(i) In relation to Count 1, the accused Dylan Stacker is found guilty of aggravated robbery.

(ii) In relation to Count 2, the accused Dylan Stacker is found guilty of aggravated robbery.

(iii) In relation to Count 3, the accused Dylan Stacker is found guilty of dishonestly riding in a motor vehicle belonging to someone else.

(iv) In relation to Count 1, the accused Tyler Campbell is found guilty of aggravated robbery.

(v) In relation to Count 2, the accused Tyler Campbell is found guilty of aggravated robbery.

(vi) In relation to Count 4, the accused Tyler Campbell is found guilty of dishonestly driving a motor vehicle belonging to someone else.

CRIMINAL LAW - JURIDICTION, PRACTICE AND PROCEDURE - verdict - trial by judge alone - joint trial - aggravated robberies - dishonestly drive motor vehicle - dishonestly ride motor vehicle - co-accused - DNA evidence - fingerprint evidence - guilty verdicts

Supreme Court Act 1933 (ACT), s 68B

R v Baden-Clay [2016] HCA 35; 90 ALJR 1013

Legal Aid ACT (Second Accused)

SCC 209 of 2016; SCC 46A of 2016

1. Dylan Stacker and Tyler Campbell are jointly charged under an indictment lodged against each of them on 4 November 2016. They have pleaded not guilty to each charge.

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

(a) Count 1 - That on 6 December 2015, Dylan Stacker and Tyler Campbell committed robbery and, at the time, had an offensive weapon with them.

(b) Count 2 - That on 6 December 2015, Dylan Stacker and Tyler Campbell committed robbery in company with each other and, at the time, had an offensive weapon with them.

(c) Count 3 - That on 6 December 2015, Dylan Stacker dishonestly rode in a motor vehicle belonging to someone else and that vehicle was dishonestly taken by someone without the owner's consent. This count relates only to Mr Stacker.

(d) Count 4 - That on 6 December 2015, Tyler Campbell dishonestly drove a motor vehicle belonging to someone else and that vehicle was dishonestly taken by someone without the owner's consent. This count relates only to Mr Campbell.

4. The incidents giving rise to the charges occurred on 5 and 6 December 2015. It is alleged that on 5 December 2015, a motor vehicle (a black Mazda CX9) was stolen from a residential address in Banks in the Australian Capital Territory. On 6 December 2015, it is alleged the two accused robbed two Domino's Pizza stores, the first in Holt and the second in Wanniassa. It is alleged that they used the Mazda during the commission of the robberies. The store in Holt was sometimes referred to as the "Kippax" store.

5. It is alleged that in the Holt robbery only Mr Stacker entered the premises and when he did so he was armed with a knife. In the second robbery both accused are alleged to have entered the store. They were each armed with a knife. The knives were described as kitchen or chef's knives.

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

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

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

9. The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.

10. I must also ensure that each accused is dealt with separately. In other words, a case against each accused must be proved beyond reasonable doubt. I must return a separate verdict in respect of each individual accused. I should not, in my deliberations, try to determine whether both accused are guilty without considering them as individuals and giving each separate consideration.

11. If the Crown has put forward evidence against one accused, I must not use that evidence against the other accused. In addition, the fact that the necessary standard is reached against one accused does not automatically result in the same standard having been proved against the other accused.

12. It was clear from the Crown's opening comments that I would be called upon to draw inferences from the direct evidence. In drawing an inference I recognise the need to ensure it is a rational inference in the circumstances and that, bearing in mind that I must be satisfied of the guilt of the accused beyond reasonable doubt, I should be extremely careful in drawing any inference. It must be a justifiable inference.

13. There is no dispute that the Mazda CX9 was stolen. There is no dispute that the robberies occurred. There is no dispute the Mazda was used during the commission of the robberies. There is no dispute that in the Holt robbery, one robber entered the premises with a kitchen knife. There is no dispute that in the Wanniassa robbery, two robbers entered the premises armed with knives. There is no dispute that in each robbery an amount of money was stolen.

14. Each accused, while making the concessions just listed, did not admit guilt because they said they were not the robbers. In more precise terms they said the Crown had not proved their individual involvement beyond reasonable doubt.

15. I note here that the CCTV footage tendered by the Crown (Exhibits B, C and K) does not permit positive identification of either accused. At best it may be said that the appearance of the robbers, in overall physical form but not facial features, is consistent with that of each accused.

16. Having regard to the way in which the case was run it is not necessary for me to examine the elements of each offence. Rather the task that I face is to decide whether, beyond reasonable doubt, the Crown has established that each accused was involved in the unlawful use of the motor vehicle and in the two robberies.

(a) The Mazda was stolen between 9pm on 5 December 2015 and 9am on 6 December 2015 from an address in Banks in the ACT. This is a suburb located to the south of Gordon, which can be seen in Exhibit C1.

(b) The Mazda bore Registration No: YXXXXX.

(c) A knife was not ordinarily kept in the Mazda.

(d) The robber who entered the Holt Domino's Pizza store was wearing a blue hooded top with "Champion Athlete" written on the front, a white bandanna over his face, a polo top which was white at the front and green at the back, blue jeans, black gloves and dark coloured shoes.

(e) An employee of the store (Jacob Whiting) noticed the robber depart in a black sports utility vehicle with Registration No: YXXXXX (Exhibit A Tab 2).

(f) The CCTV footage shows the robber, after leaving the store, entering the passenger side of the Mazda. This infers the presence of another person in the vehicle, in the driver's seat. This can be seen in Exhibit B at 21:17:43. The car leaves almost immediately, confirming the presence of a driver.

(g) The robber who joined the above attired Holt robber at the Wanniassa robbery was wearing a black hooded top, a black balaclava, black jeans, black gloves and black shoes.

(h) An employee of the Wanniassa store described the vehicle in which the robbers decamped as a black four-door 4WD. This is consistent with the description of the stolen vehicle (Exhibit A Tab 8).

(i) At about 10:40pm, on 6 December 2015, a police patrol observed the stolen Mazda travelling north on Yamba Drive in O'Malley in the ACT. After a short pursuit the Mazda was lost (Exhibit A Tab 14).

(j) At about 4pm on 7 December 2015, a Mr Michael Winslade was walking his dog on the Federal Golf Course in Red Hill in the ACT. He noticed a black hooded top hanging from a tree branch and also a black balaclava and black pair of gloves on the ground below. He had not seen the items when taking his regular walk the day before. He informed the police. The items were collected and sent for forensic examination (Exhibit A Tab 11).

(k) The golf course is located in a position close to Yamba Drive, consistent with the Mazda heading there after the police sighting (Exhibits F and C1).

(l) The forensic examination of the 'golf course clothing' found, on the three items, DNA matching that of Tyler Campbell.

(m) At about 11.45pm, on 8 December 2015, police located the Mazda at Stuart Flats in Griffith in the ACT. A search of the vehicle revealed a knife and also, separately, a knife sheath.

(n) The knife was subjected to forensic examination. Dylan Stacker's DNA profile was located on the blade (Exhibit A Tab 29). The knife is also consistent with being part of the set found at Mr Stacker's residence (Compare Exhibit A Tab 41.20 to 31.5). I note police were told that two knives were missing from the set.

(o) Fingerprints on the exterior door and window of the vehicle, and on the interior rear vision mirror were matched to Dylan Stacker's left middle finger, left thumb and right ring finger (Exhibit A Tab 28 and 30).

(p) On 9 December 2015, a search warrant was executed at Mr Stacker's residence in Banks in the ACT. During the search a Mazda car key with a silver keyring was discovered. The car key was able to open the locked door of the stolen Mazda (Exhibit A Tab 20). There is no dispute that the key 'belonged' to the Mazda.

(q) Following the search, Mr Stacker was arrested. A polo shirt then worn by him was seized. It is said to be similar to the shirt one of the robbers was wearing when the offences were committed. A shirt consistent with this shirt can be seen in Exhibit B at 21:17:15 and 21:17:39. It can also be seen in Exhibit C, for example at video No. 22280500 at 22:31:32 and 22:31:46 and in video No. 2280800 at 22:31:48.

(r) A search warrant was executed at Mr Campbell's residence on 17 December 2015. A telephone seized from the premises revealed a number of communications apparently between him and "Max" or Mr Stacker on 6, 7 and 8 December 2015.

(s) "Max" was Mr Stacker's partner's brother.

(t) The gloves found at Mr Stacker's residence were of the same type as those found at the golf course. Their colour and very general description are consistent with the gloves worn by the robbers.

(u) The knife found in the Holden Commodore at Mr Campbell's residence (Exhibit A Tab 35.5) is said to be consistent with the sheath found in the Mazda (Exhibit A Tab 41.25 and 26).

(v) The phone records are said to reveal contact between Mr Campbell and Max, consistent with Mr Campbell's involvement in the crimes. In addition it is pointed out that both accused denied contact with each other around the time of the offences. This is said to be contradicted by text messages (Exhibit A at Tabs 49 and 55). The denials are in Tab 50 for Mr Campbell and in the oral evidence of Mr Stacker.

18. The DNA report on the items found by Mr Winslade (Exhibit M) was prepared by a forensic biologist, Ms Gita Lala. Her qualifications were not challenged. She gave oral evidence and was cross-examined on behalf of Mr Campbell. Her basic findings, that Mr Campbell's DNA was located on the black jumper, the balaclava and the gloves, were not challenged.

19. Ms Lala said the DNA samples were taken from those parts of the clothing where a person wearing them would most likely come into contact with the items. She said the presence of Mr Campbell's DNA was substantial and the link to him was, in essence, overwhelming. None of this evidence was challenged.

20. The questioning of Ms Lala's evidence mostly concerned her identification of other DNA on the items of clothing. Her examination had revealed three or four profiles of other individuals. They were too small to be either separated or identified individually.

21. Ms Lala accepted that any one of the other profiles could have belonged to a person who had worn the items and she could not date the time when Mr Campbell, or any other person, had come into contact with the clothing. She did however say that the predominance of Mr Campbell's DNA suggested longer contact with him.

22. One of the accused, Mr Campbell, did not give or call any evidence in response to the Crown's case. I recognise that there was no obligation upon him to do so and he was fully entitled to call on the Crown to establish the case against him beyond reasonable doubt. He bears no onus of proof in respect of any factor that is in dispute and is entitled to say nothing and make the Crown prove the case of his guilt to the high standard required. His decision not to give evidence cannot be used against him in any way. The decision to not give or call evidence is not an admission of guilt nor can any inference or conclusion based on him not giving evidence or calling evidence be drawn. In addition his decision cannot be used in any way to strengthen the Crown case and I must not speculate about what might have been said in evidence had he given evidence or called evidence.

23. Strictly speaking he did go into evidence, through the tender of Exhibit C1, but this does not affect the application of the above principles.

24. The other accused, Mr Stacker, did give evidence. He was not obliged to do so and his giving of evidence does not amount to any admission on his part about the strength of the Crown case against him. Having entered the witness box however, I am entitled to treat his evidence in the same way as that of any other witness. In this regard I have approached the evidence of the witnesses on the basis that it is open to me to accept some of their evidence and reject other parts.

25. Unless uncontroversial I found it very difficult to accept any part of Mr Stacker's evidence.

26. The burden of his evidence was to explain how he came to be in possession of the Mazda's keys and the presence of his fingerprints in the vehicle and his DNA profile on the blade of the knife found in the vehicle.

27. Mr Stacker said that on the Monday afternoon before his arrest he received a telephone call from "Johnno" who told him that he had a 'hot car' which he wished to dispose of. He told Johnno that he could sell it if he could get something out of it. He went to see it at Stuart Flats in Griffith. He went for a drive in the vehicle, initially as a passenger and later as a driver. He was in the vehicle for 10 to 20 minutes.

28. After the short drive Mr Stacker said he called "Andy" to say that he had a good vehicle for sale. He took the keys with him because he did not want Johnno to sell the vehicle to somebody else. He did not drive the vehicle back to his residence because he did not wish to have a stolen vehicle at his premises.

29. Two days later, said Mr Stacker, he received a call from Johnno who told him that the Mazda had disappeared. He thought the police had taken it. Later on the same day the police arrived and conducted a search of his premises which revealed keys in his partner's lingerie drawer (Exhibit A Tab 31.9).

30. I draw no inference from Johnno and Andy not being called as witnesses.

31. Mr Stacker had no real explanation for his DNA profile being found on the blade of the knife. The best that could be said, and was said in submissions, is that one would have expected his DNA to have been found on the handle. This is a logical submission but does not bear much consideration when one recalls that the robber was wearing gloves during the offences.

32. In assessing Mr Stacker as a witness I did not take into account his apparently nervous and fidgety demeanour. Nevertheless I found him to be a very unsatisfactory and unreliable witness. His explanation for his dealings with the Mazda, and the knife found in it, were bordering on fanciful. In my view they were an obvious and amateurish attempt to explain matters that he knew required explanation because they unequivocally pointed to his guilt.

33. His explanation could not be described as a "reasonable hypothesis" that might be inconsistent with his guilt (R v Baden-Clay [2016] HCA 35; 90 ALJR 1013).

34. In my view the matters that have been set out above as representing the Crown's case against Mr Stacker, although circumstantial, create an overwhelming picture of his guilt in respect of all of the offences with which he has been charged. In relation to the riding in the motor vehicle, it was pointed out to me that I must be satisfied that he was reckless as to his knowledge that the use of the vehicle was unlawful. In my view this inference flows easily from his use of the vehicle in the robberies, his disposal of it and secreting of the keys in his partner's drawer.

35. When one combines the evidence about the clothing Mr Stacker was wearing, in particular the polo shirt, his connection to the motor vehicle and the knife found within it, the similarity of this knife to the set at his residence, the consistency between his physical profile and the descriptions given by the witnesses (albeit only as to general size and shape), the communications between him and Mr Campbell and his plainly dishonest oral evidence, it is an easy step to conclude that the Crown has proved its case, on each of the three counts against him, beyond reasonable doubt.

36. The position in relation to Mr Campbell is a little more difficult. The Crown says the presence of his clothing at the golf course at a time consistent with them having been discarded after the robberies and short police chase, the similarity of the clothing to that worn by the robber shown on the CCTV, the presence of the knife in the glove box of the Holden Commodore (taken together with the apparently matching sheath in the Mazda), his denials of association with Mr Stacker, and the content of the text messages and phone calls with Max and Mr Stacker all combine to create an inference consistent only with his involvement in the robberies and the use of the Mazda.

37. Mr Campbell's counsel initially said there was no evidence to confirm the presence of a second person at the first robbery. This submission was withdrawn once the CCTV footage was examined and is seen to be clearly consistent with a person, after the first robbery, entering the passenger side of the vehicle which immediately departs.

38. In addition it was pointed out that according to the telephone records, Mr Campbell was in the suburb of Gordon at 8:53pm on the night of the robberies. Exhibit C1 was relied upon to show that it took 29 minutes to travel from Gordon to Holt so that Mr Campbell could not have been in Holt at 9:17pm when the first robbery occurred.

39. It was conceded however that the Google time probably assumed travel at the speed limit and it was not impossible for the journey to have been made in the available time. The difference is only six minutes. There was no evidence to explain the methodology and parameters used by Google to calculate the time it would take to travel between two places.

40. In relation to the DNA on the clothing found at the golf course it was submitted that there was DNA of other persons also present. Further it could not be said when Mr Campbell's DNA was deposited on the clothing. Further it was submitted that the knife found in the Holden Commodore was a fishing knife, inconsistent with the kitchen or chef's knife described by the witnesses.

41. Mr Campbell submitted that a finding of guilt on the part of Mr Stacker should not lead to a conclusion of "guilt by association" with him. It was said that Max could be any person and that the conversations with Max were as consistent with innocence as with guilt.

42. In relation to the driving of the vehicle, it was submitted that even if there was a finding that Mr Campbell had been in the vehicle, that was not enough to establish his guilt. He may have been an innocent passenger unaware of the conduct of other persons in the vehicle. The first point here is that there is no evidence to suggest there were more than two people in the vehicle. Secondly, in my view, if Mr Campbell was involved in the robberies either by being the 'getaway' driver or actually entering the second store that was robbed, there is a very powerful inference that the use of the vehicle was unlawful or that he was reckless as to whether or not it was being lawfully used.

43. In relation to Mr Campbell I think ultimately his guilt or innocence depends on whether or not I find the Crown has established beyond reasonable doubt that he was present with Mr Stacker when the robberies occurred.

44. Ultimately the predominance of his DNA profile on the clothing, the location and timing of the clothing being found, its consistency with that worn by the robber of the Wanniassa store, the consistency of his knife with the sheath found in the Mazda, the consistency of the knife with that seen in the CCTV (notwithstanding the description of it being a chef's or kitchen knife), his denial of contact with Mr Stacker and the content of the text messages are all items of circumstantial evidence which I accept as having been proved beyond reasonable doubt and combine to establish Mr Campbell's presence in the vehicle and at the scene of the robberies. In addition they establish his complicity in the use of the vehicle and his participation in the robberies either as a getaway driver or a participant.

45. I also rely on s 45A of the Criminal Code 2002 (ACT) in support of my conclusions as to Mr Campbell's involvement in the offences.

46. Accordingly I have reached the following conclusions:

(i) In relation to Count 1, the accused Dylan Stacker is found guilty of aggravated robbery.

(ii) In relation to Count 2, the accused Dylan Stacker is found guilty of aggravated robbery.

(iii) In relation to Count 3, the accused Dylan Stacker is found guilty of dishonestly riding in a motor vehicle belonging to someone else.

(iv) In relation to Count 1, the accused Tyler Campbell is found guilty of aggravated robbery.

(v) In relation to Count 2, the accused Tyler Campbell is found guilty of aggravated robbery.

(vi) In relation to Count 4, the accused Tyler Campbell is found guilty of dishonestly driving a motor vehicle belonging to someone else.

I certify that the preceding 46 [forty-six] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim