top and a pair of dark tracksuit pants.

Detective Sergeant Andrew Mark Billing

105. Detective Sergeant Billing is one of the detectives who attended the Braddon apartment and participated in the search. His evidence related entirely to the consent to search and police procedure issues.

Constable Vong Ngakham

106. Constable Ngakham was also one of the four attending officers. The Constable gave evidence concerning the items seized in Mr Lofts’ apartment, the record of which became exhibit 16. Beyond this, as with Detective Sergeant Billing his evidence was limited to the consent to search and police procedures issues.

Senior Constable Kurt Klebber

107. Senior Constable Klebber was the last of the four attending officers. His evidence was similarly limited.

108. As is reflected in the agreed facts and the concession from counsel for Mr Kan, the only issue of contention on the evidence is whether Mr Kan is the man in the white T-shirt.

Has the prosecution proved beyond reasonable doubt Mr Kan is the man in the white T-shirt?

109. In DPP v Okwechime (No 3) [2024] ACTSC 275, Taylor J discussed the unreliability of identification evidence at [28]-[30]: In this case the prosecution asks that I draw the conclusion that the second offender in the Club Footage is the accused. I must exercise special caution before I draw the conclusion that it is the accused with Mr Flynn in the Club Footage. Special caution is required because the experience of the law is that mistakes concerning identity are made and can be easily made. Special attention or care is necessary because of the possibility I might be mistaken. The experience of criminal courts, over many years, both in Australia and overseas, has demonstrated that conclusions drawn about identification may turn out to be unreliable. There have been some notorious cases over the years in which identifications have been found to be wrong after innocent people have been convicted. I must examine the evidence very carefully, conscious that there have been many occasions where conclusions about identification reached by judicial officers have been shown to be wrong. In circumstances where I am asked to make an assessment of the accused’s physical appearance in court in order to compare it with the physical appearance of the person in the Club Footage, I bear in mind the particular risks of in-court identification as it is “usually performed in circumstances that strongly suggest the answer that is ultimately given”: Festa v R [2001] HCA 72; 208 CLR 593 (Festa) at 601 [18].

110. In Festa v R [2001] HCA 72; 208 CLR 593 at [166] Kirby J observed: The strictures about the particular dangers of identification evidence must be obeyed because courts in this country, as elsewhere, have recognised dual features of identification evidence against which special protections are required in criminal trials. This is particularly, but not only, related to trials conducted before juries. The first feature is the propensity of incorrect evidence of identity, even given honestly and with assurance, to involve mistakes leading to serious miscarriages of justice. The second is the tendency for identification evidence to be given special weight, including in the mind of a jury. If accepted, such evidence will link the accused to the crime. No other evidence against the accused may then be needed. The link, once established, may be sufficient. (footnotes omitted by this court)

111. See also Domican v The Queen [1992] HCA 13; 173 CLR 555 at 561.

112. More recently in Tonej v R [2026] SASCA 45, the majority (Livesey P, Stanley and B Doyle JJA), described the difficulty in this way at [63]. The potential weaknesses or dangers associated with identification evidence arise in respect of the potentially complex mental processes of initial perception, retention, retrieval and communication, the capacity for those processes to be affected by cognitive biases on the part of the witness (such as suggestion, confirmation or displacement) and the capacity for the value of the evidence to be inflated by cognitive biases on the part of jurors (reflecting over-confidence in their own capacity to remember or recognise people, places or things, or their over-confidence in the capacity of others to do the same). (footnotes omitted by this court)

113. In assessing the evidence, I have been mindful of the warnings in ss 116 and 165 of the Evidence Act. The identification evidence relied on by the prosecution may be broken down into four categories: i) in court identification; ii) the white T-shirt; iii) the grey hoodie and other clothing items; and iv) the tattoo.

114. I will deal with each category in turn.

In court identification

115. The prosecution submits Mr Kan bears a “striking” visual resemblance to the man in the white T-shirt seen in the CCTV footage on 5 and 6 December 2024. If striking is used in the sense of noticeable, impressive or unusual, I do not share their enthusiasm. The CCTV footage is either not clear, or, is exposed from a sufficient distance that its clarity is compromised. The blown up still shots are worse. They are grainy or blurred. The man in the white T-shirt has close clipped facial hair and is wearing a cap at all times which effectively obscures his face, particularly in the Cash Converters store, where the closer images are exposed from above. Mr Kan appeared in court wearing a substantial beard that effectively obscures his lower facial features. Put at its highest, he bears some resemblance to the man in the white T-shirt.

116. I can be satisfied the appearance of Mr Kan is not dissimilar to the man in the white T-shirt.

The white T-shirt

117. The man in the white T-shirt seen on CCTV footage is quite clearly wearing a shirt bearing a Teenage Mutant Ninja Turtles design. It appears consistent with the design seen on the white T-shirt seized by police from the apartment of Mr Lofts on 11 December 2024. No evidence was placed before me concerning the rarity or proliferation of T-shirts of this design. I am unable to form a view about how many shirts of this design are in circulation in the community. Evidence of the rarity of the shirts would be a relevant factor in connecting the shirt seen as worn by the man in the white T-shirt with the shirt discovered in Mr Lofts’ apartment. An additional evidentiary difficulty with the shirt found in Mr Lofts apartment is, it is not identified as a shirt belonging to Mr Kan. Mr Lofts’ evidence is that the shirt is not his. He is unable to say whether the shirt belonged to Mr Kan. Mr Kan was staying at Mr Lofts apartment, but so was his co-accused Mr Heron, who pleaded guilty to the subject offences. Mr Lofts was unable to say how many people may have come and gone from the apartment between the day of the burglary and the day of the shirt’s discovery.

118. The evidence demonstrates the white T-shirt seized by police from Mr Lofts’ apartment is similar to that worn by the man in the white T-shirt and appears to bear the same Teenage Mutant Ninja Turtles design. It also demonstrates Mr Kan was staying at the apartment at the time, as was his co-accused. The prosecution is entitled to rely on the similarity between the T-shirt worn by the man in the white T-shirt and the T-shirt found by police at the Braddon apartment, but the weight to be given to that evidence is limited by the matters I have just mentioned.

The grey hoodie and other clothing items

119. Other clothing items seized from Mr Lofts’ apartment were a grey hoodie top and a pair of black pants. In the CCTV footage from the burglary the man in the white T-shirt is seen to be wearing a pair of black pants. He is wearing a similar pair of black pants on the day prior in the Cash Converters store. The black pants seized from Mr Lofts’ apartment resemble the black pants worn by the man in the white T-shirt. The pants that were seized are not identified as belonging to Mr Kan. The grey hoodie seized from Mr Lofts’ apartment appears similar to the grey hoodie worn over the shoulder of the man in the white T-shirt when he is observed in the Cash Converters store on 5 December 2024. The grey hoodie that was seized is not identified as belonging to Mr Kan. There is nothing unusual about either of these garments. The grey hoodie that was seized bears a logo, but a logo is not clearly visible on the hoodie seen in the CCTV footage from 5 December 2024. The tattoo

120. Exhibit 4 consists of two photographs of the tattoo appearing on Mr Kan’s left leg. The photographs were exposed at the time of his arrest on 12 December 2024. They show only the front and left side of his leg with part of the rear of his leg exposed. The images are reproduced below as are the still shots from the CCTV footage on 5 and 6 December 2024 relied upon by the prosecution as demonstrating the same tattoo:

121. The still shots are of poor quality. At best they demonstrate the man in the white T-shirt had some form of dark marking on his left foot and ankle. It is not possible from viewing the still shots to gain any clear impression as to the shape or design of that marking. It is certainly not possible to reach any conclusion as to the similarity between that shape or marking and the tattoo depicted on Mr Kan’s leg. A careful viewing of the CCTV footage in real-time, and using pause as appropriate, provides some greater clarity but still falls well short of demonstrating the dark mark on the lower leg of the man in the white T-shirt resembles or is similar to the tattoo on Mr Kan’s left lower limb. At its highest, the images allow for the possibility that it is Mr Kan depicted in the CCTV footage and that Mr Kan is the man in the white T-shirt.

122. In a circumstantial case, I am required to consider the whole of the evidence and assess whether the only reasonable conclusion is the guilt of the accused beyond reasonable doubt. Each of the strands of evidence identified above need not be established beyond reasonable doubt. I must be satisfied that the cumulative effect of the strands is such as to prove the guilt of the accused beyond reasonable doubt. Neither separately, nor in combination, did the CCTV footage lead me to conclude Mr Kan was the man in the white T-shirt. I am satisfied he may have been that man. That is, his appearance is not dissimilar to him.

123. As for the items of clothing seized from Mr Lofts’ apartment, I can be satisfied they are similar to the items of clothing worn by the man in the white T-shirt. I can be strongly satisfied the seized white T-shirt is similar to the shirt worn by the man in the white T-shirt. I accept given the location where the items of clothing were found and the fact of Mr Kan’s periodic occupation of the apartment there is at least the possibility the items of clothing belonged to him. However, I am mindful that the co-accused who pleaded guilty to the offences was also occupying the apartment from time to time. It is not conceivable that the co-accused was the man in the white T-shirt as he is clearly identified as the second man in the CCTV footage. But his connection with the premises where the clothing items were seized, together with his connection with the crime, casts some real doubt as to why the items of clothing may have been present in Mr Lofts’ apartment.

124. There was no forensic evidence placed before me connecting Mr Kan to the crime scene, the stolen vehicle or, the items of clothing seized from Mr Lofts’ apartment.

125. Upon assessing the cumulative effect of the evidence I have summarised above, I am not satisfied beyond reasonable doubt that Mr Kan is the man in the white T-shirt. The evidence has not excluded a reasonable inference Mr Kan was not the man in the white T-shirt. The prosecution has therefore not proved the offences to the requisite standard and Mr Kan is entitled to be acquitted on each count on the indictment.

126. Given, at this time Mr Kan is in custody solely on these charges, he is entitled to be released.

127. As to the transfer charges, based on my findings, and the prosecution not proving beyond a reasonable doubt Mr Kan was the man in the white T-shirt, the transfer charges are also dismissed.

Orders

128. I therefore make the following orders: (1) On Count 1 (CC 12222/2024): dishonestly drive motor vehicle without consent contrary to s 318(2) of the Criminal Code 2002 (ACT); I find the accused not guilty. (2) On Count 2 (SCCAN 365/2025): joint commission damage to property belonging to someone else contrary to s 403 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT); I find the accused not guilty. (3) On Count 3 (CC 12221/2024): joint commission damage to property belonging to someone else contrary to s 403 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT); I find the accused not guilty. (4) On Count 4 (CC 12219/2024): joint commission aggravated burglary with intent to commit theft contrary to s 312 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT); I find the accused not guilty. (5) On Count 5 (CC 12220/2024): joint commission theft contrary to s 308 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT); I find the accused not guilty. (6) I dismiss transfer charge (CC 12223/2024): use a vehicle with a numberplate attached to it that was properly issued for another vehicle contrary to s 22(1)(a) of the Road Transport (Vehicle Registration Act 1999 (ACT). (7) I dismiss transfer charge (CC 12224/2024): possession of property suspected of being stolen contrary to s 324(1) of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT). (8) I dismiss transfer charge (CC 12226/2024): being an unlicensed driver contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT).

I certify that the preceding one hundred and twenty-eight [128] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller Associate: MG Malouf Date: 16 June 2026