R v Williams [2001] ACTSC 48 (24 May 2001)

Last Updated: 29 January 2002

THE QUEEN v GUY BEVAN WILLIAMS [2001] ACTSC 48 ( 24 May 2001)

CATCHWORDS

CRIMINAL LAW - trial by judge alone - offence of armed robbery and attempt to pervert course of justice - unreliable evidence - evidence of persons criminally concerned and prison informers - warnings - whether corroboration.

Supreme Court Act 1933 (ACT), s 68C

Legal Aid Act 1977 (ACT), s 92(4)

Evidence Act 1995 (Cth), s 165, s 116

Williams v The Queen [2000] FCA 1868

Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204

Uniform Evidence Law, Odgers, 4^th Ed para 165.8

The Corroboration of Accomplices [1973] Crim LR 264

Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558

Doney v R [1990] HCA 51; (1990) 171 CLR 207

No. SCC 144 of 1998

Judge: Gray J

Supreme Court of the ACT

Date: 24 May 2001

IN THE SUPREME COURT OF THE )

) No. SCC 144 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

GUY BEVAN WILLIAMS

ORDER

Judge: Gray J

Date: 24 May 2001

Place: Canberra

THE COURT FINDS THAT the accused is guilty of the offence that on the 21^st day of November 1996 at Canberra in the Australian Capital Territory, he robbed Peta Davis and Kerry Hayes of $81,887.00 cash and at the time of doing so had with him a firearm.

THE COURT ALSO FINDS THAT between the 1st day of March 1998 and the 17^th day of August 1998 he did attempt to pervert the course of justice.

THE COURT ORDERS THAT:

1. The accused be convicted of these offences.

1. 1. The accused was arraigned before me on two counts. Firstly, on the 21^st day of November 1996 at Canberra in the Australian Capital Territory, he robbed Peta Davis and Kerry Hayes of $81,887.00 cash and at the time of doing so had with him a firearm namely a .22 calibre rifle. Secondly, between the 1st day of March 1998 and the 17^th day of August 1998 he did attempt to pervert the course of justice.

2. The accused pleaded not guilty to both counts.

3. The accused had previously been tried and convicted by a jury of these charges on 23 February 1999. His appeal against those convictions was successful and on 20 December 2000 the Full Court of the Federal Court ordered that he be retried.

4. On this retrial, the accused has elected to be tried by Judge alone. I proceed in this matter in accordance with the terms of s 68C of the Supreme Court Act 1933 (ACT) which is in the following terms,

"(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict."

5. Sitting as judge alone, I must include in my judgment the principles of law that I apply. Accordingly, I have directed myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. This direction is particularly important in this case as it is a retrial and certain evidence previously led has been ruled inadmissible and not led on this trial. I am only concerned with the admissible evidence.

6. I have reminded myself that the burden of proving the charge lies wholly on the Crown and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with his innocence, he does not have to prove it. It is the Crown that has to disprove it or show that it is irrelevant, otherwise the Crown will not have proved its case.

7. I keep steadily in mind that the accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes his guilt. I have regard, of course, to the standard of proof that lies upon the Crown and that the Crown must prove each and every element of the offence beyond reasonable doubt. Where I make a finding of a particular fact, or speak of being satisfied of any matter, I have reached that finding having been satisfied beyond reasonable doubt.

8. I may only find the accused guilty if I am satisfied that the Crown has proved each and every element of the charge beyond reasonable doubt. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of this charge, or I am unsure where the truth lies, then in those circumstances, I must find that the charge has not been proved to the level of satisfaction required by the law and must acquit.

9. In respect of the charges that the accused faces in this trial, the prosecution must prove firstly, in the case of the armed robbery, that the accused unlawfully took and carried away property of some value from the person of another in his or her presence or from under his or her immediate personal care and protection against his or her will either by force or by putting him or her in fear with the intention of permanently depriving the person of that property and at the time of so doing, having a firearm.

10. Secondly, the accused is charged with attempting to pervert the course of justice. That offence consists of the doing of an act which had a tendency to pervert the course of justice with an intent to pervert the course of justice. It is the tendency of the conduct which is decisive and it is irrelevant whether the conduct did or did not bring about a miscarriage of justice. This charge is connected to the first charge in the following way. The robbery occurred on 21 November 1996. On 22 July 1998 the accused was arrested and charged. The prosecution alleges that the accused arranged for Mr Travis Kirchner to give evidence on the accused's application for bail on 14 August 1998 that he, Mr Kirchner, committed the robbery. Mr Kirchner gave that evidence but retracted it after the intervening weekend. The prosecution says that evidence was false and that it was given with intent to pervert the course of justice. Mr Kirchner subsequently pleaded guilty to a charge of perjury in respect of the giving of that evidence.

11. The general circumstances concerning the armed robbery of the Commonwealth Bank at Fyshwick at about 9.40 am on 21 November 1996 are not in dispute, although both the Crown and the defence emphasise some differences in the witnesses' accounts as support for their respective cases.

12. The robbery was committed by a male person carrying a sawn-off firearm and a bag, wearing a beanie or balaclava over his face and dressed in white overalls. He jumped the counter and forced two tellers to fill the bag which he was carrying with money from the under-counter unit holding the Bank's excess cash. He robbed the bank of $81,887.00. He left the Bank in a stolen blue Mazda 626 hatchback registration no. YWR 148. That vehicle was noticed at 10.30 am abandoned outside 19 Hacking Crescent, Narrabundah.

13. Generally, because the perpetrator of the robbery was not identified by any of the witnesses to the robbery, the prosecution must look elsewhere to seek to establish the accused's guilt. Mr Thomas, counsel for the accused, sought to draw some positive aspects from the evidence of the circumstances of the robbery. For example, the preponderance of the witnesses spoke of a shotgun or sawn-off shotgun as being the firearm used. That, he said, was significant in that a weapon found at premises at 8 Yamba Place, Narrabundah, at which the accused was seen on the day of the robbery, was a sawn-off .22 rifle. Narrabundah is a suburb adjacent to the suburb where the robbery occurred. Likewise, the witnesses deposed to the overalls worn by the robber as "clean", "white" and generally unsoiled. The overalls found at the same time as the .22 rifle were soiled with some staining. Similarly, from the witnesses' descriptions, the bag used by the robber was a different bag to one the accused may have been seen with after the robbery. He also put some significance on the witnesses' description of the robber wearing sunglasses which he suggested may have been thrown away when the car was abandoned and the accused as a wearer of prescription glasses which he was unlikely to throw away.

14. Two of the witnesses compiled photo fit pictures of their sighting of the robber's face before he pulled the balaclava over his face. They, together with the general description of the offender given by the other witnesses do not exclude the accused from being the offender. I put the matter that way because of the caution with which I approach evidence going to identification generally. Section 116 of the Evidence Act requires that a warning be given as to the special need for caution before accepting identification evidence. I have regard to the need for caution both generally and in the circumstances of this case where the unexpectedness, the stress of the situation and the short time of observation affect and minimise the weight that might be given to this evidence of those who observed the robber. I also note that the witnesses who compiled the photo fit did not identify the accused from a photoboard containing the accused's photograph. At its highest, the photo fits might provide evidence of some resemblance to the accused, but I do not act upon it as identifying him as the offender or taking the issue of identification of the offender any further than saying that there is nothing in the descriptions of the offender by the bank staff and customers that would positively exclude the accused.

15. It must be said that all of the matters put by Mr Thomas, either singularly or collectively as to the circumstances of the offence, do not exclude the possibility or raise a sufficiently reasonable doubt so as to exclude the accused from being the perpetrator of the robbery, but I do, however, bear them in mind in my consideration as to whether, on the whole of the evidence, I should entertain that doubt. I add that for reasons that I touch on in a moment, the points made by Mr Thomas in respect of the objects found at 8 Yamba Place and their relationship with the robbery, have substance.

16. Mr Michael McDermott gave evidence that he saw the accused on that day coming out of Frome Street and turning into Sturt Avenue, Narrabundah. He says that the accused was carrying a navy blue sports bag with two red straps and was wearing dark blue track suit pants and top. Christina Feekin saw the accused coming out of a toilet at 8 Yamba Place, Narrabundah which it transpires was later that morning. There was some evidence given by Mr Darren Bennett who says that he picked up a person who looked like the photo fit picture of the man who committed the robbery. The photo fit picture was shown on television that night. He says the pick-up was at the instigation of "Jonesey" (a person who later figures in Mr Kirchner's alleged "confession"). He also says that the pick-up was from Bungonia Street, Narrabundah between 10.00 am and 11.00 am that morning. Having regard to the identification warning that I would give myself, and the fact that it only establishes that the man looked like the photo fit, I cannot see that the evidence advances the Crown case against the accused and do not regard it as doing so. The accused does, however, say that there was a "pick up" involving the robbery from his girlfriend's place in Bungonia Street, Narrabundah but says that it was Mr Kirchner who was picked up.

17. The significance of the accused being seen at 8 Yamba Place arose from a police search of those premises that occurred a week later. That search located a .22 pump action rifle, white overalls and some carbonised debris. Mr Thomas asked that I rule as inadmissible the evidence of the .22 rifle, the overalls and the carbonised debris on the ground of relevance. I have referred to the aspects of the evidence of the witnesses who saw the robbery to which Mr Thomas has particularly referred. There is certainly insufficient evidence to necessarily connect the items found to the robbery. However, in view of the accused's evidence of being at the Yamba Place premises on the day of the robbery, his evidence that he burnt a pair of running shoes at the premises and that he had worn a pair of white overalls which might likely to be found there, I cannot say the evidence was irrelevant. It does not, however, take the matter any further than that to which the accused deposes. There is no other evidence that would put the gun or the overalls as more than a possibility that they might be connected with the robbery.

18. The other Crown evidence of the accused's movements on the day of the robbery relate to the evidence given by his aunt, Kathleen Smith, where the accused attended at her place at Bibb Place, Greenway. She saw him with, she says, about $3,000.00 and in fact he gave her $1,000.00. What the accused is said to have said to her is in contest and I place no weight upon it, but on the accused's evidence, the money in the accused's possession was part of the proceeds of the robbery.

19. Whilst the prosecution submitted that the Full Court of the Federal Court had described the circumstantial case in this matter as "a strong one", the evidence surrounding the accused's involvement on the day of the robbery does not lead to an irresistible inference of guilt. In fact, the Federal Court said in considering the argument put on appeal as to whether the jury's verdict was unsafe and unsatisfactory,

"In our view, the circumstantial case of the Crown, bolstered by the evidence of confessions to Mr Kirchner, and the appellant's own uncle, was a strong one." (See Williams v The Queen [2000] FCA 1868 [77] (my emphasis).

20. On the evidence before me, I do not regard the circumstantial case as it related to the evidence of the robbery itself and what was known of the accused's activities on that day as being the only reasonable hypothesis consistent with the accused's guilt. This consideration means that it is necessary for me to examine with considerable care the other evidence implicating the accused and to take into account all of the factors affecting the reliability of that evidence.

21. Fundamental to the Crown case was the evidence of Travis Kirchner. Mr Kirchner says that he saw the accused on 22 November 1996, the day after the robbery, at Mr Kirchner's father's place. He said he arranged for a person to supply a shotgun to the accused and that the accused paid $1,000.00 for it. On 24 November 1996, he travelled to Sydney with his girlfriend, Maria-Fe Andrews, and the accused. They stayed in a hotel in Kings Cross and then moved to the Lansvale Caravan Park. They were joined there at some stage by the accused's girlfriend, Helen Hines. The purpose of the stay in Sydney, on Mr Kirchner's evidence, was to engage on a drug spree at the accused's instigation. At that stage, both Mr Kirchner and the accused were heavy heroin users.

22. Mr Kirchner says that at some stage he and the accused put the shotgun that the accused had acquired on a bus to Adelaide and they then flew to Adelaide to secrete the gun in Mr Kirchner's mother's house. That was done by breaking into Mr Kirchner's mother's house and hiding the shotgun under the floor boards in his mother's bedroom. They flew back to Sydney and continued their stay at the Caravan Park. Later, the accused overdosed and they left to stay in a motel in Liverpool. They returned to Canberra and stayed at a motel until, on 6 December, the accused was arrested for breach of parole. Mr Kirchner maintains that all of the expenses of this were paid by the accused. On the accused's arrest, he said that he and his girlfriend applied for Department of Social Security funds and caught a bus to South Australia and stayed there for a short time before obtaining more Social Security. They went to Melbourne and then to Tasmania. Later, on his return to Canberra, he was arrested for failure to report in terms of his bail conditions.

23. The accused, whilst admitting that he and Mr Kirchner went to Sydney, vigorously denied the fundamental premise of Mr Kirchner's evidence. In particular, he said that he was at his girlfriend, Helen Hines' place at 28 Bungonia Street, Narrabundah at the time of the robbery, having spent the night there. He said that at about 10.00 am he answered the door and saw Mr Kirchner breathing heavily, dressed in tracksuit pants and jumper and holding a large black bag. Mr Kirchner told him he had just robbed a bank. The accused's evidence as to what happened is as follows,

"What then happened? - - - I said to him, "Why" - "What brings you here?" And he said to me, "Can you still get the ounces of heroin in Sydney?"

Was there a discussion then about purchasing that heroin? - - - That's correct, yes.

What did he say to you? - - - He asked me what the ounces cost and I - at first I told him 9,000, but I put a bit of money on top of it. But then he said to me, "What if I get three?" and then I gave him the real price, which was 7,000 to 7,500.

And was there some arrangement struck? - - - Yes, he ...

What was it? - - - Yes, he asked me could I get three for 22,000? I said "certainly" and I said to him, "What's in it for me?" and he said he'll give me $1,000 plus a cut of the gear when I returned.

What do you mean by "gear"? - - - That's heroin, your Honour.

Did Mr Kirchner then do anything? - - - Yes. He was sitting in a single chair and he had the bag between his legs and I was on the two-seater and the coffee table was between us. He reached into the bag and pulled out a shotgun about that long, which is about 60-70 centimetres long, your Honour, and placed that on the coffee table. Then he started - back in the bag and started pulling out bundles of cash.

Now, might the witness have access to - pardon me a second. I think it's Exhibit AA, your Honour.

Just look firstly at photograph 1. Have you seen that weapon before? - - - Yes, that appears to be the shotgun, your Honour.

That exhibit might be returned.

Do you remember how the money was packaged? - - - It had rubber bands. It was in like bundles. Each bundle was probably about a centimetre thick and it had rubber bands around - well, there was many rubber bands. Like, I think every 10 notes there was a rubber band and then there was another rubber band around probably, say - I can't say. Every 10 - every 10 little stacks there was a rubber band and each little stack had a rubber band.

Was it the case that the little stacks were combined into larger stacks with another rubber band? - - - Yes.

Is that what you're - - - ?... Yes, yes.

Thank you. And were you given anything by Mr Kirchner? - - - Yes, he gave me five bundles.

And did you count that? - - - No, he counted it. But the way he counted it - he didn't count it like one at a time. He counted it like 5, 10, 15, 17, 23, like that.

Now, you're indicating something with your hands. But are you talking about he used the numbers in relation to single notes or bundles of notes? - - - He counted it by the bundle.

Bundle, thank you. And did anything happen after that? - - - Yes. He asked me if I had a spare pair of shoes and I gave him a red and white pair of Nike runners.

Right, and what was he wearing? - - - He had white and blue Adidas runners on that he took off and asked me to dispose of.

And did anything else happen after that? - - - He made a phone call.

Did you hear - were you in the presence - sorry, I withdraw that. Were you in his presence when he made the phone call? - - - Yes, I was sitting on the lounge, yes.

And did you hear any details of the conversation? - - - All's I heard was him give someone the address and said to hurry up.

What happened next? - - - There would have been about 20 minutes went past and then there was the sound of a car horn out the front and there may have been a knock on the door. I can't distinctively remember if there was knock on the door or not, your Honour, but I remember him saying that it was for him and he left.

All right. Now, had you formed an intention in relation to the agreement to purchase heroin? - - - No. At that moment, your Honour, I made a conscious decision that I was going to rort him. What I mean by rort him is I was going to rip him off or scam him. I was going to keep the money and tell him I got ripped off.

And what did you do after Mr Kirchner left? - - - I got myself together. I grabbed a blue sports bag, Adidas sports bag. I put the shoes he asked me to dispose of in the bag, a change of clothes and I wrapped the money up in an opaque shopping bag and put that in the bag as well, and then I went down the back lane to these dealers' place that I know where I scored a half weight."

24. It was the accused's evidence that he went to Sydney with Mr Kirchner to try to locate the drug dealer that he had told Mr Kirchner had "ripped" him off. His evidence as to the Sydney trip agrees with that of Mr Kirchner except that he vigorously denies having anything to do with the shotgun or the trip to South Australia. He returned with Mr Kirchner and their respective girlfriends to Canberra on 5 November 1996 and he was arrested the next day for breach of parole.

25. On 19 April 1997 Mr Kirchner was arrested for the offence of robbery with force and was remanded in custody to the Belconnen Remand Centre. He was convicted of that offence on 29 October 1997 and sentenced to six years imprisonment. He was sent to Goulburn Gaol.

26. In February 1998 at Goulburn Gaol, he met up with the accused and Michael Baker. In 1992 Mr Kirchner was involved in a robbery of the ANZ Bank at Dickson. He gave information to the police implicating Mr Baker in that offence. He says that fact was used by the accused and by Mr Baker to have him confess to the Commonwealth Bank robbery on 21 November 1996. His evidence was,

"Just don't say what you're concerned about, just say what was said? - - - Well, what was said to the best of my knowledge is that there would be nothing held against me in relation to Michael if I was to help Guy with the predicament that he was in.

All right. Now, when you say nothing held against you, what did you understand that to mean? - - - Well, I understood that to mean that I would not be punished for the fact that I had given Michael Baker up at an earlier date.

All right. What do you mean by "given Michael Baker up at an earlier date"? - - - Well, by me implicating him as my co-offender in the armed robbery.

That's the ANZ Bank armed robbery? - - - Yes, the ANZ Bank in Dickson.

All right. Okay. Do you recall any discussion about what would happen to you because of that? Because of your implication of him in the armed robbery? - - - Yes, I was told - I can't remember the exact wording, but I was told that the prospect of me staying alive in gaol after being, what was referred to as a dog, was not very good. I didn't have much chance of surviving in gaol.

And can you recall who said that to you? - - - Both - Michael and Guy both told me that."

27. As a result, Mr Kirchner says that he prepared two documents at the accused's instigation and with the accused's assistance. The documents were in Mr Kirchner's handwriting although he says that the accused provided drafts for him which were subsequently destroyed. The first was a "letter" to Mr Baker which bore the date 25.4.97, Mr Kirchner says that date was used to make it appear that it was written whilst he was in remand at Belconnen Remand Centre and before he saw the accused in Goulburn. He says that it was never sent as a letter, but was handed to the accused at about the time it was written in February 1998. That "letter" was in these terms,

"To Mick,

Hi there mate, How's thing's going? I hope you, Bim and Shelby are happy, well and in bright spirit's. Thing's are not going so good for me. Im presently in B.R.C, pinched on a robbery charge and some assault charges, but thing's could have been much worse. I'm just rolling with the punche's, doing my best. You would have been proud of me buddy, I got a good earn out there. Remember how much money we got out of the ANZ Bank in 1992, well I got almost eight time's that much from the Commonwealth Bank in Fyshwick last November. I did it on my Pat Malone, so I dident have to share it with anyone. I gave $10,000 in sling's, I gave Ricky $5,000 and this bloke named Jonesy $5,000 for a couple of car's, Do you know Jonesy? He sell's really good hammer around Woden. When I got the earn I pissed off to Sydney, I stoped reporting as I was reporting 3 time's a week. While I was in Sydney we were powering into the hammer, me, Maria and a bloke named Guy William's. When we got back to Canberra I found out that Guy was fucking my girl behind my back, Mick I can't believe that Guy would do that to me, after all I have done for him I took him to Sydney and I shouted him everything as he dident have any money and the cunt had the hide to back door me. I told Ricky about Guy back dooring me and Ricky is dirty on him as well, plus Ricky told me the cunt ripped off his and Dean's plant's. Ricky said, that if the Jack's ever look our way for the Commonwealth we will all say that, Guy told us that it was him that done the robbery on the Commonwealth Bank. Mick, I know that it is a bad action setting Guy up, if it ever come's to it, but fuck the arse, it was a bad action fucking my girl behind my back. Me and Maria ended up fucking off to South Australia for a few weeks, then we went to Melbourne and then we finished up in Tassy. Fuck we blew all the money in no time at all, but we had a mad time. Mick I fully had a mad taste of the good life ay. Well what about my girl, when the money was gone, she pissed off back to Canberra. I also returned to Canberra about 3-4 day's after Maria which was a very big mistake, as I ended up getting pinched 1 week ago. Well I guess that shit happen's ay. I always's seem to learn all of my lesson's the hard way.

Well I will sign off now mate, I will send this letter to Kim's place as I don't know you'r new address.

Take care

Your 5/8

Travis

~

PS Please say hello to Bim and Shelby for me."

It was Mr Kirchner's evidence that he never sent that letter but that it was retained by the accused.

28. At about the same time Mr Kirchner says he prepared a "statement" that bore the date of 12.1.98 and was in these terms,

"I Travis Kirchner, date of birth 21.7.74, am writing this statement to set out the fact's about a bank robbery that I commited on the Commonwealth Bank in Fyshwick Canberra in November 1996. I commited the robbery at about 9.35am on a Thursday, but I cant remember the exact date, it was the day after the American Presadent, Bill Clinton came to Canberra. I commited the robbery all by myself, nobody else was involved. The gun that I used to commit the robbery was a sawn off single barrel 12 guage shot gun, that I had owned for a number of year's. The getaway car's that I used were a blue Mazda 626 and a brown V8 Commodore that I didn't end up using. The 2 car's were stolen for me by a person that I only know as Jonesy, he's about 21 or 22 year's old, around 6ft 3 tall with short blonde hair, he lived in a flat across from Woden but I can't remember the address as I only went there once. He gave me the car's the day before the robbery by leaving them in the car park of a block of flat's behind the Shell Service Station at Manuka. I gave Jonesy $5,000 for the car's after I did the robbery and I have not seen him since. I only knew this Jonesy for about 2 month's and I met him because he used to sell the heroin. The clothing that I wore during the robbery, were a white pair of boiler overall's and a pair of blue and white Addidas runner's and a black balaclava and a pair of white surgical glove's, I was also carrying a black sport's bag On the morning of the robbery I arrived at the Bank in the blue Mazda 626 at about 9.25am, I reversed the car into the second parking space from the front door, I left the car idoling and I got out of the car carrying the black sports bag, the sawn off shot gun and the black balaclava were in the black sport's bag. I walked away from the Bank up the road, to make sure nobody seen the car I got out off, I was wearing sun glasses. I waited up the road for about 10 minutes and then I walked back to the front door of the Bank, at the first door I nelt down and put the balaclava on and got the shot gun out of the bag. I stormed into the Bank and over the counter behind the teller's. I yelled at the top of my voice, alright you's know the fucken drill, every cunt on the ground except the teller's, the teller's had to stumble back to their feet as they were half way down to the ground. I tapped the barrel of the gun on the metal money draw and yelled, I don't want the loose shit, get the fucken float out, all of you's get the fucken float, then I said, who's the head teller the women teller closest to me gave me a nod. 2 of the teller's got down and got the float out, the third teller, who was to my right and the head teller's right just stood there and dident move. The head teller went to put the float at my feet but I said, put it in the fucken bag. After both of the teller's put the float's into the bag I said, okay now I will take the loose money. They put the loose money into the bag and I left the bank the same way I came in, over the counter. As I walked out of the front door, still wearing the balaclava, I noticed there were 2 men standing at the front end passenger side of my getaway car, the blue Mazda 626, I said to them, fuck off and got into the car, it was idoling as I left it, I put it into drive and took off to the right to the end of that road, turned right, then left at the lights, right at the next light's, down past the Sportsman's Wearhouse, turned right onto Canberra Ave. Then left into Narrabundah. I dumped the car in a side street to the left of Griffith shop's. I got out of the car and I took the white overall's off and I put them into the bag with the gun the money and the balaclava, then walked toward's Manuka, where the V8 brown Commodore was at the flat's behind the Shell Service Station, but as I got close to Manuka I decided to catch a bus into Civic instead, when I got to Civic, I brought 2 half weight's of heroin and then I caught another bus to Ricky Bullock's place in Ainslie. When I got there Ricky was the only one there. I said to Ricky do you want to have a shot, he said yes, so I gave him a half weight and I said, mix that up. I told Ricky what I had just done. He was mixing us a shot I started counting the money. Ricky couldent belive how much money there was, neither could I for that matter. But at first I was making a mistake counting. I was counting the bundle's of $50 note's as $10,000 a bundle counted up to $120,000 before I realized that the bundle's of $50 note's were 5,000 dollar bundle's, so I had to start counting all over again. I counted all off the bundle's and most of the loose money. I was up to about $78,000 and I got the shit's with counting, so I grabbed the rest of the loose money and put it into the plastic bag with the $78,000 and figured that it was about $80,000 give or take a thousand. I told Ricky that there was $50,000 not $80,000 or so as there was. Ricky asked me for a sling so I gave him $5,000. It was about 11.00am when I got to Ricky's place. After counting the money I burnt the black sport's bag, white overall's Addidas runner's, balaclava and the white surgical gloves in Ricky's fireplace. I then left Ricky's place and took the gun and the money back to my place, when I got back to my place, I cut the gun up into little pieces with an angle grinder and I dumped the cut up gun in the garbage hopper behind the Festival Supermarket at the Ainslie Shop's. I buried the money in my back yard. I returned to Ricky's house as I had left my sunglasses there and when I got back to Ricky's house I seen Jonesy there so I gave him $5,000 for the car's that he had stolen for me plus I brought a five weight bag of heroin of him for $2,000. At the time of the robbery in November 1996 I was on bail for `other charges'. I was reporting to the Civic Police Station 3 day's a week. Because I had so much money and because of the fact that I was very Paranoid about the bank robbery that I had commited, I decided to piss off, so I went to Sydney about 1 week after the robbery. I stayed in Sydney for about 2 week's, then I returned to Canberra for a few day's, then I went to South Australia then Melbourne and then to Tasmania. At that time my x girlfriend Maria was with me. Maria and I came back to Canberra in late January to get the rest of the money I had left buried in my dad's back yard. I was going to Sydney almost every week to obtain heroin, I also went to South Australia 3 more time's before I got arrested in Civic, ACT in April 1997. I'm now in Goulburn Jail serving a 6 year sentence that I recived on the 29^th of Oct 1997 in the ACT Supreme Court. I have written this statement of my own free will no promise, threat or inducment has been offered to me to write this statement and if necessary I am prepared to testify in court that I have written this statement to set out the facts about a crime that I commited in November 1996 in Canberra ACT.

[sgd] T Kirchner"

Mr Kirchner says that "statement" was also handed to the accused at about the time that it was written in February 1998.

29. There are some things worth noting about these documents. One is the non-involvement of the accused in the events recounted in the "confession". That may be contrasted with the "letter" to Mr Baker which is at pains to explain why Mr Kirchner and an associate, Ricky Bullock, had it in for the accused and might be implicating him in the robbery.

30. It is also of note that both documents claim the disposal of the money by Mr Kirchner without reference to the money that the accused now claims he was given by Mr Kirchner. Either the loss of money (by way of a drug deal "rip off" without implicating the accused) could have explained more cogently the disappearance of all the proceeds before Mr Kirchner returned to Canberra or it could have provided a further reason for Mr Kirchner to have it in for the accused if the accused had "rorted" him as the accused maintains. Both the "confession" and the "letter" are at pains to neutralise any possible evidence that might come from an associate of the accused's and Mr Kirchner, Ricky Bullock, and implicate the accused.

31. The "statement" and the "letter" were attached to a handwritten affidavit which Mr Kirchner signed at Goulburn Gaol before a solicitor not known to him on 18 March 1998. He says that both the accused and Michael Baker arranged for this. Michael Baker, in the evidence that he gave, says that he did so and paid for the solicitor from monies that he was holding on the accused's behalf.

32. A few days before that affidavit was signed, Mr Kirchner wrote to his solicitor seeking advice about what he should do if he committed a crime and had not been suspected of it. He received a reply dated 1 April 1998 well after he signed the affidavit. The reply he received was as follows,

"Thank you for your letter dated 15 March 1998. I can assure you that any communication between you and I will be treated as solicitor client communication and therefore strictly confidential.

In respect to your question whether you should do anything about an investigation of any offence in which you may have been involved I must first of all remind you that the usual legal advice is that a suspect is not required to answer any questions and it is usually in their best interests not to make a statement or answer questions.

Having said that, it will usually be a matter for a person's own conscience as to what they want to do about revealing information to the police.

On the information that you have provided me it is difficult for me to give you advice as to what consequences may follow should you wish to speak to the police. As you know you are currently serving a substantial period of imprisonment. If the allegations involve a relatively small amount of money then there is some prospect that if charges were eventually laid (as a result of you contacting police) a Court could be persuaded to impose a concurrent sentence. If on the other hand it is a large amount of money (as you indicated it may be) then it is more likely that as it is an independent offence (that is not associated in any way with charges on which you have already been sentenced) then a cumulative sentence of imprisonment could well be expected.

I am not aware whether there is any police investigation involving you going on. If it is the case that the police suspect that you have been involved in a serious fraud or theft matter and they have sufficient evidence to tie you to the offence, then it may be in your interests - from a penalty perspective - to volunteer information. If they have no evidence and there is in fact no investigation current or planned, then it is entirely your own decision as to whether you want to "put your hand up" now and have it dealt with to make sure that it never comes up in the future.

Of course it is always of concern if the person who did not commit a crime is "Put in the frame". Without knowing anything about any investigations to which you refer, I cannot make any helpful comment. If you are aware that the police intend to charge an innocent person the law certainly does not require you to contact the investigating police and tell them that they have made a mistake and make admissions yourself, but it is a moral judgement for you to make. If there was any possibility that you were thinking about "Taking the wrap" for somebody else because you are already serving a sentence, then I would warn against that on the basis that you do not know what sentence could be imposed and you could in fact face the prospect of a substantially longer period of imprisonment.

I know that what I have said is probably not of much assistance to you. I have outlined the legal position - which simply stated is that you are not required to answer any questions or do anything at all. But I say again that this type of decision is a matter for your own conscience."

33. Mr Kirchner said that the accused took that letter after they had discussed it.

34. On 22 July 1998 in Sydney, the accused was charged by the police in respect of the robbery. At the time the accused had documents with him which he wanted to show the police but not hand to them. The accused was extradited to the Australian Capital Territory and on 28 July 1998 he referred police to his solicitor, Mr Michael Bartlett, and offered to make those documents available to the police if they contacted him. Later the same day, police sought to speak with Mr Kirchner at Goulburn Gaol. Mr Kirchner was not prepared to discuss the matter without seeing the affidavit, the letter and the confession. He did, however, tell the police that the weapon used was a sawn-off .22 that he had cut into pieces.

35. On 12 August 1998 police again attended at Goulburn Gaol and showed Mr Kirchner the "letter' and the "statement" and formally interviewed him about them.

36. In the course of that interview, Mr Kirchner gave unsatisfactory answers to a number of questions which, if he were the robber, he could be expected to be very certain about. He had in his written "statement" referred to a sawn-off single barrel 12 gauge shotgun that he cut into little pieces. When the police sought to interview him, he referred to a sawn-off .22 that he had cut into pieces and said that he had buried it. In the interview he said that he had given the weapon to someone else. His explanation of why he referred to a sawn-off shotgun in his "statement" and why he now said it was a sawn-off rifle was totally unconvincing as were his descriptions of the weapon and what he had done to it. He was quite unclear and contradictory as to the details of the getaway car and what he did with it. The details of his association with the supplier of that car were also unclear and unconvincing.

37. Mr Thomas pointed to the animated fashion which he described the actual robbery in the video of the interview which was played to me. I must say that, to me, that re-creation of Mr Kirchner's involvement in the robbery had a somewhat unconvincing aspect. I certainly did not draw from that interview that Mr Kirchner was confessing to a robbery that he had in fact committed rather, he appeared vague and indecisive in his answers and descriptions on important points.

38. On Friday, 14 August 1998, the accused made a bail application, in the course of which Mr Kirchner gave evidence on oath that he had committed the robbery. The "letter", the "statement" and the letter from Mr Kirchner's solicitor were all tendered to support his evidence. In the course of his evidence attempting to explain the differences between details in those documents and what he told the police in his interview a few days before, Mr Kirchner claimed that he needed medication. The matter was stood over the weekend and Mr Kirchner was remanded to the Watchhouse. In that time, he spoke to the police and retracted his confession and on the Monday returned to court. The accused withdrew his bail application.

39. I have referred to the letter from Mr Kirchner's solicitor being tendered in evidence on the bail application. Mr Kirchner's evidence about that letter was,

"What's that letter, Mr Kirchner? - - - It's a letter that I got from my Legal Aid solicitor, Martin Hockridge.

What date is on it? - - - 1 April 1998.

What's the substance of the letter from Mr Mockridge? - - - Mr Hockridge.

Hockridge? - - - The substance of the letter is I wrote to him asking him for a legal opinion about what I should do if I committed a crime and I hadn't been like suspected for it and someone else was and he explained to me that I'm not and I'm not obligated to say anything unless I want to on my conscience.

What crime are you writing to him about? - - - The armed robbery in Fyshwick."

40. Mr Thomas says that Mr Kirchner sought to say in cross-examination that the letter to the solicitor was written as part of the accused's scheme and at his direction. That was not his evidence. Mr Thomas took up and pressed Mr Kirchner's answer that it was a "fabricated letter". I do not understand Mr Kirchner's answers on this topic as indicating more than it was untrue as to his commission of the robbery. He certainly did not say it was part of any scheme. When pressed in cross-examination he said,

"Now, I put it to you very clearly that there is no purpose in the letter to Mr Hockridge unless it is the truth? - - - Well, that's untrue because that letter - does it or does it not implicate me in the armed robbery? Yes, it does. That's a perfect reason why if I wrote that and then later that was referred to, that goes against me and makes it look more like I'm guilty.

But you've given very clear evidence to the court that you never expected it to be disclosed. Correct? - - - Well, I never did, no.

And secondly, you have in fact sought to prevent it being disclosed? - - - That's correct.

It's a fabrication, isn't it? - - - It is not a fabrication, sir. I put it to you that ...

It's true, thank you? - - - It's a 100 per cent fact.

Thank you, it's 100 per cent fact ...? - - - It's a 100 per cent fact what I say. I'm not ...

Thank you sir? - - - No, I'm not finished there, excuse me."

In re-examination, Mr Kirchner reasserted the falsity of part of the letter. I deal with reasons why he wrote the letter in my discussion of Mr Baker's evidence.

41. By subpoena at this trial the accused sought to have the letter that Mr Kirchner wrote seeking that advice produced. Mr Kirchner, through the Legal Aid Commission, maintained that the document was subject to legal professional privilege. In cross-examination it became clear that Mr Kirchner had discussed its contents with the accused and had thereby waived his claim. I was satisfied in terms of ss 92(4) of the Legal Aid Act 1977 (ACT) that it was in the interests of justice that it be produced. The letter was admitted into evidence. I set it out:-

"Hello Martin how are you? I hope that everything is going good. I would like to take this opportunity to thank you for appearing on my behalf during my sentencing procedures on the 29^th of October 1997. Mr Hockridge you have alway's been a great lawyer to me and I have been reading over the letter that you sent to me on the 30^th October 1997 which was the day after I was sentenced and at the end of the letter that you sent to me you said that, you anticipate that the remainder of my non parole period will pass without incident for me and you wish me well upon my release. I have done a lot of thinking about what you have said and I would like to ask some legal advice from you about a crime that I commited in November 1996 where I obtained a large amount of money. I have heard that the police have got other suspect's for the crime that I have done. I am very unsure what I should do about this. I would very much apreciate you'r opinion as my lawyer and I trust that this letter will remain confidentuall between you as my lawyer and me as your client. I am seeking your opinion as my lawyer as I am worried about having a deep dark secret of this nature hidding in my closet. I would not like to have any complication's upon my release at the end of my non parole period. And I also would not like to see an inicent person get convicted for that crime. No body else has been charged. I would really appreciate you'r opinion. I hope to hear back from you soon.

Your's sincerely

Travis Kirchner"

42. In his submissions, Mr Thomas put great store on that letter as destroying the Crown case against his client. He said that Mr Kirchner had no credible answer to it and that it constituted a clear confession that it was Mr Kirchner who carried out the robbery. He pointed to Mr Kirchner's attempts to keep the letter confidential and his claim of legal professional privilege in respect of it. This submission does not take account of the evidence of the contents of that letter which Mr Kirchner gave on the bail application (see [39] supra). Further, Mr Thomas says that Mr Kirchner attempted to say that he had been directed and forced to write the letter by the accused and that this was the first time that this letter had ever been suggested as being part of the accused's scheme. However, that is not Mr Kirchner's evidence. It is true that the Director of Public Prosecutions in submissions on whether there had been voluntary waiver of the privilege suggested that the letter was written, as were the other documents, under a situation of "duress" but that was not adopted in evidence by Mr Kirchner. In fact Mr Kirchner was at pains to stress that he did not give the solicitors' reply to that letter to the accused. He said the accused "took" it.

43. The third person involved in these events was Mr Michael Baker. Mr Baker gave evidence for the accused at his first trial. His evidence on this retrial differed markedly. In the first trial he denied that he thought that Mr Kirchner had implicated him in the 1992 robbery thereby discounting Mr Kirchner's professed motive for making the "confession". He gave evidence that he received the letter to him set out in [27] of these reasons in March/April 1997 at his sister's place at 26 Vine Street, Tumut. Both those assertions supported the accused's contention that Mr Baker had given the letter that he received to the accused before the accused arrived at Goulburn Gaol and that the letter had not been written as a consequence of a threat that the accused or Mr Baker would make public to the gaol population the fact that Mr Kirchner had informed on Mr Baker. Although denying that he had threatened the accused, his evidence before me was otherwise to the contrary effect.

44. The evidence that Mr Baker gave in this trial supports in a very positive way the evidence of Mr Kirchner in connection with the reason why Mr Kirchner would have participated in the manufacture of a false confession. He said,

"Was there any discussion about redemption for the 1992 events? - - - Redeem himself. Travis Kirchner said something about for what he did wrong to me. Like, he - you know, about redeeming himself.

And did Mr Williams say anything about that? - - - He just said that no one had ever hurt him and that. You know, that no one will know that he'd done anything to me with the - like, assisting the police in '92.

I'm sorry, can you just say that again? - - - That no one would do nothing wrong to him and no one would know that he assisted the police for what he done to me in 1992.

Now, was it your understanding that Mr Kirchner was confessing to a robbery he had committed? - - - No."

45. Mr Thomas put it that Mr Baker had a significant motive for giving false evidence. His evidence was that he is facing charges of an armed robbery, assault occasioning grievous bodily harm and common assault. He understood that he had "a very big chance" of serving more time in prison. He denied however, that he expected to benefit and that his family, particularly his sisters, had consulted him that if he was caught out giving untrue evidence, he would go back to gaol.

46. He was obviously uncomfortable in giving his evidence. Mr Thomas says that he was clearly subjected to great stress and under great pressure to testify. Part of that discomfort can be attributed to the reason he gave for giving the evidence that he did give on the first trial. That reason was the bond formed between him and the accused, particularly the incident of almost dying together with the accused during an attempted escape from prison at Junee.

47. It is also the case that his reluctance extended to directly saying that the accused admitted to him that he had committed the robbery. He was asked in examination in chief,

"Did you have an understanding about who did commit the robbery? - - - Well, I could say who did yes, but ...

Right and who was that? - - - Guy, because of the police going to his family's place and that."

48. Mr Baker later said that what the accused said was,

"... that police had been to friends and families places and they were trying to get more information, or more evidence or whatever, on this actual robbery. And that there - at the time there wasn't a great deal of evidence and that he did it."

49. In cross-examination he was equally reluctant,

"And you said that you formed the view that Mr Kirchner wasn't responsible? - - - That's right.

And the reason you formed the view that the accused was, was because of the police interest in his family and relatives - his relatives? - - - Up until Silverwater and Junee, yes. Then when I got to Goulburn, when all this started coming up and that - yes.

You say that in Goulburn there was a discussion. Is that what you say? - - - M'mm.

And you say that the accused said he did it. Is that what you say? - - - Yes.

Now, firstly, can you remember the exact words of the conversation? - - - Not exactly, no.

Can you remember when it occurred? - - - Well, it was around just after these letters. I don't know whether it was a day, a week or a month.

Right? - - - I'd be lying if I answered it, you know.

Right? - - - I couldn't answer that."

50. Mr Baker stands in the uneasy position of a witness who is criminally concerned in part of the events giving rise to one of the charges as well as by his changed evidence putting himself in the category of prison informer. As well, he is a person who, on his own admission at this trial, has given perjured evidence in the previous trial.

51. In his submissions, Mr Thomas submitted that his evidence should be treated in the same way as that of Mr Kirchner's and be subject to very careful scrutiny and not be accepted without corroboration.

52. Although I appreciate and accept the generalisations which lie behind Mr Thomas' submissions, the respective roles played or allegedly played by Mr Baker and Mr Kirchner in the events require a degree of sophistication in appreciating the dangers of accepting their evidence.

53. The evidence of Mr Kirchner and Mr Baker is evidence which attracts the operation of s 165 of the Evidence Act 1995 (Cth) if this were a trial by jury. Mr Kirchner is a "witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings" (see s 165(d)). He is also an admitted perjurer. Mr Baker is also complicit in the charge of perverting the cause of justice. By reason of the evidence given by both alleging that the accused admitted that he had committed the robbery they are both "prison informers" (see s 165(e)). Mr Baker's evidence on this occasion is that he had given false evidence on the first trial of this matter. All those matters affect the reliability of the evidence that they gave and call for a warning that their evidence may be unreliable, a consideration of the matter that may cause it to be so and the exercise of a need for caution in determining whether to accept the evidence and the weight to be given to it (see generally, Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204).

54. The evidence of witnesses who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings is said to be potentially unreliable because of the witness' motive to exculpate or minimise involvement by transferring blame to others. The other general reason for regarding such evidence as suspect is the likelihood of revenge or antipathy to the person charged (Uniform Evidence Law, Odgers, 4^th Ed para 165.8 and see particularly the discussion The Corroboration of Accomplices [1973] Crim LR 264 at 265, 266, J D Heydon). Those matters apply with some force to the evidence of Mr Kirchner, but less so in the case of Mr Baker.

55. In the case of Mr Kirchner, it is the first of these reasons that has force. Mr Kirchner has, of course, everything to gain by reversing his role in the events which led to the charge of attempting to pervert the course of justice and in challenging the accused's assertions of Mr Kirchner's commission of the charge of robbery. I warn myself accordingly to exercise caution as to whether I accept his evidence and in the weight I might give to it.

56. In the case of Mr Baker, there is less reason to think that these matters would affect the reliability of his testimony. His evidence, however, on this topic is materially affected by the fact that he gave evidence for the accused on this topic at the earlier trial. When he did so, he may well have been said to fall into the reason given by Maule J in Mullins (1848) 3 Cox CC 526, 531 cited in J D Heydon's article,

"...it often happens that an accomplice is a friend of those who committed the crime with him, and he would much rather get them out of the scrape and fix an innocent man than his real associates."

57. By recanting that evidence and giving evidence to a contrary effect, he gives the lie to a reason that might be given for regarding his evidence as unreliable. Nevertheless, the effect of the reversal is to give his evidence the taint of prison informer by acknowledging a confession to the crime by the accused. That gives rise to a number of considerations identified by Deane J in Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 at 586,

"The evidence of a witness about an oral confessional statement allegedly made to him by an accused while the witness and the accused were incarcerated together in a prison is liable to be unreliable for a number of reasons. One such reason is that such evidence is easily concocted. Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it. Another reason is that it is likely that a "prison informer" will be of bad character. Another is the likelihood that a prison informer will be motivated to fabricate such evidence either by perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury."

58. In the case of Mr Baker's evidence, the most likely reason affecting the reliability of his evidence is the possible benefit that he might obtain in respect of the pending charges and a possible return to gaol. He expressed his reason for the change in his evidence as follows,

"Yes. And why have you changed your mind and you're not lying now? - - - Because I've only just been released from prison and the last, almost 2 years my sisters had cut me off. That's all I have, a couple of sisters. Since being out I've spoken to them, and I was - I was almost going to come to court and say that what I'd said last time was true and my sisters and friends of - at home said to me, "You know if you get caught out doing this, you know you'll go back to gaol", you know. And I spend most of my life in there and I just - I don't want to come to court lying and go back to gaol for lying in court and - I don't know, I just want to make a new chance of it. I've got work and - it's not easy doing what I'm doing though."

59. I am inclined to accept what he says about the reason for the change in his evidence. In cross-examination he made this response,

"It's been made clear to you, hasn't it, that if you don't give evidence today then your other matters may go badly for you? - - - Well, they're going - it's not going to make any difference I don't think on how they go, because it's up to the judge how - and myself, the way I put it across what I've been doing with myself. It's - my evidence alone is not going to help me go to gaol or not go to gaol. I'm just doing it because I don't want to keep coming into the courts and lying and getting caught up in it. My sisters are spinning out. They don't know what's going on. They've been dragged through the courts, they've been subpoenaed to courts. They didn't even know, you know. I'm just trying to get away from this scene."

60. Whilst I agree with Mr Thomas' observation that Mr Baker gave his evidence with the demeanour of a person under stress, I do not think that detracted from the force of what he was saying or that it made his evidence less compelling. I should also weigh against the motive that Mr Baker may hold of gaining some benefit for himself in respect of his changed evidence, the countervailing detriment that he might suffer should he in fact be returned to prison having given the evidence that he has. Whilst I bear in mind the reasons that may make Mr Baker's evidence unreliable, I am satisfied that it can bear careful scrutiny and I am satisfied that I can act upon it.

61. Whilst the general rule is that the evidence of accomplices does not corroborate each other, the rationale for that rule would seem to have little application in the circumstances of this case. In R v Pollitt (supra) at 600, Dawson and Gaudron JJ observed that the role was based in large part on the common interest of accomplices in minimising their involvement in the offence charged. They referred to the common interest as raising the possibility that they may have conspired to give an identical but false account. They went on to say,

"Thus, if there is no possibility of joint fabrication, as, for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required (see Director of Public Prosecutions v Kilbourne (1973) AC at p 748, per Lord Halisham). Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration. But there was no basis for any suggestion of joint fabrication in this case and, thus, there was no need for a direction that Denning and Jones could not corroborate each other."

62. I do not readily assume that Mr Baker and Mr Kirchner share a common interest in minimising their involvement in the offence of perverting the course of justice so as to jointly fabricate their evidence. In light of the earlier evidence given by Mr Baker that does not now seem likely. I give myself a direction that they cannot corroborate each other if that involves any possibility of joint fabrication. However, I consider that I can take into account any aspect of their evidence upon which no suggestion of joint fabrication can arise (cf R v Pollitt) and even if it is not directly corroborative by implicating the accused.

63. Mr Baker's evidence provides important support to Mr Kirchner's evidence in a material respect where there can be no suggestion that they were individually aware of the role it might play in their respective accounts. Mr Thomas strongly submitted that Mr Kirchner's letter to his solicitor seeking advice was a plain confession to the robbery. However, quite independently of Mr Kirchner's evidence, Mr Baker volunteered this in cross-examination,

"And as I understand your evidence this morning, it was that Mr Kirchner approached Mr Williams and you saying that he would confess. Is that correct? - - - Yes. Well ...

And - - - ... Well, that question that you just put to me last about - that's correct. He did approach and he said if he did do this, that and spoke to the solicitor and he wanted to know, because of the trouble I've been in and Guy - because we knew the system and sort of how it worked a bit and that - did we think that he would get any more time. And we - well, what I recall saying - what I believe if - with - he didn't have a real long criminal history. If he pled guilty and brought it forward and that, maybe the courts would see that he was remorseful and that he probably wouldn't get any more time. If he did, it would be no longer than one year than what he was currently serving."

64. That concern expressed by Mr Kirchner as to spending more time in prison supports the seeking by Mr Kirchner of advice from his own solicitor concerning that possibility. The fact as disposed to by Mr Baker that the accused and Mr Baker were advising him of the consequences of the "confession" not materially increasing his sentence provides a cogent reason for seeking that advice in the way that he did. Rather than making no sense on the Crown case, as Mr Thomas suggested, it is essentially consistent with it.

65. Mr Thomas severely criticised Mr Kirchner's evidence in a number of its aspects. He strongly made the point that the police investigation could have exposed flaws in Mr Kirchner's evidence. He referred to the defective security camera which could have provided better evidence of the timing involved, the weapon, the bag, the clothing and the existence of glasses worn. He pointed to the fact that there was no witness evidence to support Mr Kirchner's evidence concerning the trip to South Australia. These are matters that I bear in mind, particularly having regard to the scrutiny that I must give his evidence.

66. Also of concern in assessing Mr Kirchner's evidence is what is said about the guns. In Mr Kirchner's "confession" the weapon used in the robbery is described as a sawn-off single barrel 12 gauge shotgun. Mr Kirchner's evidence is that the day after the robbery he arranged for the sale of a shotgun to the accused for $1,000.00. Mr Thomas says that is inherently unlikely if, as alleged, the accused had used a sawn-off rifle in the robbery. It might be less likely if it was thought that the gun used in the robbery could be identified, say through the security film. However, I do not regard the supply of a shotgun as being so implausible as to reject it out of hand. Nor do I reject the evidence of the trip to South Australia to hide the shotgun although I consider that the hiding place may well have been known to Mr Kirchner. Those circumstances must also be balanced against the fact that the disclosure of the hiding place to the police occurred after Mr Kirchner has sought to withdraw his "confession". Up to that time the police only had reason to believe that the firearm used in the robbery was the sawn-off .22 rifle found at Yamba Place. Mr Kirchner had expressly revised his "confession" to say that the firearm used was a gun that fitted that description. This occurred after he had spoken with the accused's solicitor about a gun but before he had retracted his confession and on his evidence after the accused had told him that it was a .22 rifle. That circumstance casts doubt on why he should reveal something as potentially incriminating as the location of a shotgun unless what he says is substantially true.

67. Ultimately, I find these arguments and counter arguments inconclusive but they do not cause me to reject out of hand Mr Kirchner's evidence on these topics. Overall, I am satisfied that I can accept Mr Kirchner's evidence in its salient aspects, particularly as to the falsity of his "confession" manufactured and used for the purpose of the accused's bail application and as to the accused's explicit and implicit admissions to having committed the robbery.

68. The other evidence which I scrutinise with care is that of the accused's uncle, Mr Gordon Williams. He has a criminal history including a bank robbery for which he received eight years imprisonment. In connection with that offence, the accused refused his request that the accused give evidence on his behalf. He received four payments from the monies held by Mr Ralph Smith for a total of $8,250.00. Technically, he could be regarded as an accessory after the fact. He said that the accused had told him that he had robbed a bank but "they had nothing on him". He did not depose to that alleged confession at the committal hearing. I would not act on Mr Williams' evidence if it stood alone. But the possession of the money, and if I reject as implausible the accused's explanation for that possession, means that I might accept it as having some weight, although by itself I could not be so convinced of its reliability as to convict the accused.

69. Contrary to the submissions put by Mr Thomas, there is evidence which supports the testimony which may be unreliable in the sense that it renders that testimony more probable and implicates the accused by tending to show his participation in the crime (cf Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 211).

70. There is the actual receipt by Ms Kathleen Smith of $1,000.00 on the day of the robbery and the accused's possession at that time of a significant sum of money. There are a number of aspects to this evidence. I do not regard anything said by the accused to Ms Smith or her evidence as to it as something that I can rely upon. However, the accused's evidence is that he was at Ms Smith's place on the day of the robbery with a plastic bag of the money that he says Mr Kirchner gave him and that he gave his aunt $1,000.00 when she saw him counting the money. The fact that the accused explains this admitted possession of these admitted proceeds of the robbery as derived from his "rort" of Mr Kirchner only detracts from the corroborative aspect of this evidence if I accept that explanation.

71. Then there is the evidence of the accused giving his cousin Mr Ralph Smith $20,700.00 a few days after the robbery and Mr Smith's disbursement of all but $6,700.00 of those monies at the accused's direction. Mr Kirchner says that he learnt of payments made out of the robbery proceeds from what the accused told him. That would seem to be supported by the payments that Mr Kirchner had knowledge which one certainly would not expect him to know of if the accused had in fact "ripped off" a quarter of the proceeds of the robbery. That particularly applies to the $1,000.00 given to the accused's aunt, the money given to his cousin to hold and the money used to buy a car for the accused's girlfriend. Mr Thomas suggested that at the time Mr Kirchner was expressing his knowledge of those payments, that was information that could have come from the police. He places weight on the timing of Mr Kirchner's production of a list of what he says the accused told him as to the expenditure of the proceeds of the robbery. I do not regard that as sinister simply because it was not proffered at the time he decided to retract his evidence and when he says he did not know about the proceeds. In my view, Mr Kirchner's knowledge of these matters is supported by their actuality and those facts provide corroboration of his evidence.

72. As far as the accused was concerned, his evidence fitted all the known facts, but of its nature it could not be independently confirmed as to the points of departure from the evidence of Mr Kirchner. I regard the status of the accused's evidence as I would that of any other witness, but I particularly disregard any matters in evidence which might be said to go to the accused's discredit, or which might involve impermissible reasoning as to guilt. What was striking was the implausibility of his account of "ripping off" Mr Kirchner by telling him he had given the money to a drug dealer who had not returned with drugs. His evidence on that aspect was,

"What did you tell him? - - - I told him that I rang the dealer to come and meet me at Fisher Shops. I said the dealer came down, I gave him the money. He said he will be back in half an hour with the gear and I waited 3 hours and he never returned. And I said I rang his mobile several times but there was no answer and that I believed that the dealer had ripped me off.

And did you identify the dealer to Mr Kirchner? - - - Yes, I told him his name was Cosmo, that he was an Italian bloke from the Liverpool area in Sydney.

And did Mr Kirchner react at all to this? - - - He got very angry, your Honour.

And did he indicate anything to you about what he wanted done? - - - Yes, he wanted me to accompany him to Sydney to try and locate this dealer. And I had to agree, your Honour, because it would have looked too suspicious that I was ripping him off myself if I didn't agree to go with him.

Did you give Mr Kirchner anything at that time? - - - Yes, I gave him $750 back that - because he gave me the $1,000. And I explained to him that I purchased a half weight with the money that was missing.

And is the half weight and the $750 equivalent to $1,000? - - - Yes.

And what then did you do? - - - I made arrangements to see him every day after that and then I left."

73. And in cross-examination,

"But he knew, didn't he, you say that on this occasion you were going to get the heroin from Canberra? - - - No, I told him that Cosmo came down and said he'd be back in half an hour.

And he knew that that was an unusual arrangement? - - - Well, given how much heroin it was, I don't think he doubted anything."

74. Given the large amount of money involved, a story which required belief in the presence of a dealer from Sydney "coming down" to Canberra on that very day and being given such a substantial amount of money on the dealer's say so that he would be back in half an hour with "the gear", is just not in any way believable. I do not accept the accused's assertion that because of the amount Mr Kirchner would not have doubted anything. I also find the gloss of returning $750 of the $1,000 "commission" and purportedly accounting to Mr Kirchner for the half weight that the accused had purchased and subsequently used at Yamba Place as compounding that implausibility.

75. Quite apart from rejecting the accused's explanation as to his possession of the money, I take the view that the accused tailored his evidence to the circumstances which might be proved to explain the potentially incriminating evidence of the witnesses who saw him on the day of the robbery. I also consider the improbability of his possession of the "letter" allegedly written by Mr Kirchner. That is particularly so as Mr Baker now no longer supports that aspect of his evidence. Even when Mr Baker did support that possession, it had an air of implausibility given the prison censorship system and the lack of any record of it having been sent. Having regard to these observations, I again remind myself that the accused is entitled to the presumption of innocence and there is no onus upon him to prove anything. I approach my assessment of all the evidence in this case with that reminder firmly in mind.

76. What I do have regard to is that my rejection of the accused's evidence on these matters makes corroborative various aspects of the evidence related to the accused's possession of money after the robbery. I also consider that having regard to all of the matters to which I referred which might affect the evidence of Mr Baker and Mr Kirchner, I can safely rely upon their evidence as to the accused's involvement in the offences charged.

77. In the result, I am satisfied beyond reasonable doubt on the whole of the evidence before me that it was the accused who committed the armed robbery of the Commonwealth Bank at Fyshwick on 21 November 1996. In terms of the indictment filed and on the evidence before me, I am only able to find that a firearm was used and I do so without the particularity referred to in the indictment. I consider that finding can be made without amending the indictment.

78. Further, I am satisfied beyond reasonable doubt on the whole of the evidence before me that between the 1^st day of March 1998 and the 17^th day of August 1999 he attempted to pervert the course of justice by arranging for Travis Kirchner to swear an affidavit attaching false confessions to the robbery and, at the accused's application for bail on 14 August 1998, was party to Travis Kirchner giving perjured evidence.

79. I find the accused guilty in respect of both charges contained in the indictment.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 24 May 2001

Counsel for the Appellant: Mr R Thomas

Solicitor for the Appellant: Frank Wilson, Solicitor

Counsel for the Crown: Mr R Refshauge, SC

Solicitor for the Crown: Director of Public Prosecutions, ACT

Dates of hearing: 15, 20, 21, 23, 27, 28, 29, 30 March 2001, 2, 3 and 5 April 2001

Date of judgment: 24 May 2001