Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Whether verdicts unreasonable and cannot be supported - Turns on own facts

Dean v Legal Practice Board [2016] WASCA 63

EXF v The State of Western Australia [2015] WASCA 118

Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013

The State of Western Australia v Olive [2011] WASCA 25

Wimbridge v The State of Western Australia [2009] WASCA 196

1 The appellant appeals against his convictions, following trial by jury, on one count of aggravated burglary and two counts of grievous bodily harm. He had pleaded guilty to two counts of stealing a motor vehicle.

2 He appeals on the ground that, having regard to the evidence, the verdicts are unreasonable and cannot be supported. For the reasons that follow, we would dismiss the appeal.

3 The appellant was charged on a joint indictment with Cleve Gerardi and Lorenzo McKenzie. At the commencement of the trial, each accused pleaded as follows:

5 May 2013 at Boulder, stole a motor vehicle, registration number KBC380E, the property of Kalgoorlie Main Street Motors.

5 May 2013 at Boulder, stole 46.99 litres of fuel to the value of $78.92, the property of Central Pty Ltd trading as BP Kalgoorlie Boulder Truck Stop.

5 May 2013 at Monjingup, while in the place of Mrs E without her consent, committed the offence of stealing in company with each other and did bodily harm to Mrs E and Mr E, and that immediately before the offence they each knew or ought to have known that there was another person in the place, and that the place was used for human habitation.

On the same day and at the same place, with intent to do grievous bodily harm to Mr E, unlawfully did grievous bodily harm to Mr E and that Mr E was of or over the age of 60 years.

On the same day and at the same place, with intent to do grievous bodily harm to Mrs E, unlawfully did grievous bodily harm to Mrs E and that Mrs E was of or over the age of 60 years.

On the same day and at the same place, stole a motor vehicle E28209, the property of Mrs E.

On the same day at Boulder, drove a motor vehicle E28209 in a manner that was, having regard to all the circumstances, dangerous to the public.

5 May 2013 at Monjingup, while in the place of Mrs E without her consent, committed the offence of stealing in company with each other and did bodily harm to Mrs E and Mr E, and that immediately before the offence they each knew or ought to have known that there was another person in the place, and that the place was used for human habitation.

On the same day and at the same place, with intent to do grievous bodily harm to Mr E, unlawfully did grievous bodily harm to Mr E and that Mr E was of or over the age of 60 years.

On the same day and at the same place, with intent to do grievous bodily harm to Mr E, unlawfully did grievous bodily harm to Mr E and that Mr E was of or over the age of 60 years.

On the same day and at the same place, with intent to do grievous bodily harm to Mr E, unlawfully did grievous bodily harm to Mr E and that Mr E was of or over the age of 60 years.

On the same day and at the same place, did grievous bodily harm to Mr E and that Mr E was of or over the age of 60 years.

On the same day and at the same place, with intent to do grievous bodily harm to Mrs E, unlawfully did grievous bodily harm to Mrs E and that Mrs E was of or over the age of 60 years.

On the same day and at the same place, with intent to do grievous bodily harm to Mrs E, unlawfully did grievous bodily harm to Mrs E and that Mrs E was of or over the age of 60 years.

On the same day and at the same place, with intent to do grievous bodily harm to Mrs E, unlawfully did grievous bodily harm to Mrs E and that Mrs E was of or over the age of 60 years.

On the same day and at the same place, did grievous bodily harm to Mrs E and that Mrs E was of or over the age of 60 years.

5 The State's case is accurately summarised in the appellant's submissions, as follows:

(1) On Sunday 5 May 2013 each accused, together with Isabella Akee and Brendan Wells, were in the stolen motor vehicle KBC380E, the accused having stolen it from the premises of its owner (count 1).

(2) They stopped at a petrol station. McKenzie filled the car with petrol, and the car drove off without paying for the petrol (count 2 and s 32 Notice).

(3) On their way to Esperance, the car ran out of petrol. They abandoned the car and walked towards a nearby property. Living in the house on the property were the victims, Mr E (70) and Mrs E (66). They were at home. Ms Akee and Brendan Wells stayed at the bottom of the driveway while the three accused walked up to the house. All three accused entered the house. While in the house:

• Mr and Mrs E were hit over the head with a blunt object, most likely a hammer (counts 4 and 5);[2]
• car keys to the victims' car were stolen, as was a wallet, bottle of alcohol, a camera and some mobile phones (count 3).

(3) The three accused then drove down the driveway in the victims' car. Ms Akee and Brendan Wells got in at the bottom of the driveway, and the car was driven to Esperance (count 6). McKenzie was holding a hammer in the car and made admissions to the occupants of the car that he hit the E's with it. The appellant was holding a bottle of whisky when he ran to the car which was parked near the house.

(4) In Esperance they were served in the 'drive through' of the Traveller's Inn. They then drove back to Kalgoorlie in the E's car, pursued by police. Gerardi was the driver. He drove the car at over 175 km per hour to escape pursuit, and attempted to ram a police car (count 7).

(1) all three accused went into the house;[3]

(2) each of them entered the house with a shared intention to steal car keys;[4]

(3) one or some of the offenders inflicted injuries amounting to grievous bodily harm on the two occupants of the house;[5]

(4) each accused is guilty of causing grievous bodily harm with the intention to do so because each of them aided the others in the commission of the offence and joined in the intention of causing serious injuries;[6]

(5) further or alternatively, the causing of grievous bodily harm, with the intention to do so, was a probable consequence of the joint intention of the parties to go into the house and steal the car keys.[7]

7 The judge charged the jury consistently with this. The judge told the jury, in relation to count 3, that the State contended that the three accused were all joint offenders, and all s 7(a) offenders; all entered without consent; they all stole property.[8] In relation to counts 4 and 5, the judge told the jury that it was the State's case that it was McKenzie who inflicted the grievous bodily harm on the two victims. He told the jury that the State's case in relation to the appellant and Gerardi was that they were either s 7(c) offenders, as aiders, as to which the jury must be satisfied that they had actual knowledge of the facts amounting to the offence for which aid is being provided;[9] or a party by virtue of s 8 of the Criminal Code (WA).[10] The judge correctly directed the jury as to the operation and application of s 8. The appellant makes no complaint in that regard.

8 The jury convicted the appellant on count 3 as charged. On counts 4 and 5, the jury convicted the appellant on the alternative verdict of doing grievous bodily harm (without intent to do so).

9 The findings of fact stated by the judge in sentencing were broadly consistent with the State's case.[11]

10 It is not necessary to restate the well-known principles governing the extension of time to appeal.[12]

11 There has been a lengthy delay between sentence and the filing of the appeal. In this case it seems to us that the question of whether to extend time turns on the merits of the appeal. In the circumstances of this case, if, but only if, the complaint in the appellant's grounds of appeal is made good, it would be in the interests of justice for an extension to be granted. However, for the reasons below, we would not uphold the proposed grounds of appeal. Consequently, we would not grant an extension of time.

12 The appellant appeals on the ground that, in relation to each of counts 3, 4 and 5, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

13 The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.

(1) the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;

(2) the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;

(3) that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;

(4) in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;

(5) a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;

(6) if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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 appellate court must set aside the verdict;

(7) the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.[13]

14 The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in The Queen v Baden-Clay[14] as follows:

(1) When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

(2) The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.

(3) For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.

(4) In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.

(1) it was essential to the State's case on each of counts 3, 4 and 5 that the appellant entered the victim's house;

(2) on the whole of the evidence, it was not open to be satisfied beyond reasonable doubt that the appellant entered the victim's house.

16 The respondent accepts the first proposition, but denies the second.

17 The following features of the evidence at trial are common ground:

(1) The State's case that the appellant entered the house was circumstantial. Neither of the two victims identified the appellant, and neither could say how many people entered the house.

(2) While the State led substantial DNA and other forensic evidence about the other accused taken from inside the house, the State did not lead any DNA or other forensic evidence from inside the house that in any way implicated the appellant.

(3) None of the accused spoke to the police and none gave evidence at trial.

18 The State's case relied primarily on the evidence of Ms Akee although, as the respondent's submissions correctly emphasised, that evidence must be viewed in the context of the evidence at trial as a whole.

19 Ms Akee's evidence was that she and Brendan Wells stayed at the bottom of the driveway while the three accused walked up to the house. At some point in her evidence, Ms Akee said that the three went into the house. However, on a consideration of her evidence and the evidence as a whole, it is clear that she did not actually see any of the three men go into the house. The respondent accepts that the evidence at trial indicates that entry to the house was through a rear sliding door and that Ms Akee could not see that from where she was.[15]

(1) She waited with Brendan Wells at the end of a long driveway.[16]

(2) She saw the three accused walk around the side of the house.[17] She did not see them go into the house.[18]

(3) It was dark.[19] While waiting she talked to Brendan Wells and did not always pay attention to the house.[20]

(4) A short time later, described in her evidence at different points as a few minutes or 20 minutes, she saw the three accused come running and then get into the car.[21]

(5) One of the three, she thought the appellant, had a whisky bottle when he ran to the car.[22]

(6) One of the accused drove the car to where she and Brendan Wells were waiting, and then they got in the back seat of the car.[23] McKenzie was also in the back seat; the other two accused were in the front.[24]

(7) When she got in the car, she saw that McKenzie had a hammer.[25]

(8) One of the accused brought a mobile phone into the car.[26]

21 The effect of Ms Akee's evidence was that the three men were together at all times she saw them. On her evidence the three men went up the driveway together, and then were together when she saw them come running from the rear side of the house and then get into the car.

22 One inference from the evidence of Ms Akee is that all three men went into the house. The appellant submits that an alternative reasonable inference is that the other men went into the house and committed the offences while the appellant stayed outside the house.

23 As we have said, the question of what reasonable inferences are open must be determined in light of the whole of the evidence. For the reasons that follow, in our view, on the whole of the evidence there was no reasonable inference that the appellant stayed outside the house.

24 It was open to the jury to be satisfied that the purpose of the three men in walking up the lengthy driveway was to steal a car to replace the one they had earlier stolen which had run out of petrol. Counsel for the appellant did not suggest otherwise. In determining what reasonable inferences were open on the evidence, the jury could give attention to the question of what, in those circumstances, might be the appellant's purpose in waiting somewhere outside the house. An inference that, in those circumstances, the appellant just waited outside for no reason was not a reasonable inference on the evidence. Nor, as counsel for the appellant accepted, was an inference that the appellant waited outside as a lookout a reasonable inference.[27] The victim's house was located at the end of a long driveway on a rural property 10 km north of Esperance.[28] It was dark, and there was no street lighting. The offenders entered the house by a back door which was not visible from the road. In the circumstances, a person outside the house could not play any meaningful role as a lookout.

25 The only alternative inference identified by counsel for the appellant was that the appellant stayed outside in order to be ready 'in case something happens',[29] or to assist in a speedy getaway.[30] In our view that inference is not, on the whole of the evidence, a reasonable one. Further and in any event, such an inference does not assist the appellant because it is not an inference consistent with innocence. We proceed to explain those conclusions.

26 The appellant's submissions did not explain how a person who waited outside the house might be expected to assist in making a speedy getaway. In circumstances where the plan was to steal car keys from the house, and then use the keys to drive away, it is, to say the least, unclear how a person waiting outside might be expected to assist in making the getaway quicker. In the circumstances, a conclusion that the appellant waited outside to assist in a speedy getaway does not arise as a reasonable inference from the evidence.

27 It was not clear from the appellant's submissions on this appeal whether the hypothesis that the appellant waited outside in case something happened was put as a distinct hypothesis from the speedy getaway inference. If it was, counsel for the appellant did not explain what it was that, having waited outside, the appellant might be expected to do to assist. Nor did counsel for the appellant identify the event or events following which the appellant, having waited outside, might be expected to assist. An inference that the appellant waited outside 'in case something happened' after the two others had gone inside to steal car keys was not a reasonable inference on the evidence.

28 The conclusion that the alternative inference(s) propounded by counsel for the appellant was not a reasonable inference is reinforced by other aspects of the evidence. None of these aspects of the evidence is, in isolation, of critical weight in identifying what reasonable inferences are open; they are simply part of the evidentiary picture to be considered in determining that question.

29 First, given that there were lights on in the house,[31] and given the presence of cars in the garage, the offenders had reason to anticipate the presence of people inside the house. That makes it more likely that all three of them would have entered the house, in order to ensure that they overcame any resistance to their taking of the car keys.

30 Secondly, Ms Akee gave unchallenged evidence that she saw one of the males carrying a bottle of whisky after leaving the area of the house and before getting into the car, and that she thought that person was the appellant.[32] Given the small volume of items that were stolen, it seems to us to be speculation, rather than a reasonable inference, to assert, as counsel for the appellant does,[33] that one of the others may have given the bottle of whisky to the appellant after coming outside and rejoining the appellant.

31 Thirdly, Ms Akee's evidence was that she saw a mobile phone in the car when she got into it. There was evidence that the appellant used Mrs E's phone within no more than 30 minutes after the burglary was committed.[34] There was no evidence that either of the other two accused used the phone.

32 The appellant's possession, shortly after the burglary, of goods stolen from the house supported the inference that he entered the house and stole the items. It also counted against the appellant withdrawing from the prosecution of the burglary before the offences occurred, and declining to enter the house for that reason.

33 For these reasons, in our opinion it was open to the jury to be satisfied that the only reasonable or rational inference was that the appellant went into the house. The alternative inference propounded by the appellant - that he stayed outside in order to assist in a speedy getaway or in case something happened - was not, on the whole of the evidence, a reasonable inference.

34 Further and in any event, in a circumstantial case, the question is whether there is an alternative reasonable inference consistent with innocence. The alternative inference propounded by the appellant is not consistent with innocence. On the appellant's propounded hypothesis, he knew that the other offenders intended to go into the house to steal car keys, and then steal the car, knew that it was likely that the house was occupied, and acted to assist in that plan. On that hypothesis, the appellant was guilty under s 7(c) of the offence of burglary and guilty under s 8 of the offences of doing grievous bodily harm. As we have said, the appellant does not challenge the conclusion that, assuming he went into the house, the doing of grievous bodily harm was a probable consequence of the prosecution of the unlawful purpose. Whether the doing of grievous bodily harm was a probable consequence of the parties' common intention to go into the house and steal car keys is not materially altered by whether the appellant went into the house or waited outside in order to assist in the way (or ways) postulated by the appellant.

35 The appellant submits that, because the State's case was that he went into the house, the availability of an alternative reasonable inference that he waited outside in order to assist with a speedy getaway means that he should not have been convicted. It is correct that the State's case at trial was that the appellant went into the house. However, in a circumstantial case, the question is whether there is an alternative inference consistent with innocence. An alternative inference that the accused committed the offence(s) charged, but did so in a way different from the way alleged by the State, is not an inference consistent with innocence. At the trial, counsel for the appellant did not identify, as an alternative reasonable inference, that the appellant waited outside the house in order to assist the others to make a speedy getaway. Had counsel done so, it can confidently be expected that the State would have indicated that it wished to rely on that as an alternative pathway to guilt, and the trial judge would have directed the jury accordingly.

36 For these reasons, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt of guilt on counts 3, 4 and 5. Consequently, none of the grounds of appeal succeeds, and the appeal must be dismissed.

37 For the reasons we have given, we would order that the application for an extension of time to appeal and the appeal be dismissed.

[1] The appellant pleaded guilty to this charge by way of section 32 of the Sentencing Act 1995 (Section 32 Notice).

[2] His Honour found, at sentencing, that it was McKenzie who had the hammer and hit both victims, ts 2.2.15, 610.

[12] Wimbridge v The State of Western Australia [2009] WASCA 196 [19] - [25], [42] - [49]; EXF v The State of Western Australia [2015] WASCA 118 [5] - [8].

[13] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 495; Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439, 450; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [13]; The State of Western Australia v Olive [2011] WASCA 25 [39] - [43]; Dean v Legal Practice Board [2016] WASCA 63 [130]; The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 [65] - [66].

[14] The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 [46] - [47].

[16] ts 180, 192, supplementary ts 19. Due to a technical issue, supplementary transcript with page numbering starting from 1 was produced for a portion of the trial on 20 August 2014. This transcript will be referred to as 'supplementary ts'.

[17] ts 180 - 181, supplementary ts 19, 22.

[23] ts 181 - 182, supplementary ts 13.