Evidence in Respect of Each Count
5 To understand how and on what basis the tendency and coincidence evidence was admitted on the trial of the Appellant, it is necessary to refer in some detail to the events of November 1996, and January-April 1999, during which the various break and enters were committed or attempted.
6 The first and second of the thirteen counts on the indictment related to events that took place on 24 and 25 November 1996 at Bathurst and Orange respectively. On the evening of 24 November 1996, after the owner had locked it up for the night, a glass panel was removed from the front sliding door to Heath's Café at Bathurst. It had been placed, intact, against the front counter. Property including toys, video games, cigarettes and wine was missing. No identifiable fingerprints were able to be taken from the glass. The same evening, the East Orange Newsagency was also broken into. A glass pane from the lower section of the door was removed and later found inside the premises. Some cigarettes were removed from a display. The internal burglar alarm was activated. The Senior Constable who attended the scene at about 1:30am on 25 November gave a statement indicating that although he had seen a similar modus operandi in break and enters when working in Sydney some six years previously, he had not observed it since.
7 Apart from the unusual modus operandi and the tendency evidence sought to be introduced by the Crown, there was no other evidence connecting the Appellant to these two offences and his Honour disallowed that evidence in relation to the first two counts and refused to include counts one and two in the trial. His Honour also refused to admit as tendency evidence the evidence of four break, enter and steal matters that had taken place in 1994 in which the Appellant had admitted his guilt on an earlier occasion, or of a break, enter and steal at Wodonga in Victoria on 21 April 1999, in which the Crown alleged a similar, unusual, modus operandi was used.
8 There was a gap of more than two years before the next series of offences with which the Appellant was charged. These offences, which were the subject of counts three and four on the initial indictment and became counts one and two in the trial, took place on 12 January 1999 in Bathurst and Mudgee. The first incident occurred at Heath's Café in Bathurst on the night of 12 January 1999, after the owner had locked up and departed for the evening. The glass from the bottom section of one of the front doors was removed and when the café's owner returned to the shop the following morning, he discovered that about $7000 worth of cigarettes, as well as an electric drill, a CD player and a cassette player were missing. No finger marks were found on the glass. That same night, a glass window pane near the front entrance of the Fiesta Chicken Shop in Mudgee was removed, along with its rubber seal and steel edging, and the alarm system activated. Nothing was stolen, and a piece of glass matching that from the window pane was later found in the laneway behind the shop.
9 Unlike the first two counts on the initial indictment, there was other evidence linking the Appellant to these offences. On 12 January 1999, Kevin John McKenzie rented a car with registration number 432-DWZ from All-Country Car Rentals in St Marys in Sydney. Kevin McKenzie is the Appellant's stepfather. The car was rented for one day, and upon its return on the 13th of January it had travelled 830 kilometres over the course of the rental period. Detective Senior Constable Nicholson, the officer in charge of the matters being tried before Holt ADCJ, gave evidence of the distances between Sydney, Bathurst and Mudgee, and calculated the round trip between those three places as being 697 kilometres. Attina Georgopoulos, who was employed at the time as a customer service officer for All Country Car Rentals, gave evidence that she had attended to the lease of the vehicle at 3:50pm on 12 January, and that the car had been returned at 4pm on 13 January. The return was supervised by Alan Rogerson, who was the proprietor of the business at St Marys.
10 Counts three and four in the trial were a break, enter and steal and an attempted break and enter with intent to steal that took place in Cowra on the evening of 15 January 1999. Some time after the premises of the Downtown Milk Bar in Cowra had been locked and secured at approximately 9pm, a glass window panel from the front of the shop was removed. It was found intact the following morning on the right hand side of the shop's interior, with its rubber beading removed. Approximately $5600 in cash, two cash registers, a large quantity of cigarettes and some soft drinks and chocolates were missing. The police recovered the two cash registers on 16 January in a culvert on the side of the road towards the township of Koorawatha, which is situated south of Cowra en route to Young. Senior Constable Terry of the Cowra Police gave evidence that the cash registers and glass were fingerprinted but no prints were found. These events became the subject of count three.
11 At about 10:30pm on 15 January 1999, Angela Parris, co-owner of Parris' Milk Bar, situated about 100m away from the Downtown Milk Bar in Cowra, secured the shop for the evening. The following morning, Con Parris, the other co-owner, noticed a piece of black rubber lying on the concrete outside the front of the shop. Further investigation revealed that the strip of rubber had apparently been removed from the large window beside the front door of the shop. That window was loose in its frame. Murray Alchin, a glazier in Cowra who inspected the premises with Senior Constable Terry on the morning of 16 January, gave evidence that the outside glazing rubbers and the aluminium piping bead had been removed from the window of Parris' Milk Bar, which was sufficiently large that, according to Mr Alchin, two people would be needed to remove it. Mr Alchin also gave evidence that a fair knowledge of the glass industry would have been required to remove the glass at the Downtown Milk Bar, because, unusually, the aluminium beading was located on the inside of the window in that case. A particular type of glass-lifting sucker would have been required. Mr Alchin said that "whoever did this was very knowledgeable in this industry" (T270) and that in his opinion, the same person was involved in both counts three and four because of the way both "jobs" were done (T272 and 279).
12 The events the subject of count five in the trial took place in Young on the evening of 15 January 1999. Andrew Xenophos, the co-owner of the Young Charcoal Chicken shop, left the premises securely locked at approximately 9:15pm. Upon arriving at work the following morning, he discovered that a glass pane from the front of the shop was missing from its frame and had been placed on the ground near the front door. One corner of the glass was damaged. About $2000 worth of cigarettes had been taken. The co-owner later found the rubber strips from the window in a garbage bin outside the shop, and aluminium stripping apparently from the window in bushes several doors up the street. Senior Constable Kelly Slater's statement was read to the court below. She attended the premises on 16 January 1999 and observed the glass pane being fingerprinted. No fingerprints were found. She noted that in over seven years that she had been stationed at Young, she had never witnessed this glass removal method being used in a break and enter.
13 Evidence linking the Appellant to counts three, four and five at the trial was supplied by mobile telephone records obtained from Telstra and annexed to the statements of Megan Foster and John MacKay. Mr Ian Seaford, a principal telecommunications technical officer, gave evidence in relation to the telephone calls made from the mobile phone leased by the Appellant. He prepared a map showing the outer limits of where each call from the mobile phone could have been made, which became Exhibit H at the trial. On the morning of 16 January 1999, the telephone leased by the Appellant made calls from areas within 35 kilometres of the base station at Yass at 8:05 and 8:06am, from Gunning at 8:32am and from Fairfield at 10:29am.
14 Counts six and seven at the trial were the result of events taking place on the same night, 19-20 February 1999, in Wagga Wagga. The owner of the Silver Tree Café locked and departed the premises at approximately 9:30pm on 19 February. Upon returning at 8:30am the next morning, he noticed that the glass was missing from the bottom of the window on the left side of the shop. The refrigerator had been pushed away from the window and cash and cigarettes were missing, to a value of $1120.
15 Mr Kevin Boys was the co-owner and operator of The Place Newsagency in Wagga. He arrived with his wife to start work shortly after 4:50am on 20 February and noticed that the lights at the rear of the shop that normally remain switched on 24 hours a day were not lit. Mr Boys unlocked the door and was in the process of pulling it open when a male person started running towards Mr and Mrs Boys, saying, "Get out of the fucking way, I'm going to stab you". Both Mr and Mrs Boys gave evidence that the man was wearing clear plastic or latex gloves and carrying a red, white and blue bag. He ran into Mr Boys and knocked him over, before running around the corner of the shop and down the laneway at the side of the shop towards the ambulance station. Another bag similar to the one the assailant had been carrying was lying under the counter filled with loose packets of cigarettes from the display in the shop. The glass pane in the bottom half of the front sliding door had been removed and its plastic beading was on the floor of the shop. The glass pane itself was later found intact, outside the rear of the shop. No fingerprints were found on it. Cartons of cigarettes to a value of approximately $1357 were missing.
16 Mr and Mrs Boys both gave evidence at trial that the assailant was approximately 5'7" in height, with fair hair cut above his collar and of average build. Mr Boys gave evidence that the man was Australian or European looking and had no distinctive accent. Mrs Boys later participated with the police in the construction of a com-fit image, which became exhibit J in the trial. Neither she nor Mr Boys were able to identify the assailant from a video collage of photographs shown to them at Wagga police station.
17 At 4:30pm on 19 February 1999, the Appellant's stepfather again hired a vehicle, registration number 431-DWZ from All Country Car Rentals. The rental details were noted by Attina Georgopoulos. The car was returned at approximately 5pm on Saturday 20 February 1999, having travelled 1158 kilometres. Although the refund of the deposit was signed by Mr McKenzie, (the original hirer of the vehicle) and dated 22 February 1999, Ms Georgopoulos recorded "Darren Ellis picked up $498 only" at the bottom of the page, and this notation was signed "D Ellis". Ms Georgopoulos gave evidence that the Appellant was present with Mr McKenzie when he came to pick up the vehicle two out of the four times that the latter rented a vehicle from All Country Car Rentals. She correctly identified the Appellant from a video collage on 19 August. Mr Rogerson and Ms Georgopoulos both gave evidence that the rental documents were sometimes pre-signed when a vehicle was to be returned on a Saturday, since All Country Car Rentals was at that time not open after midday on a Saturday. Detective Nicholson gave evidence that the distance from Sydney to Wagga is 460 kilometres, thus a return journey would be 920 kilometres.
18 On 8 March 1999, Mr and Mrs Boys secured The Place Newsagency in Wagga at about 6pm. The newsagency had recently been restocked with cigarettes following the previous break-in. At about 4:30am the following morning they returned to find that the bottom half of the fixed window on the left hand side of the door had been removed. The glass pane that had been removed was slightly chipped or cracked and was leaning against the shop fittings on the right hand side of the shop. The aluminium beading was beside the glass pane on the floor of the shop. Approximately $2200 worth of cigarettes had been taken. These events were the subject of count eight at the trial.
19 At 5pm on 8 March 1999, the Appellant's stepfather hired vehicle 432-DWZ from All Country Car Rentals. It was returned at 2:30pm the following day, having travelled 1194 kilometres. Detective Nicholson gave evidence that the distance from Sydney to Wagga is 460 kilometres, thus a return journey would be 920 kilometres.
20 A car with a matching registration plate was seen by Phillip Hoey, an Ambulance Station Operator on duty overnight at the Riverina Operations Centre, which was located about 150 metres to the rear of The Place Newsagency in Wagga. At about midnight, Mr Hoey heard a car door close and went out onto the roof of the ambulance station. He saw a person getting out of the car and looking around and thought that this behaviour was abnormal, so wrote the car registration number down on his hand. Mr Hoey gave evidence that the person was Caucasian, of medium build, had "blondie" coloured hair (T193) and was wearing shorts, joggers and no shirt. The person disappeared for 20 to 30 seconds behind an electricity substation and reappeared with a large red and blue striped bag. The person looked up and down a few times, and approached the vehicle, seeming to be in a hurry. He threw the bag in the back of the vehicle, got into the vehicle and drove away quite rapidly without the vehicle lights on. After the incident, Mr Hoey made a call to Wagga police on the police radio. He was subsequently unable to identify the Appellant in a video collage of photographs.
21 Ian Seaford gave evidence that there were two telephone calls made from the Appellant's mobile telephone in the early hours of 9 March 1999, at 12:55am and 1:21am. Both were made in the Albury billing sector, which was just to the south of Wagga Wagga. At 5:56pm on 8 March, a call had been made from the Liverpool area on this mobile phone. Detective Nicholson gave evidence that there is 126 kilometres between Wagga and Albury.
22 The events that became the subject of count nine at the trial took place on 15 March 1999 in Yass. James Patrick McGrath secured the Yass Newsagency at approximately 7pm on 15 March, leaving approximately $1300 in cash in the open drawers of its three cash registers. At about 11:30pm, Mr McGrath received a telephone call from the police, and upon arrival at the newsagency noticed that a pane of glass from a window next to the door of the shop had been removed. The empty cash register drawers were stacked on the floor and the cigarette and battery displays above the counter were also empty. A box containing phone cards had been emptied and was sitting on the counter. The total value of property stolen was estimated by Mr McGrath as between $10,000 and $12,000.
23 The following day, the missing glass pane was located in a park about 100 metres away from the newsagency. Mr McGrath telephoned Mr Graham Jewell, who attended the premises and repaired the window that morning. Mr Jewell gave evidence that he had replaced hundreds of panes of broken glass over the course of his career, but on only one previous occasion had he seen glass panes removed in the same fashion, at a break and enter at the Yass Soldiers' Club about twelve months previously.
24 The Appellant's stepfather hired vehicle registration number 431-DWZ from All Country Car Rentals at about 4:30pm on 15 March 1999. The vehicle was returned the following day, after a journey of 783 kilometres. There does not appear to have been any evidence from Detective Nicholson as to the distance between Sydney and Yass. Mr Rogerson (proprietor of All Country Car Rentals) recalled that when the vehicle was returned on this occasion, Mr McKenzie was accompanied by a man of slim to average build, with sandy coloured hair and heavily tattooed legs. The man later drove off in a VK or VL series Commodore. Deborah Lee, the Appellant's de facto partner at the time, gave evidence that he had a lot of tattooing on the bottom part of his legs.
25 At about 10:45pm on 15 March, Senior Constable John Monkley and Sergeant Sternbeck were on patrol in Yass when they saw a white Commodore sedan parked in Meehan St, Yass, close to the newsagency. Sergeant Sternbeck noted the number plate, 431-DWZ. A man, described in evidence by Senior Constable Monkley as of medium build, about 5'10" and wearing a sloppy joe-style jumper and jeans was packing items into the boot of the vehicle. Sergeant Sternbeck described the man as being in his mid-20s, of medium build and similarly dressed. The police saw the vehicle again about seven or eight minutes later and ascertained that the driver was the only person in the vehicle. Senior Constable Monkley noted as the vehicle turned that its number plate was 431-DWZ. The officers commenced following, but were only able to follow for about 50 metres before the vehicle got too far ahead. The officers contacted police radio before returning to the newsagency.
26 On 17 March 1999, police executed search warrants at 6 Somov Place, Tregear, the residence of Kevin and Jennifer McKenzie, the accused's stepfather and mother, and at 18 Mawson Road Tregear, the residence of the accused and his de facto partner, Deborah Lee. At 6 Somov Place, a carton of Winfield Blue cigarettes, a striped plastic bag containing a number of assorted batteries with Yass Newsagency price stickers on them, eleven packets of Holiday brand cigarettes and a large quantity of unopened packets of batteries were seized. At 18 Mawson Road, a box of Tally Ho cigarette papers, four packets of tobacco, one packet of Winfield Blue cigarettes and one box of Longbeach cigarettes containing five individual packets were seized. On 6 July 1999, a box of batteries and cigarette packets was shown to Mr McGrath at Yass Police Station. Mr McGrath recognised the majority of the batteries as the property of Yass Newsagency. He was also shown some packets of cigarettes, which were consistent with the brands carried by the newsagency, but was unable to positively identify them as being from his business.
27 Counts 10 and 11 at the trial both related to break-ins at the Yass Caltex Service Station at 228 Comur Street, Yass. Count 10 was the result of events of the night of 14 April 1999. At the end of his afternoon shift on that day, Raymond Hill secured the Yass Caltex Service Station site as per company instructions. The next morning, Simon Bumbar arrived for work at around 6am, and noticed some rubber stripping lying to the left of the front door. When the manager of the service station arrived for work, he discovered that the stripping came from the bottom of the front door. He telephoned the police. Senior Constables Tait and Baxter attended the premises at about 8:35am and observed that the aluminium angle from the bottom of the door was loose where the rubber stripping had been pulled out, and that the glass was wobbling.
28 Michael Timmer owned a bakery over the road from the Yass service station. On or about 14 April 1999, he saw a man standing at the service station looking in the window at about 3.30am. He described the man as between 18 and 28 years of age, of medium solid build, wearing dark clothes. Mr Timmer gave evidence that the man disappeared around a corner and a few minutes later a VH or VK Holden Commodore drove out of Polding Street near the service station. The car was described by Mr Timmer as having mag wheels and carrying a P plate, similar in appearance to the car he positively identified two weeks later in relation to count 11 at the trial. There was only one person in the car at the time. Deborah Lee, the accused's partner at the time, gave evidence that she was the registered owner of Holden Commodore TOW-976, a car which had mag wheels and which was used by the accused, who had a provisional licence and drove the car with P plates. On 28 April 1999, police executed a search warrant and took photographs of the accused and of a Commodore TOW-976 at 18 Mawson Road, Tregear.
29 On 27 April 1999, Anne Pasparene secured the premises of the Yass Caltex Service Station at about 9.30pm. She left the office door open, which was normal practice when the floors of the office were due to be polished by the cleaner. When the cleaner arrived at 5.15am on 28 April, he noticed that the lower section of the glass sliding front door was completely missing. He contacted the manager, and spoke to police at the premises at around 6am. The service station manager, Michael Waters, arrived at about the same time. The glass pane from the front door had been completely removed and was sitting inside the premises. Cigarettes to the value of $2264, and $1100 in cash had been taken from the office. These events were the subject of count 11 at the trial.
30 At 3.30am on 28 April 1999, Michael Timmer, who had commenced his baking for the day, heard a noise from the back of the Yass Caltex Service Station and got into his delivery vehicle to investigate. About 800 metres up the road, he saw a car coming towards him. When it passed him, he recognised the car as being the same Holden Commodore he had seen a fortnight previously, with mag wheels. Mr Timmer turned around to follow the car, which headed towards Canberra. He put his lights on high beam and noted the registration plate, which was TOW-976. The car had a P plate on. Mr Timmer returned to his shop and rang the police, at which point he observed the same car driving past, heading out of town in the other direction.