Watts v R

Hearing dates: 20 August 2025

Date of orders: 20 August 2025

Decision date: 19 December 2025

Before: Harrison CJ at CL at [1]
Lonergan J at [3]
McGuire J at [118]

Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the conviction.
(4) Enter a verdict of acquittal.
(5) Court’s written reasons will be delivered in due course.

Catchwords: CRIME – appeals – appeal against conviction – unreasonable verdict having regard to the nature and quality of the evidence – robbery – significant issue regarding the identity of the assailant – multiple irreconcilable versions given by the complainant including a positive assertion on the day of the robbery that the assailant was a person known to him, “Wayne” – evidence unreliable regarding matters essential to the charge – jury verdict unreasonable – evidence contains discrepancies, displays inadequacies, was tainted and lacks probative force – significant possibility an innocent person has been convicted

Legislation Cited: Crimes Act 1900 (NSW)

Cases Cited: Barney v R [2023] NSWCCA 85
Coleman v R [2025] NSWCCA 99
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Davis v R [2024] NSWCCA 120
HO v R [2023] NSWCCA 245
JL v R [2024] NSWCCA 246
Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
ND v R [2017] NSWCCA 70
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Singh v R [2025] NSWCCA 34
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The King v ZT (2025) 281 CLR 137; [2025] HCA 9
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Z (a pseudonym) v R [2022] NSWCCA 8

Category: Principal judgment

Parties: Darren Watts (Applicant)
Rex (Respondent)

Representation: Counsel:
Mr I McLachlan (Applicant)
Mr T Abdulhak (Respondent)
Solicitors:
Jamieson Criminal Law (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2022/00013082

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 May 2024, the applicant was found guilty by a jury in the District Court of a single charge of robbery occurring on 11 January 2022. The Crown case at trial was that the applicant had pushed Mr Johnson’s wheelchair in Redfern for several minutes before robbing him of a bag containing a sum of cash, a mobile phone, keys, and a pension card. There was CCTV footage showing the applicant pushing Mr Johnson on Chalmers St and through Redfern Park. The applicant agreed that it was him in the CCTV footage pushing the wheelchair but that another man who seemed to know Mr Johnson approached at the end of Redfern Park and took over pushing him and the applicant walked home.

Mr Johnson asserted to police on the day of the robbery that he knew the man who robbed him, that his name was Wayne and that they had talked about old times before Wayne pushed him into a side street and, after a struggle, stole his bag. Mr Johnson identified a different man in a photo identification procedure six weeks later. Mr Johnson never identified the applicant as the man who robbed him.

The Crown submitted to the jury that there was only one man who pushed Mr Johnson’s wheelchair, and that that was the same man who robbed him.

The applicant sought leave to appeal against his conviction on the single ground that the verdict was unreasonable having regard to the nature and quality of the evidence.

The Court held **(**per Lonergan J, Harrison CJ at CL agreeing with additional reasons and McGuire J agreeing) granting leave to appeal, allowing the appeal and quashing the applicant’s conviction:

1. Where the evidence upon which a jury convicts a person is of a level that is so unsatisfactory that a successful appeal is almost an inevitability, it is no part of the prosecutor’s role stubbornly to insist upon supporting the sanctity of the jury’s verdict, and far less to construct strained arguments in order to do so: Harrison CJ at CL at [2].
2. Even proceeding on the basis that the jury assessed Mr Johnson as credible and reliable, this does not mean that the appeal court must accept Mr Johnson’s evidence. The Court is obliged to consider whether the evidence on the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: [102]-[103] (Lonergan J, Harrison CJ at CL at [1] and McGuire J at [118] agreeing).

Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 referred to.

3. Mr Johnson made multiple different adamant identifications of the person whom he says had robbed him to different police officers, triple-0 responders, and in his evidence before the jury. He never identified the applicant as the assailant. The objective evidence, such as CCTV footage recording the time at which the applicant interacted with Mr Johnson and CCTV footage showing the time the applicant arrived home, did not support key aspects of Mr Johnson’s account: [104]-[113] (Lonergan J, Harrison CJ at CL at [1] and McGuire J at [118] agreeing).
4. It is not this Court’s role to substitute its own view of the evidence and what the subsequent verdict of the jury should have been. However, the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. The significant problems with the evidence presented in the trial were not of the type that are capable of being explained away by the jury's advantage in having seen the witnesses give evidence. The problems are with the content of the evidence and its inconsistencies and inadequacies to begin with – not the way in which the evidence was given: [116] (Lonergan J, Harrison CJ at CL at [1] and McGuire J at [118] agreeing).

JUDGMENT

1. HARRISON CJ at CL: I have had the advantage of reading in draft the reasons for decision of Lonergan J. Her Honour has identified the reasons why on 20 August 2025 we made orders allowing the appeal in these proceedings. I agree with her Honour’s summary of the evidence and the submissions of counsel and with her conclusions. Having examined the trial record for myself, I had concluded that the verdict of the jury was unreasonable having regard to the nature and quality of the evidence.

2. I wish only to add the following comments. So unsatisfactory in my view was the evidence upon which the jury somewhat surprisingly convicted Mr Watts, that his appeal to this Court against conviction was almost an inevitability. Confronted with what I have concluded was the overwhelming strength of his case on appeal, it would have been entirely permissible and equally understandable if the Crown had taken a somewhat less combative role in attempting to defend what really should have been appreciated was the indefensible. It is in my view no proper part of the prosecutor’s role stubbornly to insist upon supporting the sanctity of a jury’s verdict, far less to construct strained arguments in order to do so, when an application of the relevant discretion to make wholly appropriate and uncontroversial concessions in this Court would attract no criticism and much praise.

3. LONERGAN J: The applicant, Darren Watts, was arraigned before Judge Noman SC and a jury in the District Court of New South Wales on 14 May 2024 on a single charge that he robbed Gordon Johnson of a bag containing a sum of cash, a Samsung 9 mobile phone, keys and a pension card on 11 January 2022. This is an offence contrary to s 94(a) of the Crimes Act 1900 (NSW).

4. Mr Watts pleaded not guilty and the matter proceeded to trial. The jury returned a guilty verdict on 21 May 2024. On 4 October 2024, Mr Watts was sentenced to imprisonment for a period of 2 years and 8 months with a non-parole period of 1 year and 7 months, backdated to 1 April 2024 to take into account a period of remand in 2022. The non-parole aspect of that sentence expired on 14 October 2025.

5. Mr Watts sought leave to appeal against that conviction on the single ground that the verdict was unreasonable having regard to the nature and quality of the evidence. There is no appeal against the sentence imposed.

6. Having considered the detailed and cogent written submissions filed by Mr McLachlan on behalf of Mr Watts, the submissions of the Crown, and having carefully considered the evidence led at trial, the Court formed the unanimous view, independently and together, that the verdict was unreasonable and made orders on 20 August 2025 effecting an acquittal, shortly after completion of the oral submissions.

7. These are my reasons for joining in those orders.

An overview of the evidence led at trial

8. On 11 January 2022, Gordon Johnson travelled from his home in Waterloo to the Sydney CBD. He withdrew some cash from St George Bank at Haymarket which he placed into a shoulder bag along with his Samsung 9 mobile phone, pension card and house key. Bank records (Exhibit V) indicate the amount of cash withdrawn was $730.00. By the time of his evidence Mr Johnson claimed to have withdrawn $1,600.00 cash. He was approximately 56 years old and used a wheelchair for mobility as a result of having had both legs amputated.

9. Mr Johnson took a taxi back to Redfern, arriving at about 5:00pm. He was dropped off near the Woolpack Hotel on Chalmers Street. CCTV footage viewed by an investigating police officer showed that Mr Johnson entered that hotel at 5:02pm and left at 5:04pm. It was common ground that he purchased a sixpack of Jim Beam and Coke. He was then captured on CCTV footage wheeling himself along Chalmers Street near the Bamboo Thai Restaurant.

10. Mr Watts was filmed on CCTV footage near Redfern train station some seconds after 5:00pm. He is recorded by various CCTV cameras walking past the Redfern Convenience Store and the Tudor Hotel on Pitt Street Redfern. He is then seen on CCTV footage crossing the street near the South Sydney Newsagent which is opposite Bamboo Thai at 5:05:59pm.

11. At some time between 5:09:59pm and 5:13pm, Mr Watts and Mr Johnson met. By 5:13pm, CCTV cameras attached to the Breadfern Bakery on the corner of Chalmers Street and Redfern Street, recorded Mr Watts pushing Mr Johnson in his wheelchair. The footage shows Mr Watts wearing a blue T-shirt, blue patterned board shorts and thongs with a soft black backpack over his shoulders. Mr Johnson is shown wearing a shoulder bag of a light colour. There is also a white shopping bag fixed to the back of his wheelchair which appears to contain something.

12. CCTV footage captured at 5:18pm by cameras fixed to the Salvation Army building across the road from Redfern Park show Mr Watts pushing Mr Johnson within the confines of the Redfern Park/Redfern Oval area, behind the metal fence that denotes those spaces. They are proceeding in a southerly direction. The footage is very short, submitted by Mr McLachlan to end just after 5:19pm. This is the last CCTV footage of them together.

13. Mr Watts marked with a cross a map (Exhibit 3) the location of where they separated, on the corner of Phillip and Chalmers Street.

14. CCTV cameras at 43 Morehead Street Redfern where Mr Watts lived show Mr Watts at 5:32:15pm approaching the building, finishing a can of what appears to be a Jim Beam and Coke mixed drink, dropping the apparently empty can near the stairs and going into the building via the foyer and into the lift. He is wearing the same clothes as shown on the earlier CCTV footage and is wearing the same black backpack on his back. Other than the can of drink, he was not carrying anything in his hands.

15. At 5:52pm a triple-0 call was made by an acquaintance of Mr Johnson named Monique Kriletich. She gave evidence that she was coming back from Redfern Park walking her dogs and as she got “into her front door” she turned around and saw Mr Johnson on the corner of Chalmers and Phillip Streets having fallen out of his wheelchair. She said that he was on the corner across the road. Her house was located three houses down from the corner of Chalmers and Phillip Streets on the opposite side of the road from where she saw Mr Johnson.

16. Ms Kriletich said that she went over to him, having put her dogs inside and was “right next to” Mr Johnson when she made the triple-0 call, having helped him back into his wheelchair. The sound file of the triple-0 call was tendered and played for the jury. Mr Johnson can be heard in the background providing answers to questions asked by the triple-0 operator to Ms Kriletich, including naming the person who robbed him as “Wayne”, and saying Wayne was a person he knew. Ms Kriletich stayed with Mr Johnson until police arrived.

17. Senior Constable Yeo from the South Sydney Police Area Command attended. He explained in his evidence that he had responded to a computer aided dispatch (“CAD”) broadcast, requesting any available cars to attend. He attended with a colleague at the corner of Chalmers and Phillip Streets, Redfern. There he met with “the informant” Monique, (Ms Kriletich), and the victim Mr Johnson. Senior Constable Yeo gave evidence that he observed Mr Johnson to be a double amputee in a wheelchair who gave an account of what had happened, that he had been on his way back home from the city where he had been to the St George Bank near Chinatown to where he resided in Waterloo. He had travelled along Chalmers Street. He said that there is a hotel or a pub called the Woolpack Hotel, and once he was in that vicinity he bumped into a friend of his, a person known to him as Wayne. He said that Wayne had offered to assist him in getting back to his place, and that Wayne began pushing him.

18. Senior Constable Yeo said that he was told by Mr Johnson that they travelled along Chalmers Street and then went behind the grandstand of Redfern Oval on the eastern side of Chalmers Street. As they approached the intersection of the corner of Chalmers and Phillip Streets, they turned right into Phillip Street which then heads west towards Pitt Street in Waterloo. Mr Johnson said that when they got to the corner of Douglas Street, the man pushed Mr Johnson “slightly off Phillip Street onto Douglas Street” and at that point attempted to take the satchel/shoulder bag that he was wearing. Mr Johnson tried to hold onto the bag and there was a short struggle. Wayne eventually succeeded in taking the bag, leaving Mr Johnson where he was.

19. Senior Constable Yeo explained that records indicate Ms Kriletich’s call to triple-0 occurred at about 5:52pm but that there had been an earlier anonymous report direct to Redfern Police Station, recorded in the system at 5:33:02pm. Judging by usual practice, Senior Constable Yeo was unable to say how long before 5:33:02pm the call to Redfern Police Station had occurred. Although he acknowledged that he could not speak for other police officers as to what they would do, and he was not aware of any specific policy as to when a job needs to be created in the system, he personally would have created the record as soon as possible after the call was taken.

20. Senior Constable Yeo accepted in cross examination that he had been told by Mr Johnson that his bag contained $1,200.00 cash and that Mr Johnson told him that he had been approached and pushed in his chair by a male he had known for a few years called Wayne. Mr Johnson told him that the person who had taken his bag had “short blonde hair”. (CCTV footage of Mr Watts shows him to have medium length brown hair).

21. Senior Constable Yeo agreed that Mr Johnson’s speech was “somewhat slurred”, he could smell alcohol on him, and he appeared “to some extent” to be “intoxicated”. [1]

22. Senior Constable Yeo accompanied Mr Johnson to his home and met Detective Sergeant Peebles there. He introduced Detective Sergeant Peebles to Mr Johnson.

23. A signed notebook statement was taken from Mr Johnson by Detective Sergeant Peebles. This statement was signed at 7:56pm. The legal representative for the Crown did not lead anything about that statement from Detective Sergeant Peebles. Although given within just a few hours of the incident, it seriously contradicted the case that the Crown ultimately ran in Court against Mr Watts.

24. In cross-examination, Detective Sergeant Peebles confirmed that paragraph 11 of the signed statement made by Mr Johnson that evening stated that when he got out of the taxi, “Wayne wasn’t far away and I was putting my change from the taxi back into my bag. Wayne said: “Geez you better put that away!” I think he was referring to the money I had in my hand”.

25. Detective Sergeant Peebles confirmed that in paragraph 12 of that statement, Mr Johnson had said that he was “struggling with Wayne for about five minutes” while his bag was being stolen, (by Wayne).

26. On 16 January 2022, Detective Sergeant Peebles and two colleagues spoke to Mr Watts at the door of his apartment. Detective Sergeant Peebles gave evidence that the following exchange took place:

“Q. Darren, I'm Sergeant Peebles from Mascot Detectives and we're investigating a robbery that occurred on 11 January 2022 involving a person in a wheelchair, you're not obliged to say anything, unless you wish to, but anything you say or do will be recorded and may be used as evidence, do you understand that?

A. Yeah, Gordie, I didn't rob him, I pushed him, and then somebody came over and said, 'Hey Gordie, I'll take him from here.' I went home. I heard that Gordie had been robbed because some people in the area had told me about it.

Q. Who?

A. Just some people - some people around.

Q. Okay, well, you're under arrest for robbery, you're not obliged to say anything unless you wish to, anything you say or do will be recorded and may be used as evidence, do you understand that? where did you meet him?

A. Yeah, in the park, and I pushed him to Phillip Street.

Q. Well, the allegation is, is that you robbed him.

A. I didn't - I didn't do that, I don't even know him.

Q. Well, you said his name was Gordie.

A. Well, I know that now.

Q. Okay, we'll go back to the police station and have a chat.”

27. Analysis of Mr Watts’ phone showed that on 12 January 2022 he had sent a text message at 1:44pm to Danielle (his daughter), who asked him whether he had any money, to which he replied: “Fuck all I can go for loan tomorrow is mum home”, and a further message on 13 January 2022 at 2:24pm to a friend whose first name was Liam saying: “Hello bra any chance of cash coding me a 100 it’s okay if y can’t. cheers buddy”.

28. On 2 March 2022, Mr Johnson participated in a formal police photo identification procedure. Mr Watts’ photo was in the array, however Mr Johnson identified the person who robbed him as another man, Mr Allinson, not Mr Watts.

29. Mr Johnson was told by police at the identification procedure that the person who allegedly committed the offence may or may not be depicted in the 12 photographs he was shown, and that he was not obliged to select anyone. These questions were asked and answered by him during the identification procedure:

“Q. Have you seen any of these persons under any circumstances?

A. Yeah. If I did, it would’ve been whom I got robbed.

Q. If so, when and where?

A. In Douglas Street, Redfern, when I got robbed.

Q. What number was displayed on the screen for that person/those persons?

A. 10.

Q. Where and when did you see this person/these persons?

A. I told you.

Q. What did this person or these persons do?

A. Rob me. Snatched my bag.”

30. Telephone service enquiries made regarding the location of Mr Allinson’s mobile phone on 11 January 2022 confirmed that it was in the Hunter region of New South Wales all that day. Mr Allinson told police that he had not been in Redfern for over ten years. Detective Sergeant Peebles gave evidence that his investigations satisfied him that Mr Allinson was not the person who robbed Mr Johnson.

31. Detective Sergeant Peebles said that he investigated Wayne Carter, who was the “Wayne” identified by Mr Johnson on 11 January 2022 as the man who robbed him. Call charge records for Mr Carter’s phone indicated that on the day of the robbery between 4:30pm and 5:45pm, Mr Carter’s mobile phone pinged off a cell tower location in Bourke Street, Waterloo which is near where the robbery occurred.

32. In August 2022, Mr Johnson recanted his version given on 11 January 2022 that it was “Wayne” who robbed him, stating that he had run into Wayne at Woolworths “three to four months ago” and “He’s definitely not the bloke who robbed me back in January”.

33. Agreed Facts dealing with the DNA evidence (Exhibit AE) confirmed that DNA swabs taken on 14 January 2022 of the handles of Mr Johnson’s wheelchair when tested showed mixed DNA, the major contributor being “unknown male”.

34. The Crown’s written submissions on appeal confirm that Mr Watts was arrested and charged on 16 January 2022.

Evidence of Mr Watts

35. Mr Watts gave evidence at the trial. His evidence was broadly consistent with the account he had volunteered to police on his doorstep on 16 January 2022, although he provided further detail about a few minutes spent in Redfern Park with Mr Johnson on that day. He said that having pushed Mr Johnson as far as the corner of Philip Street, the following things happened:

“Q. And then does anything happen when you reach that corner of Phillip and Chalmers Street?

A. As I got to the corner, I’ve heard a, “Hey Gordo, Gordo, where you going?”

Q. And in which direction did that voice come from?

A. Chalmers Street, behind me.

Q. And did you see anybody, or did you look for anybody after you heard those words?

A. I turned over my right shoulder and seen a male about 10 feet away.

Q. And did you have any interaction with that male?

A. No.

Q. Did Mr Johnson have any interaction with that male.

A. Yes.

Q. And what was that interaction?

A. He asked Gordo where he was going, and Gordo said that I was pushing him home.

Q. After Gordo said that you were pushing him home, did they have any other discussion?

A. He asked me who I was, and Gordo just said, “Some bloke pushing me home.”

Q. And can you describe what that person looked like?

A. I don’t remember much facial features or anything, but I remember medium length hair past the shoulder.

Q. So, I think you said that Mr Johnson said that you were pushing him home.

A. Yep.

Q. And was there any further discussion between the two of them?

A. He said he’d - suggested that he push Gordo home himself.

Q. And do you remember what he said?

A. He goes, “I’ll - I'll push you home, Gordo.”

Q. And after he said that, what did you do?

A. I went, no worries, we said goodbye, I headed east along Phillip Street where they turned and went west, down Phillip Street.

Q. So in terms of if you head west on Phillip Street, is that in the direction of Redfern Train Station?

A. Yes.” [2]

36. Mr Watts confirmed that his walk home took about eight to ten minutes once he had separated from Mr Johnson, confirmed by the CCTV footage showing his arrival home at 5:32pm. He also said that when he arrived home, he took his dog out for a walk. This is confirmed by CCTV footage. The agreed timing of that footage shows that Mr Watts went out with his dog at 5:55pm wearing the same shorts and thongs and a fresh t-shirt.

37. The time in Redfern Park described by Mr Watts in his evidence involved a conversation with somebody called Rob, with some other people nearby. Mr Johnson purchased methadone from Rob and Mr Johnson gave Mr Watts one of his cans of drink. Mr Watts estimated it was probably six to eight minutes all up from the time they got into the park and reached the bench, and when they left, proceeding along Chalmers Street to the corner of Philip and Chalmers Street. He said that that was where he heard the man who ended up pushing Mr Johnson call out: “Gordo, hey Gordo”. [3]

38. Mr Watts denied entering Douglas Street or Union Street in Waterloo and denied stealing any bag. He described the man who offered to push Mr Johnson as about 6 foot 2-3, Caucasian, and someone who appeared to know Mr Johnson.

39. Mr Watts was asked in cross examination what observations he made of Mr Johnson. He said: “he’d been drinking”. In answer to the question how did he know that, Mr Watts said: “Well, you could smell it on him, and he had a sixpack hanging off the back of his wheelchair” and “he was slurring a little bit”. This was consistent with Senior Constable Yeo’s observations of Mr Johnson that he appeared “to some extent” to be “intoxicated”.

Significant problems with the nature and quality of the evidence of Mr Johnson identifying the person he claims robbed him

40. In his evidence at trial Mr Johnson gave this description of his assailant:

“Q. What happened when you got to Redfern Park?

A. I was approached by someone I thought I knew.

Q. I'll just stop you there again. When you say you were approached by someone that you thought you knew, do you remember from which direction did this person approach you?

A. Oh, I can't remember.

Q. This person, I'm just going to ask you some questions about what they looked like. Do you remember what that person was wearing?

A. No.

Q. Do you remember the colour of their skin?

A. They were white.

Q. Do you remember approximately how tall they were?

A. It's hard to - it's hard to gauge someone's height from a - a sitting position in a wheelchair, but - I don't know - five foot nine.

Q. Do you remember anything about their hair?

A. Yeah, the hair was dyed blonde and it - it stuck up like a straw, you know, like a--

Q. When you say, "blonde", there's varying shades of--

A. Peroxide.

Q. Do you remember the length of that hair?

A. Nah, it was all - it was all up, you know, standing up and frizzy.”

41. When cross-examined about his initial identification of Wayne as his assailant, Mr Johnson’s evidence was as follows:

“Q. It's the case that when the police took your statement initially, you told them that it was Wayne who had robbed you.

A. I said it looked like Wayne.”

42. Mr Johnson’s answer was not correct. Mr Johnson said that it was Wayne. He told his neighbour, Ms Kriletich, [4] and both police officers who interviewed him on 11January 2022, that it was Wayne, not that it “looked like” Wayne.

43. Mr Johnson was taken to the first police statement that he provided on 11 January 2022 just a few hours after he had been robbed. Relevantly, the complainant said this about what occurred after getting out of the taxi:

“I went to Redfern Park where I was approached by a bloke I know as Wayne. I would describe Wayne as 50 to 55 years old, Caucasian and maybe European. He’s about five foot seven, medium build, light brown short hair, he was wearing a blue t-shirt.”

44. When that passage was put to Mr Johnson, he said “… all I remember is saying that they had hair like straw, peroxide blonde”. He then agreed that in his statement he had said to police that when he got out of the cab he had been “… approached by a bloke that you knew as Wayne”.

45. Mr Johnson accepted that he had also said in his statement:

“I met Wayne about 15 years ago in Green Park opposite St Vincent’s Hospital in Darlinghurst. I haven’t seen him for at least ten years, I think he lives in Maroubra with his partner Annie, I think that’s her name.”

46. Mr Johnson also accepted that he had said in his statement that after he and Wayne met up, they “were talking about old times”. Upon further questioning, Mr Johnson said that the person he mistakenly thought was Wayne must have “played along” with what he had to say and that the “old times” was a reference to the “… days up in Green Park”.

47. The evidence Mr Johnson gave about the later change to his evidence about Wayne not being his assailant was also unreliable:

“Q. Is it the case, at some point, you actually saw Wayne on the—

A. Yeah.

Q. --street after the robbery. Where did you see him?

A. I've seen him in Woolworths or outside Woolworths.

Q. Did you speak with him?

A. Yeah.

Q. What can you remember after you spoke with him about your impression of him?

A. Just how - how well he looked, and that he was doing good, you know, working and how he changed his life.

Q. Did you still believe that Wayne was the person who robbed you after—

A. No.

Q. Can you explain why you didn't believe that?

A. Because they might have shared some similarities, but Wayne was a lot smaller and - and just totally different. I don't know the word for it. He just – his whole mannerism was different, yeah.

Q. Is it the case that after seeing Wayne and now believing Wayne not to be the person who robbed you, you went and spoke to the detectives and told them?

A. Yep. Yep.

HER HONOUR

Q. Can I just ask you, Mr Johnson, about the timing, because we’ve got two dates of 11 January, which is the day you say you were robbed. You've given some evidence that you looked at some photographs on 2 March. When was it that you saw Wayne near the Woolworths. Was it between those two dates. Was it before you went to do the photo identification?

A. I honestly don't recall whether it was before or after. I'd hate to say under - under oath that it was one date when it could have been the other. I really don't remember, your Honour.

Q. How long after you saw Wayne near the Woolworths was it that you went and told the police that you no longer thought it was Wayne?

A. Pretty much as soon as I could, you know, within a couple of days, maybe a week.”

48. The statement he made to police recanting his identification of Wayne was on 28 August 2022. The time when Mr Johnson saw Wayne at Woolworths was actually three to four months before that, not a “couple of days” or “a week”.

49. Mr Johnson either could not recall, or accepted in cross-examination, some key aspects of the accused’s account of events:

“Q. I suggest that it's at that point in time that you approach a male that's standing nearby that fruit and veg shop.

A. I don't recall.

Q. In terms of that male, it's the case that you asked him whether he could push you. Do you remember that?

A. No, I don't.

Q. But in terms of any interaction that you have with the male that pushes you, you agree that you're the one that asks him whether or not he can push you?

A. If - if - if I was really tired, yeah. You can see from the video I was struggling getting up the - the gutters, and it's not unthinkable that I might ask someone to give me a push.

Q. Yes, in the video, you can see that you're having sort of difficulty pushing yourself up the ramp, and I'm suggesting that because of that difficulty, you then ask someone if they could help push you?

A. Probable. You know, it's reasonable, but I don't know. I can't remember.

Q. In any event, do you agree that a male does push you from Chalmers Street, across the road from Redfern Park, into Redfern Park?

A. Could have.

Q. You agree that there's a moment where you actually stop in Redfern Park. Isn't that the case?

A. Yeah.”

50. Mr Johnson agreed that he “could have” given the male who was pushing him one of the mixed drinks he had purchased at the Woolpack Hotel. (Mr Watts says Mr Johnson did so. CCTV footage shows Mr Watts finishing a can of mixed drink as he arrives at his building in Morehead Street at 5:32pm).

51. At the end of his evidence in chief, Mr Johnson was asked the following:

“Q. Mr Johnson, between the Woolpack Hotel and when the man approached you in the park, did anyone push your wheelchair for you?

A. I honestly can’t remember.

Q. From when the man started wheeling the wheelchair to when the robbery happened, did anyone else wheel your wheelchair?

A. No.

Q. So, its your evidence that from when the person met you to when the robbery happened, there was only one person who wheeled your wheelchair.

A. Yeah.”

52. Even in his evidence in chief, there were problems with Mr Johnson’s evidence demonstrating that he really had no reliable memory at all of what occurred that day. First, he did not recall that he had left the building that morning with a friend. He had to be shown CCTV footage to remind him. He claimed to have withdrawn $1,600.00 from the St George Bank at Haymarket but the bank records indicated that he had withdrawn only $730.00.

53. He seemed to have trouble following simple questions. His answers indicated frustration and lack of recollection of events when the trial judge intervened to seek clarity:

“HER HONOUR

Q. --at this time. Just for a moment. Mr Wong's just asking, so the person you're describing that was pushing you, at some stage while you were in the park, did you ask that person to push you home?

A. I don't - I don't even recall that person, your Honour.

Q. So, I'm not talking about Rob.

A. No, I don't - I don't - I don't recall anyone else pushing me but the person I've identified.”

54. He accepted in cross-examination that his memory about things having happened on this particular day was “not the best”. [5]

55. Mr Johnson said that when they got to Phillip Street he saw “a few people” that he knew and the person pushing him said: “I’m going to have a piss”, that person went up one of the side streets and that was when Mr Johnson turned around and felt a “wreathe [reef] [6] from behind of my bag… a pull”. When he let go of the bag the other person “just ran out of the side street up on to Phillip Street and away… back towards Redfern Oval”.

56. The time between when they stopped and he felt his bag being pulled was “about 3 minutes”. He wheeled himself up the street “a bit” and then saw Monique and told her what had happened.

57. Mr Johnson agreed in cross-examination that he and the person pushing actually stopped somewhere in Redfern Park but that he could not recall stopping where there was a bench or that the male sat on the bench and he remained seated in his wheelchair near that male. Mr Johnson was then reminded of other evidence that he had given (in the previous trial) in which he said that he could remember sitting in Redfern Park. He denied that whilst seated in that area he had had a discussion with the other male regarding obtaining methadone. He admitted he had been taking methadone for the last 20 years. He denied that he purchased methadone from a man named “Rob” who had walked past at that point in time.

58. Mr Johnson acknowledged that on 11 January 2022, he would have taken methadone as he was taking it every day, but asserted he was prescribed “takeaways” so he would not need to purchase any from “Rob”.

59. When cross-examined about the hair colour of the male who had robbed him, Mr Johnson maintained that he had a clear memory that the person had peroxide blonde hair, which “… wasn’t his natural hair colour”, being “white” and quite long. He was then taken to the following questioning from the earlier trial:

“Q. When you say that he had short blonde hair, was it all of his hair that was blonde or just parts of his hair?

A. He had, like, a dreadlock going, you know, it's hard. The blonde was growing out which made it frizzy and unkempt.”

60. The following cross-examination then took place:

“Q. Is it your memory that the person who pushed you in the wheelchair had a single dreadlock?

A. I - I didn't count his dreadlocks. I'm just saying that - that's what his hair looked like to me. I'm not saying it was a dreadlock, it was - it was unkempt.

Q. So, were you saying that it looked like a dreadlock, but your memory now is that it wasn't necessarily a dreadlock?

A. I don't know how to answer that, you know. I've - I've answered it a million times that it was frizzy blonde hair.

Q. You say that you've answered it "a million times". Obviously, you haven't, but when you're saying that you've answered it "a million times", you're saying that's because you're very certain that the hair was short, blonde, and frizzy?

A. Yeah.

Q. You've talked about memory issues that you've had, but this is something that you do remember, the short, frizzy, blonde hair.

Q. It's something that sort of sticks in your mind when you're looking straight at the person and they're - they're trying to grab your bag off you, because what you're saying is that, at the time that your bag was being grabbed, you were looking directly at the person that was grabbing your bag--

A. I'm - I was looking at him straight in his eyes.

Q. --and because you were looking straight at him, you had a very clear view of the hair that he had.

A. Yeah.

Q. That's why you can remember that quite vividly.

A. It stands out.”

61. Mr Johnson was asked about what he had said in his first police statement regarding seeing “the man” when he first got out of the taxi. Relevantly, the cross examination proceeded as follows:

“Q. Do you agree that when you get out of the taxi, before you go to the Woolpack Hotel, you don't actually see the man that pushes you through Redfern Park, do you?

A. I don't recall. I know that I went into the Woolpack and I come out and went across the road. You know, in a wheelchair, you've got to go across at places you can get up the gutter. It's not like I can just walk across the road.

Q. At paragraph 11 of your statement on 11 January 2022, you've indicated:

"When I got out of the taxi earlier, Wayne wasn't far away, and I was putting my change from the taxi back into my bag. Wayne said, 'Jeez, you better put that away’. I think he was referring to the money I had in my hand”

That’s what you’ve included in your statement. I’m going to suggest to you that where you’ve included that in your statement, that’s incorrect.

A. The only part that’s incorrect is who said it.”

62. It was suggested to Mr Johnson that the person who pushed him through Redfern Park never had the opportunity to see him putting money into his bag after he had just alighted from the taxi because that man was not present at that time. It was at this point in the evidence that Mr Johnson said – for the first time – that the person who had pushed him had actually been sitting with a group of people in Redfern Park, including his girlfriend and other friends, and had left that group to first approach Mr Johnson in Redfern Park. This new account came out in cross-examination as follows:

“Q. I’m going to suggest to you that the person who pushes you in the wheelchair through Redfern Park never had the opportunity to see you putting change back into your bag after the taxi because he wasn't standing around you at that point in time.

A. There was a whole group of them, you know, him and his girlfriend and friends.

Q. When you say that there was a whole group of them, him, his girlfriend and his friends, whereabouts were this group of people?

A. Sitting in Redfern Park.

Q. So, is your evidence that in relation to the person that pushed you, they were sitting in Redfern Park and he had his girlfriend, as well as a friend and other people in a group?

A. Yeah.

Q. How many people were in the group?

A. I don't know.

Q. Was it more than five people or less than five people?

A. I don't know.

Q. So, then, how did you end up interacting with this group in the park?

A. As I said, the bloke approached me.

Q. When the bloke approached you, how far away was his girlfriend and his friend and other people in the group from him?

A. Close enough to hear what was being said.

Q. So, you definitely have a recollection of this male that pushed you being in a group of other people.

A. Yeah.

Q. Mr Johnson, at no stage have you ever indicated prior to today that the person that pushed you in a wheelchair was with his girlfriend, a friend and in a group of people. Do you agree with that?

A. They have done nothing wrong.

Q. You never indicated that the person that pushed you in the wheelchair was with his girlfriend or his mate. You never indicated--

A. I never indicated that you were there either.

Q. So, are you suggesting that I was there?

A. No, but you're just - you're putting words in my mouth. You know, you can - you can ask your questions as many times as you want. It's not going to change my mind on who robbed me. I know who robbed me.”

63. Following an adjournment, Counsel for Mr Watts returned to this new account:

“Q. Mr Johnson, before we broke for lunch, you gave evidence about the male that pushed you, that you believed that he was with his girlfriend, a friend and in a group. Do you agree that you gave that evidence just earlier today?

A. Yeah.

Q. In relation to the person that you thought was this male's girlfriend, why did you think that she was his girlfriend?

A. I don't know.

Q. When the male who pushed you ultimately came to push you in your wheelchair, did he actually leave the group that he was with?

A. Yeah.

Q. Did you see him talking to the group that he was with or the people that he was around?

A. Yeah.

Q. Because I'm going to suggest to you that the person that pushed you in your wheelchair in Chalmers Street didn't actually leave any group and approach you. What do you say about that?

A. What was your question?

Q. That he didn't actually leave any group and then approach you on Chalmers Street. Do you agree with that?

A. I’m not saying he did on Chalmers Street. I’m saying in Redfern Oval. At the end of Redfern Oval there was a group of them sitting.

Q. So, at the point in time that this male who pushes you approaches you, you say that he's in Redfern Oval with a group, and they're sitting?

A. At the entrance to the park, yes.

Q. Because I'm going to suggest to you that you met the person that was pushing you actually on the others side of Redfern Street, across from Redfern Oval.

A. You can suggest all you want. I'm just telling you what I remember.

Q. Do you disagree that you met the male that pushed you on the other side of Redfern Street, across the road from the oval?

A. I can't remember.”

64. In response to the proposition that it was Mr Johnson who approached the male and asked that person to push him, Mr Johnson said: “I don't know”. Mr Johnson also agreed that he had never spoken to the person who had pushed him in Redfern Park about the money he had with him or that he had just withdrawn money from a bank, and was sure that he never opened his bag and showed that male the money inside.

65. Mr Johnson was then taken back to the narrative that he had given in his evidence-in-chief. In particular, he was asked about his evidence that he had seen a “few people” that he knew when they had got to the Chalmers Street and Phillip Street intersection – being at a point in time before the male said: “I'm going to have a piss”. Mr Johnson said that he knew two people at that location from the “Redfern community” and their names were “Monique, and I forget the other girl’s name”. After further questioning, Mr Johnson confirmed that it was Monique that he had seen at some point before the robbery:

“Q. Are you suggesting that you saw Monique before your bag was taken?

A. Yeah.

Q. When you saw Monique before your bag was taken, did you have any interaction with her or any discussion?

A. I just said, "Hello".

Q. Did Monique say anything back to you?

A. We exchanged pleasantries like neighbours do.

Q. Did you talk to the other woman that was there?

A. She was in earshot of the conversation.

Q. Did you know her as well?

A. Yeah.

Q. Did you chat with her at all?

A. No.

Q. At any stage, did you indicate to police, when you spoke to them on that day, that you had seen Monique and another woman before your bag had been taken in Phillip Street?

A. Yeah, I think so.

Q. Because you agree that nowhere in your statement from 11 January 2022 is there any mention of you seeing these two women in Phillip Street?

A. I must have forgot. No. It's hard to walk past someone's house. I said, "Hello". They live here. I got robbed there, just past her house.”

66. Mr Johnson then gave the following evidence:

“Q. When you say that you got robbed just past her house, is that just past Monique’s house?

A. Yeah.

Q. How far past Monique's house were you when you got robbed?

A. Nine or ten houses.

Q. Are you saying that it's nine or ten houses away from Monique's house?

A. Yeah.

Q. Nine or ten houses away from Monique's house on Phillip Street?

A. In Douglas Street.”

67. Mr Johnson said that he had known Monique for ten to fifteen years prior to this incident. He maintained that after he had been robbed, he had said to Monique: “Did you see I just got robbed?” having seen Monique only a “very short time ... probably five minutes” after his bag had been taken. He denied (or did not think) that he had told Monique that he had been robbed on the corner of Pitt and Phillip Streets, maintaining instead that the robbery did not occur at that intersection.

68. Mr Johnson was then asked about certain matters which Monique, in turn, had conveyed during the course of the triple-0 call which she made. He doubted that he told her that the person who robbed him was a person named “Wayne”; he agreed that he may have told her the person was “Serb-looking”; he denied that he told her the person had medium length hair; and he denied that he said that the man after the robbery ran towards Chalmers Street down (i.e. northerly) towards Woolworths. Mr Johnson can be heard on the triple-0 recording stating the name of the acquaintance who robbed him as “Wayne somebody” and that the person was “Serb or something”.

69. In respect of the photograph identification procedure that was undertaken by Mr Johnson, he agreed that he was given as long as he wanted to look at each individual photograph, he was told that the persons in those photographs may not be the person who robbed him, that he did not need to choose any photograph and that he had three occasions to look at each individual photograph. When put to him in cross-examination that the person he picked was the person he believed had robbed him, Mr Johnson replied: “I don't know”.

Wayne Carter’s evidence

70. Mr Carter gave evidence that he knew Mr Johnson and knew him as “Gordo”. He acknowledged that he ran into him outside Woolworths in Redfern in April 2022. Mr Carter said that he often visited the Redfern area because he had a girlfriend who lived on Chalmers Street. He asserted that he had last seen Gordo four to five years prior to that. He agreed as at January 2022 that he would visit his girlfriend in Redfern every now and then.

71. In cross-examination, Mr Carter agreed that he had known Mr Johnson from about 10 to 14 years ago. He agreed he would attend Redfern from time to time to see his girlfriend, but he could not recall exactly what he did on the day of the robbery. (Cell tower records show Mr Carter’s phone was in Waterloo that day at around the time of the robbery).

72. Unsurprisingly, Mr Carter denied taking Mr Johnson’s bag.

Monique Kriletich’s evidence

73. Ms Kriletich saw Mr Johnson on the corner of Chalmers and Phillip Streets. He had fallen out of his wheelchair. She asked him what had happened, and he said “he’d met up with this person… he was wheeling him home, back to his apartment. And the next minute, he said he’d grabbed… his bag, and he just took off.” [7] He had hit the top of his forehead, and it was bleeding. She helped him back into his wheelchair perhaps with the help of another person.

74. In cross-examination she confirmed that she had phoned triple-0 straight away when she saw what state he was in. She could not recall what way Mr Johnson had told her the assailant went. She assumed ways he could have gone. Ms Kriletich also confirmed that she only saw Mr Johnson once that day when she helped him up and called triple-0.

Appellant’s submissions on appeal

75. Mr McLachlan submitted that the “hook line” that the Crown at trial used opportunistically: “one man wheeled him and one man robbed him” and that later morphed into: “Mr Johnson’s evidence and the point he maintained, there was only one man who wheeled him and that was the man who robbed him”, was not a true reflection of the evidence.

76. Mr McLachlan submitted that Mr Johnson had given entirely inconsistent evidence which included imagined and reconstructed events and concessions consistent with there being more than one person who pushed him. He submitted Mr Johnson was incorrect regarding the time he went to the city, how long he was there, who he went with and how much money he took out of the bank. Mr Johnson provided a detailed narrative to police on the day of the robbery that included that he had conversed with Wayne, a man he knew, about “old times”, that “Wayne” had approached him just after he got out of the cab, telling him to “put his money away” at a time we know from the objective evidence, i.e. the CCTV footage timing, must have been prior to 5:02pm. At this time Mr Watts was filmed on CCTV footage near Redfern station, some five minutes’ walk away.

77. Mr Johnson did not identify Mr Watts in the identification procedure although his photograph was included. Mr Johnson described his assailant as having short, spiky, peroxide blonde hair, which Mr Watts did not have.

78. Even more significantly, the Crown catchcry of “one pusher, one robber” was contrary to Mr Johnson’s own evidence that he was unsure if he had been pushed by anyone from the Woolpack Hotel to Redfern Park, prior to arriving in Redfern Park, the place at which he says he was approached by the man who later robbed him, initially offering to push him.

79. The various versions of events given by Mr Johnson cannot be reconciled.

80. Mr Johnson concluded that he “could have” stopped at Redfern Park. This morphed in cross-examination to: “I was approached by someone in Redfern Park I thought I knew” (emphasis added) and that was the person who pushed him and then robbed him, and that that person had been with “his girlfriend” in the park before coming to Mr Johnson and pushing him. Mr McLachlan submitted these developing narratives were invented as Mr Johnson’s cross-examination proceeded.

81. Mr McLachlan submitted that Mr Johnson confabulated things such as seeing and exchanging pleasantries with Monique at a time before he was robbed. Monique denied seeing him at all until after he told her he had been robbed.

82. The CAD note made at 5:32pm and Monique’s estimate from Mr Johnson as to when the robbery had occurred (20 minutes earlier from 5:52pm) all point to the robbery occurring at a time when Mr Watts was already in Morehead Street 8 to 10 minutes’ walk away approaching his building as shown on CCTV footage of him approaching his building on Morehead Street at 5:32pm. Mr Johnson’s evidence that he had been robbed “just before, about 5 minutes before” he told Monique he had been robbed also suggests the timing to be more likely after 5:32pm.

83. Mr McLachlan submitted that the CCTV footage provided objective support for Mr Watts’ version of events, not Mr Johnson’s, and that the DNA evidence also provided objective support for a second pusher, being the “unknown male” whose DNA was found on the arms of the wheelchair.

Crown’s submissions on appeal

84. The Crown’s written submissions on appeal were built on a “Summary of Facts” that only cited chosen parts of the confused narrative Mr Johnson had provided to different people about what occurred that day. It ignored any parts of the contemporaneous versions Mr Johnson gave to police, to Ms Kriletich and in his signed statement that did not support the assumption that it was Mr Watts who stole the bag.

85. The written submissions treated as an entirely separate subject “Cross-examination of the complainant”. This regrettable approach sought to minimise and remove to a sidebar the concessions made by Mr Johnson that there may have been a second pusher. There were significant and successful challenges to his credibility and reliability. There was a fundamental problem with the multiple versions he had given about identification of the person who robbed him, including first recognising the person who robbed him as someone he knew, Wayne. He told Senior Constable Yeo that the person who robbed him had short frizzy blonde hair. An hour or so later he told Detective Sergeant Peebles the assailant had brown hair. In March 2022 he told police and that it was Mr Allinson who robbed him, and that he recognised him from the photo in the identification procedure.

86. The written submissions emphasised the many statements of this Court and the High Court regarding the jury’s role as the body entrusted with the primary responsibility of determining guilt or innocence, that the jury has had the benefit of seeing and hearing the witnesses, and the appellate court’s obligation to pay full regard to those considerations: M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [9]; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”) at [37]; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] and [66]; The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [7], Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170 (“Lee”) at [29]. Where the credibility of the complainant is of the utmost importance, and where there are inconsistencies in their evidence, considerable weight has to be given to the jury’s advantage in seeing and hearing the witnesses: ND v R [2017] NSWCCA 70; H**O v R [2023] NSWCCA 245. Only in an unusual case will it be able to be said that a complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence: Z (a pseudonym) v R [2022] NSWCCA 8 at [29]; JL v R [2024] NSWCCA 246 at [95]; Singh v R [2025] NSWCCA 34 at [91]-[93].

87. Focus was applied to the approach of the High Court in Pell at [39]:

“39. The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence (64), in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

88. The submission made was that “the appellate court proceeds upon the assumption that the evidence of a complainant was assessed by the jury to be credible and reliable”. It was submitted that Barney v R [2023] NSWCCA 85 at [19] and [20] is support for the proposition that where a witness is not found to be truthful this will often taint all of their evidence, but it is commonplace for a witness to be reliable in relation to some matters but less reliable in respect of others.

89. Drawing upon these principles, the Crown sought to argue that the complainant maintained that the person who pushed his wheelchair was the person who robbed him, and that “surrounding/tangential details” that the complainant got wrong can be put to one side and should not be treated as a matter that can shake the reliability of his account.

90. The Crown argued that matters such as how much money was stolen was a tangential detail. In circumstances where Mr Johnson gave four different accounts of how much money he had with him that was stolen, this could hardly be fairly described as tangential.

91. In its written submissions, the Crown focussed on the “unchallenged evidence” that Mr Johnson had been robbed, there had been a “violent event” and that he was “robbed of a significant amount of money” saved for his grandchild, and that as a disabled person he was obviously vulnerable, “putting aside the identity of the robber”. I interpolate that this submission only needs to be stated in the way that it was in the written submissions at [85] to see the fundamentally problematic nature of the approach taken by the Crown to this appeal. In a case where the issue is “who did it” the Court was repeatedly, in both written and oral submissions, asked to put aside the multiple inconsistent identification accounts given by Mr Johnson on the day he was robbed and in the accounts he later gave to police and to the Court.

92. The written submissions then seek to dismiss and minimise important aspects of Mr Johnson’s account as if they do not matter, such as his identification on the day to multiple persons including police that the person who robbed him was Wayne. That Mr Johnson told police eight months later, and four months after he ran into Wayne, that he had decided it was not Wayne who had robbed him, was characterised as showing Mr Johnson to be: “an honest witness who was not staunchly committed to the information he had initially given the police”. This series of events is more consistent with someone who was, at best, mistaken and confused.

93. It was submitted that Mr Johnson “never waivered from his account that the person who pushed his chair was the same person who robbed him” – ignoring the concession made by him that there may have been a second pusher and he could not recall if the person who spoke to him outside the Woolpack Hotel, Wayne, was the same person who later pushed his wheelchair, and the acceptance that contrary to other versions he had given, it was possible that a person pushed his chair from Chalmers Street across Redfern Street and into Redfern Park.

94. The Crown’s written submissions then sought to explain matters that were not the subject of evidence at all. It was submitted that Mr Johnson may have first told police about changing his mind about Wayne being his assailant at a time before the 28 August 2022 statement, without any evidence at all that was the case. Mr Johnson’s accounts that he was approached by someone when he got to Redfern Park (or when he was “in” Redfern Park) was described as “neutral” as to whether it was “in the vicinity of the park” or “just inside the park” – a sophist’s approach to what Mr Johnson had actually said. The whole mistaken identity of Wayne being the person who robbed him and how Mr Johnson knew it was him because, amongst other things, they had talked about “old times”, was downplayed to an “expectation” that “having formed an intention to rob the complainant, the applicant engaged him in a friendly chat including by going along with the complainant’s apparent mistake as to their prior association”. This is nothing more than a groundless assumption by the Crown.

95. The Crown’s written submissions sought to downplay the failure to identify Mr Watts in the lineup by stating that it was 39 days after the event and arguing, presumably on the author of the submission’s own apprehension and opinion, that Mr Watts looked different in the photo array – based on hard copy photos marked Exhibit Q, not the computer array that was provided to Mr Johnson to look at in March 2022 – concluding that it was a “long delay” for the photo identification and the “traumatic nature of the robbery” are why Mr Johnson did not identify Mr Watts. This does not explain why Mr Johnson positively identified another person, stating that other person was the person who robbed him. There was no suggestion in the Q and A that was part of the procedure that Mr Johnson had any difficulty in identifying the person who robbed him as photo 10, Mr Allinson, or that the time delay made it difficult for him.

96. The Crown then argued that the positive identification of Mr Allinson was of “limited relevance”, suggesting that the CCTV showing that Mr Watts pushed Mr Johnson before Redfern Park and at least part of the way in Redfern Park secures it was him who robbed Mr Johnson and the only question left was whether “there was a reasonable possibility that a second man took over pushing the wheelchair and robbed him”.

97. The submission was made that the DNA evidence as disclosed in the Agreed Facts was “essentially neutral” and, without any basis other than a guess, it was submitted that the “unknown male” DNA may have been Senior Constable Yeo’s without any basis to suggest that the prosecution would fail to remove from consideration the DNA of a police officer attending to and assisting Mr Johnson in his wheelchair.

98. Under the heading “Evidence supporting the Complainant’s reliability”, the Crown put entirely to one side that Mr Johnson had told police within hours of the robbery that it was Wayne, and that he described a man with blonde hair – a description Mr Johnson clung on to in his evidence before the jury – but noting that he told Detective Sergeant Peebles that the man had light brown hair when Detective Sergeant Peebles took the signed statement at 7:56pm. A generic description was given in the triple-0 call: blue t-shirt, black backpack, light brown hair, slim build and not tall. The submissions went on to argue that Mr Watts could have run to his home by 5:33pm but still have committed the robbery. In a footnote it is stated that in the triple-0 call, the time of 5:20pm was “estimated as the time of the robbery”. I interpolate that this submission is not a reasonable reflection of the facts as disclosed in the triple-0 call, the operator volunteering a calculated time of 5:20pm from the account being conveyed by Ms Kriletich of the robbery having happened “10, 20 minutes before” during a call that commenced at 5:52pm.

99. It was also submitted by footnote that variations in the description of the assailant such as the reference to peroxide coloured hair “more than 2 years after the event” did not undermine the complainant’s credibility as to the fundamental fact.

100. This submission completely fails to address the version given to Senior Constable Yeo within probably an hour of the event that Mr Johnson told him that the robber had blonde hair and this was recorded in Senior Constable Yeo’s notebook at that time. If anything, this contrary version of hair colour between what Mr Johnson conveyed in the triple-0 call, what he then told Senior Constable Yeo and what he told Detective Sergeant Peebles an hour or two later in the signed notebook statement suggests confusion, unreliability, or that he is possibly describing two different people.

101. Finally, it was submitted that the assessment of any inroads made into Mr Johnsons’ credibility in cross-examination was pre-eminently a question for the jury as the tribunal of fact: Davis v R [2024] NSWCCA 120 at [149], and the jury’s combined wisdom and experience should prevail in assessment of demeanour: Coleman v R [2025] NSWCCA 99 at [130].

Decision

102. As explained by Kirk JA in Lee at [31], proceeding on the basis that the jury assessed a complainant as credible and reliable is not the end of this Court’s task with respect to that evidence:

“[31] Thus, as the High Court went on to explain at [39], where it is alleged on appeal that a jury verdict is unreasonable or cannot be supported by the evidence, in a case such as that one (and this) the appeal court “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable”. That does not mean the complainant’s evidence must be accepted; the appeal court must consider whether “the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”: M at 494.”

103. There is no obligation as a result of Pell that this Court must proceed on the basis that Mr Johnson’s “account” must be accepted. Here there is a fundamental problem in that the only account that does not call into question the verdict is the evaluative summary of “one pusher, one robber”, a phrase introduced by Detective Sergeant Peebles, not by Mr Johnson, that entirely ignores the many contrary accounts of key matters such as the identity of the person, what the person looked like and the sum of money that he had stolen. [8]

104. Mr Johnson made multiple different adamant identifications of the person who robbed him. First, it was a man he knew – an associate, Wayne, he had known him for some years, he had blonde hair (to Senior Constable Yeo), light brown hair, Serbian or something (in the triple-0 call) and they had talked about old times (to Detective Sergeant Peebles). Second, it was Mr Allinson, the man in photo 10 in the identification array. Next, in his evidence at the first and second trials, it was a man with spiky, peroxide blonde hair “stuck up like a straw… it was all up… standing up and frizzy”. [9]

105. Mr Johnson has never identified Mr Watts as his assailant, despite his photo being included in the 2 March 2022 identification procedure.

106. Mr Watts did not have spiky, peroxide blonde hair. The CCTV footage of 11 January 2022 shows on that day that Mr Watts had medium length brown hair.

107. The unsatisfactory state of identification evidence was complicated further by the DNA evidence. The Agreed Facts based on the expert FASS Report regarding the DNA swabs taken of the handles of Mr Johnson’s wheelchair on 14 January 2022 stated that the major contributor was “unknown male”, not Mr Johnson, not Mr Carter and not Mr Watts. In the context of the issues in this trial it is not correct to refer to that evidence as “neutral”.

108. These are all factors that should have caused the jury to have a doubt about whether the Crown’s catchcry deployed in the closing address: “one pusher, one robber” was correct. The DNA evidence provided some support for the version of events provided by Mr Watts, that another man came along and took over the pushing.

109. Mr Watts took his dog out for a walk half an hour after he is seen, at a leisurely pace, to approach his building, finishing his drink before entering the building. He has a white singlet on when he goes out – unsurprising that he has changed, given it is January. He walks out in the same shorts and thongs to the same neighbourhood where it is said he just violently robbed a disabled man.

110. As outlined in this judgment, there are so many inconsistencies, inadequacies and discrepancies in the multiple accounts given by Mr Johnson that there is nothing reliable that I can accept to find beyond reasonable doubt that Mr Watts robbed him as the police allege. The objective evidence, such as CCTV footage, does not support aspects of Mr Johnson’s account(s). The CCTV footage does support Mr Watts’ account that he was pushing the applicant initially, stopped in Redfern Park for a few minutes, another person came along, Mr Watts left with the drink given to him, walked home – in 8 to 10 minutes – and was entering his building at about the time the robbery occurred.

111. Mr Johnson’s own timing, that he saw Ms Kriletich about 5 minutes after he was robbed, and her evidence that she called triple-0 soon after at the objectively established time of 5:52pm also supports a conclusion that the robbery occurred closer to or after 5:32pm. CCTV footage showed that by this time Mr Watts was already home.

112. Unlike Mr Johnson’s various accounts, Mr Watts’ description of the afternoon was the same from the beginning. This includes when he was first “doorstepped” by police on 16 January 2022 and could not have known that there was CCTV footage showing him pushing Mr Johnson. He was arrested and charged that day.

113. The investigation appears to have comprised little in those intervening four days and based on what was led at trial seemed overall to comprise only a focus on excluding Wayne Carter and Mr Allinson and nothing else substantive.

114. Of course, it is not up to this Court to simply substitute its own view of the evidence and so what the verdict of the jury should have been.

115. I have, as set out in this judgment, conducted my own independent assessment of the evidence both as to its sufficiency and quality.

116. I am satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. Given the significant problems with the evidence outlined in this judgment, they are not of the type that are capable of being explained away by the jury's advantage in having seen the witnesses give evidence. The problems are not based in the way the evidence was given. The problems are with the content of the evidence and its inconsistencies and inadequacies to begin with – inconsistencies and inadequacies that continued to perpetuate throughout the evidence given in the trial.

117. In those circumstances I joined with the other members of the Court in making orders giving effect to an immediate acquittal of Mr Watts.

118. MCGUIRE J: I have had the benefit of reading the draft judgment of Lonergan J. Having reviewed the record of the trial for myself I joined in the orders made on 20 August 2025 allowing the appeal. I agree that her Honour’s judgment identifies the reasons for my agreement with the orders.

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Endnotes

Tcpt, 16 May 2024, p160(4-11).

Tcpt, 16 May 2024, pp 165(42)-166(40).

Tcpt, 16 May 2024, p 176(25-30).

Ms Kriletich said she had known Mr Johnson for 15 years, “Just seeing him in the park and Woolworths and passing my home.” (Tcpt, 16 May 2025, p 114(28)).

Tcpt, 16 May 2024, p 68(49).

Transcript corrected to ‘reef’ following discussion with counsel (Tcpt, 16 May 2024, p 98).

Tcpt, 16 May 2025, p 117(11-15).

Mr Johnson gave multiple versions of the amount of money he had withdrawn. This is likely why the final form of indictment was changed from “$1,000 in Australian currency” to “a sum of cash”.

Tcpt, 16 May 2024, p 41-42