Glover v R; Stuart v R

Court of Criminal Appeal (NSW)|2015-07-09|Before: Basten JA, McCallum J, Hulme J

Solicitors: B Duchen (Applicant Glover) Nyman Gibson Miralis (Applicant Stuart) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/294019; 2011/294024 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 3 February 2014 (Glover); 23 September 2014 (Stuart) Before: Garling ADCJ File Number(s): 2011/294019; 2011/294024

Judgment

BASTEN JA: Three co-accused, Bradley Carr, Laurence Glover and Nathan Stuart were put on trial on an indictment containing 12 counts. Their separate appeals were listed for hearing before this Court on 9 July 2015.
Mr Carr appealed his convictions on eight counts on the basis of an alleged irregularity in the conduct of a juror and the failure of the trial judge to discharge the jury. That application for leave to appeal has been separately disposed of. [1]
Mr Stuart originally sought to challenge his convictions on counts 2-6 and 9-11. He did not seek to appeal the conviction on count 12. In oral submissions his counsel indicated that the application for leave to appeal was abandoned with respect to counts 9-11. Mr Stuart relied on two grounds of appeal. Ground 2 alleged that the convictions under challenge were unreasonable and could not be supported by the evidence. His first ground should be set out in full: "The trial judge erred in allowing the Crown to rely on coincidence evidence in that he: a. failed to evaluate the likelihood that the jury would be likely to assign the evidence significant probative value; b. concluded that he was 'really required to take the evidence at its highest' without considering whether there was a possible explanation inconsistent with guilt, as a real possibility, and whether that altered his view as to the significant probative value; c. failed to identify the unfair prejudice to the appellant; and/or d. failed to undertake the balancing exercise under s 101(2) of the Evidence Act 1995 (NSW)."

Background to the charges

In order to consider the grounds of appeal sought to be raised by each applicant, it is necessary to explain briefly the content of each charge and the factual circumstances which gave rise to it. Not all co-accused were charged with each offence.
Count 1 alleged the theft of a black Audi RS4 Avant station wagon MS 2530, which, together with the car keys, was stolen from the home of its owner on the night of 3 May 2011. Carr and Stuart (but not Glover) were charged with that offence, but were acquitted. There followed three robberies at hotels in the eastern suburbs of Sydney between 4 May and 7 June 2011. The prosecution alleged that the black Audi was used as a getaway car in each case. All three accused were charged in relation to each offence, the prosecution case being that Mr Carr drove the motor vehicle and Messrs Stuart and Glover entered the respective hotels.
The first robbery (counts 2 and 3) occurred at the Nelson Hotel on Oxford Street, Bondi Junction, shortly after 10pm on the evening of 4 May 2011. The two offences resulted from separate acts of robbery involving the deputy manager of the hotel, from whom an amount of some $10,000 was taken, and a bar attendant, from whom the contents of the bar till were taken, being a little under $4,000. In submissions, the two counts were referred to as the first robbery.
The second robbery (count 4) took place on the same evening at about 10.30pm at the Sands Hotel, Maroubra. An amount of $12,800 was taken from the general manager, who had been counting the daily tills at the time one of the offenders kicked in her office door.
The third and fourth robberies occurred some five weeks later, on 7 June 2011. The third robbery (count 5) involved the Rose of Australia Hotel at Erskineville. Two offenders entered the hotel at about 10.50pm and escaped with a small amount of money from a till (about $1,250). Some 15 minutes later, offenders robbed the Excelsior Hotel at Surry Hills, taking approximately $7,688 (count 6). Police were alerted to the robbery as it was taking place and drove in front of the Audi which was parked outside the hotel. In seeking to escape, the Audi was driven into the police vehicle, mounting the pavement and, as described Constable Scrymgour, the Audi "climbed up and over the bonnet of the police vehicle" before driving off. Police recovered a screwdriver which had been used by the offenders.
Prior to the robberies on 7 June, the black Audi with its correct number plates, MS 2530, had been observed in a secure underground car park in Cowper Street, Randwick. On 8 June 2011 a police officer inspected the vehicle, which then bore number plates AWC 07T.
On 10 June 2011, shortly after 9.00am, Mr Carr visited the police website on which there were details of the robberies at the Rose of Australia and Excelsior Hotels. On the morning of 27 June 2011, he again visited the website and accessed a media release relating to an armed robbery in Randwick. Shortly after midnight (on 28 June), the black Audi was taken from the car park in Cowper Street, driven to a nearby lane and set alight. Mr Carr was charged with destroying the Audi motor vehicle (count 7). Another person was also said to have been involved in the torching of the motor vehicle; neither Glover nor Stuart was charged with that offence.
On 4 July 2011 there was a break-in at a house in South Coogee, car keys were stolen from the house and the motor vehicle, another Audi, registration number BLE 66F, was stolen. Messrs Carr and Stuart were charged with breaking and entering the house and stealing the keys and the vehicle (count 8). Both were acquitted, but the stolen vehicle was involved in subsequent offences with which the three accused were charged.
A fifth robbery occurred on Monday, 18 July 2011 at the Malabar RSL. Shortly after the club opened (at about 11.30am) two men, alleged to be Glover and Stuart, entered the premises and required staff of the club to open a safe and an ATM from which approximately $94,550 was taken (count 9). A different staff member was required to empty money from a till: approximately $6,420 was taken (count 10). There was significant evidence linking Mr Stuart in particular to the robbery. That included CCTV footage taken two days earlier which revealed a number of people, including Mr Stuart, at the club and signing the visitor's book, which he did in his own name.
Mr Stuart returned to the Malabar RSL on 5 September 2011, again signing in in his own name. At about 7.58am on Wednesday, 7 September 2011, two offenders entered the club, a third offender remaining outside in a stolen high performance Mercedes sports car, without registration plates. The two men who entered the club were wearing hooded jumpers and triangular handkerchiefs tied over their faces, but no balaclavas. No money was taken: the offence (count 11) was identified as attempted armed robbery with a dangerous weapon. Bradley Carr had been arrested on 12 August 2011 and remained in custody on 7 September. Messrs Glover and Stuart were charged in relation to this offence.
The final offence (count 12) occurred on 12 September 2011 when two men wearing hooded jumpers and masks entered the Regent Hotel, Kingsford shortly after 10am. An amount of some $59,000 was taken. A witness observed the men leaving the Hotel, both wearing hoods, one clutching a bag and the other an iron bar. They ran to a Mercedes sports car which drove them away. The witness took a note of the front number plate, AP 234, and called the police. Messrs Glover and Stuart were charged with this offence.
Various arrests and searches were made on 12 September 2011. A search warrant was executed at Stuart's home in Pitt Street, Waterloo. Police located $5,000 in cash, a pair of red and black gloves, a key to a stolen Mercedes BNN 77U and a pair of Adidas black track suit pants with three white stripes down the leg. The cash was found in bundles held with elastic bands, said to be consistent with money taken from the Regent Hotel. Mr Stuart was arrested and interviewed at Redfern police station. He was charged with the Regent Hotel robbery. In formal admissions dated 5 June 2013 he admitted stealing the Mercedes BNN 77U.
Mr Glover was arrested at about the same time leaving premises on Gardeners Road, Kingsford, leased by his girlfriend, Dayna Jennings. He had $1,850 in his wallet and a key to his own motor vehicle, which was located at 43 Dacre Street, Malabar. The unit occupied by Ms Jennings at Gardeners Road was searched; the garage to the unit was also searched, revealing the stolen black Mercedes BNN 77U, displaying stolen plates AP 234. A pair of pink washing-up gloves which contained DNA consistent with that of Mr Glover was found in the vehicle. Similar DNA was found on an interior door handle in the Mercedes. A small black crow bar was located on the passenger side front floor. In addition, number plates from the stolen Audi BLE 66F were also located in the Mercedes.
The third man alleged to have been involved in the robbery of the Regent Hotel was Kane Hoskin. At 11.50pm on 12 September 2011, police attended at the Matraville home of Hoskin's girlfriend, Siobhan Kelly. Hoskin was asleep in her bedroom, but was woken and arrested. Police asked if there was cash on the premises and were told there was no large amount present. After his arrest, the bedroom was searched and $18,100 was located in a gift box in the wardrobe, together with an additional $1,500 in a brown bag hanging from the bedpost.
There was no doubt that each of the offences identified in the 12 counts occurred: the primary issue at the trial of the applicants was whether the prosecution was able to establish beyond reasonable doubt that each of them was involved in each of the offences as charged. The prosecution case relied on eyewitness descriptions of the persons involved in the robberies, together with objective information, including that recovered as a result of various searches. Importantly and in addition, the prosecution relied upon common elements, said to reveal a modus operandi, but also use of particular weapons, motor vehicles and items of disguise. As the applicants accepted, there was substantial evidence identifying them with the Regent Hotel (count 12), being the last robbery in the sequence and being followed almost immediately by the arrests and searches of various premises, which revealed incriminating evidence. The prosecution case was that, having identified the offenders in a particular robbery or robberies, the common elements with other robberies could be used to link the same offenders with the other robberies.
The defence case sought to counter the elements of commonality. There was significant evidence from police witnesses regarding a major investigation of a spate of robberies of clubs and hotels. The officer in charge of the investigation, Detective Harris, gave evidence that substantial resources were devoted to telephone intercepts, surveillance of various locations and obtaining evidence from "160-odd witnesses". [3] Detective Harris agreed that a strike force had been established in mid-March 2011 following a spate of robberies, including one at the Rose Shamrock and Thistle Hotel in Rozelle. One of the offenders was described as a male "wearing a black Adidas hooded jumper with three white stripes running down the sleeves and an Adidas motif on the front," carrying "a small silver handgun" and wearing gloves and a balaclava. Detective Harris said that police believed there was a connection between that and two other robberies and some of those the subject of the present charges, but also agreed that Laurence Glover was not a suspect in respect of the other offences. [4]
Detective Harris, was also questioned about a robbery at the Mercure Hotel at Wolli Creek on 14 February 2011. He was aware of the robbery and agreed that one of the offenders had been reported to be wearing "pink gloves". [5] A particular common element in some of the present offences was that one of the robbers had worn pink (or red) washing-up gloves. The purpose was not to link the accused with that additional robbery, but to suggest that this was a robbery involving other offenders, using similar gloves. (The cross-examination did not take that matter far, because Detective Harris did not know who was suspected of involvement.)
A second officer, Detective Jouni was cross-examined to establish that the black Audi MS 2530 had been used in an aggravated break and enter in which the principal offender was believed to be one Jack Dunne, and not any of the accused.
These examples illustrate the main thrust of the defence case, which was to raise a reasonable doubt as to the elements of commonality, in part based upon variations in descriptions given by eyewitnesses and in part based on the fact that common elements, such as the use of pink (or red) kitchen gloves, might be a common feature of such offences and thus not indicative that the same individuals were involved in two offences where pink or red kitchen gloves were used. By the same reasoning, proof that a particular vehicle had been used by a different person in relation to another offence cast doubt upon the strength of the inference to be derived from the fact that the vehicle was used in each of a number of robberies with which the accused were charged.
Against this background, it is necessary to consider in more detail the nature of the prosecution case and the extent to which it relied upon coincidence evidence, in order to determine whether it was sufficient, with respect to each offence, to support the resulting conviction.

Reliance on coincidence evidence

Mr Stuart (though not Mr Glover) challenged the use of coincidence evidence by the prosecution. The way in which the issue arose for determination at the trial was, one hopes, unusual; on its face, it was somewhat bizarre. Following the arraignment of the three accused on 14 counts, there was a debate as to the admissibility of coincidence evidence, based on a notice given by the prosecution, although not initially made available in this Court. It appears that counsel for Mr Glover sought to sever counts 9 and 10 and counsel for Mr Stuart sought to sever count 9. (That was done.) The position of Mr Carr is not critical in this argument, except that the manner in which his counsel sought to argue the application on his behalf had some resonance in the way the appeal was pursued in this Court by Stuart and Glover. Thus counsel for Mr Carr submitted at trial: [6] "As I understand it, in addition to circumstantial evidence that might be relevant and admissible in relation to linking any specific case to another specific case, for example, it's the Crown case that the one car was used in the first four, and to the extent that there may be evidence that supports that from bystanders, then that wouldn't be tendency and coincidence per se, but it would be something that your Honour should consider when your Honour considers whether there is in fact evidence - significant probative value under s 98 or 97 and whether the 101 test succeeds."
In this Court (albeit in a less confused manner) counsel for the respondent Director sought to support the conduct of the trial, involving three co-accused and, ultimately 12 separate counts, on the basis that it was, in effect, a case based on circumstantial evidence. He referred to the reasoning of the High Court in Harriman v The Queen. [7] That case involved a charge against the accused of being knowingly concerned in the importation of heroin in April 1987. The principal prosecution witness was also involved in the arrangement. A relevant issue on appeal was whether the prosecution had rightly been allowed to call evidence of earlier involvement of both in the sale of heroin. Brennan J identified the issue in the following terms: [8] "The argument against admission of the disputed evidence is simply that that evidence revealed the commission by Harriman of offences other than those on which he stood charged. In the Court of Criminal Appeal, the case was argued as though the evidence in dispute were evidence of similar facts. But the disputed evidence is not evidence of similar facts; the offences revealed by evidence of prior sales and use of heroin are not offences of the same kind or character as the offence of being knowingly concerned in the importation of heroin. The probative force of the evidence objected to in this case was not found in a factual similarity between the offences revealed by that evidence and the offences with which Harriman stood charged."
Brennan J then noted that the same principle should apply because the proffered evidence tended to show the commission of other offences or at least a predisposition to commit other offences. Brennan J continued: "However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. … But, for my part, I do not find the classification of evidence revealing the commission of another offence as 'circumstantial' to be helpful in ascertaining the criterion of its admissibility. Whatever the classification of the evidence, its admissibility depends on its satisfaction of the criterion that its probative force clearly transcends its merely prejudicial effect".
Dawson J reasoned in similar terms, stating: [9] "Propensity evidence is, of course, circumstantial evidence in that the only proof which it can offer is proof by inference. But it is circumstantial evidence of a dangerous kind because of the prejudice which it engenders. That is why the occasions upon which it is admissible are strictly limited."
It is not necessary to stay to consider how Harriman assisted the respondent in the present case. There is a more important lesson, namely that, under the general law, questions of admissibility of otherwise probative evidence only arose because of the high risk of prejudice if the evidence revealed prior offences or a propensity to commit such offences. That may be contrasted with the statement of the coincidence rule in s 98 of the Evidence Act: 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
What is striking about this provision is the absence of any reference to either of the "two or more events" as involving the commission of other offences or the demonstration of bad character. The rationale for the rule is missing from the statutory provision. The same is apparent from the statement of the tendency rule: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
For most of its history, the generality of these provisions has gone largely unremarked upon, partly no doubt because the initial tendency was to assume that there had been little or limited change from the general law. That approach was rejected by this Court in R v Ellis. [10] Once the close linkage with the general law was broken, it became necessary to identify with more care the mischief to which the provisions were directed. Without such an understanding, the ordinary meaning of the words used would create a serious element of overreach.
The first clue that something more is required than an abstract application of the language of the provisions may be seen in the requirement that the evidence have "significant probative value." [11] The second clue comes from reading those provisions with s 101 which is said to apply "in addition to sections 97 and 98." [12] Section 101 requires that tendency and coincidence evidence cannot be used against a defendant unless the probative value of the evidence substantially outweighs any prejudicial effect. This language inevitably leads one back to the general law principles, in order to identify the kind of prejudice to which the section appears to be directed. There will remain a question as to the extent to which the legislation varies the general law as in force prior to its enactment.
It is not necessary to pursue these questions further in this case, it being sufficient to note that the confusion revealed in some of the submissions (both in this Court and at trial) may not be entirely the fault of counsel.
At the conclusion of the pre-trial application, the judge delivered reasons for rejecting the application for separate trials on a number of counts in the indictment. [13] The submissions at trial were summarised in the following passage: [14] "The argument as to separating counts 10 to 14 on behalf of the accused Mr Glover and Mr Stuart that there is a difference between the first four robberies, that is 4 May 2011 at the Nelson Hotel, 4 May 2011 at the Sands Hotel, 7 June 2011 at the Rose of Australia Hotel, 7 June 2011 the Excelsior Hotel, for which each of the accused is charged, the last three alleged robberies being on 18 July 2011 at Malabar RSL, 7 September 2011, which is an attempted robbery at the Malabar RSL, and 12 September 2011, the Regent Hotel. On the last two only Mr Glover and Mr Stuart are charged because Mr Carr is in custody on that dates."
The judge then noted that the prosecution case was "circumstantial", [15] but held that there was legitimate probative value in having the jury hear the common elements on all charges and, in effect, aspects of each charge which affected each accused both on that charge and other charges. However, the judge said that he was not ruling on whether the prosecution should be allowed to lead coincidence evidence, noting that that would have been "another basis on which to sever the counts". [16]
Having delivered those reasons, the judge again remarked that he had not ruled on the admissibility of the coincidence evidence as such, stating that he thought he would be in a better position to do that once the evidence had been given. He invited counsel to express a different view, but counsel for each of the co-accused in turn accepted that that was the appropriate course. [17]
Consistently with that approach, on the fortieth day of the trial (29 July 2013) and with virtually all the prosecution evidence tendered, the prosecutor stated: [18] "It might be appropriate at this stage to consider a number of issues. Any applications in terms of whether there is a case to answer on any of the counts and to deal with the issue concerning whether your Honour will contemplate allowing the Crown to deal in address with the evidence in terms of coincidence and tendency evidence."
That proposal was taken up and each counsel addressed. In particular, counsel for Mr Stuart submitted that the evidence of one count should not be available on others, but accepting that the events of a single day were relevant to each offence on that day. The thrust of her submissions may be seen in the following brief extracts: [19] "Even if the jury were to accept that black and red gloves that were found in Mr Stuart's possession were the ones used in the Regent, that does not get the Crown to the point where they can say those are the gloves based on the evidence before the jury that were used in earlier robberies, that being the one at The Nelson and by the link from The Nelson to The Sands, also at The Sands, and the third one would in fact be the robbery at Malabar on 18 July. I don't think it gets him there because it's just not the evidence before the jury that these distinct red and black gloves were seen and can be placed at other robberies that happened earlier. As such, on that basis, the Crown should not be allowed to run a tendency or coincidence argument, whatever it happens to be, based on the red gloves because the evidence isn't strong enough to say that they were used in other robberies. …. I also want to say something about … the use of the telephone records both Exhibit 4B which is the summary done by the police of telephone calls, and also the call records themselves…. In each case, in relation to each robbery, the Crown wants to be able to say well look, there's no activity on these phones during the periods of X and Y. I submit that the Crown should not be able to be allowed to lead that evidence in that form because the Crown has only led evidence of the outgoing calls of Mr Stuart's mobile telephone service, and incoming calls and text messages, often referred to as SMSs, have not been led."
The trial judge dealt with the matter in a further interlocutory judgment on Tuesday, 30 July 2013. Having set out the provisions of the Evidence Act the judge accepted the submissions of the prosecution in the following passage: [20] "The Crown submits that the coincidence evidence comes from a number of matters which include red and black gloves which are seen on CCTV of robberies at the Sands Hotel, Malabar RSL and the Regent Hotel, it is in evidence of witnesses at the Nelson Hotel, that the robberies fall into a certain type, namely one of the robbers is armed with a handgun and the other with an object, the general description is one is taller and the Crown allege that that is Stuart and one a little shorter, Glover, and one driving the motor vehicle, Carr. The way the armed robberies were carried out was one man asked for the manager or someone in authority, the other controls the bar area often or usually, having patrons get down on the floor. In relation to the first four robberies the same motor vehicle was used. My own observation of the robberies from viewing the CCTV was that they were remarkably similar. The way they were carried out was very similar, disguise, stolen vehicle and other matters. … I formed the view, and of course I've had the advantage of hearing all the evidence in the case, that that evidence, as far as coincidence, is concerned, has probative value in accordance with s 101."
Having earlier set out the terms of s 101, the last comment should be understood as a finding that the probative value of the evidence substantially outweighed any prejudicial effect.
The judge then turned to matters relevant to Mr Carr and Mr Glover. He reviewed the arguments put by counsel for Mr Stuart, noting the submission that there was no need for coincidence evidence in relation to counts 2 and 3 or 5 and 6, as it was probably obvious that those armed robberies were carried out by the same people. The judge then stated: [21] "The evidence which the Crown relies on to argue coincidence is the same evidence which is already before the jury. There is evidence of fact, there is evidence of circumstantial evidence. By allowing the Crown to argue coincidence it does give them the benefit of an additional submission to the jury but the evidence will be the same, although there may be, should I disallow such evidence, an argument that one or more charges could not be allowed to go to the jury. In the end, I will have to give a direction of law to the jury."
The judge concluded: [22] "In addition there is another body of evidence, including DNA, telephone calls, motor vehicles, keys and other matters which will be before the jury when they are considering the Crown's circumstantial case. The evidence has, in certain parts, a striking similarity sufficient for coincidence. Having found that it is probative, then I turn to look at the prejudice and, of course, any evidence is going to be prejudicial, that is why it is called. However, that evidence is all before the jury. The only difference is, as I said earlier, the way it will be argued and perhaps the effect it may have on evidence of several of the charges. I do not see that there is any other prejudice other than that and I am therefore satisfied that I should allow the Crown to lead the coincidence evidence."
The judge then turned to the question of its use as "tendency evidence" and concluded that it should not be admitted as such. [23]
In reaching these conclusions, the trial judge expressly acknowledged that the manner in which the evidence would be left to the jury would require careful directions (which had not then been formulated). However, apart from a challenge to the ruling set out above, there was no challenge in this Court to the directions in fact given. The evidence all being before the jury, either one would expect a challenge to the adequacy of the directions, or a final application to discharge the jury if the directions proved, in the view of counsel, to be inadequate. No such step was taken.
The complaints raised for Mr Stuart in relation to these findings were largely semantic. Thus it was submitted that (a) the judge had not referred to the evidence having "significant" probative value; (b) although remarking that in his view the robberies were "remarkably similar", he did not expressly say whether a jury might assign significant probative value to the evidence; (c) by failing to address the hypothesis that the first four robberies may have been committed by someone other than Mr Stuart, failed to identify a realistic possible alternative hypothesis; (d) failed to identify the potential prejudice and, finally, (e) failed to weigh the probative value against the prejudice to ensure that the former substantially outweighed the latter.
None of these complaints have substance. It is true that, in expressing conclusions, the judge did not tightly follow the language of the statute. Nevertheless, the setting out of the provisions, the reference to relevant aspects of the authorities and the discussion of the evidence demonstrate an application of the statutory requirements. So far as it is suggested that he did not take account of an alternative hypothesis that some third party was involved in the earlier offences, it need only be said that the whole case turned on that possibility: there was no dispute that each of the offences took place - the only question was who committed them.
Finally, the suggestion that he "failed to identify the unfair prejudice" was simply that he ignored the type of prejudice that was "inevitable" with coincidence evidence. As already suggested, there is no prejudice which necessarily follows from coincidence evidence, unless it concerns other offending. In this case the Court was addressing a number of related offences, all of which were the subject of specific charges. There was no question of earlier uncharged offences (as in Harriman), nor reliance upon earlier convictions for other offences. Furthermore, the submission failed to recognise an important element in s 98, namely that the significant probative value of the evidence may be identified by having regard not merely to that evidence, but also to other evidence adduced in the course of the trial. This exercise required identifying features of other robberies which coincided with features of each specific robbery to which it might be considered coincident.
The specific challenges to the reasoning of the trial judge should be rejected. Even had that not been the case, it is doubtful that a challenge could have succeeded to the use of the evidence in circumstances where there was no challenge to the directions given to the jury with respect to that evidence. No doubt an objection taken in the course of the summing up might have been met by the response that the directions given were consistent with the ruling on admissibility, but one would expect, on the appeal, that some element of prejudice could be demonstrated from the inadequacy of the directions, if the ruling on admissibility were indeed open to challenge.
Ground 1 in Mr Stuart's appeal should be rejected.

Principles - unreasonable verdicts

There remains the challenge, brought by both Mr Stuart and Mr Glover, on the basis that the verdicts of the jury were unreasonable and not able to be supported on the evidence. [24] The course required of the Court in addressing such a ground is well understood. [25] The Court, reviewing the evidence, must determine whether it entertains a reasonable doubt as to the conviction on each charge. In some circumstances the availability of a reasonable doubt may depend upon an assessment of the oral evidence, being a matter for the jury, which may not readily be assessed by an appellate court. The applicants submitted, with good reason, that in this case the appellate court did not suffer from the usual constraints which arise in cases where the credibility of witnesses is at stake. On the other hand, it remains true that the Court has not had the exposure to the full weight of the evidence over a lengthy trial, as had the jury. In any event, it is necessary to turn to an assessment of the evidence relevant on each count to address this ground.
In approaching the matter in this way, no departure is intended from the general approach helpfully articulated by McCallum J below.

(a) overview of evidence

What follows is a brief synopsis of the evidence and arguments presented at the trial. The trial continued over 50 days; the evidence commenced on day nine and was completed on day 41; the prosecutor's address extended over three days; counsel for the accused addressed over some six days and the judge's summing up took approximately two days, without canvassing the evidence in detail. The transcript of the evidence ran to approximately 2,000 pages. What follows is derived from various sources; unfortunately, the submissions in this Court tended (perhaps understandably) to make the best of each party's position with limited concessions as to possible weaknesses.
By way of example, a key passage in the prosecutor's submissions stated: "The modus operandi for all robberies was the same. Each was committed on licensed premises and involved two persons entering the premises, one of whom was armed with a hand gun. A third person remained outside in a stolen high-performance getaway car, usually fitted with stolen number plates. Of the persons who entered the premises, one would seek out the manager or a person in authority, escort them to a location where cash was stored, such as a safe or an ATM and demand the money, whilst the other remained in the bar area armed with the hand-gun, ensuring patrons remained immobile on the floor. There was evidence that a hand gun was used in all robberies. On some occasions the man with the gun would demand money from staff at the cash register. CCTV footage of robberies giving rise to counts 9 & 10, 11 & 12, depicts one of the offenders holding a silver coloured revolver."
An inference drawn on the basis of coincidence reasoning is usually expressed in the negative, namely that if events which occur on two separate occasions are characterised by unusual similarities, they are unlikely to be independent. Put in the affirmative, the unusual characteristics make it likely that, for example, the same actors were involved. In some circumstances, the general law refers to the element of "striking similarities". [26] The term "striking" is a colourful epithet, but is not precise as to the sense in which the similarities should strike one. The term "unusual" is perhaps more helpful, as may be illustrated by the description set out above. Thus, the fact that the robberies were all committed on licensed premises is not a patently unusual circumstance. As the evidence already referred to indicated, a task force was set up to deal with a spate of such robberies; nevertheless, the offenders were charged only with respect to seven independent events and there were others which bore some elements of similarity to those seven, but for which the police did not have grounds to charge the applicants. Targets of armed robbery are likely to be places which may be expected to hold significant sums of cash and to be vulnerable to attack by two persons of whom one is likely to be armed.
To similar effect, the prosecutor was inclined to dismiss as insignificant the hearsay evidence extracted from Detective Jouni in cross-examination that the black Audi MS 2530 had been seen by police to be driven by another person entirely, Mr Jack Dunne, as a getaway vehicle for an aggravated break and enter which occurred on 14 May at Belrose. That offence occurred between the robberies on 4 May 2011 (which were said to have involved Mr Carr as the driver as well as the applicants Glover and Stuart) and the robbery on 7 June, also said to have involved the applicants. The inference the applicants sought to draw from Detective Jouni's evidence was that others had access to the vehicle and the mere presence of the vehicle at an armed robbery did not necessarily implicate them.
While it is likely that many hotels and clubs are vulnerable in the sense noted above, some are likely to be more vulnerable than others and to be vulnerable at particular times of day or night. All the robberies the subject of the indictment took place while there were staff present. That is, none involved a break and enter out of hours, no doubt because the offenders required assistance to obtain access to potential sources of cash, such as safes and ATMs. On the other hand, the presence of CCTV might have been thought to make some licensed premises less attractive as targets than others: however, all but one of the robberies occurred in premises with CCTV.
Leaving to one side the modus operandi and the nature of the targets, the prosecution relied on the following further categories of similarity: (a) descriptions of personal characteristics of the offenders; (b) descriptions of the clothing worn by the offenders; (c) descriptions of the weapon or weapons used by the offenders; (d) pre and post robbery information as to the financial circumstances of the applicants (based on telephone intercepts), and (e) contact by mobile phone and periods of telephone silence for mobile phones owned by the applicants during the robberies.
In the course of the appeal, significant weight was placed by the prosecutor on the implications to be drawn from the telephone records. However, before turning to the records, it is necessary to set out certain established facts relating to the applicants. First, each applicant signed a document pursuant to s 184 of the Evidence Act, admitting certain facts. Mr Glover's statement is not before the Court, but it is contained in the prosecutor's summary of trial in terms to which no objection was taken and which reads as follows: "… Laurence Glover admitted he was born on 8 June 1987 of Anglo-Ghanaian heritage; in 2011 he knew Nathan Stuart and Bradley Carr and socialised with them; in 2011 he was in a relationship with Dayna Jennings, she lived at … Gardeners Road, Kingsford and he was a regular and frequent visitor there; in 2011 he had access to and utilised [identified] mobile phone numbers …."
Mr Stuart admitted that he had stolen the keys for and the Mercedes BNN 77U on 9 August 2011, being the car used in the two robberies in September 2011. He also admitted he knew, and that in 2011 he socialised with, Bradley Carr and Laurence Glover. He agreed that he knew Kane Hoskin and socialised with him during 2011, Hoskin being the co-offender with respect to the robbery at the Regent Hotel on 12 September. He further admitted that his nickname was "Crawley" and that, for relevant periods in 2011, he owned certain identified mobile telephones.
The mobile telephone numbers of each were relevant to an understanding of the telephone intercepts and telephone records. Carr's telephone numbers were also identified and not in dispute.
It was also agreed that Mr Stuart was 178cm (5ft 11in) and Mr Glover was 169cm (5ft 7in).
The police obtained telephone records for each of the applicants covering the periods at and around the times of each robbery. Although there were many calls made on each mobile, there was a conspicuous silence for a period usually spanning several hours, including typically an hour or two on either side of each robbery. For the later robberies (counts 11 and 12) there were shorter times; for Mr Stuart before count 11, 40 minutes and for Mr Glover, after count 12, only 10 minutes. The consequence of inactivity for a period was that the location of the phone, and by inference, of its owner, could not be identified during that time. The further inference was that each of them knew that. As explained by the prosecutor in his address, the periods of inactivity were logged by police intercepting the calls, being both outgoing and incoming calls. [27]
The significance of the periods of telephone inactivity for a particular accused was not merely that the periods coincided with the commission of the offences (there were other periods of inactivity), but that fact in combination with the inactivity of the mobiles of each accused during the relevant period. As was submitted for Mr Glover on the appeal, the fact that the records for his client indicated significant periods of inactivity at times unrelated to the offences tended to dilute the significance of the inactivity at the times of the alleged offending. In other words, each period of inactivity could have had an innocent explanation. So far as it went, the submission should be accepted.
So far as the second limb of the prosecution's argument was concerned, Mr Glover submitted that the other alleged offenders may have had their own reasons for switching off their mobiles, which were not necessarily the same as for Mr Glover. That submission is more problematic than the first: the inference is significantly stronger viewing the telephone records of all three together than any inference which might be drawn from one in isolation from the others, bearing in mind that they were associates and communicated with each other frequently.
It may be accepted that the telephone records alone did not wholly exclude the possibility of an innocent explanation and were therefore not conclusive. They did, however, carry significant weight as circumstantial evidence. Mr Glover submitted that the other circumstantial evidence in relation to Mr Stuart and Mr Carr was significantly stronger than that in relation to him. Accordingly, he submitted, there was a real risk that he may have been convicted on the basis of his long association with Mr Stuart and the strong evidence against him with respect to the two offences involving the black Mercedes.

(b) Glover - counts 9 and 10

There were, as counsel accepted, some qualifications required with respect to the last proposition and, in particular, with respect to counts 9 and 10. First, counts 9 and 10, like count 11, took place at the Malabar RSL. Secondly, counts 9 and 10 involved the second stolen Audi, BLE 66F. A number plate for BLE 66F was located in the stolen Mercedes, in the garage associated with Mr Glover.
Further, telephone intercepts of conversations on 11 July 2011 indicated that neither Glover nor Stuart had money. The robbery on 18 July took place in the morning: intercepts on the evening of the same day (and on a number of following days) indicated that both Glover and Stuart were visiting hotels and brothels. It may be inferred that they had come by significant amounts of money to spend.
On the morning of 18 July, Messrs Glover and Stuart had been in contact from 4.38am. At 8.03am Stuart used Glover's phone to book a taxi. At 9.02am Glover and Stuart were together and spoke to Mr Carr who agreed to catch a taxi to meet them. Between 8.09am and 8.58am Stuart and Carr exchanged some 14 text messages or calls. There was no recorded activity for either Carr or Glover from 9.02am (when Glover contacted Carr) until 12.39 (when Carr sent a message to a third person) and 1.40pm (when Glover spoke to a third person). The last activity on Stuart's phone, namely the call at 9.20am to Bradley Carr was diverted, indicating that Carr had turned his phone off between 9.02 and 9.20. [28]
The evidence associating Mr Glover with the robbery at the Malabar RSL on 18 July 2011 constituted a strong prosecution case. It was not a case based on "association" in the social sense; it was based upon close contact between all three co-offenders, who met approximately two hours before the offence was committed, turned off their mobile phones until one or two hours after the offence had been committed and then demonstrated access to recent wealth. Further, there was the connection revealed by Mr Glover having in the Mercedes in his girlfriend's garage a number plate from the car used in the RSL robbery. None of this evidence could be explained by a reasonable alternative hypothesis. Accordingly, Mr Glover's challenge to the convictions on counts 9 and 10 should be rejected.

The earlier counts may be dealt with in two groups. Counts 2, 3 and 4 all related to hotel robberies on 4 May 2011, involving three men and the same car. There was ample reason to conclude that the two robberies were committed by the same persons.
A similar conclusion may be reached with respect to counts 5 and 6, which involved two hotel robberies on 7 June 2011. Each involved the same car, bearing the same stolen plates, AWC 07T. Again, there was ample evidence to support the conclusion that both were conducted by the same three men. In considering who those men were, it will be necessary to refer to both the telephone intercepts, the periods of telephone inactivity and the appearance of the offenders, where recorded on CCTV and described by witnesses. Although Mr Glover submitted that the evidence linking him to the offending was weaker than that of the other accused, it is convenient to consider both Glover and Stuart together.
With respect to the events on the evening of 7 June 2011, the earlier robbery took place at the Rose of Australia Hotel, Erskineville, at about 10.50pm. The activities of the offenders were partly recorded on CCTV. It was an element of the prosecution case that one of the two offenders was significantly taller than the other.
The robbery at the Excelsior Hotel, Surry Hills, occurred some 15 minutes later. Those events were also recorded on CCTV. There could be no doubt that the two offenders were the same. The taller man, Mr Stuart on the prosecution case, was wearing a blue hooded top and grey pants. On each occasion he had black gloves and an instrument described by witnesses as a screwdriver. On each occasion he went in first and sought the manager and attempted to obtain cash from the cash room. The shorter man (Mr Glover on the prosecution case) wore a dark top with white stripes down the sleeves. He had pink gloves and carried a hand gun. In each case he remained in the bar area controlling staff and customers. At the Rose of Australia, he may be seen to take money from a till.
Turning to the telephone activity on 7 June, Glover and Stuart were in contact on two occasions in the early afternoon, (at 12.26pm and 1.50pm) and on two occasions in the early evening (at 6.20 and 6.46pm). Between 6.58pm and 8.50pm Glover and Carr communicated on five occasions. All three accused had a period of telephone silence from approximately 1.5 hours before the robberies until an hour thereafter.
A telephone intercept on 3 June records Bradley Carr saying, "I've got $50 to me name." On 7 June at 10.38am Nathan Stuart tells a friend that he could not go to see her because "I have to go somewhere to go and pick up some money and stuff". He also said, "I don't have much money." Stuart repeated that statement to Glover in a conversation at 1.49 that afternoon. Glover also said, "I've got nothing." They talked further at 6.20pm that evening, Glover stating that he had no money and they arranged to meet in 20 minutes. It is clear from the intercepts of the calls at 6.20 and 6.58 that Stuart and Glover met at around 7pm. It is also clear that Glover and Carr and "the other bloke" met around 9pm.
At 11.37 the next morning, Glover spoke to Stuart about going to a brothel and getting lunch. The lack of cash both had suffered on the previous day was no longer a problem. As described at [13] above, Carr accessed the police website, and specifically the media releases for these offences, three days later.
The CCTV footage would not be sufficient to identify either Stuart or Glover as the offenders, although the build and height of the offenders is consistent with the respective height and build of each. However, the indications of lack of cash immediately prior to the robbery, the arrangement to meet that evening, the telephone inactivity at the time of the robbery and (for Stuart and Glover) for an hour on either side, together with having ready cash immediately thereafter, their associate (Carr) whom they had met earlier that evening demonstrating interest in police media releases only three days later, combined to create a strong prosecution case. The evidence was inconsistent with cash being obtained from a steady source such as employment, although it was not inconsistent with ready cash resulting from gambling. Nevertheless, in combination with the other factors it was sufficient to exclude any reasonable doubt as to the source of the money. That material in combination pointed clearly to the applicants being the offenders with respect to the robberies on 7 June 2011.

(d) Glover and Stuart - counts 2, 3 and 4 (4 May 2011)

A similar analysis may be undertaken with respect to the robberies on 4 May 2011. Although the same vehicle was used, there remains a reasonable possibility that those having access to the vehicle were not restricted to the same persons on each occasion. One may, however, readily infer that the three men in the vehicle at about 10.10pm at the Nelson Hotel, Bondi Junction were the same three men using the vehicle for the same purpose (namely as a getaway car) at Maroubra, 20 minutes later. The main difference in the analysis with respect to these events was the absence of CCTV footage of the robberies at the Nelson Hotel, Bondi Junction.
The CCTV footage at the Sands Hotel, Maroubra showed the taller man entering the hotel first, wearing a light blue hooded jumper with words written in white on the chest. (The words are not decipherable.) The duty manager at the Nelson Hotel, Mr Cook, described the man as wearing a light blue hooded top with writing about the middle and black gloves. [29] That description matched the appearance of the man on the CCTV at the Sands.
Mr Cook also described the height of the first man, saying that he was "five, six foot, may be five ten, a bit taller than me" and then, "I'm about five ten, five eleven". He described the colour of his skin as "[a] bit more tan sort of styles" but said that he wasn't looking closely because he was more worried about what the man had in his hand. [30] He also saw the second man in the saloon bar whom he described as "a bit shorter than me but more - more solid." He said he was wearing "just dark clothing". He had something in his hand, although Mr Cook was unable to identify it. [31]
Ms Kearney was working as a barmaid at the Nelson Hotel on the evening. She saw the two men walk in through the doors and noticed that one had a blue hoodie and a covered face while the other one was wearing a dark colour "like black or blue maybe". She could only see their eyes. [32] She too gave evidence that the first man was a little taller than the second man. She described the second man as wearing "red gloves - like red woollen ski kind of gloves." [33] She also agreed that she had told the police shortly after the robbery that the first man was about five foot eleven inches tall and of average build. She repeated her estimate that the second man was about five foot eight inches, which was her own height. [34]
Again, the descriptions were consistent with the images of the men in the CCTV footage at the Maroubra robbery. They were also consistent with the agreed heights of the applicants.
Both Mr Cook and Ms Kearney said that the robber in the bar area was carrying something in his hand, but they could not say what. However, Mr Sobb, who was also working in the bar said that when he put his head up over the bar, he saw the man was holding a gun, but his evidence was somewhat confused as to the kind of gun.
The telephone records for 4 May reveal that Carr and Stuart arranged to meet shortly after 12.30 on the day of the robberies. There was a call between Glover and Stuart at 3.10 in the afternoon, but not thereafter, which may have been consistent with them being together later that afternoon. There was no activity on Glover's phone from 5.25 that afternoon until 11.34 that night. There was no activity on Stuart's phone from 7.16pm until 11.47 that night. There was no activity on Carr's phone from 9.36 (an incoming call) until 11.20 that night.
This evidence was somewhat weaker than the evidence with respect to the later robberies. There was no evidence of lack of funds prior to these robberies and, while there was evidence of Carr spending freely during the two days following the robberies, there was no evidence of Stuart and Glover spending money after the robberies. While there was evidence of Mr Stuart and Mr Carr being together on the afternoon preceding the robberies, there was no clear evidence that Mr Glover was with them. The case against Glover and Stuart therefore depended significantly on the descriptions of the offenders and the images recorded on the CCTV at Maroubra.
The evidence involving Mr Carr as the driver of the black Audi was persuasive. He was convicted of destroying the car two weeks after the June 7 robbery at the Excelsior Hotel, giving rise to a reasonable inference that he was destroying incriminating evidence in relation to his role in the earlier robberies. Accordingly, Stuart's connection with Carr on the afternoon of May 4, together with his appearance on the CCTV footage provides evidence of him being an offender.
This evidence does not take the case much further against Glover. The prosecution relied upon the evidence that the gloves worn by the second robber in the Sands Hotel robbery, which appear to be red or red and black, bore a clear resemblance to those worn by one of the offenders with respect to counts 9 and 10 and count 12. Red and black gloves were found in the course of the search of Mr Stuart's premises. However, that connected Mr Stuart with the earlier robberies, but not necessarily Mr Glover.
A forensic imagery expert, Mr McCourt, called by the prosecution, prepared a document comparing the CCTV images of three robberies showing what appeared to be red and black gloves on the hands of one robber with the red and black gloves obtained from Mr Stuart's premises. However the comparative exercise (contained in Ex 4N) was limited to three of the robberies, being those which occurred on 18 July, 7 September and 12 September 2011. [35] This evidence did not assist in identifying the gloves shown in the CCTV record from the Sands Hotel. Without such assistance, a sensible comparison is not possible.
There is certainly a reasonable resemblance between the CCTV footage of the second person to enter the hotels on the earlier occasions, and sufficient evidence to link Mr Glover with the June 7 robbery. Nevertheless, in my view the evidence is not sufficient to demonstrate that he was the second man to enter the hotels on 4 May. The appearance and description of the gloves gave some indication that they may well have been the same gloves as those used in the later robberies with which he was implicated, but the evidence was by no means persuasive on its own. The dark jacket being worn by the second offender on 4 May was not the same as the jacket being worn by the offender on 7 June. Although both were black, one had a double (or possibly triple) stripe down the sleeves, the other had a white line which extended across the sleeves and across the back of the jacket, as appears from the CCTV footage at the Sands Hotel, although not in the description given by any of the witnesses at Bondi Junction. That jacket was not recovered in the searches.
It is likely that Mr Glover, being a member of the team on later occasions was the third member of the team on 4 May. There was some evidence specific to the offences on 4 May to support that inference. However, that material was not sufficient to link him with Stuart and Carr on the first occasion; it is a reasonable possibility that some other person was the third offender. In these circumstances, I would have a reasonable doubt as to whether Mr Glover was the second robber in the two robberies on 4 May. I am not persuaded that there was any factor relating to the trial which suggested that the jury should not have entertained a similar doubt.

Conclusions

The appeal was run on behalf of the Director on the basis that the jury was entitled to work backwards from the later offences, based on the similarity between all the offending so as to be satisfied as to the guilt of the accused with respect to the earlier offences. That was a permissible line of reasoning: however, if the similarities were not persuasive in relation to the earlier offending, a reasonable doubt may arise as to whether a particular person was implicated in that offence. In my view the convictions of Laurence Glover with respect to the offences on 4 May 2011 (counts 2-4) cannot stand. It follows that his sentences must be adjusted.
The evidence linking Nathan Stuart to the earlier offences was persuasive; it did not leave me with a reasonable doubt that he was the taller robber, who entered first on each occasion. His appeal in relation to each count on which he was convicted must be dismissed.
McCALLUM J: I have read the judgments of Basten JA and R A Hulme J in draft. Their Honours agree that Stuart's appeal against conviction, and Glover's appeal against conviction in respect of counts 5, 6, 9 and 10, should be dismissed. I also agree with those conclusions, for the reasons stated by Basten JA.
As to Glover's appeal against conviction in respect of counts 2, 3 and 4, Basten JA would allow the appeal whereas R A Hulme J would dismiss it. I agree with R A Hulme J that the appeal in respect of those counts should be dismissed.
Glover's appeal invokes the power of this Court under s 6(1) of the Criminal Appeal Act 1912 (NSW) to set aside the verdict of a jury if the Court is of the opinion that it is unreasonable, or cannot be supported, having regard to the evidence. Although the principles to be applied in determining such a ground are well-established, I wish to emphasise an aspect of the relevant jurisprudence which has influenced my conclusion. I am here in part repeating or refining what I said in Hawi v R [2014] NSWCCA 83 at [476] to [480].
It is well-established that, in determining such a ground, this Court must make an "independent assessment of the evidence". The existence of that function has long been recognised: Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 516.1 per Barwick CJ; Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 at 534 per Gibbs CJ and Mason J; Morris v The Queen [1987] HCA 50; 163 CLR 454 at 463, 473, 478. It is clear that it is a function which must be discharged carefully, with a view to assessing the "probative value" of the evidence (Morris at 463 per Mason CJ) both as to its sufficiency and its quality (Morris at 473 per Deane, Toohey and Gaudron JJ).
It is important to bear in mind the purpose for which that function is performed, which is to determine whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused: Chamberlain at 534.3; Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] per Hayne J (citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492 to 493). One of the issues considered in the joint judgment in M was whether, in stating the test in such terms, it was necessary to qualify the statement of Barwick CJ in Ratten that the same task could equally be expressed by reference to a doubt entertained by the appellate court itself. The majority in M did not think the difference mattered. It was in that context that the majority said, famously (at 494), "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced."
That quote and the remarks that follow it are frequently cited in this Court as a seminal statement of principle governing appeals of this kind. There is no vice in doing so, provided the passage is read in context. The assertion as to what will be the position "in most cases" was not itself a statement of principle. It was the explanation for the view stated in the previous sentence that it is "possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested". The "qualification" was explained in the preceding paragraph: To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
If there is no difference between Barwick CJ in Ratten and Chamberlain, I prefer the formulation approved in Chamberlain, that is, whether the jury, acting reasonably, must have entertained a reasonable doubt or, as it was put by Hayne J in Libke at [113] (emphasis in original): "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."
My reason for preferring that formulation is that it is more accurate, since it acknowledges the function of the jury as the body entrusted with the primary responsibility of determining guilt or innocence (a point reiterated in an earlier passage in M at 493.8). In an appeal, the Crown does not have to discharge an onus of proof beyond reasonable doubt for a second time; this Court is entrusted with the function of undertaking an independent assessment of the evidence for a different purpose. Submissions invoking the frequently quoted-passage from M sometimes appear to suggest otherwise.
For the reasons stated by R A Hulme J, my own assessment of the evidence has not persuaded me that the jury must or ought to have entertained a doubt as to Glover's guilt of the first two robberies.
This Court is of course able to make an assessment of the sufficiency and quality of the evidence in a circumstantial case but the advantage enjoyed by the jury in such a case is, in my view, important. It is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their number, their diversity and their opportunity to hear the evidence continuously and to deliberate as a group in private throughout the trial, evaluating the evidence together as it is given rather than reading the transcript afterwards on one's own.
R A HULME J: I agree with Basten JA that the appeal against conviction by Stuart should be dismissed for the reasons his Honour has provided.
I also agree that the appeal by Glover in respect of his convictions on counts 5, 6, 9 and 10 should be dismissed. However I have come to a conclusion that differs from his Honour's in respect of the convictions on counts 2, 3 and 4.
Before turning to my reasons for concluding that the convictions on counts 2 to 4 were not unreasonable or not unsupported by the evidence it is appropriate to be clear about the approach to be taken to a case, such as this, that concerns circumstantial evidence. It was usefully and authoritatively summarised by McClellan CJ at CL (as his Honour then was) in Wood v R [2012] NSWCCA 21: "[51] A case is not defective or bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that, 'according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed': Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 (Dixon J). It has been said that 'circumstantial evidence is very often the best [evidence]': R v Taylor, Weaver and Donovan (1928) 21 Cr App R 20 at 21 (Hewart LCJ). [52] When, as here, the case against the accused is entirely or substantially circumstantial, 'the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ) citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252. That statement of principle is uncontroversial. It is really 'no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt': Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 502 (Mason CJ, Dawson and Toohey JJ) quoting Shepherd at 578 (Dawson J). [53] At the same time, the trier of fact must bear in mind that a circumstantial case is to be considered holistically: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Putting to one side for the moment 'indispensable' intermediate facts (as to which see Ground 5), it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that 'one piece of evidence ... resolves doubts as to another' (Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA)."
The starting point is to endorse the acceptance by Basten JA of the proposition that whoever were the three men involved in the robberies at the Nelson Hotel at Bondi Junction, they were the same three men who were involved in the robbery at the Sands Hotel at Maroubra about 20 minutes later.
Another basal proposition is that it was open to the jury to find beyond reasonable doubt that Glover was guilty of the last five robbery incidents. I entertain no doubt myself about his guilt in respect of those matters. Further, I have no such doubt about the guilt of Messrs Stuart and Carr in respect of the robbery counts which they faced.
That leads to the question whether it is a reasonable possibility that Stuart and Carr committed the robberies on 4 May 2011 with someone other than Glover. I do not believe that it is.
My reasons for this conclusion include that it would be extraordinary that some unknown person played the role of second robber at the Nelson and the Sands hotels but did so in a virtually identical way to the way in which Glover performed that role in the ensuing five robbery incidents. Not only that, it would also entail that this unknown person happened to be of a height differential to Stuart by similar proportions as was Glover and was of a similar build to Glover. And further, it would have to be considered a realistic possibility that it was a mere coincidence that Glover's telephone was inactive before, during and after the 4 May robberies (as were the telephones of Stuart and Carr) just like his telephone was inactive during the later robberies.
Whilst one may isolate individual items and argue that they do not support a conclusion of guilt beyond reasonable doubt it is important to look at the combined force of the evidence. In short, while I accept that the evidence specific to the 4 May robberies was less conclusive of the guilt of Glover when looked at in isolation, the coincidence evidence had a very real role to play. It would be inconsistent with the approach set out in the above passages from Wood v R to ignore it. Indeed, it was the very purpose for which the Crown was permitted to rely upon it.
I also accept that there was evidence of other robberies of clubs and hotels being carried out in broadly the same time frame and there was evidence of the use of the first stolen Audi in other criminal activity, not by Glover, Stuart or Carr, in between the robberies on 4 May and those on 7 June. However, there is no suggestion that there were any other robberies that bore all of the hallmarks of the coincidence evidence that linked the offences for which Messrs Glover, Stuart and Carr were tried.
Having made my own assessment of the evidence, I have no reasonable doubt about the guilt of both Glover and Stuart in respect of any of the robberies for which they were convicted. It follows that I am not persuaded that the jury ought to have had a reasonable doubt.
Since circulating my judgment in draft I have had the opportunity to read the judgment of McCallum J. I respectfully agree with her Honour's review of High Court authority on the correct approach to the determination of a ground of appeal asserting an unreasonable or unsupportable verdict. I also agree with her Honour's practical and realistic description of the advantage enjoyed by a jury that must be acknowledged by an appellate court in a case such as the present.
I propose that in the case of both Glover and Stuart the following orders should be made: 1 Leave to appeal against conviction granted. 2 Appeal against conviction dismissed.

Endnotes

Carr v R [2015] NSWCCA 186.
Criminal Appeal Act 1912 (NSW), s 5(1).
Tcpt, p 2043(5).
Tcpt, p 1933.
Tcpt, p 1929(15).
Tcpt, 28/05/13, p 26(12).
(1989) 167 CLR 590.
Harriman at 592-593 (citations omitted).
Harriman at 602.
(2003) 58 NSWLR 700; [2003] NSWCCA 319 (Spigelman CJ, Sully and O'Keefe JJ agreeing).
Evidence Act, s 97(1)(b) and s 98(1)(b).
Evidence Act, s 101(1).
Interlocutory judgment, 30 May 2013.
Interlocutory judgment, pp 4-5.
Interlocutory judgment, p 6.
Interlocutory judgment, p 7.
Tcpt, 30/05/13, pp 88-89.
Tcpt, 29/07/13, pp 2067-2068.
Tcpt, 29/07/13, pp 2089-2090.
Interlocutory judgment, 30 July 2013, p 2.
Interlocutory Judgment, p 6.
Interlocutory Judgment, p 8.
Interlocutory Judgment, p 10.
Criminal Appeal Act 1912 (NSW), s 6(1) (first limb).
M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson, and Toohey JJ); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [25] (Gleeson CJ, Hayne and Callinan JJ).
See, eg, Hoch v The Queen (1988) 165 CLR 292 at 294-295; R v Fletcher [2005] NSWCCA 338; 156A Crim R 308 at [50] (Simpson J).
Tcpt, p 2249-2250.
Tcpt, p 1818.
Tcpt, 06/06/13, pp 327-328.
Tcpt, p 328(10).
Tcpt, p 329.
Tcpt, 11/06/13, p 439.
Tcpt, p 442.
Tcpt, p 444-445 and 447.
Tcpt, 25/07/13, p 1988. 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: 13 November 2015

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