Consideration
99The appellant submitted it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of the offences with which he was charged. He contended that the Crown case was one of recent possession and that was the critical issue in the case. He contended that an hypothesis consistent with innocence was that he was in possession of the items disposed of by the intruder. Those items, namely, the American Express card and the keys, could easily have been disposed of by the intruder so as to innocently come into the appellant's possession by his finding them on the side of the road. He also relied upon the time lapse between the time when the offences occurred and the appellant being detained with the stolen items in his possession.
100The appellant submitted that the following factors also indicated that the verdict was unreasonable: no knife was ever found; the intruder was seen fleeing the location, whereas he was detained close by; there was, on one view of the evidence, exculpatory identification evidence by the principal witness, RF, who gave a description of the intruder to her father, and on another view, weak inconclusive in identification evidence, which was open to being tainted by RF seeing the appellant when he was arrested by the police; and there was no forensic evidence linking the appellant to the interior of either of the premises.
101The principal thrust of the Crown case was that the appellant had been clearly identified by RF as the person who had entered unit 10, he had been detained by police on the basis of that description near the units shortly afterwards, and was found in possession of the stolen items. It should be noted that the appellant made no complaint as to the directions given by the trial judge in respect of the identification evidence.
102The appellant submitted, however, that the identification evidence was weak and inconclusive. The submission advanced was twofold. First, that RF's evidence had to be viewed in the context that first she gave a description to her father whilst he was making the triple 0 call but had made her recorded interview shortly after having seen the appellant being detained by police. Secondly, RF's father's evidence was also to be considered in the context that he too saw the intruder at the time he was detained by the police so that his evidence of the intruder wearing a "light coloured t-shirt and I think it was striped" may have been affected by what he saw at that point rather than what he saw as the intruder was running up the street.
103It is convenient therefore to focus on the identification of the intruder that was given to the police in the triple 0 call. At that time, RF had not been outside the unit and thus had not seen the appellant sitting on the side of the road in police custody. It is apparent from the evidence that RF's father was conveying to the police the description that RF had given to him just before he made the call. The description to the police was that the intruder was "skinny", "white", in his "mid to late 40s", that he had "grey spiky hair" and "a goatee" beard. The appellant was in fact a lightly built Caucasian male with short grey spiky hair and a goatee beard. This was apparent from the CCTV footage taken of him on the night and was consistent with all the other evidence at trial. These aspects of the description were not disputed in the evidence at trial. He was aged 38 years 6 months at the time of the offence. A description of mid to late 40s was not inconsistent with the CCTV footage.
104During the triple 0 call to the police, RF said that intruder was wearing a white t-shirt with something on the front of it. She said he was wearing black pants. There is no doubt that on the night the appellant was wearing a white and grey striped polo shirt. That is depicted in the CCTV footage. At that time he was also wearing a black jacket. In his evidence, the appellant said that the shirt had "Billabong written across the front in red". Robyn Kemp had described the shirt as "white grey with red stripes going through it".
105RF did not see whether the intruder had tattoos on both arms.
106In the recorded interview, RF described the "t-shirt" as "white and it had something on it". She was asked "[w]here was the something?" and she answered, "[i]t was just like, around because when the screen went bright I saw things like, on his t-shirt". This remained consistent with the description given to the police during the triple 0 interview.
107RF's description of the appellant's height given in the recorded interview was not challenged. It was consistent with the appellant's height.
108In my opinion, the essential description given of the appellant, before RF saw him in the custody of the police, was as close to a perfect match as could be given. There was one error and one omission in the description. The error was the colour of the pants he was wearing. The omission was the tattooing on his arms. RF did not deny that there was tattooing. She did not observe it. However, neither of those deficits in RF's observations is sufficient to undermine the clear and accurate description she otherwise gave of him, bearing in mind that her observations were for a brief period, perhaps for about three seconds.
109The fact that her father's description of the shirt that the intruder was wearing was given after he had seen the appellant in police custody does not undermine RF's description in the slightest. I would reject this aspect of the appellant's argument.
110The next matter upon which the appellant relied was the failure to find a knife. RF gave a description of the knife and the hand in which the knife was being held (the appellant's right hand). She explained how she was able to see it because of the light coming from the television. She said she first mentioned the knife to her mother when her father was outside. It is apparent from the evidence that she told her father about it when he returned and before he rang the police. She also explained how her father had got a knife from the kitchen and she assessed the size of the knife against the knife he showed her. In cross-examination, she said she might have got a knife from the drawer to show her father.
111No knife was found at the scene. The evidence of the extent of the search for a knife was scant. The only evidence was that Detective Rhodes-Sanders had directed that a search be undertaken and that she had no reason to believe other than that it was thorough and competent. The area in the vicinity of the apartments was bushy and the appellant and Anthony Kemp had been away walking in the vicinity for approximately 20-30 minutes before they were apprehended by the police. Whilst the fact that no knife was found was important, subject to any questions that arise out of RF's evidence that her father went to the kitchen and got a knife, the failure to find a knife does not raise, in my mind, a doubt that the appellant did not have a knife.
112That leaves for consideration RF's evidence that her father went into the kitchen to get a knife by which she assessed the size of the knife that the intruder was holding. RF's evidence varied on this. In her recorded interview, RF said that her father had gone into the kitchen. Under cross-examination, she said she thought she pulled the knife out of the drawer. She described it as getting it "out of the thing". She said that after showing her father, she put it back in the drawer. Her father said he did not take a knife and show it to her. Her mother did not see that occur. RF's father was not asked whether RF got a knife and showed it to him, although his evidence was given before she gave her evidence.
113Notwithstanding this difference in her evidence, RF said from an early point that the intruder had a knife. Her description of the knife did not change, save perhaps for a very slight difference in her estimation of its length. There was no challenge to the evidence that the intruder was holding the knife in his right hand, nor was it suggested that the appellant was not right-handed. Whether or not she was mistaken about her father showing her a knife, her point of reference as to the size of a knife was with a knife in the kitchen.
114Whether she was mistaken that her father showed her the knife or she got the knife and showed her father, or whether her father could have forgotten this part of the events, does not mean that RF did not see a knife. Further, although the cross-examination was directed at undermining her evidence that she saw a knife, it was never suggested directly to her that she did not do so. The most that was put to her was that keys are also silver. That aspect of the cross-examination is set out above at [60]. In my opinion, it was a convincing rebuttal of any suggestion that what she saw was anything but a knife.
115In my opinion, having regard to RF's evidence as a whole, I am satisfied that the person she saw had a knife.
116The next basis upon which it was alleged that the verdict was unreasonable or not supported by the evidence was the absence of any forensic evidence linking the appellant to the interior of the premises. In my opinion, having regard to the difficulty in obtaining forensic evidence as described in the agreed statement of facts, particularly from the door handles, this aspect of the appellant's challenge does not throw doubt upon the otherwise unassailable description of the appellant having been the person who entered into unit 10.
117One further factor should be mentioned, although not specifically raised by the appellant in argument on this ground, and that is the evidence of Robyn Kemp that the appellant and Anthony Kemp did not leave the house until between approximately 10 pm and 10:40-10:45 pm. The appellant and Anthony Kemp were first seen by the police at 10:43-10:45 pm. It was a 12 minute walk from the house to the apartments. On those times, they had to have left the house at the latest by 10:33 pm. The offences had occurred by then. RF's father's evidence was that the break and enter into unit 10 occurred between 10 and 10:30 pm. He had been outside for at least 20 minutes after RF told him that a person was in the house. There had to be added to that the time taken to telephone the police and for the police to send out a message over police radio. The offences, therefore, must have occurred between about 10 pm and 10:20 pm.
118Whilst there is not an overly divergent discrepancy with Robyn Kemp's evidence and it might have been considered to be a reasonable estimate, the fact is she said in cross-examination that she looked at the clock when the appellant said that they were going to the bottle shop and saw that it was 20 minutes or quarter to 11. The discrepancy is therefore significant. It is also to be remembered that Robyn Kemp said that she separated from the appellant and Anthony Kemp at the park near the apartment building, although she said that they came back to the house a short time later.
119The Crown had to prove and the jury had to be satisfied, beyond reasonable doubt, that the appellant broke and entered into the manager's unit and stole the American Express card and the keys to units 8 and 10 so as to be guilty of the larceny count and that he broke and entered unit 10 armed with a knife so as to be guilty of the aggravated break and enter offence.
120The identification evidence was overwhelmingly that it was the appellant who entered unit 10. The appellant was found in the vicinity of the apartments in possession of items stolen from the manager's office (other than the keys which had been left in the door of unit 10). That evidence, combined with the fact that the intruder gained entry to unit 10 with a key, a key to unit 10 had been stolen from the manager's office and he was identified as the intruder in unit 10 pointed overwhelmingly to his having broken into the manager's office. The fact that there was some evidence, although I would indicate not much, that showed he was still at the house where he was staying at the time of the offences, is not sufficient to raise a doubt that he committed the larceny offence.
121That leaves the question whether the jury must have had a doubt as to whether the appellant had a knife, that being the matter of aggravation in respect of count 2. As I have indicated, RF gave consistent and contemporaneous evidence that the intruder in the unit had a knife. She described it, in consistent terms, on more than one occasion, including in cross-examination. She was never challenged directly that the intruder did not have a knife.
122The differences in RF's evidence about either her father or herself getting a knife from the kitchen to assess the size of the knife and her father's denial that he had done so, did not require the conclusion that the appellant was not in possession of a knife when he entered the unit. Inconsistencies in the evidence of a witness, including the principal witness, or differences in the evidence given by witnesses does not compel a conclusion that the essential aspects of the witness' evidence are not to be believed. As was explained in Libke, the fact that there is some evidence contrary to the evidence which is relied upon by the Crown to establish guilt does "not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt".
123Having made an independent assessment of the evidence, I am satisfied "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt" that the appellant was guilty of the larceny offence and the aggravated break and enter offence: see M at 493.
124I would dismiss ground 2 of the appeal.