IN THE DISTRICT COURT AT NORTH SHORE CRI-2011-044-000724

NEW ZEALAND POLICE Informant

v

SHANNON LAING PARKER Defendant

Hearing:

16 September 2011

Appearances: Sergeant P McKenzie for the Informant M Utting for the Defendant Judgment:

4 October 2011

RESERVED JUDGMENT OF JUDGE D J McNAUGHTON

[1]

The defendant, Shannon Parker, is charged with burglary of an unoccupied

beach house at 14 The Southern Isle, Omaha on 7 February 2011. There is no issue that a burglary occurred and a co-offender arrested at the scene was the principal prosecution witness.

The issue I have to determine is whether the defendant,

Shannon Parker, was also present and involved in the burglary and whether that is established beyond a reasonable doubt. [2]

The alleged co-offender is Julian Lemmon who had met the defendant,

Shannon Parker, through his sister. He said on the evening of 6 February he texted the defendant because he was bored and feeling depressed. She came to pick him up from Snells Beach and brought him back to The Flintstones restaurant at Warkworth where she was working. Mr Lemmon’s evidence was that the defendant provided

POLICE V PARKER DC NSD CRI-2011-044-000724 4 October 2011

him a meal at the restaurant and then drove him home to her address at Point Wells stopping at the Mobil Service Station in Warkworth for petrol and a pie. He said they were drinking beer and Woodstock mixes purchased earlier in the evening from the wholesalers at Warkworth. [3]

Mr Lemmon’s evidence was that the defendant suggested carrying out a

burglary of the RD6 restaurant near Point Wells, and another local establishment called The Diner in order to steal cigarettes and the defendant was aware that a door was left unlocked at The Diner. Mr Lemmon’s evidence is that he agreed to drive the defendant’s station wagon so that she could carry out the burglaries. He said that the defendant was dressed in a grey hooded sweatshirt, black track suit pants and a balaclava and that she also took with her a chisel and jemmy bar in a black school bag. He said the defendant’s pit bull terrier was also in the car. [4]

Mr Lemmon’s evidence is they drove to RD6 and the defendant told him to

wait in the car which was parked a couple of hundred metres away at the side of the road while she tried to break in. He said he then received a text message to come and pick her up further up the road and the defendant told him that she was not able to get in. [5]

He said they drove back to the defendant’s address at Point Wells and again

he dropped the defendant off, this time near The Diner. She told him to go back to her place and she would text or call for him to come and pick her up. He said five minutes after arriving at the defendant’s house she asked him to come and pick her up because she could not get in. He said he was asked to bring a chisel and jemmy bar from the laundry and when he drove back to pick up the defendant he gave her the tools. He said they had a few more drinks and then went for a drive into Omaha and the defendant mentioned a house in Southern Isle. [6]

Mr Lemmon’s evidence is that they drove to Southern Isle, which is a

cul-de-sac, and the defendant pointed out a house on the right side which looked unoccupied, as did the whole street. Mr Lemmon’s evidence was that he waited just around the corner. The defendant got out of the car carrying a black backpack with

jemmy bar and chisel. He said he waited in the car because he wanted nothing to do with it. [7]

After a period of waiting the witness’ evidence was that he walked a couple

of hundred metres to the house and saw the defendant on the deck by a ranch slider. She took him around the side of the house to show him a window which had been jemmied open and asked him to climb in to unlock the ranch slider. The witness said he refused and at that point the defendant entered the house. He described the window as 20 feet off the ground. Looking at the photographs that was a gross exaggeration in relation to the height of a window on a one storey beach house and certainly a strong indicator to me that Mr Lemmon has some form of diminished intellectual capacity. Asked to demonstrate, using the height of his body as a guide, he indicated just below his chin. He said there was also a table which had been moved off the deck to underneath the window. He was unable to recall whether he had assisted with that. He said he was given the jemmy bar and chisel and left the scene and hid in some bushes half way down the road. [8]

Mr Lemmon’s evidence was that while he was in the bushes the defendant

tried to ring or text him but he did not answer his phone. He said he was found by two security guards who took him back to their car and waited for the police. He said after that he was taken back to the house and noticed that the sliding door was open but the defendant had left. [9]

In cross-examination Mr Lemmon confirmed that his sister and the defendant

jointly owned the car. He said he was upset that day because he had received a text from his girlfriend to say that she was pregnant and he was concerned that he would not be able to provide for a child. Mr Lemmon acknowledged that there was another person at The Flintstones restaurant whom he had met once before. He thought her name was Kim but acknowledged that he could have been mistaken as to her name. The witness acknowledged that he had discussed with the defendant the possibility of doing some work for Peter Vitali on his dairy farm at Kaukapakapa and that he had worked for him in the past.

[10]

The witness was unclear about some of the details. He did not recall going

back to Snells Beach after the restaurant closed that night to pick up some clothes but acknowledged that that could have happened. He thought that when they were leaving the restaurant the defendant was wearing a green top and jeans but when it was suggested that she was still wearing her Flintstones uniform said he could not remember much. [11]

Shown a scrap of paper with an 0800 number on it the witness recalled that

that evening he had left a message for someone to ring him who had no credit on the phone and so had given a number provided by the defendant. [12]

The witness acknowledged that he could have arrived at the defendant’s

address at about half past ten. He denied that there was another woman present, that the woman had earlier been at The Flintstones restaurant, he said that he could not recall that. When it was put to the witness that evidence would be given to say she was there he replied “well I, yeah, I guess but I don’t recall it”. [13]

Shown a spreadsheet of data extracted from the defendant’s cell phone the

witness acknowledged that there was no record of any text messages to his phone between 9:30 pm and 1:20 am. He said the time of the texts to pick the defendant up from RD6 would have been well before 1:20 am. The witness was asked at page 34, line 27:

[14]

Question:

Well I put it to you that she didn’t text you to come pick her up from RD6?

Answer:

Then who did?

Question:

Well I put it to you that she wasn’t at RD6?

Answer:

Then where did she go?

Again the witness was simply unable to understand what was being put to

him. He was unable to grasp the suggestion that he had fabricated his evidence on these two aspects. His answers were naive and straightforward and I find it almost impossible to accept, given his intellectual limitations, that he was making this up.

[15]

There seemed to be some confusion in the witness’ mind about the bag

containing the jemmy and chisel. He said in cross-examination “we picked her up from RD6, she didn’t have the bag” he didn’t see that at all. He said after dropping the defendant off at The Diner he returned to her home and then received a phone call. Again, shown the schedule of text messages the witness conceded that there was no record of text messages during that period. He said the defendant claimed that she had sent him text messages before she called which he had never received. Later in cross-examination the witness said she did not have a chisel or jemmy at The Diner or RD6, just the house at Omaha. [16]

[17]

Asked at page 37, line 32: Question:

But you don’t find it strange we don’t have any record of those text messages?

Answer:

I do yeah.

The obvious answer to the question was that the text messages were never

sent but that does not seem to be a possibility which entered the witness’ mind and again it seems to me that demonstrates his intellectual shortcomings. [18]

The witness denied borrowing the defendant’s car to visit friends at Omaha or

taking the defendant’s phone with him in case somebody rang on the 0800 number. He denied leaving his cell phone at her address on the table. He said he had his cell phone with him the whole time. The witness denied coming to the defendant’s house with a person called Glenn who was introduced to Ms Parker and her woman friend sitting out on the deck smoking. He denied returning to the house to get his cell phone and driving off. Pressed on the issue the witness was asked at page 40, line 20: Question:

Well some of the other details you can’t quite remember can you?

Answer:

No but I know that what you’ve just told me never happened.

[19]

The witness acknowledged that he knew the defendant did a paper round at

about 2 o’clock in the morning but denied asking to borrow her car until that time. He denied telling the defendant that he had a friend living near the golf club. [20]

Shown the schedule of phone calls and text messages the witness

acknowledged a call to his cell phone from the defendant’s cell phone at 00.50 am showing a call duration of 1 minute 28 seconds. He said he could not recall that but was adamant that he had not answered the phone when he was in the bushes. Referred to the schedule he acknowledged he must have answered the call but could not recall where he would have been at the time. The witness acknowledged that the defendant had rung him asking where her car was but that was at a later stage when he was in police custody. Mr Lemmon acknowledged that he was familiar with Southern Isle and used to mow a lawn in that area and that he knew they were mostly holiday homes. [21]

Asked to confirm the defendant’s clothing he said a grey hoodie, track pants,

trainers, he was not too sure about the balaclava, a backpack and a blue wind breaker jacket. He did not recall any gloves. He said as he was waiting in the car near the house at Southern Isle he heard the noise of a window banging. He said it sounded like a window being hit with a jemmy bar or a stone and it was pretty obvious. He said when he got to the house the window was open and that is when the barbecue table got moved around. He suggested the window was already open which was in conflict with his evidence-in-chief where he described seeing Ms Parker open the window. [22]

It was suggested in cross-examination that Mr Lemmon had not immediately

named his co-offender when caught by the security guards, but his evidence was “I think I did and it was before they walked up to the house.” He said the police were there about 20 minutes later. [23]

The witness said he was shown around the back of the house by the

defendant and she pointed out an escape route. That is consistent with photographs of the back of the section which show a gate leading to a walkway which provides

access to the beach a block away. He said he noticed when he returned to the house with the security guards that there were two small side tables outside by the deck. [24]

Evidence was given by an eye witness, Byron Matheson, who was with his

girlfriend at her address in Darroch Slope adjacent to the Southern Isle. He said he heard a car pull up around 12:30 to 1:30 am across the road. He said one person got out wearing white gloves, a dark coloured hoodie and blue jeans. The witness said he was 20 to 30 metres away. The person got out of the passenger side. He said he could not tell whether it was male or female and the person was carrying a blue backpack. He saw the person walk into Southern Isle. [25]

He said this person circled the house and was out of sight for some time, and

then 10 to 15 minutes later another person got out of the driver’s seat who was male. He saw this second male go to the left hand side of the house by the deck and then two to three minutes later came across the road and ducked into some bushes. He said he ran outside and alerted two security guards of what he had seen in the bushes. He said the male in the bushes looked quite frightened and had a crow bar with him. [26]

In cross-examination the witness described the person getting out the

passenger side as tallish, five foot ten to six foot and wearing white gloves. He said he could not tell whether the person had anything across their face but the hood of the sweatshirt was up. In cross-examination the witness said he knew Ms Parker and her mother from running cafés in the local area but did not recognise the person getting out the passenger side as Ms Parker, but said in general terms the person getting out the passenger side could have fitted her description, page 82, line 1:

[27]

Answer:

From the first person that got out of the car and then hearing her name getting called out, it sort of describes and matches a person of getting out of the vehicle.

Question:

So are you saying it could have been her? recognise her but it could have been her?

Answer:

Oh yeah yeah that’s what I’m saying.

You didn’t

Christopher Martin, the manager of Insite Security based at Warkworth, gave

evidence that he received a phone call at about 12:40 am on 7 February 2011 at his home at Omaha Beach, a couple of minutes drive from the Southern Isle. He said in

Darroch Slope he met one of his staff, Carl Newton, and then he noticed a white Daewoo station wagon which he recognised as Shannon Parker’s vehicle. He saw a dog in the back seat which he recognised as the defendant’s dog. After speaking with the eye-witness Matheson he located Mr Lemmon hiding in the bushes and found a screwdriver and jemmy bar on the ground. He described Lemmon as crouched down and quite frightened.

He asked him “where’s your mate” and

Lemmon’s reply was “Shannon Parker”. [28]

Mr Martin was cross-examined about this discussion with the witness

Lemmon. Counsel put it to the witness that he had recognised the vehicle with Ms Parker’s dog inside it and then approached the house calling out her name effectively suggesting to the witness Lemmon who his co-offender might be. Mr Martin on reflection was sure that he spoke to Lemmon initially who told him that it was Shannon Parker and it was after that returning up the street that he saw the vehicle which he recognised as Shannon Parker’s vehicle with her dog inside it. The witness said he then phoned Sergeant Haughey and that was about ten minutes after his arrival but he could not be sure of the time because he was not wearing a watch. [29]

In cross-examination Mr Martin confirmed that although there were security

cameras in operation around Omaha they were not working on this particular evening. He said he was directed by Sergeant Haughey to keep observation on Ms Parker’s address at Point Wells and after a couple of hours there was an alarm activation on Omaha Flats Road which he decided to check out in case that was related to the earlier burglary. He said enquiries revealed that it was a false alarm, but on leaving Omaha he noticed a red ute driving towards Warkworth at high speed with two occupants. However, once he caught the vehicle at Warkworth he was able to see that neither of the occupants was the defendant Ms Parker. [30]

A resident at Omaha Beach, Kerry Bentley, located a black ski mask at

around 1.00 pm on 7 February directly opposite the walkway down to the beach. He said it was entwined in the kelp at the high tide line, and later that day, 50 metres north in the same relative position in the tide line, he found a hair tie which he then passed on to Mr Martin. He was told by Mr Martin to keep a look out for white gloves, and said two days later he noticed a white glove travelling across the Omaha

causeway and when he stopped to investigate he located two gloves in that area in the gravel on the side of the road. [31]

Clearly the balaclava was discarded by the offender after the burglary, having

run down the walkway at the back of the property to the beach. There was no DNA material found in the balaclava due to submersion in sea water, but the finding of the hair tie at a similar point on the high tide line just 50 metres away is reasonably strong circumstantial evidence that the person who discarded the balaclava discarded the hair tie at the same time. Surveillance photographs from the Warkworth Service Station earlier in the night show the defendant with her hair tied back and that is another piece of circumstantial evidence in the case against her. [32]

Sergeant Bede Haughey said in the early hours of 7 February 2011 at 1:30 am

he received a phone call at his home address from Chris Martin of Insite Security and he travelled to Omaha. Sergeant Haughey arrested Julian Lemmon for burglary, who was then handed over to Constable Morning for interview. Sergeant Haughey tasked other staff members to patrol the Omaha area searching for the defendant. He directed Chris Martin to return to the defendant’s address at Point Wells and keep observations on her house in case she returned and he stationed another security guard to take up the position on the causeway again for the purpose of intercepting the defendant. [33]

Sergeant Haughey then travelled to Point Wells and maintained observations

of the defendant’s address with Chris Martin. He said five minutes after Mr Martin left the scene to attend the alarm activation at about 4:30 am he noticed the defendant’s dog come out of the house to the main entrance (the dog having been returned by the police some time earlier) and at that point saw the defendant walking across the road to her house. She was arrested for burglary. Sergeant Haughey described her clothing as a thin blue parka, blue jeans and running shoes. The jeans up to about thigh height and shoes were wet. [34]

Sergeant Haughey said it was possible to walk across the causeway from

Omaha to Point Wells by crossing the causeway and then following the foreshore. He said this track was popular with walkers at low tide. There were two or more

streams that had to be crossed at low tide but at high tide they were almost impassable. He said it would take about 30 minutes to walk from Omaha Beach to the defendant’s address at 25 Point Wells Road. He said the tide was well in that night. [35]

Constable Martin gave evidence that a dog unit had come out of the house

and tracked out the rear gate. They tracked in behind some properties and around the edge of a large pond formed from excess rainwater about 20 metres across. From there the tracker dog worked back to the back gate of the property and then down onto the beach itself for about 400 metres to a walkway leading up to the Omaha Surf Club. [36]

Constable Martin said that when he drove back to Warkworth he saw a pile of

newspapers for the defendant’s paper run which had not been picked up. Constable Martin confirmed that he did not see anybody as he drove along the causeway. [37]

The only firm evidence regarding time was given by Constable Martin, who

said he was called at 1:25 am to go out to Omaha and Constable Morning, another constable stationed at Warkworth, said he arrived at 1:17 am and that Sergeant Haughey and Chris Martin were already there with Julian Lemmon. Constable Morning said he arrested Mr Lemmon who was completely co-operative and remained by his side the whole time without being handcuffed. He said he returned to the Warkworth Police Station at 4:00 am in order to take a statement from Mr Lemmon. He said that Lemmon’s phone received a number of text messages from Shannon Parker. [38]

The schedule of text messages records messages commencing at: 1:20 am – have u fin with my car yet 1:24 am – have u fin I got paper run soon 1:30 am – I will borrow a mates car til u sort yrself out. Drop Moly off b4 u go home 2:23 am – Got 2 ww ok. C u 2morow. Take care

[39]

At 2:24 am the defendant’s phone received a message from Lemmon’s phone:

Wher u want the car left.

[40]

Messages were sent from the defendant’s phone at: 2.26 am – At home if u done. Or cum get me from ww. 2:26 am – Meet me at New World 2:27 am – What r u doing?

[41]

The defendant’s phone received at message from Lemmon’s phone at 2:32

am: In Omaha hanging low do u need a ride.

[42]

The further messages sent from the defendant’s phone to Lemmon’s phone: 2:34 am – Yes! Please. Where did u go? C u by New World. 2:35 am – Hury. I’m late as. 2:48 am – I’m leaving if u not here in 10 minutes. 3:05 am – What’s going on? R u ok. 3:29 am – What hav u done? 3:34 am – I don’t no wgat uv done but I want my car bak.

[43]

The defendant’s phone receives a further message from Lemmon’s phone: 3:59 am – The cops have toed your car and I’ve walked home.

[44]

The defendant’s phone then sends a further message to Lemmon’s phone: 4:03 am – I saw that? Y? Was about 2 cal the station. Is Moly at home.

[45]

Constable Morning’s evidence was that he had seen the text messages sent to

Lemmon’s phone. He said he believed that the defendant was attempting to mislead the police suggesting she was in Warkworth when in fact she was still at Omaha. He said he followed the sequence of messages because Lemmon showed him his phone. He said he also saw the replies which Lemmon had sent to the defendant. He said Lemmon would type out the text message and show him first asking whether he should send it.

[46]

Constable Mellis took photographs of the defendant wearing her wet and

muddy clothing. The defendant declined to make a statement. She had noted the defendant as wearing a set of earrings and also a hair tie in her hair. Showing photographs of the defendant’s hair tied up earlier in the night, Constable Meils was unable to recall whether she was wearing her hair in the same way and could recall nothing of the hair tie itself. [47]

Constable McDermot produced a spreadsheet of Vodafone data extracted

from Mr Lemmon’s cell phone, 0278270492. Text messages exchanged between the defendant’s phone and Mr Lemmon’s phone at around 5.00 pm on 6 February 2011 are consistent with Lemmon’s evidence, and also the evidence of the defendant that there were communications between them arranging to meet for a drink that evening. A cell phone call from the defendant’s cell phone to Lemmon’s cell phone number at 5.16 pm on 6 February with a call duration of 31 seconds is also consistent with the evidence of Lemmon and the defendant that she called to arrange to go and collect him from Snells Beach. [48]

The calls which are in issue are before and after midnight on 6 February. At

11.47 pm the defendant’s cell phone called a landline number, 094230385, which is the landline number for 25 Point Wells Road and the account holder is the defendant. There were two calls; one for four seconds and then a further call lasting 33 seconds. Seventeen minutes later, just after midnight on 7 February at 12.04 am, was a further cell phone call from the defendant’s cell phone to the same landline for a duration of two minutes and 41 seconds. Finally, at 12.50 am on 7 February there was a further cell phone call from the defendant’s cell phone to Lemmon’s cell phone with a call duration of one minute 28 seconds. [49]

Constable Morning was recalled and asked further questions regarding his

supervision of Mr Lemmon sending text messages to the defendant. He confirmed that RD6, The Diner and Ms Parker’s address at Point Wells are within two to three kilometres of each other and that that would be approximately two to three minutes’ travelling time. Constable Morning confirmed that the 17 minutes between the call at 23.47 pm and the next call at 4.55 am would be sufficient time to travel from

Ms Parker’s address at 25 Point Wells Road to RD6 to collect her, then back to Point Wells Road and then to The Diner. [50]

A map was then produced as exhibit 13. Constable Morning measured the

distance between RD6 and the defendant’s address as two kilometres, give or take a hundred metres, along a flat road with an 80 kilometre and hour speed limit, and that the distance from the defendant’s address to The Diner was just under two kilometres. Defence evidence [51]

The defendant gave evidence. She said she was running The Flintstones

Steakhouse at Warkworth and had met Julian Lemmon through his sister, Stacey, when she and Stacey Lemmon bought a water blasting business together. Stacey Lemmon was also a part-owner of the Daewoo station wagon. [52]

The defendant’s evidence was that she was contacted by Lemmon by text

message around 5.00 pm on 6 February indicating that he was not very happy at the time, and the defendant, knowing that his sister was away for the night, offered to come and pick him up from Snells Beach. She said she phoned him just after 5.00 pm. She was still wearing her uniform as she had to come straight back to work. [53]

The defendant’s evidence is that she stopped at the wholesalers in Warkworth

immediately before returning to work to purchase KGB mixed vodka drinks. She said a friend named Donna had come to see her at the restaurant. If it was busy at the restaurant Donna would assist, but otherwise she would stay and have dinner and talk. The defendant’s evidence is that the restaurant was quiet that night with about six customers. She said they were sitting in the restaurant talking and having dinner and finished somewhere between 8.30 and 9.00 pm. [54]

The defendant’s evidence is that Julian Lemmon asked if he could stay the

night at her place because his sister was not returning until the following day, and because he did not have any clothes with him the defendant drove him to pick up some clothes from Snells Beach and he also wanted a phone book.

[55]

The defendant’s evidence is that on the way to Snells Beach, Julian Lemmon

was mentioning a person he needed to contact whom the defendant believed to be a gang member named Peter Vitali. The defendant said she asked Lemmon if he was in any trouble and he said “no”, but she was curious regarding his involvement with Peter Vitali, and whilst waiting in the car out at Snells Beach she sent a text message to a friend named Stacey Morrison in Whangarei asking if she was near her computer and whether she could Google something, and then asked her to look up the name of Peter Vitali. The defendant identified this message from the spreadsheet exhibit 14 at 21.39, which reads “Are you home can you Google for me”. This was followed by a phone call at 21.41 to Stacey Morrison’s landline number, followed by a call from her cell phone. [56]

The defendant’s evidence is that she was intending to drive Lemmon straight

back to her home address in Point Wells but then became concerned that she may not have locked the rear door of the restaurant and went back to check. [57]

The defendant’s evidence is that at the restaurant Julian Lemmon made a

series of calls on the restaurant landline trying to get hold of Peter Vitali through a person named Dylan. The defendant’s evidence is that Lemmon had no credit on his phone. She assumed that text messages received had been free texts. She said she was about to offer him her cell phone and then suggested he use the business landline. She produced a Telecom telephone account for the restaurant showing calls at 9.56, 9.57 and 9.58 pm, all to the same phone number, then two calls to a Hibiscus Coast number at 10.04 pm, a further call to a cell phone at 10.06 and then a call to directory assistance. The defendant’s evidence is that at the restaurant she phoned Stacey Morrison to see whether the Google enquiries had produced a result, but she had been unable to find anything. [58]

The defendant’s evidence is that Lemmon was becoming frustrated at his

inability to make contact and left a message on the answerphone. The defendant’s evidence is that Lemmon, having no credit on his phone, did not think his friend would be able to phone him back and asked whether he could provide the defendant’s 0800 number, which would ring through to her cell phone, because was going to be with her that night.

[59]

The defendant’s evidence is that she stopped for petrol at the Mobil station in

Warkworth at around 10.00 pm and then drove straight to her home address in Point Wells. She said a friend named Donna Dyson arrived at her address about five minutes after that. The defendant estimated the time of her arrival at about 10.30 pm, or possibly a bit later given that she was at the Mobil service station at 10.22 pm. [60]

The defendant’s evidence is that Julian Lemmon wanted to borrow her car to

see a friend and that there was no problem in doing so because her sister was a part owner and he had borrowed it several times in the past. The defendant’s evidence is that Lemmon asked if he could take her cell phone with him because he was still waiting for his earlier call to be returned. The defendant’s evidence is that she had instructed Lemmon not to smoke in her car and to ensure that it was back by 1.00 am for her paper round.

The defendant’s evidence is that he left just before

Donna Dyson arrived. [61]

The defendant’s evidence is that after Lemmon had gone out he called her on

a landline to say he was not far away, and then very shortly after drove into the driveway. She estimated the time as around 11.30 or 12.00, and that Donna Dyson had been there for an hour or so. The defendant’s evidence was that she had no recollection of what he did at the house, but he was not there long at all and left straight away. The defendant’s evidence is that she and Ms Dyson were inside the house at that point. [62]

The defendant’s evidence is that Lemmon returned to the house a second time

with someone in his car, and this time he wanted his cell phone which had been left on the kitchen table. She said Lemmon returned her cell phone saying he did not need it any longer. The defendant’s evidence was that she and Donna Dyson were sitting outside on the deck; Donna Dyson was having a cigarette. [63]

The defendant’s evidence is that Lemmon told her he was going back to

Omaha with his friend and he assured her he would be back by one. Lemmon told her that his friend was named Glen. She walked down to the car with Lemmon and met Glen in the carport, but it was dark and she was not able to give a clear description of him. She estimated the time as around midnight because there was

only an hour available for Lemmon to use the car before she needed it at 1.00 am. When she asked where he was going, the defendant’s evidence is that Lemmon told her that they were on the road that the golf club was on and she assumed that was North West Anchorage. The defendant’s evidence is that her dog, Molly, got into the car with Lemmon and his associate. [64]

The defendant’s evidence is that Donna Dyson decided to leave just after

12.30 am, and the defendant asked her to drop her off at the golf club in Omaha. The defendant’s evidence is that she was wearing jeans, a green top and sneakers. At the golf club the defendant said she used the public toilet before walking up the hill to North West Anchorage, which is a cul-de-sac. She said she was unable to see her vehicle in any of the driveways, and there were no lights on so she walked back to the golf club. [65]

The defendant’s evidence is that she phoned Julian Lemmon standing in the

carpark at the golf club asking where he was and that he answered her call. Referring to the schedule of Vodafone data, exhibit 14, the defendant’s evidence is that was the one minute 28 second call at 12.50 am. The defendant’s evidence is that Lemmon told her that he was actually at the surf club and he said he would come and get her in a minute. The defendant’s evidence is that she told him she would start walking towards the surf club and he said no, he would come and get her in a minute and hung up, and at that point she began to walk up the road in the direction of the Omaha Surf Club. She was heading towards the main road into Omaha. [66]

The defendant’s evidence is that at a point which was closer to the surf club

than the golf club she saw Glen, and it was only then that she became aware that there had been a burglary. She said as she was speaking to him a vehicle approached and he left the area. She recognised Sergeant Haughey’s utility, which passed quite close to her as she stood on the side of the road. [67]

The defendant’s evidence is that she had asked where Glen was, and that was

when she first became aware of a burglary. The defendant’s evidence is that she crossed the road to the golf club. She assumed that Lemmon had been caught at the scene and that he still had her car, and that must be somewhere near the surf club.

The defendant’s evidence is that she stood for a while, she was unable to say how long for, and then began walking home via the Omaha causeway. [68]

When the defended hearing resumed on 16 September, the defendant refused

to answer any questions in cross-examination and gave no further evidence. The defence then called Donna Dyson, who confirmed that she had known the defendant for about two years, and on 6 February 2011 had gone to The Flintstones Steakhouse at Warkworth at about 5 o’clock as the defendant was getting ready to open the restaurant. She said she stayed at the restaurant while the defendant went to pick up Julian Lemmon, and when they returned the defendant cooked him a meal and they sat around drinking and talking. She recalled Mr Lemmon being quite upset about his girlfriend’s pregnancy. [69]

Ms Dyson’s evidence is that at about 10 o’clock they left the restaurant to go

to the defendant’s address in Point Wells. Ms Dyson’s evidence is that she arrived at the address at about 10.30 pm and did not notice the defendant’s car outside and thought no one was home. She went in to find the defendant and they had drinks and talked. [70]

Ms Dyson’s evidence is that Julian Lemmon turned up with a friend in

Shannon’s car while she was outside having a cigarette on the deck. She said Lemmon got out of the car, ran inside and she thought he had taken his phone. She asked the defendant where the dog was, and was told the dog had gone with Julian. [71]

Ms Dyson’s evidence is that she was about to go home, and she was asked by

the defendant if she could drop her off at the golf club because Julian was at Omaha. Ms Dyson’s evidence is that she dropped the defendant off by the toilets and then she went home. [72]

In cross-examination Ms Dyson said she could only vaguely see the car from

her position on the deck and the person inside it. She said she did not walk to the car. She was not able to describe the other person beyond white with short hair, wearing something dark. She could only see him from the chest up. He was of average build with dark hair. She guessed his age at early 20’s.

[73]

Under cross-examination Ms Dyson said she did not see where Lemmon had

gone inside the house and whether he had taken anything with him when he left. She did not see him pick anything up. She asked Shannon Parker if he had grabbed something, and was told he had grabbed his phone. [74]

In relation to the golf club, the witness’ evidence was that she knew where

the golf club is and how to get there, but did not know the name of the road. She said she only went as far as the clubhouse and did not go to the end of the street and turn around. [75]

Ms Dyson’s evidence is that she knew that the defendant needed her motor

vehicle to start work at 1 o’clock. She said she was not concerned about dropping her off alone at Omaha. After dropping the defendant off she turned right at the roundabout and drove across the causeway and did not see any other people or any other vehicles. [76]

In answer to questions from the Court Ms Dyson’s evidence is that she saw

Lemmon return to the house only once. Shannon Parker told her that he had come to get his phone and there was no discussion about when he would be back. She estimated the time at about 11.00 pm. Findings [77]

There are a number of points in the defence case which on the face of it strike

me as implausible, and of course there was no opportunity for the prosecution to test those issues because the defendant refused to answer any questions in cross-examination, and that is a factor I must take into account in assessing the weight to be given to her evidence. 1.

If the purpose of travelling to Omaha at around 12.30 am was to locate Julian Lemmon and the defendant’s vehicle, I find it utterly implausible that the defendant chose to get out of her friend’s car at the golf club and attempt to find this vehicle on foot at that hour of the morning, and leaving her friend, Ms Dyson, to drive off back towards

Warkworth. Surely the obvious step was to stay in the car and drive around Omaha looking for the vehicle and making further phone calls to Lemmon. 2.

There is no explanation for the appearance of the defendant’s shoes and jeans when she finally turned up at her home address at 4.30 that morning. Her jeans were wet up to thigh height and muddy, and her shoes were also wet. I can only conclude that the defendant at some point waded through water – either the 20-metre wide pool of standing water behind the house at Southern Isle where the dog handler lost the track, or wading along the foreshore from the Omaha causeway to the defendant’s address at Point Wells, or both, and if that accounts for the wet and muddy jeans then that is entirely consistent with the defendant’s participation in the burglary as a principal offender and wading through water in order to evade the police.

3.

On the defendant’s account there is no explanation for why it took her so long to get home. Having been dropped off at Omaha at around 12.30 am, she did not return home until four hours later. Omaha to her address at Point Wells is a 30-minute walk, which three and a half hours unaccounted for. Again, the only logical conclusion I can come to to explain the missing hours is that the defendant was hiding from the police at Omaha before electing to return home.

4.

On the defendant’s account she was standing at the side of the road speaking to this man, Glen, as Sergeant Haughey drove past in his ute to the burglary scene. I find it inconceivable that Sergeant Haughey would not have seen the defendant. He knew that he was being called to a burglary and he would have been hyper vigilant to check for any individuals out and about on foot around Omaha in the early hours of the morning. That aspect of the defendant’s account I find completely implausible.

5.

The defendant’s evidence is inconsistent with the evidence of her witness, Ms Dyson, who said that Julian Lemmon came to the house only once while she was there. I find it difficult to accept that if he had been back to the house on another occasion earlier that night whilst Ms Dyson was still there that she would not have realised that or heard the car. On the defendant’s evidence both she and Ms Dyson were inside the house when Lemmon returned the first time. I can only conclude that this was a story that the defendant and her witness have concocted together in order to answer the evidence in the prosecution’s case, and specifically evidence of the phone calls.

[78]

The phone calls made on the defendant’s cell phone before and after midnight

do corroborate Lemmon’s account that he had dropped the defendant off to commit a burglary at RD6 and then The Diner while he waited for her to contact him. Clearly he was mistaken on some of the details, in that it was a phone call and not a text message that caused him to pick the defendant up the first time from RD6. Also later, when the defendant rang him at 00.50 am as the burglary was in progress, the call duration of one minute 28 seconds shows clearly he did answer the phone, but subject to those areas of detail, I accept Mr Lemmon’s evidence as to what occurred. [79]

I simply do not accept for a moment that Mr Lemmon had the intellectual

capacity to fabricate a complicated account and stick to it.

He immediately

nominated the defendant as his accomplice when confronted by the security guards. He was co-operative with the police throughout. No reason was suggested to him in cross-examination for falsely implicating the defendant. Of course there is no onus on the defendant to establish a motive for a prosecution witness to lie, but I am satisfied that Lemmon was not lying and there was no reason for him to do so. [80]

Text messages sent by the defendant to Lemmon’s phone after 1.00 am

regarding her car were a clever smoke screen designed to deceive the police and establish a defence. The messages show that the defendant is clever, calculating, cool under pressure, and she was putting together a strategy to cover her tracks from the moment that her accomplice was caught. She left the scene by the back gate,

knowing that that was an available escape route from the burglary scene with a walkway leading down to the beach. [81]

I cannot be sure whether the defendant waded through the pool of standing

water at the back of the property, but that is at least a reasonable possibility on the evidence, and the only reason I can think of for her to do that would be to evade tracker dogs. The discarding of the balaclava and the hair tie in the sea was again a deliberate part of that same strategy, and also keeping low for the next three hours before returning home to Omaha. [82]

The defendant’s account of giving her phone to Mr Lemmon to take calls at

the critical period before and after midnight is nothing short of brilliant, and she has gone the extra step of calling Ms Dyson to support that version of events, but for the reasons given earlier I simply do not accept her account. It is very well thought out and it answers almost every aspect of the prosecution case, but I have come to the firm conclusion that it is a carefully constructed lie. [83]

I am sure that the defendant, having been contacted by Mr Lemmon that

night for a drinking session, then decided to take advantage of the opportunity to use him as her accomplice in these burglaries. She was reducing the risk of being caught by making sure that her vehicle, driven by Lemmon, was well away from the scene as he waited for her call to come and collect her. Lemmon was someone she could easily manipulate for her own purposes, and it was interesting to observe his reaction as the defence case was put to him in cross-examination and he realised the defendant had turned on him. Again, my strong impression observing him in the witness box was that his shock and surprise was entirely genuine and impossible for a person of his limited capacity to fake. [84]

There are three additional reasons for rejecting the defendant’s account: 1.

The finding of the hair tie near the balaclava is simply too great a coincidence to dismiss. It clearly indicates that burglar who discarded the balaclava also discarded a hair tie, which again indicates that the burglar, at least at some point, had their hair tied up. That is a strong

piece

of

circumstantial

evidence

against

the

defendant,

notwithstanding that she had her hair tied when processed by the police later in the evening. 2.

I find it difficult to accept that if Lemmon was intending to commit a burglary using the defendant’s car with his accomplice, Glen, that he would take the defendant’s dog with him in the car. Even if it was his own dog there was risk involved, but taking a dog belonging to someone else seems to me, again, highly unlikely.

3.

The witness, Matheson, while not able to identify the person getting out of the passenger side of the vehicle setting off to commit the burglary, nonetheless described a person whose general proportion and physical appearance was consistent with that of the defendant, and that is one more piece of circumstantial evidence in the case against her.

[85]

In the end I reject the evidence of the defendant and that of her witness,

Ms Dyson, as a concerted fabrication designed to answer the prosecution case. I accept the evidence of Julian Lemmon. I am satisfied he was telling the truth when he said the defendant was his accomplice that night, and I am satisfied of that beyond a reasonable doubt. There is no issue either that a burglary was in fact committed because a window was opened, the catches were broken, entry was gained into the house, the ranch slider door opened from the inside and side tables put out onto the deck for removal. The charge is proved and the defendant will be convicted.

D J McNaughton District Court Judge

Signed 4th October 2011 at 10.00 am