QUINLAN v REGINA

Court of Criminal Appeal (NSW)|2006-07-24|Before: Tobias JA, McClellan CJ, Hoeben J, Clellan CJ

CITATION: QUINLAN v REGINA [2006] NSWCCA 284

JUDGMENT OF: Tobias JA at 1; McClellan CJ at CL at 2; Hoeben J at 50

CATCHWORDS: CRIMINAL LAW - appeal against conviction - armed robbery - circumstantial case - evidence of flight - consciousness of guilt - whether error in admitting this evidence - whether error in characterising evidence as flight - other explanations of flight - whether other explanations prejudicial - whether evidence ought to have been led in a modified form - whether jury properly directed as to use of evidence of flight - whether verdict unreasonable - direction in relation to circumstantial evidence - nature of circumstantial evidence available

Cornwall v R [2006] NSWCCA 116 Darkan v The Queen (2006) ALJR 1250 R v Cook [2004] NSWCCA 52 CASES CITED: R v Habib (2005) NSWCCA 223 R v Ho (2002) 130 A Crim R 545; R v Power & Power (1996) 87 A Crim R 407 R v Taranto [1999] NSWCCA 396

PARTIES: Ralph Reynold Quinlan (Appl) The Crown

COUNSEL: P Byrne SC/I McLachlan (Appl) V Lydiard (Crown)

SOLICITORS: Ross Hill & Associates (Appl) Director of Public Prosecutions (Crown)

THE COURT OF CRIMINAL APPEAL 2006/523

TOBIAS JA McCLELLAN CJ at CL HOEBEN J

MONDAY 11 SEPTEMBER 2006 QUINLAN, Ralph Reynold v REGINA Judgment 1 TOBIAS JA: I agree with McClellan CJ at CL. 2 McCLELLAN CJ at CL: The appellant and Collin John William Iliffe were jointly charged with the offence of robbing Matthew Ernest Peiti of $53,678.85, being the property of the South West Rocks County Club Limited, when armed with an offensive weapon, namely a firearm, at South West Rocks on 17 November 2002. The appellant and the alleged co-offender pleaded not guilty. The appellant was tried and convicted. The alleged co-offender was discharged at the end of the Crown case. 3 The appellant was sentenced to imprisonment for ten years commencing on 7 January 2003 and concluding on 6 January 2013 with a non-parole period of 7 years and 6 months concluding on 6 July 2010. He appeals against his conviction. There is no application in relation to his sentence.

The prosecution case 4 The Crown case was circumstantial. When sentencing the appellant the trial judge made the following factual findings. It provides a useful summary of the Crown case: "On Sunday 17 November 2002, the offender was driving an orange Monaro, which had been loaned to him by his brother over the weekend, and drove it from Port Macquarie, where he lived, to Kempsey. At about 6 or 6.30 pm that evening, the offender picked up from a laneway in Kempsey two fifteen year old girls, one of whom had contacted him earlier that evening by telephone, and had arranged for them to be picked up. At that time, there were two other males in the car with the offender, namely, his nephew, Robert Quinlan, and another male, Adam George. At some time prior to 8.45 pm, the offender drove the orange Monaro to the visitor information centre in South Kempsey, where he left the orange Monaro and had a conversation nearby with a number of men in a maroon coloured Commodore. At about 8.54 pm, the orange Monaro, driven by the offender, arrived at the Mobil service station in Kempsey where the car was filled up with petrol. At that time, in addition to the offender, the occupants of that vehicle were the two young girls and Robert Quinlan. Adam George had left the orange Monaro and entered the maroon Commodore at the visitor information centre. The orange Monaro left the Mobil service station about two minutes after it arrived, and was later observed at 9.41 pm at the old Mitre 10 building in Kempsey, which had since become the office of the Thungatti Building Company, with the offender in the driver's seat, and the two young girls and Robert Quinlan in the back seat. Subsequently at about 9.44 pm, the orange Monaro arrived for the second time at the petrol pumps at the Mobil service station, followed by the maroon Commodore which arrived at about 9.52 pm. Shortly before the maroon Commodore arrived, the offender had moved the orange Monaro to a parking area within the service station, and following the arrival of the maroon Commodore at the service station, he had a conversation with one or more of the occupants of the maroon Commodore, one of whom was Adam George. The maroon Commodore left the service station at about 9.58 pm and shortly after, at about 9.59pm, the Monaro left the service station, and both vehicles travelled to South West Rocks, travelling north along the highway, before taking one of the two turn-offs to South West Rocks. The orange Monaro, driven by the offender, was seen entering South West Rocks, travelling at an estimated speed of about 140 kilometres per hour, followed a couple of minutes later by the maroon Commodore travelling at a slower speed. Both vehicles were driven to a park near the river at South West Rocks, where the offender, and at least one of the occupants from the maroon Commodore changed into dark clothing before leaving in the Commodore for the South West Rocks Country Club. The two young girls, Robert Quinlan and Adam George in the meantime remained at the park during which time the offender and at least two other occupants from the Commodore entered the South West Rocks Country Club at about 10.45 pm, wearing dark clothing and latex gloves, with their faces covered by balaclavas or hoods, and carrying offensive weapons. The offender, who was the largest of the three men, was armed with a small pistol. The second man was armed with a shortened rifle, and the third man was armed with a meat cleaver. At this time, the club had closed for business that evening, and only employees remained in the club. The offender grabbed one of the female employees by the back of the neck and threatened her with not seeing her family again, if she did not open the club's safe. The offender, taking the female employee with him, and the second robber, proceeded to the office area where the second robber, armed with a shortened rifle, stood in front of a counter to the office area and pointed his weapon at the male supervisor of the club and two other employees, a male and a female, who were inside the office area at the time. The second robber demanded that the door to the office be opened. The supervisor inside the office opened the door, and the offender, armed with a pistol, asked if they had set off any alarms or called the police. The supervisor said they had not. One of the female employees was directed by the offender to lie on the floor of the office for a short time. The offender then asked the supervisor to open the safe after telling him that they just wanted the money and were not there to hurt them. The supervisor and the offender proceeded to the walk-in safe of the club, which was unlocked by the supervisor. In the small area opposite the safe, the male employee was directed to lie down and the two female employees leaned against a table, while the second robber remained in the vicinity. The offender proceeded into the safe, pushing the supervisor in front of him with a pistol at his back. The offender placed into a calico bag that he had demanded from the supervisor a large quantity of money that had been stored in the safe. At one point, the second robber came into the safe to assist the offender. After taking the money from the safe, the offender told the supervisor that he thought there was more money in the club, and told the supervisor that unless he got it, he would shoot the supervisor in the leg. The offender also told the supervisor that there were more people outside with guns who were prepared to shoot it out. After leaving the safe, the offender took the day's proceeds from the club's poker machines, which he noticed on the table in the adjacent boardroom and which had been in the process of being bundled by the supervisor and the other male employee when the robbers entered the club. The offender then proceeded, with the supervisor, to other areas of the club, to search for more money. Before doing so, he directed the other male employee and the two female employees who had remained near the safe, to lie on the floor of the front office, where they were guarded by the second robber. When the offender told one of these female employees to get on the floor, he told her that if she had telephoned the police and there was a shoot-out, she would be the first one dead. As the offender proceeded through the club with the supervisor, he took further money from the bar area of the club. During this period, he told the supervisor, who had been forced to accompany him, that he knew who he was, and where he lived, and that he would "get his family". They then proceeded into the dining room area, where the robber armed with the meat cleaver had been watching over two other female employees seated at a table. They then all proceeded back to the safe. All the employees were then locked in a relatively small area inside the walk-in safe, despite concerns expressed that there may not be sufficient air in the safe for them to breathe. One of the female employees who had hesitated before entering the safe, was pushed into the safe by the offender. Before shutting the door to the safe, the employees, who had requested something to drink, were also provided with two bottles of alcohol. Some minutes after they were locked in the safe, a duress alarm inside the safe was located, and activated by them, which resulted in the club's secretary manager arriving, and releasing them from the safe about ten minutes later. It was later ascertained that a sum of $53,678.65 was taken from the club during the course of the armed robbery. A police officer arrived at the club about twenty minutes after the employees had been locked in the safe, and was provided with a description of the three offenders. In the meantime, the offender and the other two robbers returned in the maroon Commodore to the park near the river. On arrival at the park, the offender yelled for the others who had remained there to get in the orange Monaro, and he took off a dark jumper before driving the orange Monaro out of South West Rocks at high speed. The orange Monaro was driven back to Kempsey the same way it had been driven to. South West Rocks. By the time police vehicles were despatched from Kempsey to South West Rocks to investigate the armed robbery, the orange Monaro had returned to Kempsey. The orange Monaro proceeded through Kempsey and travelled to a location near Greenhills, a town a short distance west of Kempsey. At that location, the orange Monaro and the maroon Commodore stopped, and the offender had a conversation with a number of people at the rear of the maroon Commodore.

Later that evening, the maroon Commodore was driven to the Aboriginal Mission at Bellbrook, where it was left at the rear of a cottage. After the orange Monaro left the location where it had stopped near Greenhills, it was driven back through Kempsey and as it was travelling south along the highway travelling to Port Macquarie. After it had just left Kempsey, it was observed by a police vehicle which was travelling north to Kempsey in the opposite direction. The occupants of the orange Monaro, at the time, were the offender, who was driving, Adam George, Robert Quinlan, and the two young girls. The police vehicle was being driven by Senior Constable Waller, with Probationary Constable Duckworth, as passenger. On seeing the orange Monaro, the police vehicle did a U-turn, and travelled down the highway to catch up with the orange Monaro, which at that time, was not being driven at excessive speed. When the police vehicle caught up with the orange Monaro, which at that stage was travelling behind a truck, its blue and red lights which had been activated from the time it left Port Macquarie were still activated, and the orange Monaro pulled over without any fuss to the side of the highway. The police vehicle stopped about two car lengths behind the orange Monaro, and at that time, the headlights of the police vehicle were on high beam. Both police officers remained in the police vehicle for about two to three minutes, during which time a registration check of the orange Monaro was made over the police radio. During that time, the driver's door of the orange Monaro was observed to slightly open and close on a number of occasions. After a period of time, Constable Waller left the police vehicle and walked towards the Monaro, and shone a torch into the back window of the Monaro, and observed that there were five people in the vehicle who were all moving around. Constable Waller then walked back towards the police vehicle and made a radio transmission to this effect as she leaned into the police vehicle through the open driver's door. As she was still leaning into the police vehicle, she saw the driver's door of the orange Monaro open, and the offender walked towards her with part of his hands down the front waistband of his pants. Constable Waller then moved from where she was standing and walked to the front of the police vehicle, where she met the-offender. A second male was also observed to get out of the orange Monaro. Constable Waller then told the offender to put his hands on the bonnet of the police vehicle, after which the offender raised his hands and said, "What the fuck's up". Constable Waller asked the offender about four times to put his hands on the bonnet, and the offender continued to yell, "What the fuck's up, what the fuck's going on" while he threw his hands up and down in front of his body, only a short distance from Constable Waller. During this period, his behaviour towards Constable Waller was extremely agitated and aggressive. After this exchange, Constable Waller turned to the police vehicle and asked Constable Duckworth, who had remained in the police vehicle, to get help. When Constable Waller turned back, the offender had, in the meantime, walked quickly back to the orange Monaro and Constable Waller saw him get into the driver's seat. The other person who had left the orange Monaro was also observed to get back into the car. The orange Monaro then took off at high speed in a southerly direction. The orange Monaro did a U-turn approximately 100 metres down the highway and then returned back in a northerly direction towards Kempsey. The police vehicle then did a U-turn across the grassed median strip, and followed the orange Monaro. As the vehicles entered the Kempsey township, the police vehicle was travelling at a speed of about 120 to 140 kilometres per hour and the orange Monaro was pulling away from the police vehicle. These speeds were recorded while the orange Monaro was travelling through a 50 kilometre per hour speed zone in Kempsey. At one point in time the police vehicle reached a speed of 180 kilometres per hour, and the orange Monaro was still pulling away from the police vehicle, well off into the distance travelling towards Burnt Bridge. The pursuit, which lasted approximately five minutes was terminated when the police officers lost sight of the orange Monaro. Subsequently the two young girls were dropped off by the offender near Melville High School, and then the offender drove the orange Monaro to the Aboriginal Mission at Burnt Bridge, where he hid the Monaro in the bush. He was subsequently driven by friends to Port Macquarie where he lived, and then travelled to Sydney later that day to speak to his solicitors. He then made contact with police at Kempsey police station and made arrangements to attend there on Wednesday 20 November 2002, where he participated in a lengthy recorded interview, during which he denied travelling to South West Rocks on the evening of 17 November 2002, and told police that he had been driving that evening around Kempsey, Bellbrook, and the area in between. The offender gave evidence in the trial along similar lines, and called evidence in support of his claim of alibi. The jury clearly rejected that claim of alibi and the supporting evidence. Although the offender was interviewed in respect of this matter on 20 November 2002, and charged for various driving matters arising from his conduct after he sped off from police when he had been stopped just south of Kempsey, he was not charged with the armed robbery at the South West Rocks Country Club until 7 January 2003. He has been in continuous custody since 20 November 2002, having been refused bail in respect of the driving matters on 20 November 2002 and the armed robbery on 7 January 2003. There is insufficient evidence to establish beyond reasonable doubt that the two firearms used during the armed robbery were loaded, nor is there sufficient evidence to establish that the two firearms were in fact dangerous weapons, that is, capable of firing a projectile. Accordingly, the offender will be sentenced on the basis that the two firearms used during the commission of the armed robbery were unloaded, and not capable of firing a projectile. However, the employees of the club, who were present when the armed robbery took place, had no way of knowing that. I am satisfied beyond reasonable doubt, having regard to the circumstances in which the armed robbery was committed, and from the evidence the employees gave in the trial, and the manner they gave it, that they could only have been terrified and severely traumatised emotionally by their experiences. The role played by the offender in the commission of the present offence was far more dominant, actively aggressive, threatening, and forceful, than the roles played by each of the other robbers." 5 In his summing up the trial judge told the jury that there was no dispute that there was an armed robbery committed by three persons carrying firearms and a meat cleaver at the Club on 17 November 2002. The issue was whether the largest of the three, who was armed with a pistol or hand gun was the appellant. On this issue the trial judge directed the jury in the following terms: "The most important issue for you to determine in this trial is whether the Crown has established beyond reasonable doubt that the accused, Quinlan, was the person. Unless the Crown establishes beyond reasonable doubt that the accused, Quinlan, was the person, then you would be obliged to find the accused not guilty. Given the way the trial has been conducted, even if you were satisfied beyond reasonable doubt that the accused must have been involved in some way in the robbery, whether it be before, during or after the robbery, but you were not satisfied beyond reasonable doubt the accused was the largest of the three persons who committed the armed robbery, you would be obliged to find the accused not guilty." 6 There are two grounds of appeal

Ground 1: The trial judge erred in admitting evidence said to be evidence of flight disclosing a consciousness of guilt on the part of the appellant 7 Although objection was taken, following a lengthy examination of the issue in a voir dire, the trial judge admitted the evidence of the appellant's flight from the police when stopped on the highway. When objecting to the evidence, the appellant's counsel at the trial identified three reasons why it should not be admitted. Those reasons are relied upon before this Court. They are:

The evidence could not properly be characterised as evidence of flight; 2. The Trial Judge should exercise his discretion pursuant to s.135 of the Evidence Act 1995 to exclude such evidence; and 3. The Trial Judge should exclude such evidence pursuant to s.137 of the Evidence Act 1995. 8 The statements from Senior Constable Waller and Constable Duckworth and the transcripts of their oral evidence given some months beforehand (when the trial did not proceed) were tendered, along with the record of interview with the appellant. Senior Constable Waller and Constable Duckworth were then called and gave further evidence on the voir dire. Evidence was tendered in the form of the police radio transmissions and a locality map. On behalf of the appellant, Mr Lyall Munro was called to give evidence that the appellant had years earlier been present when the police opened fire indiscriminately on an Aboriginal gathering. It was submitted that this created a fear in the appellant of police with guns which explained his high speed retreat after being stopped by the police. 9 In his judgment on the voir dire the trial judge gave a more comprehensive, although similar account of the event, to his account in his remarks on sentence. The trial judge said: "Constable Waller drove the motor vehicle north to Kempsey along the Pacific Highway at high speed. As Constable Waller drove the police vehicle through the southern outskirts of Kempsey she observed an orange Monaro being driven in a southerly direction on the Pacific Highway. As a consequence she did a U-turn and travelling south on the Pacific Highway in order to catch up with the orange Monaro. It is not suggested that the orange Monaro was being driven at that time at excessive speed.

Shortly after, the police vehicle driven by Constable Waller came up behind the orange Monaro which was travelling behind a truck at a point on the Pacific Highway where the highway consisted of single lanes both ways, just prior to the commencement of the dual lane carriageway. The blue and red lights of the police vehicle which had-been activated from the time it had left Port Macquarie were still activated when it caught up with the orange Monaro which pulled over to the side of the highway. The police vehicle stopped approximately 12 to 15 metres behind the orange Monaro. At that time the headlights of the police vehicle were on high beam. Both police officers remained in the police vehicle for about two to three minutes during which time a police radio check of the vehicle was made.

Constable Waller then left the police vehicle and walked towards the Monaro. She shone her torch through the back window of the orange vehicle and observed that there were five people in the vehicle who appeared to be moving around. She then moved back towards the police vehicle and requested Constable Duckworth to broadcast on the police radio that there were five people on board and to get help. She said in evidence that despite saying this to Constable Duckworth she grabbed the radio handpiece from Constable Duckworth and made the transmission herself. She said she then observed the driver's door of the orange Monaro open and saw the accused Quinlan get out and walk back towards her with his hands down the front waistband of his pants. She said she told Constable Duckworth to broadcast on the radio that it was Ralph Quinlan and then she walked a short distance to the front of the police vehicle where the accused Quinlan came up to her. She also said she saw another male get out of the passenger seat of the orange Monaro. She told the accused Quinlan to put his hands on the bonnet of the police vehicle. The accused Quinlan raised his hands and said "What the fuck's up?" According to Constable Waller she asked him about four times to put his hands on the bonnet and on each occasion he yelled "What the fuck's up? What the fuck's going on?" It was her evidence that the accused Quinlan was extremely agitated and unsettled and she said while he yelled at her he was throwing his hands up and down in front of his body. She said that as a consequence she turned towards the police vehicle and asked Constable Duckworth who had remained in the police vehicle at all times to radio for help.

In the meantime the accused Quinlan walked quickly back to his vehicle and it was Constable Waller's evidence that when she turned back she saw the accused Quinlan moving quickly into the driver's seat of the orange Monaro and the passenger whom she had observed earlier also got back into the car.

According to both police officers the orange Monaro then took off in a southerly direction at high speed fishtailing as the rear wheels of the vehicle slid on the road surface. The orange Monaro did a U-turn approximately 100 metres down the highway and then headed back towards Kempsey in a northerly direction with the police vehicle in pursuit. During the pursuit the orange Monaro was pulling away from the police motor vehicle and as the vehicles entered the Kempsey township the police vehicle was travelling at a speed of about 120 to 140 kilometres per hour with the orange Monaro pulling away at rapid speed. At one point in time the police vehicle reached a speed of 180 kilometres per hour and the orange Monaro was still pulling away from it well off into the distance.

The police pursuit lasted approximately 5 minutes and was called off after the police lost sight of the orange Monaro near Burnt Bridge. The evidence of both police was largely consistent in respect of these various alleged events.

The accused Quinlan in a recorded interview conducted on 20 November 2002 gave a significantly different version of events, the substance of which I will briefly summarise. In the recorded interview he said that after he was pulled over by the police vehicle on the Pacific Highway south of Kempsey no police officer approached his vehicle from the police vehicle, which he said had its headlights on high beam. He said he thought this was strange so he left his vehicle and walked back to the police vehicle. He said that when he got closer to the police vehicle two female officers jumped out and asked if he was Ralph Quinlan. He said he asked them what was going on and he was told to put his hands on the bonnet. He said he asked them why he was pulled over. He said they again requested him to put his hands on the bonnet and he replied that he was not going to do that as he wanted to know what he had been pulled up for. He said that they then drew their guns and told him to put his hands on the bonnet again. He said that he replied that he would not do that until they told him why they had pulled him over and what they wanted him for. He said he told them that if they were not going to tell him what they had pulled him over for he was going to jump back into his car and get going and see his solicitor. He said he told the police officers to shoot him if they wished but he was going to walk away and get back into his car and get going. He said he just walked off, jumped into his car and drove off towards a cousin's place at Burnt Bridge where he said he left the orange Monaro and then went back home in a friend's vehicle to Port Macquarie where he lived. He said that next day he was driven back to where he had left the car at Kempsey and then drove it down to Sydney where he said he had left it at Redfern at a cousin's place and then went to see his solicitor. He said that he drove off from the police after he was pulled over because he was frightened that he was going to be set up by police or was going to be shot at and just panicked after they pulled their guns on him. He said that when the guns were pulled on him he freaked out as he had been shot at by police and set up before. Both police officers have denied that they ever drew their guns on the accused after his vehicle was pulled over. The accused in his record of interview also denied that he drove back to Kempsey at excessive speed after he was pulled over and said that he had been driving between 10 and 120 kilometres per hour.

Mr Lyall Munro, a well-known and respected member of the Aboriginal community, has given evidence on the voir dire that on an occasion at Alexandria Park on the second Friday of July 1989 celebrating Aboriginal Day, a number of armed men believed to be police officers entered the park and began shooting towards a number of men playing touch football, one of whom was the accused Quinlan. Mr Munro, who was present at the time, stated that the shooting caused pandemonium with people running everywhere trying to get off the field. It was his evidence that the accused Quinlan was amongst a number of people who had run to the toilet section of the park in order to escape the shooting. According to Mr Munro no arrests were made." 10 His Honour referred to the submissions of defence council which included a submission that if admitted, the evidence should be received in a modified form. Counsel's submission was as follows: "... the evidence that should go before the jury should be that police were aware that an orange vehicle was involved in the robbery. They saw this orange vehicle. The car was pulled over. A conversation was had with [the appellant]. They saw certain things. [The appellant] got back in the car and drove off. We say that that evidence is relevant and admissible ..." 11 His Honour then said: "Evidence of flight is not limited to those situations where a person flees from the crime scene but also encompasses situations where a person subsequently seeks to flee in circumstances where such conduct is demonstrable of consciousness of guilt in respect of the offence or offences charged (see for example R v Egan NSW CCA 7 July 1997.)

I am satisfied, if the jury accept the evidence of the police officers Constables Waller and Duckworth concerning the conduct of the accused following his departure in the orange Monaro from where he was pulled over by the police and the manner of his driving back to Kempsey, that such evidence is capable of being characterised as evidence of flight demonstrating consciousness of guilt in respect of the offence with which he has been charged, as it would be open to the jury to be satisfied, despite the accused's assertions to the contrary, that the only reason for the accused to conduct himself in such a manner was to flee from police as a consequence of realisation of guilt due to his earlier participation in the armed robbery at South West Rocks. For the purposes of sections 135 and 137 such evidence, if accepted, would have a high probative value. While the accused's explanation in his record of interview may result in a suggestion that the accused had had prior dealings with the police, the admissible evidence that Mr Munro could give would effectively extinguish any such suggestion. In any event I am satisfied that any prejudice which may arise can be cured by appropriate directions. Regarding prejudice that is said to arise from reasoning based on suspicion, I am satisfied that appropriate directions will ensure that the jury will not impermissibly reason or infer based on suspicion in relation to the accused's conduct." 12 The appellant submitted before this Court that the trial Judge erred in admitting the evidence of flight. The following matters, which are said to be uncontroversial were relied upon as the foundation for the submission:

(i) The police approached the orange Monaro from the rear and signalled to the appellant in the orange Monaro, which was travelling at a normal speed, to pull over. (ii) The appellant responded by pulling over the orange-Monaro. (iii) No attempt was made to flee from the police's signalling by, for instance, taking the opportunity to overtake the vehicles in front of the orange Monaro or by attempting to outrun the Police in the orange Monaro (V8). (iv) The appellant sat in the vehicle waiting for the Police to walk up to the orange Monaro. (v) Some minutes passed with the police remaining in their vehicle. (vi) In those circumstances, the appellant alighted from the orange Monaro and approached the police vehicle. (vii) Before being able to enquire as to why he was being pulled over, the appellant was told to "Put his hands on the bonnet". (viii) The appellant wanted to know what was happening. (ix) The appellant was never told why he had been pulled over or why he was being told to put his hands on the bonnet of the police vehicle. (x) The appellant was never told that he was under arrest. (xi) The appellant was never told that he was not free to leave. (xii) The appellant was never told that the police wanted to search him or his vehicle. (xiii) The appellant was observed by Constable Duckworth to walk back to the orange Monaro. (xiv) According to Constable Duckworth, Senior Constable Waller used a "normal tone of voice" when speaking to the appellant. (xv) The appellant had years earlier been present when the police opened fire indiscriminately on an Aboriginal gathering. (xvi) Constable Duckworth said (at trial) that they had referred to appellant as "Ralph" upon initial contact which suggested some familiarity with the police. 13 In light of these matters, it was submitted that His Honour erred in finding that the relevant evidence was capable of being characterised as flight. It was submitted that there is more than one offence-unrelated reason as to why the appellant may have left the scene in the circumstances in which he did. This included leaving the scene as a direct result of the actions of the police at the scene. It was further submitted that in the final analysis the evidence is "intractably neutral" (see Doyle CJ in R v Power & Power (1996) 87 A Crim R 407 at 409; R v Ho (2002) 130 A Crim R 545; R v Cook [2004] NSWCCA 52) and should have been excluded. 14 The Crown accepts that the evidence, if it was adduced in the modified form that the appellant suggested, could be characterised as "intractably neutral", but, submitted that there was no reason for the trial judge to rule that the evidence should be led in such a modified form. The Crown submitted that the fact of the appellant driving off in the manner that he did, and driving at the speed that he did, was evidence which, if accepted by the jury, could be characterised as flight. It was further submitted that it was a matter for the jury to determine whether such evidence did amount to flight, provided the jury were properly directed as to how they could use such evidence. As it happened the appellant makes no complaint about such summing up, either at the trial or in the appeal. 15 In R v Cook [2004] NSWCCA 52 Ipp JA provided a useful summary of the law in relation to evidence from which a jury may be asked to infer that an accused person had acted out of a consciousness of guilt, including evidence of flight. His Honour said: "Evidence from which a jury may be asked to infer that an accused person has acted out of a consciousness of guilt is tendered in the prosecution case most commonly in relation to lies, either in or out of court, alleged to have been told by the accused person. A considerable body of law with respect to the circumstances in which such evidence may be admitted, and the way it may be treated, has developed: see, for example, Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen [2000] R v Heyde (1990) 20 NSWLR 234; R v Sutton (1986) 5 NSWLR 697; R v Fowler [2000] NSWCCA 142. The principles were drawn together by Gleeson CJ in Heyde in the following terms: 'If, by evidence or admission, it is proved that an accused person has told a lie, that is to say, made a deliberately false statement, in Court or out of Court, then, provided various conditions are fulfilled, the jury may regard the lie as demonstrating a consciousness of guilt and may treat the lie as corroboration.... However, common sense and ordinary human experience indicate that a judgement as to whether a lie reveals .a consciousness of guilt, although one which people not infrequently make, may, depending upon all the circumstances, be very difficult. People tell lies for many reasons other than a consciousness of guilt. For example, a person may tell lies to escape a false accusation, just as a person may be put to flight by the threat of unjust arrest.' The conditions to which his Honour referred were stated in R v Lucas, (Ruth) [1981] 1 QB 720 and adopted in the judgment of Clarke JA in Heyde. It is apposite to note that the conditions are directed to the determination of whether or not the lies upon which the Crown sought to rely are capable of amounting to corroboration. The four conditions laid down in Lucas are:

(i) that the lie is deliberate; (ii) that it relates to a material issue; (iii) that the motive for the lie is a realisation of guilt and a fear of the truth; (iv) (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness.

To these I would add that the lie must be capable of being seen as indicating consciousness of guilt of the specific offence with which the accused is charged.

Two separate issues arise when the Crown tenders such evidence. The first goes to the admission of the evidence. In order to admit the evidence tendered, the trial judge must be satisfied that it is capable of meeting the five conditions outlined. If it is not so capable then: the evidence is inadmissible. If, however, it is so capable, then the evidence may nevertheless be rejected pursuant to one of the discretion' s available to a trial judge, for example, the discretion conferred by s135 of the Evidence Act 1995, or following the exercise required by s137 of that Act. The second issue, which arises only where the evidence has been admitted, concerns the directions to be given to the jury by the judge as to the use that may be made of the evidence.

The principles developed in relation to evidence of lies are readily adaptable to the circumstance where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt. Evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt - that is, of guilt of the offence with which he/she is charged." [Emphasis added] 16 I am satisfied that the finding of the trial judge in the present case was consistent with the principles defined by Ipp JA. To my mind the jury could legitimately infer that the appellant's actions were occasioned by a concern that if he remained at the point where he had been stopped by the police he may be questioned and searched which would reveal evidence, particularly of a weapon, which may implicate him in the robbery. 17 The appellant contended that the evidence gave rise to unfair prejudice because he was required to explain that he had been shot at by the police some years before, which was suggestive of tension in the past between himself and the police. 18 To this submission the Crown, in my opinion correctly, responds that there is no rule of law which says that evidence of flight should be excluded because the appellant's explanation for the flight might reveal other evidence which may be prejudicial to the appellant. The issue was addressed in R v Taranto [1999] NSWCCA 396 where the appellants were tried on charges of wounding with intent to murder, and, alternatively, malicious wounding with intent to do grievous bodily harm. The Crown tendered evidence that, after the commission of the offence, one of the appellants had stayed away from home for some time, and when police attended at his home he ran away and hid inside the roof space of a garage. This evidence was tendered as evidence demonstrating consciousness of guilt. In the absence of the jury the trial judge was told that the appellant faced unrelated charges of goods in custody, possession of a prohibited drug and possession of an unlicensed pistol. The evidence of his seeking to avoid apprehension was, nevertheless, admitted. In this Court, Hidden J held that it was open to the trial judge to admit the evidence. 19 Hidden J said: "... His Honour admitted the evidence saying it was a matter for Mr Taranto how he dealt with it and intimating that, if he chose to reveal those outstanding charges, any prejudice would be remedied by appropriate direction. I am not persuaded that his Honour fell into error in this regard. Mr Taranto gave evidence of other reasons for his flight. The situation is materially different from that considered by White J in The Queen v Bridgman … where the only explanation the accused could give for his flight was his fear that his parole in respect of another offence might be revoked if he were found guilty of the offence for which he stood trial. Similarly, there is no parallel between this case and the The Queen v Hartwick (Court of Appeal of Victoria, unreported, 20 December 1995). In that case, evidence of flight was held to have been wrongly admitted in the appellant's trial for armed robbery because the same evidence had been used in an earlier trial of the appellant for a different armed robbery, of which he had been convicted. Again, it seems that the only reason the appellant could have advanced for his conduct was his involvement in the other offence.

That evidence of flight may properly be admitted in circumstances such as the present case was recognised in R v Melrose. ... If the same objection should be taken at the appellant's retrial, it would be a matter for the trial judge to determine in the light of the circumstances as he or she finds them. I say no more than that, on the material before him, it was open to his Honour to have admitted the evidence." 20 In R v Cook Ipp JA said: "... There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct." 21 Although there may be cases where the preferred explanation may be so prejudicial that the evidence of flight should be excluded this was not such a case. Having been involved, with others, in prior dealings with the police did not produce prejudice of concern in this case. 22 In my opinion the evidence was correctly admitted. Although the appellant suggested that his reason for fleeing was his previous experience with the police it was for the jury to assess whether he should be believed in this explanation. Disclosure of his previous experience did not require disclosure of an offence, merely dealings with the police. Any prejudice to the appellant was capable of being adequately addressed by the trial judge's directions. 23 Although the appellant was justifiably able to emphasise the fact that he had obeyed an initial command from the police to pull over, he would not at that point have necessarily believed that he was under suspicion for the robbery. To have avoided the police may have incriminated him when he was not otherwise under suspicion. However, the actions of the police in requiring him to put his hands on the bonnet were inconsistent with him being questioned for a traffic matter and suggested a more significant concern in the minds of the police officers. If, as would seem probable, he was to be searched and if, as was the Crown case, he had a weapon in his possession it would be likely that it would be discovered, providing a link to the robbery. 24 It must not be overlooked that the appellant not only fled, and the evidence of the police was that he did so at high speed, he also took steps to secrete his motor vehicle. This was hardly the action of a person who reacted spontaneously out of a fear of police weapons. I am satisfied that it was open to the jury to infer that the appellant was avoiding apprehension for the alleged offence and admission of the evidence did not give rise to unfair prejudice. 25 I would reject this ground of appeal.

Ground 2: The verdict of the jury is unreasonable and cannot be supported having regard to the evidence 26 In R v Habib (2005) NSWCCA 223 I provided a summary of the principles which must be applied when a verdict is challenged as unreasonable. The High Court recently considered the matter in the context of the proviso (s 6 of the Criminal Appeal Act 1912 (NSW)) in Darkan v The Queen (2006) ALJR 1250 (see also Cornwall v R [2006] NSWCCA 116). 27 At the trial in his very careful and detailed summing up to the jury, the trial judge included a direction in relation to circumstantial evidence about which there is no complaint. The judge's summary of the critical evidence was as follows: "The circumstances upon which the Crown relies to prove circumstantially that the largest of the three men who committed the robbery armed with a pistol was the accused are as follows: 'The circumstance about which there is no dispute that during the whole of the evening of 17 November 2002 the accused was at all times the driver of the orange Monaro.

The circumstance about which there is no dispute that just before 10pm that evening the orange Monaro driven by the accused and a maroon Commodore arrived at the Mobil service station in Kempsey and the accused met with the occupants or some of the occupants of the maroon Commodore.

The circumstances arising from Mr Ploeger that on 17 November 2002 he said he saw an orange Monaro speeding into South West Rocks, followed a couple of minutes later by a maroon VN Commodore or an EZ Falcon. However when you consider this circumstance and particularly whether this was an orange Monaro driven by the accused, you will recall that Mr Ploeger said in evidence that he made that sighting of the orange Monaro between 9.50pm and 10.10pm, and you will recall that at about one and half minutes to 10pm the orange Monaro driven by the accused can still be seen on the security video at the Mobil service station at Kempsey.

The circumstance arising from the evidence of Mr Smith, that he said he saw an orange Monaro in Gregory Street, South West Rocks, with its indicator on when he was driving home from work at about 10.30pm on 17 November 2002. However when you consider whether you accept that circumstance, you will recall Mr Smith's evidence in cross-examination that he could have been mistaken that the orange vehicle was a Monaro. The circumstance arising from the disputed evidence of Jasmine Bowden and the disputed statement by Alana Morris on 23 January 2003, that following the second circumstance upon which the Crown relies, the orange Monaro, driven by the accused and the maroon Commodore travelled some time after to South West Rocks and parked near a river, after which the accused left in the maroon Commodore, which occurred according to Jasmine Bowden's evidence, after the accused and one of the men from the Commodore had changed into a black jumper before leaving in the Commodore. The circumstance arising from the disputed evidence of Jasmine Bowden and disputed statement made by Alana Morris to police on 23 January 2003, that the accused returned in the maroon Commodore some time later, which according to Jasmine Bowden was 15 to 20 minutes, when the accused changed his shirt, according to Jasmine Bowden's evidence or took off a dark jumper, according to Alana Morris' statement, and told them to get in the car before driving away from South West Rocks in the orange Monaro, which Alana Morris said in here statement was done very fast. When you are considering the fifth and sixth circumstances you will need to keep in mind amongst other things that Jasmine Bowden in her first statement to police on 10 January 2003 and in the handwritten statement she together with Alana Morris on 19 June 2003, indicated they had not gone to South West Rocks that evening and that Alana Morris said in her evidence that her statement to police on 23 January 2003 was not the truth but a story she and Jasmine had made it up. The circumstance arising from the disputed evidence of Jasmine Bowden, that as the car was being driven away from South West Rocks, she was sitting in the front seat of the Monaro and turned to look at the accused who was driving and saw the accused carrying a black hand gun which she described as little. However she was unable to give further details and she said she did not see what he did with the gun. When you consider whether you accept this circumstance, you will need to take into account amongst other things that Jasmine Bowden made no reference in any of her three statements made to the police to seeing the gun, and the first time she made reference to seeing the gun to anyone connected with the trial, such as the prosecutor or police, was in a conference with the Crown Prosecutor on 22 October 2003, only about four weeks ago. The circumstance which the Crown alleges to be flight, demonstrating an awareness of guilt on the part of the accused, namely that sometime around midnight that evening after being pulled up by the police on the highway south of Kempsey, and being asked to put his hands on the bonnet of the police car, the accused walked quickly back to the orange Monaro, turned the car around and drove back to Kempsey, which occurred according to the disputed evidence of the police officers, Constable Waller and Duckworth, with the Monaro speeding off, fishtailing as it went and driving towards Kempsey at high speed, pulling away from the pursuing police vehicle that was travelling at about 120 to 140 kilometres per hour as the vehicles entered Kempsey, and later on one occasion at 180 kilometres per hour before the police lost sight of the orange Monaro near Burnt Bridge. Before you can take into account the circumstance of what is alleged by the Crown to be flight, showing awareness of guilt on the part of the accused after he was pulled over, you must first be satisfied that he was deliberately fleeing from police when he left the location where he had pulled over and drove north back through Kempsey, and you must secondly be satisfied the only reason for him fleeing from police was because he knew he was one of three persons who committed the armed robbery on the South West Rocks Country Club. However you must be cautious as fleeing from police may be explained in other ways and innocent people flee from police. Before you can be satisfied that the only reason for him fleeing was his knowledge that he had been one of the three persons who committed the armed robbery, you must be satisfied that his conduct in fleeing cannot be explained in other ways such as a result of panic or fear of the police or others, a desire to protect another person or persons, or to avoid other consequences unrelated to the armed robbery at the South West Rocks Country Club. It is only if you are satisfied that first he was deliberately fleeing from police, and secondly that the only reason he was fleeing from police was because he knew he was one of the three persons who committed the armed robbery at the South West Rocks Country Club, that you can take into account this circumstance alleging flight as one of the circumstances to prove the guilt of the accused. Unless you are satisfied the Crown has proved each of these two matters, you cannot take into account the circumstances alleging flight in considering the accused's guilt. The circumstance arising from the disputed evidence of Jasmine Bowden that when she left the orange Monaro that night the accused told her not to say anything or he would come after her. The circumstance arising from the accused's admission in his record of interview that he hid the Monaro that evening in the bush at Burnt Bridge. The circumstance that the accused admitted in his record of interview that the shoes he was wearing in the interview were the same shoes that he was wearing on the evening of 17 November 2002, which shoes the Crown submits you will accept were similar to the descriptions given by Ms Morely and Ms Brand, two of the persons who witnessed the armed robbery. It is only if you are satisfied that the Crown has proved that the shoes the accused admitted he was wearing that evening which are exhibit N, are in fact similar to the descriptions of the shoes worn by the largest of the three robbers, seen by the witnesses to the robbery can you take into account this circumstance, as one of the circumstances to prove the accused's guilt. [His Honour then went on to refer to the evidence of various witnesses in relation to the shoes worn by the largest of the three robbers." 28 His Honour continued and gave careful directions as to how circumstantial evidence can be used and how it can be used in determining whether the Crown had proved beyond reasonable doubt that the largest of the three robbers was the accused. 29 In written submissions the appellant submitted that the Crown evidence could not support the conviction. A number of propositions were advanced. Central to them was the evidence of Mr Ploeger who observed an orange Monaro on the relevant evening at South West Rocks. The appellant submitted: "According to Mr Ploeger, he observed an orange Monaro on the outskirts of South West Rocks at about 10pm, give or take 10 minutes either way. Yet, the Mobil Petrol Station surveillance video showed the orange Monaro - as driven by the appellant - still at the station until at least 9.58 pm. Indeed, the evidence from Ms Bowden suggested that they did not leave the station until about 9.59pm. Travelling at a normal speed, this means that the orange Monaro - if it was the same orange Monaro as observed by Mr Ploeger - must have reached South West Rocks within, at the very latest, 11 minutes. That is clearly not possible based on the evidence of travelling times provided by certain police witnesses - who suggested that such a trip would take in excess of 30 minutes at normal speed, or closer to 20 minutes if travelling at a much higher speed." 30 The possible difficulty with Mr Ploeger's evidence was recognised by the trial judge. However, having regard to other evidence of the appellant's driving habits the possibility of the appellant driving at excessive speed was high. Whether Mr Ploeger's evidence should be discarded or accepted as relevant, but confused as to timing, the criticism made of it by the appellant does not deprive it of all utility. There was other evidence which to my mind leads inevitably to the conclusion that the appellant's orange Monaro was in South West Rocks at about the relevant time. 31 The appellant also emphasised difficulties which it was submitted arise from the evidence of Mrs Ho who had been at the club that evening. The submission was in the following terms: "According to Mrs Ho, she left the club at about 10.45 pm and saw an orange vehicle drive past the South West Rocks Country Club. About 30 seconds later she observed three men walking away from the club. The Crown case was that the appellant and the co-offenders attended upon the club in the maroon Commodore. There was no evidence of a maroon Commodore being seen in the vicinity of the Club on that night. This without more, is absolutely fatal to the Crown case." 32 There was no necessity on the Crown case to connect the robbery with the presence of an orange coloured vehicle near the club premises. Nor in my opinion is the lack of observation of a maroon Commodore of significance. All that it means is that no witness at the trial observed the Commodore. It does not mean that it was not there. 33 There was debate at the time and before this Court about the evidence which could identify the offender. The Crown case was that he was a large man, overweight and a "big fellow." Two of the police officers said that at the relevant date the appellant was not obese although the police were given information that the largest offender was obese. There was evidence that a very overweight person recognised by a police officer as Adam George was seen on the surveillance video walking back to the maroon Commodore at the service station shortly before it left just prior to 10.00 pm. The appellant did not attend the hearing of this appeal. 34 To my mind nothing turns upon this controversy. The evidence indicated that the appellant was a large man. Whether he should be described as obese is not of consequence. The fact that he was a large man was consistent with the Crown evidence. 35 Of significance was the description of the footwear being worn by the largest offender. The appellant admitted that when interviewed he was wearing the same shoes as on the evening of 17 November 2002. Those shoes were tendered in evidence. Although the main part of the shoe was white the rear section was dark with red portions and the heel was substantially comprised of a clear plastic substance but included red ball-shaped components. 36 When summing up the trial judge directed the jury's attention to the evidence of the description of the offenders and the clothing they were wearing which was given by witnesses at the club. Ms Geronimi described the offender who the Crown alleged to be the accused as a tall person, with a solid build wearing dark clothing. She did not notice what he was wearing on his feet. 37 Mr Peiti described the offender who was alleged to be the appellant as a very large male wearing dark clothing and carrying a small black pistol. He did not notice what he was wearing on his feet. Mr Colquhoun described the offender who was alleged to be the accused as "wearing old dark joggers." 38 Sandra Morley described one of the offenders as a big fellow wearing white cotton gloves and joggers. She said that she could not recall the colour of the joggers but said that she saw what looked like three red balls recessed into the heel with plastic or something over them. 39 Debra Brand described the offender who was alleged to be the appellant as wearing dark joggers. However, she could only see the heels (which would, if they were the appellant's joggers, appear to be dark) with red balls in the heels. She said the shoes looked to be expensive. 40 To my mind notwithstanding that some of the witnesses have no recall of the large offender's footwear the evidence of Ms Morley and Ms Brand significantly supports the Crown case. True it is that Ms Brand does not identify the correct colour but this may have depended on the angle at which she was viewing the shoes. From the rear, where the heel could be viewed, they appear dark. As both witnesses have a clear and apparently accurate recollection of the structure of the heel, their evidence is capable of providing significant support for the Crown case. Although the evidence of the other witnesses do not provide support, given the trauma of the event and the difficulty, which the appellant's counsel accepts, of some witnesses, recollecting peripheral details of traumatic events, this does not to my mind weaken the Crown case. 41 The Crown called Jasmine Bowden to give evidence at the trial. She was allegedly present in the orange Monaro throughout the evening and gave a detailed account of events. However, she had been drinking "Jim Beam" and coke throughout the night, ultimately becoming significantly intoxicated. Criticisms were made in relation to the reliability of her evidence, both at the trial and during the appeal. The trial judge was mindful of these problems and gave the jury the following directions: "For a number of reasons the evidence of Jasmine Bowden, upon which the Crown relies to prove the accused's guilt, may be unreliable and you must approach that evidence with considerable caution and scrutinise it with the greatest of care. The reasons include the following: 1. She admitted she was not an experienced drinker at that time and began consuming alcohol shortly after getting into the car that evening and then constantly consumed alcohol during the course of the evening and by the time of their second visit to the Mobile service that night, she admitted being a bit drunk and then becoming more progressively drunk as the evening progressed. 2. She admitted that the more she had to drink the less she remembered that evening and she described her memory of what happened that evening as in bits and pieces and said that quite a bit of this night was a blur. As an example she agreed that until she saw the video from the Mobil service station she had not remembered that she had gone there twice that evening. 3. She made no mention of ever seeing the accused with a gun in any of the three statements she made to police because she said she had not remembered, and the first time she said she remembered was not long after she made her third statement to police on 3 June 2003 when she said she told her mother, but the first time she said she told anyone connected with the trial, such as the prosecutor or the police about seeing a gun, was when she had a conference with the Crown Prosecutor on 22 October 2003, only a few weeks ago. 4. Although she stated in evidence-in-chief that she had seen Colin Iliffe at the Tourist Information Centre in South Kempsey, the Mobile service station in Kempsey, and more importantly at South West Rocks, she agreed in cross-examination she had never seen him in fact at these locations, but had just assumed he was there because she saw the maroon Commodore at these locations and believed it to be his car. 5. She agreed that although she gave evidence of having a conversation with Colin Iliffe at Greenhills on the way back from South West Rocks, she had never until she gave evidence in this trial, made any reference to having that conversation before. 6. She made a statement to police on 10 January 2003 and signed a handwritten statement on 19 June 2003, both of which contained representations that the statement, to the effect that they had not gone with the accused to South West Rocks that evening, was the truth. 7. She said in evidence that her mother told her on the day she made her second statement to police on 4 February 2003, but before she made it, that police believed she was involved in the robbery and at the time she made her second statement to police she had been charged with two offences and placed on a bond to be of good behaviour and knew that if she did anything wrong during the bond she would be brought back to court and the matter looked at again, and that she said was on her mind at the time. For all these reasons you must approach the evidence of Jasmine Bowden upon which the Crown relies to establish the accused's guilt with considerable caution and scrutinise her evidence with the greatest of care. In giving you this warning you should not think that I am trying to convey to you any view or assessment I might have concerning the credibility or unreliability of this witness. That is a matter for you and you alone to determine. However, the law requires all judges to give such a warning in cases of this type as the law recognises that such evidence may be unreliable." 42 The evidence of Ms Bowden was not critical to the Crown case. Although providing a general account of events that night her recollection of the details must be doubted. However, his Honour's direction adequately dealt with these problems. Her evidence and the problems with it do not cause me to doubt the correctness of the jury's verdict. 43 The appellant raised an alibi and gave evidence that on the night in question he had been in the company of his nephew, Robert Quinlan and had driven from Port Macquarie to Kempsey. He said they visited people in Kempsey and picked up Ms Bowden and Ms Morris. He gave an account of driving around and stopping at the service station. He said they later left and called upon his cousin Vincent Scott (called Sonny). They left the girls at Scott's place and Robert and himself then left to drive back to Bellbrook which is about half an hour to forty minutes from Kempsey. He said they drove to Bellbrook but it was pretty quiet and they drove back to Kempsey and went to the Mission at Greenhills. After a while they decided to return to Port Macquarie which is when he was stopped by the police. After the exchange with the police officers he recounted how he left at speed and drove back towards Kempsey where he dumped the car before he and Robert got a lift back to Port Macquarie. He said he then went to Sydney to speak with a solicitor. He denied any involvement in the robbery. Robert Quinlan gave evidence which supported the appellant's account of these events. 44 There are critical differences between the evidence of the appellant and Robert Quinlan and that of the police officers who stopped the appellant's vehicle. They include the police account that there were five people in the car including girls, the denial by the police that they produced a weapon, the speed with which the vehicle left the scene, the police said it was at high speed and fish-tailing, and the speed at which the vehicle travelled to Kempsey. 45 The police account of these events is supported by the recording of radio transmissions and the speed of the pursuit. I am in no doubt that the jury was correct to reject the appellant's and Robert Quinlan's account of the relevant events. Furthermore, the evidence of Alana Morris was inconsistent with the alibi evidence and, although in some respects flawed and unreliable, Ms Bowden's evidence was in relevant respects consistent with Ms Morris. Although Ms Morris gave evidence to the contrary at the trial, she gave a statement to police on 23 January 2003 that they had been to South West Rocks. The events which she described including alcohol induced vomiting are a realistic and convincing account. Her later evidence was in my opinion rightly rejected by the jury. 46 To my mind although circumstantial this was a strong Crown case. Evidence of the movements of the appellant, verifiable from the video surveillance material at the service station, the original account of events given by Ms Morris, the evidence of the size of the relevant offender, his clothing and shoes together with the actions of the appellant when stopped by the police make a convincing case. 47 By contrast the appellant's account of the evening is not convincing. Furthermore, his suggestion that, although he was prepared to stop, he fled the authorities out of a fear of the police weapons or because he may have to explain to the elders that he had been in the company of young women is entirely unconvincing. If these were real fears, particularly a concern over being in the company of women, his best course of action would have been to politely deal with police inquiries and then go on his way. With respect to the alleged drawing of weapons by the police there is no evidence of any event which would have required the officers to remove their weapons from a secure position. Furthermore, as far as the young girls were concerned if it was true, as the appellant said, that they were no longer in the car, their presence could not have been a reason to flee. 48 I would reject this ground of appeal. 49 In my opinion the appeal should be dismissed. 50 HOEBEN J: I agree with McClellan CJ at CL. **********

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