The accused is found guilty of Count 9, namely that on 31 May 2015 at Canberra in the Australian Capital Territory, he committed robbery in company with two unknown persons and at the time had an offensive weapon with him.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - verdict - trial by judge alone - aggravated robbery - identification - DNA evidence.

Supreme Court Act 1933 (ACT), s 68B

SCC 27 of 2016 ; SCC 83 of 2016 ; SCC 153 of 2016

1. The accused originally faced an indictment, dated 29 August 2016, containing 29 counts. However at the commencement of the hearing he pleaded guilty to 20 of the counts, leaving Count 9 to go to trial and the balance to be dealt with at a future time.

2. In accordance with s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone.

That on 31 May 2015 at Canberra in the Australian Capital Territory, Peter Michael Crawford committed robbery in company with two unknown persons and at the time had an offensive weapon with him.

4. Count 9 is an offence under s 310(a) of the Criminal Code 2002 (ACT).

5. The general allegation is that in the early hours of 31 May 2015, the accused and two other persons entered and robbed the Turner Rugby Union Club. The accused is alleged to have been carrying a knife during the robbery.

6. Before looking at the evidence it is necessary to state the legal principles that I must apply before arriving at a verdict.

7. The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.

8. The prosecution does not have to prove the truth of each fact that is asserted in its case. However it must prove each legal element of the charge beyond reasonable doubt.

9. The legal elements of the charge faced by the accused are:

(a) The accused appropriated something;

(b) The accused intended to appropriate something;

(c) The something that was appropriated was property;

(d) The accused was reckless as to the fact that what was appropriated was property;

(e) The property belonged to another person;

(f) The accused was reckless as to the fact that the property belonged to another person;

(g) The appropriation was dishonest according to the standards of ordinary people;

(h) The accused knew that the appropriation was dishonest according to the standards of ordinary people;

(i) At the time the accused appropriated the property he intended to permanently deprive the person to whom the property belonged of the property;

(j) When committing the theft, or immediately before committing the theft, or immediately after committing the theft, the accused used force on someone else or threatened to use force then and there on someone else;

(k) The accused intended to commit theft when using force or threatening to use force;

(l) The accused was in company at the time of committing the robbery;

(m) The accused was reckless as to the fact of being in company at the time of committing the robbery;

(n) The accused had an offensive weapon with him at the time of committing the robbery; and

(o) The accused intended to have an offensive weapon with him at the time of committing the robbery.

10. The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process. In this particular matter I must put out of mind the pleas of guilty to other counts in the indictment.

11. The identification evidence relied upon by the Crown must be approached with caution. I remind myself that innocent people have been convicted on the basis of mistaken identification and it is necessary to give close attention to the factors constituting the identification evidence.

12. I note that in this case, identification evidence is at the very core of the prosecution case, making it all the more important that this evidence is scrutinised carefully. As the case proceeded, and the extent of admissions made by the accused became clear, the identification issue emerged as the only matter requiring adjudication.

13. The accused did not give oral evidence. He was not obliged to do so; he was not obliged to provide any explanations or motives. He was fully entitled, as he did, to require the Crown to prove its case beyond reasonable doubt.

14. The accused did tender one document, being a statement of a witness who gave evidence on behalf of the Crown (Ms Montague). I will return to her evidence below.

15. A number of witnesses gave evidence about the workings of the club, the location of various offices, where the safe was and where the keys for it and the poker machines were kept.

16. The safe can be seen in Exhibit F. It is operated by a key and a combination lock. Sometimes only one of the locking mechanisms was in use.

17. Mr Scanlon was the manager of the club. He pointed out his office in Exhibit B at photograph 7. Also in his office was the desk used by Mr Wilcox, the Secretary Manager. It is shown in photograph 9. Mr Scanlon said that Mr Wilcox's desk was normally very tidy and not in the state seen in the photographs. As I understood the evidence, access to the manager's office was restricted, at least on the weekend in question, to Mr Scanlon, Mr Wilcox and Ms Montague.

18. Unless someone was present in the office, the door was kept locked.

19. Mr Scanlon pointed out the safe into which all cash takings were placed when the club closed for the evening. This was generally at around midnight. Mr Scanlon was not working on the night of the robbery.

20. Mr Scanlon said that the accused was a member of the club and that records indicated his card had been used in the club at 7:27pm on the Saturday evening.

21. Mr Wilcox also identified his desk. He had not been at his desk since about 5 or 6pm on the Friday before the weekend. He said the state of the office as seen in the photographs was not as he had left it. The glove that can be seen in Exhibit B (photographs 9, 10, 11 and 12) was not his.

22. Mr Wilcox confirmed that $1,240 was stolen on the night.

23. Ms Anna Montague gave evidence and her statement was tendered by the accused (Exhibit 1). Ms Montague described being on duty on the Saturday night. At about midnight she and a fellow employee, Mr Harrison Martin, were the only persons left in the club and were preparing to lock up and leave. Mr Martin had already closed the front doors but they could be opened by pushing them out forcefully. Final closing involved the operation of a deadlock, which had not yet occurred.

24. Ms Montague had, by this time, placed all collected cash in the safe and it had been locked using both the key and the combination mechanism. The key had been returned to the manager's office.

25. At about 12:20am, Ms Montague said three men came out of the cashier's room heading towards the bar. She was behind the bar. One or more of the men was shouting: "We need the money." They were loud and aggressive.

26. Ms Montague told them that the money was in the safe. They ordered her to take them to the safe. She said she needed the key. They told her to obtain it.

27. Ms Montague then went to the cashier's desk to get the key. She was accompanied by two of the men. One of them stayed with Mr Harrison, who was lying face down on the floor.

28. Ms Montague said one of the two men that accompanied her was "skinny" and the other was "very skinny". She knew the accused and agreed that neither of these two descriptions fitted the accused as at the date of the robbery. He was accurately described as "stocky". The current appearance of the accused is consistent with this description. He certainly could not be described as "skinny" or "very skinny".

29. Ms Montague went to the safe, still accompanied by the two robbers, and tried to open it. She had however, forgotten the required combination. She told this to the robbers and said she needed to obtain her mobile phone where the combination was stored. They accused her of lying and stalling. Nevertheless they accompanied her back to the reception to get the phone. One of them grabbed her handbag. The phone fell to the ground, breaking the screen. Nevertheless she was able to restart the phone and obtain the combination.

30. Ms Montague and the two robbers returned to the safe but Ms Montague was so nervous that she could not manoeuvre the combination mechanism with the precision that it required. The robbers tried to open the safe, but without the combination, they were unsuccessful.

31. One of the two robbers carried a machete. The other had a metal baseball bat. One of them also had a 'hoody' with a border (of faux fur). This is significant because it is alleged the accused was wearing this hoody.

32. Ms Montague and the two robbers then went to the manager's office, which Ms Montague needed to open with a key. The purpose was to obtain the keys for the poker machines. She took two sets and gave one set to one of the robbers. She noticed one of them going through Mr Wilcox's desk. The other accompanied her to the poker machines.

33. About six or seven machines were opened. She gave the note stackers from the machines to the robbers. The stackers were put in a white tub which one of the robbers had brought from the cashier's office.

34. The robbers left the premises. Ms Montague sought out Mr Martin. She found him behind the bar on the ground. He called the police. Mr Scanlon was also telephoned.

35. Ms Montague said there was nothing distinctive, or non-Australian, about the robbers' accents.

36. Ms Montague said that before entering the manager's office accompanied by the robbers, she had been there at about midnight. She had not noticed anything unusual. She said she would have noticed the black glove as depicted in Exhibit B, photographs 9, 10 and 11. Notably Ms Montague was not challenged on this observation during cross-examination.

37. Under cross-examination Ms Montague was taken to parts of her statement (Exhibit 1), essentially to demonstrate that the two robbers that she described as the "first guy" and the "second guy" could not have been the accused. An analysis of the Crown case dictates that the robber said to have been the accused must have been one of these two "guys".

38. Ms Montague also said that she had seen the accused from time to time in the club. She accepted the description of him as "stocky" and not "skinny".

39. It is necessary to pay some attention to Ms Montague's statement. The first guy is described in paragraph 17. He is "tall and skinny, wearing all dark clothing and a black balaclava on his head and he was holding a machete." The Crown accepted this was not the accused.

40. The second guy is described in paragraph 43 as "a bit shorter than the first guy, same build, very skinny, wearing all dark clothing and a balaclava on his head and holding a baseball bat".

41. In paragraph 60, Ms Montague states that "the second guy came out of the cashier's box with a white tub which he had put his stackers into." When this sentence is put with the CCTV footage (see Exhibit A, photographs 71 and 72) it is evident that this is the person alleged to be the accused. This raises the logical next step that it could not have been the accused because, being the second guy, he is not "very skinny".

42. Ms Montague's observations of the two 'guys' was central to the submissions put on behalf of the accused. This was of course in addition to the submission that the Crown had not proved its case beyond reasonable doubt.

43. The strongest part of the Crown case came through the evidence of Mr Andrew Preston, a senior forensic biologist. He examined and tested the glove that was found on Mr Wilcox's desk. The testing was performed on the inside of the cuff of the glove to minimise secondary transfer. The results can be found in his report which is part of Exhibit E.

44. Mr Preston said that a mixed DNA profile "from at least four contributors" was found in the glove. However the profile contained both a major and a minor component. In respect of the former his report states:

The evidence is at least 100 billion times more likely if the major component of the DNA profile obtained originated from CRAWFORD than if it originated from another unknown, unrelated individual selected at random from the Australian Caucasian sub-population.

45. Mr Preston explained that the major component of the DNA was most likely to be the last, and most frequent, wearer of the glove.

46. Mr Preston's evidence was not challenged, but he did accept that he could not rule out other possibilities such as the last wearer having been a person other than the accused. I note there was no issue concerning the 'continuity' between the glove being found and being tested by the forensic laboratory.

47. The CCTV footage is important. Examined through the photographs making up Exhibit A, it can be seen that the person alleged to be the accused drops a glove onto the floor (photographs 37, 38, 40, 41, 42, 43, 44, 45, 46 and 47). By photograph 48 the glove seems to be picked up.

48. Then some three minutes later, the same person is seen without a glove on the right-hand (photographs 62 and 63). At this stage it is worth recalling Ms Montague's evidence that after the unsuccessful attempts to open the safe, she and the robbers went to the manager's office where the glove was later found.

49. As the trial was run, the only factual matter that was left for decision was whether the prosecution had established beyond reasonable doubt that the accused was one of the three robbers. The prosecution submitted that it had done so through the location of the glove, the preponderance of the DNA source that was in it and the consistency of the glove being left on the desk in the course of the robbery and certainly after Ms Montague had been in the office a short time before the robbers entered the building.

50. The accused, I think, recognised the strength of the Crown case but said that Ms Montague's description of the only robber that could have been the accused was so unlike the accused that I must have a reasonable doubt about his involvement. It was not enough for me to think it was probably the accused that was present or even to be very suspicious. I have to be satisfied beyond reasonable doubt.

51. I am so satisfied. When considering the evidence of any witness it is open to me to accept part of that evidence, without accepting the whole of it. That is the approach that I take to the evidence of Ms Montague in relation to her descriptions of the two robbers she referred to as "skinny" and "very skinny". In particular I do not accept the accuracy of her evidence that the second robber was "very skinny".

52. Ms Montague was terrified and in fear of her life. The event seen on the CCTV footage entirely justifies these emotions. One can readily accept that a person experiencing this degree of terror could be mistaken in making a general identification centred only on whether, and to what degree, a person is 'skinny'. In addition, the CCTV footage indicates the loose clothing worn by the robbers, which together with the facial coverings, combines to make any generalised identification susceptible to error.

53. The only possible doubt about the guilt of the accused could come from an acceptance of Ms Montague's evidence about the physical description of the relevant robber. This doubt is removed by my not accepting that part of her evidence.

The accused is found guilty of Count 9, namely that on 31 May 2015 at Canberra in the Australian Capital Territory he committed robbery in company with two unknown persons and at the time had an offensive weapon with him.

55. I will hear the parties on the course to be taken in relation to sentencing on the pleas of guilty and the conviction on Count 9.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim