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[2015] ACTSC 307
Supreme Court of the ACT
2015-10-14
Refshauge ACJ
Original judgment source is linked above.
CRIMINAL LAW - Jurisdiction, practice and procedure - trial - trial by judge alone - burglary - theft - dishonestly riding in a motor vehicle without consent - coincidence evidence - accused guilty of one count and not guilty of remaining counts
Crimes Act 1900 (ACT), s 265
Criminal Procedure Act 1986 (NSW), s 33
Evidence Act 2011 (ACT), s 98
Supreme Court Act 1933 (ACT), ss 68B, 68C
Criminal Code 2002 (ACT), ss 20, 304, 305, 306, 308, 311, 400, 403, Dictionary
Baker v The Queen [1983] HCA 18; (1983) 153 CLR 338
Brutus v Cozens [1972] UKHL 6; [1973] AC 854
Cundy v Lindsay (1878) 3 App Cas 459
Cutter v The Queen [1997] HCA 7; (1997) 143 ALR 498
Director of Public Prosecutions v Fraser [2008] NSWSC 244
Fleming v The Queen (1998) 197 CLR 250
Green v The Queen [1971] HCA 55; (1971) 126 CLR 28
Hann v Director of Public Prosecutions (Cth) [2004] SASC 86; (2004) 144 A Crim R 534
Lodge v Lawton [1978] VicRp 10; [1978] VR 112
Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230
Morphitis v Salmon [1990] Crim LR 48
Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
Roe v Kingerlee [1986] Crim LR 735
R v Brown [1985] EWCA Crim 3; [1985] Crim LR 212
R v Calis [2013] QCA 165
R v Collins [1972] EWCA Crim 1; [1973] 1 QB 100
R v Delly [2003] ACTSC 113; (2003) 180 FLR 344
R v DM [2010] ACTSC 137
R v Hayne (Unreported, Court of Criminal Appeal of New South Wales, Handley JA, Levine and James JJ, CCA 60496/97, 18 September 1998)
R v Hughes (1994) 76 A Crim R 177
R v Massey [2000] ACTSC 107
R v McKnoulty (1995) 77 A Crim R 333
R v Mulcahy [2010] ACTSC 98
R v RH [2011] ACTSC 38
R v Smails (1957) 74 WN(NSW) 150
Samuels v Stubbs (1972) 4 SASR 200
Stein v Henshall [1976] VicRp 62; [1976] VR 612
Stevens v Gourley [1859] EngR 931; (1859) 7 CBNS 99
J W Cecil Turner, Russell on Crime (Stevens & Sons: London, 1964) 12th ed, v 2
1. A residential complex known as the Vista Apartments is situated at the corner of Flemington Road, Franklin, and Henry Kendall Avenue, Harrison, in the Australian Capital Territory.
2. The apartments have an underground car parking area and each resident is not only entitled to an underground car park but also a storage cage, made of metal mesh secured to steel poles by wire ties and with a door or gate secured by a latch bolt that can be locked with a padlock.
3. The residents have the misfortune that on three occasions between 30 July 2014 and 9 August 2014, the storage cages were broken into and items stolen.
4. On 15 August 2014, Sabian Roux, the accused, was driving a white Mazda van when he was stopped by police. Items were found in the van linking him to the Vista Apartments, although he had no apparent right or interest in those apartments and also with a utility that had been abandoned on the Barton Highway and in which were found items that had been stolen from the burglaries at the Vista Apartments.
5. As a result, Mr Roux was arrested and charged with three counts of burglary, three counts of theft and one count of dishonestly riding in a motor vehicle without consent.
6. He pleaded not guilty to these charges and, on 10 February 2015, was committed for trial. The Director of Public Prosecutions filed an Indictment containing these seven counts and also a further three counts of burglary, three counts of theft and two counts of criminal damage presented ex officio as well as a count of burglary for which Mr Roux had been committed for sentence.
7. On 22 April 2015, he signed an election under s 68B of the Supreme Court Act 1933 (ACT) to be tried by judge alone.
8. The trial commenced on 24 September 2015 and concluded on 29 September 2015 when I reserved my decision.
9. Under s 68C of the Supreme Court Act, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make a finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as the verdict of a jury.
10. The judgment of the court in such a case must include the principles of law that I, as the judge, apply and the findings of fact on which I rely. Though on appeal from a trial conducted under procedure regulated by s 33 of the Criminal Procedure Act 1986 (NSW) (a similar provision to s 68C of the Supreme Court Act), the High Court in Fleming v The Queen (1998) 197 CLR 250 at 263; [28], stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and to justify the process and, ultimately, the verdict that is reached. In R v Massey [2000] ACTSC 107, Einfeld J held that the obligations stated by the High Court in that decision set out the obligations of a judge conducting a trial by judge alone under s 68C of the Supreme Court Act. That has been followed in this jurisdiction on many occasions since then.
11. Section 68C of the Supreme Court Act also requires me, as the trial judge when considering my verdict, to take into account any warning, direction or comment that any Territory law requires to be given or made to a jury in such proceedings.
12. There are certain general principles that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.
13. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them, as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it objectively and dispassionately and not let emotion or prejudice enter into the decision-making process. Both the prosecution and Mr Roux are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
14. The prosecution, of course, bears the onus of proving the guilt of Mr Roux at all times. Mr Roux does not have to prove that he did not commit the offences charged.
15. In this case, Mr Roux adduced evidence which he says is consistent with his innocence. He does not have to prove that evidence. It is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.
16. The standard of proof of the prosecution case is proof beyond reasonable doubt and Mr Roux cannot be found guilty of the offences charged unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
17. Mr Roux is presumed by law to be innocent of each of the offences with which he has been charged unless and until the evidence I accept satisfies me that each and every element of the relevant charges has been proved beyond reasonable doubt. Mr Roux then loses the presumption of innocence and I must find him guilty.
18. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
19. If I am satisfied that there may be an explanation consistent with the innocence of Mr Roux of any of the charges, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find Mr Roux not guilty.
20. I must consider whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness' evidence and reject part of that evidence or accept or reject it all.
21. I must determine the facts in accordance with the evidence, consider it logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experiences and wisdom in assessing the evidence.
22. These are the principles that I shall apply in determining the case.
23. The indictment presented contained sixteen counts. Two of those counts were amended at the beginning of the trial by order made by me and I endorsed the amendment as required under s 265 of the Crimes Act 1900 (ACT).
24. The indictment, as amended, contained the following counts (excluding particulars):
... on 30 July 2014 or 31 July 2014 at Canberra in the Australian Capital Territory SABIAN ROUX entered or remained in a building, namely storage cage 59 within the underground car park of the Vista Apartments on the corner of Flemington Road and Henry Kendall Avenue, Harrison, as a trespasser with intent to commit theft of any property in the building.
... on 30 July 2014 or 31 July 2014 at Canberra in the Australian Capital Territory SABIAN ROUX dishonestly appropriated property, belonging to Julian Matos, with the intention of permanently depriving him of the property.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX caused damage to property, namely storage cage 22 within the underground car park of the Vista Apartments on the corner of Flemington Road, Franklin and Henry Kendall Avenue, Harrison, belonging to someone else, namely Pradeep Rammaurthy and intended to cause, or was reckless about causing, damage to that property.
... between 30 July 2014 and 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX caused damage to property, namely storage cage 56 within the underground car park of the Vista Apartments on the corner of Flemington Road, Franklin and Henry Kendall Avenue, Harrison, belonging to someone else, namely an unidentified person, and intended to cause, or was reckless about causing, damage to that property.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX entered or remained in a building, namely storage cage 49 within the underground car park of the Vista Apartments on the corner of Flemington Road, Franklin and Henry Kendall Avenue, Harrison, as a trespasser with intent to commit theft of any property in the building.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX dishonestly appropriated property, belonging to Samuel Micallef, with the intention of permanently depriving him of the property.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX entered or remained in a building, namely storage cage 40 within the underground car park of the Vista Apartments on the corner of Flemington Road, Franklin and Henry Kendall Avenue, Harrison, as a trespasser with intent to commit theft of any property in the building.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX dishonestly appropriated property, belonging to Kristin Rayner, with the intention of permanently depriving her of the property.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX entered or remained in a building, namely storage cage 41 within the underground car park of the Vista Apartments on the corner of Flemington Road, Franklin and Henry Kendall Avenue, Harrison, as a trespasser with intent to commit theft of any property in the building.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX dishonestly appropriated property, belonging to Christopher Molesworth, with the intention of permanently depriving him of the property.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX entered or remained in a building, namely storage cage 73 within the underground car park of the Vista Apartments on the corner of Flemington Road, Franklin and Henry Kendall Avenue, Harrison, as a trespasser with intent to commit theft of any property in the building.
... on 1 August 2014 or 2 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX dishonestly appropriated property, belonging to Scott Blewitt, with the intention of permanently depriving him of the property.
... between 4 August 2014 or 10 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX entered or remained in a building, namely storage cage 32 within the underground car park of the Vista Apartments on the corner of Flemington Road, Franklin and Henry Kendall Avenue, Harrison, as a trespasser with intent to commit theft of any property in the building
... between 4 August 2014 or 10 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX dishonestly appropriated property, belonging to Jenna Collareda, with the intention of permanently depriving her of the property.
... 5 August 2014 or 6 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX entered or remained in a building, namely storage cage 7 within the underground car park of the Vista Apartments on the corner of Flemington Road, Franklin and Henry Kendall Avenue, Harrison, as a trespasser with intent to commit theft of any property in the building
... 6 August 2014 at Canberra in the Australian Capital Territory SABIAN ROUX dishonestly drove a motor vehicle belonging to someone else, namely Tony Ebejer and the vehicle was dishonestly taken by someone without the consent of Tony Ebejer.
25. Immediately prior to arraignment, the Crown sought, and was granted, leave to file a Notice Declining to Proceed (Nolle Prosequi) in respect of the third count on the indictment.
26. When arraigned at the commencement of the trial, Mr Roux pleaded guilty to the first and second counts on the indictment and to the thirteenth, fourteenth, fifteenth and sixteenth counts on the indictment.
27. Accordingly, the trial proceeded only in relation to the remaining counts although evidence of the facts surrounding the other counts was to be taken into account. At an earlier pre-trial hearing, Penfold J had permitted this evidence to be admitted under s 98 of the Evidence Act 2011 (ACT).
28. As can be seen, Mr Roux admitted, by his pleas, that he did enter the building at a time on 30 or 31 July 2014 and then again at a time between 4 and 10 August 2014 (likely on 5 or 6 August 2014) when, on both occasions, he stole property. He also admitted by his pleas of guilty, that he dishonestly drove the motor vehicle, being the white Mitsubishi Triton utility truck later abandoned beside the Barton Highway.
29. The evidence was, for the most part, in a relatively short compass. Indeed, the Crown tendered an Agreed Statement of Facts, expressly agreed by Mr Roux.
30. It is convenient to set out the relevant parts of the Agreed Statement of Facts.
Counts 1 and 2 (Burglary & theft on 30 July 2014 or 31 July 2014)
Burglary & theft between 4 August 2014 and 9 August 2014
31. In addition, statements taken by police from the following witnesses were also tendered: Rhys Howse, Tony Francis Ebejer, Julian Elias Matos, Kristina Daniela Krstin, Kristin Melinda Rayner, Christopher Molesworth, Scott Leslie Blewitt, Jenna Maree Collareda, Nathanael Campbell Thorncraft and Samuel Joseph Micallef.
32. I have read each of them. Much of what was contained in them is the evidence that is the basis for the Agreed Statement of Facts. This relieves me of any necessity of summarising their contents. I will, however, take the evidence in them into account.
33. There were some matters proved in those statements that are, however, worthy of stating and which I will now set out.
34. The underground car park layout, access and exits are more comprehensively explained in a number of the statements. From them, I find that the garage is in two sections, one under the block numbered 303 and one under the block numbered 307, with a tunnel joining them. Each section has two levels, accessible over to the other by ramps and stairs. The garage has two doorways; each is protected by a roller door. The entrance door is operated by the remote control device, described in the Agreed Statement of Facts as a "fob". That can activate the opening of the door from the outside or the inside.
35. The exit is also protected by a roller door that is operated from inside the garage by a sensor so that a car approaching the door from the garage automatically activates the opening of the roller door. It can be activated from the outside by a "fob" also.
36. There were stairwells connecting the residential units to the garage. Residents were able to access the garage through security doors that the residents operate by use of a key from the stairwell, but a key is not necessary from the garage.
37. Two of the security doors had, when inspected on 2 August 2014, been damaged by being forced open with a flat tool.
38. The motor vehicle of Mr Ebejer, described in the Agreed Statement of Facts as a "white ute", had been stolen from an underground car park below units known as "The Shores" in Belconnen. The arrangement of the car park to those units was similar to that of the Vista Apartments.
39. Mr Ebejer noticed on 27 July 2014 that the large black metal gates at the entry and exit points were not operating correctly and he discovered that they were off their tracks and slightly open, probably to the extent of a car space wide. It was then that he noticed that his motor vehicle had been stolen.
40. The equipment stolen from Mr Matos, the owner of storage cage 59 in the Vista Apartments, between 30 and 31 July 2014 was mainly musical equipment: a synthesiser, a pencil case containing three microphones, various, perhaps three, loose microphones with cords, a set of two black PC speakers with a small speaker, a clear glass jar with beads used as a musical instrument, a fold-out bag, a blue coloured Kazoo, a sleigh bell shaker, a power point adapter and a stackable box.
41. In relation to the burglaries on 1 or 2 August 2014 at the Vista Apartments, the statements showed the following facts.
42. Mr Blewitt was allocated storage cage number 73. On 1 August 2014, Mr Blewitt arrived at the Vista Apartments garage at about 10:30pm and, when parking his vehicle, looked at his storage cage, visible from the car park space, and noticed there was nothing out of the ordinary.
43. During the night he heard a loud bang from the underground garage but did not investigate. The next morning at 8:30am he went to the car park and saw a group of residents gathered there.
44. He noticed that his car had been damaged and someone had broken into his storage cage. Photographs tendered showed that the padlock ring on the metal locking bolt mechanism had been partially cut. It was, according to the oral evidence I heard, cut in such a way that a padlock could have been removed from the ring.
45. Mr Blewitt noticed that items of fishing and diving gear and associated items had been taken. He had not given anyone his permission to take those items.
46. Mr Molesworth, who had been allocated storage cage number 41, was informed by a neighbour early on 2 August 2014, that a number of cages had been broken into and so went to investigate.
47. The top of the padlock ring to his cage had been cut off and the locking part of a bicycle chain also securing the cage door had been cut. Oral evidence from Crime Scene Investigator, Evan Robertson, was that it was cut by a method such as use of a bolt cutter.
48. Mr Molesworth noted that some items, including a yellow tin case, a dark coloured suitcase and his military issued green bag had been put out of the cage and placed quite neatly outside it. He also found that a number of Australian Army issued items had been stolen from the cage. He had not given anyone permission to take these items.
49. Ms Rayner parked her car at 7:00pm on 1 August 2014 and, as she always did, because of its contents, noticed that her storage cage was secure. She returned to her car at about 9:30am the next day and met a neighbour who reported that someone had broken into various storage cages in the garage. Ms Rayner, therefore, checked her cage and noticed that the padlock ring to her bolt locker had been cut so as to allow the padlock to be removed. It was, in fact, lying inside the cage on a box of books and it was still in the locked position. The cage door was ajar and she noted later that a number of Australian Army issued items of equipment had been taken. She had not give anyone her consent to take these items.
50. Four witnesses were called by the prosecution to give oral evidence at the trial. I shall deal with their evidence in turn. It is not necessary to summarise all of their evidence, though, in addition to hearing it, I have read the transcript. I shall, of course, take it all into account.
51. In addition to his statement to police, which was tendered, Mr Micallef gave oral evidence.
52. He is a stonemason. He was, at the time, the occupant of a unit at the Vista Apartments which entitled him to two parking spaces in the underground garage and to one storage cage, numbered 49.
53. In his statement, which he identified and confirmed to be accurate, he said that, at about 7:00pm on 1 August 2014, he had noticed that his storage cage was intact. He said under cross-examination, that he parked directly in front of the cage and so noticed it then. There are sensor activated lights in the garage.
54. The following morning he went to his car at about 6:00am and noticed that the ties attaching the wire mesh at the side of the cage to the structural poles of the cage had been cut and the security mesh to the right side of the cage door had been rolled back. They were ordinary thin wire ties that could be cut by wire cutters. The padlock he used was still attached to the bolt lock.
55. He noticed that his motor cycle bag and its contents had been strewn into the car parking space, including some clothing he used when riding his motorcycle.
56. He also noted other items had been taken from the storage cage, in particular some bolt cutters and a sledgehammer, to which I will refer further below.
57. On 6 August 2014, his partner had, as noted in the Agreed Statement of Facts, intercepted Mr Roux in the car park and Mr Micallef heard her talking to police about it. Later than morning, when he got to work, he noticed that a white concreter's shovel was missing from the back of his utility. He uses it every day in his work and he often leaves it, with other tools, in the back of the utility truck when he arrives home. I infer that he had used it on 5 August 2014.
58. Mr Micallef was cross-examined extensively. He said that his storage cage had been burgled before, about a month earlier. In that incident, the padlock on the bolt locking device on the door of the cage had been cut. It was as a result of this that he secured the door to his storage cage with not only a padlock but also a bicycle chain and lock.
59. He had been taken to the Police Exhibits Management Centre on 1 September 2014 and had been shown some items found in the stolen white Mazda van which Mr Roux was driving when he was arrested.
60. He identified his white concreters shovel and Stanley brand sledgehammer. He was shown also a pair of bolt cutters but said they did not belong to him.
61. He was especially cross-examined about the sledgehammer. He agreed that it was a common tool and had no particular markings on it, but was of the kind and very like the one that he used and which had been taken, he said, from his cage on 1 or 2 August 2014.
62. He said that, when asked by police about it on 2 August 2014, he expressly recalled putting the sledgehammer in the cage. He agreed, however, that he sometimes left the tools he was using for a current job in the tray of his utility truck.
63. He was then asked about a blue bin which was in one of his parking spaces. He initially denied that there was such a bin and no such item was mentioned in his statement.
64. After some further questioning, he recognised that the item was, in fact, a blue water storage drum. He said that he kept some bits of pipe in it, but denied using it to keep tools, such as his shovel in it, nor the sledgehammer.
65. Evan Mark Robinson is a forensic crime scene investigator employed by the Australian Federal Police and was appropriately qualified for that role.
66. He attended at the Vista Apartments on 2 August 2014 and examined a number of the storage cages of residents. He took a large number of photographs of the Apartments, the underground garage and the storage cages. The photographs, or a selection of them, were tendered and admitted into evidence. I do not need to describe them in more detail but have reviewed them when preparing these reasons.
67. In particular, he inspected and then photographed storage cages numbered 59, 56, 49, 40 and 41. In summary, of the cages that he inspected, into which someone had broken between 30 and 31 July 2014, namely storage cages number 59 and 56, these cages had had the ties cut and the mesh pulled back. Those into which someone had broken between 1 and 2 August 2014, namely storage cages numbered 73, 41 and 40, had had the padlock ring cut, apparently with bolt cutters. Cage numbered 49 had had the wire ties cut and the mesh rolled back, but some bolt cutters had been stolen from that cage. As to the storage cages into which someone had broken between 4 and 9 August 2014, namely storage cages numbered 32, the padlock had been attempted to be cut, but the wire ties cut, and 7, the padlock ring had been cut.
68. There was one storage cage also inspected, namely number 56, but the owner was not identified and so the date on which someone had broken into it was uncertain. I deal with that later.
69. Mr Robinson examined a tool box left outside the storage cage of Mr Micallef, namely, storage cage number 49, and identified a mark on the dust as coming from an apparent glove or fabric mark.
70. Mr Robinson also examined the utility truck that had been found on the side of the Monaro Highway.
71. Mr Robinson was cross-examined. He gave a good deal of evidence which supported matters in the Agreed Statement of Facts, to which I have already referred. I do not need to repeat or summarise it but, of course, I take it into account.
72. In his examination of the underground garage, he investigated two of the stairwells from the garage to the units above, specifically those going to units 71 to 74 and, secondly, to units 75 to 78. There were other stairwells, but he did not know how many. He found that, in those he investigated, the stairwell side of the security doors from the stairwells to the garage had been damaged.
73. It appeared to him that a flat bladed tool, such as a screw driver, had caused the damage and he considered that the tool could have been used to prise open the door, which otherwise required the use of a key to open it. He had not tried to accomplish this himself.
74. A forensic biologist employed by the Australian Federal Police, Gregory John Robertson, gave evidence of examining a number of items and extracting DNA from them. He had the appropriate qualifications to do so.
75. He had received a sample of Mr Roux's DNA and used that to compare with the DNA extracted from a number of items.
The DNA match provided extremely strong support that the DNA from the bolt cutters came from Mr Roux rather than from another unrelated unknown individual.
2. Pair of Ninja silver gloves (DNA found on the inside of the cuffs of both gloves)
The DNA match provided extremely strong support that the DNA from the gloves came from Mr Roux rather than from another unknown unrelated person.
3. Pair of red and white gardening gloves (DNA found on the inside of the cuffs of both gloves)
The DNA match provided extremely strong support that the DNA from the gloves came from Mr Roux rather than from another unknown unrelated individual.
4. Pair of Proflex gloves (DNA found on the inside of the cuffs of both gloves)
The DNA match provided extremely strong support that the DNA from the gloves came from Mr Roux rather than from another unknown unrelated individual.
The DNA match provided extremely strong support that the DNA from the screwdriver came from Mr Roux rather than from another unknown unrelated person.
The DNA match provided strong support that the DNA from the screwdriver came from Mr Roux rather than from another unknown unrelated individual.
The DNA match provided strong support that the DNA from the screwdriver came from Mr Roux rather than from another unknown unrelated person.
The DNA match provided moderate support that the DNA from the knife came from Mr Roux rather than from another unknown unrelated person.
9. Sample of hair (see paragraph 26 of the Agreed Statement of Facts)
The DNA match provided extremely strong support that the DNA from the hair came from Mr Roux rather than from another unknown unrelated person.
77. Mr Robertson was cross-examined about a possibility of cross-contamination, as each of the three pairs of the gloves that were provided to him were packaged in one package per pair; that is three packages for the six gloves. While that may be undesirable and may have resulted in some cross-contamination, though possible physically, it seems unlikely that this would occur from inside cuff to inside cuff and it does not seem to me to reduce the value of the evidence. The pairs of gloves were likely to have been used by the same person. That he or she (though in this case, I am satisfied it was Mr Roux), may have used only one glove and the DNA on the other came from cross-contamination does not seem to me to suggest that the results linking Mr Roux to the gloves were unreliable.
78. There was no issue in the proceedings suggesting that there was any difference in what I have to decide were it to be the case that Mr Roux used only one glove rather than both of the pair.
79. The informant was First Constable Lara Antoinette Williams of the ACT Criminal Investigations Crime Targeting Team.
80. She gave evidence that she commenced investigating the burglaries at the Vista Apartments on 8 August 2014.
81. Much of her evidence was of matters already in evidence and of the general layout of the underground garage. Again, I do not need to summarise it but I take it all into account. I have reviewed the transcript and all of the exhibits tendered through First Constable Williams.
82. First Constable Williams did explain that the storage cages (and, presumably, the car parks) were not in any particular order in the garage. Storage cages 59, 56, 49, 40, 41 and 73 were located at one end of the complex and storage cage 7 at the other. It was not entirely clear where storage cage number 32 was located but I do not think that anything turns of that.
83. The garage at each end had two levels but they were of a mezzanine variety rather than two floors above each other. The car parks were generally in front of the cages.
84. She also explained that the stairwells leading from the garage led not only to the units above but also to a front door to the units. Those front doors need a key to gain entry from outside.
85. First Constable Williams stated that when Mr Roux was arrested on 15 August 2014 in the white Mazda van, the items in the van were referred to AFP Forensics for examination, including the bolt cutters, the three pairs of gloves, three screwdrivers and a Swiss Army knife.
86. She made inquiries of the units manager but could not identify the owner of storage cage number 56.
87. She also explained that when the white utility truck was located on the side of the Barton Highway, it had been there for at least 24 hours.
88. She gave evidence that the markings on the yellow box found outside the storage cage number 41 belonging to Mr Molesworth could not be matched to any of the gloves that had been seized from the white Mazda van.
89. The accused, Sabian Roux, gave evidence. He was, of course, thereby a witness like all the other witnesses and his evidence had no more or less credibility than the evidence of any other witness because he was the accused.
90. He admitted, in accordance with his pleas, to having entered the Vista Apartments garage and broken into a number of storage cages on 30 or 31 July 2014 and on 4 or 5 August 2014. He emphatically denied doing so on 1 or 2 August 2014.
91. He said that, on the first occasion, he went into the garage taking a screwdriver or a couple of screwdrivers and some wire cutters. It was not explored why he would have known to take wire cutters. He left his vehicle outside the complex - he had, of course, at that stage, no way of driving it in. It was parked in the street behind the entrance to the complex that is the Vista Apartments.
92. He entered through the front door of one "pod" of units by inserting a screwdriver into a latch which enabled him to "click it", that, I understood, was to open it. It enabled him, as he described it, to enter as he "kind of jimmied the latch", by which he unlocked the door.
93. He then went downstairs and opened the secure door to the garage in the same way. He then walked around to see if anything was lying around and looked in cars. He saw a "fob" in one car. It can be accepted, as I do, that this was the car of Mr Howse, and he took the fob.
94. He then broke into a storage cage. He said he assumed he used the wire cutters to cut the wires attaching the mesh to the fencing; again it can be accepted, and I do, that this was the cage of Mr Matos, and he took the musical equipment, the stolen goods being itemised above (at [40]). He did not describe how he carried away the items he stole, though he said he used a small crate. The photograph of the utility found on the side of the Barton Highway showed a black back pack in a red plastic container, like a milk crate, and it may have been that he put the various items into that crate to carry them out. There was, however, quite a lot of equipment.
96. He then carried the items out in one trip to his car, using the same route as he entered.
97. He categorically denied returning a couple of nights later and stealing goods from the storage cages then. He said he did not return until late on 5 August 2014 or early on 6 August 2014. As he had the key fob, he used it to drive in on that occasion, in the same utility truck that he had used on the first occasion.
98. Mr Roux said that he then broke into two cages, one of which had a "kind of storage cupboard" and some softball equipment in a bag. This can be accepted, and I do, to be storage cage number 32 owned by Ms Collareda. He took the equipment out of the cage and put it into the truck.
99. He then went to the other end of the garage and went to get into another cage, apparently storage cage number 7 of Mr Thorncraft. He broke into the cage and was going through some boxes when he was interrupted by a resident, whom I accept was Ms Krstin. He said that he then "jumped in the car and took off". Before doing so, he did put a box in the vehicle. He recalled Ms Krstin reaching in the car window and grabbing his hood.
100. He explained that he drove out using the key "fob" through the entry rather than the exit and left the vehicle on the side of the Barton Highway. He admitted he was later arrested when driving the white Mazda van.
101. He categorically denied taking the shovel and sledgehammer from Mr Micallef's storage cage or from his utility truck and was "100 per cent" sure that he took them on 30 or 31 July 2014, on his first visit.
102. In cross-examination, he again denied entering the garage on 1 or 2 August 2014 and then stealing items. He agreed that it would take less time to use bolt cutters to cut a padlock or padlock ring than to cut a number of wire ties. He also agreed that he wore gloves when he entered the garage and that he owned "a few pairs of gloves". He was wearing gloves on 5 or 6 August 2014 when he then entered the garage and he agreed that Ms Krstin had taken one of them off him.
103. He also agreed that, at the time of the burglaries, he was experiencing financial difficulties, indeed, he agreed that things were "pretty tough" for him. This was why he committed the burglaries. He intended to sell the items he stole.
104. He also said that he did not have any bolt cutters until he purchased some on 5 August 2014.
105. He did not recall cutting the wire ties on storage cage number 56, which was next to storage cage number 59. In fact, he later strengthened his position and denied it. I do not accept that denial. He also denied that he may have forgotten entering the garage on 1 or 2 August 2014.
106. The allegations in the Crown case relating to the burglaries and thefts of 1 or 2 August 2014 were put to Mr Roux and he expressly and specifically denied them.
107. He was also asked questions about the bin, Mr Micallef's bin, and described it as dark in colour and as the only bin he saw in the garage. He was certain that he took the shovel and sledgehammer out of the bin on 30 or 31 July 2014 and carried them, with the musical equipment, to his car.
108. He also said that when attempting to access storage cage number 32, he tried to use the bolt cutters but they were "too small" so he cut the wire ties at the side of the cage.
109. A photograph of a receipt from Bunnings Group Ltd, Goulburn, for some items including "Cutter Bolt Trojan" for a purchase on 5 August 2014 was tendered. A photograph of those bolt cutters was also tendered.
110. A number of photographs showing the damage to the two doors to the stairwell that had been taken by Mr Robertson was also tendered.
111. Of the nine offences to which Mr Roux pleaded not guilty, there was one count of damaging property, four counts of burglary and four counts of theft.
112. Damaging property is an offence against s 403 of the Criminal Code 2002 (ACT), which is relevantly in the following terms:
403 Damaging Property
(1) A person commits an offence if the person -
(a) causes damage to property belonging to someone else; and
(b) intends to cause, or is reckless about causing, damage to that property or any other property belonging to someone else.
113. Section 400 of the Criminal Code defines "damage" property to include a range of actions. It provides:
damage property, includes the following:
(a) destroy the property;
(b) cause the physical loss of the property by interfering with the property (including by removing any restraint over the property or abandoning the property);
(c) cause loss of a use or function of the property by interfering with the property;
(d) deface the property;
(e) for a document - obliterate or make illegible the whole or part of the document;
(f) for an animal - harm or kill the animal;
(g) for a plant or other thing forming part of land - cut it from the land.
114. What amounts to damage of property is a question of fact, as pointed out in Roe v Kingerlee [1986] Crim LR 735. See also Morphitis v Salmon [1990] Crim LR 48 at 49, cited with approval by Handley JA, with whom Levine and James JJ agreed, in R v Hayne (Unreported, Court of Criminal Appeal of New South Wales, Handley JA, Levine and James JJ, CCA 60496/97, 18 September 1998).
115. Nevertheless, some parameters have been placed around it. Walters J in Samuels v Stubbs (1972) 4 SASR 200 at 203 pointed out, in a decision cited many times since it was delivered:
The word 'damage' in law has more than one meaning, and care has to be exercised in examining the context in which the word appears (cf. Swansea Corporation v Harpur [1912] 3 KB 493], per Fletcher-Moulton L.J. at p. 505). It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes 'damage'. One must be guided in a great degree by the circumstances of each case, the nature of the article, and the mode in which it is affected or treated. Moreover, the meaning of the word 'damage' must, as I have already said, be controlled by its context. The word may be used in the sense of 'mischief done to property', as distinct 'from injury done to the person', so that the term 'damage' may not necessarily 'be employed interchangeably with the term 'injury' with reference to mischief wrongfully occasioned to the person' (ct. Smith v. Brown [(1871) LR 6 QB 729], per Cockburn C.J. at p. 732). It is my view, however, the word 'damages, as it is used in s. 43, is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that in order to constitute 'damage', it is unnecessary to establish such definite or actual damage as renders the property useless, or prevents it from serving its normal function - in this case, prevents the cap from being worn. In my opinion, it is sufficient proof of damage if the evidence proves a temporary functional derangement of the particular article of property. I think that an offence is committed against the section if there be wilful and unauthorised injury, mischief or harm to property, even though no loss to the owner of the property ensues; that a distinction may be drawn between damage to property and the consequent loss or damage to the owner of it. (Cf. Roper v Knott [[1898] 1 QB 868], per Lord Russell C.J. at p. 872).
116. Nevertheless, Simpson J pointed out in Director of Public Prosecutions v Fraser [2008] NSWSC 244 at [38]:
Interference with functionality could be proved, for example, by proof of the removal of a key to a motor vehicle, or the erection of physical barricades around a vehicle preventing its use. But here, in my opinion, while they might amount to some other offence, such interference would fall short of amounting to (malicious) damage.
117. After considering the issue of functionality on the authorities, her Honour continued at [41]:
Moreover, "temporary functional derangement" could not be taken to express a definition of "damage"; a simple illustration will make the point. Scratching or denting the duco of a motor vehicle would, undoubtedly, amount to "damage"; but it does not render the motor vehicle inoperable and does not interfere with its functionality.
118. The Criminal Code also defines "property" as meaning "any property of a tangible nature" (s 400). The wire ties were clearly tangible property.
119. It seems to me, and there was little argument in this case, that the cutting of the wire ties and the severing or partially severing of the padlock rings constitutes damage that is encompassed within s 403 of the Criminal Code.
120. As to the necessary element of intention, the word is a plain English word and attempts to paraphrase it can lead to confusion, as explained in R v Hughes (1994) 76 A Crim R 177 at 181-2. It is not enough for the accused to realise the possible consequence of his or her actions (R v McKnoulty (1995) 77 A Crim R 333 at 345) and it is not the law that an accused is presumed to have intended the consequences of his or her act (Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610 at 632-3, 648-9). Further, as Kirby J pointed out in Cutter v The Queen [1997] HCA 7; (1997) 143 ALR 498 at 510:
It is important to draw a distinction between the intention of the accused and his or her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged [Hyam v DPP [1974] UKHL 2; [1975] AC 55 at 73]. Attempts have been made to define the meaning of 'intent' or its derivatives. [See, for example, R v Steane [1947] KB 997 at 1004-5; R v Williams (No 2) [1985] 2 Qd R 413 at 418-9.] However, the better view is that the word, being one of ordinary acceptation, should not be defined but should be left to the trier of fact without elaboration as to its meaning [R v Moloney [1984] UKHL 4; [1985] AC 905 at 926].
121. Indeed, as Windeyer J explained in Parker v The Queen at 648-9:
In every case where intent is in question the question is what did the accused ... intend. Of that, the acts he did may well provide the most cogent evidence. In some cases the evidence that the acts provide may be so strong as to compel an inference of what his intent was, no matter what he may say about it afterwards. If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports an intention to produce the consequence. Thus to suppose that a sane man who wilfully cuts another man's throat does not intend to do him harm would be absurd. A sane man who intentionally belabours another with a knuckle-duster while he is lying helpless on the ground and then stabs him with a knife, cutting his throat, cannot rationally be said not to have meant to do him grievous bodily harm at the least.
122. The offence of burglary is prohibited by s 311 of the Criminal Code which provides:
311 Burglary
(1) A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent -
(a) to commit theft of any property in the building; or
(b) to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or
(c) to commit an offence in the building that -
(i) involves causing damage to property; and
(ii) is punishable by imprisonment for 5 years or longer.
...
(5) In this section:
Building includes the following:
(a) a part of any building;
(b) a mobile home or caravan;
(c) a structure (whether or not moveable), vehicle, or vessel, that is used, designed or adapted for residential purposes.
123. In this case, the offence alleged by the Crown that Mr Roux intended to commit when entering the Vista Apartments garage was the offence of theft, which is dealt with below.
124. What is a building has been considered in Stevens v Gourley [1859] EngR 931; (1859) 7 CBNS 99 at 112-3; 141 ER 752 at 757-8 where Byles J accepted that it was "not only difficult but absolutely impossible, to define the word "building" with any approach to accuracy". His Honour then ventured the suggestion that by a "building" is "usually understood a structure of considerable size and intended to be permanent, or at least, endure for a considerable time". Again, as the word is not further defined than in s 311(5) of the Criminal Code, the word should be given its ordinary English meaning and whether a structure is a building is a question of fact: Brutus v Cozens [1972] UKHL 6; [1973] AC 854 at 863-4.
125. Whatever the precise meaning of "building", it seems to me unarguable that the Vista Apartments constitute a building and that the storage cages are a part of that building.
126. To enter into the building is, again, a matter of common usage and, as pointed out in R v Brown [1985] EWCA Crim 3; [1985] Crim LR 212, it only needs to be shown that the entry was effective, as in that case, where the accused broke a shop window and leant in with the top half of his body inside the shop.
127. As to whether Mr Roux was a trespasser, the UK Court of Appeal in R v Collins [1972] EWCA Crim 1; [1973] 1 QB 100, made the position clear when discussing s 9 of the Theft Act 1968 (UK), the equivalent of s 311 of the Criminal Code. The Court, whose judgment was delivered by Edmund Davies LJ, said at 105:
In the judgment of this court there cannot be a conviction for entering premises 'as a trespasser' within the meaning of section 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party's consent.
128. See also Baker v The Queen [1983] HCA 18; (1983) 153 CLR 338 at 347.
129. Recklessness is defined in s 20 of the Criminal Code, in relation to a circumstance (namely, whether there was consent to entry) as follows:
20 Recklessness
...
(2) A person is reckless in relation to a circumstance if -
(a) the person is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is a question of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
130. Little needs to be said about this issue. It appears that "aware" has not been the subject of curial consideration; it is an ordinary English word and the definition in the Macquarie Dictionary is apposite, namely "cognisant or conscious".
131. As to "substantial risk", Gray J in Hann v Director of Public Prosecutions (Cth) [2004] SASC 86; (2004) 144 A Crim R 534 at 541-2; [25], said:
The term 'substantial risk' does not appear to be defined in Australian legal dictionaries. However Carswell's Words and Phrases, an American legal dictionary, describes the phrase as meaning 'real and apparent on the evidence presented ... not a risk that is without substance or which is fanciful or speculative'. The word 'substantial' has been described in Australian legal dictionaries as 'real or of substance as distinct from ephemeral or nominal'. 'Risk' has been described as 'a possibility, chance or likelihood'.
132. His Honour also commented at 542; [26] that "[c]onscious awareness of risk is required, it is not enough to show that the risk was obvious or well-known".
133. Teague AJ followed this analysis in R v RH [2011] ACTSC 38 at [14], as did the Queensland Court of Appeal in R v Calis [2013] QCA 165 at [33].
134. I have dealt with the issue of intent above (at [120]-[121]). Because of the extension of the offence to include remaining in the building, the intent does not have to be in the mind of the accused at the time of entry but can be formed later, but must be present when he or she becomes a trespasser after entry.
135. Finally, there is the offence of theft, made an offence under s 308 of the Criminal Code, which provides:
308 Theft
A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
136. The offence of theft involves a number of elements. There is some definition in the Criminal Code of some of these elements.
137. The first element is dishonesty. In R v Delly [2003] ACTSC 113; (2003) 180 FLR 344, Higgins J held that this Court should follow the approach of the High Court in Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, when considering the meaning of "dishonesty".
138. In Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 at 256; [100], McHugh J crystallised the approach of a trial judge as follows:
Thus, in accordance with Peters, the trial judge in a case like the present must: (a) identify the knowledge, belief or intent which is said to render the relevant conduct dishonest; and (b) instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest; and (c) direct the jury that, in determining whether the conduct of the accused was dishonest, the standard is that of ordinary, decent people.
139. Here, the relevant knowledge, belief or intent was that Mr Roux was proposing to acquire the property of other people, to which he had no right, nor their consent, in order to sell it and acquire money to meet his financial difficulties.
140. The next element is the appropriation of the property. Appropriation under s 304 of the Criminal Code includes the assumption of the rights of an owner. See also Stein v Henshall [1976] VicRp 62; [1976] VR 612. One of the rights of an owner is the right to pass title by selling the property, as stated in Cundy v Lindsay (1878) 3 App Cas 459 at 463-4. Thus, to take the property and intend to sell it is to assume the rights of an owner of the property. In general terms, the taking of property from the owner's possession, custody or control is the appropriation of the property.
141. The property must belong to someone else. The Crown is only required to prove that someone other than the accused had the relevant property rights, so that property can be stolen from an unknown person. See Lodge v Lawton [1978] VicRp 10; [1978] VR 112. This term is also further explained in s 305 of the Criminal Code, but the explanation is not relevant here.
142. What is appropriated must be property. In the context of theft, property has an extended definition, but includes the common law characteristics, namely that what is property for the purpose of theft includes that which is tangible and moveable; it must have some value and must have an owner. See J W Cecil Turner, Russell on Crime (Stevens & Sons: London, 1964) 12th ed, v 2, 886-91. The extended definition, to be found in the Dictionary to the Criminal Code, is not relevant in this case.
143. The intention of the accused must be to deprive the owner permanently of the property. This element is also subject of a definition in s 306 of the Criminal Code, which extends the meaning of the phrase "with the intention of permanently depriving the other person of the property". The effect of this element is that the accused must have an intention to change the property or make it his or her own. See Phillips v Strong (1801) 2 East PC 662 at 663; R v Addis (1844) 1 Case CC 78; R v Smails (1957) 74 WN(NSW) 150. To sell the property to another is, as noted above (at [140]), clearly to make it the accused's own.
144. The real question in this case is not whether there was any criminality committed on the evening and morning of 1 or 2 August 2014, but whether Mr Roux committed that criminality. Mr Roux, who pleaded guilty to the offences committed on 30 or 31 July 2014 and 5 or 6 August 2014, denied entering the garage to the Vista Apartments on 1 or 2 August 2014 and denied committing any of the offences then alleged to have been committed.
145. Neither Ms A Jamieson-Williams, counsel for the Crown, nor Mr R Davies, counsel for Mr Roux, made any submissions that the evidence would not satisfy me, beyond reasonable doubt, that the offences of damage property, burglary and theft alleged to have been committed on 1 or 2 August 2014 had been made out, subject only to the question of whether Mr Roux committed those offences that were committed on 1 or 2 August 2014.
146. The storage cages that were the subject of burglaries and thefts on this occasion were storage cages numbered 49 (owned by Mr Micallef and Ms Krstin), 40 (owned by Ms Rayner), storage cage 41 (owned by Mr Molesworth) and storage cage 73 (owned by Mr Blewitt).
147. With a contested exception, there was no direct evidence that Mr Roux was connected with these burglaries and thefts. There was, however, quite significant circumstantial evidence. This consisted of the following matters.
148. In the first place, the evidence of the burglaries on the two other occasions had been admitted as coincidence evidence and showed a very strong similarity of the method of committing the burglaries. The fact, too, that the burglaries and thefts had been committed just days later was such a coincidence that it pointed strongly to Mr Roux committing those offences also.
149. Further, the fact that Mr Roux returned on 4 or 5 August 2014 increases the likelihood that he was the person who returned on 1 or 2 August 2014.
150. The Crown also relied on the method of entry as being a strong element of coincidence. While there were differences, these were explained by the Crown in a way that was inculpatory.
151. The Crown relied on the fact that the wire ties of the cages the subject of burglaries on 30 and 31 July 2014 were cut. This was the same method that secured entry to Mr Micallef's storage cage on 1 or 2 August 2014 and Ms Collareda's storage cage on 5 or 6 August 2014.
152. That the others were entered when bolt cutters were apparently used was explained because a pair of bolt cutters was stolen from Mr Micallef's storage cage. That is to say, the Crown case theory was that Mr Roux entered Mr Micallef's storage cage first when he entered the garage on 1 or 2 August 2014. He used the same method - cutting the wire ties - on Mr Micallef's storage cage and then, having found the bolt cutters, used this method thereafter because, of course, it was quicker to cut a ring or a padlock and to open the door to enter the cages than to have to cut a number of wire ties, pull back the wire mesh and crawl in and out through the hole then made.
153. That Mr Roux reverted to cutting wire ties on Mr Collareda's cage was actually explained by Mr Roux who said that "the bolt cutters wouldn't work, they were too small".
154. The Crown also relied on the fact that Mr Roux had a strong motive for committing the offences. He was, he said, in financial difficulties. He did not explain them more specifically, but said that "things were pretty tough" for him, suggesting that, having taken little on the first entry on 30 or 31 July 2014, he would be likely to return for more stolen property, especially as he now had a "fob" that made entry easy. It also explains, added with the easier method of entry with bolt cutters, why he would, on that occasion, access more storage cages.
155. This evidence, the Crown submitted, was strong circumstantial evidence that Mr Roux committed the offences of 1 or 2 August 2014.
156. The method of entry, however, does not seem to me to be very strong support for the Crown case, though it does support it. There are few reasonable methods of entry to the storage cages. The two used, namely cutting the padlock rings and cutting the wire ties, seem to me to be obvious methods. They are preferable to the cutting of the wire mesh itself which would take quite a long time. The cutting of the padlocks themselves would be quite difficult unless they were flimsy padlocks.
157. There are, of course, other possibilities, such as using a hacksaw or an angle grinder to cut some of the relevant metal, but this would also suffer from risks of discovery caused by either time or noise so as to be inappropriate in the circumstances.
158. Nevertheless, the similar methods actually used does support the Crown case.
159. The Crown also strongly relied on the fact that Mr Roux was found in possession of an item of stolen goods from the offences of 1 or 2 August 2014. This was the yellow-handled sledgehammer taken from, he said, Mr Micallef's storage cage on 1 or 2 August 2014 which was, in that period, the first time he noticed that his storage cage had been entered, after noting it was intact on 1 August 2014.
160. Mr Roux, however, said that he took the sledgehammer from the bin or water drum and on 30 or 31 July 2014.
161. While some property was recovered from the utility truck parked at the side of the Barton Highway, not all of the property that had been stolen, even from the storage cages from which the recovered property had been stolen, was recovered. The Crown relied on this as showing that it was not inconsistent with its case that, apart from the contested sledgehammer, none of the property stolen from the incident of 1 or 2 August 2014 was in the utility truck which Mr Roux said he had used for both the burglaries and thefts that he acknowledged he had committed. The only property found in the white Mazda van in which Mr Roux was arrested appears to have been the "fob", the sledgehammer and the white shovel.
162. As against the Crown case, Mr Davies pointed to a number of matters which, he submitted, would give me a reasonable doubt as to whether Mr Roux committed the offences of 1 or 2 August 2014,
163. He submitted that I could be satisfied that the Vista Apartments were something of a "soft touch", that is somewhat targeted by thieves and burglars. He relied on the evidence of Mr Micallef that there had been an earlier burglary of his storage cage about a month prior to late July or early August 2014. This, he seemed to submit, would also dilute the strength of the coincidence evidence on which the Crown relied.
164. He next submitted that the damage to two of the stairwell doors was strongly suggestive of another burglar. Since Mr Roux had stolen a "fob" on the first occasion, 30 or 31 July 2014, he no longer needed to force his entry and he had a perfectly satisfactory method of entry in the same way as the residents of the Vista Apartments had, as he had used on 5 or 6 August 2014. This also re-inforced the submission that the building was not as secure as might be thought.
165. He then relied on the purchase of bolt cutters by Mr Roux in Goulburn on 5 August 2015. As I understood the submission, it had two aspects. In the first place, it negated the inference that Mr Roux had stolen bolt cutters from Mr Micallef's storage cage on 1 or 2 August 2014 and it suggested that he had not had bolt cutters earlier and so could not have committed the offences on that occasion. Further, if he had stolen Mr Micallef's bolt cutters, as alleged by the Crown, he had no need to buy another pair three or four days later.
166. While a matter to be taken into account, it does not seem to me to be a strong point. The bolt cutters found in Mr Roux's possession were not those of Mr Micallef. Thus, if Mr Roux had stolen Mr Micallef's bolt cutters, he managed to get rid of them - possibly having sold them by the time he was arrested. He could have done so at any time, including prior to 5 August 2014.
167. That the bolt cutters which were found on him were the bolt cutters used at the Vista Apartments is not at all certain. There was a photograph of them, showing them to be quite substantial; they appeared to be at least 40 cms long and of quite sturdy make and strength. They do not appear to be such as were "too small" to cut the lock to Ms Collareda's storage cage as shown in the tendered photographs and as mentioned above (at [108]). Nevertheless, these bolt cutters were not Mr Micallef's property.
168. Reliance was also placed on the fact that, while items from the first incident of 30 or 31 July 2014 and the third incident of 5 or 6 August 2014, were found in the abandoned utility truck when he was arrested, not one stolen item, even though there were a large number stolen, including some very small items, was found from the second incident on 1 or 2 August 2014, apart from the sledgehammer.
169. There was also evidence that the yellow box found outside storage cage number 41 (belonging to Mr Molesworth) had what Mr Robertson described as likely glove (or fabric) marks in the dust. None of the gloves located on Mr Roux when arrested could be matched to those marks and were excluded. While not completely exculpatory - Mr Roux admitted that he had a number of pairs of gloves - it is a further matter that is consistent with another person committing the burglaries on 1 or 2 August 2014.
170. Perhaps the strongest argument made by Mr Davies concerned the sledgehammer which was the item that was the strongest link of Mr Roux to the offences of 1 or 2 August 2014.
171. Mr Micallef, in his evidence in chief, including his statement, did not mention a water drum or bin at all. Thus, there could be no suggestion that Mr Roux had the opportunity from the Crown brief to tailor his evidence to meet the allegations against him. That is to say, he could not have been aware of its existence from the Crown case.
172. Indeed, the receptacle was first mentioned in the cross-examination of Mr Micallef and initially he denied knowing what it was to which Mr Davies was referring. It was only later in the cross-examination that he realised what was being mentioned. It is significant that it was not adjacent to the storage cage of Mr Micallef and Ms Krstin that had been entered on 1 or 2 August 2014 and there was nothing in itself to link the bin to Mr Micallef. This leads to a very strong inference that Mr Roux was telling the truth for there was no other way that he would have known how exculpatory this explanation was.
173. Against this, there are some problems. Mr Micallef denied that he kept any tools in the bin. He accepted that sometimes he would leave the tools in the back of his utility truck, but not in the bin. Mr Micallef was a credible witness. He made appropriate admissions, for example, that he could not be absolutely positive that the sledgehammer and shovel were his as there were many such shovels and sledgehammers made and sold and there were no identifying marks on his. He also agreed that he could not definitively say that he never left a shovel in the blue drum. He was, perhaps, not as unequivocal about where the shovel and sledgehammer may have been by the end of the cross-examination.
174. He was, however, sure that the sledgehammer was in the storage cage and not in the bin. This was, he said, a positive recollection at the time, not just reliance on his custom and usual practice.
175. Mr Roux said in his evidence that he stole the shovel on 30 or 31 July 2014 and from the bin. Mr Micallef's evidence, however, was that he used the shovel every day and only noticed that it was missing from the back of his utility on 6 August 2014. He must have used it on 5 August 2014.
176. It is also difficult to see how Mr Roux could, on 30 or 31 July 2014, have carried the items he had stolen from Mr Matos, as well as the sledgehammer and the shovel, through the security door, upstairs and through the front door to his utility truck which was waiting outside. It was also an unexplained oddity (but one that is probably neutral as to probative value) that he would leave the musical equipment in the abandoned utility truck but take the shovel and sledgehammer with him when abandoning the truck.
177. I have, then, to decide whether the Crown has discharged the onus of proof that lay upon it and beyond reasonable doubt. That is a time-honoured phrase and means what it says; it is a doubt which I reasonably entertain in the circumstances, but not based on fantastic or unreal possibilities. See Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 32-3.
178. Having given the matter anxious and careful thought, I am not satisfied that the Crown has satisfied me beyond reasonable doubt that Mr Roux is guilty on counts 5 to 12 on the indictment, namely the counts relating to offences committed on 1 or 2 August 2014. I have a real and grave suspicion but that is not sufficient to discharge the onus that the Crown bears.
179. That leaves count 4 on the indictment. This is the damage caused to storage cage number 56 (belonging to an unidentified person) next to storage cage number 59 (belonging to Mr Matos). As the owner was not identified, the precise date on which it was damaged by having the wire ties cut was not certain and no account can be had of any property taken.
180. Even though the owner has not been identified, there is no issue that it was not Mr Roux; it was someone else.
181. It seems to me that the evidence points beyond reasonable doubt that it was damaged on 30 or 31 July 2014. It was next to the storage cage of Mr Matos that was entered on one of those dates. It was entered by the cutting of ties, different from the entry into all the storage cages on 1 or 2 August 2014 other than that of Mr Micallef and Ms Krstin where, it would appear that the burglar sourced the bolt cutters. The entry point to storage cage number 56 was around the corner of the cage so that Mr Matos would not have had obvious sight of it when looking at his own cage. The coincidence of the entry into that storage cage a day or so after the original entry into Mr Matos' cage (which Mr Roux admits he did) by someone who was not the one who entered the storage cage of Mr Matos without that person also at that time entering the storage cage of Mr Matos where the mesh had already been cut, seems too unlikely to be countenanced. That did not appear to have happened in any event.
182. That entry was around the side, rather than through the gate as with the storage cage of Mr Matos, is explicable from the photographs which show items against the gate which would have made entry through it very difficult if not impossible.
183. Given that the owner has not been identified, it is explicable that the Crown initially charged the offence as having been on 1 or 2 August 2014 when the damage was identified along with the others. It later sought to amend the dates in the count.
184. I am satisfied beyond reasonable doubt, however, that the whole of the circumstances show that it was entered and the damage of cutting the wire ties was caused on 30 or 31 July 2014 and that Mr Roux caused the damage.
I certify that the preceding one hundred and eighty-five [185] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge.
R
Roux [2015] ACTSC 307
(1983) 153 CLR 338
(1997) 143 ALR 498
(1998) 197 CLR 250
(1971) 126 CLR 28
(2003) 214 CLR 230
(1963) 111 CLR 610
(1998) 192 CLR 493
(2003) 180 FLR 344
(1972) 4 SASR 200