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District Court 18 February 2021

R v Itani

[2021] NSWDC 26

Assault & violenceTheft & property
ARMED ROBBERY JOINT CRIMINAL ENTERPRISE

Citation: R v Itani [2021] NSWDC 26
Court: District Court of New South Wales
Date: 18 February 2021
Judge: Mahony SC DCJ

Background

The accused was employed as a security guard on night shift at the Belmore Hotel in Sydney. On 2 May 2018, the hotel was robbed at gunpoint by an unidentified man who took $96,315 belonging to the hotel's operator, Monarch Hotels Pty Limited. The Crown did not allege that the accused was the armed robber. Rather, the Crown alleged that the accused participated in a joint criminal enterprise with the still-unapprehended offender.

The Crown's case rested substantially on circumstantial evidence. This included the accused's acquaintance with a Canadian visitor, Omar Saadallah, who had been in Australia around the time of the robbery, links to a former hotel manager who had since left the country, and the accused's conduct after the robbery, including giving police incorrect PIN numbers for his mobile phone and asking to have the phone returned to delete photographs.

Both parties agreed to a judge-alone trial under section 132(2) of the Criminal Procedure Act 1986. His Honour Mahony SC DCJ delivered a verdict following a full hearing of evidence from multiple witnesses, including police investigators, hotel staff, and expert witnesses.

  • Whether the Crown proved beyond reasonable doubt that the accused participated in a joint criminal enterprise to commit the armed robbery.
  • Whether the circumstantial evidence was sufficient to exclude a rational inference consistent with the accused's innocence.
  • Whether the accused's post-event conduct, including providing incorrect PIN numbers and requesting deletion of phone photographs, supported an inference of guilt.
  • Whether the lies told by the accused were capable of proving his guilt in the context of the overall evidence.

Decision

His Honour found that the Crown failed to prove its case beyond reasonable doubt. While the evidence gave rise to several matters of suspicion, suspicion alone is not sufficient to sustain a criminal conviction. For a conviction to be entered on circumstantial evidence, guilt must be the only rational conclusion available on the whole of the evidence.

The court accepted that a rational inference consistent with the accused's innocence remained open on the evidence as a whole. Specific pieces of evidence that might have pointed toward involvement, such as comments made to a co-worker about poker machines, and the manner in which the accused interacted with the robber during the incident, were each capable of innocent explanation or interpretation. The evidence of two hotel staff members, who gave accounts touching on the accused's conduct, did not materially advance the Crown's case for this reason.

Turning to the accused's post-event conduct, including giving police incorrect PIN numbers and asking for his phone back to delete photographs, the court acknowledged these were matters of suspicion. However, they did not, in combination with the remaining evidence, foreclose the inference of innocence. The court applied the applicable direction that, even where the accused's exculpatory statements to police were not accepted, if those statements might be true, an acquittal is required.

The lies the accused told were found to be of limited weight in the overall assessment and could not be used as proof of guilt. Taking all of the evidence together, the court was satisfied that the Crown had not excluded a rational inference consistent with the accused's innocence.

Orders Made

  • The accused was found not guilty of Count 1 on the Indictment: that on 2 May 2018 at Belmore, NSW, whilst armed with a dangerous weapon (a black pistol), he robbed Yilmaz Yildiz of $96,315, the property of Monarch Hotels Pty Limited (trading as Belmore Hotel).

Key Takeaways

  • A conviction founded entirely on circumstantial evidence requires that guilt be the only rational conclusion available; it is not enough that guilt is a rational inference if another inference consistent with innocence also remains open on the whole of the evidence.
  • Joint criminal enterprise liability, as addressed in McAuliffe v The Queen, requires the Crown to prove participation in the enterprise beyond reasonable doubt; the mere association of the accused with persons of interest does not satisfy that standard.
  • Post-event conduct that raises suspicion, such as providing incorrect access credentials to police or seeking to delete device contents, does not automatically foreclose an inference of innocence when considered alongside all other evidence.
  • Where an accused makes exculpatory statements to police, the court must acquit if those statements might be true, even where the statements are not affirmatively accepted as credible.
  • Lies told by an accused do not, of themselves, prove guilt; their weight depends on their significance to the central issues, and lies going to peripheral matters carry limited probative value.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (armed robbery)
- Criminal Procedure Act 1986 (NSW), s 132(2) (judge-alone trial)
- Evidence Act 1995 (NSW)

Cases:
- McAuliffe v The Queen (1995) 183 CLR 108 (joint criminal enterprise)
- Shepherd v The Queen (1990) 170 CLR 573 (circumstantial evidence; link-in-chain direction)
- Domican v The Queen (1992) 173 CLR 555 (identification evidence)
- R v Baden-Clay (2016) 258 CLR 308
- House v The King (1936) 55 CLR 499
- Davidson v R (2009) 75 NSWLR 150
- R v Riley [2020] NSWCCA 283
- Ghani v Jones [1977] 1 QB 693