R v Cooper

COUNSEL : A P Cook - Appellant E Wilkins - Crown SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service - Appellant S E O'Connor - Crown CATCHWORDS : Forensic evidence that appellant was in car - appellant denied steaing car from Hill Street - said he got in car in Grace Avenue to steal it but saw child and did not do so - examination of evidence - disbelief of appellant's evidence did not prove he stole car from Hill Street - evidence insufficient for proof beyond reasonable doubt. D. Chamberlain v The Queen (1984) 153 CLR 521; Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81; CASES CITED: Lee v Russell (1961) WAR 103; M v The Queen (1994) 181 CLR 487; Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640. DECISION : Appeal allowed, convictions quashed, and verdicts of acquittal entered.

IN THE COURT OF CRIMINAL APPEAL CCA 60058/02 DC 01/11/0496

GILES JA BELL J BUDDIN J

Friday 18 October 2002 R v COOPER Judgment 1 THE COURT: The appellant was tried before J X Gibson DCJ and a jury on charges of stealing a motor vehicle and manslaughter. He was found guilty on both charges, and was effectively sentenced to imprisonment for seven years with a non-parole period of five years. He appealed against conviction and applied for leave to appeal against sentence. 2 The first ground of appeal against conviction was "that the verdicts are unreasonable in that the jury ought to have had a reasonable doubt on the issue of the appellant taking the car from Hill Street". If it were upheld, the appellant would be entitled to verdicts of acquittal. The other grounds of appeal against conviction were concerned with the course of the trial and the directions given to the jury. If one or more of the other grounds of appeal were upheld, ordinarily a new trial would be directed. 3 With the benefit of the written submissions filed on behalf of the appellant and the Crown, at the hearing of the appeal we asked the Crown to address us on the first ground of appeal against conviction. At the conclusion of the Crown's oral submissions we made orders that the appeal be allowed, the convictions be quashed, and verdicts of acquittal be entered. We said that our reasons would be given later. These are our reasons.

The question under the first ground of appeal against conviction 4 The appellant appealed in the exercise of the right of appeal given by s 5(1) of the Criminal Appeal Act 1912. By s 6(1) of that Act, on any appeal under s 5(1) against conviction the court shall allow the appeal "if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, … or that on any other ground whatsoever there was a miscarriage of justice". 5 At a time when the phrase "unsafe or unsatisfactory" was often used to state the conclusion that the verdict of the jury should be set aside, in M v The Queen (1994) 181 CLR 487 the High Court provided authoritative guidance for the application of these words in s 6(1). Mason CJ and Deane, Dawson and Toohey JJ said (at 492) that the court does not consider as a question of law whether there is evidence to support the verdict, and that the question is one of fact which the court must decide by making its own independent assessment of the evidence. Their Honours said (at 493-5) - "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. … In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

An outline of the evidence 6 At about 1pm on 4 December 2000 Mrs Lan Thi Le parked her BMW in Hill Street, Cabramatta, outside a noodle shop. Her son Leo, aged two years ten months, was buckled in a child restraint seat on the passenger side rear seat of the car. It was a hot day, and Mrs Le had the car engine running with the air conditioner turned on, the doors closed and the windows up. 7 Mrs Le briefly left the car to order some noodles, returned to the car, and then briefly left the car again to pick up the noodles. Leo was asleep. When she returned from picking up the noodles, the car was gone from where it had been parked. 8 The car was located by the police at 3.50 pm on 4 December 2002. It was parked in Grace Avenue, Cabramatta, in a cul de sac at the end of that street and about 900 metres from where it had been stolen. The keys were in the car, but the engine was not running. The doors and windows were closed. Leo was still in the child restraint seat. The interior of the car was very hot, and Leo was not breathing. He could not be revived. The cause of death was hyperthermia, that is, the effect of the heat. 9 The Crown case was that the appellant stole the car from Hill Street (the stealing charge) and, having realised that Leo was in it, abandoned the car in Grace Avenue in circumstances of risk of harm or death to Leo from the hot conditions constituting criminal negligence (the manslaughter charge). 10 Ms Milena Gusa, then aged 12, saw a man get into the car in Hill Street and drive away. She saw the man crossing the street, and then in side profile of his face as he sat in the car. The man drove away at normal speed. Ms Gusa described the man as having black short hair, brown eyes and a fair complexion, and at one point as Chinese and at another point as Asian in appearance. She said that she did not distinguish between Chinese and Asian. She described the man's clothing, but the clothing was not linked to the appellant. Ms Gusa participated in compiling an identikit picture of the man she saw, saying that she was doing her best but was not confident. She said that that she was 60 per cent confident of the similarity between the identikit picture and the man she saw. 11 The appellant is Aboriginal. At the trial the identikit picture was tendered together with a photograph of the appellant taken in December 2000. 12 The Crown called evidence from residents of or visitors to houses in Grace Avenue, persons collecting students from a school adjacent to the cul de sac, and students leaving the school, as to the presence of the car in Grace Avenue ("the car witnesses"). As might be expected, there were some inconsistencies between the car witnesses. The evidence broadly could establish that the car was left in Grace Avenue at about 1.30 pm and remained there with the doors and windows closed until the arrival of the police at 3.50 pm, although there are qualifications to this to which we will come. Except for the periods 1.30 pm to 2.00 pm and 3.20 pm to 3.45 pm, the car was seen by different car witnesses at approximately five to ten minute intervals, although the time estimates were necessarily imprecise (except perhaps for students leaving the school at about 2.25 pm). 13 The forensic evidence would establish that at some time on the afternoon of 4 December 2000 the appellant had been in the car. His fingerprint was on the outside of the driver's door near the handle. His fingerprints were on a number of pages of a newspaper found in the car which had not been in the car before it was stolen. His DNA matched DNA found on the gear lever and the steering wheel. We will return to the forensic evidence for what it did not establish. 14 The appellant gave evidence. He denied stealing the car from Hill Street. He said that he had come upon the car in Grace Avenue, where he had gone to keep an appointment with his drug supplier, unlocked and with the keys in it. He had got into the car and started it with the intention of stealing it. He had then seen Leo in the car, and had "freaked out" and quickly left the car and gone away. Mr Kevin Mossman, called by the Crown, gave evidence of distantly seeing a man in the vicinity of Grace Avenue walking very fast and looking over his shoulder at about 2.30 pm on 4 December 2000, and at the trial the appellant's counsel invited the jury to conclude that the man was the appellant. The appellant did not himself say at what time he came upon the car. 15 We repeat that the Crown case on the manslaughter charge was that, having stolen the car from Hill Street and realised that Leo was in it, the appellant abandoned the car in Grace Avenue in circumstances of risk of harm or death to Leo from the hot conditions constituting criminal negligence. The Crown case was not that, having come upon the car in Grace Avenue and seen Leo in it, the appellant failed to safeguard Leo from the risk of harm or death. In saying this we do not suggest that a case of the latter kind should or could have been brought.

Discussion 16 On the evidence of Ms Gusa the person who stole the car was a young male, and the appellant was a young male. But the appellant's appearance, whether from the photograph or from the jury's observation, was neither Asian nor particularly similar to the identikit picture. On no view did he have a fair complexion. Taken alone, Ms Gusa's evidence on balance told against the appellant being the thief. 17 It appears that the Crown suggested to the jury that Ms Gusa could have mistaken the appellant, if he were the person she saw, for a person of Asian background, and in the appeal the Crown submitted that the jury was required to consider the evidence as a whole so that deficiency in the quality of Ms Gusa's identification could be overcome by regard to other evidence. The suggestion rather begs the question. It may be accepted that the jury was required to consider the evidence as a whole, including Ms Gusa's identification, see Chamberlain v The Queen (1984) 153 CLR 521 at 535. That directs attention to the other evidence. We will return to the identification after considering the other evidence. 18 The Crown began with the forensic evidence showing that the appellant had been in the car at some time on the afternoon of 4 December 2000. It submitted that there were two competing hypotheses. One was that the appellant was in the car when it was stolen from Hill Street, and was the thief. The other was that the appellant came to be in the car in the manner he described, the car having been stolen from Hill Street by someone else and abandoned in Grace Avenue. The Crown submitted that other evidence entitled the jury to accept the first hypothesis, with satisfaction beyond reasonable doubt. 19 First, it was said, from the evidence of the car witnesses it was unlikely that the appellant had come upon the car in Grace Avenue, got into it, and then left it, because none of the car witnesses had seen any such happening. If he had been in the car and it was unlikely that he had got into the car in Grace Avenue, the likelihood was that he was the thief at Hill Street. 20 We do not think that the evidence of the car witnesses gave any real foundation for concluding that the appellant did not come upon the car, get into it, and then leave it, while it was in Grace Avenue. The evidence was not of constant surveillance of the car, but of it being seen from time to time, and there were plenty of intervals during which the appellant, if disposed to steal the car from Grace Avenue, could have acted as he said he did. That, no doubt, is why the Crown's submission was in terms of unlikelihood. Further, there are the qualifications to the broad summation of the evidence of the car witnesses. One of the car witnesses gave evidence of seeing an Asian male get in the car and drive away at about 2.25pm or 2.30 pm, although this was out of step with all else. One of the car witnesses saw the car with the front passenger door open at about 2.30, and two saw the car with the driver's door open at about 2.30. One of the car witnesses said he saw the driver's side passenger door slightly ajar at about 3.45 pm. While it is correct that, with one exception, none of the car witnesses saw a person in or about the car, this weakens the submission. 21 Secondly, it was said, on the forensic evidence it was unlikely that any stranger other than the appellant was in the car. We do not think that is correct. We earlier foreshadowed what the forensic evidence did not establish. There were fingerprints inside the car which were not identified. There was DNA on the steering wheel and the gear lever from persons who could not be identified. Fingerprints on the driver's door window and on the driver's door above the door handle were identified as fingerprints of members of the Le extended family, but the fingerprint expert was unable to extract from the door handles (inside and outside) of the driver's door and the area around the door handle fingerprints suitable for comparison purposes. Thus the forensic evidence left it open that a stranger other than the appellant entered and drove the car. 22 Thirdly, it was said the appellant could not have got into the car later in the afternoon rather than when it was stolen because, if he had done so, the interior of the car would not have been as hot as it was when the police located the car. The suggestion was that in getting into the car the appellant would have let hot air out and the level of heat would not have been regained. The evidence did not support either limb of this submission. Neither is self-evidently plausible. 23 Fourthly, and as we understand it as the Crown's principal submission, it was said that the jury must have disbelieved the appellant's account of how he came to be in the car and that, the second hypothesis thus being rejected, the first hypothesis must have been correct. In our opinion, this reasoning is flawed. 24 It should be said at once that the appellant's evidence was unsatisfactory in a number of respects, and it was open to the jury not to believe his account of how he came to be in the car. But, as has been pointed out in a number of cases, generally disbelief does not amount to positive evidence of the opposite of what is disbelieved (see for example, Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 684, 694; Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 at 87). It has been said that if the truth must lie between two alternative states of fact, disbelief of evidence that one of the states of fact exists may support the existence of the alternative state of fact (Steinberg v Federal Commissioner of Taxation at 694, citing Lee v Russell (1961) WAR 103). But that is not this case. The basic flaw lies in the submission as to two competing hypotheses. It was for the Crown to prove, beyond reasonable doubt, that the appellant stole the car from Hill Street and that he abandoned it in Grace Avenue. Disbelief of the appellant still left whether, from the fact that he had been in the car at some time during the afternoon of 4 December 2000, that could be found beyond reasonable doubt. 25 It should be added that this was not a case in which the giving of false evidence by the appellant could be used as evidence of consciousness of guilt, and the jury was correctly instructed accordingly.

Conclusion 26 In our view, the Crown case did not materially rise above its starting point that the appellant had been in the car at some time during the afternoon of 4 December 2000. Returning to the evidence of Ms Gusa, we do not think that regard to the evidence as a whole enabled more to be made of that evidence: it tended against the Crown case rather than supported it. 27 We put aside the appellant's reliance on the evidence of Mr Mossman, which in our view counted for little. The standard of proof is beyond reasonable doubt. On our assessment of the evidence, we do not think that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the stealing charge or, in the manner the Crown put its case, the manslaughter charge. The evidence was insufficient for satisfaction beyond reasonable doubt. We bear in mind what was said in M v The Queen about the jury's role and advantage in seeing and hearing the witnesses, but we do not think that the advantage can resolve the insufficiency of the evidence. 28 Upholding the first ground of appeal led to the orders quashing the convictions and entering verdicts of acquittal. There was no point in considering the other grounds of appeal, and no occasion to consider the application for leave to appeal against sentence. **********

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