JUDGMENT ON APPLICATION TO ADDUCE TENDENCY AND CONCIDENCE EVIDENCE AND APPLICATION TO SEVER COUNTS FROM THE INDICTMENT
[3]
Introduction
In this matter the Crown wishes to adduce evidence as tendency evidence and coincidence evidence, and the accused objects to the trial proceeding with all of the offences charged in the one indictment. Accompanying this judgement is a Comparison Chart with the points of similarity between the various events in respect of which the accused is prosecuted, gleaned from material tendered on the voir dire.
The accused, Nathan Gordon Bryant, was arraigned before me on Thursday, 7 August 2008 upon an indictment charging him with the following nine offences,
Count 1
On 29 April 2006, at Marulan in the State of New South Wales, did rob Sean Whitby of certain property, namely, two thousand and eighty dollars cash, the property of Jack Cowen trading as Hungry Jacks whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.
S. 97(2) Crimes Act 1900
Count 2
On 24 May 2006, at Marulan in the State of New South Wales, did rob Phillip Caffery of certain property, namely, one thousand dollars cash, the property of Saint Marinas Pty Ltd trading as Kentucky Fried Chicken whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.
S. 97(2) Crimes Act 1900
Count 3
On or about 2 January 2007, at Marulan in the State of New South Wales, did break and enter the Kentucky Fried Chicken Restaurant situated at George Street with intent to commit a serious indictable offence therein, namely, to seal.
S. 113(1) Crimes Act 1900
Count 4
On 2 January 2007, at Yass in the State of New South Wales, did break and enter the Kentucky Fried Chicken Restaurant situated at Yass Valley Way with intent to commit a serious indictable offence therein, namely, to seal.
S. 113(1) Crimes Act 1900
Count 5
On 15 January 2007, at Yass in the State of New South Wales, did rob Joanne Garner of twenty seven thousand dollars cash, the property of Chekah Pty Ltd trading as McDonalds Family Restaurant whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.
S. 97(2) Crimes Act 1900
Count 6
On 26 February 2007, at Goulburn in the State of New South Wales, did rob Sancha Waters of four thousand dollars cash, the property of Kisumu Pty Ltd trading as McDonalds Family Restaurant South Goulburn whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.
S. 97(2) Crimes Act 1900
Count 7
On 9 April 2007, at Moss Vale in the State of New South Wales, did rob Karen Casser of thirty thousand nine hundred and twenty dollars cash, the property of Moss Vale Services Club Ltd whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.
S. 97(2) Crimes Act 1900
Count 8
On 23 April 2007, at Queanbeyan in the State of New South Wales, was armed with a weapon, namely a sawn off .410 gauge single barrel shot gun, with intent to commit an indictable offence, namely, robbery whilst armed with a dangerous weapon.
S. 114(1)(a) Crimes Act 1900
Count 9
On 23 April 2007, at Queanbeyan in the State of New South Wales, did possess a shortened firearm that was not a pistol, without being authorised to do so by permit.
S. 7(1) Firearms Act 1996
To each of these charges the accused pleaded not guilty.
On 12 August 2008 the Crown was given leave to amend some of the charges, replacing the specified sums of money alleged with more general terms and removing the reference to the gauge of the shotgun. Those amendments do not impact upon the decisions required upon these applications.
The accused asked that all offences be tried separately. The Crown opposed that application and asked that in respect of each of these offences the evidence relevant to the others be admitted as tendency and coincidence evidence.
The Crown also wished to tender evidence of an armed robbery offence on 16 April 2007 committed at Mittagong to which the accused has already pleaded guilty, and evidence of another two armed robbery offences in Belconnen in the Australian Capital Territory committed on 8 March 2007 and 23 March 2007 with which the accused is not yet charged, as tendency and coincidence evidence. The Crown's application was somewhat imprecise but in the course of argument the use to which it wanted to put the evidence was made clear.
There was no notice of motion filed specifying the orders sought on behalf of the accused, and no affidavit in support of the application. No written notice of the Crown's intention to call evidence as tendency and coincidence evidence was presented to the court. No point was taken with regard to these omissions.
As the argument progressed it was apparent that the Crown would, if permitted to do so, adduce evidence according to the following structure:
1) In respect of each of the offences charged in Counts 1 to 8, evidence relevant to the other offences charged, the armed robbery offence at Mittagong on 16 April 2007 to which the accused has pleaded guilty, and the robberies at the Belconnen McDonalds restaurant on 8 March 2007 and 23 March 2007, to prove that these were related events and therefore not coincidental;
2) In respect of the offence charged in Count 8, evidence relevant to the offences charged in Counts 1 to 7, the armed robbery at Mittagong on 16 April 2007, and the Belconnen robberies as tendency evidence; and
3) In respect of the offences charged in Counts 1 to 7, the evidence of the facts and circumstances surrounding the arrest of the accused on 23 April 2007, including his attire and the various items found in his possession, from which it could be inferred that the accused was responsible for those offences.
[4]
The Orders
On 12 August 2008, prior to the jury being empanelled, I made the following orders:
1) The application by the accused that there be separate trials in respect of each of the counts appearing in the indictment upon which the accused has been arraigned before me is refused;
2) I propose to allow the Crown in respect of each of counts 1 to 7 inclusive to adduce as "coincidence evidence":
a) Evidence of the methodology employed, clothing and equipment used, and the characteristics of the person detected or observed in the commission of the other offences charged in counts 1 to 7 inclusive;
b) Evidence of the methodology employed and clothing and equipment used by the accused in the commission of the offence of robbery whilst armed upon the McDonald's Restaurant at Mittagong on 16 April 2007 to which he has pleaded guilty; and
c) Evidence of the methodology employed, clothing and equipment used, and the characteristics of the person detected or observed in the commission of the offences of robbery whilst armed at the McDonald's Restaurant at Belconnen 8 March 2007 and 23 March 2007 respectively.
3) I propose to allow the Crown in respect of each of counts 1 to 7 inclusive to adduce evidence of the apprehension of the accused on 23 April 2007 at Queanbeyan, of the circumstances in which he was found, and the product of the search of his person and motor vehicle and home, as evidence of facts and circumstances from which it might be inferred that the accused was the person who carried out those offences.
4) I propose to allow the Crown in respect of count 8:
a) To adduce evidence of the apprehension of the accused on 23 April 2007 at Queanbeyan, of the circumstances in which he was found, and the product of the search of his person and motor vehicle and home, as evidence of facts and circumstances from which it might be inferred that the accused was armed with the intention of committing an offence of armed robbery; and
b) To adduce as "tendency evidence" evidence of the methodology employed and clothing and equipment used by the accused in the commission of the offence of robbery whilst armed upon the McDonald's Restaurant at Mittagong on 16 April 2007 to which he has pleaded guilty.
5) I shall publish my reasons in due course.
These orders were produced in written form and Marked For Identification 1. The orders were subsequently amended in the terms discussed hereunder, and an amended document was provided to the parties with the amendments underlined.
Before the document was marked so, and the orders made in open court, I provided copies to the parties and remarked that the submissions of counsel for the accused had been focused upon the application for the severance of the counts from the one indictment and for the trials on each charge to be conducted separately, and the use of the evidence as coincidence evidence. I invited further submissions upon the question of tendency evidence and circumstantial evidence as indicated in the proposed orders. Counsel for the accused did not wish to enlarge upon what he had already submitted, and offered those arguments in support of proposition that the Crown ought not have the evidence for any of these purposes.
The Crown sought clarification upon one aspect. The case the Crown would present included evidence of bank bags found in the possession of the accused following his arrest, identified to be from the Belconnen robberies. The Crown was concerned to ensure that the orders permitted the use of that evidence as circumstantial evidence in support of count 8 and that the accused was responsible for the Belconnen robberies in March 2007 which, if established to be the fact, would be evidence to demonstrate that those robberies and the offences charged in counts 1 to 8 are related events and were not coincidental.
I confirmed that the orders proposed were intended to include the use of the evidence of the bank bags for those purposes.
Upon further reflection, I came to the view that to ensure clarity the terms of the order in paragraph 3) ought to have included reference to the use of this evidence as coincidence evidence in support of the offences charged in counts 1 to 7, and in support of the allegation that the accused carried out the Belconnen robberies. Accordingly, to make clear that evidence may be led to show that the circumstances in which the accused was arrested was an event related to the other robberies and therefore not coincidental, item 3) in the orders was amended to the following:
3) I propose to allow the Crown in respect of each of counts 1 to 7 inclusive and the allegation that the accused whilst armed robbed the McDonald's restaurant at Belconnen on 8 March 2007 and 23 March 2007, to adduce evidence of the apprehension of the accused on 23 April 2007 at Queanbeyan, of the circumstances in which he was found, and the product of the search of his person, motor vehicle and home, as evidence of facts and circumstances from which it might be inferred that the accused was the person who carried out those offences, and, as "coincidence evidence".
This pause caused me to reflect upon the original order in Item 4), and I decided that it should also to be amended as to the following:
4) I propose to allow the Crown in respect of count 8:
a) To adduce evidence of the apprehension of the accused on 23 April 2007 at Queanbeyan, of the circumstances in which he was found, and the product of the search of his person and motor vehicle and home, as evidence of facts and circumstances from which it might be inferred that the accused was armed with the intention of committing an offence of armed robbery; and
b) To adduce as "tendency evidence",
i) Evidence of the methodology employed and clothing and equipment used by the accused in the commission of the offence of robbery whilst armed upon the McDonald's Restaurant at Mittagong on 16 April 2007 to which he has pleaded guilty; and
ii) Evidence of the methodology employed and clothing and equipment used in the commission of the offences charged in counts 1 to 7, and the armed robbery offences at the McDonald's restaurant at Belconnen on 8 March 2007 and 23 March 2007.
No evidence was led from witnesses on the voir dire. The parties argued their propositions upon the statements and other documents gathered by the investigators. Accordingly, the orders made were to be reviewed prior to the addresses of counsel and the summing up, against the possibility that the witnesses might not offer in their evidence representations made in their statements relevant to these questions.
[5]
Application To Sever Counts From Indictment
The question whether the accused ought to face his trial upon all 9 charges presented in the one indictment is inextricably bound to the inquiry whether the Crown ought to be permitted to lead the proposed tendency and coincidence evidence, and evidence of the facts and circumstances of the apprehension of the offender upon which counts 8 and 9 depend as circumstantial evidence to support the inference that he committed the other offences charged in counts 1 through 7.
In the voir dire the parties proceeded upon the premise that resolution of the question whether to severe one more of the counts will depend upon my decision with regard to the admission of the evidence for those purposes. Counsel for the accused argued that the terms of the relevant provisions of the Criminal Procedure Act 1986, and the judgement of Brennan J in Sutton v R (1984) 152 CLR 528 at 541 to 542 applied by Dawson J in Regina v De Jesus (1986) 68 ALR 1 at 13 indicated that the question first to be resolved was whether the evidence of the other offences was admissible in the prosecution of the individual charges. If it were not, then the charges ought to be tried separately.
I agree with the submission that whether the Crown ought to be permitted to present the evidence it wishes as tendency evidence or coincidence evidence, and as circumstantial evidence, ought to be considered first of all.
If the Crown is to be permitted to lead the proposed evidence as tendency or coincidence evidence, and as circumstantial evidence, it appears to me that the proper exercise of my discretion would not require the separation of any of the counts from the indictment. However, I am not persuaded that if the evidence is not to be allowed for those purposes that it must therefore follow as a matter of course that the charges should be tried separately. There remains the discretion to allow all charges to proceed together, subject my consideration of the prejudice or embarrassment to the accused thereby, or, whether for any other reason it is desirable to order separate trials: Criminal Procedure Act, 1986, section 21(2).
If the evidence of the facts and circumstances leading to counts 8 and 9 is allowed as circumstantial evidence in support of counts 1 through 7, it is at least arguable that all 9 counts should be tried together: Criminal Procedure Act, 1986 section 29(1) (b) and (c); subject to consideration of the matters provided in Criminal Procedure Act, 1986, sections 21(2) and 29(3).
If some of the charges were to be severed, it does not follow that all should be tried separately. The direct evidence relevant to the offence charged in the eighth count was also relevant to the ninth count, and both offences were allegedly committed in circumstances in which the accused was found at the time of his arrest. It would be inappropriate for those charges to be presented in separate trials.
[6]
The Evidence
The Crown tendered a folder of documents by consent (Exhibit 1); still images from security video recorded in the course of the robbery charged in Count 2 (Exhibit 2); still images from security video recorded in the course of the break and enter with intent charged in Count 3 (Exhibit 3); still images from security video recorded in the course of the armed robbery charged in Count 6 (Exhibit 4); still images from security video recorded in the course of the armed robberies at Belconnen on 8 March 2007 and 23 March 2007 (Exhibit 5); a disc with the images captured by security cameras operating at the time of the commission of the armed robbery upon the McDonald's Restaurant at Mittagong to which the accused has pleaded guilty (Exhibit 6); a disc with the images captured by security cameras operating at the time of the commission of the break and enter with intent charged in Count 4, images from the armed robbery charged in Count 2, and images from the armed robbery charged in Count 6 (Exhibit 7); images exposed of items seized by police at the time of the accused's arrest (Exhibit 8); a still image captured by a security camera operating at the time of the armed robbery charged in Count 5 (Exhibit 9); and a print off from the New South Wales Police computer system recording the particulars of the accused, including his description, at the time of his arrest (Exhibit 10).
I shall itemise the documents in Exhibit 1, separating them into the events to which they are relevant in the sequence in which the events occurred.
Relevant to Count 1 - Armed Robbery on 29 April 2006 at Hungry Jack's Restaurant at Marulan :
1) Statement by Senior Constable Joanne Hinds of 7 August 2007;
2) Statement of Sean Robert Whitby of 30 April 2006 with his handwritten note of the event;
3) Statement of Leanne Jean McCoy of 30 April 2006 with her handwritten note of the event;
4) Statement of Luke Chapman of 30 April 2006 with his diagrams;
5) Statement of Allison Nicole Maree Hubbard of 30 April 2006;
Relevant to Count 2 - Armed Robbery on 24 May 2006 at Kentucky Fried Chicken at Marulan:
In addition to the still images from security video recorded in the course of the robbery (Exhibit 2), and the disc with the images captured by security cameras operating at the time of the commission of the armed robbery, (Exhibit 7):
6) Statement by Detective Senior Constable Anthony Kevin Crane of 30 May 2007;
7) Statement by Philip Caffery of 26 August 2006 with a diagram depicting features of the premises and movements of the participants in the event;
8) Statement by Phillip Rucker of 25 May 2006 with a handwritten note of the event and a diagram depicting features of the premises and movements of the participants in the event;
9) Statement of Damian Thomas Johnstone of 25 May 2006 with a handwritten note of the event and a diagram depicting features of the premises and movements of the participants in the event;
10) Statement of Patrick William Blake of 25 May 2006 with a handwritten note of the event and a diagram depicting features of the premises and movements of the participants in the event;
11) Statement of Constable Angelina Phara of 14 June 2006;
Relevant to Count 3 - Break and Enter with Intent on 2 January 2007 at Kentucky Fried Chicken at Marulan:
In addition to the still images from security video recorded in the course of the break and enter with intent (Exhibit 3):
12) Statement of Senior Constable Peter Taylor Karooz of 7 August 2007;
13) Statement of Detective Senior Constable Michael Hando of 25 July 2007;
14) Statement of Graham Ross Sanderson of 5 July 2007;
15) Statement of Karen Jennifer Apps of 18 April 2007;
Relevant to Count 4 - Break and Enter with Intent on 2 January 2007 at Kentucky Fried Chicken at Yass:
In addition to the disc with the images captured by security cameras operating at the time of the commission of the break and enter with intent, (Exhibit 7):
16) Statement of Sarah Bush of 21 March 2007;
17) Statement of Kimberley Scanes of 28 March 2007;
18) Statement of Nicki-Lee Gee of 3 April 2007;
19) Statement of Senior Constable Emma Thompson of 21 June 2007;
Relevant to Count 5 - Armed Robbery on 15 January 2007 at McDonald's Restaurant at Yass:
In addition to the still image captured by a security camera operating at the time of the armed robbery, (Exhibit 9):
20) Statement of Joanna Garner of 15 January 2007;
21) Statement of Brett Maxwell Weeks of 16 January 2007;
22) Statement of Senior Constable Joanne Hinds of 23 August 2007;
23) Statement of Senior Constable Jeffrey Ludkin of 6 August 2007;
24) Statement of Bruce Russell of 22 August 2007;
25) Statement of Karen Louise Rae of 6 August 2007 with a staff roster;
Relevant to Count 6 - Armed Robbery on 26 February 2007 at McDonald's Restaurant at Goulburn:
In addition to the still images from security video recorded in the course of the armed robbery (Exhibit 4), and the disc with the images captured by security cameras operating at the time of the commission of the armed robbery (Exhibit 7):
26) Statement by David Sutherland of 4 June 2007 with an insurance claim form, and correspondence regarding the insurance claim and the money on hand at the time of the robbery;
27) Statement of Sancha Waters of 26 February 2007;
28) Statement of Mark Daniel Weatherstone of 26 February 2007 with a diagram;
29) Statement of Brendan Leslie Apps of 26 February 2007;
30) Statement of Danielle Louise Ryman of 26 February 2007;
Relevant to uncharged Armed Robbery on 8 March 2007 at McDonald's Restaurant at Belconnen:
In addition to the still images from security video recorded in the course of the armed robbery,(Exhibit 5):
31) Statement of Shuhuan Goh of 8 March 2007;
32) Statement of Wilaiporn Khonwai of 8 March 2007;
33) Statement of Joshua Thabo Nganda of 8 March 2007;
34) Statement of Nathan Shane Channell of 8 March 2007;
Relevant to uncharged Armed Robbery on 23 March 2007 at McDonald's Restaurant at Belconnen:
In addition to still images from security video recorded in the course of the armed robbery, (Exhibit 5):
35) Statement of Natalie Murphy of 23 March 2007;
36) Statement of Ben Travis Miller of 23 March 2007 with diagram showing movements of the participants in the event and of the weapon used;
37) Statement of Thabo Joshua Nganda of 23 March 2007;
Relevant to Count 7 - Armed Robbery on 9 April 2007 at Moss Vale Services Club Ltd at Moss Vale :
38) Statement of Detective Senior Constable William Bernard Dowton of 30 April 2007;
39) Statement of Karen Lee Cassar of 10 April 2007;
40) Statement of Jason Mark Pace of 10 April 2007;
41) Statement of Cherie Anne Dixon of 10 April 2007;
Relevant to Armed Robbery on 16 April 2007 at McDonald's Restaurant at Mittagong to which the accused has pleaded guilty:
In addition to the disc with the images captured by security cameras operating at the time of the commission of the armed robbery, (Exhibit 6):
42) Statement of Constable Anthony Belluomo of 17 April 2007 with crime scene log;
43) Statement of Constable Matthew Davenport of 21 May 2007;
44) Statement of Constable Susan Devlin of 15 May 2007;
45) Statement of Sergeant Martin Andrew Bent of 27 April 2007;
46) Statement of Marcelle Bain of 30 April 2007 with copies of Armaguard cash envelopes with recording of contents;
47) Statement of Kelly Anne Martin of 16 April 2007;
48) Statement of Joshua Todd Berrell of 16 April 2007;
Relevant to Counts 8 and 9 - Armed With Intent to Rob at Queanbeyan on 23 April 2007:
In addition to copies of the photographs exposed at the point of arrest, marked (Exhibit 8)
59) Statement of Senior Constable Dayne Brown of 16 May 2007 with extracts from his official note book;
50) Statement of Senior Constable Scott Marsh of 6 June 2007;
51) Statement of Constable Rani Hulme of 7 June 2007;
52) Statement of Constable David Tickell of 1 September 2007 with copies of exhibit book entry and towing authority;
53) Statement of Senior Constable Jason Irving of 1 May 2007;
54) Statement of Plain Clothes Senior Constable SRSU Operative 014 of 23 April 2007;
55) Statement of Operative 007 of 1 June 2007;
56) Statement of Senior Constable Andrew Garner of 23 April 2007 with extracts from his official note book;
Relevant to the investigation:
57) Outline of Crown Submissions;
58) Summary of Allegations;
59) List of Authorities with photocopies;
60) Statement of Senior Constable Peter James Selmes - the Officer in Charge;
61) Transcript of ERISP between police and the accused on 23 April 2007 at Goulburn Police Station;
62) Transcript of ERISP between police and the accused on 12 September 2007 at Goulburn Police Station;
63) Statement by Detective Senior Constable Dean Roberts of 1 February 2008;
64) Statement by Senior Constable Scott Harrison of 30 July 2007;
65) Statement by Lionel John Barber of 12 June 2008;
66) Statement by Professor Maciej Henneberg of 24 January 2008.
[7]
Review of the Evidence
I shall consider evidence relevant to the appearance of the offender, the clothing worn, and the methodology and equipment used in the commission of the offences charged according to their chronological sequence.
There were no images of this incident recorded on a video security system.
The offence occurred after trading had ceased and as the staff were preparing the premises to close for the night.
Sean Whitby, Assistant Manager, was on duty from 2:30 pm until 12 midnight on Saturday 29 April 2006. The last customer left the premises about 10:30pm. Trading ceased about 11:00pm. As he was attending to his duties he heard the back door opening and turned to see a man described in the following terms at paragraph [5]:
He was wearing a dark coloured balaclava that exposed just his eye section, his mouth and nose were both covered. He had dark sunglasses on, I think they were round shape. … I'm pretty sure he was wearing a jacket and I think it had stripes on it and I think it was green but I couldn't tell what the rest of the colour was (I am colour blind). He had dark coloured trousers on, I think they were made out of that "parachute" material. He had white shoes on, I am pretty sure they were just joggers. I am pretty sure that he was wearing dark coloured gloves. I don't think they were ski gloves. … they seemed tighter than that, like leather. He was carrying a 410 shotgun with a wood grain stock. … The gun looked relatively new, it didn't have any marks on it. The barrel looked polished, it was the blue colour. … I am pretty sure the gun was a single shot, … He was also carrying a plain coloured calico bag.
Whitby thought he spoke with an accent, which he described as a cross between Middle Eastern and Ukrainian. He was apparently comparing the accent of a Ukrainian man employed there as a cleaner.
The offender only wanted the bank notes, and not coins.
Leanne Jean McCoy, another employee, was on the same shift but was engaged away from where the robbery occurred and did not see anything significant.
Luke Chapman saw the offender. He gave the following description,
[He was] carrying what I thought could be a single barrel shot gun. The gun had a wood grain handle and a black barrel. … The guy was about 180 centimetres tall; he came up to about Sean's (Whitby) neck line and heavy build. He was wearing a black balaclava which covered his face including his mouth, his eyes and nose were exposed and he was wearing very narrow sun glasses which looked to be black but could have been navy. He was wearing a green platted design jacket, like a flannel chequered shirt. It was a white background with green lines and white edges on the lines. He had on navy blue track pants, I think they were parachute material and white sneakers.
He saw a white flannel bag into which Whitby placed the money. The offender only wanted bank notes, not coins. He spoke with what he thought was an Indian accent.
Allison Nicole Maree Hubbard was cleaning the premises at the end of the nights trading when she saw the offender standing in the back area holding the gun. She said in her statement,
He was wearing a navy blue balaclava and sunglasses, I also recall seeing some green on his clothing. I noticed that the gun had a wooden part on it and it seemed to be a long gun, … I'd say he would be in his mid to late 30's. … I'd say average build. … I heard him say, "I only want the notes not the coins."
She said that she was scared, shocked and petrified.
Images were captured of this event by security cameras.
Philip Caffery was on duty from 2:30 pm to 10:00 pm with three other staff. It was quiet about 8:50 pm, and so he went toward the staff room for something to eat until his attention was drawn to the presence of the offender by one of the other staff. His statement records that there were no customers in the shop, due to close at 9:30 pm. He described the robbery. The offender communicated with mumbling and gesticulations using the weapon. His statement contains the following:
I saw a robber dressed in full black clothing holding a sawn off shot gun. … The robber also had a black balaclava and black sunny's. … The robber's shoes were a greyish black type of high ankle cut shoe/boot. The robber had a pair of gloves on his hands; they were like a yellow and grey colour. They were like gardening gloves. I then noticed the robber was fairly plump male (sic) with chunky fat arms, his hair was shave off. You could tell his hair was receding. … I reckon he's between 32 and 40 years of age and he had white pale skin. The robber was a little taller than me, and I am about 180cm. I also noticed the gun was light brown with darker coloured speckles through the wood grain. The butt of the gun went straight down like an "L" shape curve. … The robber wasn't saying much he was sort of mumbling and grunting instructions and pointing with the gun where he wanted you to go.
Staff member Rucker placed notes and coins into a bank bag. The robber had with him a brown Hessian bank bag.
Phillip Rucker was in the cooking area at or about 8:40 pm when he saw the offender.
I looked up and saw a man with a sort of shot gun. The gun was metal and was app 50 cm to 60 cm long and it was sawn off at the barrel. The gun was a single barrel. … This man looked about 35 to 40 years old, Caucasian as he had white fair skin, and was about 175 cm to 180 cm tall of an overweight build with a stomach that was protruding at the front. This man was wearing an open face balaclava so that you could only see from his nose to the top of his forehead. He was wearing a pair of black sunglasses. He was wearing a black skivvy with like ¾ length sleeves. He was wearing a navy blue track pants and I think he was wearing sneakers of some type enclosed shoe. He was wearing a pair of yellow gardening gloves that looked pretty heavy duty.
… with his left arm he reached around his hip and he pulled out a white Commonwealth Bank cloth bag from his left hip region. The bag was white with black lettering.
Damian Thomas Johnstone was washing up and cleaning the kitchen area when he became aware of the robbery. His statement includes the following,
I would describe the man as 5 foot 10 inches, heavy build, I'm unsure how old, with pale skin. He was wearing a ski mask that appeared black and ribbed, black sunglasses, long sleeve black sloppy joe type top, dirty yellow heavy duty gloves, dark coloured pants. … He was carrying a sawn off shot gun, I think the barrel was ¾ of an inch, single barrel. He carried it in his right hand.
Patrick William Blake was called in to work this shift. The trading would stop at 9:00 pm but the doors remained open until 9:30 pm when they are locked. He returned to the kitchen area after cleaning the toilets. He saw the robber.
… he was kneeling on his left knee, and carrying a cut off shotgun. It appeared to have a shortened barrel, black coloured barrel and wooden handle. He was about 170 cm tall, medium build, but a bit chubby, I noticed he walked normally. He was wearing a black balaclava with one hole for the eyes and nose, I couldn't see his mouth, I saw the material had ribs that ran up and down, black sunglasses, woollen black knitted jumper that was pulled over the black cloth gloves he was wearing. The trousers were black and tight fitting, they were a dull material, he was also wearing a pair of burgundy/brown hiking boots. His clothes looked clean. The only skin I saw was around the eyes, it appeared pale.
When he pointed the gun at me mumbled something.
Constable Angelic Phara was called to the premises on 27 May 2005 and directed by Karen Apps, the on duty manger, to a bin from which she retrieved a pair of thick yellow leather type work gloves. These were secured and taken as an exhibit.
The images depicting this robbery captured by the security cameras include the robber. The first has him walking toward the camera, wearing a dark balaclava with an aperture exposing his forehead and the upper portion of his nose. His eyes are hidden behind dark sunglasses. He is carrying what is consistent with the weapon in his right hand, and is dressed in dark clothing covering his entire body. Although it is not entirely clear, it appears that he is wearing light coloured gloves. The compromise to the colour on this image does not permit any finer detail.
The second image has the offender across the counter. The next has the offender standing at the counter, with what are consistent with bank bags and the weapon on the counter in front of him, and gloves with a yellow hue.
There are recorded on Exhibit 7 nine images of this robbery, from which the three tendered to become Exhibit 3 were selected. Those three best show the image of the robber.
[10]
Break & Enter With Intent To Steal - 2 January 2007 - Kentucky Fried Chicken, Marulan - Count 3
Senior Constable Peter Taylor Karooz attended the Kentucky Fried Chicken outlet at Marulan at 6:15 am on 2 January 2007 and was shown the western front side door. He there saw,
… a navy blue metal plate on the tiled entrance to the door way. It appeared it had been forcibly removed from the top locking plate of the door way.
There were muddied foot prints leading towards the toilets. He was shown the safe and saw a small black and yellow torch on the floor, and that a number of the drawers were tampered with. He observed,
An attempt to grind the hinges on the safe and the locking mechanism on the door of the safe had occurred. There was a large amount of metal grinding dust at the base of the hinges.
Detective (Technical) Senior Constable Michael Hando attended the scene at 9:05 am on 2 January 2007 and exposed a series of photographs depicting the features observed by Constable Karooz. These photographs were not tendered on the voir dire, however the Detective Senior Constable's statement provides a description of each consistent with what was described by Senior Constable Karooz. Detective Senior Constable Hando adds that the locking mechanism on door where the plate was removed was engaged, which I take to mean that it was in a locked position. He comments that the safe was extensively damaged. Both hinges had been partially cut consistent with the use of an angle grinder, and there were two batteries hanging by their leads from the security keypad of the safe. The drawers to the safe had been opened using keys, but the interior behind the door remained intact and nothing was stolen.
The Detective Senior Constable took the torch and steel dust, and photographs of the footprints.
On 29 June 2007 he compared a number of shoes from exhibit reference D475631 to the impressions from this crime scene, and saw a similar outsole tread pattern on a pair of Redback work boots, size 10 ½. These were amongst items seized upon the execution of the search warrant at the accused's home.
On 2 January 2007 Graham Ross Sanderson was asleep in a caravan on the side of the Hume Highway where he had for some few days been selling cherries for a grower from Young. He was about 150 metres from the Kentucky Fried Chicken outlet located in the nearby 24 hour service centre.
About 5:30 am he heard a siren sound. He looked outside and saw a white vehicle drive from behind the Kentucky Fried Chicken to a point on the edge of the roadway where he parked for about ½ to ¾ of an hour. He then drove off. When the police arrived he reported his observations.
Regarding the vehicle, his statement records,
I do not know what type of vehicle I had seen but I recall the back of the vehicle was squared off.
The images in Exhibit 3 depict the offender. The first image shows him at the front counter, with his left hand on the bench, holding a black and white backpack in his right hand. He is wearing white gloves. He is dressed in dark clothing, including a balaclava. The second image is in the office area where it can be seen that the balaclava has a single aperture, revealing his nose and forehead, and dark sunglasses. The third image depicts him squatting down, with his left hand on the desk, showing the glove on that hand, and the balaclava and dark glasses. In the second and third images there is what appears to be a bank bag on the bench top, but there is no evidence to indicate whether that was brought by the offender to the premises.
I am of the view that the figure depicted in the images captured in the course of the offence the subject of count 2 on the indictment, and the figure captured in the commission of the offence the subject of count 3, to the extent that they are depicted in those images, are comparable in the following respects:
1) Both are wearing comparable dark trousers;
2) Both are wearing comparable dark long sleeve tops;
3) Both are wearing comparable balaclavas which in each case have a single aperture exposing the forehead and nose;
4) Both are wearing comparable dark glasses;
5) Both are wearing light coloured gloves; and
6) Both images appear to be of men of comparable body shape and build.
It is not possible to say beyond reasonable doubt that it is the same person in each instance, and I have not overlooked the quality of the images that are presented, but as presented, the images in each case are comparable in the six ways I have identified.
Before leaving this count I should note that the statements in Exhibit 1 did not include any reference to there being two entries into these premises in the attempt to steal money, but the Summary of Allegations included in Exhibit 1, tendered by consent, represents that the accused entered once, attempted an unsuccessful attack on the safe with one grinder, and left and returned with a second larger grinder for a second unsuccessful attempt. I understood that for the purposes of the voir dire there was no challenge to the proposition that the second entry occurred.
I note also that the photographs depict the date and times of 2007/01/02-06:12:23-2, 2007/01/02-06:23:42-1, and 2007/01/02-06:24:53-1. Assuming the accuracy of the time specified by Senior Constable Karooz who wrote that he arrived at 6:15 am, and that he arrived after the commission of the offence, these recordings must be inaccurate.
The DVD, Exhibit 7, from which these were printed does not have any images depicting an earlier entry. This notwithstanding, for the purposes of the decision required upon these applications, I have accepted the summary of this offence provided in Exhibit 1.
The grinder and the cable connected to it can be seen, but the grinder is not clearly depicted.
Break & Enter With Intent To Steal - 2 January 2007 - Kentucky Fried Chicken, Yass - Count 4
Sarah Bush attended work at the Kentucky Fried Chicken at Yass at 8:00 am on Tuesday 2 January 2007, and after entering noticed that the glass was removed from the frame of the window where service is provided to drive through customers. She saw the intact glass outside leaning against exterior wall. The seals had been removed and left in a neat pile beside the glass. She checked the safes and found them intact.
The methods of entry in counts 4 and 5, and the offence at Mittagong to which the accused pleaded guilty, were comparable. To gain entry in each case seals were removed from the window and the glass taken out intact and left nearby.
Kimberley Scanes secured the premises the night before, and about 3:30 am received a call from the security company reporting that the alarm had been activated. It was thought to be a false alarm and she did not act upon it.
Nicky-Lee Gee also observed the point of entry, and retrieved security camera recordings for the police. Senior Constable Emma Thompson took possession of them.
Ms Gee included in her statement that the alarm system has an audible alarm, which sounds when activated, with monitoring by the security company. There is a 50 second window of opportunity to disarm the alarm in the appropriate way when re-entering after the premises have been secured.
There were no images tendered from the security film, but the DVD was tendered (Exhibit 7) depicting a number of scenes.
The first shows the offender using a jemmy bar against a window, captured from a camera installed on the outside of the building. This is consistent with the discovery that the glass was removed from the window. The time shown on the video at the beginning is 02-01-2007 03:35:50.
The second commenced on at 02-01-2007 03:40:52 and shows the offender removing the glass from the window and thereafter making entry.
The third commenced at 02-01-2007 03:46:54, captured by a camera on the inside of the window showing the offender entering. The offender is dressed in dark clothing, a dark balaclava, white gloves, and is carrying a backpack on which the word "Billabong" is to be seen.
The fourth commenced at 02-01-2007 03:47:12, captured by a camera in the office and shows the offender with what appears to be electrical flex and an angle grinder disc.
The fifth sequence commenced at 02-01-2007 03:47:23, captured by the camera on the inside of the opened window once again, and shows the offender putting items outside.
The sixth sequence commenced at 02-01-2007 03:47:34 is the offender leaving the premises via that window, and the final sequence, which commenced at 02-01-2007 03:47:41 is from the camera on the outside of the window and shows that perspective of the offender leaving.
Joanna Garner was a manager at these premises. She arrived about 4:35 am on 15 January 2007. Her statement includes,
I parked my car in the truck stop near the shipping containers and I noticed a white station wagon and a white Hilux parked in the KFC parking near the shipping containers.
She entered the store and went to the office where she inserted the key into the safe. Her statement continues,
I saw a person walk past the small window at the front of the office. I saw a man standing at the office door with a balaclava on. He was holding a gun which was pointed towards my stomach. The gun was much shorter than a rifle, maybe about 40 cm long and it had two barrels. I remember it had light brown wood along the top of the gun. The man was stocky and about the same height as me. I think he was wearing a puffy blue snow jacket with the arms cut off.
Following his instructions, she took two Westpac bags from the safe and threw them towards the door. She did not raise her head for fear that he would harm her. As he left he said, "Don't call the Police, just give me five minutes."
Brett Maxwell Weeks arrived at work at 4.45 am and when parking his vehicle observed,
As I drove in, I drove past KFC towards the shipping containers and I saw a white ford (sic) Laser parked near the containers on the truck carpark (sic) side, I knew this was Joanna (Josie) Garner's vehicle. I also saw a white ford (sic) station wagon and a white ute type vehicle parked in carpark at the back of the KFC restaurant. I can't remember what type of ute it was, it wasn't a four wheel drive. I was parked nose to the kerb.
He entered the premises shortly after the robbery had taken place.
Senior Constable Joanne Hinds responded to this incident with Senior Constable Mitzevich who exposed a series of photographs of the premises. These depicted, amongst other things, the play land area entrance door from the lower part of which the rubber seal and glass had been removed and left leaning against the gate.
The method of entry in counts 4 and 5, and the offence at Mittagong to which the accused pleaded guilty were comparable. To gain entry in each case seals were removed from the window and the glass taken out intact and left nearby.
Jeffrey Ludkin was recalled to work at 5:00 am after the robbery. He observed the point of entry and the removed seals and glass.
Bruce Russell is the life partner of the director of Chekah Pty Ltd, the company that operates this outlet. He responded to the call that the robbery had occurred. He observed the point of entry and the removed seals and glass. He retrieved the security images captured of the robbery and provided them to the police. It depicted the entry of the offender well before the premises were to be opened for trading.
Karen Louise Rae is the director of the company Chekah Pty Ltd operating this business. She saw the point of entry of the offender. She confirmed the amounts that were stolen.
On 6 August 2007 the police showed to her Westpac bank deposit bags that she identified as having come from her business, and in which the takings up to the time of the robbery were place awaiting their collection by the security company to be taken to the bank and other items These were,
1) Westpac deposit bag bearing the serial number M28645751 with the name Chekah written on it and the amount $4.370.00;
2) A piece of paper signed by employee Sarah Jane Poidervan with the word Chekah and the account details 2629 -10096494 and the amount $4,370.00;
3) Westpac deposit bag bearing the serial number M28645672 with the name Chekah written on it and the account details 2629 -10096494, with a piece of paper inside recording the date 14/1/07, the account numbers, and the figure $14,889.70. The paper had the signature of Joanna Garner on it; and
4) Westpac deposit bag also bearing the serial number M28645751 with the name Chekah written on it, and account numbers 2629 -10096494.
Items 1) and 4) relate to the same bag, with one being the section for coins and the other for banknotes. The account number is the bank account number for the company Chekah Pty Ltd.
Exhibit 9 is an image raised from the security film depicting this event. The robber is to the left of the picture, and although blurred, it is clear that the person is entirely covered except for that lower left neck where it meets the shoulder. The person is wearing dark clothing, apparently dark blue, white gloves, and a darker covering over the entire head. The person's body is turned toward the bottom left of the picture, so that the left side of the front is toward camera. The heard is turned to the right so that the left side and part of the back of the head is toward the camera. In the right hand there is held an implement, which extends across to the left hand in which the person is holding another item.
This image is comparable to the figure depicted in commission of the offences charged in Counts 2 and 6 and the second Belconnen robbery. The implement in the right hand is consistent with the shortened shotgun, and the item in the left hand is consistent with the backpack.
Armed Robbery - 26 February 2007 - McDonald's Restaurant, Goulburn - Count 6
Sancha Waters began work at 4:40 am on 26 February 2007, after entering the premises via the side door located on the same side of the building as the drive through section. She went to the manager's office to begin her duties as other staff members began to arrive. The cleaner, Brendan Apps, was the only staff member there ahead of her.
Her statement continues,
I looked up and saw Mark [Weatherstone] walking down towards me … I saw a guy he had a gun at Marks (sic) back. Mark then walked out to sight (sic) to where Danielle [Ryman] had gone. The guy with the gun pointed it at them and said, "Get down" motioning with the gun towards the floor. I saw that he was holding the gun in one (sic) and had hold of a back pack with the other. He pointed the gun at me and said, "Get it out, I want notes."
She gave him bank notes, and when she went to include coins the robber told her not to be stupid and wanted to her open the safe. She could not do so. She took bank notes from the nearby cash drawers from the cash registers and gave them to him. She said of the offender,
The gun that he had was about 40 cm on (sic) length. The barrel wasn't very long. When the gun was pointed at me the hole in the barrel was about as round as you pinkie finger. I don't recall the gun.
I think the back pack that he has was mainly white with black in colour. It had a zipper that went across the top of it. It didn't look new.
I would describe the guy with the gun as about 170 cm tall, with fair complexion from what I could see of his face; he was very nuggetty, fatty solid build with a bit of a belly. He spoke with an Australian accent, he spoke quietly and did (sic) get aggressive or swear. He was wearing a black ski mask type balaclava on his head; I did not look into his eyes so I don't know what colour they were. He had a blue sloppy joe on. It was a medium shade of blue. … It was long sleeve. He was wearing denim jeans which were loose on fitting. I don't recall if he had gloves.
Mark Daniel Weatherstone was due to begin work at 5:00 am. He drove into the car park, and after leaving his vehicle entered the premise via the south side door. He was admitted by Danielle Ryman, and then saw the offender at the door. He backed away and the offender pulled the door open and entered. Regarding the offender, his statement provides,
From my observations of the male person when he was in the Restaurant I would describe him as Male, (sic) caucasion (sic) appearance, 170 - 175 cm tall, stocky build, wearing a beanie or something similar over the top of his head, a plain dark blue jumper, jeans or similar pants, I couldn't see any facial hair and his mouth wasn't covered at all. The male person had a firearm which was medium length the end of the firearm appeared to be silver in colour (sic). I recall the male was able to carry the firearm with one hand so I don't think it was very big.
Brendan Leslie Apps began work the evening before at 11:00 pm as cleaner. He saw the offender.
… who was wearing a black balaclava - it only had the eyes cut out - like at Ned KELLY mask. This person had a gun, it was a sawn off 410 calibre. I know it's a 410, I live on a farm and we would use this type of gun on rats and snakes. It was an old gun because the varnish was chipped off the butt, it just didn't look new or well maintained. The barrel was cut off at the end of the stock.
The gunman as stated was wearing the black balaclava, he had a dark jumper on either navy blue or black it was like a sloppy Joe, he had blue jeans on. I think they were dark blue. He was a heavy set sought (sic) of fella, he had broad shoulders, really stocky. He was about 170 cm tall, but really solid build. He sounded Australian (it sounded like an Aussie bloke from the pub - it was a rough voice) and he had a backpack he was holding at the time. The back pack was small in size. I don't know what colour it was. He was carrying the gun in his right hand and he was not wearing any gloves.
Danielle Louise Ryman drove into the car park about 4:45 am and clocked on at 4:50 am. On the way in she saw a light coloured four wheel drive vehicle that she did not recognise. She admitted Mark Weatherstone, and then saw the offender. Her statement contains the following description,
… I would describe him as a male, white appearance not tanned, a bit of a stubble on his face. Light brown eyebrows, I think he eyes were blue colour, a bit short (sic) than Mark in height, solid build, wearing a black balaclava with the face section cut out, a dark blue jumper, light jeans and sneakers. The back pack was black with "Adidas" written on which I think had a blue outline to it.
The male person had a gun which had a wooden handle and the barrel was about a foot long. That's all I can describe it as.
The security video was accessed and images raised from it marked Exhibit 4. These depict Sancha Waters at the safe with the offender at the door of the office. The camera captured his legs, hands and arms, holding the weapon in his right hand, and some of his upper body.
Although the witnesses did not see gloves, it is apparent to me that the offender is wearing white or light coloured gloves. His clothing, the gloves, and the weapon compare with the images that are available from the offences charged in counts 2 and 3.
[12]
The Uncharged Armed Robbery on 8 March 2007 at McDonald's Restaurant at Belconnen
Shuhan Goh arrived at work at the McDonald's outlet at Emu Bank, Belconnen in the Australian Capital Territory at 5:00 am and saw the robbery in progress. He saw another employee, Wilaiporn Khonwai, also known as Vee, open the safe and throw 4 deposit bags with money in them across the floor. These are of clear plastic and have the details of the store, a number for the bag, and particulars for the deposits recorded on them. The offender took them. In his statement to the police he provided the following description.
I would describe the man to be Caucasian in appearance, around 6 foot tall, strong build and aged in his early 30's. He was wearing dark clothing, a mix between green, brown and black. He was wearing thick clothing, possibly a long sleeved jumper with a hood. The hood was pulled over his head and his face was nearly completely covered except for his eyes. He was also wearing full length dark coloured pants and was carrying a bag.
I would describe the gun as being a shortened double barrel shot gun, possibly side by side barrels. The barrels were black in colour with reddish wooden top. I couldn't see the handle or the trigger of the gun which I believe was tucked up his sleeve.
He provided the police with the particulars of the bags of money stolen. They were,
Bag number S059772149 with $3,276.70 in notes and coins;
Bag number S059772146 with $302 in coins; and
Bag number S059772152 with $3,600 in assorted denominations.
Wilaiporn Khonwai, also known as Vee, arrived with Mr. Goh. She saw the robber come from the back door.
The male was about 170 centimetres tall, of a fat build, wearing a dark long sleeve top, black long pants, black shoes, and a dark blue hood covering his head. The male's eyes were exposed, however, the rest of his face was covered. I could see that he had white skin. In his left hand he was holding a back pack that was dark with light areas on it as well. In his right hand he had a shot gun. It had a sawn off single black coloured barrel with a light coloured wooden part under the barrel. The handle of the gun was made of the same coloured wood and was short. It appeared to be old. He was wearing gloves on his hands.
He spoke with an Australian accent.
This witness saw characteristics of the robber, which reminded her of a security guard who came to the store regularly to retrieve banking. The characteristics observed were his build, the way he stood, and the way he moved.
Joshua Thabo Nganda was engaged upon the cleaning of the drive through area about 5:30 am when he saw the robber leaving the Restaurant after the robbery.
I would describe this person as about 170 cm tall, chubby build, wearing a blue knitted black ski mask, a dark coloured jumper and blue coloured pants. He was carrying a gun in his right hand and another object in his left hand. I would describe the gun as being a shot gun. The gun was about 40 cm long, with a black stock and a light coloured handle.
Nathan Shane Channell was at work in the restaurant. Included in his statement is the following passage,
… and seen a guy standing there with a black coat of some kind and a black beanie style hat that covered his face. His eyes and nose I could see and I cannot remember if his mouth was showing as I was too scared to look. He also had a cut off shot gun which he was holding up pointing at me and a black Adidas backpack bag. He was holding the gun in his right hand and the bag in his left hand. I remember he was wearing black gloves.
The gun looked to me like a single, silver coloured, barrelled shotgun, about 40 cm in length, with wood over the barrel part and a wooden handle.
He saw the offender take the money in clear plastic bags which had white paper in them specifying the contents.
There was security film recorded from this event from which a still image was raised, Exhibit 5. The offender is not visible on that image.
[13]
The Uncharged Armed Robbery on 23 March 2007 at McDonald's Restaurant at Belconnen
Natalie Murphy was employed in this restaurant as a manager and commenced work at 4:40 am on 23 March 2007. About 5:15 am she saw the offender in the doorway of the cool room.
I would describe this male as being about 175 cms tall, solid build, Caucasian, with blue or green eyes. He was wearing a black coloured balaclava over his head and face, which exposed both of his eyes in a long horizontal slot, a faded green coloured fleecy jumper, faded blue jeans and black or grey gloves.
The male was carrying a black backpack in his left hand, and a sawn off shot gun in his right hand. The shot gun had a wooden hand grip, and was about 50 cm long.
She gave him three plastic deposit bags containing the takings for the day before. These were Westpac bags with writing on them. In addition he took other money in the form of notes and gold coins only.
Ben Travis Miller arrived at work about 4:57 am and saw his colleagues who had arrived ahead of him. As he went about his work he saw one of them leading the offender toward him.
The guy was definitely male and Caucasian. He was a fair bit shorter than me, but I found it hard to see how tall he was given Josh was crouching in front of the male, so it was hard to compare their heights. The male was probably between 165 cm and 170 cm in height. The male was heavy set, and pretty fat. I can't remember what top he was wearing, only that it looked to be a thick jumper of some sort and of a dark colour.
I remember the only bit of skin the male had showing was his face and the rest of him was well covered up. He was wearing gloves but I can't remember a lot about them, only that they were dark. I don't know if they were ski gloves or anything, I just remember that he definitely had gloves on.
The male wore a black coloured balaclava/ski mask that covered his whole neck. It had one hole which showed his face. I can't remember if it showed his mouth but it definitely showed his nose and eyes. I don't remember what colour his eyes were, or anything in particular about his face that I could see. …
He wore dark blue denim jeans and casual style light brown or tan, coloured boots. …
During the incident the male was very calm and very succinct in what he said and did.
Mr Miller drew a diagram of the weapon as he recalled it. It compares with the shotgun that was later found in the possession of the accused, and as depicted in security film depicting some of these events.
Thabo Joshua Nganda was at work cleaning when he saw the offender.
I describe the male as being about 170 cms tall, he had a pot belly, medium build, white skin, and he was wearing a black ski mask which covered his face besides his eyes. He was wearing light blue jeans, a green jumper which had no writing on or brands on it, black woollen gloves which covered his entire hands; he was wearing brown work type boots. I could see some wrinkles about the eyes of the male and I thought the male appeared to be about 40 years of age.
I also the male (sic) was carrying a gun. The gun was short about 30-40cms in length. I saw that the gun had one barrel which was about 1-2cms longer than the rest of the gun. The handle was a light wood in colour. The male was carrying the gun in his right hand by what appeared to be a handle.
The image raised from the security camera operating at the time of this robbery captured the offender seen from the rear and above. He is shown to be wearing a balaclava, gloves, and a dark coloured long sleeve top.
The figure depicted is comparable to the figure in the commission of the offences charged in Counts 2, 3 & 6.
[14]
Armed Robbery - 9 April 2007 - Moss Vale Services Club Ltd, Moss Vale - Count 7
Detective Senior Constable William Bernard Dowton attended the club premises about 11:55 pm on 30 April 2007 and saw the aftermath of the robbery there. He spoke to staff and was present when photographs were exposed by a Detective Walsh.
Karen Lee Cassar of 10 April 2007 was the duty manager that night, when due to the slow trade it was decided that the club would be closed early. The last patron left about 9:40 pm. Sometime between 10:00 pm and 10:15 pm she heard a beep, which she recognised as the alarm sounding indicating that the back door was opened. She and other staff pushed the trolley with the poker machine trays into the strong room and went to investigate. She saw the offender.
I have a recollection of seeing straps of a back pack over his shoulders. He was armed with a firearm which I think had two barrels side by side. He was holding it with one hand about the trigger and the other under the barrel.
He put money into the backpack.
I would describe the man with the gun as being, slightly taller than me, that is he is about five feet seven or eight inches tall, thickly set stocky build, I'm pretty sure his eyes were blue, more towards dark blue than baby blue, his eye brows were mousey brown colour, I didn't see any hair. He was wearing a balaclava, which was either black or very dark blue with a hole cut in it which exposed his eyes and eye brows and was across the bridge of his nose. He was wearing dark coloured clothes, I don't know what they were. He wore cream knitted gloves on both hands. There was a little patch on the outside of the wrists band of each of the gloves. The patch was white with black writing on it. … everything that he was wearing with the exception of the gloves was dark colour.
The back pack that this man was wearing was dark colour, may be black with some sort of logo on front zipper pocket. I'm not sure of the colour of the logo.
I describe the firearm that he was holding as having silver barrels as when he taped (sic) on the cash tins I looked directly at it and it seemed big and chunky.
Jason Mark Pace was employed at the club as bar attendant and at the reception desk. He saw the offender.
He was wearing a black balaclava with a single hole cut in the front to expose his nose and eyes. He was wearing navy blue clothes which either work pants (sic) and a long sleeved shirt or overalls. He was wearing cream coloured gloves which were like gardening gloves. He was a little shorter than me, I am about six feet tall. He was of solid stocky build, I didn't see any hair protruding from under the balaclava nor did I see what he was wearing on his feet. I didn't pay any attention to his eyes or face. He was holding a firearm, it was either a sawn off rifle or a sawn off shot gun, it was more likely a rifle because of the small calibre barrel. My first impression was that it wasn't a real rifle primarily because of the size as it was so small. This man was holding the firearm with his right hand around the trigger area and his left hand under barrel (sic) …
He stuffed the notes into a black back pack with lighter colour probably silver marking on it. The back pack had a white logo on it which I am pretty sure was of the 'Transformers Toys'.
Cherie Anne Dixon was employed at the club as a bar person. She offered the following description in her statement.
He was quite short only just a little taller than me. I honestly can't remember how tall I am but I know that he was not much taller than me. Detective Walsh has made an assessment of my height by comparing it to his and he told me I was around 155cm tall. This sounds about right to me. Detective Walsh put a mark on the wall where my height was. I showed him how tall the man would have been and Detective Walsh told me that was around 175 cm.
The man was fat around the waist, it was quite noticeable. He was generally of overweight appearance. He was wearing a black balaclava that had one oval shaped hole in the front of it. I could see his eyes and his nose. I could not tell the colour of his eyes … He was wearing blue full track suit. He had white gloves on his hands and was carrying a brown and black gun. It was not a pistol, it was a bigger gun, it looked like a shot gun but the barrel was shorter. It had a brown wooden part underneath the barrel and I could see the wood grain in the brown wooden part. The black part was the barrel and the other metal parts of the gun. I am pretty sure that it was only a single barrel gun.
[15]
Armed Robbery - 16 April 2007 - McDonald's Restaurant, Mittagong - Plea of Guilty
Detective Senior Constable William Bernard Dowton attended this location about 6:30 am and inspected the premises.
He saw that there was that there was a pane of glass removed from the lower section of the main entrance door of the premises, left leaning against the wall, with the plastic seals and metal frames from the window on the ground nearby.
On another exterior door the plastic seal was partly removed from around the lower pane of glass, but a chrome horizontal bar across the glass on the inside of the door would have impeded access even though the glass might have been removed. Implicit in this observation is that entry was sought but prevented by that structure.
He also saw the nature of the attack upon the safe.
… I saw the safe door open and that there had been a rectangular section had been cut out of the metal in an interior door towards the bottom of the safe.
Sergeant Martin Andrew Bent was the first police officer to respond to the report that there had been a hold up at this restaurant. He spoke to staff, secured the scene, and took a description from staff members. He made observations of the premises and the damage to the safe consistent with those described by Detective Senior Constable Dowton.
Kelly Anne Martin was the shift manager on duty from 5:00 am on Monday 16 April 2007. Her statement includes the following.
As I drove towards McDonalds saw a white single cab tray back ute parked on the street outside …This vehicle was almost certainly a four wheel drive vehicle and may have been a Mitsubishi Triton. I think it had a chrome bar around the back of the cab area.
He had a single barrel shot gun pointed at my upper body. … The firearm was a shot gun, with the barrel sawn off, it was a lot shorter that (sic) a normal shot gun, the hole in the barrel was about the size of a ten cent piece and the wooden part under the barrel was pretty dark brown wood and the handle part of also wood (sic). The metal part of the gun was dull black. I also saw sky blue electrical tape around the butt of the gun or somewhere at the rear of the gun handle. …
The man was also carrying a back pack which was grey which had markings on it. I think were light blue in colour. These markings were like a shoe lace 'cris-cross pattern in it. The shoe lace like markings were on the front of the back pack and were about the thickness of a pencil.
I describe this man as being about as tall as the uniformed police sergeant who attended (Sergeant Bent - he told me that he was 1.78 cms (sic) tall) the man was of stocky/cubby (sic) build, he had light coloured skin and spoke with an Australian accent, he had light green eyes and his eye brows were blond or light brown. He was wearing a black balaclava with an oval shaped hole cut in the front which exposed his eye brows, eyes and it came across the bridge of his nose. I don't recall seeing his complete nose. He was wearing long pants but I'm not sure what they were. He was wearing a loose fitting top which I think could have been a tracksuit top with long sleeves, it was dark colour, either a grey or blue and he was wearing joggers which were mainly white colour. I think he was wearing gloves on both hands but I can't put it any stronger than I thought he as wearing gloves.
When the offender was unable to access the safe, he left momentarily and returned with an electrical grinder, which he then used to attack it.
Joshua Todd Berrell was a student casually employed at this restaurant. He described the offender thus,
The man had a normal Aussie accent …
The balaclava was black in colour and had an oval shaped hole that exposed the mans (sic) eyes. …
I could see the gun was a sawn off, single barrel shot gun. … the butt of the gun that goes into your shoulder when you fire was cut down in size and the length of the barrel was also cut down. The butt had blue electrical tape wrapped around it. The wooden part of the gun was a medium coloured wood and the metal parts of the gun were darkish colour.
I could see the man was pretty short, around 165 cm tall, he was pretty solid, fat even. He was just big all around. … He was also wearing a dark jumper that had a hood on it. It was like a sloppy Joe that had a hood attached. He was also wearing a pair of jeans that were a faded light blue colour. He had a pair of white joggers on his feet. I can't really explain how I worked it out but he came across to me as being in his mid twenties. I guess it was how he talked and how he moved.
… the man was carrying a back pack in his left hand. It was black and grey in colour.
This incident was recorded by closed circuit television, which has produced images of some clarity. The cameras capturing the accused were located inside of the back door to the premises, on the outside of the building in the area of the drive through, in the kitchen, in the manager's office, and on the outside of the building depicting the patio area. The accused came to the premises in the early hours of the morning prior to the beginning of the days trade, in darkness. Accordingly, the image captured on the external camera over the drive through area is somewhat obscured, although there is one point where he can be seen with the backpack. His activities are not clearly depicted, however this is in the vicinity of where the glass was removed from one of the doors.
On the other hand, the product of the internal cameras is quite clear, and the accused can be readily seen dressed in dark blue trousers and long sleeved top, a dark balaclava with one aperture in the face, carrying the backpack with Billabong across it, wearing gloves, and with the shotgun and the grinder used in the attack on the safe.
The image of the accused is comparable to the image captured in the commission of the offences charged in Counts 2, 3, 5 and 6, and the 2nd Belconnen robbery.
[16]
Armed With Intent to Rob - Possess Shortened Firearm - 23 April 2007 - Hungry Jacks - Queanbeyan - Counts 8 & 9
Senior Constable Dayne Brown, in response to information by way of the police radio, at 4:25 am went to the rear car park of the Hungry Jacks Restaurant in Wanniassa Street, Queanbeyan where he saw the accused's Toyota Hilux utility registered number NB-024 surrounded by other police. He saw the accused arrested and searched, and the removal by Senior Constable Garner of two small screwdrivers from the accused's jacket. The accused was wearing a blue polar fleece jumper, blue jeans, and brown joggers.
Senior Constable Scott Marsh was in Marulan about 2:40 am, when he saw the Toyota Hilux driven by the accused in Brayton Road. The vehicle was driven to the Hume Highway where it turned right to travel south, joined the Federal Highway, and travelled to Sutton Road where it turned left. Along Sutton Road it stopped for about one minute at 3:38 am and then continued on until 3:43 am when it stopped once more for several minutes. It then continued along Sutton Road to Yass Road and turned left. When it reached the intersection of Bungendore Road it turned right to travel toward Queanbeyan and at the intersection with Atkinson Street in the Queanbeyan township it made a right turn. It was then 3:56 am. At 4:08 am he saw the Toyota in an access way between Waniassa Street and the restaurant car park. This is an access to the rear car park of the restaurant.
Constable Rani Hulme attended the car park about 4:45 am and saw the accused interviewed with the use of recording equipment. He was shown items taken from the vehicle.
Constable David Tickell was with Constable Hulme and made similar observations. He secured the area surrounding the Toyota with crime scene tape.
Plain Clothes Senior Constable SRSU Operative 014 described his observations of the Toyota from 2:40 am as it was driven by the accused along Maclura Road, Marulan into Brayton Road. At 3:35 am he saw the vehicle driven along the Hume Highway, the Federal Highway, and Sutton Road toward Queanbeyan. About 3:52 am he saw the accused driving the vehicle along Yass Road, Queanbeyan onto Bungendore Road. About 3:56 am he saw the vehicle driven into Atkinson Street, and down an incline past the restaurant. About 4:08 am he saw the vehicle parked in the access laneway. He subsequently saw the accused arrested.
Operative 007 observed the accused driving the vehicle from about 2:40 am travelling on George Street, Marulan, and south along the Hume Highway onto the Federal Highway until it turned into Sutton Road. About 3:38 am he saw the vehicle stop by the side of the road for one minute, and saw it stopped further along about 3:43 am. About 3:46 am he saw it driven along Sutton Road and saw it turn into Atkinson Street.
Senior Constable Andrew Garner responded to instructions from his commander to attend the car park where the accused had stopped the Toyota. The statement includes reference to the Inspector stating that the accused was seen "getting changed" but there is no reference to this in the other statements in Exhibit 1 dealing with these counts. Senior Constable Garner arrested the accused.
The accused told Senior Constable Garner that he had "the gun" in the car. The constable searched the accused and found two screwdrivers in his front right jumper pocket, one with a black handle and the other a yellow handle. There was a black backpack with white trim on the passenger side foot well, and a Maglight torch wedged between the seats.
Photographs exposed at the arrest were marked Exhibit 8. These depict the backpack with the Billabong logo, gloves, the shortened shotgun, blue jemmy bar, cable ties, ammunition, matches, a balaclava, grinder disc and grinder spanner.
[17]
The Investigation
Senior Constable Peter James Selmes is the officer in charge of the investigation leading to this trial. He has recorded in his statement the following:
1. On 2 January 2007 he attended the Kentucky Fried Chicken outlet at Marulan, the subject of Count 3 . He observed the blue metal plate removed from above the front glass doors, into which locking bolts would slide to secure the door.
2. On 22 April 2007 he was one of a number of police involved in the arrest of the accused in the vicinity of the Hungry Jacks and McDonalds outlets in Queanbeyan. The search of the accused's white Toyota Hilux Utility NB-024 revealed the following items:
1. Black & white back pack with Billabong logo;
2. Shortened single barrel .410 shotgun with blue electrical tape around stock, found in the back pack;
3. Black woollen balaclava found in the back pack;
4. White fabric gloves;
5. A metal cutting disc for grinder, and spanner for grinder;
6. A green Hitachi grinder;
7. A blue jemmy bar; and
8. Screw drivers, and assorted tools.
1. The accused acknowledged that these items were his, and that he had shortened the weapon.
Detective Senior Constable Dean Roberts attended the accused's home at Lot 4 Patrick Place, Marulan at 10:50 am and with other police searched the premises under the authority of a search warrant. The search was video and sound recorded. Items found included:
1. A large quantity of coins in bags and loose;
2. A safe containing bundles of money separated according to their denomination;
3. A .410 gauge shotgun cartridge;
4. A number of Westpac plastic money sachets including some labelled McDonald's Belconnen and "Checca" (sic);
5. A change docket and a deposit slip; and
6. A quantity of black cable ties, some of which were assembled and linked together.
The Westpac money sachets were identified to have come from the robbery at the Belconnen McDonald's on 8 March 2007, and those bearing the name "Checca" from the Armed Robbery at Yass charged in Count 5. The correct spelling of the company name is Chekah. The different spelling used by the detective in his statement is not explained. The black cable ties compare to those found with the accused when he was arrested.
Senior Constable Scott Harrison was involved in the investigation of a number of the events leading to the arrest of the accused, and with Detective Selmes interviewed the accused on 23 April 2007 and 12 September 2007. He was present at the search of the accused's home. He investigated the accused's gambling activities. His statement refers to correspondence with New South Wales Lotteries and a spreadsheet listing the lottery tickets found in possession of the accused but those documents were not included in Exhibit 1.
Lionel John Barker is the owner and operator of L.J.B. Security. He employed the accused as a security guard between June 2005 and August 2006. His duties included the collection of money from clients for delivery to the appropriate banks. He often serviced McDonald's restaurants, and would have attended all clients of the business at least once in the course of his work. The list of clients includes McDonald's at Belconnen Lake, and Kentucky Fried Chicken at Yass.
In the first recorded interview, at Goulburn Police Station on 23 April 2007, the accused gave his address as Lot 4 Patrick Place, Marulan where he lives with his parents. This location is reasonably proximate to each of the premises the subject of counts 1 through 7 in the indictment, and the offence at Mittagong to which the accused has pleaded guilty. Queanbeyan is the most distant place in New South Wales from the accused's home. Belconnen, where the Crown alleges that the accused committed the armed robberies on 8 March 2007 and 23 March 2007, is within the Australian Capital Territory, about 7 kilometres to the west of the city of Canberra.
The significance of the distance between the accused's home and Queanbeyan and the premises at Belconnen is to be assessed against the circumstances in which he was arrested at Queanbeyan in possession of the equipment and clothing itemised above, and the presence of bank cash bags connected to the robberies at the Belconnen McDonald's restaurant found in his home upon the execution of the search warrant, and the responses in the second interview to which I shall refer shortly.
The following representations by the accused are of significance,
1. The accused agreed that he was arrested seated in his White Toyota Hilux utility NB-024 in the car park of the Hungry Jacks outlet at Queanbeyan about 4:20 am on 23 April 2007 (qq 41 et seq).
2. He agreed that when he and the vehicle were searched the following property was found,
1. A small black handled screw driver and a small yellow handled screw driver from his pocket (qq 45 et seq);
2. A black and white back pack with the Billabong logo (q 62);
3. A shortened single barrel .410 gauge shotgun in the backpack (q 63);
4. Two .410 shot gun cartridges (q 72);
5. A black balaclava, with a single hole in the face, in the backpack (qq 69 & 145 et seq);
6. A quantity of black cable ties (q 75);
7. A metal cutting disc of about 9 inches (q 76);
8. A spanner in the back pack (q 78);
9. A green Hitachi 9 inch angle grinder (q 88);
10. A blue coloured jemmy bar in the back pack (q 90);
11. A larger jemmy bar about a metre long in the car (q 92);
12. A bag containing a number of tools (q 93); and
13. A set of gloves found in the vehicle beside the back pack (qq 171 et seq).
1. He agreed that he was told that he was under arrest for a number of armed robberies (q 52).
2. He agreed that he had said that the weapon was in the vehicle, and later told Selmes that it was in the front pouch of the back pack, unloaded, that he admitted ownership of it, and that he had shortened it (qq 60 et seq).
3. He admitted that he owned the shotgun and that he had shortened it using a hacksaw and placed the blue tape around the stock (qq 118 et seq).
4. He said that he found the shot gun in the shed at his home (qq 132 et seq).
5. He did not wish to comment upon the reason he had the shotgun with him when arrested (qq 143 et seq).
6. He agreed that he had said that he owned the balaclava and the shotgun cartridges (qq 72 et seq & 145 et seq).
7. He did not wish to comment as to the reason why he had the balaclava when arrested (q 150).
8. The shotgun cartridges were also found in the shed at his home (q 151).
9. He agreed that there was another cartridge found in his safe when his home was searched, and said that it came from the shed with the others (qq 153 et seq).
10. He did not wish to comment upon his intentions for the cartridges (q 156).
11. He agreed that the metal cutting disc was for an angle grinder and that the spanner was specifically for tightening the disc on an angle grinder (q 77 & 79).
12. He declined to comment when asked what the screw drivers were for (qq 107 et seq).
13. He said that he owned the back pack but would not comment upon his purpose for it at the time he was arrested (qq 112 et seq).
14. He agreed that the cable ties included some that had been partly assembled to resemble crude handcuffs, and admitted ownership of those found in the car and at his home when it was searched, but would not comment upon his intention for having them when arrested (qq 158 et seq).
15. He agreed that the gloves were found in the vehicle beside the backpack, and admitted ownership, but did not wish to comment upon his intention in having them with him when arrested (qq 171 et seq).
16. He agreed that the 9 inch metal cutting disc was found in the vehicle, and that it was for the Hitachi grinder owned by his father (q. 314), but did not wish to comment upon his purpose in having the grinder with him when arrested (qq 176 et seq).
17. He admitted having the small blue jemmy bar but did not wish to comment upon his purpose for having it with him when arrested (qq 185 et seq).
18. He agreed that he had the larger jemmy bar, usually kept behind the seats, but did not know what he intended to do with it, and sand that it has always been there (qq 188 et seq).
19. The police put to him that he had these items intending to commit an armed robbery at the Hungry Jacks outlet at Queanbeyan, but he did not wish to comment (q 191).
20. He admitted that he committed the armed robbery at the McDonald's outlet at Mittagong on 16 April 2007 and described how he carried it out (qq 199 et seq).
21. He admitted in respect of that offence that he took his backpack and the two screwdrivers, the shotgun, the angle grinder, and the balaclava. He used his Toyota vehicle. He was intending to await the arrival of the manager to take her by surprise and have her open the door, deactivate the alarm, and open the safe, but saw that the window panels in the door could be removed and retrieved the black handled screwdriver for that purpose. He did not know whether the manager would be male or female, but waited outside for the staff to arrive. When they entered, and had locked the door, he entered through the opening he made by removing the panel, confronted the manager, and told her to go to the safe. He was armed with the shotgun, which he took to create fear. She took him to the safes, opened them, but could not open what he described as the drop safe part. He told them to remain where they were and retrieved the angle grinder from outside where he had left it. He used that to cut a square so that he could reach in with his hand. He stole about $40,000.00. After the robbery he went directly home. Some of the money was recovered from his vehicle and some from his safe at home. He said that no one assisted him in the commission of this robbery.
22. The accused admitted that he was recently employed as a security officer, with duties that included the collection of money from McDonald's outlets. He said that this was not one of the properties for which he provided this service.
23. The next incident raised was the robbery at the Moss Vale Ex Servicemen's Club on 4 April 2007 , count 7 in the indictment (qq 354 et seq) but he did not wish to comment.
24. The next incident raised was the robbery at the McDonald's outlet at South Goulburn on 26 February 2007 , count 6 in the indictment (qq 363 et seq) but he did not wish to comment. When asked about his whereabouts at the time he said that he could have been at home but could not say that he was.
25. The next incident raised was the robbery at the McDonald's outlet at Yass on 15 January 2007 , count 5 in the indictment (qq 372 et seq) but he did not wish to say anything about this offence.
26. The next incident raised was the robbery at the Kentucky Fried Chicken outlet at Marulan on 24 May 2006 , count 2 in the indictment (qq 381 et seq) but he did not wish to say anything about this offence. When asked where he was on that day he said that he may have been at home but he did not know.
27. The next incident raised was the robbery at the Hungry Jacks outlet at Marulan on 29 April 2006 , count 1 in the indictment (qq 389 et seq) but he did wish to say anything about this offence. He could not say where he was on that day.
28. The next incident was the break and enter with intent upon the Kentucky Fried Chicken outlet at Marulan on 2 January 2007 , count 3 in the indictment (qq 395 et seq) but he did not wish to say anything about this offence.
29. The next incident was the break and enter with intent upon the Kentucky Fried Chicken outlet at Yass on 2 January 2007 , count 4 in the indictment, (qq 403 et seq). The accused said that this was one of his employer's clients and that he serviced the store quite a few times but he denied going there about 3:30 am on that particular day when the intrusion was captured on videotape.
30. The accused said that he was employed by LBJ [Security] for 14 months from June 2005. (q 411). Before then he was employed as a boilermaker, (q 414).
31. He acknowledged his gambling addiction and spoke of his economic circumstances and accounts in which funds were held to his credit (qq 423 et seq).
32. He acknowledged ownership of the 0.410 gauge shotgun found in his possession, and that he had shortened it (qq 456 et seq).
33. I shall quote q 468 dealing with the shortened firearm and the accused's answer (emphasis added),
Q668. O.K. No worries. Is there anything further you wish to say in relation to that offence?
A. Just that at no time did I ever load the gun. For some reason, that was the first time that I ever had ammunition with me . Yeah, I'd never go this far as to even think about loading it. But even though I had control of it, and you know, I've been around guns all my life, I, I wouldn't like to hurt someone accidentally.
1. He acknowledged the search and what was found at his home, including cash in his safe, a large quantity of coins, and bank bags from the McDonald's restaurant at Belconnen. I shall quote q 491 and the accused's answer dealing with those bank bags (emphasis added),
Q491 Can you tell me where that money came from?
A. The ones in the, marked ones I think they were Chubb, came from the store, the McDonald's at Belconnen Lake .
1. The accused acknowledged that the clothing found in his room was his own, and that there was no clothing belonging to anyone else. He had never loaned to anyone the clothes found there, the backpack (which he said was provided by LBJ Security), the balaclava, or the weapon.
The accused sought the opportunity to take part in a second recorded interview and for this purpose was brought to the Goulburn Police Station on 12 September 2007. As in the first, Detective Senior Constables Selmes and Scott Harrison interviewed him.
The accused wanted to read a prepared statement, and he did so, (qq 27 et seq). The uninterrupted statement occupies a little over 5 ½ pages of the interview. I note the following points of significance:
1. 1) The accused alleged his statement when he was arrested was false and that he was trying to cover up for the people involved, that he did not realise what all the tools were used for, and that he wanted to correct his previous statement, (p 4).
2. 2) He said that the tools were given to him by Michael Watts, known to him as "Buck" from the pub in Marulan, (p 4).
3. 3) About mid-December 2005 "Buck" asked the accused about an occasion when he was robbed, an event that occurred a few weeks before. He asked about the money he was carrying, and whether he was armed, (p 4).
4. 4) In early February 2006 he saw "Buck" at the Belconnen Mall car park with another male, described as,
… about 25 years old, stocky build,… Buck pointed to, to the male standing beside him and said, My friend knows someone from MacDonald's down the road, so we know what you do each day.
"Buck" then asked whether the accused could get hold of a " clean hand gun for him " , and the other man lifted the front of his shirt to reveal a silver revolver in his jeans pocket, (p 4).
1. This confrontation left the accused feeling " paranoid in my day to day duties as a security guard ". He suspected that "Buck" and his companion might have been responsible for the robbery upon him, (pp 4 & 5).
2. He left LGB Security (sic) about mid August 2006 and obtained work in a licensed club at Kingston [Australian Capital Territory]. He said,
On the second night there I was leaving the club at about 4:15 am, seen a white Ford Station Wagon parked about five spaces down from my car. As I walked past I seen a male sitting in the passengers side, I recognised him as a male seen with Buck in the Belconnen Mall Car Park, I believe the person sitting in the driver's side was in the club just before closing, I remember him because he still had a drink and the staff member was starting to open the poker machines. I had to ask him to finish his drink and leave.
This incident prompted him to leave this position, with the belief that he was being followed, (p 5).
1. In mid December [2006] he saw "Buck" in the local hotel who asked about where he was working. According to the accused,
He said, he said, He would find out if I was working anywhere, he asked me if I was still carrying a hand gun, I told him that I didn't carry one anymore that I had left LGB or that job. And he asked me if I had a, an angle grinder he could borrow, I asked him what he needed it for, he said it was none of my business. He told me to put the grinders in a garbage bag and put them in an LPG take at the back of BP. He said to make it early the next morning to take them up there. I felt threatened by Buck, I just wanted to avoid and confrontation with him, so the next morning I took a 9 inch and a smaller grinder up there.
He saw a silver Holden Commodore with another male sitting in the passenger seat. He gave "Buck" the grinders and was told to keep quiet and not tell anyone that they knew each other. "Buck" gave him a mobile phone and said that he would contact him when they could be retrieved, (pp 5 & 6).
1. About the 2nd or 3rd January 2007 he received a text message to retrieve the grinders from where he had taken them. When he arrived there,
… I seen two plastic garbage bags, one of them had the two grinders in it the other bag had a couple of pairs of shoes and glad resealable bags and they had about, they had 5 and $10 notes in them, some 20s. I counted the money a bit later, there was about $4000 mostly in 5 and $10 notes, …
He rang "Buck" and was told that the money was payment for the angle grinder, that he should remain quiet, that if he told anyone he would be in trouble for having the cash, and that he would contact him again. He did so a few weeks later to say that he would need the grinders again (p 6).
1. Around early March [2007] "Buck" called to say he needed the accused's help, and that there would be a lot of money in it for him. The accused protested that he did not want to be involved, but "Buck" said that if helped this once more he would not need him any more (p 6).
2. Around early April [2007] the accused received a message from "Buck" to pick up a bag from the same spot. He found there, (pp. 6 & 7),
1. A black and white backpack containing:
1. Two jemmy bars,
2. A couple of small screw drivers;
3. A shotgun with four shells; and
4. A couple of jumpers; and
1. A garbage bag with:
1. A light blue polar fleecy top;
2. A face mask;
3. Two containers of latex;
4. About two or three pairs of gardening gloves; and
5. Two colour coded pink (which correctly transcribed should I believe read calico bank) bags, one of which contained a large amount of coins, and the other with $5 and $10 notes, some wrapped in paper bank sleeves; and
1. A small plastic shopping bags (sic) containing papers and what looked like bank deposit bags that were torn open.
1. He took these items home, placed them in different places in his bedroom, called "Buck" to ask him what the money was for, and was told, (p 7 & 8):
1. The money was about $8,000.00 in small denomination notes that he wanted exchanged for $50.00 notes from the crime he wanted him to commit;
2. The gun was needed for realism;
3. At 4:30 am he was to attend McDonald's at Mittagong and meet another person to whom he should give the shotgun and a jumper, cap and balaclava from those provided. (When reminded that there was but one balaclava however, he told the accused to wear it and the other person could bring his own);
4. It was not his business to know the identity of the other person;
5. He was to take cable ties to use on the staff, " … to make it look she didn't give you time to get away, he told me she was not to be hurt ";
6. He was to remove the panel from the door near the play equipment, because she would enter through the door near the drive through area;
7. He removed the panel from the door near to the drive through instead because the other door he nominated was too exposed, it was too hard to get through, and knowing that she (referring to the manager coming on duty) was involved, she would not say anything if she saw the glass missing as she entered;
8. He was to tell her, " … no funny business and to, to enter the right code. She had no excuse for not tripping the time delay, … "
9. He needed only to bring the big grinder to get into the safe, which the manager said would be easy to get into; and
10. There would be about $38,000.00, of which he wanted $18,000.00 with the balance to be divided between the accused and the accomplice.
1. He attended the McDonald's at Mittagong and removed the glass panel as described, and while waiting received a message from "Buck" to say that the accomplice was late and that he must carry this out alone (p 8).
2. After carrying out the robbery he was contacted by "Buck" who told him to discard the phone he had given him where no one would find it, and to bring everything else at 5:00 am next Monday to Hungry Jack's at Queanbeyan with a small extension lead for the grinder and cable ties made up as he had them. "Buck" said that he would not be there but the accused should meet a green Holden Commodore, the occupants of which would know who he was (pp 8 & 9).
3. The accused discarded the phone as directed, and went to Hungry Jack's at Queanbeyan where he was arrested. On the way there he realised he would arrive early, so he stopped a couple of times, but each time a car would pass and so he went to wait in the car park. He put on a jumper from the backpack, and looked in the car park for the green Commodore but found only a white Ford that looked empty.
The police then asked the accused questions about the representations contained in the prepared statement from which I note the following:
1. "Buck" is the name by which the accused knows Michael Watts, a man of about 28 years of age, of the same height or a little taller than the accused who is 170 cm tall, usually with a long pony tail, and therefore with his hair pulled back one might infer, of solid build and a little overweight, who looks threatening, of Caucasian appearance, and sometimes with short facial hair, but no beard, (qq 31 et seq). He did not know if "Buck" had been in previous trouble, but knew him from the local pub and club, (qq 227 et seq). He has three brothers, and was living in Marulan in George Street renting from the accused's aunt, (qq 364 et seq).
2. The man with "Buck" at Belconnen was much the same height, of a similar build but a little smaller than the accused, solid but not as overweight, and Australian, with olive skin, (qq 37 et seq).
3. He described where the phone was discarded, and provided a diagram of the location and markings on a map from the 'Google' site, (qq 63 et seq & 133 et seq).
4. He clarified that he was implicating the manager of the McDonald's restaurant at Mittagong in the robbery there on 16 April 2007, (qq 82 et seq).
5. He confirmed that "Buck" gave him the polar fleece top of the type he was wearing when arrested, a couple of other dark jumpers, a couple of pairs of shoes, and the shotgun in the backpack, that when arrested all but the jeans he was wearing were provided by "Buck", and that he provided the grinders, (qq 84 et seq).
6. He said that the shotgun had blue tape around the stock, which had torn exposing red tape beneath, and, that he put on fresh tape, (qq 98 et seq).
7. He answered further questions about his gambling, (qq 100 et seq), and provided a copy of his prepared statement on which he affixed his initials on all pages but the final page which he signed and dated, (qq 123 et seq).
8. He answered further questions about the items provided by "Buck", which he had said earlier he was to deliver to the occupants of the green Commodore at the Hungry Jack's car park at Queanbeyan, (qq 232 et seq). However at q 234 the following was said,
Q234. He even gave you the shoes?
A. He told me to like basically said to get rid of all the stuff and that like. He reckon I'd be less, less a suspect sort of thing.
And later, after being asked whether shoes shown to him were those worn at when he was arrested,
Q.246. What were your instructions from Buck on that day?
A. Basically just to bring the stuff up with me, we rounded off a few things he just said one jumper and he said to get rid of the rest of the stuff or burn it or throw it out or something.
Q.247. So he's just going to let you keep the shoes?
A. He said burn them and get rid of them, yeah I just sort of like threw everything in me room and that.
These representations are inconsistent with his explanation that he was at the point where he was arrested to return these items in accordance with "Buck's" instructions. At page 8 of the interview, where he was reading his prepared statement, the following appears (emphasis added),
He said when we were finished talking to get rid of the phone, where no one will find it, he said to bring everything else up to Queanbeyan Hungry Jack's . He said he would need a small extension lead for the grinder this time as well as some cable ties done up the same way he had them. I had them made up, I had them made up from Hugh. He told me he wanted me to take it all up there then me to take it all up there the next Monday at about 5:00 am.
1. Apart from the contact with "Buck" from time to time in the pub and club at Marulan, and their meeting at Belconnen Mall, the accused did not meet face to face with "Buck", even through these events which he described in his prepared statement, (qq 235 et seq).
2. The shoes seized from the accused's bedroom were produced to him and their sizes compared to the accused, (qq 240 et seq). He said he probably received three pairs of shoes from "Buck", (q 357).
3. He confirmed that he was admitting the robbery at the McDonald's restaurant at Mittagong, but did not know much about the others at all. When asked whether he knew about them he said as q 363 (emphasis added),
No not really no, I've got a couple of deposit bags, like Westpac deposit bags that obviously had the store names on them, but I didn't know they were, I only knew that once I got the bag so .
1. There were further questions regarding the telephone, the representation that he lied in the first interview, his explanation offered at q 383 being that he did not want to get "Buck" into trouble, but not realising that he would be charged with all of the other offences. He answered further questions about his gambling, the money he had at home and where he kept it, and his neighbours, and how the money he received was packaged.
[18]
Counsels' Submissions
The Crown provided written submissions and a written summary of the allegations, included in Exhibit 1, which, as I have observed in respect of Count 3, goes a little further in some respects than what is contained in the statements provided from the witnesses.
The Crown submits that the following points of comparison are to be found in the facts and circumstances relevant to the offences charged in the indictment:
1. Each offence occurred early or late in the trading hours, when staff were present but patrons were not;
2. The offender in each instance was alone;
3. The descriptions given of the offender by witnesses, and as gleaned from the images captured on the security videos, were all comparable in their essence, and in turn were consistent with the presentation of the accused, a stocky heavy set man, about 170 cm tall;
4. The balaclava worn by the offender in each instance was identical;
5. On each occasion the staff members present were required to lie or kneel on the floor;
6. In the commission of seven of the offences, including the robbery at Mittagong to which the accused has pleaded guilty, the offender was carrying a small backpack;
7. On each occasion the robber sought access to the safe to take money prepared for banking;
8. In the offence charged in Count 3 , and the robbery at Mittagong to which the accused pleaded guilty, the safe was attacked using an angle grinder, of the same colour and otherwise comparable in their appearance;
9. In the offences charged in Count 3 and Count 5 and the robbery at Mittagong to which the accused pleaded guilty entry was gained to the premises by removing the seals and glass pane from a door, leaving them intact against the wall nearby; and
10. There was a vehicle comparable to the accused's Toyota Hilux utility with which he was arrested in the circumstances giving rise to Counts 8 and 9 , seen near to each of the targeted premises at the time of the commission of the offences charged in Counts 3, 5, and 6 , and the robbery at Mittagong to which the accused has pleaded guilty.
The Crown added to this list the facts and circumstances relevant to the robberies at the McDonald's restaurant at Belconnen on 8 March 2007 and 23 March 2007 and submitted that the only rational inference to be drawn from the evidence gathered upon the arrest of the accused, and the comparisons to be made between those two robberies and the offences charged in the indictment, and the robbery at Mittagong to which the accused pleaded guilty, was that the accused committed them.
The Crown noted the following points of dissimilarity:
1. The offender seen in the commission of the offence charged in Count 1 spoke with an accent, described by one witness as a blend of Ukrainian and middle eastern and by another as Indian;
2. The offence charged Count 2 was committed at 8:50 pm, a relatively early time compared with the times of the other offences committed at night; and
3. The offence charged in Count 9 was upon a licensed club rather than a fast foot outlet, such as were targeted in all of the other offences.
The Crown pointed to the evidence of the following circumstances which it submits provide strong support of the guilt of the accused in respect of each of the offences charged, and the Belconnen robberies:
1. The accused was found in possession of bank deposit bags from the robberies at the McDonald's restaurant at Belconnen;
2. The accused was found in possession of the bank deposit bags stolen in the robbery charged in Count 5 ;
3. The accused was previously employed as a security guard engaged upon cash transit for such businesses, including the McDonald's at Belconnen and the Kentucky Fried Chicken outlet the subject of Count 4 ; and
4. The accused had a substantial gambling habit reflected in the purchase price of lotto tickets found in his bedroom, totalling $85,998.25.
Counsel for the accused submitted that the features identified by the Crown were of themselves not sufficiently unique to meet the tests propounded for the admission of tendency and coincidence evidence, and that each offence should be tried separately, for the jury might be overborne if all offences were presented in the one indictment.
To test these submissions I read closely all of the statements tendered in Exhibit 1, and examined the images and video recording of those events where that facility was deployed. From that material I have prepared a Comparison Chart, which is to be considered as part of this judgement.
Both counsel have referred me to authority, and helpfully provided copies of those judgements for my consideration.
[19]
The Principles and their Application
The issues to which the evidence is said to be relevant are the participation of the accused in the offences charged in counts 1 to 8 in the indictment. Specifically, the evidence offered as tendency evidence is in support of the Crown case to be presented in respect of count 8, and the evidence offered as coincidence evidence is in support of the Crown case in respect of counts 1 to 7 in the indictment, and the participation of the accused in the two robberies of the McDonald stores in Belconnen in the Australian Capital Territory.
The admissibility of evidence as tendency evidence is governed by sections 97 and 101 and the admissibility of evidence as coincidence evidence by sections 98 and 101 of the Evidence Act, 1995, and in each case upon consideration of the provisions of sections 135 and 137.
As I noted earlier, there was no notice of motion filed specifying the orders sought on behalf of the accused, and no affidavit in support of the application. No written notice of the Crown's intention to call evidence as tendency and coincidence evidence was presented to the court. No point was taken with regard to these omissions, and I am therefore not called upon to consider the application of sections 97)(1)(a), 98(1)(a), or section 100 of the Act.
Section 97 of the Evidence Act provides, relevantly,
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) …, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) …
Section 98 of the Evidence Act provides, relevantly,
(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:
(a) …, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:
(a) they are substantially and relevantly similar, and
(b) the circumstances in which they occurred are substantially similar.
(3) ...
Section 101 of the Evidence Act provides, relevantly,
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) ...
(4) ...
The term probative value is defined in the dictionary to the Evidence Act, probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The word "significant" used in sections 97and 98 of the Evidence Act has been held to require that the probative value of this evidence must mean something more than mere relevance, but may be less than a substantial degree of relevance: R v Lockyer (1996) 89 A Crim R 457 per Hunt CL at CL at page 459; or must be of importance or consequence: R v Martin [2000] NSWCCA 332 at [67] approved by Wood CJ at CL in R v Folbigg [2002] NSWSC 1127 at [74].
In the case of the evidence offered as coincidence evidence, it has been held that for evidence to be admitted as coincidence evidence there does not need to be an exact parallel in the circumstances of each event the subject of the evidence: Samadi & Djait v R [2008] NSWCCA 330.
I agree with the submission of counsel for the accused that care must be taken when considering whether the prejudicial effect of the evidence offered as tendency evidence and coincidence evidence outweighs its probative value, because of the risk that the jury could overborne by the number of offences before them. The following passage is taken from Pfennig v R (1995) 182 CLR 461 at 481:
Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.
This expression of common law principle reflects the caution with which the courts were expected to approach the question of the admissibility of evidence of tendency and coincidence, but after the enactment of the provisions quoted above the assessment of whether to admit the evidence for the proposes purposes must be made upon the tests required by them: R v Ellis (2003) 58 NSWLR 700. It remains however, that particular circumstances may require a determination that the statutory test for the admission of such evidence provided in s 101(2) of the Act would not be satisfied unless the "no rational explanation" test explained in Pfennig v R was also satisfied: R v Ellis ibid at paragraphs [94] to [96].
For the reasons advanced by counsel for the accused I have come to the view that this approach should be taken in this case. Accordingly, subject to what I am about to say with regard to facts not in dispute, the evidence should be excluded unless, when taken in conjunction with the balance of the evidence, the only rational explanation is the guilt of the accused in respect of the offence in respect of which the evidence is offered as tendency or coincidence evidence: R v Folbigg [2002] NSWSC 1127 at [81] and the authorities there cited.
When bringing to account the evidence of the armed robbery at Mittagong I note that the accused pleaded guilty, and when bringing to account the evidence of the circumstances in which he was arrested, and the product of the searches of his person, motor vehicle and home, I have not overlooked that the facts in dispute are with regard to his purpose for being in the car park at Queanbeyan, and the source of the items found, and not with regard to his presence at that location, or that he had those items at his disposal, and that in respect of those facts the more stringent Pfennig test is not required: R v Mason [2003] NSWCCA 331.
Turning first of all the evidence the Crown wishes to adduce as tendency evidence in support of Count 8 charging him with being armed with intent to commit an armed robbery. The Crown asserts that the accused was found in the car park of the Hungry Jacks Restaurant at Queanbeyan intending to commit an armed robbery comparable in material respects to those charged in the indictment, the armed robbery offence to which he pleaded guilty, and the uncharged armed robberies in Belconnen.
I decided that the Crown should be permitted to lead evidence of the methodology the accused employed and the clothing and equipment he used in the commission of the armed robbery offence upon the McDonald's Restaurant at Mittagong on 16 April 2007, to which he pleaded guilty, and to lead evidence of the methodology employed and the clothing and equipment used in the commission of the offences charged in counts 1 to 7 and the uncharged armed robbery offences in Belconnen in support of the offence charged in count 8, as evidence of conduct to prove that the accused had the tendency to commit such offences using that methodology, style of clothing, and equipment.
I am satisfied that the evidence relevant to each of these offences has significant probative value, having regard to the evidence of the circumstances in which the accused was apprehended, the product of the searches of his person, his motor vehicle, and his home, and his responses in the first record of interview extracted earlier in this judgement.
I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused. I am satisfied that the evidence meets the stringency of the test from Pfennig v R ibid.
Turning now to the evidence the Crown wishes to adduce as coincidence evidence in support of counts 1 to 7, and in support of the accused's participation in the uncharged armed robberies in Belconnen.
I decided that in respect of each of the offences charged in counts 1 to 7 and the proposition that he committed the uncharged offences in Belconnen, the Crown should be permitted to lead evidence of the methodology the accused employed and the clothing and equipment he used in the commission of the armed robbery offence upon the McDonald's Restaurant at Mittagong on 16 April 2007, to which he pleaded guilty, and to lead evidence of the methodology employed and the clothing and equipment used in the commission of the offences charged in counts 1 to 7 and the uncharged armed robbery offences in Belconnen, as evidence that these were related events and did not occur coincidentally and to prove that the accused was the offender in each case.
I am satisfied that the evidence relevant to each of these offences has significant probative value, having regard to the evidence of the circumstances in which the accused was apprehended, the product of the searches of his person, his motor vehicle, and his home, and his responses in the first record of interview extracted earlier in this judgement.
I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused. I am satisfied that the evidence meets the stringency of the test from Pfennig v R ibid.
Section 135 of the Evidence Act provides a general discretion to refuse to admit the evidence in the following terms:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial; or be misleading or confusing; or cause or result in undue waste of time.
Section 137 of the Evidence Act mandates the exclusion of the evidence if:
… its probative value is outweighed by the danger of unfair prejudice to the defendant.
My findings also address the test required by section 137 of the Evidence Act. Furthermore, I am satisfied that the evidence will not be unfairly prejudicial to the accused, will not be misleading or confusing, and will not cause or result in any undue waste of time. Accordingly, I do not propose to exercise the discretion provided in section 135 of the Evidence Act.
In reaching these decisions I have also considered the paragraphs in subsection 192(2) of the Evidence Act. I am of the view that the admission of the evidence as tendency evidence and coincidence evidence will not impact adversely upon the length of the proceedings, that it will not be unfair to the accused, and that the evidence is of importance in the proceedings, specifically in the cases being presented by the Crown. I have not overlooked the fact that these are criminal proceedings.
Of course there will be required careful directions to the jury in terns that they must consider each charge separately, with reference to the evidence relevant, and that they should not take a global approach to their task, thereby allowing their decision in respect of any one of the charges to improperly impact upon their decisions to be made in respect of the others.
[20]
Separate Trials Application
As noted earlier in these reasons, the question of the admissibility of this evidence as tendency evidence and coincidence evidence is inextricably linked to the question of severance. Section 29 of the Criminal Procedure Act 1986 provides in subsection (1):
A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same person in any of the following circumstances:
(a) …
(c) the offences arise out of the same set of circumstances; or
(d) the offences form or are part of a series of offences of the same or a similar character.
As indicated in my decision upon the admissibility of the evidence offered by the Crown as coincidence evidence, in my opinion the evidence is capable of establishing that these twelve offences were related events. Moreover, in my opinion they were a series of offences of the same character, and that in the proper exercise of my discretion I should order that the proceedings for all of the offences charged in the indictment should be heard and determined together.
I am satisfied that the interests of justice require that this be so: s 29(3) Criminal Procedure Act, 1986.
I am not of the opinion that the accused will be prejudiced or embarrassed in his defence by reason of being charged with these counts in the same indictment, or, that it is for any other reasons desirable that the accused be tried separately upon any one them: s 21(2) Criminal Procedure Act, 1986.
[21]
Conclusion
It is for these reasons that I made the orders delivered in court on the 12 August 2008.
Amendments
11 May 2020 - attached Comparison Chart
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Decision last updated: 11 May 2020