R v Puc [2008] VSCA 159

1 On 28 November 2006 the appellant was found guilty by a County Court jury of six counts of armed robbery (counts 1 - 6) and one count of robbery (count 10). He was acquitted of three other counts (counts 7, 8 and 9). He had earlier pleaded guilty to two counts of armed robbery.

2 His application for leave to appeal against conviction was heard on 12 November 2007. On 23 November 2007, the Court announced that the application for leave to appeal would be granted and the appeal allowed, the convictions quashed and verdicts of acquittal entered. Orders to that effect were made, the Court indicating that the reasons for judgment would be published subsequently. What follows are my reasons for joining in those orders.

3 The summary of evidence prepared by the Crown for the appeal provided the following helpful overview of the counts against the appellant.

4 The Crown alleged that the appellant had committed an armed robbery at a BP service station at Sunshine on 1 November 2004 (count 1). This was said to be the first in a series of similar offences committed by him.

5 The Crown alleged that, during the month of November 2004, the appellant committed a further nine offences, which included both armed robberies and robberies. These offences were committed in the western part of Melbourne, not far from where the appellant was living at the time, in suburbs such as Sunshine, Hoppers Crossing and Kealba. The targets were either service stations or gaming clubs.

6 On eight of the occasions, the offender carried a weapon wrapped up in some form of covering. He usually attempted to cover his appearance by wrapping some type of clothing around his face. On most occasions, the offender carried a cloth bag in which the victim was required to place the money. The offender would ask for cash, coins and cigarettes.

7 On some occasions, the offender was seen to leave the scene in either a dark blue sedan with a broken brake light, or in a black sedan with a missing front left hub cap. At the time, the appellant was the registered owner of blue Toyota sedan, which had a broken brake light, and a black Toyota sedan with a missing hub cap.

8 On 21 November 2004 police concealed a tracking device in the blue Toyota. Several days later, this vehicle was tracked to the vicinity of the robbery which constituted count 10 on the presentment. The appellant was subsequently arrested by police in the blue Toyota at Hoppers Crossing.

9 The prosecution relied on security camera footage, and on photographs of various items of clothing and carry bags found at the home of the appellant.

10 The first ground of appeal was that the guilty verdicts were unsafe and unsatisfactory. Having reviewed all of the evidence which was before the jury, together with the final address of the prosecutor which assembled the evidence relevant to each count, I formed the clear view that this ground was made out. It was therefore unnecessary to consider any of the other grounds.

11 It was not, in my opinion, reasonably open to the jury on the evidence before them to be satisfied beyond reasonable doubt of the appellant's guilt on any of the seven counts of which he was convicted.[1] My review of the evidence is reflected in Schedule 1 to these reasons, which sets out a summary of the eyewitness evidence, and in Schedule 2, which sets out in tabular form the key elements of the evidence on each count, including video and photographic evidence.

12 As counsel for the appellant submitted, the case against him was even weaker than that considered by this Court in R v Bell.[2] The relevant passage from the joint judgment of Hayne JA and Crockett AJA in that case is as follows:

The second category of evidence consisted of items of clothing and other objects which were said to connect the applicant to the robber at the service station. Each, we think, is of a flimsy character. Even when looked at in combination they fall short of affording convincing proof that the applicant was the robber ...

Similar clothing and shoes [to those possessed by the applicant] were worn by the offender. This is apparent from the security videotape. But they are common items of apparel and footwear. They can we think do no more than - in conjunction with the remaining matters - raise a suspicion as to the applicant's culpability.

In that case, the security videotape depicted an offender wearing a dark blue jacket which had a white marking on the upper left sleeve adjacent to a zipper, together with 'Adidas' blue and white runners. The offender had several rings on his fingers. During a police search of the appellant's home, police found a dark blue jacket with a white patch on the left upper arm adjacent to a zipper, two pairs of Adidas running shoes and six dress rings.

13 The present case lacked even that degree of similarity between items of evidence. For example, one of the witnesses for count 2 said that the offender had over his head 'what looked like a towel with a criss-cross pattern'. The prosecutor contended that this evidence was 'totally consistent' with the check shirt found in the appellant's possession. Again, on count 2, the video showed the offender wearing 'greyish pants'. These were said to 'correspond with' the various different (nondescript) pairs of pants found in the appellant's possession.

14 On count 1, the security video was said to show the offender wearing a yellow hood. The prosecutor conceded that the Crown could not say that the hood found in the appellant's possession was 'exactly the item', but 'we say it's incredibly similar to the one seen'. On none of the counts was any witness asked to identify any item of clothing or any bag as having been what the offender wore or carried at the time.

15 On count 4, the security video showed the offender wearing dark gloves and a blue top. One of the witnesses on this count said that the offender was carrying a 'creamy coloured white canvas bag'. The prosecutor's submission to the jury was as follows:

She said it was a medium type canvas bag. Now if something is going to turn on the fact that these things aren't necessarily canvassed (sic), you've got to remember these witnesses are trying to describe something they see. Whether it be cotton, or canvas or calico, are the sorts of things witnesses would say when you saw the sort of bags the accused man had in his possession. Whether they're actually technically correct doesn't matter. They're all consistent, totally consistent and the witnesses are trying their best to actually give it a label.[3]

16 The prosecutor took the same approach on count 8 (of which the appellant was acquitted). He referred to the evidence of the relevant witness, that she was asked to

put money in the calico bag that she described the man having, which we know the accused had those types of bags in his possession. It was a brown creamy colour.

Well, remember two of them are found at [...] the wife's house. They were found in that checked bag; you recall that. It has been exhibited for you, photo 63. You see the things that were found in that bag are those two bags, browny creamy colour. Have a look at that one. That's browny creamy isn't it? Someone might say something else, but it's totally consistent with browny creamy. That one is white or cream and there was another one found at the other house, which was white, but those two bag, together with this shirt, which I've already referred you to as being relevant to other counts, which are seen in the videos and described by witnesses ... are found in this checked bag.[4]

17 On count 6, the victim of the robbery said that the offender had been carrying a particular type of pistol (a glock). There was no evidence connecting the appellant with that particular type of pistol - or any pistol at all. The victim also said that the offender had escaped in an entirely different type of car, a Hyundai Excel. Another witness also said that it was a Hyundai Excel, and offered a registration number of that vehicle. There was nothing to connect the appellant with any such vehicle.

18 On count 10, two witnesses said that the offender was wearing an orange windcheater or shirt. No item of orange-coloured clothing was found in the appellant's possession. The only witness to describe what the offender was carrying said he had two plastic shopping bags, one white and one grey. The prosecutor says:

The bags were white and grey. That is consistent with the sort of bags found in the accused's possession, although she says they are plastic, no plastic bags were found.

19 The evidence on counts 2, 4 and 5 included descriptions of vehicles. In counts 2 and 4, the vehicle used by the offender was described as a dark blue or navy Toyota Camry, without plates. In count 5, the car was said to have been a 'little black car with spoiler and no plates'. Once again, in my view, these pieces of evidence did no more than create a suspicion about the appellant's involvement. Vehicles of this description are very common, although the absence of numberplates would certainly narrow the field considerably. Without some specific identifying feature (such as a broken windscreen), the appellant's possession of such vehicles could not in my view establish his guilt beyond reasonable doubt.

20 These examples demonstrate how flimsy the evidence was. They also show how easily - and how often - the prosecutor slipped into dealing with the counts globally, contrary to the judge's ruling that there was no cross-admissibility of evidence between counts. In my view, the effect of such cross-referencing was to invite the jury, impermissibly, to assemble a jigsaw from pieces of evidence collected across the counts. At one point the prosecutor said to the jury that what particular witnesses had to say 'fits like a glove to what we know about the accused man'.

21 More than once, the prosecutor appeared to argue - again impermissibly - that a witness's description of an article of clothing was 'not inconsistent' with some item found in the accused's possession. In other words, so the argument went, the hypothesis that the accused was the robber was not invalidated by the actual clothing found. The prosecution's task was, of course, quite different. What had to be established was that such evidence as had been collected on a particular count proved beyond reasonable doubt that the appellant was guilty on that count.

22 In addition to the counts included on the trial presentment, the appellant was sentenced on two counts of armed robbery to which he had pleaded guilty. On the first count on the plea presentment, the appellant was sentenced to three years' imprisonment, of which one year was to be served cumulatively on the sentences imposed on the trial presentment. He was sentenced to 3½ years' imprisonment on the second count, one year and three months of which was to be served cumulatively on the other sentences.

23 The orders for cumulation were made by reference to the counts across both the trial and plea presentments. Consequent upon the quashing of the convictions on the trial presentment, and the entry of verdicts of acquittal on each of those six counts, it became necessary for there to be a re-sentencing on the counts on the plea presentment. It was also conceded by the Crown that the sentencing judge fell into error in his application of the principles articulated in R v Tsiaras,[5] as restated more recently in R v Verdins, R v Buckley, R v Vo ('R v Verdins').[6]

24 On 11 December 2007, the Court re-sentenced the appellant as follows:

On count 2 - three years and six months' imprisonment.

The Court directed that one year of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 2, making a total effective sentence of four-and-a-half years' imprisonment. A non-parole period of two years and ten months was fixed.

25 My reasons for joining in that order are as follows.

Application of Verdins principles in the case of demonstrated mental impairment

26 The Court in R v Verdins made clear that the principles governing the relevance of mental impairment to sentencing extend beyond cases of 'serious psychiatric injury not amounting to insanity'. Those principles may be applicable in any case where the offender is shown to have been suffering at a relevant time from a mental disorder or abnormality, or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.[7]

27 The focus of inquiry in every case must be on what the evidence demonstrates about how the particular condition is likely to have affected the mental functioning of the offender. In this case, the sentencing judge had before him unchallenged medical evidence demonstrating that the appellant was suffering from impaired mental functioning, both at the time of offending and at the time of sentence.[8]

28 In the absence of challenge, and there being no more recent psychological reports, it could properly be inferred that the appellant's mental illness and chronic pain condition persisted at the time of the appeal.

29 Mr Karamanos was the appellant's psychologist over the period 1998 to 2005. He described the appellant, as at 18 November 2005, as having been -

... a depressed, broken and hopelessly confused and guilty individual who was consumed by the pending trials. He was expressing intense anger at himself for punishing his family [and] children and suffered from forgetfulness, diminished concentration, depressed mood and felt useless. Attending the Werribee Police Station on a daily basis, submitting for urine tests every week and adhering to nightly curfews (bail requirement he be at home by 8 pm nightly) exacerbated his feelings of 'entrapment', loneliness, uselessness, depression and guilt. Being separated from his wife was also contributing to the significant stresses [the appellant] was experiencing at the time.

There is no doubt in my mind that there is a direct relationship between his poor mental health state and his offending. In my view [the appellant] has been desperately attempting to control the intensity of his physical pains for many years. His use of heroin was another method he was prepared to experiment with to achieve an end.

Mr Karamanos' report makes reference to 'psychotic symptoms', but falls short of attributing causative force to that condition.

30 The report of Mr Simmons refers to instructions received from the appellant that the two offences were committed 'in response to voices telling him [to do so]...'. Mr Simmons noted 'a degree of bizarreness' in the offending, as the appellant on both occasions had dressed as a woman, but concluded that the reported auditory hallucinations 'most likely ... were not a significant factor in him acting as he did'. The report describes the appellant's 'significant [and] ... poorly controlled' depressive illness, suicidal history and chronic pain condition.

31 On the evidence, the appellant's impaired mental functioning at the time of offending reduced his moral culpability. His mental disorder had the effect of:

• impairing his ability to exercise appropriate judgment, make calm or rational choices, think clearly or appreciate the wrongfulness of the conduct; and

32 Impaired mental functioning will also be relevant to sentencing where the existence of the condition at the date of sentencing means that the sentence will weigh more heavily on the offender than it would on a person in normal health, or where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health.[10]

33 Each of these principles were engaged in this case. Mr Karamanos addressed the effect of incarceration as follows:

It is my opinion that incarceration would result in further deterioration in his mental health state. It will undoubtedly reinforce his feelings of isolation, uselessness and guilt that may result in self harming behaviour.

[The appellant] is in desperate need of intensive psychological/psychiatric treatment in a hospital inpatient setting under constant supervision.

34 Taking those mitigating factors into account, I concluded that the period of just under three years' imprisonment which the appellant had already served was sufficient punishment for someone in his condition. The effect of the re-sentencing was to render the appellant eligible for consideration for release on parole soon afterwards.

36 I have had the benefit of reading in draft the reasons of Maxwell P, with which I agree.

37 Witness MR: the offender was wearing a cream-coloured jacket with a hood. He was five foot three inches or five foot four inches in height. I thought he was Vietnamese but I cannot be sure. He was definitely Asian. He was carrying a white bag of medium size with a rope at the top. I saw what looked like a black pipe pointing out of the bag. At the time I thought it was a gun but I do not know if it was.

38 Witness CT: I saw a person running very fast from the shop. He had a hood on. I cannot recall the colour.

39 Witness LT: I saw a person in the shop with a hood on. The hood was white. I could not tell if the person was male or female.

40 Witness SA: the offender was definitely shorter than me. I am five feet 10 inches. He was older than 40. His skin colour was brown. As to his nationality, he was "ethnic like, Maori look, something of that sort". He was solidly built with small eyes. I cannot recall what he was wearing. He did speak with a different accent. He had a grey bag, like a money bag. He had something wrapped in the bag, which he pointed at me.

41 Witness VT: I looked through the doors into the shop and saw a guy with something on his head. It looked like a grey jumper. I later saw him leave the building. I did not really get a good opportunity to observe him.

42 Witness TL: I saw a man come in with a bag over some kind of equipment. The bag was of a creamy colour. It was covering an object like a barrel, but the object was not visible. When he left the shop I saw him go to a blue car, a Toyota Camry, with no registration plates. He was around 160 cm tall and solidly built. He had a dark jacket. Over his head he had what looked like a towel with a criss-cross pattern. I cannot recall the colour. He had a dark face and his face had acne or something like that. He was Asian but I could not tell what nationality. I have difficulty describing his complexion. Acne is not the right word, but it is the best I can do.

[The police statement did not mention acne. In that statement, the witness said that the offender "was dark in complexion and appeared Maori".]

43 Witness VS: I saw a man at the counter who had a calico bag or some kind of bag. It was off-white. It looked like one of the bags that you would normally get when you go to a bank for change. In his right hand he had another calico bag, also off-white, which he was waving across the counter as if there were a gun in it. He was very impatient and almost aggressive. He seemed dark-skinned and had "kind of like an Asian appearance, like a Maori": slanted eyes, a broad nose basically and his skin was not of a normal complexion, as if he had had acne or something in the past. I believe that he was well over 35. He was wearing a fleecy dark top and dark pants and he had a scarf over his head. He was a fairly stocky fellow, not very tall, about 1.6 metres approximately.

[The witness' statement to the police did not mention acne, although she stated in evidence that she had told the police about it at the time.]

44 Witness NS: when the offender left the store, I pursued him. He went straight to his vehicle, parked in Forbes Street. It was a navy Toyota Camry. It had no registration plates. It had tinted windows. He was really stocky. He had a grey item, like a jumper, wrapping the top of his head. He was about my height (165 cm). I only had a relatively brief sighting of him.

45 Witness RA: the offender was of small to medium build. I cannot describe his height. He had something over his head. I do not know what it was. It may have been creamy coloured with patterns on it. He wore black pants or a black coat. He had really dark brown skin and brown eyes. He was softly spoken. He appeared to me to be relatively calm and casual. He did not yell at me. There was nothing unusual about his voice. He spoke normal English. He had no accent. The bag into which the notes and coins were put was creamy coloured. He was holding a cloth in his left hand, which he pulled back to reveal the tip of a round black hole, about the size of a 50 cent coin. I just saw the end. I thought it was a gun but it could have been a pipe.

46 Witness AP: the man coming out of the service station had something around his head. It looked like a hood or a jumper. It was probably a jumper because sleeves were hanging down in front of his shoulders. The jumper over his head was mainly grey in colour. It had a couple of colours in it. I got the impression that he was dark-skinned and had dark hair. As to nationality, it "came across as Asian, Indonesian sort of", but I am guessing. He was under six foot in height. I estimate he was in his mid-20s but I did not really get a look at his face. I only saw him for about 20 seconds. He was carrying a bag. It was a white (or off white) cottony style bag, although it might have been a different material.

47 Witness HN: the offender was disguised by a brown scarf around his face. I only saw his eyes. I thought he was Asian but I do not know from which country. I thought he was 38 - 40 years of age but this was a guess, based only on seeing his eyes. He spoke with an accent. I do not know what it was. He had a wide build and his face was a bit wide, although I only saw his eyes. The bag he carried was made of thick material. I think it had writing on it. He had what looked like a gun in his right hand, covered with material. I cannot recall the colour of the material. I saw a round circle thing. I did not see the entire object.

48 Witness MJ: the man had a mask over his face. It was a type of turban. It was draped down one side and over his nose, around the back of his neck and down the side. It was a light colour, beige or something like that. He was medium height, approximately five foot five or five foot six. From his facial features that I could see, he looked like he was of Asian or Filipino descent, something like that. I could see the shape of his eyes and the colour of his skin.

49 He had some sort of an object wrapped up in a checkered cloth in his right hand. He dropped a creamy coloured, white canvas bag on the counter. When the cloth fell off the end of the barrel of the thing he was carrying, I could see that it was not a gun. It was an old tyre lever, black in colour but most of the paint had been scratched off. As he ran out I chased him and he jumped into a dark blue Toyota Camry and drove off. The car had no registration plates on it, front or back. The car had a spoiler on it, that is, a separate piece of metal on top of the boot of the car. His complexion was very clear. His skin had a very shiny tone to it. He was wearing some sort of blue windcheater type of thing. It was like a royal blue and it had long sleeves.

[In her police statement, MJ said that it was a dark blue Toyota Magna. At the committal, she said she was quite definite that it was a Magna. In evidence she said she did not know why she said Magna, because it was definitely a Camry. She was confused at the time.]

50 Witness LM: the man was wearing a creamy coloured scarf over the top of his head, and black gloves. He was Asian-looking, and maybe in his 30s. He did not have an accent. He was maybe about five foot seven inches tall. I told the police at the time that he had a mole on the side of his face, although I am not 100 per cent sure. His skin was normal. It was not pockmarked.

51 He had a cotton money bag with him, like an Armaguard bag. He had what I thought was a gun. I only saw the end of it, about three centimetres long. It was black. It looked like a long metal rod with a round hole in the end of it. The rest was up his sleeve.

52 When he left, I saw the man go into the driver's side of a little black car with a black spoiler. There was no registration plate on the back.

53 Witness JH: the man had a standard money bag. It was cream coloured. He spoke softly. He was holding what appeared to be a black metallic gun. It looked like a glock, "Just your standard FBI-style gun they use in the TV shows. It's just a nine millimetre handgun." I could see the whole gun except from where his hand was holding it. He then walked out to his car. It looked like a blueish, green Hyundai XL. The car appeared to have some damage on the back left quarter panel. He appeared to me to be overweight.

54 Witness JW: I saw a man walk out of the door. I saw something black in his hand and I saw a black and white satchelly bag. It was canvas. He jumped into his car, which I believe was a dark green Hyundai XL. I believe the registration number was NOU 911. It had a front quarter panel which was damaged and a hub cap missing, I believe, on the driver's side rear wheel. He was wearing a flannelette shirt with blue stripes, grey track pants, gloves and a scarf around his face. I believe the shirt had two colours, but I cannot recall the second. At the time, I was noting registration numbers and writing them down all the time. The police statement recorded the registration number as NOU 199. I believe the bag had some writing on it, or a dollar sign.

55 Witness IB: the man was holding a black object underneath a bit of material. It was dark and round. That's all I could see. By the skin tone of what I saw, I would have thought he was Asian. I could not see his face. He was of slim build, and as tall as my shoulders (190 cm). There was a black beanie and some sort of material covering his face. The material was like a creamy, off-white.

56 Witness JB: the man put on to the counter a drawstring cotton bag, of an off-white, cream kind of colour. He was wearing a black beanie or hat. He had a scarf around his mouth and it kept falling, and he was trying to put it back across his face. He had what looked like a gun. I saw just the end of it. It looked like a black square handgun. I felt something fall to the floor. It was a pair of checkered shorts. It landed on my foot, next to me. He was probably my height (163 cm) or just a little bit taller. His build was just average. He was of Asian descent. He was not Chinese or Japanese but sort of Malaysian, Indonesian. He spoke with an Asian accent. In terms of his face and details, it was a quick glimpse.

57 Witness CK: he had what looked like a gun in his hand. It looked like the top of a beebee gun. It had like a cloth over the top. The barrel was black. I just saw the end bit. The cloth it was wrapped in reminded me of a bank cloth, that is, the bags that you put the money in when you go to the bank. Once everything was over, I saw in front of me a pair of boxer shorts. He had a scarf around his face and when he turned around to look at us, the scarf dropped down and we had a good look at his face. He had pockmarks on his face, on the cheeks. I would say he was part Asian or Anglo-Asian, ie one parent Australian, one parent Asian. That is just a general guess as far as I am concerned.

58 Witness FB: I was in the car when a man walked out of the service station. He looked quite strange. He had very baggy clothes on, no shoes, just socks. He had a plastic bag wrapped around his arm. He had a scarf around his face so I could only see the top half of his face. It may have been a beige colour. He had a black beanie on his head. He was wearing very baggy, probably greyish, tracksuit pants. He was about my size, which is five foot something. He was of medium build. His skin colour was quite dark, just a medium, like a Filipino or Torres Strait Islander colour. His car was a black Toyota Corolla. It had a spoiler and it was quite clean. It was around a 2000 model. The car had numberplates on it but I did not take a note of them.

59 Witness JH: the man came from the front entrance. He had something pulled up over his face. He had a white glove on his left hand. His other hand was in the pocket of his tracksuit pants, which were white parachute big baggy pants. He had something pulled up over his face, covering the bottom half up to his eyes. It could have been a scarf or a skivvy. The thing over his face was dark. He had a basketball hat on, with a peak. It could have been white.

60 When I gave him money, he put it into a calico bag. It was cream, browny-creamy colour, like the banks use. It seemed to me that he had a gun in his hand which was covered up by a cloth or something which was wrapped around it. I could only see the end sticking out. It was like a square shape with a circle in the middle, coloured black. It was probably only sticking out about one centimetre. The cloth covering it was white with some red on it.

61 His skin was dark. He had very heavy (thick) eyebrows and Asian-like eyes. On his upper body he had a canary yellow windcheater. It was probably broken English, ethnic of some sort. He was about a head taller than I am (which is five foot three inches) and of medium build. I saw very little of his face. I could not be sure of his nationality.

62 Witness AP: all I can really remember is that part of his attire was white and he did have a wrap on his head, which I believe was white as well. He was wearing what seemed to be a tracksuit top, which was white. I went outside. I heard a car door close. I did not see anybody get into that car. It looked like a dark blue Mitsubishi, with four doors. It had registration plates. I think the letters were PBD or PDB.

63 Witness NM: he was wearing a mustardy-coloured, long-sleeved, top. He was all covered around with a scarf. I would say he was about five foot four inches or a bit more. All I could see was his eyes. He had a dark coloured scarf around his neck and across his face and around sort of to the front of him. He had a creamy-coloured beanie and dark gloves. He was carrying a cotton bag. The bag was a couple of colours, creams and yellows, I think. He was holding something that was wrapped. He asked for dollar coins, so I started filling up cups. He got into a dark blue car with no number plates on it. All I can say about nationality is that he was darkish around the eyes, so I thought maybe of Asian or Islander descent. He spoke quite good English. There was no striking accent.

64 Witness EM: I saw a man at the cashier's desk. He was wearing a scarf around his neck. He had a mustard-colour jacket on and he looked a bit scabby. He had a bag which reminded me of an African pattern. The colours were yellow, white and black. He went to his car. It was nice and clean. It was navy blue, dark in colour. It did not have registration plates.

65 Witness SB: he had a scarf around his head and face. He had a daffodil yellow jacket. The material of the jacket would have been nylon. He had light coloured casual slacks on. He was tall and fairly thin.

66 Witness LM: I noticed a man with a beanie. I saw him drive off in a dark vehicle. I do not know the make but it was similar to a Holden or a Ford. There were definitely no numberplates on the car. I noticed that it had tinted windows.

67 Witness CP: I saw a man leaving the building. He was in a dark blue, four door vehicle. The driver's side brake light was out. It had a small spoiler on the back. He was between five foot seven inches and five foot 10 inches tall. He was of slim build.

68 Witness DA: I saw a dark blue car, with no plates. The driver's side brake light was not working. It was a small Ford or a sedan-type thing, with a rear spoiler on the back.

69 Witness CD: the man had two plastic shopping bags in his hand. He handed me one of them and asked for the money. He was fairly calm, fairly softly spoken. He had an orange windcheater and something over his face. I thought he was fairly short. He had an olive complexion. I could not say anything about his voice. I thought one of the bags he was carrying was white and the other was grey.

70 Witness GM: a man walked in with a black sort of cloth over his head and a bright orange shirt and he was attempting to chock the door with a bottle or something.

71 Witness DL: I estimated that he was in his early 20s. He appeared to be Filipino or something of that group. I could not give an accurate measurement of his height but he did not seem tall. He seemed fairly short to average. He had fabric around his face. It may have been a scarf.

72 Witness KL: he came up to my shoulder. I am 183 cm. When we followed him, he turned around a few times and had something under his jumper pointing at us, like a gun. He had a cloth over his face but I did notice he had dark hair and an olive complexion.

73 Witness RC: I saw someone go to the front counter and ask the attendant for all the money. I saw them handing money into a bag. He just walked straight out of the door.

Dark jacket. Towel with criss-cross pattern on his head

Fleecy dark top and dark pants. Scarf over his head.

Mask/turban - light-coloured. Blue windcheater type thing.

Object wrapped in checkered cloth. Creamy coloured white canvas bag

Flannelette shirt with blue stripes, grey track pants gloves, scarf on face.

Black and white satchelly bag - canvas. Had writing on it.

Very baggy clothes, no shoes. Scarf (beige) around face. Black beanie. Baggy grey track pants.

White glove. White parachute baggy pants . Eyes covered with scarf or skivvy (dark). B/ball cap with peak. Canary yellow w/cheater.

Gun covered by cloth. Cloth was white with some red.

White attire. White wrap on head. White tracksuit top.

Mustard-coloured long-sleeve top. Face covered with scarf, which was dark. Cream beanie, dark gloves.

Scarf. Daffodil yellow jacket (Nylon). Light coloured slacks.

[1] Cf The Queen v Vjestica [2008] VSCA 47, [60]-[64] (Maxwell P).

[2] (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Hayne JA and Crocket AJA, 31 July 1995), [9].

[5] [1996] VicRp 26; [1996] 1 VR 398.

[6] [2007] VSCA 102; (2007) 16 VR 269.

[7] Ibid 271-2 (Maxwell P, Buchanan & Vincent JJA).

[8] Reports of Mr W Simmons dated 17 May 2006 and of Mr J Karamanos dated 28 November 2006.

[9] [2007] VSCA 102; (2007) 16 VR 269, 275 (Maxwell P, Buchanan & Vincent JJA).

[10] Ibid 276; R v Smith (1987) 44 SASR 587, 589 (King CJ); R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398.