Holmes v R [2018] NSWCCA 211 | Case summary | Zoe

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Holmes v R [2018] NSWCCA 211 | Case summary | Zoe

Circumstances of the offence

At around 9pm on 28 April 2016 two men with face masks entered the Mini Mart on Victoria Road, Potts Point and assaulted the shop assistant. An amount of cash and five or six packets of JPS Superkings cigarettes were stolen. The cash taken from the cash register included a $100 note and several $50 notes. To conceal the high denomination notes, several "merchant copy" receipts of EFTPOS transactions had been placed on top of the notes. The receipts were also taken.
Police records revealed that the owner of the Mini Mart had made a 000 call at 9.09pm. At around 9.30pm, Constables Anderson and Hollis stopped the applicant and another young male, CC, [1] near the intersection of Best and Forbes Streets, Woolloomooloo.
CCTV footage of the robbery showed the two offenders running across Victoria Street and down Butler Stairs, which led to Brougham Street. The applicant lived in a unit in Brougham Street which was approximately 140 metres by foot from the Mini Mart. He and CC were apprehended further down the hill towards Woolloomooloo Bay, a distance of some 280 metres from the applicant's apartment on Brougham Street. They were taken into custody on reasonable suspicion of commission of the robbery. They were detained overnight, the applicant being released at about 11.20 next morning. At 11am that morning a search was conducted of the applicant's unit.
The evidence linking the offender to the robbery fell into three categories, namely (a) that obtained from the CCTV footage and the description of the robbers given by the shop assistant, Mr Afzal; (b) information and items obtained at the time of their arrests, and (c) items linked with the robbery found at the applicant's unit the next morning. It is convenient to deal with these categories in reverse order.
First, there was the execution of the search warrant at the applicant's Brougham Street unit. Two significant items were found at the unit, namely eight "merchant copy" EFTPOS receipts and five packets of JPS Superkings cigarettes. These items clearly linked the robbery with one or more occupants of the unit. There were two occupants of the unit at the time police arrived, one of whom was believed to be the brother of the applicant; the other was not identified. [2] Further police evidence indicated that fingerprints of the shop assistant were found on the EFTPOS receipts; there was no DNA or fingerprint tests done with respect to the packets of cigarettes. The applicant's fingerprints were not found on the EFTPOS receipts. A recording of the execution of the search warrant also revealed, in the vicinity of the cigarette packets, foil and cellophane wrapping of the kind usually discarded when a cigarette packet is opened.
One matter of some significance was that the clothing worn by the robbers, as appeared on CCTV footage of the robbery, was not found. There was brief evidence that a search was made of the laundry at the applicant's unit, but no other evidence was given which might have indicated whether other locations were searched for the clothes.
The second category of evidence was information and items obtained on the arrests. When the applicant and CC were apprehended the applicant had $460 in cash, comprised of six $50 notes, seven $20 notes, one $10 note and two $5 notes. When asked where the money came from he said, "I got paid the other day. I work as a deck hand." He said that he was paid $900 and that he had about $400 left because he had lost money on the pokies and spent money on food.
Police later obtained the applicant's bank records which indicated that on the day he was arrested, he had withdrawn $900 from his account. His bank account records indicated that he received approximately $900 in pension payments each fortnight and withdrew $900 on each pension day. The claim to be paid as a deckhand was unexplained, but the evidence demonstrated that he was truthful in telling the police that he had $900 in cash at some stage on Thursday, 28 April.
When the police sighted the two men, CC was smoking a cigarette. The arresting officer noted that he looked sweaty and was breathing heavily although the weather was not particularly hot or cold. On being searched, he was found to have a packet of JPS Superkings cigarettes in his pocket with one cigarette missing. He also had cash totalling $275, comprised of one $100 note, three $50 notes, one $20 and one $5 note. While, the items found on CC suggested a connection with the robbery, the same could not be said of the applicant.
As to the evidence obtained at the scene of the robbery, this involved the CCTV footage recovered by police and the account given by the shop assistant.
The shop assistant, Mr Afzal was sitting on a crate outside the shop smoking when he saw two men wearing masks cross Victoria Street. One ran past him into the shop and as he stood up, the other punched him on the chin. In the course of a scuffle the man's mask came down and Mr Afzal described his skin colouring as "fair to olive." [3] He referred to two other men who had been standing near him, "but they couldn't intervene because that guy was like jumping around like a boxer and wanted to fight all of us but the guy who was inside, he came out. They tried to trip him but they couldn't so both of them ran towards the stairs". [4] Mr Afzal described the man who punched him as "medium build" and about five foot eight inches. [5] He also gave a height relative to himself, suggesting that the man who stayed outside was between 170 and 175 centimetres.
The police recorded weights and heights when taking the two men into custody. The applicant was 172 centimetres and weighed about 82 kilograms; CC was 177 centimetres (being the taller of the two) but weighed 72 kilograms (being of lesser build). The applicant fitted the general description given by Mr Afzal of the robber who stayed outside.
The CCTV footage depicted the man who went into the shop as having a lighter or khaki coloured hood to his jumper whilst the man who stayed outside had a black hood. The CCTV footage showed the man who stayed outside wearing black ankle length pants, whilst the man who entered the shop was wearing bone coloured pants. Further, the man who entered the shop was wearing black shoes with a white motif, while the man who stayed outside was wearing black shoes and white socks. When apprehended, CC was wearing grey and white runners and the applicant brown shoes; both CC and the applicant were wearing light coloured T-shirts and long dark pants.
If the applicant was one of the robbers, in size and build he appeared to fit more closely the description of the black-hooded man who remained outside. It is possible that the dark pants being worn at the time of his apprehension were the same pants worn by the black-hooded man outside the shop, but no other item of clothing worn by the robber has been identified. There was no evidence that, at the time of his arrest, the applicant was wearing white socks and he was certainly not wearing the black shoes with a white motif, or the dark sneakers with white laces which appeared from the CCTV footage.
The prosecution hypothesis had to be that the applicant, having fled the scene in the direction of his home, had gone into the unit and completely changed his clothes, before leaving and walking down to Forbes Street. That hypothesis also had to include the proposition that all the clothing used in the robbery had been removed from the unit before it was searched by police the following morning. He told police that both his father and brother were at the unit at the time of his arrest. It appears that the police did not visit the unit that evening to check that aspect of the applicant's story.
It was possible that either the applicant or some other person had taken care to remove each item of visible clothing from the unit, but had left packets of cigarettes and the EFTPOS receipts on the kitchen table. It is tolerably clear that other persons were in the unit from time to time, although it is not known if there were different people there at different times. If it be accepted that at least one of the robbers came through the unit between the time of the robbery and 9.30pm, he changed, and disposed of his outer clothing in another place which has not been identified. It might of course be further accepted that only one of the robbers had been at the unit. No doubt the applicant would have had ready access to a change of clothing as it was his home, but it remains a problem for the prosecution case that the clothing used in the robbery has never been recovered. The applicant had only a brief time (perhaps 15 minutes) in which to change his clothing, dispose of the unwanted clothing and walk down to the area on Forbes Street, some 280 metres from the unit, where he was apprehended.
The following circumstances cast doubt on the various inferences which must be drawn for the prosecution to have made good their case against the applicant, namely: 1. at the time of his arrest he did not appear to be hot and sweaty or out of breath, as did CC; 2. at the time of his arrest he could account for the money he was carrying, which was all in common denominations; 3. at the time of his arrest he was not in possession of cigarettes of the same brand as those taken from the shop; 4. at the time of his arrest he was not wearing any of the clothing visible in the CCTV footage as worn by the robbers, and 5. as to the only evidence clearly linking him with the robbery, namely the EFTPOS receipts and cigarettes in his unit, he was not shown to be the only occupant of the unit at the time of the robbery and certainly was not the only occupant (nor present) the next morning when the police arrived.
In determining this ground of appeal this Court must make "its own independent assessment of the evidence" and ask whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [applicant] was guilty". [6] In answering that question in this case, no question arises as to whether the jury enjoyed some advantage "in seeing and hearing the evidence" of the witnesses. [7] This case being a circumstantial case, this Court must consider and weigh up all the circumstances in determining whether there was an inference consistent with innocence reasonably open on the evidence. It cannot consider the evidence in a piecemeal fashion. [8]
When this test is applied to all the evidence, including the matters identified in [19], it follows that it was not open to a reasonable jury to be satisfied beyond reasonable doubt that the applicant was one of the robbers. In substance three matters potentially connected him to the robbery. The first was the amount of cash found on his person, but in light of the evidence noted in [10] that was not incriminating. The second was the presence of the cigarettes and wrapping in his apartment, but he was not proven to be the sole occupant. The third was his presence with CC when he was arrested, but CC's connection to the robbery was tenuous. The end result is that the prosecution failed to exclude the reasonable possibility that persons other than the applicant robbed the shop and brought the cigarettes and receipts to his apartment, either before or after the time when the applicant was arrested.
It followed that the conviction was not supported by the evidence. For these reasons the Court concluded that the conviction could not stand and made orders setting aside the conviction and sentence, and acquitting the applicant.