R v Massey [2000] ACTSC 107

Supreme Court of the ACT|2000-11-23|Before: Einfeld J

CRIMINAL PROCEDURE -- trial without a jury -- procedure to be adopted -- re-opening of trial by both parties after cases closed and written final submissions ordered -- required content of judgments -- warnings and directions to be given by the judge to the judge

CRIMINAL LAW -- circumstantial case -- alibi defence -- whether lies to be taken as evidence of guilt of offence charged or merely as evidence of general criminal conduct -- the effect of lies and changes of story told by alibi witnesses on the weight that should be given to their ultimate evidence -- effect of inconsistencies in evidence of alibi witnesses on guilt of the accused -- inconsistencies between evidence of accused and alibi witnesses -- impossibility that alibi evidence is credible

(ACT) Crimes Act 1900 ss 100(1) and 101

Eade v The King [1924] HCA 9; (1924) 34 CLR 154

R v Baskerville [ 1916] 2 KB 658

DPP v Stonehouse [1978] AC 55

Gilbert Anthony Dyett v Laurence Henry Jorgensen (unreported, Supreme Court of Queensland Court of Appeal, 5 August 1994)

R v R Salama [1999] NSWCCA 105

R v Beattie (1996) 40 NSWLR 155

Fleming v R (1998) 197 CLR 250

R v Giardini (unreported, New South Wales Court of Criminal Appeal, 25 February 1993)

R v Paul Mark Hart (unreported, New South Wales Court of Criminal Appeal, 21 June 1996)

R v Crisologo [1997] 99 A Crim R 178

James Glissan QC and Sydney Tilmouth QC, Australian Criminal Directions, Butterworths, 1996 at [1-500]

Date: 6, 7, 20 September, 12 and 13 October, 23 November 2000

[1] Matthew James Massey (the accused) was arraigned on 22 August 2000 on a charge that on 15 November 1999 he robbed three employees of the Fyshwick branch of the Commonwealth Bank (the bank) of $12,695, using a sawn-off rifle. At the time one of these bank officials was employed interviewing prospective borrowers while the others were acting as tellers. As the money presumably belonged to the bank or its customers, I do not know why the victims named in the indictment are those three persons but the matter is of no moment to the result of this case.

[2] Such conduct is made an offence by s 101 of the Crimes Act 1900 (ACT) and is punishable on conviction by imprisonment for a maximum of 25 years:

A person who commits robbery and at the time of doing so has with him or her a firearm, an imitation firearm; an offensive weapon, an explosive or an imitation explosive, is guilty of an offence, punishable, on conviction, by imprisonment for 25 years.

[3] Robbery is defined in s 100(1) of the Crimes Act:

A person who steals and, immediately before or at the time of doing so, and in order to do so, uses force on another person, or puts or seeks to put another person in fear that he or she or any other person will be then and there subjected to force, is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

[4] The accused pleaded not guilty and elected to be tried by Judge alone. As a result of this election, I am directed by s 68C of the Supreme Court Act 1933 (ACI) as follows:

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

[5] To the knowledge of counsel and the Court, this particular provision has not been the subject of judicial interpretation prior to this trial although an equivalent provision in New South Wales has. Accordingly, at the end of the trial I invited the parties to make written submissions concerning the effect of this provision on the determination of this case, including the warnings and directions I am to give myself in the circumstances of the case.

[6] As the defence case was one of alibi, the circumstances of the robbery and the arrest of the accused are not at issue. It is therefore only necessary to relate the background facts quite briefly.

[7] At approximately noon on 15 November 1999 two masked men entered the bank. One of them carried a sawn-off rifle and wore a white-faced clown-type mask (sometimes referred to in these proceedings as a "gorilla" mask) that had attached to it a long black wig. The other wore a darker-faced comedy or ghost-like mask, which did not have a wig attached, and carried a block splitter or sledge-hammer which he used to break the glass security screen between the bank tellers and the public area of the bank. After the barrier had been smashed, the two offenders jumped over the bank counter into the teller area and removed the proceeds of the robbery from cash drawers in the teller area. Both offenders spoke, or shouted, words of instruction and threat while inside the bank.

[8] A man named Nigel Everest was using the bank's external automatic teller machine at around the time of the robbery and witnessed the two robbers enter the bank. Mr Everest then watched them leave the bank and flee the scene in a white 1989 VN Holden Commodore sedan bearing ACT registration plates which had been secreted in an alley behind the bank. The vehicle had been stolen sometime between 6.30 pm on the previous night and 7 am on the morning of the robbery from a house in the Canberra suburb of Banks. In his statement to police on the day of the robbery, Mr Everest stated that he could not then recall which of the offenders drove the getaway vehicle, and therefore which of them sat in the front passenger seat. However, in a re-enactment of his observations filmed by police one week later, Mr Everest stated, albeit that he said he was "hazy" about the subject, that the offender wearing the gorilla mask drove the car away from the crime scene. This recollection, together with the caveat of haziness, was repeated by Mr Everest in his evidence at this trial.

[9] Mr Everest then followed the offenders' car from the scene on his motor cycle. I extend special recognition and the thanks of the community to him for his brave actions which put him at great personal risk. During his pursuit, sometimes reaching speeds in excess of 160 km/h, Mr Everest claimed to observe the man sitting in the passenger seat remove his mask. This opportunity enabled him to observe that this offender had "long light coloured hair possible (sic) blond".

[10] Mr Everest ceased his pursuit only when the offenders turned down an unsealed gravel road that was unsuitable and dangerous for a motor cycle. This road leads to the Queanbeyan sewage works, which are located alongside the suburb of Oaks Estate just outside Queanbeyan. At this time Mr Everest contacted the police, presumably on a mobile phone. Shortly after, at approximately 12.20 pm, the police arrived at the road junction and immediately thereafter located the getaway car at the edge of the sewage works. Having received information from a taxi driver who had witnessed a man on foot on Oaks Estate Rd near the sewage works, police cordoned off and began searching the length of the road. This search took in the bushland abutting the road and the banks of the Molonglo River as it runs beneath the road at a point where a low level bridge has been constructed. At the request of the parties, I viewed the escape route and all these areas during the trial.

[11] At about 1.35 pm this search led to the location and arrest of the accused and a man named Anthony (Tony) Hagen who had both been hiding in shallow water amongst the reeds near one of the banks of the Molonglo River. They were said by police to be about 10 metres apart. At the time of their arrest both men had what can fairly be described as dark and short haircuts in the manner of the traditional "short back and sides". The accused was dressed in a dark coloured suit, wearing brown dress shoes and a collared t-shirt. They were both cold and drenched to the skin from their immersion in the river.

[12] Later that day some $12,060 was found in a bag submerged in the river at a point between where the two men were found. The money in this bag was identified as being the money stolen from the bank because glass fragments were found in the bag which matched the glass in the bank's security screen. Matching black filaments of polypropylene, apparently from the black wig attached to one of the masks, were also found in the bag, the getaway vehicle and at the bank. Despite searching along the roadside of the getaway route observed by Mr Everest, as well as the length of Oaks Estate Rd, the sawn-off rifle and masks used in the robbery have never been recovered.

[13] While still at the low level bridge on Oaks Estate Rd, the police conducted and tape-recorded an interview with the accused. In a highly dramatic fashion, he explained his presence in the river as having followed a vicious assault by three armed men who had driven him to the site in the boot of a car before dumping him off the edge of the bridge. Later on the same day, at about 4.30 pm, a police medical examiner Dr Klaus Czoban collected some biological samples from the accused and examined him. He determined that, whilst suffering from injuries consistent with his story of having been assaulted, the accused was fit for subsequent interview. In the second interview the accused maintained the extraordinary version of event he had given to the police immediately after his arrest. This account contrasted with the wholly conflicting version he gave at the trial that he had arrange to meet his heroin dealer Ashley Kropp at the low level bridge so that he could purchase some heroin. As will be seen, Kropp, wo at the time he gave evidence in this trial was in custody facing charges including for the supply of heroin, corroborated this arrangement.

[14] DNA from blood found on the broken glass at the bank matched a sample of DNA taken from Hagen. There was also evidence that glass fragments found on Hagen's clothing were consistent with the glass in the bank's security screen. As a consequence Hagen pleaded guilty for his part in the bank robbery and on 10 April 2000, he was convicted and sentenced to 7 years imprisonment. Despite evidence from Dr Czoban that the accused's hair was more easily removable than would normally be expected, together with Mr Everest's observations that the offender wearing the mask with the attached wig drove the getaway car and that the passenger romoved his mask while in the car, and Hagen's testimony in this trial that he wore the mask without the attached wig and drove the car, none of the acccused's haris were found in the car. In his remarks when sentencing Hagen, Miles CJ observed that the 'other man', meaning Hagen's accomplice and on the prosecution case here the accused, used the block of the splitter to smash the bank's security screen. Yet no glass was found on the accused.

[15] Pursuant to s 406 of the Crimes Act 1900 (ACT), the accused served his Notice of Alibi on the Director of Public Prosecutions by letter of his solicitors dated 31 July 2000 and a copy of it was provided to the Court at the commencement of the trial without objection. The relevant and substantive terms of this notice were:

On 15 November 1999 Ms (sic) Massey left his mother in law's house in Spence at around 8.30-9.00 am and took a bus to the Tuggeranong Hyperdome. He was to attend an interview at Allstaff. Before going to the interview Mr Massey realised he was sick and needed heroin.

At about 11.00 am Mr Massey saw Mark David Scott at the Hyperdome. He had a conversation with him for about 15-20 minutes. He offered Scott $25 to drive him to Oaks Estate, where he made arrangements to meet Ashley Krapp (sic) at 12 noon to buy heroin.

Mr Scott then drove him to Oaks Estate. The trip took about 30 minutes. Mr Scott dropped Mr Massey at the meeting place and left the area. Mr Massey then waited for Mr Krapp (sic) for about 5-10 minutes.

Mr Massey met Mr Krapp (sic) around 1105 pm and he bought '4 of heroin for $100. He then used Y of the heroin (in the right side seat of Mr Krapp's (sic) car.

About 15-20 minutes later Mr Massey heard a knock on Mr Krapp's (sic) car window. He looked up and saw Tony Hagen and a man called Roger. Mr Massey does not know Roger or Roger 's surname. Our client saw both Mr Hagen and Roger were each carrying a bag.

Mr Massey then got out of the car and spoke with Mr Hagen. Roger then got into Mr Krapp's (sic) car. Mr Massey saw Roger pay him $650.

Mr Kropp (sic) and Roger then left Oaks Estate, leaving Mr Massey and Mr Hagen.

[16] Annexed to the Notice of Alibi were the statutory declarations of the two persons named Mark .Scott and, as the person's name is in fact, Ashley Kropp. In his declaration dated 18 April 2000, Scott declared that he drove the accused from the Tuggeranong Hyperdome to the low level bridge on Oaks Estate Rd on the relevant day in a dark green Datsun Bluebird for a fee of $25, dropping the accused off at about 11.55 am.

[17] In his declaration made on 14 April 2000, Kropp stated that by arrangement made earlier in the day in question, he met the accused at noon on Oaks Estate Rd. He said that at 12.10 pm he also met another `client' in the company of a person whom he knew only as "Rodger" (sic). Kropp recalled that "Rodger" (sic) was in possession of a bag and was wearing clothes similar to those said to have been worn by one of the offenders. Kropp declared that "Rodger" (sic) gave him $650, for what it is not said, and that thereafter he drove "Rodger" (sic) to Queanbeyan. He did not return, as planned, to pick up the accused. Unless it was Hagen which Hagen denied and the rest of the evidence does not support, it has never been shown who the "other client" was.

[18] The trial of the accused commenced on 6 September 2000, with the prosecution case closing shortly after lunch on the second day. Although of course aware of the alibi put forward by the accused, the prosecution did not seek to call any evidence in its rebuttal before it closed its case. The police had been unable to locate Kropp. When it closed its case, the prosecution had led the circumstantial evidence of finding the accused in a river in the vicinity of and close to Hagen and the proceeds of the robbery, as well as one piece of what it initially tentatively proposed as identification evidence. This evidence was given by Richard Hardy, one of the bank's tellers at the time of the robbery. Mr Hardy and the accused were acquainted through joint involvements in a local rugby league club. Said to be consistent with this acquaintance was an observation of Mr Hardy that the offender who wore the mask with the attached wig stopped and looked at him for about two seconds after entering his teller area. This observation was not mentioned in the statement Mr Hardy gave to police on the day of the robbery but was first recorded in a statement given to police on 1 February 2000, by which time Mr Hardy knew that the accused was in custody on the present charge. Moreover, despite being familiar with the accused's voice, he could not identify either of the offenders' voices as belonging to the accused. By reference to the provisions of s 116 of the Evidence Act 1995 (Cth) and the relevant definitions which are not necessary to set out in detail here, I do not believe that this evidence can be accepted as an identification of the accused in the bank at the relevant time.

Mrs Massey and the accused -- before the robbery

[19] The defence case of alibi involved accounting for the accused's movements from 7 pm on the evening before the robbery up to when he was located by police in the river after the robbery had taken place. The accused said that on the night before the robbery he and his wife had had a barbecue dinner at his grandparents' house in Ngunnawal, driving home from there at about 1 or 2 am. The accused's wife, Mrs Rebecca Massey, corroborated his account, although she also recalled stopping off at her mother's place on the way home. Despite this corroboration, the first inconsistency in the accused's evidence arose here. The Notice of Alibi stated or implied that the accused spent the night at his mother in law's house, yet both the accused and his wife testified that they spent the night at home.

[20] The accused said that on the morning of 15 November 1999 he left home at about 10 am in the clothes in which the police later found him, including a dark coloured suit. Although unusual for him, he was wearing a suit because he was to attend an employment interview at Tuggeranong by a company called Allstaff for which he had previously done some sub-contracting work. A second inconsistency in the alibi evidence arose in the details of the accused's trip to Tuggeranong for that interview. The Notice of Alibi stated that he travelled from his mother in law's place to Tuggeranong by bus on that morning, yet his evidence was that he travelled by bus from his home. He proffered two different reasons why he caught a bus on that day rather than drove. The first was because his wife needed to use the car during the day. The second was because the car's alternator was playing up. Mrs Massey, on the other hand, recalled that the accused may have caught a bus to Tuggeranong because she was too ill with symptoms associated with her then pregnancy to drive him.

[21] In any event, the accused strenuously denied involvement in the armed robbery. He stated in evidence that he arrived at the Tuggeranong Hyperdome at about 10.30 am. Too sick to attend the job interview because he needed heroin, he called his heroin dealer, Kropp, then at a friend's place, who fixed the meeting place at the low level bridge on Oak's Estate Rd at noon. Shortly after that call, the accused bumped into Scott and arranged for a lift out to Oaks Estate to meet Kropp. The accused then called Kropp back to confirm their arrangement. The accused estimated that the making of his arrangements with Kropp and the 15-20 minute conversation he had with Scott took approximately 1 hour in all, leaving him half an hour or so for the drive out to Oaks Estate to meet Kropp. He said that Scott was driving a white utility and that during the drive, he (the accused) took six serapax tablets. Scott put the chance encounter between him and the accused at Tuggeranong as occurring at about 11.30 am, contrasting somewhat with the Notice of Alibi which timed it at about 11.00 am. The 11.30 timing causes problems with other timing having regard to the time of his arrival at Tuggeranong and having in mind the length of the drive to the low level bridge.

[22] The accused stated that after Scott dropped him at the low level bridge he waited for five minutes before Kropp arrived. Apparently Scott drove off immediately. The accused entered Kropp's car and whilst sitting in the front passenger seat paid Kropp $100 for 1/4 gram of heroin, half of which he then injected into his right arm. The accused then recalled a knock at his window causing him to notice two men standing outside the car. One of them, the man standing furthest from the vehicle, he knew as Hagen. He did not know the other man, although he named him as "Roger" in his Notice of Alibi.

[23] The accused immediately left the vehicle and began talking to Hagen, at which time "Roger" entered the vehicle. About one minute later, Kropp started the vehicle and left the area with "Roger", promising the accused that he would return in 10 minutes or so to pick him up. The accused testified that he could not recall whether Hagen was carrying a bag at that time although a recollection that both Hagen and "Roger" were carrying bags when they knocked on the car window was contained in his Notice of Alibi.

[24] After Kropp had left with "Roger", Hagen and the accused were left alone by the side of the road. While they were conversing, they became aware of the proximity of police. Concerned that the police were somehow aware of the small heroin deal that he had just made and the resultant breach of one or more of his then current parole conditions prohibiting the possession and use of narcotic drugs, the accused swallowed the heroin he had remaining on him and hid, firstly in bushes alongside Oaks Estate Rd, and then in the Molonglo River. The accused estimated the time he was in hiding as between forty and fifty minutes. Although he recalled Hagen telling him that he too was waiting to be picked up, he explained his inability to accurately recall the conversation he had with Hagen, together with his failure to recall whether Hagen had a bag with him, and his decision to remain hidden in the river for some time despite being extremely cold, as due to the effect of the heroin and serapax he had taken.

[25] Hagen's evidence did not strictly address the alibi defence. Despite pleading guilty to a charge identified in a statement of facts read to the Court at the time that named the accused as his accomplice, Hagen said that the accused was not in any way involved in the bank robbery and was not his accomplice although he refused to say who was. In this regard, he did not name "Roger" nor describe his accomplice at all. However, he did testify that he and his accomplice chose the Fyshwick branch of the Commonwealth Bank in particular because they had heard of another criminal's previous success there. Hagen said that after he parked the getaway car in the vicinity of the Queanbeyan sewage works, he and his accomplice changed clothes before splitting up, with the accomplice taking responsibility for getting rid of the gun and the clothes, whilst he hid the money in the river. He also testified that he observed the accomplice run towards and get into a small blue car which was parked further up the road, presumably with bag in hand. Whilst he did not see who drove this vehicle, he did recall seeing the accused standing by the side of the car at the time. Hagen recalled telling the accused not to hide near him because he had just committed a robbery -- surely a somewhat startling revelation to someone in the accused's stated position but which the accused did not recall at all -- but did not say that he told the accused that he was also waiting to be picked up, contrary to the accused's account. Also of concern is that on this account the only bag Hagen ever had was the one later found in the river with the money in it. Yet the accused could not possibly have seen Hagen carrying this bag because by the time he was out of the car, Hagen had already hidden it in the river.

[26] Scott testified much in accordance with his statutory declaration. As noted earlier, he denied having a 15-20 minute conversation with the accused as the accused contended took place at Tuggeranong. Moreover, in his statutory declaration Scott stated that the car he drove on the day was a dark green Datsun Bluebird, but in his evidence he said that he had in fact driven a white old model Holden utility belonging to his brother. He sought to explain the earlier error as due to an illness at the time the declaration was made caused by his detoxification from heroin as a result of his being then recently taken into police custody.

[27] A more troublesome matter concerning Scott's evidence was the explanation he gave for the delay in making his statutory declaration. He had first-hand knowledge of the accused's whereabouts between 11.30 am and noon on the day of the robbery, at the very time that the bank was being robbed. Yet despite learning from television on the night of the robbery that the accused had been arrested for it, Scott did not offer assistance to the accused until 18 April 2000, five fall months after the accused was taken into police custody. During this time he had been in the same remand centre as the accused twice, once in December 1999 when Hagen was also there, and again in the few days leading to the time he made the statutory declaration. The explanation he gave for not contacting the accused and offering his assistance earlier was his fear that his statement would have contravened a condition of his then current parole which precluded him from associating with other convicted criminals. Also proffered as an explanation was his quite touching belief, reassuring to the Court, that as the accused had certainly not committed the crime, the legal system would ultimately lead to the armed robbery charge being dropped without his support.

[28] Called outside the court during the trial at the request of the defence, Kropp did not appear. The evidence being thus completed, the parties then made brief closing oral submissions, in the knowledge of my intention to allow them to elaborate on their positions through the provision of written submissions once the full transcript of evidence was available. At the end of the third day of the trial, a timetable was thus set for the provision of written submissions.

[29] What followed must rank as quite unique in the annals of criminal trials. It could not have occurred at a trial by jury. What it says about the problems and desirability of trials by judge alone is for others to ponder. Prior to the completion of the timetable for final submissions, a member of the Court staff noticed in records provided to the Court in the normal course that Kropp had recently been taken into custody by police on an unrelated matter. Thus informed of his whereabouts, the solicitors for the accused then gave notice of a motion seeking leave to re-open the defence case to call Kropp. When the motion came before the Court on 20 September 2000, the prosecution advised that it did not oppose the granting of the order sought in the motion. For this and other reasons, including the importance of Kropp's evidence to the alibi, I granted leave to re-open: see Gilbert Anthony Dyett v Laurence Henry Jorgensen (unreported, Supreme Court of Queensland Court of Appeal, 5 August 1994).

[30] Kropp generally corroborated the accused's account of how they came to meet on Oaks Estate Rd on the day in question. He said he was driving a blue Datsun 120Y borrowed from a friend named Lauren Edney. The explanation he proffered for failing to return to pick up the accused was that having driven from the scene into Queanbeyan, the vehicle started having mechanical difficulties. He said that these problems were fixed by Lauren Edney's then boyfriend, Glenn Norman, who installed a new fuel pump in the car. No doubt this whole operation would have taken some time. Kropp said that he left the accused out at Oaks Estate Rd rather than take him into Queanbeyan because he had to meet his own drug dealer in Queanbeyan and he did not know the accused well enough to trust him with the identity of this person. All this evidence was much more specific and detailed than Kropp provided in his statutory declaration although it must be allowed _ that the space in the declaration form was limited and he may not have known that he could, or thought to, expand on another sheet of paper.

[31] But the corroboration had some flaws. Kropp said that his mobile phone registered the accused's incoming call from Tuggeranong as coming from another mobile phone which threw up his failure to use his mobile phone's memory functions to call and advise the accused of his car troubles preventing him from returning to collect him as promised. Counsel for the accused asked that judicial notice be taken of what he said was the fact that the numbers of public phones commence with the same combination of numbers as mobiles, a fact which would explain why Kropp believed, possibly wrongly, that the accused had called him from a mobile phone. To my mind, such a matter is not of the kind of which judicial notice should be taken although I do not doubt for a moment counsel's statement about the matter. I could not find and do not recall any evidence that the accused made his call from a public phone, but it is not relevant in an any event. The importance of this aspect of the evidence is not what phone the accused used but the low likelihood that in the belief that his mobile phone had recorded the accused's mobile phone number, Kropp would not even turn his mind to using it to contact the accused and advise him of his inability to return to pick him up. That problem would exist even if Kropp's mobile phone had in fact recorded the number of a public phone at Tuggeranong which would of course have been of no use. How he thought the accused would get back to Canberra from the low level bridge was not stated although when I was inspecting the scene, I noticed that there was a not insignificant volume of passing traffic.

[32] Perhaps the most alarming inconsistency between Kropp's statutory declaration and his evidence concerned his arrangements and observations of Hagen and "Roger". I have earlier noted that in his statutory declaration Kropp referred to a presumably pre-arranged meeting with "another client ... who was in the company of another person ... who I know as Rodger" (sic) after having met and supplied the accused with heroin. However, in his evidence, Kropp said it was "Roger" with whom the arrangement to meet had been made, and to whom heroin was supplied. On this account, the arrangement was not, as implied by the statutory declaration, made with Hagen. Moreover, in his evidence Kropp stated that he could not recall seeing Hagen at the low level bridge except for seeing a figure in his rear vision mirror as he drove away that could have been him. This evidence of course conflicted with the accused's account that Hagen was alongside or near the car while he was "shooting up" in the front seat.

[33] Finally, despite having direct knowledge of a number of the accused's movements on the relevant day and hearing about his arrest shortly thereafter, he failed to offer any assistance or even make contact with the accused until Kropp himself was taken into custody on 11 March 2000. Similar to Scott, his appealing if unlikely explanation for this failure was his "faith in the legal system that if he was guilty he'd be found guilty, if he was innocent he'd be found innocent". Actually, if Kropp's evidence was true, the accused could be guilty only with difficulty.

[34] After this new evidence, and hence after the defence had again closed its case, the police undertook further investigations. To lead the evidence they discovered, the prosecution considered that it needed leave to re-open its case, and by oral application in Court on 3 October 2000 this leave was sought. The defence did not object to leave being given and although doubting that leave was required, except in the general sense of re-opening the trial as a whole, I granted the application. Apart from the non-objection by the defence, a contributing factor to the exercise of my discretion in this regard was the nature of the evidence sought to be adduced. From the unchallenged evidence of two of the four witnesses presented, Lauren Edney and Diane Boland, it was established that Boland did and Edney did not, on 15 November 1999, own the Datsun 120Y that Kropp testified he had borrowed from Edney to drive to the low level bridge that day. No arrangement such as stated by Kropp was made. For his part, Glenn Norman said that he did not perform repair work on that vehicle on 15 November 1999 as Kropp had testified. A fourth additional witness was a police officer, from whom it was anticipated evidence would be adduced that a person extraneous to these proceedings had been arrested driving that vehicle whilst disqualified on 1 December 1999. In the event no reliance was placed on his statement.

[35] This evidence could not reasonably have been foreseen as necessary or desirable merely on the basis of Kropp's statutory declaration or the accused's Notice of Alibi. Furthermore, the evidence did not go towards proof of the prosecution case, but rather to rebutting alibi evidence that was first raised in the course of the defence case. As it was important to safeguard the sanctity of the trial process by not permitting the prosecution to unfairly split its case, I regarded the non-objection by the defence to the calling of the evidence as an implicit recognition that it would not be unfair to the accused. See R v Shaw [1952] HCA 18; (1952) 85 CLR 365; R v Lawrence (1981) 38 ALR 1; R v Killick [1981] HCA 63; (1981) 147 CLR 565.

[36] On 12 October 2000, the Court specially convened to take the evidence of these four witnesses. However, without earlier notice to the Court, a minimal courtesy that might have been expected in the circumstances, the witnesses were not required for cross-exatnination and the statements were tendered and admitted into evidence. The prosecution case was again closed.

[37] The defence then sought leave to recall Kropp. The prosecution did not oppose the application and I allowed the recall to permit Kropp to explain the inconsistencies between his evidence and the new prosecution evidence and so that the accused could fully put his alibi before the Court.

[38] On this second occasion of his giving evidence, the following exchange took place between Kropp and counsel for the accused:

Defence Counsel: You've previously given evidence concerning the events of 15 November 1999, where you said that you met Matthew Massey on the low level bridge on the Oaks Estate Road at about midday. Do you maintain that as truthful or otherwise?

Defence Counsel: You told the Court previously that you travelled there in a blue Datsun 120 Y Sedan that you'd borrowed from Lauren Edney. Is that true or not?

Defence Counsel: Whose car was it that you were out in at the Oaks Estate Road on that day?

Defence Counsel: What did he tell you? What did he say?

Witness: That if I was to borrow his car in the morning, I was to be out at Oaks Estate Bridge at 12 o'clock to pick him up.

[39] The reason given by Kropp on this occasion for his failure to return to the low level bridge to pick up the accused also differed with his earlier account. The contrast was recorded in the following questions and answers:

Defence Counsel: You've previously told the Court that you didn't return to collect Matthew Massey from the bridge because the car you were driving broke down. Was that true or false?

Defence Counsel: Why didn't you go back and pick up Matthew Massey?

Witness: Roger wouldn't allow me to, and he also told me that there would probably be police out there.

[40] The cross-examination of Kropp produced this alarming encounter:

Crown Prosecutor: So, sorry, is this the case that you admit that you lied on your oath on 8 September when I asked a number of questions?

Crown Prosecutor: You lied to the judge, on your oath, is that right?

Crown Prosecutor: Well, not technically, you dick didn't you?

Crown Prosecutor: Then you lied about a number of things, didn't you?

Crown Prosecutor: And this is the first time, isn't it, that you have come up with the version about the car being [at] Roger's, is that right?

Witness: It's the first time I've come up with a version, yes.

Crown Prosecutor: And you didn't put it in the version -- put it in the Statutory Declaration?

Crown Prosecutor: And later on in September this year, when you handed yourself in and ended up at the remand centre, you were interviewed by [Defence Counsel], is that right?

Crown Prosecutor: And it's only after you found out that police had statements from Lauren Edney and Glen Norman and Diane Boland, that you've changed your story, is that right?

Crown Prosecutor: And in fact you have changed your story, haven't you?

Witness: I have changed my story to the Court, yes.

Crown Prosecutor: But you've changed it to ry and fit in with a versionof facts which you now understand it, is that right?

Witness: No, I changed my version because I was trying to cover up what I was doing on that day because I believed I was going to be chared with an offence.

Witness: I'm not sure -- conspiracy, knowingly concerned ...

[41] This explanation was preposterous. No one has ever suggested that Kropp was involved in the bank robbery, although counsel for the accused did observe that such a conclusion may have been open on the evidence. Kropp refused to answer certain questions put by both the prosecution and the Court despite repeated efforts to obtain and compel answers. The questions that he refused to answer on this occasion included "Roger's" surname, the make of "Roger's" car, "Roger's" address, and where exactly he drove "Roger" after leaving the area of the low level bridge on Oaks Estate Rd. He was, however, prepared to describe "Roger's" car as being blue and, later, he gave some, though not precise, evidence of where he had driven "Roger" within Queanbeyan. His testimony on this occasion that he did not return to the low level bridge to pick up the accused because "Roger" had informed him that police would be in the area and had on that basis ordered him not to clearly conflicted with at least two other prior accounts of his reasons for not doing so.

[42] Indeed the whole content of Kropp's further evidence was substantially different to the accounts of his movements on 15@@@November 1999@@@that he had initially given although it did not generally contradict the summary account in the statutory declaration. In view of the importance to this trial, and the potentially serious effect on its outcome, of Kropp's persistent refusal to answer many questions, I invited the Director of Public Prosecutions to consider contempt proceedings against him. Whatever the fate of that matter, it is impossible to treat Kropp's evidence as creditworthy in any respect.

[43] The evidence was finally closed after this encounter, more than a month after the trial proper had concluded.

The effect of s 68C of the Supreme Court Act

[44] The High Court considered the equivalent provision (s 33) in the Criminal Procedure Act 1986 (NSW) to s 68C of the Supreme Court Act 1933 (ACT) in Fleming v R (1998) 197 CLR 250 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). The Court held that the obligation imposed by the section:

was to ensure that the judgment included all principles of law which the judge applied Unless the judgment shows expressly or by implication that the principle was applied it should be taken that the principle was not applied, rather than applied but not recorded.

[45] Accordingly, it is the obligation of the Court to state each and every legal principle that it applies in reaching its finding as to the accused's innocence or guilt. Such an obligation is indeed a heavy one if, as here on a number of matters, the parties have not expressly addressed, advocated or argued them. This position also seems to conflict with the notion usually associated with the adversarial legal system that it is for the parties to argue thelaw to the Court and for the Court to then find the law, and thus decide the parties' dispute.

[46] As to subs (3) of s 68C, the High Court in Fleming said of the equivalent New South Wales provision (s 33(3)):

The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law.

The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account.

[47] Therefore, although differently expressed, both subs (2) and (3) of s 68C are put in terms of legal imperatives such that a failure to observe either or both of them will be to commit an error of law. The effect of this requirement is that a judge trying an indictable offence without a jury must not only respond to and address the parties' submissions on the proper legal principles to be applied, and on the warnings and directions to be considered, but must look beyond the submissions to see whether any further legal principles, warnings or directions are relevant. The combination of these requirements apparently includes not merely the enunciation of the matters more particularly applicable to the case in question but even the fundamental underpinnings of all criminal trials that a judge must give a jury which the judge is presumed to know but of which the jury is presumed to be ignorant.

[48] Another important consideration is that if a judge considers that there are good reasons for not giving a warning as to the reliability of certain evidence, s 165(3) of the Evidence Act 1995 (Cth) entitles the judge not to issue that warning. If that be the case, however, the prosecution submitted that the judge should state what those good reasons are: R v Beattie (1996) 40 NSWLR 155 at 160 (James J). Whilst Beattie does not suggest that the enumeration of such reasons is mandatory, I think that the sentiment expressed by the High Court in Fleming -- that that which is not expressed or implied has not been considered -- suggests that it is proper to follow such a course.

[49] The parties were in consensus on two principles which are relevant to the Court's reasoning process in this case. The first of these arises from the fact that the prosecution's case relies on circumstantial evidence, with Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 as the guiding authority on the point. The following passage from the judgment of Dawson J, with whom Toohey and Gaudron JJ agreed, is of assistance (at 579):

Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.

On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where -- to use the metaphor referred to by Wigmore on Evidence, vo1.9 (Chadbourn rev 1981), par 2497, pp 412-414 -- the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.

[50] This principle has some application to the case at hand. There was no witness who claimed to have seen the accused commit the armed robbery. Rather, the prosecution sought to prove its case through the establishment of certain facts and events which it said combined to establish that there is no other reasonable explanation than that he did so. In substance, the prosecution case is essentially that because the accused was found in the Molonglo River near Hagen and the stolen money a relatively short time after, and not particularly far from where, the robbery was committed, he should be found to be Hagen's accomplice in the bank robbery.

[51] Before such a finding may be made on this circumstantial evidence, however, the law requires the Court to be satisfied that such a finding is not only reasonable but that it is the only reasonable finding to make. The correlative of this proposition is that if there is another reasonable explanation consistent with the accused's innocence of the bank robbery, a finding of not guilty must be made. The reasonable hypothesis for which the defence contended and which it suggested that the prosecution has apparently failed to negative is that the accused was at the low level bridge on Oaks Estate Rd to meet Kropp for a heroin transaction, albeit that this rendezvous remarkably coincided with the very time Hagen and his accomplice arrived at the same place after robbing the bank.

[52] The defence argument was that when considering the circumstantial evidence in this case for the purpose of applying the legal principle, the Court must do so in light of all of the other evidence in the case, including the evidence of the accused and the witnesses called in his defence. The defence said that before the accused can be found guilty on the evidence the Court must be satisfied -- to borrow from a well-known passage in the address to the jury by Alderson B at the Liverpool Assizes in Hodge 's Case (1838) 168 ER 1137:

not only that those [incriminating] circumstances were consistent with his having committed the act, but ......... that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person.

[53] The second principle upon which the parties were in agreement concerns what is to made of the lies told to the police and Dr Czoban by the accused: Edwards v R [1993] HCA 63; (1993) 178 CLR 193. The following passage from the judgment of Deane, Dawson and Gaudron JJ illustrates what lies can be of use to the Court (at 209):

[The lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged.

[54] This same principle was earlier expressed by the High Court (Knox CJ, (Javan Duffy and Starke JJ) in Eade v R [1924] HCA 9; (1924) 34 CLR 154 at 158 as:

Now, if a jury be of opinion that the prisoner's statements are false, then they may properly come to the conclusion that his falsehood indicates that the child's story is true, and that he is telling lies in order to discredit the evidence of other witnesses because he is unable to account for what they saw, in any way consistent with his own innocence.

[55] From those expressions of view is said to be derived the principle that not every lie told by an accused is evidence of guilt. It is only if the accused is telling a lie because the truth is perceived to be inconsistent with, or with a finding of, innocence that the telling of the lie may constitute evidence of guilt.

[56] The direction the Court should give itself on the issue of lies must also include the elements referred to by the High Court in Edwards (at 211):

[T]he jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as am admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.

[57] The prosecution submitted that the lies told by the accused to the police and to Dr Czoban concerning how he came to be out in the Oaks Estate area and how he sustained his injuries, were told with a consciousness of guilt on his part. But the circumstances of this case require an answer to the question, "guilt of what"?

[58] The accused offered this explanation for his lies in cross examination:

I felt I had to lie...... Well, at that point I was getting questioned over an armed robbery and I sort of put two and two together, what had happened. And I knew if I'd said anything to the police about Tony [Hagen] and the other guy, my family could be in jeopardy, my own life. Not just that, I couldn't -- I felt I couldn't tell them I was there buying heroin because I would have breached my parole. So I just lied about the whole thing, about what I was doing there, everything.

[59] If this answer is accepted, it provides an answer other than suggestive of his guilt of the crime with which he is charged. It was submitted on his behalf that there is nothing inherently implausible in this explanation. That Hagen was cross-examined to the effect that he was a convicted murderer was offered in support of the fear that the accused said he felt towards him.

[60] It is also necessary to note that he claimed to be under the influence of heroin and serepax when he lied to the police. Presumably the defence argument is that a drug-induced stupor explained the extremely colourful if far-fetched nature of the lies he told the police andgave full context to his contention that the lies were told out of fear of being prosecuted for amuch lesser offence than the one on which he was then being questioned.

[61] The reports and observations of Dr Czoban neither establish nor disprove that the accused was under the influence of such a cocktail of drugs, as no appropriate tests were performed. Nor were any syringe marks found on his right arm. However, the accused was not complaining of anything in that region nor apparently demonstrating signs of being under the influence of drugs. Hence Dr Czoban would not have had any special reason to inspect or test for it. Moreover, the doctor was not asked whether he made any other observations of the accused's body which did not find their way into his reports presented in evidence. Therefore, all the Court has is the accused's disputed evidence that he was affected by this combination of drugs at the time he was questioned by police at the scene and later, and Dr Czoban's observation made at about 4.45 pm on the afternoon of 15 November 1999 that the accused "was alert, co-operative and gave appropriate responses to questions and directions".

[62] The starting point in the exercise of giving consideration to the warnings to the Court as the tribunal of fact that the parties submit as appropriate is the prosecution's submission that, whilst in most cases warnings pursuant to s 165 of the Evidence Act 1995 (Cth) arise because of applications made by the defence, it is also appropriate for the prosecution to seek such directions -- R v Crisologo [1997) 99 A Crim R 178 at 190 (Simpson J):

Before leaving this topic it is worth finally observing that, where evidence of this kind is admitted, it will also be necessary for the judge to give consideration to the provisions of s 165 and, if requested by a party (including the Crown) to do so, to warn the jury of the potential unreliability of the evidence and the reasons for that unreliability.

[63] In R v R Salama [1999] NSWCCA 105 Kirby P mentioned this passage from Crisologo and commented:

Although s 165 does not exhaustively catalogue the circumstances in which a warning may be appropriate, a judge should hesitate to give a warning adverse to the accused where there has been no request by the Crown.

[64] Thus the prosecution will only be entitled to a warning that adversely affects the interests of the accused where it has asked for such a warning. Given the burden this principle represents, the prosecution has asked for a long list of warnings. Conceptually arresting, these warnings are by me to myself. I deal with the major requests:

[65] The warning sought is that the evidence of Hagen, who had already pleaded guilty to and been sentenced as one of the offenders, may be unreliable. This warning was sought on two bases. First. Hagen is "a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding" -- Evidence Act 1995 (Cth) s 165(1)(d): Conway v R [2000] FCA 461; [2000] 98 FCR 204. Whilst Conway concerned a great deal more than is sought to be relied upon here, a Full Court of the Federal Court (Miles, von Doussa and Weinberg JJ) did observe in that case that "the fact that the accomplice had already been convicted, and sentenced, did not necessarily diminish this danger". Thus the fact that Hagen has been convicted and sentenced for his part in the robbery is apparently not to diminish the danger that his evidence is unreliable.

[66] However, the danger their Honours were referring to in Conway was the danger that an accomplice might adhere to a story implicating others because of a threat of a Crown appeal against sentence. In this case, although Hagen was criminally concerned in the events giving rise to the proceedings, there is no such danger, both because Hagen's evidence tended to exculpate rather than inculpate the accused and because there has never been any suggestion that Hagen agreed to give evidence against the accused as part of his guilty plea. All that can possibly be said in this regard is that Hagen may have been able to give evidence inculpating the accused on the basis that he did not contest the summary of facts read at his sentencing hearing which named the accused as his accomplice.

[67] Of course, the evidence of witnesses who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings has traditionally been considered potentially unreliable because they may try to exculpate themselves or fabricate evidence out of revenge or antipathy to the accused: Longman v R [1989] HCA 60; (1989) 168 CLR 79 at 91; R v Spencer [1987] UKHL 2; [1987] AC 128 at 135 and 141; and R v Baskerville [1916] 2 KB 658.

[68] In implicit recognition of these problems in its argument, the prosecution contended that Hagen's evidence may be unreliable on a second basis that he is a prison informer: Evidence Act 1995 (Cth), s 165(1)(e). This submission acknowledged that whilst cases such as Conway and Pollitt v R [1992] HCA 35; (1992) 174 CLR 558 concern the giving of warnings in situations where a prison informant has given evidence that tended to inculpate the accused, itis not unusual for a prison informant to seek to give exculpatory evidence. The prosecution submitted that the benefit gained by Hagen in giving evidence that tended to exculpate the accused while refusing to name his accomplice is a matter the Court is entitled to take into account in considering whether to issue this warning. The benefit suggested in this case was the avoidance of the pressures in prison that would have followed from his giving of evidence that tended to either inculpate the accused or identify another person as his accomplice.

[69] It is a difficult concept that Hagen would derive such a benefit from giving the evidence he did. The mere fact that he had nothing to lose does not make his evidence implausible or untruthful. As I see the position, no benefit would accrue to him as a result of the evidence he gave and in any event the focus of Pollitt was on the danger of the unreliability of oral confessional statements allegedly made to another prisoner whilst in custody. Indeed, the judgment of Deane J at 586 pointed to a number of dangers that are not at all relevant to the circumstances of this case and therefore suggests its inappropriateness to the facts of the present case:

The evidence of a witness about an oral confessional statement allegedly made to him by an accused while the witness and the accused were incarcerated together in a prison is liable to be unreliable for a number of reasons. One such reason is that such evidence is easily concocted. Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it. Another reason is that it is likely that a `prison informer" will be of bad character. Another is the likelihood that a prison informer will be motivated to fabricate such evidence either by perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury.

[70] The prosecution said that in the light of Hagen's guilty plea in the context of a statement of facts which named the accused as his accomplice, his evidence is similar to a situation where two co-accused having been convicted, one later comes forward claiming that his co-prisoner is innocent: R v Paul Mark Hart (unreported, New South Wales Court of Criminal Appeal, 21 June 1996) and R v Giardini (unreported, New South Wales Court of Criminal Appeal, 25 February 1993). This submission was not developed so as to explain the effect it sought. Nevertheless, given the burden on the Court imposed by s 68C of the Supreme Court Act, it is necessary for me to do so.

[71] Hart and Giardini both involved appeals on the ground that evidence from a prisoner exculpating a convicted co-offender was freshly available after the original trial. Both appeals were dismissed on the ground that the convicted co-offender's evidence was not sufficient to justify a re-trial of the convicted accused. In Hart, Allen J, with whom Dowd and Sperling JJ agreed, dismissed the appeal on the basis that the exculpatory evidence that the appellant sought to adduce was in fact available to him at the trial as he had first hand knowledge of the events to which it related. The appellant's argument that he was intimidated into not adducing the exculpatory evidence from his co-accused at the original trial was rejected as the Court found that no such intimidation had in fact taken place. Rather, the two co-accuseds had "put their heads together" and agreed on a story, delivered in unsworn dock statements, which was ultimately rejected by the jury. Although Hagen and the accused may have had the opportunity to construct a story in this same way whilst on remand together, there is no direct evidence of any such collusion and it was not put, or put clearly and unequivocally, to either the accused or Hagen in cross examination. I do not see how it can therefore be found to have occurred in fact.

[72] In Giardini, Gleeson CJ, with whom Handley JA and Sully J agreed, dismissed the ground of appeal concerning fresh evidence because the evidence sought to be adduced was "seriously lacking in both cogency and plausibility" and the witness from whom it was sought to be adduced "would be regarded by any jury as untrustworthy and completely unreliable" (at 5). Thus the failure to adduce it at the original trial did not render the trial a miscarriage ofjustice (see Criminal Appeal Act 1912 (NSW), s 6). One of the factors that led to that conclusion was that the witness from whom the fresh evidence was to be adduced had already been convicted as one of the two offenders of a robbery on an earlier version of events. As such, he had nothing to lose by changing his story to assist the person facing charges as his accomplice.

[73] In my opinion, Hart and Giardini can and should be distinguished on their differing circumstances with this case. Moreover, neither of these cases is authority for the proposition that a warning on the potential unreliability of the evidence is required when an admitted offender is called by the accused.

[74] For the reason alone that Hagen has already been sentenced for his part in the robbery, he did not have anything to lose by giving evidence that tended to exculpate the accused. That conclusion does not require the giving of a warning in respect of the unreliability of his evidence.

[75] The warning sought in respect of this witness was that his evidence may be unreliable because he is a prison informer: Evidence Act 1995 (Cth), s 165(1)(e). That the evidence he gave tended to exculpate the accused is a matter to be addressed with the same considerations as mentioned in respect of Hagen, namely that the danger of unreliability exists because Scott stood to gain a benefit from the giving of his exculpatory evidence, again being the avoidance of adverse consequences that would have flowed to him in prison had he given evidence inculpating the accused. I reject this submission on the same evidentiary basis as the same submission in respect of Hagen.

[76] It was put that Kropp's evidence was unreliable because he made a number of prior inconsistent statements and admitted to facts that suggest he may have committed perjury. In light of Kropp's acknowledgment that he lied to the Court, the prosecution submitted that his unreliability is obvious: Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 where Gibbs J held (at 536-7):

the whole purpose of contradicting the witness by proof of (he inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness......... in some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous.

[77] The defence said that notwithstanding the inconsistencies in his evidence, Kropp never made an inconsistent statement on the key issue as to whether or not he and the accused were at the low level bridge on Oaks Estate Rd at about noon on the relevant day. It was also contended that Kropp's refusal to answer questions about "Roger" only served to bolster his credibility on the issue of whether or not there was a "Roger". This argument must be rejected, if only because his credibility on the crucial matters must be assessed in its totalityand his refusal to comply with the Court's directions to answer questions cannot constitute creditworthy and credit-enhancing elements.

[78] The defence also said that Kropp's initial account of borrowing a car from Lauren Edney, whilst untrue, is completely consistent with his subsequent evidence that he lied out of a desire to keep secret the fact that he spent the afternoon selling heroin and in the company of "Roger". The circular reasoning evident in this contention -- that the motive to lie led him to tell a lie that disguised the motive -- means at best that it takes the matter no further. Finally, it was submitted that notwithstanding its inconsistencies, Kropp gave powerful evidence in support of the innocence of the accused. I did not think so. In fact, in my view, for whatever reason, Kropp was willing to say anything that came to his mind at the time.

[79] The prosecution sought a warning on the potential unreliability of the accused's evidence on the basis that he made a number of prior inconsistent statements during his interviews with the police and the police medical examiner that he subsequently admitted were lies. None of the grounds in s 165(1) of the Evidence Act 1995 (Cth) support this submission and none were available to do so. Rather, the making of prior inconsistent statements is a matter that goes to the accused's credibility as a witness of truth. Having lied to the police over a number of hours in the course of their investigations about a serious criminal offence on such matters as his movements and his explanation for being found in the river, the accused's credit is manifestly diminished.

[80] While not seeking a warning in respect of the evidence given by the accused's wife, the prosecution asked the Court to take into account their relationship when considering her evidence. However, as Mrs Massey's evidence merely went towards proving the accused's movements on the night before the robbery and early on the morning of it, its rejection would not establish the accused's guilt.

[81] The defence responded that all these contentions were misconceived. It was argued that because s 165(2) of the Evidence Act 1995 (Cth) only regulates warnings to be given to juries, it follows that when there is no jury there is no obligation to comply with the provision. As I read it, Fleming provides a full answer to this submission as it does to the alternative argument that the absence of a jury is a good reason not to issue warnings and that where good reasons exist for not issuing a warning, the Court need not do so: Evidence Act s 165(3). In any event, as I have rejected the substance of the prosecution's contentions, this issue of principle need not be decided here. There can be no doubt that the Court is entitled to assess the evidence of all the witnesses and to accept or reject so much of that evidence as it thinks appropriate.

[82] Glissan and Tilmouth's Australian Criminal Directions sets out a number of essential directions of law which a trial judge must give to a jury, and presumably because of Fleming, to the same judge when sitting alone. The first of these essential directions is the separate functions of the judge and the jury. Where a judge alone is both the tribunal of fact and the tribunal of law, it is the function of the judge to find the facts and to draw inferences from the facts as well as to apply the law to those proven facts: DPP v Stonehouse [1978] AC 55 at 95 (Keith LJ).

[83] On the drawing of inferences, the normal rule is that the tribunal of fact must not draw any inference from the direct evidence unless it is the only rational inference. This rule is certainly fatal to the prosecution's tentative identification evidence, as many rational inferences may be drawn from an offender pausing momentarily in front of one of his victims during the course of a robbery other than that offender was known to the victim. In this case, the offender may have been watching the teller to gauge his reaction and intended response to the situation. He may not have paused at all but, rather, the teller may have confused the moment in his memory due to the extreme pressure he would have been under at the time of the robbery. As I said earlier, this evidence falls well short of establishing the presence of the accused in the bank.

[84] Another direction is that the Court is to deliver its verdict according to the evidence. It is to remind itself that comments by counsel and indeed the judge on the facts are not evidence. The Court is to maintain in its mind that notwithstanding the alibi defence put forward by the accused, the burden always lies on the prosecution to prove its case. This burden will only be satisfied if the elements of the offence with which the accused is charged are proved to the Court's satisfaction beyond reasonable doubt.

[85] A further relevant direction is that the accused is to be presumed innocent until the prosecution has satisfied its burden of proving guilt beyond a reasonable doubt. This principle of law entitles the accused to the benefit of any reasonable doubt. Not even the gravest suspicion will suffice as proof beyond reasonable doubt. In a case such as this, the presumption of innocence is the only presumption that the Court may call in aid when deciding the facts: Burns v R [1975] HCA 21; (1975) 132 CLR 258 at 262 (Barwick CJ, Gibbs and Mason JJ).

[86] Finally are the essential elements of the charge before the Court, including the very basic fact that the prosecution must prove beyond a reasonable doubt that the accused committed the actus reus of the offence with the requisite guilty mind.

[87] It is not in issue or in doubt that the evidence met this requirement in respect of whoever robbed the bank with Hagen. The only real issue is whether or not the prosecution has proved beyond reasonable doubt that this person was the accused. In other words, if it is accepted that the accused robbed the bank in company with Hagen, the circumstances of the robbery are such that the burden of proof of all these matters will be satisfied.

[88] Once all these principles, warnings and directions have been considered, the defence argument was that the reasonable hypothesis consistent with innocence that the accused did not rob the bank but was rather arranging and then attending to the purchase and ingestion of some heroin, has not been excluded. Moreover, it was said that the weight of the evidence points strongly to innocence. The principal matters mentioned were:

(i) the failure of the bank teller who knew the accused to identify him, either visually or orally, as one of the offenders;

(ii) Mr Everest's observation that the offender in the front passenger seat of the getaway vehicle had long light coloured hair, meaning that that offender could not have been either the accused or Hagen;

(iii) the absence of any physical evidence against the accused, including DNA (hair), notwithstanding Dr Czoban's observation that had the accused been in the getaway vehicle and removed a wig, there was a real possibility that one of his hairs would have been left behind;

(iv) the absence on the accused of glass particles matching the glass in the bank's security screen, especially as glass fragments were found on Hagen's clothing notwithstanding that he had changed prior to his arrest, that he had been wholly or largely submerged in water by the time the glass was found, and that both offenders had climbed over the counter across which glass fragments would have been strewn;

(v) the absence of the accused's fingerprints even in the car where surely any gloves worn in the robbery itself would have been removed at some time;

(vi) Hagen's account that he and his accomplice had a pre-arranged plan in which he would hide the money whilst the accomplice would dispose of the clothes, masks and firearm, providing the most likely explanation for why those items have never been recovered.

[89] Even the lies and inconsistencies in the evidence were used to suggest that if the accused and his witnesses had conspired to concoct a story, they would have made their stories watertight and exact.

[90] However persuasively argued and even possible this alternative scenario is, I find myself quite unable to accept it. Circumstantial cases are often much stronger than direct evidence cases. When fully examined and analysed in the light of the defence case put against it, this prosecution case, although apparently weak, is in fact very powerful. A bank is robbed by two men. One of them is found soon after a relatively short distance away hiding from police in a river. Another man, not excluded by description from those seen in the bank, is with him at the same place at the same time. These two men have no known previousassociation and gave evidence of only knowing each other in passing. The stolen money is found close to both of them. The Court is asked to accept that this chance meeting was an unfortunately dead, though genuine, coincidence in that the second man was hiding not from police chasing bank robbers but from police accidentally or coincidentally present in this veryspot at the very same time who might be interested in the fact that he had a small amount of heroin for obvious personal use which they could easily have discovered was in breach of a parole condition.

[91] Of course in a fictional detective drama such a coincidence is possible. But when the elaborate explanation of the coincidence is examined, the possibility becomes an impossibility, even a fantasy. More than a year after the events in question, "Roger" is not sitting around the Canberra/Queanbeyan region waiting for the axe to fall. Yet no one who knows or saw him, not the accused, Hagen or Kropp, is willing to say who he is, what he looks like, or what car he owned a year ago, out of a supposed fear for their safety from him, his friends, or prison inmates. Why precisely prison inmates would take vengeance on an innocent man, or on those who helped identify him as such, for identifying a guilty one is not clear to me although I readily admit not to be an expert on prison culture. But more importantly, how can the Court accept the story they have advanced to seek to establish the innocence of the accused when the main figure of the story remains, by their deliberate choice, a mystery to the end?

[92] So many questions are left hanging in the wind by their account. Scott takes $25 to drive the accused all the way from Tuggeranong to the environs of Queanbeyan, a trip timed so as to ensure a precise rendezvous with Kropp who is primarily on a different mission, but does not wait to bring him back for a supposed job interview. Kropp takes $100 for supplying the accused with heroin in a car but offloads him to help a bankrobber back to Queanbeyan where both live, promising to come back. He lies about the car and why he did not come back. He does not even attempt to inform the accused that he is not returning. How would he expect that the accused would again be his drug client?

[93] For his part, the accused concocts and repeats a preposterous story of how he got into this "pickle" and later seeks to explain the falsification of his explanation as drug-relatedwhen neither the police nor the doctor, nor for that matter any of his cohorts on the day, noticed anything untoward about his mental or physical condition as might have been expected if he had ingested six serapax and some heroin at the same time. To escape police detection of a breach of his parole, he did not need to hide himself in the river. All he needed to do was to use or dispose of what was left of the heroin he had just purchased and go off with Scott or Kropp or even on foot.

[94] And there is so much more that could be said including many of the internal inconsistencies in the evidence to which I have earlier referred. These inconsistencies are not demonstrative of the innocent recountings of fallible human memories as was suggested by the defence and as might reasonably be said of Mr Everest's apparently mistaken description of one of the robbers as he chased them on a motor bike at high speed along a busy thoroughfare in fear of his life. They are the necessary consequences of the close examination of a patent concoction designed for whatever reason to save the accused from the consequences of his actions.

[95] In my view, Hagen, Kropp, Scott and the accused all lied when,, either directly or by necessary implication from other evidence, they exculpated him from the bank robbery. Hagen's background makes it unlikely that he is in fear of anyone, let alone "Roger" whom he has done a great deal to protect. Scott may or may not have been at the low level bridge around noon on 15 November 1999 but he certainly did not drive Massey to that spot within the previous half hour. Kropp may or may not have been at the same place at the same time and may or may not have supplied heroin to the accused, but he certainly did not drive "Roger" from the scene. "Roger" is fictitious.

[96] I am satisfied that the prosecution has proved beyond reasonable doubt that the accused was in the Molonglo River with Hagen and the stolen money, not because he was hiding his drug taking and possession, but because he was Hagen's accomplice in the bank robbery. There is no other inference reasonably open on the evidence. The accused is convicted of the charge contained 'in the indictment.

The accused guilty of the offence that on 15 November 1999 at Canberra in the Australian Capital Territory he robbed Andrew Lilley, Diona Gengaroli and Richard Hardy of $12,695.00, and at the time of doing so had with him a firearm, namely a sawn-off rifle.

Solicitor for the prosecution: Director of Public Prosecutions

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Judgment (177 paragraphs)

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Legislation Cited (6)

Cases Cited (12)