Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Unreasonable or insupportable verdict - Where evidence circumstantial - Whether verdict unsafe and unsatisfactory - Open to jury to reject suggested hypothesis consistent with innocence in absence of evidence from appellant.

M v R (1994) 181 CLR 487, considered.

Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217, referred to.

Appeal from R v Walsh, Zeeman J, B10/1995 (unreported, available on SCALE).

COX CJ The appellant was convicted of one count of unlawfully injuring property and one count of burglary and was sentenced to six years' imprisonment. He appeals against his conviction and seeks leave to appeal against the sentence. That application has been adjourned sine die as it involves consideration of another sentence imposed on an earlier conviction, which in turn is subject to an appeal.

2. The grounds of appeal against conviction in the present matter are:

"1 The learned trial judge erred in law in holding that the

evidence of the conversation between the accused and

Detective Burk on 10 May 1994 and the accused's subsequent

telephone conversation

(a) was admissible and/or

(b) should not be excluded in the exercise of the discretion

of the learned trial judge.

6 The conviction of the accused in respect of the crimes of

unlawfully injuring property and burglary counts 1 and 4

should be set aside as being unsafe and unsatisfactory

having regard to

(a) the evidence led at the trial;

(b) the competing hypothesis consistent with innocence

available upon the evidence led at trial."

The remaining grounds of appeal were abandoned at the hearing.

3. The accused was indicted for several crimes committed on each of the 5 April 1994, 7 April 1994, 3 May 1994 and 27 June 1994. The crimes alleged to have been committed by him on the first occasion were four in number, namely unlawfully injuring property consisting of nineteen telecommunication cables, the property of Telecom, situate at the Bellerive Telephone Exchange; burglary of the nearby Rosny College; the theft of oxyacetylene equipment therefrom; and burglary of the Video City premises at Rosny Park. He was convicted of the first and last of these offences and acquitted of the other two and of all the remaining counts in the indictment alleged to have been committed on the three subsequent occasions.

4. The Crown case in respect of the events of 5 April 1994 was that a group of men, including the appellant, participated in the burglary of the Rosny College and the theft therefrom of oxyacetylene equipment which was intended to be used for the purpose of opening a safe at Video City and of stealing its contents. To facilitate that ultimate object, the group first entered the Bellerive Telephone Exchange and cut the cables, thereby disconnecting the alarm systems from the premises they intended to burgle. The evidence suggested that after the damage was effected to the cables, the College was burgled, the oxyacetylene equipment stolen and transported into the premises of Video City. However, the thieves were disturbed by police before entry to the safe was achieved. The damage at the telephone exchange had very serious consequences. A large number of subscribers were inconvenienced, and in some cases suffered financial hardship by being deprived of communications for a lengthy period of time, security and emergency services were jeopardised and the cost of repairs was high. The enterprise acquired a high degree of notoriety.

5. In respect of the first ground of appeal the complaint is that the learned trial judge should not have admitted evidence of the discussion between Detective Burk and the appellant in a car park and of the appellant's side of a telephone conversation with another person made that night shortly after his meeting with Detective Burk. On 3 and 4 May 1994 Detective Burk had two conversations at the gaol with one Dwayne Williams who was thought by police to have been involved in, or to have knowledge of, the crimes committed on 5 April. After his return from the gaol on 4 May, Detective Burk received a telephone message to ring the appellant on his private telephone number. Detective Burk returned the call and spoke to the appellant, who said he understood that the detective had been speaking to Dwayne Williams and wanted to know what had been said. Detective Burk declined to give him that information, saying that no one would tell the police anything if "I did not keep things confidential". The detective's account of the conversation continued:

"He said, 'I don't think it's right, you going round

offering immunity and dropping charges, just to try and

split us up.' I said, 'I'm not discussing that with you of

all people.' He said, 'Who else have you spoken to?' I

said, 'As if I'm going to tell you.' He said, 'Are you

going to offer all of us the same deal?' I said, 'No doubt

we'll be speaking to a number of persons throughout our

enquiries into the Telecom job.' He said, 'S'pose so.' I

said, 'Anything else you want to know?' He said, 'You

haven't exactly been much help, have you?' I said,

'Surprise, surprise.' He then said, 'So you're not going to

tell me anything to do with Dwayne?' I said, 'No.' He

said, 'Not much point talking then, is there?' I said, 'Not

really, not unless you've got something you want to tell

me.' He said, 'Come on, Steve, you know better than that'.

I said 'I'll catch you later then' and then the call was

terminated."

6. Five days later Detective Burk initiated a telephone call to the appellant. Having identified himself, he said "I want to see you. I won't discuss it over the phone but it may be in your best interests to see me. You know the car park at the end of the road near Geilston Bay Tennis Club, opposite Wreckair, I'll leave now and meet you there in ten minutes." Soon thereafter both men met. The substance of the conversation which then ensued is as follows:

"Walsh So what's this all about.

Burk The Telecom job.

Walsh Are you taping me or wired up or something.

Burk No, you can check me. It's just you and me.

Walsh What about it.

Burk You know I went to see Dwayne.

Walsh So what'd that cunt say.

Burk I'm not going to discuss with you anything he told me

same as I won't tell him anything you tell me.

Walsh He's not a credible witness anyway. I've spoken to

my Lawyer Greg Meyer about it.

Burk On his own maybe not. But if hypothetically he did

tell us things about that night and it was corroborated it'd

be enough. We're spending a lot of time and effort on this

investigation and have spoken to a lot of people. We know

more about it than you give us credit for.

Walsh This is one of yours? (That question related to an

apparently unconnected police vehicle which entered the car

park at this point and checked adjacent boat sheds. The

conversation resumed after it had departed).

Walsh You're just trying to bullshit me and trying to get

us to give each other up. You've got fucken nothing.

Burk We've got a lot more than you give us credit for.

Walsh Like what.

Burk I'm not going to divulge that but needless to say I

wouldn't bother coming here to see you if we had nothing. I

know you did it with Noof, Cheeky, Pear and Dwayne.

Walsh Look Steve we're not involved.

Burk Don't treat me like a dill, I know a lot more than you

think.

Walsh So why haven't you charged us yet.

Burk The investigations not over yet. At the end of it

charges will be laid.

Walsh What's that got to do with me.

Burk I know you were involved in this. IT'S NOT LIKE ALL

YOUR OTHER BURGLARIES. THIS TIME YOU'VE CROSSED THE LINE.

A lot of people were affected and inconvenienced by what you

did.

Walsh Why are you after me so bad.

Burk You're the one who planned it and set it up.

Walsh It wasn't me Noof's the one with all the contacts.

Burk What through football.

Walsh Yeah, and down the Clarence. He knows hundreds of

people.

Burk By the way the Reward's going up from 10 to 50 grand

in a couple of days. It hasn't been announced yet so keep

your eye on the News.

Walsh So what do you want.

Burk I want a conviction against the person who planned it

and the one who set it up.

Walsh What's that take.

Burk Giving evidence on oath.

Burk Now that the Reward is going up someone will come

forward. This is your opportunity to tell me about your

involvement in it.

Walsh I'll have to think about it.

Burk You've got my Pager number haven't you.

Walsh Yeah I'll think about it and get back to you."

(The capitalised words were deleted when this material went to the jury.)

7. Shortly after returning to his home, the appellant had a telephone conversation with another person. The police had, without his knowledge, installed in his home a listening device which enabled a record to be made of conversations and other sounds in the premises. A record was made of the appellant's side of a conversation with another person who, it might be inferred, was the person referred to as "Noof" at the car park. This one sided conversation contained material capable of being interpreted as an acknowledgment of some involvement by the appellant in the enterprise of 5 April. Significantly it recorded the appellant as saying:

"He called me, he said he had some information that would be

beneficial to me and that, so I've gone and seen him he

wouldn't talk about it over the phone you know, I had to go

and see him and that you know and he wouldn't even talk to

me in the car you know. I thought fucking oath he's got a

bug or something. I didn't say nothing to him anyway and he

was talking and that, so I just, he knew ?? about anything

you see so I said that's got nothing to do with us, we

committed no fucking crime. I thought that he might catch

me on one of them Laser Bug things right, that pick you up

from a distance so I wasn't saying nothing and he offered,

he offered me the same fucking deal as Dwayne, the 50

grand."

"You don't know if, you know, he does know something. I

thought that he might have one of those Laser Bugs."

8. It is submitted, first, that the evidence of the conversation in the car park was not voluntary and, in any event, should have been excluded in the exercise of the learned trial judge's discretion on the ground that it was unfair to the appellant to use it on his trial; and second, that the evidence of the appellant's part in the subsequent telephone conversation should likewise have been excluded for the same reasons. The learned trial judge conducted a voir dire to determine these objections and ruled against the appellant. The appellant gave no evidence on the voir dire. Giving reasons before the conclusion of the trial, his Honour said in part:

"Senior counsel for the accused submitted that Detective

Burk had given the accused the impression, and thereby

represented to him, that the discussion which he proposed

having with the accused would be 'off the record' and that

that representation amounted to an inducement. I do not

accept that any such representation was made, either

expressly or impliedly. Detective Burk did not do or say

anything by way of suggesting to the accused that what he

might say would not be later repeated. Largely cross

-examination of Detective Burk was directed to what he had

in his mind rather than what might have been said to the

accused. There was no evidence that Detective Burk had ever

said to the accused that what the accused might say would be

'off the record'. Certainly Detective Burk made it clear to

the accused that he wished to speak to him privately and

that he would not disclose what he had been told by

Williams. I am prepared to accept that he conveyed the

impression that were the accused to provide information as

to the involvement of any other person in the crime he would

not disclose to such person that the accused had informed.

What occurred could not reasonably have led the accused to

believe that whatever he said would be kept confidential.

As a matter of fact I am not satisfied that the

representation said to constitute the inducement was made.

It follows that the objection to admissibility failed.

I saw no reason for excluding the evidence of the

discussions in the car park as a matter of discretion. In

no way could it be said that its admission was capable of

affecting the fairness of the trial. No illegality on the

part of Detective Burk was suggested. It was suggested that

his actions in arranging for the meeting in such a way that

it would not be recorded, yet knowing full well that a

recording device was in place at the accused's residence so

that reactions of the accused to the meeting might be

recorded, involved some form of moral turpitude on his part

so that the evidence ought to be excluded as a mark of the

Court's disapproval (see Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

at 74. In my view there was no impropriety whatsoever

involved in the conduct of Detective Burk. His actions were

appropriate for the purpose of a proper investigation of the

relevant crime. He was not required to observe rules which

might be appropriate for a sporting contest. Relevant

observations as to what a police officer may properly do in

the course of the investigation of a crime appear in R v

Papoulias [1988] VicRp 76; (1988) VR 858 and R v Maqsud Ali (1966) 1 QB 688."

9. Had the detective induced the appellant to speak to him at the car park by conveying to him that such conversation was "off the record" in the sense that what was said would not be given in evidence on any trial of the appellant, the statements made by the appellant would not have been voluntary (R v Plotzki (1972) Qd R 379; R v Noakes (1986) 42 SASR 489). Clearly, however, on the evidence there was no specific assurance to that effect given. Counsel for the appellant submits that it was impliedly given. He relies on the fact that Detective Burk told the appellant he would not discuss the matter on the telephone and that it might be in the latter's best interests to see him. Once at the car park the appellant sought and was given reassurance that Detective Burk had no mechanical means of contemporaneously recording the conversation, and in the course of that conversation, that the police car which drove into the car park was not connected with Detective Burk's activities. The cross-examination of the detective is said to reveal that he had certain intentions and expectations, but although conceivably they might be relevant to the exercise of a discretion activated by impropriety on the part of the investigating police, his secret thoughts could have no effect upon whether the appellant was induced by his conduct to participate in a discussion. The appellant gave no evidence on the voir dire, as I have said, and there was in consequence no direct evidence that he had understood that discussion to be confidential and was induced to engage in it by any representation by Detective Burk to that effect. In any event, the appellant, in his telephone conversation shortly thereafter, indicated that he at least entertained the possibility that the conversation with Detective Burk might have been subject to some kind of electronic surveillance, yet this was not sufficient to dissuade him from participating in it. In my opinion the learned trial judge had ample grounds for concluding that the statements made were voluntary and nothing which has been put demonstrates that some other inference as contended for by the appellant ought to have been drawn.

10. Equally I am satisfied that nothing Detective Burk did could be said to render the admission of the challenged material unfair to the appellant. I agree entirely with the views expressed by the learned trial judge and cited above. His Honour referred to R v Maqsud Ali (1966) 1 QB 688. It is instructive to repeat the words of Marshall J in that case as, although the subject matter of the police enquiry was homicide, there are many parallels with the present case. At 701 - 702 his Lordship said:

"The next point taken by both appellants before us is that

in the circumstances of this case the trial judge, in the

exercise of his discretion, should have excluded all

evidence of and concerning the tape recording. The first

limb of the argument on which this submission was based was,

that even if the tape recording was admissible, its use

would operate unfairly against the appellants. In this

connection it is important to appreciate the circumstances

in which it was obtained. It was recorded on April 29 two

days after the discovery of the murder. It was still at the

beginning of very extensive inquiries that had to be

undertaken. Both appellants had come voluntarily to the

Town Hall, they were not in custody and no charge was

brought against them until June 13 and 15, respectively.

They were left in the room together. They had not, of

course, been warned of the presence of the microphone. The

police were inquiring into a particularly savage murder and

it was a matter of great public concern that those

responsible should be traced. There is no question here of

being in custody and subject to any Judge's Rules. The

criminal does not act according to Queensberry Rules. The

method of the informer and of the eavesdropper is commonly

used in the detection of crime. The only difference here

was that a mechanical device was the eavesdropper. If in

such circumstances and at such a point in the investigations

the appellants by incautious talk provided evidence against

themselves, then in the view of this court it would not be

unfair to use it against them. The method of taking the

recording cannot affect admissibility as a matter of law

although it must remain very much a matter for the

discretion of the judge."

11. On the hearing of the appeal it was submitted that as the appellant was a suspect, he ought to have been cautioned by the detective. Reliance was placed on the case of R v Whitford [1980] TASRp 11; (1980) Tas R 98 where, at 100, Everett J referred to the relevant Rule as being r2 of the Judges' Rules in these terms:

"As soon as a police officer has evidence which would afford

reasonable grounds for suspecting that a person has committed an

offence, he shall caution that person or cause him to be cautioned

before putting to him any questions, or further questions, relating

to that offence."

12. However, with respect, that Rule was reframed in a Home Office Circular No 89/1978 which has not been adopted in this jurisdiction. The relevant Rules are those recommenced in 1912 (R v Deverell [1969] TASStRp 16; (1969) Tas SR 106). No warning was required by the Judges' Rules, nor by any other consideration of fairness. In my opinion there was no occasion to exclude evidence of the conversation between Detective Burk and the appellant in the car park. As I understood it, the argument that the evidence of the subsequent telephone call should be excluded was dependent upon the earlier conversation being ruled inadmissible and was to the effect that the later conversation was tainted thereby. As no fault can be found with the admission of the conversation in the car park, there is no basis for excluding the telephone conversation.

13. The Crown case against the appellant was a circumstantial one and depended upon the jury drawing an inference of guilty involvement on his part from the fact that his car was seen repeatedly in the general area in which the crimes were committed, during the times in which they were committed and that he had been seen in that car at least twice in the relevant time. Provided they were satisfied he had been correctly identified as an occupant of his car, the inference might more readily be drawn from a number of subsequent statements made by him consistent with involvement in the crimes and from the fact that he chose not to give evidence upon the trial.

14. The Bellerive Telephone Exchange is situate in York Street in the Bellerive township. The premises known as Video City are situate in Bayfield Street in an area of commercial development known as Rosny Park. Rosny Hill Road separates the Rosny Park complex from open land to the east on which Rosny College is situated. It also leads north via Riawena Road to the district of Montagu Bay where the appellant's house in Leprena Road is located. Kangaroo Bay Road or Drive extends from Rosny Hill Road at a point distant some two to three blocks from Video City east to a cul-de-sac near Cambridge Road leading into the Bellerive township approximately 2 - 3 blocks from the telephone exchange.

15. On the afternoon of Sunday 3 April the appellant was seen by two witnesses in the Video City store. He entered, looked around and left within approximately two minutes without having transacted any business. This was suggested by the Crown as, and was consistent with, a prior reconnaissance. On the evening of Monday 4 April police organised a mobile surveillance operation, the object of which was a blue Statesman motor car belonging to the appellant. Surveillance continued between approximately 7.30 o'clock that night and 4.15 o'clock the next morning. To avoid arousing the suspicions of anyone using the Statesman, the officers who occupied a number of different cars, instead of constantly following it, drove in such a way that contact with it was lost from time to time. From the evidence of the various officers who saw the car, from that of Telecom Australia staff who were able to identify the times at which alarms at the exchange were activated and the telephone lines cut, and from that of other police officers who observed activities around Video City, the following chronology emerges:

10.18pm

Sergeant Lindsay sees the appellant's blue Statesman DG-3723

travelling from the Rokeby area towards Bellerive.

10.25pm

Sergeant Lindsay sees it travelling towards Montagu Bay.

10.28pm

Constable Bessell sees it parked at a red light at the corner of Rosny

Hill Road and Bligh Street. It appears to be occupied by only one

person. It drives up Rosny Hill Road, goes into Riawena Road and then

travels to the appellant's residence at No 5 Leprena Street where it

is parked in the driveway.

10.37pm to 10.41pm

Constable Bessell sees the vehicle travel from Leprena Street to the

Warrane area, thence on Cambridge Road westerly towards the Bellerive

township. At the same time, Constable Cashion, in a separate car to

that occupied by Constable Bessell, sees the Statesman leave Leprena

Street and travel to La Perouse Street in Warrane where it executes a

U-turn.

10.41pm

Constable Cashion observes two men in the Statesman, the driver of

which he identifies as the appellant.

10.43pm

Constable Cashion sees it drive to Kangaroo Bay Road.

11.02pm

The alarm at the telephone exchange is activated for the first time.

11.13pm

Constable Cashion sees the Statesman travel easterly along Kangaroo

Bay Road to Rosny Hill Road.

11.16pm

Constable Cashion sees it at the service station at the Bellerive

roundabout, a short distance to the south of the last-mentioned

junction. It then travels north on Rosny Hill Road towards the area

of Montagu Bay.

11.28pm

The alarm at the exchange is activated for the second time.

11.30pm

Constable Cashion sees the Statesman in the Risdon Vale area, several

miles away, travelling south towards Bellerive.

11.41pm

The alarm at the exchange is activated for the third time.

11.46pm

Constable Cashion sees the Statesman in the cul-de-sac on Kangaroo Bay

Road.

11.58pm

Constable Cashion sees it travel thence towards Montagu Bay on Rosny

Hill Road. At the same time technician Kraan arrives at the exchange

to investigate the alarms.

12.01am

Constable Cashion sees the Statesman outside the appellant's home at

Leprena Street.

12.06am to 12.53am

Constable Cashion sees the vehicle continuously parked in the

cul-de-sac at Kangaroo Bay Road.

12.10am (approx)

Detective Batge peers into the car which appears to be unoccupied.

12.22am

Mr Kraan leaves the telephone exchange.

12.41am (approx)

The cables are cut and communications are disrupted.

12.53am

Constable Cashion sees three or four people in a bush area about

50 - 100 metres east of the car.

1.05am

Constable Cashion sees the Statesman leave Kangaroo Bay Road.

Constable Bessell sees it at the service station at the Bellerive

roundabout and says there appeared to be five or six people in the

vehicle.

1.09am

Constable Bates sees the vehicle parked near a telephone box in

Warrane. He observes a male person "who was identical to the"

appellant in the phone box using the phone briefly.

1.10am

Constable Cashion sees the Statesman travelling from the Warrane area

towards Bellerive. Constable Bates also sees it travel towards

Bellerive.

1.16am

Constable Bates sees the Statesman in King Street on the Bellerive

Bluff. This is approximately five blocks from the telephone exchange.

He sees that it has at least three occupants and that the driver

"appeared to be a person similar to the" appellant.

1.45am

Constables Bates and Cashion see the vehicle travelling east along

Cambridge Road near the Bellerive Quay, and thence towards Bayfield

Street.

1.47am

Constable Cashion sees the Statesman travelling north on Bayfield

Street. There are about five occupants.

1.48am

Constable Cashion sees it perform a U-turn and park outside Video

City. Sergeant Lindsay sees it exit from Bayfield Street onto

Cambridge Road with one male occupant.

1.49am

The Statesman enters the Bellerive service station.

1.51am

Constable Cashion sees it travelling from the Bellerive roundabout on

Rosny Hill Road towards Montagu Bay.

2.00am

Constable Cashion sees the Statesman in Winkleigh Place (a cul-de-sac

opening on to Bayfield Street) and travel thence towards the

roundabout.

2.40am

Constable Bessell, in Bayfield Street, observes the rear doors of

Video City are ajar. He does not investigate further.

3.01am

Sergeant Lindsay sees a male person standing at the northern end of

the Eastlands car park.

3.21am

Sergeant Lindsay sees a person run from the vicinity of Video City in

Bayfield Street towards Bligh Street.

4.04am

Sergeant Lindsay sees three male persons with a large heavy object

move from Winkleigh Place towards Video City.

4.10 (approx)

Detectives Batge and Paul go to Video City. Detective Batge observes

a male person run from that area to the corner of Ross Avenue and

Bligh Street. They find the rear door of the premises open and enter,

observing some damage to the front doors, which are also open. They

find oxyacetylene equipment with the cylinders on and gas escaping.

Detective Watson sees a man on the corner of Ross Avenue and Bligh

Street, whom he claims to recognise as Dwayne Williams, signalling

with his left hand. Williams runs away with the police giving chase

unsuccessfully.

4.14am

Sergeant Lindsay sees two men run from the vicinity of Video City

towards other premises in Bayfield Street.

16. The oxyacetylene equipment was identified as having been removed from Rosny College. It is not clear precisely when the burglary occurred, but it was a reasonable inference that it was some time after the cables were cut at 12.41am, since no alarm was activated, and before 4.00am.

17. The evidence of the plaintiff's conversations with Detective Burk and of his words on the telephone after that meeting, which have all been reproduced in my consideration of ground 1, gave some support to the Crown's contention that the appellant was a party to the offences of that night. In particular, although the evidence was relatively slight, it did indicate a degree of involvement by Dwayne Williams and the appellant's interest in Detective Burk's dealings with him and his complaint that Burk may be offering Williams immunity and trying to "split us up" were capable of suggesting involvement by the appellant. In addition, there was evidence of another conversation recorded surreptitiously in which the appellant told his sister that if Dwayne Williams got immunity he would get a bullet and that "Noofa" and "Pear" said they would kill him if he did. At the time he was arrested on warrant at his home, he said to his sister "Ring the others".

18. It has not been submitted that the appellant had no case to answer, nor that the learned trial judge's directions on the way the jury should consider a circumstantial case or assess the evidence of identification were erroneous or inadequate. No attack has been mounted on the summing up in respect of the alternative bases upon which the appellant might be found guilty, ie, as a principal or as an accessory. This was clearly a case where the Crown could not establish the precise part which the appellant had played, but it was not submitted that the evidence could not sustain a finding beyond reasonable doubt that he was guilty either as a principal or as an accessory.

19. In considering ground 6, I bear in mind the dicta of Mason CJ, Deane, Dawson and Toohey JJ in M v R (1994) 181 CLR 487 at 493:

"Where, notwithstanding that as a matter of law there is

evidence to sustain a verdict, a court of criminal appeal is

asked to conclude that the verdict is unsafe or

unsatisfactory, the question which the court must ask itself

is whether it thinks that upon the whole of the evidence it

was open to the jury to be satisfied beyond reasonable doubt

that the accused was guilty (see Whitehorn v The Queen

(1983), 152 CLR, at p 686; Chamberlain v The Queen (No 2)

(1984), 153 CLR, at p 532; Knight v The Queen (1992), 175

CLR 495, at pp 504 - 505, 511). But in answering that

question the court must not disregard or discount either the

consideration that the jury is the body entrusted with the

primary responsibility of determining guilt or innocence, or

the consideration that the jury has had the benefit of

having seen and heard the witnesses. On the contrary, the

court must pay full regard to those considerations

(Chamberlain v The Queen (No 2) (supra) at p 621)."

"In most cases a doubt experienced by an appellate court

will be a doubt which a jury ought also to have experienced.

It is only where a jury's advantage in seeing and hearing

the evidence is capable of resolving a doubt experienced by

a court of criminal appeal that the court may conclude that

no miscarriage of justice occurred. That is to say, where

the evidence lacks credibility for reasons which are not

explained by the manner in which it was given, a reasonable

doubt experienced by the court is a doubt which a reasonable

jury ought to have experienced. If the evidence, upon the

record itself, contains discrepancies, displays

inadequacies, is tainted or otherwise lacks probative force

in such a way as to lead the court of criminal appeal to

conclude that, even making full allowance for the advantages

enjoyed by the jury, there is a significant possibility that

an innocent person has been convicted, then the court is

bound to act and to set aside a verdict based upon that

evidence (Chamberlain v The Queen (No 2) (supra) at

pp 618 - 619; Chidiac v The Queen [1991] HCA 4; (1991), 171 CLR 432, at

pp 443 - 444). In doing so, the court is not substituting

trial by a court of appeal for trial by jury, for the ultimate

question must always be whether the court thinks that upon the

whole of the evidence it was open to the jury to be satisfied

beyond reasonable doubt that the accused was guilty (Chidiac

v The Queen (supra) at pp, 443, 451, 458, 461 - 462).

Although the propositions stated in the four preceding

sentences have been variously expressed in judgments of

members of the Court in previous cases, we have put aside

those differences in expression in order to provide

authoritative guidance to courts of criminal appeal by

stating the propositions in the form in which they are set

out above."

20. The submission that the verdict is unsafe and unsatisfactory rests on the following matters:

"The following matters render the verdict unsafe and

unsatisfactory:

(a) the very general nature of the Crown allegations as to

the alleged acts of the accused and the way in which the

case was so presented;

(b) the alternate bases of liability which were necessarily

put by the trial judge as a consequence;

(c) the fact that the only real basis for conviction would

appear to be the accused's presence in the vehicle the

establishment of which relied upon identification evidence;

(d) that otherwise the appellant could not reasonably have

been convicted;

(e) that the identification evidence of the appellant in the

vehicle ought not to have satisfied the jury beyond

reasonable doubt that all hypotheses reasonably consistent

with innocence were thereby excluded.

(f) that there appears little if any rational basis for the

distinction drawn by the jury between counts 1/4 and 2/3."

21. The first two matters can be considered together. In many crimes where more than one person participates, the evidence may fail to demonstrate which was the principal offender. Provided, however, that the jury can be satisfied beyond reasonable doubt that the accused was one of the participants and that if he was not the sole principal he must, at least, have shared in the common purpose, a verdict of guilty may be returned. The fact that there may be difficulty, if not impossibility, in determining the accused's precise role does not make such a verdict unsafe or unsatisfactory. In the present case the frenetic use of the appellant's car in the relatively confined areas of Montagu Bay, Bellerive and Warrane over a period of several hours in which it visited the appellant's home at least twice and stopped for significant periods of time at or near the video hire shop and the telephone exchange when the crimes were undoubtedly committed, strongly supported the inference that it was being used for the transport of those involved in their commission. If the jury were entitled to rely on the identification of the appellant as an occupant or even driver of that car, either at 10.41pm or at 1.09am the following morning, let alone at both times, the inference that he shared a common purpose with the other occupants of the car was one open to the jury to the exclusion of any other reasonable hypothesis consistent with innocence.

22. The identification evidence was subject to an appropriate direction by the learned trial judge. It was given by two police officers whose task it was to keep the appellant's car under surveillance. It was not a casual observation, although I accept that their need to make themselves inconspicuous prevented them from sustained observation. Both witnesses claimed prior knowledge of the appellant, Constable Cashion claiming to have attended the same high school as he did and to have seen him socially on a couple of occasions since, and Constable Bates claiming that he had known him for approximately three years and to have seen him on a number of occasions over that time. Constable Cashion's identification was an unqualified one. That of Constable Bates was that the person he saw at 1.09am "was identical to the" appellant. Constable Bates also claimed to have seen the driver of the Statesman fifteen minutes later on the Bellerive Bluff, describing him as having "appeared to be a person similar to the" appellant. The evidence was relevant and admissible. The learned trial judge gave the requisite warning and in my opinion the jury were entitled to act upon it. I see no reason, having regard to the whole of the evidence, to entertain the conclusion that there is any significant possibility that an innocent person has been convicted.

23. It is not immediately apparent why the jury was satisfied of the appellant's guilt in relation to the damage done at the telephone exchange and to the burglary of Video City but not satisfied of his guilt in respect of the burglary of Rosny College and the theft therefrom of oxyacetylene equipment brought into Video City, presumably for the purposes of opening the safe there. The respondent points out that there was no direct evidence as to when the college was burgled, nor was his car seen in or near its immediate vicinity. Possibly they were unpersuaded it was even burgled that night, as, despite the failure of any alarm to be activated, this incident occurred at the end of the Easter break and there does not appear to have been any evidence as to when the equipment or the place in which it was housed was last seen intact. Whatever the reason, their verdict of acquittal is not inconsistent with the appellant's conviction on the other two crimes which undoubtedly did occur on the morning of 5 April 1994 between 12.30am and 4.15am.

24. Ground 6 also complains that a competing hypothesis consistent with innocence was available on the evidence led at the trial and could not safely be excluded. The appellant, however, did not give evidence. The learned trial judge told the jury that provided they were first satisfied that he had been one of the occupants of the car during the relevant time that night they might, if they saw fit having regard to his ability to explain why he was there, more readily draw an inference of guilt if he chose not to offer an explanation. This was in accordance with the statement of the law expressed by Mason CJ, Deane and Dawson JJ in Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 at 227 - 228:

"... it has never really been doubted that when a party to

litigation fails to accept an opportunity to place before

the court evidence of facts within his or her knowledge

which, if they exist at all, would explain or contradict the

evidence against that party, the court may more readily

accept that evidence. It is not just because uncontradicted

evidence is easier or safer to accept than contradicted

evidence. That is almost a truism. It is because doubts

about the reliability of witnesses or about the inferences

to be drawn from the evidence may be more readily discounted

in the absence of contradictory evidence from a party who

might be expected to give or call it. In particular, in a

criminal trial, hypotheses consistent with innocence may

cease to be rational or reasonable in the absence of

evidence to support them when that evidence, if it exists at

all, must be within the knowledge of the accused."

25. The innocent hypothesis submitted by his counsel to be open on the evidence was that the appellant had withdrawn at some stage from participation in the crimes of which he was convicted and there was nothing to prove that he had not departed the scene. However, in the light of the above quotation from Weissensteiner it was open to the jury to reject that hypothesis in the absence of any claim by the appellant that such was the true situation. I would dismiss the appeal.

CRAWFORD J I agree, for the reasons expressed by Cox CJ, that the appeal against conviction should be dismissed.

SLICER J The appellant was convicted of burglary and unlawfully injuring property, contrary to the Criminal Code, s244 and s273. The crimes were among a number alleged to have been committed by persons acting in concert on the evening of 4 April and the morning of 5 April 1994.

2. In the early hours of 5 April the premises of Telecom Australia at Bellerive were unlawfully entered and a number of telecommunication cables were severed. Those cables, apart from providing communication facilities, were essential to the operation of electronic alarm systems installed at various commercial and public premises within the locality. At some time on 4 or 5 April an educational facility, Rosny College, was entered and an oxyacetylene set and ancillary equipment taken. At a time subsequent, commercial premises known as Video City were burgled with the aid of the acetylene equipment. The Crown case was that the three occurrences were linked, the telecommunication cables being severed in order to disable the alarm system at Rosny College from which the acetylene equipment, necessary for the burglary of the Video City premises, was taken.

3. Police officers had suspicions concerning the events prior to their occurrence and a form of surveillance was maintained throughout the general area. The appellant and/or a motor vehicle registered in his name were sighted by police officers at various times and places consistent with opportunity for his involvement in the commission of the crimes. The persons effecting the burglary of Video City were interrupted and fled, leaving the acetylene equipment in place. Police observed a number of persons quitting the scene and claimed to have been able to identify one of them by name, but did not identify that person as being the appellant.

4. The Crown case was that the appellant was a party to the commission of the crimes either as a principal or as an accessory.

5. The police commenced their investigations concerning the involvement of a number of persons which included the appellant. However, they did not believe the evidence sufficient to enable the laying of charges. As part of the investigation a listening device was installed in the appellant's residence. On 3 May 1994 Detective Constable Burk, one of the investigating officers, spoke to Dwayne Williams, a person suspected of involvement in the crimes, at the Prison Hospital at Risdon. Mr Williams was the man claimed to have been identified as one of those decamping the scene at Video City. On the following day the detective received a message requesting him to contact the appellant by means of his home telephone. On the second attempt the officer succeeded in speaking with the appellant who said that he understood the detective to have visited a person in prison and enquired as to what that person had said. Detective Burk claimed that when he declined to disclose the import of the conversation the appellant pursued the question of the fairness of the prison visit. The notes made by the detective and read to the jury record the following exchange with the appellant:

"He said, 'I don't think it's right, you going round

offering immunity and dropping charges, just to try and

split us up.' I said, 'I'm not discussing that with you of

all people.' He said, 'Who else have you spoken to?' I

said, 'As if I'm going to tell you.' He said, 'Are you

going to offer all of us the same deal?' I said, 'No doubt

we'll be speaking to a number of persons throughout our

enquiries into the Telecom job.' He said, 'S'pose so.' I

said, 'Anything else you want to know?' He said, 'You

haven't exactly been much help, have you?' I said,

'Surprise, surprise.' He then said, 'So you're not going to

tell me anything to do with Dwayne?' I said, 'No.' He

said, 'Not much point talking then, is there?' I said, 'Not

really, not unless you've got something you want to tell

me.' He said, 'Come on, Steve, you know better than that'.

I said 'I'll catch you later then' and then the call was

terminated."

The conversation terminated. Police investigating the crimes had reason to believe that the appellant had knowledge of the events of 4 and 5 April. It could be said that from the appellant's vantage the conversation was an exercise in pro-active or pre-emptive intelligence collation. On 10 May Detective Burk contacted the appellant, by telephone, and requested a meeting saying:

"I want to see you, I won't discuss it over the phone but it

may be in your best interests to see me. You know the car

park at the end of the road near Geilston Bay Tennis Club,

opposite Wreckair, I'll leave now and meet you there in ten

minutes."

6. The account of that conversation and the subsequent meeting was received on the voir dire, which is the subject of this appeal. The telephone conversations and the meeting had potential advantage to both parties. The appellant was interested in ascertaining the extent of police knowledge (whether in his own interests or that of others) whilst the police were not adverse to a form of dialogue which could involve inculpation or, at least, assistance with enquiries.

7. The relevant portions of the conversation between the officer and the appellant, as recorded in note form, subsequent to the meeting are:

"Walsh So what's this all about.

Burk The Telecom job.

Walsh Are you taping me or wired up or something.

Burk No, you can check me. It's just you and me.

Walsh What about it.

Burk You know I went to see Dwayne.

Walsh So what'd that cunt say.

Burk I'm not going to discuss with you anything he told me

same as I won't tell him anything you tell me.

Walsh He's not a credible witness anyway. I've spoken to

my Lawyer Greg Meyer about it.

Burk On his own maybe not. But if hypothetically he did

tell us things about that night and it was corroborated it'd

be enough. We're spending a lot of time and effort on this

investigation and have spoken to a lot of people. We know

more about it than you give us credit for.

Walsh This is one of yours?

POLICE VEHICLE DRIVES AROUND CARPARK, CHECKS BOAT SHEDS

RETURNS THEN DRIVES OFF.

Walsh You're just trying to bullshit me and trying to get

us to give each other up. You've got fucken nothing.

Burk We've got a lot more than you give us credit for.

Walsh Like what.

Burk I'm not going to divulge that but needless to say I

wouldn't bother coming here to see you if we had nothing. I

know you did it with Noof, Cheeky, Pear and Dwayne.

Walsh Look Steve we're not involved.

Burk Don't treat me like a dill, I know a lot more than you

think.

Walsh So why haven't you charged us yet.

Burk The investigations not over yet. At the end of it

charges will be laid.

Walsh What's that got to do with me.

Burk I know you were involved in this ... A lot of people

were affected and inconvenienced by what you

did.

Walsh Why are you after me so bad.

Burk You're the one who planned it and set it up.

Walsh It wasn't me Noof's the one with all the contacts.

Burk What through football.

Walsh Yeah, and down the Clarence. He knows hundreds of

people.

Burk By the way the Reward's going up from 10 to 50 grand

in a couple of days. It hasn't been announced yet so keep

your eye on the News.

Walsh So what do you want.

Burk I want a conviction against the person who planned it

and the one who set it up.

Walsh What's that take.

Burk Giving evidence on oath.

Burk Now that the Reward is going up someone will come

forward. This is your opportunity to tell me about your

involvement in it.

Walsh I'll have to think about it.

Burk You've got my Pager number haven't you.

Walsh Yeah I'll think about it and get back to you.

DRIVES OFF TOWARDS LINDISFARNE."

The accuracy of the account was not contradicted by defence evidence.

8. The ground of appeal claims error, in the ruling that the conversations were admissible or, in the alternative, in the failure to exclude them in the exercise of discretion.

9. The question is whether the evidence is rendered inadmissible by reason of the method of its obtaining. To that extent it is contended that it was the product of a false representation that it would be "off the record". The officer agreed that he had suggested the place of meeting to put the suspect "more at ease". He had told the appellant that he was not equipped with a listening or recording device. Two perspectives arise as a result of the undisputed evidence. The first is that the police officer was, quite properly, prepared to discuss with the appellant an exchange of information and giving of sworn testimony for the de facto immunity of a suspect. An unstated corollary of that conduct was that the source of the information would not be disclosed. Implicit in the conduct of the officer, was the understanding that such statements if made by the appellant would not be used. But the second lay within the domain of the appellant. He was anxious to ascertain the amount of information possessed by the police. Before responding to the implicit offer by the police officer he needed to know the extent of risk. If he provided sufficient information then he could, with justification, expect that his statements would not be used as evidence. But his statements were, at best, equivocal. He had reserved the right to consider his position. He may have believed that the statements were made "off the record" (R v Noakes (1986) 42 SASR 489 at 492 and R v Clark (1986) 23 A Crim R 303) but the question is whether there was an inducement by means of trickery or misrepresentation (Duke v R [1989] HCA 1; (1989) 180 CLR 508) such as to warrant the rejection of the evidence. As Toohey J said in Duke v R (supra) at 526 - 527, the question is whether:

"... the methods by which a confession is obtained may themselves

warrant a conclusion that it would be unfair to admit that material

though there may be no room to doubt its reliability."

However, that question goes to the issue of the exercise of discretion. In this case, the first question is whether the appellant voluntarily made the statement. This was not a case where the will of the suspect was overborne by the questioning officer. The officer had initiated a conversation and, doubtless sought to advance the enquiry by that process. But nothing which he said operated to overbear the will of the suspect. As Brennan J said in Collins v R [1980] FCA 72; (1980) 31 ALR 257 at 307:

"The conduct of police before and during an interrogation

fashions the circumstances in which confessions are made and

it is necessary to refer to those circumstances in

determining whether a confession is voluntary. The

principle, focussing upon the will of the person confessing,

must be applied according to the age, background and

psychological condition of each confessionalist and the

circumstances in which the confession is made.

Voluntariness is not an issue to be determined by reference

to some hypothetical standard: it requires a careful

assessment of the effect of the actual circumstances of a

case upon the will of the particular accused."

10. The learned trial judge determined the question of voluntariness on the basis that the statements made by the appellant did not amount to an admission of the commission of a crime. Zeeman J (B10/1995 (unreported, available on SCALE)at 5) further found as a fact, that:

"What occurred could not reasonably have led the accused to

believe that whatever he said would be kept confidential.

As a matter of fact I am not satisfied that the

representation said to constitute the inducement was made."

Both those findings of fact were open to his Honour and that, alone, is sufficient to dispose of the ground of appeal on the basis of voluntariness. But even if one accepts that the conduct of the officer was capable of constituting an inducement, it does not follow that the statements made were of an involuntary nature. The test is whether the will was overborne (R v Lee [1950] HCA 25; (1950) 82 CLR 133) not whether there was impropriety or lack of good faith on the part of the officer (Collins v R (supra)).

11. As Lord Sumner stated in Ibrahim v R (1914) AC 599 at 609:

"It has long been established as a positive rule of English

criminal law, that no statement by an accused is admissible

in evidence against him unless it is shewn by the prosecution

to have been a voluntary statement, in the sense that it has

not been obtained from him either by fear of prejudice or

hope of advantage exercised or held out by a person in

authority".

12. Accepting that there was, by implication, a belief on the part of the appellant that the conversations would be "off the record" the question is whether the "inducement" could be regarded as affecting his will. Canadian courts have drawn the distinction between result and inducement. Chief Justice Davey in delivering the judgment of the British Columbia Court of Appeal in R v Frank (1970) 2 CCC 102 said at 106:

"I think the promise to keep silent did result in the

statements being made, and the learned trial Judge so found,

but that was not the kind of inducement that will make a

confession inadmissible. The early cases are helpful to

show the development of the principle on which confessions

are excluded, and as illustrations of circumstances in which

confessions have been admitted or excluded under those

principles. However, the principle itself is now clearly

stated by the Supreme Court of Canada in Boudreau v The

King, 94 CCC 1, (1949) 3 DLR 81, (1949) SCR 262, and R v

Fitton, 116 CCC 1, 6 DLR (2d) 529, (1956) SCR 958, which

were applied by this Court in R v Towler, (1969) 2 CCC 335,

5 CRNS 55, 65 WWR 549. There our brother McFarlane, at p

551, stated that it is the rule as formulated by Boudreau v

The King and R v Fitton that must guide the Courts and not

what may be thought to be the reason for the rule. An

inducement to an accused person that makes a confession

involuntary must be hope of advantage to be gained by making

the statement, or fear of prejudice if he does not make

one."

13. That approach was followed by the Alberta Court of Appeal in R v Stewart (1981) 54 CCC (2d) 93 in the judgment delivered on behalf of the court by McGillivary CJA at 108:

"Accordingly, I am of the view that R v Frank, supra, should

be followed, and that what, in effect, was: ... the promise

to keep silent' while it resulted in the statement being

made, it "is not the kind of inducement which would make the

confession inadmissible." In short, the inducement would

not give the appellant any hope of advantage which, in turn,

might constitute a motive for a false statement. It was,

therefore, voluntary within the meaning of Ibrahim v The

King, (1914) AC 599."

Leave to appeal to the Supreme Court of Canada was refused.

14. The fact that the appellant made no incriminating response is itself reason for concluding that his will was not overborne. He had attended the meeting and engaged in conversation as a result of the request of the police officer but the result could not be said to have been the consequence of inducement. The statements made were not a product of hope of advantage in the ordinary sense of the term. At best they could be regarded as a result of avoiding any consequence or, at least, as an attempt to see what information the police possessed.

15. A person who is conscious of the reason for the discussion, and is able to evaluate the benefits and detriments of participation, could not be said to be overborne. A person taken into custody and who is presented with material persuasive of guilt could not be said, by reason of those matters alone, to have made an involuntary confession. But for the detention and the presentation of the material he or she might not have confessed but the response could nevertheless be described as voluntary. An astute questioner might elicit incriminating responses and, to that extent, it could be said that his or her will and intellect overcame the other. The presence of two officers, each playing a different role, could be said to be psychological manipulation, but is not conclusive of an overbearing or destruction of the capacity of the suspect to exercise a right of silence. The principles stated in Lee v McDermott (supra) are as valid now as they were some fifty years ago, but the degree of sophistication in technique and the safeguards against abuse of power have altered substantially. Use of proper, but subtle, techniques of interrogation should not be prohibited simply because they produce a result, which might not have been achieved if a simplistic or mundane technique had been employed.

16. But if the technique involves dishonest or misleading information then its effect is such that one could not have confidence in the result (R v McLeod (1968) 5 CRNS 101).

17. The use of stratagem may be a factor to be considered in relation to the discretion to exclude evidence. In part the existence of the discretion is to afford fairness to an accused person and, in part, it is to ensure that social institutions do not develop practices and procedures which a modern society ought not to tolerate (Cleland v R [1982] HCA 67; (1982) 151 CLR 1). Historically, questions of propriety and accuracy were often interwoven. If there is impropriety, it is dangerous to conclude that the account given by police officers of the responses given by a suspect is even accurate. The corollary is not the case; simply because a response is accurate, it does not establish that it was obtained with propriety. But at least there are now greater safeguards as to the accuracy of statements (McKinney and Judge v R [1991] HCA 6; (1991) 171 CLR 468). If there is confidence in accuracy then greater attention can be afforded the techniques employed to elicit response. As Lamer J observed in Rothman v R (1981) 59 CCC 30 at 68 - 69:

"Bringing about a guilty suspect to admit guilt in a

statement is not in itself an improper activity. It is only

to be repressed if it is done in a way that offends our

basic values, that is in a manner which be contrary to the

rules of law we have developed for their protection and

furtherance. Our criminal justice system has vested the

Courts with two responsibilities: the protection of the

innocent against conviction; and the protection of the

system itself by ensuring that the repression of crime

through the conviction of the guilty is done in a way which

reflects our fundamental values as a society. These

concerns have brought about the elaboration by Judges and

Legislatures of procedural and evidentiary safeguards."

18. The present situation can be summarised in the following manner:

- society is seeking to prescribe forms of interrogation and

their manner of recording which, if followed, will

ordinarily afford a safe basis for the reception of evidence

(McKinney and Judge v R (supra));

- many of those forms and methods are designed to ensure the

accuracy of the account given;

- where there is a breach of the "form" of interrogation

then evidence may be excluded as a matter of condemnation of

a breach of requirement (Cleland v R (supra));

- if accuracy is established, ie the facts that certain

words were said, then minor or unintended lapses will not

necessarily lead to the exclusion of evidence (Pollard v R

[1992] HCA 69; (1992) 176 CLR 177);

- where accuracy is in issue, greater attention ought to be

given to the question of whether safeguards designed to

produce accuracy were followed;

- traditional forms of coercion and inducement, such as the

withholding of bail, lengthy interrogation, violence, or its

threat, and the "planting" of evidence are more difficult to

perpetrate if correct procedures are followed;

- as the system becomes more refined and safeguards

institutionalised, proper psychological techniques or

limited forms of cross-examination should not be discouraged

(R v Pritchard [1991] VicRp 8; (1991) 1 VR 84; R v O'Neill( 1988) 48 SASR 51);

- special consideration should be afforded to factors of age

(Dixon v McCarthy (1975) 1 NSWLR 617; R v M (1976) Qd R 344;

T v Waye (1983) 11 A Crim R 422), physical or mental

infirmity (R v Parker (1990) 19 NSWLR 177); and background

(R v Anunga (1976) 11 ALR 412; R v Narula (1986) 22 A Crim R

409)).

19. There was nothing improper in the police officer requesting a meeting in private and at a place where the suspect might feel comfortable. There was nothing improper in the police officer stating his suspicions and disclosing possible strengths of the investigation already conducted. There was nothing improper in the disclosure that the reward was to be increased since its existence was already publicly known, nor in the suggestion that the appellant might consider taking advantage of either the award or possible immunity. The various propositions were put forward for consideration by the appellant. The appellant stated that he would think about the matters raised. This was not a case of the officer taking advantage of youthfulness or infirmity.

21. The relevant ground of appeal alleges error in that:

"The conviction of the accused in respect of the crimes of

unlawfully injuring property and burglary, counts 1 and 4,

should be set aside as being unsafe and unsatisfactory,

having regard to:

(a) the evidence led at the trial;

(b) the competing hypothesis consistent with innocence

available upon the evidence led at trial."

22. The test is whether a jury, acting reasonably, must have entertained a sufficient doubt as to the guilt of the accused (Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521, Chidiac v R [1991] HCA 4; (1990) 171 CLR 432, M v R (1994) 181 CLR 487 and Kelly v O'Sullivan A39/1995). The test remains the same in an appeal dealing with a circumstantial case. It is evident in the circumstances of this case that the jury was entitled to reach another conclusion, namely innocence, but that is a different issue.

23. The Crown case was that during the evening of 4 April and the early hours of 5 April three inter-connected crimes were committed within a relatively small area. The telecommunication cables were cut in order to disable the alarm system of Rosny College, which enabled the perpetrators to steal the acetylene equipment which provided the means of opening the safe at Video City. On the Crown case actual involvement in one occurrence, by implication, rendered that person liable as an accessory to the other two. The appellant was convicted of the crimes committed at Telecom and Video City, but was acquitted of the burglary and stealing at Rosny. Central to the Crown case was the use of the appellant's motor vehicle and the presence or otherwise of the appellant in that vehicle. His Honour directed the jury that the question was a critical one and "if he was never in the vehicle that's the end of the case, it seems to me, as to the first charges". No complaint is made as to the sufficiency of the directions given in relation to the issues of identification and the nature of a circumstantial case. The appellant contends that on the whole of the evidence, the verdict is unsafe.

24. The appellant resided at Leprena Road, Montague Bay, not far from Rosny College. The Video City premises were situated in Rosny Park, on the eastern side of Rosny Hill Road, a little distance from the college. The Telecom exchange is located in Bellerive, the adjoining suburb. On 3 April the appellant was seen at the premises of Video City. He made no commercial transactions, was seen to look around for some two minutes and then depart. At 10.54pm on 4 April the alarm system at Telecom was activated. Two further alarms were activated at 11.20pm and 11.33pm. An employee attended the premises at 11.55pm and, after inspection revealed nothing amiss, departed at 12.24am on 5 April. The telecommunication cables were severed at 12.41am. No time was fixed for the theft of the acetylene equipment from Rosny College.

25. At 4.14am police interrupted the burglary at Video City and observed a number of people flee the scene. No one was apprehended.

26. The relevant time frame for the commission of the crimes was between 10.54pm on 4 April and 4.14am on 5 April. The movements of the appellant and his motor vehicle during that time were significant matters for consideration by the jury. Police officers had paid attention to those movements during the course of the five and one half hours. A chronological summary of that evidence can be stated with accuracy. At approximately 10.40pm the appellant, together with a passenger, drove his vehicle from his home to a secluded area at Kangaroo Bay, a site near and to the north of the Telecom building. At about 12.53am (some thirty minutes after the departure of the Telecom employee and twelve minutes after the severance of the cables) three to four persons were seen near the appellant's vehicle, which was still parked in the secluded area. The vehicle with four to five occupants moved off at 1.05am. At 1.09am it was parked near a telephone box in Warrane, some little distance from the Video City premises. The appellant was seen to alight from the vehicle and make use of the telephone. It was the Crown's contention that this action was done in order to see whether the severance of the cables had been successful. At 1.16am the vehicle containing the appellant and two other persons was seen in Bellerive and at 1.45am it was seen in a street near the Video City premises. Shortly thereafter, but with only one identified occupant, the vehicle was observed in a road adjoining Rosny College. A number of persons fled the premises at Video City when approached by police at approximately 4.14am. A police officer claimed to have identified one of those persons, who was the same man interviewed by Detective Burk at the prison shortly before his telephone conversations with the appellant. The appellant was not identified, nor was his presence excluded by the observations of police.

27. On 4 May 1994 a conversation between the appellant and a companion was heard (by means of a listening device) in which he said, in discussing the conversations with Detective Burk that it was "Dwayne's word against my word" that he (Dwayne) would have to have put someone else in and that "he (Dwayne) kept watch".

28. When questioned by police on 6 June 1994 about his whereabouts during the time in question, he said "I didn't go anywhere over Easter, I was home all the time" and in relation to the use of his vehicle, said that it was at his residence . When asked whether he had lent the vehicle to another, or whether someone else had driven it, the appellant said: "Look man, I don't even know why I'm talking to yous. I said I was here all night and so was my car".

- objective evidence of the geographical location of the

various premises, including the residence of the appellant

and an accurate time frame of the occurrence of relevant

events;

- the presence of the appellant's vehicle at significant

times and locations, including its positioning in a secluded

and convenient location;

- the presence of the appellant at some, but not all, of

those locations;

- a denial by the appellant of presence of both himself and

his vehicle;

- equivocal conduct in his approach to and dealings with an

investigating detective.

Whilst the identification of the appellant was the subject of challenge and whilst some of the personal identification could be said, if taken alone, to be less than compelling, no such criticism can be made of the vehicle identification evidence. It was clear and cogent. It was open for the jury to reject such evidence on the basis that the police were plainly wrong, or had fabricated their version. But its content was not such that it was subject to the normal deficiencies of identification evidence, such as lack of familiarity, time for observation, mistake and the like. Its make, model, colour and registration plates were observed and recorded. Its presence, taken with the appellant's denial, gives weight and credibility to the evidence of personal identification. Further, the evidence of personal identification possessed cogency in its own right.

"... the identification evidence of the appellant in the vehicle

ought not to have satisfied the jury beyond reasonable doubt

that all hypotheses reasonably consistent with innocence were

thereby excluded".

It is difficult to conceive of a hypothesis which is consistent with innocence. If the vehicle was present at the locations and times alleged and if the appellant was present on some of those occasions, it is difficult to think of an alternative explanation. The varying number of persons in the vehicle, which co-incided with other activity, its pattern of movement and its positioning in a convenient secluded place at a highly significant time, render any reasonable hypothesis consistent with innocence, difficult. The appellant exercised his right not to give evidence, which deprived the jury of an evidentiary basis for considering such a hypothesis. The denial of presence by the appellant and his exploratory discussions with Detective Burk did not raise any possible explanation for consideration. Counsel advanced three hypotheses consistent with innocence, namely that;

"the appellant got out of the vehicle before the entry into

Telecom;

he went home at 12.02am and stayed there leaving others to

make use of the vehicle;

he left the vehicle at a subsequent time as for example when

it was seen travelling in the direction of Risdon Vale."

30. Two answers may be made to the contention. The first is that absence from the vehicle at particular times does not of itself necessarily raise a rational hypothesis consistent with innocence. The explanation of the component parts of the hypothesis is that he was engaged in other parts of the criminal enterprise. The second is that they defy logic, common sense and human experience. Why did he commence a journey and not complete it? Why would he undertake a pointless journey and return home, leaving others to make use of the vehicle? The basis of an alternative hypothesis lay within his personal knowledge. He elected not to give evidence. The appropriate direction in relation to how the jury could make use of his failure to give evidence was given to the jury:

"... if you are satisfied beyond reasonable doubt

without regard to what I'm about to say to you that he was

present in that vehicle during that relevant period it may

be that from that he was present in the whole of the

circumstances you can more readily draw the inference that

he's guilty, that is, that the only rational conclusion you

can draw from the evidence is that he's guilty of the

relevant crime because he has given you no explanation as to

why he was in that car at that particular time, at that

particular place. Well I suppose it requires no great

perception that if in fact he was present and the Crown must

prove that without reference to any of the reasons to which

I'm now referring but if you've got that far, you've

established, you're satisfied of that, that it would be in

his mind as to why he was there, only he and he alone can

tell you what was in his head at the time why he was there.

So all it means is that if you are satisfied beyond

reasonable doubt that he was in the car that the absence of

any explanation from him as to why he was in the car enables

you more safely to draw the inference that he was there for

the very purposes which the Crown said that he was there

for. You see the Crown case is that it asks you to infer

guilt from a whole collection of circumstances."

An analysis of the evidence of surveillance renders the "alternative hypotheses" approach untenable. Different officers separately observed the movement of the vehicle and the occupants throughout the evening. On some occasions officers observed the same movements from different vantage points. On others, only one officer made the observation. The two main witnesses were Constables Bates and Cashion and it is primarily from their observations that the following compilation is made.

10.37pm

Blue Holden Statesman DG 3723 left appellant's home and travelled

towards Bellerive via Riawena Road. Appellant identified as driver.

10.43pm

Vehicle parked in secluded area, Kangaroo Bay Road.

11.13pm

Vehicle left Kangaroo Bay Road.

11.16pm

Vehicle at Mobil Service Station, Bellerive, single occupant (not the

appellant) identified.

11.30pm

Vehicle travelled from direction of Risdon Vale to Bellerive Quay.

11.46pm

Vehicle parked in Kangaroo Bay Road.

11.58pm

Vehicle travelled from Kangaroo Bay Road, towards Montagu Bay.

12.01am

Vehicle parked outside appellant's residence.

12.04am

Vehicle left appellant's residence.

12.06am to 12.53am

Vehicle parked at Kangaroo Bay Road

12.53am

Three to four persons observed near the vehicle.

1.05am

Vehicle left Kangaroo Bay Road and travelled to Rosny Hill Road.

1.09am

Vehicle observed outside telephone box in Warrane and appellant

observed to leave vehicle and make a telephone call.

1.10am

A number of vehicle movements from Warrane area to Bellerive.

1.16am

Vehicle, with three occupants, observed parked in King Street. Driver

appeared to be similar to the appellant.

1.45am to 1.47 am

Vehicle seen driving along Cambridge Road and general area with five

occupants.

1.48am

Vehicle parked near Video City.

1.51am

Vehicle travelled towards Riawena Road.

2.00am

Vehicle travelled towards Bellerive.

2.40am

Rear doors of Video City found to be ajar.

4.04am

Three persons seen wheeling heavy object towards Video City.

4.15am

Person seen running from front door of Video City.

4.14am to 4.20am

Person seen running from Video City premises, one of whom was

identified as Dwayne Williams. Acetylene equipment taken from Rosny,

found at scene.

31. The identification evidence was given by persons with prior knowledge of the appellant. Constable Cashion had attended the same school as the appellant, whilst Constable Bates had known him for some three years. The evidence of Constable Bates was compelling:

"I observed the blue Statesman parked in the vicinity of a

telephone box which is situated at the intersection of

Edgeworth Street and Bass Streets in Warrane. I observed a

male person who was identical to the accused, Darrell Glen

Walsh and he was in the phone box, I observed that he used

the phone very briefly."

32. But it is the evidence of the movement of the motor vehicle, identified by registration number, which is the most cogent. If that evidence was accepted by the jury, no room was left for a hypothesis consistent with innocence. The jury had no other evidence capable of leading to an alternative hypotheses and given that the defence had provided no such evidence, it was safer for the jury to accept its cogency. As Mason CJ, Deane and Dawson JJ said in their joint judgment in Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 at 227 - 228):

"... doubts about the reliability of witnesses OR ABOUT THE

INFERENCES TO BE DRAWN FROM THE EVIDENCE may be more readily

discounted in the absence of contradictory evidence from a

party who might be expected to give or call it. IN

PARTICULAR IN A CRIMINAL TRIAL HYPOTHESES CONSISTENT WITH

INNOCENCE MAY CEASE TO BE RATIONAL OR REASONABLE IN THE

ABSENCE OF EVIDENCE TO SUPPORT THEM WHEN THAT EVIDENCE, IF

IT EXISTS AT ALL, MUST BE WITHIN THE KNOWLEDGE OF THE

ACCUSED." (Emphasis added.)

33. Hypotheses concerning the possibility that the appellant may have left the vehicle at 12.04am or left at Bellerive, cease to be rational in the light of the multitude of vehicle movements, the denial of the appellant that either he or the vehicle left Leprena Street and the absence of any other evidence contrary to the prosecution case.

34. The appellant contended that the acquittal of the counts involving Rosny College indicates the unsatisfactory nature of the verdict. In reality, it supports the opposite. There was no direct evidence of the time of the burglary at the college. There was no evidence that the appellant was in the vehicle when it was seen nearby. A number of persons were involved in the enterprise. The jury might not have been satisfied, to the requisite degree, that the appellant was involved in, or had knowledge of, the obtaining of the acetylene equipment. The jury might not have been satisfied that the equipment was taken after the appellant's vehicle was seen leaving the residence at approximately 10.40pm. There were a number of explanations permitting of innocence and the jury gave effect to those possible hypotheses.

35. It was certainly the case that the jury was required to be satisfied, beyond reasonable doubt, as to identification before it could give effect to the wider ambit of the circumstantial case (Shepherd v R [1990] HCA 56; (1990) 170 CLR 573) but, if it was so satisfied, it was not required to erect an artificial edifice, unsupported by evidence, to give effect to the direction as to a circumstantial case. It is the nature of the circumstancial case that the components examined singly may be insufficient to establish guilt, but their combination leads to a proper conclusion of guilt. The jury was entitled to reach the conclusion of guilt.

36. The ground of appeal is not made out. The appeal against conviction should be dismissed.