Geitz v R

The case at trial 6At trial, the Crown case was that the appellant, on the evening of 20 October 2011, broke into the manager's unit at the Calypso Apartments in Coffs Harbour and stole the keys to two sets of units, namely, units 8 and 10 in those premises, as well as an American Express card. This was the conduct charged under count 1 (the larceny offence). The appellant was said to have then gained entry to unit 10 with the set of keys he had stolen from the manager's office. It was alleged that at the time, he was armed with a knife. This was the conduct charged under count 2 (the aggravated break and enter offence). 7At that time, unit 10 was occupied by DF, his partner, CF and their three daughters, including RF, who was then 13 years old. RF's parents had gone to bed and RF remained up watching television. Their second daughter was asleep on the lounge. 8RF first heard knocking at the door. She went to her parents' bedroom and told her father. He told her not to worry about it, that "it was ... too late". She returned to the lounge room and saw "the door handle moving". She went back to her parents' room and told her father that "someone was trying to get in" to the apartment. Her father sat back up in bed and she took a couple of steps back into the lounge room when she saw a man standing in the lounge room "leaning over the couch looking at my baby sister with a knife". She ran back into her parents' room and said to her father, "someone's in the house". She said that the man then ran out of the unit. 9RF's father jumped out of bed and ran outside. When he returned, he telephoned the police and provided a description of the intruder as a "skinny" "white" male, with "grey spiky hair", in his "mid to late 40s with a goatee". This description, for the most part, came from what RF, who was standing beside him whilst he was speaking to the police on the phone, was telling him. He gave the police a description of the clothing he saw the man wearing. 10The appellant was apprehended by two police officers in the presence of his nephew, at a short distance from the apartments. The police searched the appellant and found him in possession of the American Express card which was identified as belonging to the manager and a set of keys belonging to unit 8. (The keys to unit 10 had been left in the lock of the door to that unit.) 11The prosecution case was that the appellant was the intruder who broke into the manager's residence and who entered unit 10. The defence case was that the appellant was walking by the apartments that evening with his de facto partner's nephew, Anthony Kemp, and saw the credit card and keys lying on the footpath. He said he picked them up with the intention that either he or his partner (Rebecca Kemp) would hand them to police the next day. 12There was no issue at trial that the offences had occurred. It was common ground that the manager's premises at the apartments had been broken into and that someone had entered unit 10. The issue at trial was whether the jury could be satisfied that the appellant was the offender. There was also a challenge as to whether the evidence established the circumstances of aggravation, in that the offender was armed with a knife. No knife was found during a police search of the area. 13The jury were given directions as to the availability of the offence of break and enter with intent to steal contrary to s 113(1) as an alternative offence to the aggravated break and enter offence. There were no requests by either the Crown or the defence for corrections or additions to the summing up and no request for any alternate or further directions. 14The Crown case was essentially a circumstantial one relying upon: the similarity in appearance of the appellant with the person who had broken into the premises as described by RF to her father, who saw the intruder running from the scene; the appellant's possession of the American Express card and the keys to unit 8 within about 20-30 minutes of the offences having been committed; and the presence of the appellant in the vicinity of the premises when stopped by the police. 15Rebecca Kemp gave evidence that the appellant was in her presence at the time at which the offences were alleged to have occurred. The appellant also gave evidence at trial. His evidence was also that he was in his de facto wife's company at the relevant time. However, he was not specific as to the times he contended that he was with her. The appellant also gave an innocent explanation for his possession of items stolen from the premises, in that he had found them abandoned on the street and picked them up with the intention to surrender them to police in the hope that he may receive a reward from the owner of the credit card.

Ground 1: the trial judge erred in law in failing to leave to the jury an alternative offence of receiving stolen property contrary to the Crimes Act, s 188 16The appellant contended in ground 1 of the appeal that the trial judge should have left to the jury, as an alternate count to the larceny offence, the offence of receiving stolen property: Crimes Act, s 188. This ground of appeal required the appellant's acceptance that the jury had rejected his explanation as to how he came into possession of those items. 17In support of this submission, the appellant submitted that the Crown case relied almost entirely upon the case of recent possession. During the course of argument on the appeal, the question was raised with counsel whether there was any basis in law upon which the alternative count was, in any event, available. The appellant and the Crown were invited to provide further written submissions on this point. 18The appellant, in his further written submissions dated 2 August 2013, conceded that this ground must fail, as it would not have been permissible for the trial judge to leave the alternative offence of receiving stolen property to the jury. I have considered the relevant statutory provisions and the common law and accept that this concession is properly made. The reasons for this are, briefly, as follows. 19The larceny offence under s 112(1)(a) falls within the Crimes Act, Pt 4: "Stealing and similar offences", Div 4: "Sacrilege and housebreaking". Section 115A falls within the same Division and provides for alternative verdicts for specified aggravated offences and special aggravated offences. There is no alternative verdict prescribed in s 115 for an offence under s 112(1)(a). 20The Crimes Act, s 121 provides: "121 Verdict of 'larceny or receiving' Where, on the trial of a person charged with larceny, or any offence which includes larceny, and, also, with having unlawfully received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that the person either stole, or unlawfully received, such property, and that they are unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the unlawful receiving, whichever of the two offences is subject to the lesser punishment." 21A special verdict is only available under s 121 if the person is charged with both offences: see R v McCarthy and Ryan (1993) 71 A Crim R 395, where Hunt CJ at CL (Wood J and Smart J agreeing) stated, at 399, that as the accused had not been charged with both larceny and receiving in the alternative, the special verdict of larceny or receiving permitted by s 121 was not available. In the present case, the appellant was not charged with both offences. Accordingly, any argument based on s 121 must be rejected. 22In R v Springfield (1969) 53 Cr App R 608 the Court stated, at 611, that an alternative count will only be available at common law where: "... it is a necessary step towards establishing the major offence to prove the commission of the lesser offence: in other words, is the lesser offence an essential ingredient of the major one?" 23This test was applied by this Court in R v Aldrich (1993) 67 A Crim R 371 at 376. 24In McCarthy and Ryan Hunt CJ at CL, after rejecting the availability of an alternative 'special' verdict under s 121, said that it was therefore necessary for the Crown, who relied upon recent possession and the absence of any satisfactory explanation for that possession, to establish that the accused was guilty of larceny rather than receiving. However, his Honour, at 399, observed that the offences of larceny and receiving are mutually exclusive, citing a long line of authority for that proposition. 25I would only add as a matter of record that at common law it is not necessary that the alternative count be charged on the indictment: see R v King [2004] NSWCCA 20; 59 NSWLR 515; Mifsud v R [2009] NSWCCA 313; cf Nguyen v R (1992) 60 A Crim R 196, where the Victorian Court of Criminal Appeal (Crockwell J, Phillips CJ and Southwell J agreeing) stated, at 199, that at common law it was necessary that both offences had to be charged before alternative verdicts could be left to the jury. 26The appellant also relied upon the Criminal Procedure Act 1986, Sch 3, Pt 3, s 7. That section makes provision for charging in the one indictment, the offences of stealing and receiving. Section 7 provides: "7 Stealing and receiving in one indictment (1) In an indictment containing a charge of stealing property, a further charge may be added against the same person for unlawfully receiving the property, or any part of the property, knowing it to have been stolen. (2) The prosecutor is not to be put to election as to those charges." 27Section 7 does not relate to alternative verdicts. Rather, it is a procedural provision which permits charges of stealing and unlawfully receiving the same property to be included in the same indictment. If that occurs, the provisions of s 121 then apply. However, as I have already stated, the appellant was not charged with counts of both larceny and receiving. He was only charged, relevantly for the purposes of this ground of appeal, with larceny under s 112(1)(a), 28It follows that there was no basis in this case, either pursuant to statute or under the common law, whereby an alternative verdict was available and, accordingly, there could be no requirement for the trial judge to direct the jury in respect of the availability of an alternative offence of receiving. 29Ground 1, as was conceded, must be rejected.

Ground two: the verdict is unreasonable or cannot be supported having regard to the evidence 30The appellant's second ground of appeal was that his conviction is unreasonable or cannot be supported having regard to the evidence. The law in relation to this ground of appeal is well settled. 31The Criminal Appeal Act 1912, s 6(1) provides that the Court of Criminal Appeal: "... shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence ..." 32In M v The Queen [1994] HCA 63; 181 CLR 487, at 493, per Mason CJ, Deane, Dawson and Toohey JJ, the High Court stated that the test to be applied in determining whether the verdict was unreasonable or could not be supported having regard to the evidence was as follows: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict ... 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." 33Earlier in M, at 492, their Honours had said: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'" (citations omitted). 34The Court added, at 494: "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." 35M was approved in MFA v The Queen [2002] HCA 53; 213 CLR 606. Their Honours noted that for the purposes of s 6(1), the starting point was that the jury had the primary function in determining the guilt or innocence of the accused. It was integral to that proposition that the jury had seen and heard the witnesses. 36In applying this test, the Court is required to make its own independent assessment of the evidence process as to its sufficiency and its quality: SKA v The Queen [2011] HCA 13; 243 CLR 400, the plurality, French CJ, Gummow and Kiefel JJ, reaffirming the test to be applied in determining whether the verdict was unreasonable was that stated in M and MFA. 37In Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], Hayne J (Gleeson CJ and Heydon J agreeing), stated: "It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence ... That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt." (citation omitted)

The evidence at trial 38I have already referred above to the offending conduct, namely, the break and entry into the manager's office and the aggravated entry into unit 10. A significant part of the Crown case was based upon the description given of the intruder by RF and the similarity of that description to the physical appearance of the appellant. There was other evidence, including the appellant having the stolen items in his possession and evidence of his movements that evening. A consideration of the evidence at trial follows.

Evidence of RF 39A pre-recorded and edited DVD of RF's interview with police, conducted at 12:30 am on 21 October 2011 (the recorded interview), was placed before the jury. RF described hearing knocking on the door and seeing the handle of the door turning. She described how she went to tell her father of the knocking and then returned to the bedroom to tell him about the door handle moving. She said that when she came out of the bedroom, she had taken one or two steps into the lounge room when she saw the intruder "leaning over the couch looking at my baby sister with a knife". RF said that when she saw that she made a sound, which she described in her evidence, and was recorded as "Uhh". 40RF described the man as having "hair coming down" his chin. She reiterated that the intruder had "something in his hand ... It looked like a knife". She said he had it in the hand that was closest to the door. She thought it was in his right hand. She described "the black thing in his hand and the knife was like about there". It is apparent from the record of interview that, at this point, RF was demonstrating how long the knife was. The interviewing police officer assessed it as being "probably 6 inches" and in response to a further question, RF agreed that it was "about 6 inches ... maybe something like 15 centimetres". She said the blade was silver and that as soon as the intruder saw her he "turned around and started going out the door". She ran back into her parents' bedroom. She said that her father ran outside. 41RF said the intruder was wearing black pants and his "t-shirt was white and it had something on it". When asked to describe it, she said, "[i]t was just like around because when the screen went bright I saw things like, on his t-shirt". She agreed he had a bit of a "bit of a beard", which was "whitey grey". She said his hair was grey and "a bit spiky". 42RF described the person as thin and that he was neither tall nor short. She said he was a "bit taller" than her father. She said he was "white" and agreed by that she meant Caucasian. She referred again to his t-shirt, saying that she thought "he had like grey on his t-shirt". She added "there was definitely like stuff on his t-shirt". She was asked about his age and first said, "I don't think he was over like 55". She was asked her father's age, which was 42, and was then asked, by comparison with her father, how old the person would have been. She replied, "I think about 45 maybe he would have been". 43She described herself as being very "freaked out" by the knife. She said she told her parents what the intruder was wearing. 44RF said that after the police arrived she went outside and saw two people with police officers. She described one as having, "[a] beard and the t-shirt". She said that as soon as this person saw her he said, "I've got kids of my own, I would never do that and everything". The police questioning continued as follows: "Q198 ... And you're saying that one of [the men with the police] had a beard and he had a shirt, the t-shirt A Yeah ... But I couldn't see him close up, I could like see him like, I only had to take like five more steps and I would have been yeah ..." 45RF was cross-examined at the trial. Three areas of her evidence were subject to particular scrutiny by the appellant's counsel. They were the length of time RF looked at the intruder, the intruder's clothes and the knife he was said to be carrying. 46In her recorded interview, RF was asked how long she thought she actually "got a look at [the intruder] in the room". She answered, "[a]bout 30 seconds straight". She was then asked "[r]eally quick?". She responded "[y]eah". She then said "'[c]ause I just looked up, froze like for 30 seconds and then I went [demonstrating sound]". In cross-examination, she agreed that she had not looked at the intruder for anywhere near as long as 30 seconds. It was suggested to her that it was more like "3 seconds or less". RF responded: "I'm not quite sure because he turned around and looked at me, and then I run into mum and dad's room and he was out the door when dad run out." 47RF was asked some further questions and then was asked: "... but I imagine, that wouldn't have taken any more than 3 seconds to turn from the couch ...? A. Yep. Q. And that is as long as you saw him for in your apartment? A. Yep." 48The second area of challenge related to RF's description of what the intruder was wearing. Whilst her father was speaking to the police in the emergency telephone call, RF described the intruder as wearing a white shirt with something on the front of it. In her recorded interview, RF was asked to describe the intruder "from the top of his head to the tip of his toes" and to try not to leave anything out. In her answer, she referred to the intruder wearing "the t-shirt was white and it had something on it". 49She was then asked, "[w]here was the something? On the front, the back or somewhere else?". RF responded: "It was just like, around because when the screen went bright I saw things like, on his t-shirt." 50RF was cross-examined as to the description that she had given at various times as to what the intruder was wearing. She agreed that she did not mention to her father when he was making the emergency telephone call to the police that it was a grey and white striped t-shirt and all that she said was that the t-shirt was white with something on the front. She also agreed that she said nothing about the intruder wearing a jacket or having tattoos on his arms. She agreed that she had not noticed any tattoos on either of the intruder's arms. She also agreed that she did not see the intruder wearing a bumbag. She was definite that he was not wearing blue denim jeans. 51The third area of challenge was to RF's evidence that she saw a knife. In cross-examination, RF agreed that when she told her father that there was someone in the room, she did not tell him that the person had a knife. RF was asked whether it was right that she didn't tell her father about the knife until just before he made the emergency telephone call. However, RF was not really sure. She only said, "Dad there's someone in the house". She agreed that it was frightening to see a man in the house, but "even more super frightening" to see a man with a knife. She also agreed that the most frightening thing about the man would have been that he had a knife in his hand. Presumably, the intention of this cross-examination was to demonstrate that had she seen a knife it would be likely that she would have told her father immediately. 52It was suggested to her that she did not say anything to her mother about the knife whilst her father was outside and that the first time she mentioned the knife was just before her father made the triple 0 call from the lounge room. She responded that she was "pretty sure" she did refer to a knife when she was telling her mother what had happened. She agreed, however, that she could not remember "what I said that night to no one". Pressed further, she was asked if she had told her mum that the man had a knife, whether she would remember that. She responded, "I think so. Yeah". 53Another aspect of challenge to RF's evidence about the knife was whether her father got a knife from the kitchen. In her record of interview, she said that her father had got a knife to show her and she had said that the knife was "like half of that knife". 54She was cross-examined about this is as follows: "Q. When dad came back to the unit and you told him about the knife? A. Yep. Q. We heard you describe to the detective on the video that in telling dad about the knife, dad went and got a knife from - I couldn't hear exactly what you said, but it sounded like 'our kitchen' or something like that? A. Yeah, the kitchen. Q. Dad went and got a knife from the kitchen and showed it to you, and you said, 'Yeah, like about half that size'? A. Yeah. Q. He went and got a knife from the kitchen, did he? A. Yeah. Q. Are you absolutely sure that happened? About dad and the knife? A. I think I pulled it out of the thing and - because dad said, 'How big was the knife?' and I pulled it out and I showed him. Q. So maybe you went and got a knife, not dad? A. Yeah, I was standing in the kitchen and I got it out of the thing because dad asked me how big it was. Q. What kind of knife did you - can you describe for us the knife that you got out of the kitchen? A. It was like - I don't know whether they chop meat - [meat] and stuff with it, I think. Q. Did you show that to the police when they came, so you could give them an idea of what the knife they were looking for could be compared to? A. No, I don't think I did. I can't remember. Q. All right. What happened to that knife after you, or dad, had a look at it in the kitchen to compare it? A. I put it back in the drawer and then I went and sat on the couch. Q. And dad was there when that happened? A. Yeah, I think so. I think he was on the phone actually." 55RF was also cross-examined as to the statements she made to the police in the record of interview. The purpose of this cross-examination was clearly to suggest that her statement that there was a knife was unreliable. The cross-examination was as follows: "Q. The knife you said the man had, you said was about half the size of the knife that you went and looked at in your apartment? A. Yes. Q. And we saw some measurements in the interview, and eventually you and the detective agreed that the knife that you say the man had was 15 centimetres in the blade? A. Yeah. Q. And you say that was about half the size of the one that you looked at? A. Yeah. Q. Double 15 is 30 isn't it? Two times 15 is 30? A. Yeah. Q. 30 centimetres is the length of a school ruler. You can picture that, can't you? A. Yeah. Q. Well, does that mean the knife you looked at in your kitchen had a blade as long as a school ruler? A. It was probably a bit shorter than that. Q. How much shorter? A. I'm not sure cause I can't really remember. Q. In your interview that we have all just watched you were making an effort to be very honest in what you told the detective? A. Yes. Q. You wanted to tell the truth, and not exaggerate or make things up? Is that what you wanted to do? A. Yep. Q. Let's just recap what you said about the knife in the interview. You said at question 94 ... 'It looked like a knife.' Do you remember you said that? A. Yeah. Q. You thought maybe it was in his right hand? A. Yes. ... Q. And then a little bit later in describing it, you said-- ... Q. -it looked like a knife to me, a bit? A. I can't really remember. I think it was a knife because - yeah. Q. Is this the case [RF] that although you're absolutely certain that there was a man in your apartment-- A. Yes. Q. -that you do have some doubt about whether what he had in his hand was a knife? A. He did have something in his hand and it looked like a knife to me, a bit. I don't know. Q. But you don't know? A. What other people thought it might have been, it looked like a knife to me. Q. It looked like a knife to you? A. Yeah. Q. Is that because you saw something silver? A. Yeah. Q. Door keys are also silver aren't they? A. Yeah, but the keys were in the door."

Evidence of RF's father 56In his examination in chief, RF's father confirmed that he and his wife had gone to bed and that RF had remained in the lounge room watching television. Another of his daughters was asleep on the lounge. He said that RF came into his room and told him someone was knocking on the door and that he told her not to worry about it, because the person would go away. He said RF came back about 3 to 5 minutes later and said "Dad, they're trying to get in. They're trying to open the door". He said he got up and sat on the bed and listened, but the noise stopped. 57RF's father said about 30 seconds later, RF came back in and said "[t]here's someone standing in the door, Dad. There's someone standing in the house, in the lounge room". He said he jumped out of bed and yelled out. He did not personally see anyone in the house. He said he "flew out the door" of the unit and saw "a glimpse of a bloke going up towards Link Road". The person he saw was still on Prince Street, about three or four houses away. He was asked whether he could make out what the person was wearing and said, "[i]t was a light-coloured t-shirt and I think it was striped". He said he was able to see that from the lights on the street. 58He returned to the unit. He described his daughter as being "absolutely petrified" and that she was saying, "[h]e had a knife, dad. He had a knife, dad". He said he also observed a set of keys in the door. He telephoned triple 0 and spoke to police emergency. He said RF was standing close to him whilst he made this telephone call. He said that RF had not told him about the knife until just before he rang triple 0. He also said he did not go and get a knife from his own kitchen to assist her to identify how big the knife was. 59A transcript of the triple 0 call was tendered in evidence. RF's father is identified on the transcript as V1 and RF as V4. The police emergency operator is identified as V2. 60Having informed the police emergency operator that a man had entered the unit, he was asked whether he could give a description of the intruder. The following description was then given: "V.1 ... there was just one bloke ... ... Skinny bloke --- ... V.2 ---nationality mate? A white Australian male or --- V.1 He was Australian wasn't he? A white fella? V.4 He was white and he, he had grey spiky hair. ... V.1 ... mid to late 40s with a, with a goatee. V.2 Mid to late 40s, so grey spiky hair and could they recall what he was wearing mate at all? V.1 What was he wearing again? V.4 I, I think he had ... and he had a white t-shirt --- V.1 White t-shirt. V.4 --- with something on the front of the t-shirt. V.1 White t-shirt with something on the front of it, she's not sure what it was 'cause she was scared. ... ... black pants like track pants. ... ... he was standing there with a knife and ---" 61RF's father also gave evidence as to what occurred when the police arrived. He said that there were two police officers outside in the vicinity of the apartments, who had two persons in their custody. He described one man as being older and one being younger and that the older man was wearing a white t-shirt with a print on it. 62RF had also gone outside. Her father said that they were about "eight to ten feet" from where the two males were being held by the police officers. He said that RF was crying. He asked her, "[i]s that the man?" and she responded "I can't see, dad, I don't know". He agreed that the first time he saw one of the persons wearing a shirt which was striped was when he was about 8 to 10 feet away from the two men in police custody. He also said it was possible that he heard his daughter say, "I don't think that's him". However, he said that when she looked more closely at the two men being held by the police she said, "that's him".

RF's mother 63RF's mother did not see the intruder. However, she was cross-examined as to the time that RF would have been able to see the intruder. That evidence was follows: "Q. You've said that when [R F] told you about the handle moving, having told you about the handle moving she took one step into the lounge and then one step back into your room? A. Yes. Q. To say there's someone in the apartment? A. Yes. Q. So the time between taking one step out into the lounge room and the one step back into your bedroom to say there was a man would have been, I suggest, one to two seconds? A. Yes. Q. She didn't at that stage say to you anything other than, 'There's a man in the apartment'? A. No, and just that he had a knife, he was standing over our youngest daughter. Q. She didn't actually mention the knife at that stage, though, did she? A. No. ... Q. It would have been about 20 minutes while [RF'S father] he was [outside]? A. Yes. Q. You spent that 20 minutes with [RF]? A. Yes, I did. Q. In that time that you spent with her she didn't mention the knife? A. She mentioned the knife more or less straight away after she said he'd entered and [DF] [w]ent outside she said she had a knife and -- Q. Did she or you or [DF] ever go to the kitchen and get a knife for her to look at? A. No, not that I recall, no."

The police evidence 64Police Constable Herbert and Senior Constable Knowles were driving around the area in clearly marked police car. At 10.43 pm a broadcast came over the police radio regarding a break and enter. They were driving west along Prince Street and Constable Herbert observed two males on the side of the road, one of whom matched the description of the suspect that had come over the police radio. Constable Herbert searched the appellant and found, inter alia, the American Express card and a keyring with a silver key on it and a key tag labelled unit 8. The appellant was dressed in a black jacket when he was noticed by the police. The jacket was taken off during the course of the search of the appellant. Constable Herbert did not recall that the appellant's arms were fully tattooed. 65Constable Herbert and Senior Constable Knowles stayed at the crime scene after the appellant was taken to the police station. Constable Herbert noticed a chair in the garden bed in the front yard of the apartment complex and saw the window directly above it was broken. He said that the "flyscreen to that window was bent in half. Underneath the chair with three small silver screwdrivers". 66Constable Herbert arrested the appellant when he found an American Express card in the name of another person in the pocket of the appellant's pants. 67Senior Constable Knowles said that as the two males were walking along the street approaching the police car, they made no attempt to run away. One of the males approached a window of the police car before he and Senior Constable Knowles had got out of the vehicle. He said that it was after he had a brief conversation with the male who approached the window of the police car, that he realised that the other man matched the description that was broadcast over the police radio of "a Caucasian male about 40 with a beard". 68Senior Constable Knowles searched the man with the appellant. He found nothing on him and he was subsequently allowed to go. 69Senior Constable Knowles also searched the area and made similar observations as Constable Herbert of the chair, the window and the fly screen. He also described how the office had been disturbed. 70Senior Constables Hall and Osborne attended the apartment complex at about 10.45 pm. Senior Constable Hall recalled Constable Herbert telling the accused that he was under arrest. Senior Constable Hall placed the accused in the police truck and transported him to Coffs Harbour Police Station. 71Senior Constable Osborne undertook a search of the apartment complex and observed a chair in the garden bed and two small jewellers' screwdrivers nearby. He observed that one of the persons who had been apprehended by the other police officers was about "40 years old, fair complexion and medium build wearing blue denim jeans, a white T-shirt and black padded jacket and black shoes". He took the key that had been found in possession of the appellant and tested it on unit 8. 72Detective Sergeant Rhodes-Sanders, the officer in charge, attended the apartment complex at about 11.30 pm. Detective Rhodes-Sanders stated that she observed a chair below a window on the first floor and the fly screen pulled back and the window open. She went into the office area and saw drawers open and paper work scattered around. She later conducted the recorded interview with RF. Detective Rhodes-Sanders also gave evidence that it was a 3 minute drive or a 12 minute walk from the Hoey Moey bottle shop to the apartment complex. 73Detective Rhodes-Sanders gave a direction on the night that the area be searched. She said that a "general canvass was conducted of the area searching for the knife". She was not able to identify the extent of the search other than to refer to the "immediate vicinity and along the street". She said that the general duties police officers on the night conducted the search and there was a follow-up canvass the following morning by one of the detectives. There was no evidence of who undertook the search of the area. 74In cross-examination, Detective Rhodes-Sanders said that she had no reason to believe other than that the search was conducted in a thorough and competent manner. She also said that RF's father had given the officers the direction in which the intruder had run from the units, mainly down Prince Street and then left onto Hogbin Drive. 75Detective Rhodes-Sanders also said that from her inspection of the fly screen on the window of the office, there was no indication that it had been cut with a knife, but that it had been pulled out and bent.

The other Crown evidence 76The Crown also called Rebecca Burn, the de facto wife of Mark Kemp. Mark Kemp's sister is Robyn Kemp, the de facto wife of the appellant. Mark Kemp's son Anthony Kemp was in the company of the appellant at the time of his arrest.

Evidence of Ms Burn 77Ms Burn said that the appellant and Robyn Kemp were staying with her and Mark Kemp at the time of his arrest. At about 8 pm, the appellant, Robyn Kemp and Anthony Kemp went to the Plaza. She watched television until about 9:26 pm. She said that she next heard Robyn Kemp at about 10 minutes to 10 when she returned and the appellant and Anthony Kemp about 5 minutes later when they returned to the house. 78She said that the appellant and Anthony Kemp left the house fairly soon after that as "they were going down to the pub to get a drink". She could not give the time that they left the house. She also said that once she went to bed she didn't hear from them until the police arrived and that she didn't know "for certain" whether they had gone out, but just assumed so. She described the appellant as wearing, on the night, light jeans, a "t-shirt with a grey stripe and then a white stripe and a grey ... polo shirt". 79Ms Burn said that she was woken about 11:30 pm when the police arrived.

Evidence of Robyn Kemp 80Robyn Kemp said that she went to the Plaza with the appellant and Anthony Kemp at about 8 pm, arriving at about 8:30 pm. She said they went to the Hoey Moey Hotel. She returned home at 9:50 pm. The appellant and Anthony Kemp arrived shortly afterwards. She said the appellant and Anthony Kemp wanted to go back to the bottle shop but she told them it would be too late. She said at that time it was roughly 10:40 or 10:45 pm. She said that on that night the appellant was wearing blue jeans, a white grey polo shirt with red stripes and a brown jacket. 81Ms Kemp said that she was with the appellant and Anthony Kemp "most of the time" during the period after they had returned to the house until they left again at about 10:40 or 10:45 pm. She said that the only time she was not with them was when she went to get another glass of beer, which would have been a distance of 3 to 4 m, and that she would have been away for less than a minute on these occasions. She agreed that apart from those two short periods, the appellant was in her "immediate company the whole time". 82Ms Kemp said she knew it was about 10:40 or 10:45 pm when the appellant said they were going to the bottle shop, because she checked the clock and she said that she told them the bottle shop would be shut, as it closed at 10:30 pm. She said, however, that they had said they just wanted "to go for a walk to check to see if it was open". She said Anthony Kemp came back about 20 to 25 minutes later and she rang the police station on her mobile phone at 11:28 pm.

Photographic evidence 83Photographs of the vicinity were tendered in evidence. Photograph Exh G was described as "Bush-road opposite Calypso Apartments". Photograph Exh H was described as "Front view of Park/Bushland (road opposite Calypso Apartments)". These photographs show an extensive, relatively heavily treed area.

CCTV footage 84There was tendered at trial CCTV footage showing the driveway at the bottle shop of the Hotel known as the Hoey Moey. For the purposes of the appeal, three still screenshots from the CCTV footage were provided to the Court. Those screenshots were in respect of the times 20.19.59; 20.20.01; and 20.20.06. Each showed the appellant on the driveway of the hotel. In each still, he is depicted as wearing blue denim jeans, black jacket and a grey and white striped shirt. The shirt had a collar on it and would commonly be described as a polo shirt.

Forensic evidence 85A decision had initially been taken that the incident did not meet the threshold requirements for immediate attendance of forensic examiners. However, the next day, a request was made that the scene be examined for fingerprints and DNA material. A statement of agreed facts pursuant to the Evidence Act 1995, s 191 was tendered in respect of the examination that was undertaken. 86Three fingerprints were uplifted from the back of the chair, which was below the window through which entry had been allegedly obtained into the office. These did not match those of the accused or anyone on the police data base. The window and fly screen were very dirty and no fingerprints were able to be developed. The internal door handles of the office and drawers were not examined. It was considered that the "mechanics of opening a drawer permit the fingers to contact the back of the handle", so as to make it unworkable for the examination for fingerprints. 87The door handles were not examined, as door handles in a motel complex are considered a "high traffic item", causing a build up of oil, making it, in effect, impossible to obtain fingerprints. In addition: "... Forensic Service Group Standard operating procedures indicates that targeting for trace DNA on 'non porous surfaces' such as door handles is not encouraged because they are unlikely to yield DNA as there is no prolonged or forceful contact with the skin." 88Fingerprint examination was undertaken of the keys found in the door to unit 10. No fingerprints were identified on the keys or the white tag attached to the keys. No DNA swabbing was done of the keys and key tag to unit 10 because of "multiple handling" issues and the Division of Analytical Laboratories does not accept swabs from keys, particularly those from motels. There was also a contamination issue, as those keys had been placed in the same exhibit bag as the screwdrivers found in the appellant's bumbag. 89The screwdrivers were not dusted for fingerprints due to the nature of their surface. DNA testing was not undertaken because of the issue with contamination referred to in respect of the keys. 90The American Express Card and keys to unit 8 were not tested, as it was stated this would have been of no evidentiary value. 91There was no evidence the intruder touched anything and he was only in the premises for a short period of time.

The defence evidence 92The appellant gave evidence. 93The appellant said that that evening he had gone to the Plaza with Ms Kemp and Anthony Kemp. He said they returned to the house and were sitting on the back steps. Robyn Kemp came out and joined them. He said that he and Anthony Kemp then went back to try and buy some more alcohol. He said that Robyn Kemp told them that the bottle shop would probably be closed. He said notwithstanding that, they left, but "got stopped on the way there by the police". He said that during the whole of the period between returning home and leaving to go to the bottle shop he had been sitting on the back stairs of the house. 94He said that as he and Anthony Kemp were returning to the hotel, he "spotted something on the side of the road and walked over and grabbed it and it was a credit card and keys". He said the items were near the park on the southern side of Princes Street, "straight out the front towards the holiday apartments". He said there was nothing on the tag that indicated to whom the keys belonged. He said there was a name on the credit card but did not recognise it. He said he put the items in his pocket. 95The appellant agreed that the park was directly opposite the apartments and that it was necessary to walk past the apartments to go to the hotel. The appellant said that having found the items, he and Anthony Kemp started walking towards the beach to go to the Hotel. He saw a police truck driving towards them. He said the vehicle paused and they walked towards it. He said that Anthony Kemp was talking to the police officers and he was beside him. He heard the police officer ask where they were going and Anthony respond that they were "going to the pub". The police officer in the passenger seat then said "[h]ang on, he fits the description" and the officers got out of the car and walked the appellant and Mr Kemp across the road and sat them down in the gutter on the same side as the apartments. 96Constable Herbert informed the appellant that he was going to search him and asked whether he had anything on him he should not have. He said he responded "No", because he had some marijuana in his bumbag and thought if he said "No", he would not get searched. 97The appellant said he saw "two police officers there, a little girl and the little girl's father as far as I knew". He heard the father say "Is that the man, is that the man?". At that point, the appellant did not hear what the little girl said, as she was sobbing. He said that the little girl and her father moved closer and were about 2 to 3 m from him. He said that he thought he heard the little girl said "[n]o, I don't think that's them" in response to a question by a female police officer. He said that when he heard her say that, he said, "I wouldn't do anything to hurt a kid because I've got kids of my own". He said he addressed those words to the police officers. 98The appellant showed his arms to the jury and described extensive tattooing on both arms. On the right arm, the tattoo went from his bicep to the wrist and on the left it went from the upper bicep down to the wrist and onto the palm of his hand. The tattoo ink was "bluey green".

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.

Proposed orders 125I would propose that the appeal be dismissed. 126JOHNSON J: I agree with the judgment of Beazley P and the order proposed by her Honour. With respect to Ground 2, having made an independent assessment of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of the offences for which he stood trial. 127PRICE J: Having myself assessed the whole of the evidence, I agree with Beazley P that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the offences for which he stood trial. I agree with the President's reasons and the orders that are proposed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2013