R v Reed [2002] ACTSC 4 (19 February 2002)

Last Updated: 19 February 2002

The Queen v Craig Anthony Reed

[2002] ACTSC 4 (19 February 2002)

CATCHWORDS

CRIMINAL LAW - armed robbery - trial by judge alone - identification by stranger victim at line up and in court - evidence of possible accomplice - effect of Evidence Act 1995 - need for caution in evaluating such evidence - no allegation of joint criminal enterprise - evidence consistent with description of clothing of possible accomplice and not of accused - finding of not guilty.

Supreme Court Act 1933, s 68B, s 68C

Evidence Act 1995

R v Alexander [1981] HCA 17; (1981) 145 CLR 395

R v Lee [2001] ACTSC 133

No. SC 108 of 2001

Judge: Miles CJ

Supreme Court of the ACT

Date: 19 February 2002

IN THE SUPREME COURT OF THE )

) No. SC 108 of 2001

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

CRAIG ANTHONY REED

ORDER

Judge: Miles CJ

Date of decision: 24 December 2001

Date of judgment: 19 February 2002

Place: Canberra

THE COURT FINDS THAT:

1. The accused is not guilty.

1. Craig Anthony Reed pleaded not guilty to a single count of armed robbery on 11 December 2000. The trial took place from 17 to 19 December 2001 by judge alone. I was satisfied that the conditions for trial by judge alone had been met: see Supreme Court Act 1933, s 68B (the Supreme Court Act). On 24 December 2001 I found the accused not guilty. I said that I would give reasons later. These are the reasons.

2. The prosecution case was that the accused and another man, Simon Joel Baran, went to a car park at the rear of a shopping centre, known as the Lanyon Marketplace, at about 9.00 pm on 11 December 2000. They got out of the car and shortly afterwards the accused approached Ms Chantelle Manns, who was walking across the car park towards a rear entrance to one of the shops. She was carrying a purse in her hand. The accused asked her for the time. She did not reply. She entered the shop, made a purchase and came out a couple of minutes later. As she was crossing the car park to return to her car, the accused again approached, presented a knife, threatened her with the knife and demanded her money. She handed over the purse and the accused fled. It was part of the prosecution case that earlier in the evening, at the accused's house, the accused and Simon Baran had been heard discussing plans to obtain money, that they were absent from the house at about the time the robbery was committed, and that shortly after that time they returned to the house expressing their disappointment at the meagre proceeds of the robbery.

3. The accused's case was simple. He denied having anything to do with the robbery and denied any discussion with any person relating to a proposed robbery. He denied accompanying Simon Baran to the shops and denied saying anything about the proceeds of any robbery. His case was that he was in the house at all material times and that the first he heard of the robbery was when the police arrived at the premises the following morning.

4. The nature of the defence case meant that the fact of the robbery itself was never an issue, although no formal admissions were made to that effect. Some difficulty was encountered in Ms Chantelle Manns getting to court, as she was resident in the north-west of New South Wales. That difficulty meant that her evidence was given after Simon Baran had given his evidence and that the latter had to be recalled after Ms Manns.

5. A notable feature of the trial was the reluctance of many of the witnesses to give evidence. Also notable was the unusually poor quality of most of the evidence of those persons. Part of that may be explicable by the fact that some of them are or were regular drug users and, according to some of them, were indulging their habit that night, although they were at odds as to whether the drug in question was alcohol, cannabis or heroin. One of the witnesses, Mr Boban Milenkovic, was under the influence of heroin when he was in the witness box, and whatever it was he said in evidence was utterly useless. Another important potential witness who answered a subpoena departed the court before the end of the first day and did not return on either of the succeeding days. A warrant was issued for her arrest. At the time of preparing these reasons proceedings are pending under s 70A of the Supreme Court Act.

6. I should state my findings about the circumstances and location of the crime since they may be stated relatively easily and without reference to all the relevant evidence on the point.

7. The accused was living in a house at 147 Knoke Avenue, Gordon, which is just a few minutes drive from the car park in question. The major car park for shoppers is at the front of the shops. The car park where the robbery occurred is at the rear and access may be gained from it to the shops through a rear door. However, the major purpose of the rear car park appears to be to provide facilities for delivery of goods, and particularly for loading and unloading through a dock. There is also a car wash and mechanical workshop in the rear car park. Not unexpectedly, the rear car park is probably less well lit at night than the major car park at the front of the shops. Consistently with that, and with the evidence of Simon Baran and Ms Manns, there was nothing happening at the relevant time in or around the loading dock or the other commercial facilities nearby. No one apart from Ms Manns and the two men was present in the car park or adjacent areas at the rear of the shops at any relevant time.

8. Although various witnesses gave estimates as to the time at which relevant events occurred, they all stand subject to the objective evidence that a video camera in the shop showed Ms Manns entering and leaving the shop and it recorded those events as occurring at 8.54 pm and 8.56 pm respectively. There is no reason to doubt that the video time recording was relatively accurate. The robbery therefore took place at about 8.56 pm.

9. As already indicated, the accused was in no position to challenge the evidence of Ms Manns that she was threatened in the car park by a male person with a knife and thereby robbed of the purse and money she was carrying. She identified the accused in court as the person who robbed her. Her evidence as to identification both in court and in an earlier police line up was pressed and she was cross-examined at length on those issues.

10. Ms Manns said that she left her brother's house at about 9.00 pm to drive to the shops which were about 4 minutes away. She described the area where she parked at the rear of the shops as reasonably well lit. She was carrying a black leather purse containing coins to the value of about $20. As she was crossing the car park towards the rear door two men approached her, one of medium height, somewhat skinny and slightly taller than the other, wearing a cap. She said that she looked at him "directly in the eye". She said that he was wearing track pants of a waterproof or parachute type fabric. She thought that the trousers were red. She was firm in her evidence that, although it was only a matter of impression at the time, there were colours of red, blue and black involved. The other person, "very tall and lanky", simply stood back and said nothing. She did not take much notice of him. Although her words were that "two chaps approached me and asked me for the time", it is clear that it was the man in the cap who put the question. She replied that she did not have the time and proceeded towards the rear door. As she proceeded, she glanced over her shoulder and saw the two men walking back towards where they had come from. She entered the shop, made a purchase for about $8 and returned to the car park. Her evidence continued.

"What happened then?---I heard them come up behind me, 100 miles an hour.

What could you actually hear?---His track pants.

And what happened then?---He drew in front of me.

And what did he do?---Held a knife - knife to me and said, `Give me your fucking money'."

11. She described the knife as 20 to 30 centimetres in length with a black handle. She said that the knife was held under her chin until she handed over the purse. She recognised the man as the one who had spoken to her earlier, the shorter of the two. He ran "like a scalded cat" away out of sight. She got into her car and drove to her brother's place. Within five minutes the police were contacted. The case was then allocated to an investigating officer, Detective Constable Schmidt, at 9.22 pm.

12. Ms Manns attended a police identification parade on 30 March. She told the police then that she was not able to identify the man who robbed her amongst those who were presented in the line up.

13. In court she was asked whether she had seen her assailant again and she replied in the affirmative, indicating the accused behind his counsel in court.

14. Cross-examination concentrated on Ms Manns' recollection and description of the person who robbed her and on her identification of the accused in court. She volunteered evidence then that at the line up she was told "not to say anything unless she was 100 per cent sure". However she said that she did recognise her assailant then in the sense that she "had an idea" but was "not going to blame some poor bugger if it's not him" and wanted to make sure that she was correct. She agreed in cross-examination that she had never indicated to anybody before then that she thought she recognised the accused in the line up. She agreed with the Magistrate in the committal proceedings (apparently under cross-examination) that she was "not able to pick anyone out" or to "recognise that person". Also in cross-examination in the trial Ms Manns agreed that she had previously said to the police that the robber was wearing parachute tracksuit material pants and a red and black T-shirt. She reiterated that the man was wearing a cap.

15. A video tape of the identification parade was in evidence. A police officer is heard to inform Ms Manns that "the suspect may not be in the parade". That statement was patently untrue, but the misrepresentation did not operate to the detriment of the accused.

16. Simon Baran's evidence was that he was 22 years of age, staying at the accused's house. He knew the accused from school and as part of a group with which he was "hanging around at the time". Some others in that group were also staying at the house, notably Angela Koutis, who had two children with her. Ms Koutis was staying in a back room of the house with her then partner, Adam Thackeray. Samantha Crombie was also staying or living there. She and Mr Baran spent the night of 11 December 2000 sleeping on the floor together.

17. According to Simon Baran, the accused was using heroin around this time and on the evening of 11 December 2000 he appeared to Simon Baran to be "hanging out".

18. Simon Baran's account of what happened on the night is essentially as follows. He decided to go to the shops. Ms Koutis asked him to buy some toilet paper, chips and drink. He left her room and went and announced his intention to those in the lounge room. He and the accused left together with Simon Baran driving his own car. There were a number of vehicles in the front of the shops and he drove around to the back where he parked in a position which was of sight of the rear door to the shops. He and the accused got out of the car and began walking towards the door, the accused somewhat ahead of him. Suddenly he realised that he did not have enough money for what he needed to buy. He went back to the car and found some coins there. But he still did not have enough. He then telephoned Ms Koutis using his mobile phone to speak to her on her mobile phone. He told her that he was coming back to get more money. He had no sooner ended the call than the accused came running up shouting, "Go, go, go!". In a state of confusion Simon Baran drove off at high speed in the car. The accused told him, "I just rolled somebody". The accused produced a black purse and a knife, like a kitchen steak knife. The accused also said that he had only got $15 or something similar. Simon Baran was concerned about what he had been told but thought that there was nothing he could do about it and continued on to the house of the accused. There Ms Koutis gave him her keycard and the PIN number and he went back to the shops and bought what she wanted. On his further return to the accused's house immediately afterwards and in the presence of others, he berated the accused, calling him "a dickhead". Later in the night he once again left the accused's house with all present except Adam Thackeray, who remained to look after the children of Ms Koutis. They all went to a rap party at Griffith and returned in the early hours of the following morning.

19. Simon Baran said also that later the following morning before he left for work, he noticed in his car the knife which the accused had displayed to him after the robbery. He said that he threw it into some bushes in the garden at the front of the house.

20. He added that some days later he told the accused to get rid of the purse as someone was bound to have informed on them.

21. In his evidence in chief Simon Baran described the clothing worn on the night of 11 December 2000, namely the accused in black parachute pants and himself probably in baggy green Nike pants with a white or red singlet.

22. Subsequently, Simon Baran was charged with being an accessory after the fact of the robbery and he was sentenced by the Chief Magistrate to two years imprisonment, suspended on a recognizance, it being noted that he would co-operate for the purpose of giving evidence against the accused.

23. The prosecution put forward as a reliable witness Benjamin Justin Toner, aged 23 years, also one of the temporary residents of 147 Knoke Avenue on 11 December 2000. But in my view he was not an impressive witness. He used the phrase, "I don't know" as if it were a punctuation mark. I had the firm impression that he was torn between his oath to tell the truth and his wish not to say anything that might have serious consequences for him or anyone else. That impression did not change in the light of subsequent evidence given in the trial by other witnesses. According to Benjamin Toner there was a lot of bourbon drinking going on and people were talking about the need to get money in order to "score" since they had not been using heroin that day. There was talk amongst the accused, Simon Baran and others about how to get the necessary money for that purpose. He described the conversation in these terms:

"And how did they talk about - what sort of means did they talk about, getting the money?---I don't know, not like - not working for it or anything like that. I don't know, maybe going about, I don't know---Going without?---Going about it, I don't know, in some way, I don't know. I don't know. In sort of like, I don't know, getting it with, I don't know, ripping someone off or doing something to get it easily, talking about getting it easily."

24. Benjamin Toner noticed that the accused and Simon Baran at some stage were no longer present. This was at a time when shadows were falling across the Brindabellas. Half an hour later the two other men came back into the lounge room. They seemed uptight, with the adrenalin running. They were talking about something that had been done that was pretty far out. Benjamin Toner could see that something had happened and he asked them and they answered in the plural and said something like they had ripped off some woman. Everyone was there in the room when they said it.

25. Ms Koutis said in her evidence that she had met the accused only when she moved into his house. She and her partner were paying board of $50 per week or per fortnight. During the evening she was in her room with her partner. She asked Simon Baran to go to the shops to get some toilet paper and other items which she could not remember, perhaps milk. At this stage it was pretty dark, about 9.00 to 9.30 pm. She gave Simon Baran a "little bit of money", how much she was not sure. Later, whilst she was still in the room she received a call on her mobile telephone (No 0419 489 136) from Simon Baran on his mobile telephone. He said only that he did not have enough money and was coming back to get more. About five or ten minutes later he arrived and she handed him the money in the bedroom. Later she went with the others to the rap party.

26. The other evidence of relevance of Ms Koutis was that she learned of the robbery for the first time when the police woke her up on 15 December 2000. She also said that on 17 December she saw Simon Baran with the police and that he was showing them where "the knife" was. She had not seen that knife before. Ms Koutis agreed that a Vodafone telephone account, in evidence as Exhibit N, showed a call to her telephone at 9.18 pm, although she could not identify the number from which the call originated. Ms Koutis impressed as a reliable witness, subject to the usual limitations of memory and observation. She hardly implicated the accused.

27. Adam Thackeray said in his evidence that he was living with Ms Koutis and Benjamin Toner at 147 Knoke Avenue after having been evicted from elsewhere. He said that he stayed in the bedroom all night leaving only to "grab a cigarette" at one stage. He said further that a couple of days later police arrived and that some constable had a knife. I gained the impression that Adam Thackeray was being deliberately evasive in order not to implicate himself or anyone else in the offence.

28. Similarly, Cameron Alexander Graham did not give much evidence of assistance. He said that he was watching television at the Knoke Avenue house, hanging around, might have gone to the shops, could not remember if Simon Baran went out or did not go out, could not remember what he said to the police until he read his statement in the witness box. Having thus refreshed his recollection, he thought that he had gone down to the shops to get toilet paper for Angela. He thought he may have gone with Bobby and the accused in Bobby's car. He agreed in cross-examination that he spent most of the evening with the accused in the accused's room listening to music and maybe smoking cannabis. Again, as a matter of impression, I could not decide whether his confusion was genuine or contrived.

29. The person Bobby to whom Cameron Graham and other witnesses referred was Boban Milenkovic whom I have already mentioned. The less said about his evidence the better. So unimpressive a witness is seldom encountered in the courtroom.

30. The evidence of the investigating police may be summarised briefly. The principal investigator was Detective Constable Graham Schmidt. He interviewed the accused on 15 December 2000 after a search warrant had been executed at the premises. The accused in general denied knowing anything about a robbery on 11 December 2000 and maintained that he had been at home all that evening until going out to the rap session with Boban Milenkovic.

31. Constable Lesa Gale was present at the execution of the search warrant on 15 December 2000. Two days later she received a telephone call from Rachel Ritson/Reed, sister of the accused. As a result she went to 147 Knoke Avenue. There Ms Ritson/Reed pointed out a knife in a lavender bush at the front of the premises. Constable Gale noticed that Simon Baran was sitting in a chair in the living room and, as she walked into the house, he walked out. Police took possession of the knife and it was tendered in evidence.

32. Rachel Ritson/Reed was also called in the prosecution case. On 17  December 2000 she became aware that the house at 147 Knoke Avenue was being occupied by an unexpectedly large number of people. She went there. She saw Simon Baran who mentioned something to her about a knife and indicated the lavender bush. He said to her, "You realise that before I show it to you, the knife will be covered in your brother's fingerprints and you might want to get rid of it". He also indicated that the accused would go straight to gaol on the strength of that fingerprint evidence. Ms Ritson/Reed then saw the knife in the bush. She immediately contacted the police and 20 minutes later Constable Gale arrived as already described.

33. There was also admitted into evidence in the prosecution case the transcript of the evidence of Samantha Crombie given at the committal on 6 June 2001. That evidence was of potential significance in the trial. Ms Crombie told the Magistrates Court that she was 15 years of age and one of the residents of 147 Knoke Avenue. During the afternoon of 11 December 2000 she heard a conversation between the accused and Simon Baran in which there was discussion of the need to pay $200 to the father of the accused by way of bond. She had previously been told by the accused that they would be removed from the premises unless they paid the $200 bond to his father. Simon Baran had said that he would park his car where it could not be seen. This conversation was in the lounge room. She was not part of it. There was no one else in the room.

34. She further told the Magistrates Court that later, when it was getting dark, she saw the accused and Simon Baran leave in Baran's vehicle. They returned some 20 minutes later. She was watching television. The accused said "I only got $15 out of it". He appeared "pissed off". He was holding a small black purse. Later she went with the others to the rap party at Griffith. The next day the accused said to her that he needed to get rid of the purse and picked it up off the stove where it had been sitting. She walked off to have a shower. Later she went to Simon Baran's car to retrieve her clothes and she saw Simon Baran cleaning the car and holding a knife some 20 to 30 centimetres in length with a black handle. He threw the knife into a bush in the front of the house. In cross-examination she agreed that she and Simon Baran were "quite close" and that they had been drinking and smoking cannabis that evening. She said that the accused was wearing red pants at the time.

35. At the end of the evidence for the prosecution I formed the tentative conclusion that, although not necessarily impressive, Simon Baran had presented as a credible witness in the light of the rest of the credible parts of the prosecution case, including the evidence of Samantha Crombie given in the committal proceedings. The accused, on my assessment of the evidence, had a "case to answer". I did not and was not asked to address my mind to the question whether on the prosecution evidence alone there was a reasonable doubt as to the guilt of the accused: cp R v Lee [2001] ACTSC 133.

36. The accused gave evidence in his own case. He said that he was wearing blue trousers with red stripes on the outside of each leg but he could not remember the jumper that he was wearing that night. He said he was not wearing a cap. In fact he claimed that he had never worn a cap. He said that he had already injected heroin that day and was sleepy. He said that he did not own the knife identified as that found in the lavender bush but had seen one like it when travelling in Simon Baran's car to get heroin. He did not know why he did not tell the police about that knife. He denied speaking to Samantha Crombie about a bond or needing $200 to give to his father. He said that he had about $40 in cash on the night, left over from $100 given to him by his father the night before and after buying heroin. He denied having any conversation with Samantha Crombie about a purse, although, in the way the evidence was elicited, he did not get to denying that he had indicated that he had only $15 after the robbery. He denied any conversation about going to the shops or going anywhere with Simon Baran or saying that they had robbed someone. He said that he went to the rap party with Boban Milenkovic in the car belonging to the latter. He said that he did not know of any robbery until he woke with a police gun in his face at 9.00 am on 15 December 2000.

37. The accused was no more impressive as a witness than was Simon Baran. However, like that of Simon Baran his evidence was not inherently incredible. The extent to which the evidence of the accused was to be accepted depended largely on weighing it up against other evidence which might be more readily accepted.

38. The accused's father also gave evidence. He acknowledged that his son was at the time a heroin addict and that as a father he did not wish to abandon his son simply for that reason. Hence he provided a home and financial assistance in the hope that that would enable the son to continue disassociating with his former associates. He said that the accused had spent some time away from Canberra and had returned only about two and a half weeks before 11 December 2000. There was an arrangement that the accused pay rent for the house but it came to an end shortly after the accused moved into the house. Mr Reed senior visited the home on the morning of 11 December 2000.

39. I have no difficulty in accepting the evidence of Ms Manns, Rachel Ritson/Reed and Mr Reed senior. There is no doubt that Ms Manns was robbed at about 8.56 pm on 11 December 2000 by one of two men who were in the carpark at the rear of the Lanyon shops. One of those men was not seen by Ms Manns to do anything to implicate him in the robbery. One of those men was Simon Baran. It is important to recognise that the prosecution did not rely on joint liability, although there was evidence of a preconcerted plan on the part of the accused and Simon Baran to rob someone in order to get funds either for heroin or to pay a rental bond. In the absence of a prosecution case reliant upon joint liability it was not open to me to approach the case on the basis that it did not matter whether the person who held the knife at the throat of Ms Manns and demanded money was the accused or Simon Baran. In the way the case was presented, the prosecution had to prove beyond reasonable doubt that that man was the accused.

40. It was submitted, as one might expect, that the evidence of Ms Manns identifying the accused had to be rejected for the usual reasons that support a warning to the jury, or even keeping such evidence from the jury, because of its prejudicial effect.

41. I accept that the in-court identification would probably not have been allowed before a jury and that its probative value was low for the usual reasons. I do not accept that the evidence of Ms Manns as to her identification of the accused at the line up has no probative value. I place little weight on the fact that it was not objected to, since it did not flow directly from any question Ms Manns was asked. However as a tribunal of fact I think it important to remember that a witness takes an oath to tell the truth and the whole truth and for that reason I do not see why relevant evidence should be suppressed or disregarded because it is not responsive to the particular question which precedes it.

42. I have not considered, because I was not asked to do so, whether the evidence relating to the line up follows the dictates of the High Court in R v Alexander [1981] HCA 17; (1981) 145 CLR 395. Again as a tribunal of fact, it seems to me odd that a witness should be instructed not to identify a person in the line up as a person seen at the scene of a crime unless the identifying person is "100 per cent sure" of the identification as Ms Manns said. That instruction is not dictated by Alexander and is contrary to common sense and experience. It also seems to me odd that a witness should be given to believe that the suspect "may not be" in the line up, when in fact the suspect is so present. In fairness to Constable Schmidt, the video records the words as "If you are not able to recognize the person with reasonable certainty, you should say so." Preferably, the witness should be told not to assume that the person whose identification is in question is necessarily in the line up. However nothing seems to turn on that in the present case.

43. Where I think that the evidence of Ms Manns is of greater significance is in relation to the clothes worn by her assailant and, in particular, her evidence that the person was wearing a cap. When recalled after Ms Manns had given her evidence, Simon Baran gave evidence to similar effect, namely that it was he who was wearing the cap and not the accused.

44. It was submitted that the evidence of Simon Baran should be approached like that of an accomplice. I am conscious of the warnings that used to be given to juries in such circumstances and that in a trial without jury the judge must continue to give a similar warning to himself or herself: see Supreme Court Act, s 68C(3). However, it may now be appreciated that the strength of the warning that was usually given was such that a jury was not likely to accept it as a prohibition against conviction unless the evidence was sufficient, apart from the evidence of the accomplice, to establish guilt beyond reasonable doubt. That of course was not the law. And in any event I am not sure that an accessory after the fact is an accomplice or regarded as such for the purpose of the warnings that used to be given. No authorities were cited and I have not looked for any. On his own evidence and on the prosecution case Simon Baron was not a person who participated in the robbery but who gave assistance and support to the accused afterwards.

45. In any event the common law is supplanted on this matter by the Evidence Act 1995 (the Evidence Act), as on so many other aspects of the former law of evidence. It is clear that Simon Baran is in one of those classes of witnesses whose evidence may be unreliable because, on the evidence of other witnesses, he may be so closely connected with the offence in question that he had much to gain and little to lose by distancing himself as far as possible from the accused's actions with which he might otherwise have been associated. On the other hand, it must be recognised that experience in the world, if not in the courts, indicates that there are few who know as much about the commission of a crime as those who participate in it. As the tribunal of fact in this case, I reject the stereotype of the accomplice witness as one whose evidence is inherently worthless. In the result I approach the evidence of Simon Baran with considerable care as required by the Evidence Act, but without any preconception about any substantial lack of reliability. Indeed, Simon Baran's evidence about what the two men were wearing may be exculpatory and tends to support the defence case. It needs to be given very serious consideration.

46. I accept the evidence of Ms Ritson/Reed about how she was shown the knife in the bush by Simon Baran. But that evidence is ambivalent. It is consistent with Simon Baran being knowingly a party to the use of the knife and hence the robbery. On the other hand, the mere disclosure of the knife is also consistent with Simon Baran's story that his role was limited to being an accessory after the fact, a role which in itself might have caused him to worry about the knife being in his car and its implicating him as either having given assistance after the event, or, worse, as having a more serious role than the true circumstances warranted. Further, the evidence of Ms Ritson/Reed has a particular impact in that Simon Baran told her about the accused's fingerprints being all over the knife thus making the accused a quick and certain candidate for prison. In the light of the rest of the evidence that seems to me likely to be the action of one who is more particularly concerned to shift the load of blame onto the other person than one whose role is confined to being an accessory after the fact.

47. The evidence of Samantha Crombie before the Magistrate is of particular potential importance. If what she said is accepted, then there is a clear case of preconcert between the accused and Simon Baran to get money by robbery and, further, of that plan being consummated during their absence from the house. However, Samantha Crombie did not give evidence in the trial before me. If she had, assessment of her credit as a witness could have been crucial, but, as it is, I am not prepared to accept that her evidence before the Magistrate should be accepted where it is contradicted by other reliable evidence in the trial. There is other evidence, but mostly from unreliable witnesses, which tends to support some of what Samantha Crombie said. That evidence is flimsy and does not condescend to persuasive detail. The possibility cannot be rejected that there may have been some confusion on the part of the witnesses as to who it was who spoke of the low yield of the robbery, whether it was the accused or Simon Baran or both. However, basically because I had no opportunity to assess her as a witness, I am not able ultimately to accept the evidence of Samantha Crombie before the Magistrate on matters of controversy.

48. There are other curious aspects of the evidence upon which it is not necessary to come to any conclusion. I refer for example to the objective evidence of a telephone call to Angela Koutis at 9.18 pm. The timing of that call is consistent with it having been made well after the robbery at about 8.56 pm. The evidence as to what Simon Baran did afterwards is curious in other respects. He said that he obtained Ms Koutis' keycard and PIN number but did not say how he used them. It is difficult to accept his evidence that, knowing that the robbery had occurred, he returned to the shops to purchase the items she had requested. She did not give any evidence that he did in fact do so.

49. Ultimately what leaves me in a state of doubt, in the context of the above, is one simple issue of fact. Ms Manns had sufficient opportunity to observe her assailant that she thought she could recognise him at the line up and in the courtroom. But she also said that he was wearing a cap at the time of the robbery. She could hardly have been mistaken about the latter. The accused in his evidence said that he never wore a cap. One approaches that evidence with some scepticism since, having heard Ms Manns give evidence, he may well have known that it would suit his case to say so. He was shown to be unreliable on other matters. But the evidence of Simon Baran, who was not likely to know that it was an issue, was that he himself was wearing a cap. He could not remember whether the accused was wearing a cap. The evidence about the colours of the assailant's clothing is more consistent with it being that of the accused than of Simon Baran. However, ultimately I cannot see how the prosecution can get around the doubt raised by the evidence that the assailant was wearing a cap and that it was Simon Baran and not the accused who wore the cap. That doubt is, in my mind, of sufficient magnitude to constitute reasonable doubt as to the alleged guilt of the accused and he was found not guilty accordingly.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 19 February 2002

Counsel for the Prosecution: Mr K Archer

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Ms E Ryan

Solicitor for the Defence: Ryans Barristers and Solicitors

Date of decision: 24 December 2001

Dates of hearing: 17, 18 and 19 December 2001

Date of judgment: 19 February 2002