R v Dunmall [2008] VSCA 22

Court of Appeal (Vic)|2008-02-22|Before: ASHLEY and KELLAM JJA and HANSEN AJA

The applicant was not in uniform that day.
The applicant sent the SMS at 2.38pm that day.
The SMS was sent to a service in a false name which had only been activated that day.
The applicant picked up the money from the supermarket and took it to the office. That determined the route which the cash escort would take.
It was at the applicant's instigation that he picked up the money from the supermarket.
A sawn-off .22 rifle was found at the applicant's apartment.
The applicant had an association with Mrs Gallani and Ms Cook.
The applicant had described the robber and the gun with incredible - and improbable - detail.
The applicant did not have to do the cash escort. Taylor was there, in uniform, ready and willing to do the job.
The SMS was sent through, and received through, the same phone tower.
The tower was situate close to the market.
With respect to the SMS, the applicant had lied out of consciousness of guilt.

**51 The test whether a verdict is unsafe and unsatisfactory was described in M v The Queen.[13] It is unnecessary to repeat what was said in the joint reasons for judgment, which now represents the law in Australia.

52 This was a circumstantial evidence case of the strands in a cable, rather than the units in a chain, type. The Crown relied upon the 13 identified circumstances which I have already identified. It claimed that they pointed in favour of the jury drawing an inference, to the criminal standard, that the applicant was guilty of the armed robbery (and, as a corollary, the offence charged by count 2). The prosecutor submitted that the jury need not find that all the circumstances relied upon were such as to compel the ultimate inference. It was enough that some of them combined to require that inference to be drawn. He submitted also that there might be circumstances revealed by the evidence to which he had not specifically drawn attention that might lead the jury to draw the ultimate inference of guilt.

53 At trial, and in this Court, the various matters relied upon by the Crown were individually analysed, with a view of showing that each of them was innocuous. It was argued, in effect, that if each was innocuous, their sum could not tell in a different direction. For that reason, in this Court, it was submitted that the verdicts of guilty - most particularly on count 1 - were unsafe or unsatisfactory.

54 In my opinion, contrary to the submission for the applicant, it was open to the jury to be satisfied beyond reasonable doubt, on all the evidence, that the applicant was guilty. I do not agree that the circumstances relied upon by the Crown were individually innocuous. Nor do I agree that their sum was not greater than their individual parts. In all, I consider that the case against the applicant was quite a strong one.

55 The following matters, in my opinion, tended singly and in combination in favour of a guilty verdict:

• Simply, the applicant's attendance at the market on Monday 29 December. The fact that he sometimes attended the market when not rostered on duty does not mean that his attendance on the particular day was relevantly inconsequential. Particularly that is so having regard to a number of his activities that day with respect to the cash escort, and having regard to the circumstance, as it was well open to the jury to conclude, that his account of what he did that day - particularly the faxing of invoices which he had prepared - was untrue. Insofar as his account was untrue, it was capable of impacting upon his explanation why he attended the market that day.

• The applicant's undertaking the cash escort on 29 December, though not the guard on duty, and though not in uniform. The fact that he sometimes, though infrequently, performed cash escorts does not tell against a conclusion that it was significant that he did so on 29 December despite not being rostered on duty. The fact, as it appears, that infrequently the cash was escorted by a person not in uniform does not tell against a conclusion that it was significant that on an occasion when the applicant was not in uniform he selected himself to escort the cash although a rostered and uniformed guard was on duty.

• The jury was entitled to conclude that the applicant declared an intention to Taylor, earlier on the day of the robbery, to undertake the cash escort if Taylor was busy at the time, that Taylor was not contacted by the applicant to check on his availability when the time came to do the cash escort, and that Taylor was available to do that job.

• The applicant in substance selected the route to the bank - via the stairs to Leeds Street - that would be taken by Ms Best and himself. He did so by telling her that he would pick up the supermarket money and bring it to the office. It was well open to the jury to conclude, also, that he had said this after she had said that they would have to go to the bank via the supermarket. The fact that the applicant had previously expressed concern about picking up the supermarket money in the course of the journey to the bank was just one matter to be taken into account in considering whether the applicant's self-selection of the route to the bank on the particular day was significant against him.

• The applicant sent the SMS to which I have referred, and to which I refer in greater detail when considering ground 4, very shortly before the robbery. It was sent, as I have said, to a service only procured that day in the name of a non-existent person. It was the only message sent by the applicant to the particular service in the period between 29 December 2003 and June 2004. It was sent to a handset owned by a person who was well acquainted with the applicant. The SMS card pertinent to the service must have been fitted into the handset at the time. Contrary to the submission advanced for the applicant in this Court, it did not advantage the applicant that the SMS card had been inserted into the handset owned by Miss Cook and used by herself, her mother, and possibly a man. It is quite evident from the record of interview that the applicant had no idea that the handset could be identified. He gave no explanation how he could have known that the number of the service procured by 'Anderson' was somehow connected with the particular handset. Further, the message was both sent and received through a telecommunication tower proximate to the scene of the robbery. Allowing that this did not mean that the recipient handset was necessarily close by, it admitted of the prospect that this was so. Moreover, it admitted the prospect that the communication was made, directly or via an intermediary, to the armed robber.

• It was open to the jury to conclude that the gun used in the robbery and the gun later found at the applicant's apartment were one and the same. As to this matter, see my later discussion of ground 3.

• The applicant gave a very detailed description of robber and the weapon. It was an available inference that the description was improbably detailed having regard to the short period of time in which the applicant had the opportunity to make observations, and that the detail was designed to send the police off on a wild goose chase.

• Whether or not it should be characterised as an aspect of the circumstantial evidence case, or a matter standing apart, the jury might have concluded that the applicant told a deliberate lie about the SMS out of consciousness of guilt of the offence of armed robbery. As to this matter, see my later discussion of proposed ground 5.

56 A jury was not obliged to convict the applicant. Most of the matters upon which the Crown relied admitted of a possible innocent explanation. In reviewing those matters, I have indicated why that might be so. Further, the absence of evidence of betterment, the applicant's prompt notification of the robbery, the inability of the Crown to prove the identity of the armed offender, the fact that others - including former employers of the applicant - probably had sufficient 'inside knowledge' to perpetrate the robbery, and the circumstance that a keen observer might also have accumulated sufficient knowledge, enabled the jury to conclude that the Crown had not made out its case. But those circumstances, to my mind, did not render the jury verdict unsafe or unsatisfactory. The circumstances which I have earlier identified told - more strongly in some instances than in others - in favour of a finding of guilt.**

**57 In its final form, this ground contended that the learned trial judge had erred by directing the jury that it was open to it to conclude that the weapon found at the applicant's apartment in August 2004 was the weapon used in the armed robbery.

• It had been open to conclude that in December 2003 the applicant had access to a weapon generally similar to that used in the armed robbery; but no more. The applicant had said that it was not that same weapon. He had explained differences between the two weapons in his record of interview. The Crown case really relied on parts of the applicant's accounts - in his statement made 29 December 2003 and his record of interview conducted on 12 August 2004 - being accepted as true by the jury; and on the jury rejecting other parts of his accounts as being untrue. It would have been irrational for the jury so to conclude.

• The jury could only have concluded that the two weapons were one and the same if it had already concluded that the applicant was a co-offender in respect of the armed robbery.

• The judge had therefore erred in directing the jury that, as one of the pieces of circumstantial evidence upon which the applicant relied, it was open to it to conclude that the weapon found at the applicant's premises was the weapon used in the robbery.

• The Crown argument that the two weapons were one and the same was an important plank in its circumstantial evidence case. On an assumption that the jury had acted in accordance with the judge's charge, it could not be said that a miscarriage of justice had not occurred.

59 The sequence of events giving rise to this ground of appeal was as follows:

60 First, the weapon found at the applicant's premises went into evidence, without any debate as to the basis of its admissibility, and without objection, in the course of Taylor's evidence. The witness identified it as a weapon which he had given the applicant some eight to nine months before the robbery.

61 Second, the applicant was extensively questioned about the weapon in his August 2004 record of interview. He was asked, in substance -

• Whether it was similar to the weapon used in the robbery.

• In what circumstances it had come into his possession.

• Why he had not disposed of it in the period since it had come into his possession.

• Why he had moved it from residence to residence, rather than disposing of it.

• Whether he had handled it, or repackaged it, in the period in which it had been in his possession.

62 In response to the various questions the applicant firstly denied - as was inevitable in light of his denial that he had been a co-offender - that the weapon seized was the one used in the robbery.

63 The applicant secondly described differences in the weapon which he had observed on 29 December 2003 and the weapon which had been seized. Although, he said, he had not looked closely at the gun which by August 2004 had been in his possession for 18 months or so, he did know that it was a sawn-off gun and that it was not a shotgun. But he could not say whether it was .22 calibre. There had been, he said, 'more white wood' at the front of the robbery weapon - that is, where it had been cut back. The butt of the robbery weapon had looked bigger. He might have been wrong to describe the robbery weapon as a sawn-off .22. He also described a red sticker which he had observed on the robbery weapon. There was no sticker on the weapon found at his home.

64 Finally concerning his description of the robbery weapon, I should mention that in a sketch which he made on 29 December the applicant depicted the magazine of the weapon being behind the trigger guard, whereas the magazine of the gun found at his home was in front of the trigger guard. What might be made of this supposed difference is uncertain. In that connection, I note that when interviewed on 12 August 2004 the applicant said that the magazine of the robbery weapon, he thought, was 'to the side', and that he remembered it 'sticking out to the side'.

65 The applicant thirdly told the police that the weapon found at his apartment had been given to him by Taylor for disposal at the next gun amnesty. It had been given to him 18 months previously. He had not got around to getting rid of it. He had brought it with him when he moved house some months previously. When he last saw the weapon, it had been in a black sports bag. He could not explain how it had come to be found wrapped in towels in a shopping bag at the bottom of a box of junk; but (later in the interview) it must have fallen out of the black bag when he was moving house. He had not been to the local police station to ask when there was to be the next gun amnesty. That was attributable to 'stupidity and probably laziness'.

66 Third, the prosecutor referred in his closing address to the gun found at the applicant's premises when summarising evidence given by Taylor. His summary of that evidence, and related submissions, were as follows:**

Then [Taylor] spoke about a gun. He handed the police (sic) a firearm and it was given to Kevin Dunmall. He gave it to Kevin Dunmall some 18 months before, for some sort of protection that Dunmall needed it for and he was then to dispose of it. Did he? Did he dispose of it? No. The police find it when they raided his place in August 2004, under warrant and there had been a shift in houses. It is not as if he'd forgotten about the thing. It was in these boxes. Might have been a bit different if he'd been staying at the same place the whole time and just forgotten it was down the back shed, in boxes, yes I forgot about the whole thing. But no, he had had a move. He had moved premises and he has moved the gun, obviously. It was in a bag or not is irrelevant, he knew he had that weapon, he said so in the record of interview, why didn't he do what the police suggested, ring up the local Police Station, you don't have to give your name and say when is the next gun amnesty? Get a date from the police and hand it in.

We all know that as a matter of commonsense. You know that happens from time to time, but he didn't, he hung onto it, why? For this purpose, for what occurred on 29 December 2003, that's why, that's why he hung onto it

**67 Later in his closing address, the prosecutor identified the matters upon which he relied in respect of the Crown's circumstantial case. Item 7 was 'the finding of the sawn-off .22 rifle at the accused's home'.

68 The prosecutor did not submit, in terms, that the applicant's description of the weapon used in the robbery was identical - or even very similar - in its characteristics with the weapon found at the applicant's apartment; and that this should encourage a finding that the guns were one and the same. But his submissions about the weapon, in the context of his summary of Taylor's relevant evidence, suggested plainly enough that it was the Crown case that the two weapons were one and the same; and that this conclusion flowed from the circumstance not simply that the gun was found in the applicant's possession, but that it had come into his possession well prior to the robbery, so that he might dispose of it. Yet he had not simply retained it, but had moved it with him when he moved from one house to another.

69 Although the prosecutor did not in terms rely upon similarities in the weapons in urging the jury - in effect - to conclude that the guns were one and the same, it must have been evident to the jury that the Crown did in part rely upon similarities in the robbery weapon as described and the weapon found at the applicant's apartment. For possession of a dissimilar weapon, whatever the circumstances of its acquisition and retention, would have been hard put to found an argument that it and the robbery weapon had been one and the same.

70 Fourth, counsel for the applicant, in his final submissions, addressed a case which had not been fully articulated by the prosecutor, with a view of demolishing it. This is what he said:**

Then again [the applicant] gets even stupider because according to the prosecution theory he's described, not his own gun, but the gun he's in possession of as the weapon used in the robbery. You know it's a very good description of that gun, the prosecution say. Well lets have a look at the description, and this is in his statement which has been tendered in evidence so you'll have it.

"I would describe the gun as a sawn off .22 rifle. It had a magazine underneath which was about eight centimetres long. The barrel of the gun was a blue black colour. Where it had been sawn off you could see that it had been done recently because the saw mark was very clean. The magazine was black. The stock of the gun was a tan/light brown wood. There was a section of it that had been freshly cut" and he describes how the gun's being held and that and then he says: "the gun had a sticker on the right hand side of the gun which was on the top when I first saw it. It's on the right hand side. His finger was on the trigger and the webbing of his right hand was over the stock and the sticker was in the gap between his finger, thumb and webbing". Now you've got this and you can read through that.

"I could see something sticking up from the top of the gun which I think was the bolt for the gun". Now what is it about that description that makes it fit that gun so well as opposed to any other sawn off .22 rifle? You heard evidence from Mr Reinke the informer to the effect that there's plenty of them out there. They're not an uncommon weapon I think was what I put to him for armed robberies, and then you've got the drawing. That's my copy, but again there's an exhibit that Kevin Dunmall did. A five year old kid could draw a picture like that, a five year old kid probably would draw a picture like that if you asked him to draw a picture of a gun, and what do the prosecution say? They're going to say look at that picture and look at the gun. Gee, look, it's exactly the same. It's a picture of a gun, a sawn off .22.

I mean he would have to be completely and utterly stupid if he's planned this robbery and provided the gun to describe that gun to the police, but then I suppose the prosecution would say: oh, he's not completely stupid because he said the gun had a red sticker on it. You can just imagine him thinking: I'll describe that gun I've lent the bloke, but to throw them off the scent I'll say there's a red sticker on it. Please.

That's so implausible that it's ridiculous, and just to make it even more stupid, when the gun's found at his unit, eight and a half months later, in one of a number of boxes in a junk room, wrapped in some cloth and in a white plastic bag, which is how Taylor said he gave it to him, wrapped in some cloths and a white plastic bag, it was loaded. You only had to cock it and you could fire it. He's getting dumber by the minute. He's going to give this robber a loaded gun to point at him and thrust into his throat, is he? Why? There's no need for it to be loaded. If he's planning this robbery he's going to comply, there's going to be no resistance. He's not armed. Why would you take the risk of it going off accidentally and putting a hole in your neck or killing you or blowing your head off or something? You wouldn't. It's getting to the point that it's completely and utterly stupid, that stupid he couldn't have planned the robbery. Why give a description of the gun at all? Why not just say: well, I walked in the stairwell, I saw a gun barrel, I've gone - I turned straight around and that was all I saw of him. All I saw was the gun barrel and a bit of a blur. Why wouldn't you say that? Why go into this detailed description of what they say is a description of your own gun? Is anyone going to disbelieve him if he says as soon as I saw the gun barrel I turned around and I didn't see anything else? I don't think so, because Miss Best doesn't say she saw much more than that and no one disbelieves her.

**71 Plainly enough, those submissions - in which counsel made a number of powerful forensic points - addressed head-on a 'same gun' scenario. They did so by addressing want of similarities in the robbery weapon as described and the weapon found at the applicant's home, by suggesting the improbability of the applicant providing a description of the robbery weapon which matched the description of the weapon in his possession, and by suggesting the improbability that the offender with the gun would have taken it to the scene loaded and ready to fire - that being the state of the weapon which was found at the applicant's home.[15]

72 What the submissions of counsel for the applicant did not address, no doubt for good forensic reasons, were the circumstances in which the weapon had come into the applicant's possession and the circumstances in which, on his account, he had retained it. As I said a little earlier, those circumstances were the focus of the prosecutor's final address.

73 Fifth, in his charge the learned trial judge referred to the gun found at the applicant's premises being one of the circumstances relied upon by the Crown in founding its circumstantial case. He made the reference without elaboration, just as the prosecutor had done when listing the circumstances relied upon. His Honour also referred to the gun admitted into evidence being one of the exhibits. He said nothing about that point as to its potential relevance.

74 The learned judge next addressed the gun found at the applicant's home by referring to the submissions of counsel for the applicant. This is what his Honour said:**

The next matter he put to you was with respect to the gun being found at the accused's residence. He reminded you of the evidence of Senior Detective Reinke, that sawn .22 rifles were often used in armed robberies and he queried with you how does the description given by the accused differ from that of any other .22 sawn off rifle.

He put to you that if the accused had provided the hold up gun, it is stupid for him to actually describe it to the police. You will recall that the gun was loaded and that if he had provided the gun and was acting in concert why would he have it loaded just in case something did happen and someone was accidentally shot. Then he concluded by saying why bother giving any description of the gun at all? He did not have to but he proffered that description. If the hold up gun was his why would he give a description at all?

At that point his Honour had accurately mentioned the response of the applicant to an aspect of the Crown case which he had not yet described.

**75 Pausing, it was not suggested by counsel for the applicant on the appeal that thus far his Honour had erred in charging the jury.

76 Later in his charge the learned judge told the jury that he wanted to refer to two aspects of the evidence. One of them was the finding of the gun at the applicant's home. This is what his Honour said:**

Now you have heard the evidence of Mr Taylor, that he gave the gun to the accused man about eight months or so prior to the armed robbery, and there seems to be no dispute about that, and he identified the gun which is exhibit B. That is the gun that the police say was found in the accused's house and there appears to be no dispute about that either.

Now there is a purpose for which that evidence can be legitimately used, and there is a prohibited purpose. It is permissible to use the evidence in deciding whether the weapon found at Mr Dunmall's unit was the one used in the robbery. The prosecution says that this was the gun used in the armed robbery and that the description given by the accused matches it, and that he says he kept the gun and did not dispose of it.

The defence, on the other hand, says that that gun was not used for the purpose of the robbery, that there is no direct evidence to say that it was, that the description of the gun was fairly general and would fit any - to a .22 rifle, ... and that there was no red sticker on this gun here as there was on the hold-up weapon.

The defence further argues that it is quite conceivable (sic) that the accused keep the weapon, or anyone keep the weapon after it was used in the armed robbery, that he would still have it eight months later. Also, as I said, that he would have been fairly stupid to have given a detailed description of the gun if it was the same gun.

Now those competing arguments are relevant to your task, and are proper matters for your consideration, and whether you are or are not satisfied concerning prosecution's intention (sic) that the gun recovered from the accused's unit was the one used in the robbery and that the accused man gave it to the robber as a matter for you. The evidence about the gun can be used for that purpose, but it can only be used for that purpose. You must not use the fact that the accused had the gun there as a basis for saying that he is therefore the kind of person, the type of person who might do something illegal or improper and therefore be more likely to have committed the crimes he is charged with, or indeed any crimes or wrong-doing.

The commission of an offence charged can only be proved by evidence relating to it. And whatever the accused's reason for the possession of the weapon it is very important not to draw any inference, were there an inference, adverse to the accused that because he possessed the weapon that he is therefore the kind of person who might have committed the offences here.

You must not reason that if he had this gun then I think he is the type of kind of person who might engage in illegal or improper behaviour, and in particular be involved in an armed robbery and therefore is more likely to have been involved in the armed robbery or more likely to pervert the course of justice. Do not allow that sort of reasoning to influence you.

So to summarise that point, the prosecution argument that the gun recovered from the house was the one used in the armed robbery is a proper one for you to consider. You may use it as part of all the material in determining whether you are satisfied beyond reasonable doubt that the accused is guilty of both offences, but you must not use his possession of the gun to reason that because he possessed it he's the kind of man to have committed either of the offences with which he has been charged, or any other offences.[16] [Emphasis added]

**77 Counsel for the applicant focussed upon the three passages which I have emphasised. He argued that the judge had authorised the jury to consider whether the two guns were one and the same. He submitted, as I noted earlier, that no such conclusion could be reached having regard to the applicant's own account of dissimilarities in the weapons.

78 In my opinion the learned judge correctly characterised the substance of the Crown's 'same weapon' argument. It did not rest only upon alleged coincidence between the robbery weapon as described by the applicant and the weapon found at the applicant's home. So much was made clear when his Honour referred to the Crown's reliance upon the applicant having kept the weapon and not disposed of it.

79 Having correctly characterised the Crown's argument in the first of the emphasised passages, his Honour was then concerned to warn the jury against misusing the evidence. Hence the second emphasised passage. Nothing could be made of his Honour having directed the jury that the evidence about the gun could only be used for the Crown's 'same gun' argument. It had not been suggested by the prosecutor, although it might have been, that the finding of the gun at the applicant's apartment could have been relied upon by the Crown in another way. What his Honour was seeking to make clear was that the evidence of the gun being found at the applicant's home should not be misused as a kind of propensity evidence.

80 I need only refer briefly to the third emphasised passage in his Honour's charge. It rose no higher than what he had said in the first of those passages.

81 According to the submissions for the applicant, as I noted earlier, the finding of the weapon at the applicant's house could never rise above evidence that it showed that in December 2003 the applicant had access to a weapon generally similar to that used in the armed robbery. Counsel cited R v Theos[17] and Thompson and Wran v The Queen.[18] Counsel emphasised, as I have said, a submission that the applicant's accounts could not support a conclusion that the robbery weapon and the weapon found at the applicant's apartment identified them as one and the same. He contended that the judge had directed the jury that the Crown case was that the weapon was one and the same 'by dint of the similarities that existed between the gun that was found and the applicant's initial description of the gun used in the robbery'.

82 In my opinion, ground 3 should be rejected. It was founded, factually, on two premises which I do not accept: First, that the jury was constrained to conclude that the robbery gun and the gun found at the applicant's home were not one and the same because the applicant described differences between the gun used in the robbery and the gun which was found at his apartment. Second, that the Crown case that the weapon was one and the same depended on there being similarities between the robbery gun as described and the gun found at the applicant's home.

83 As to the first of those premises, it was for the jury to decide how much, if any, of what the applicant said in his statement dated 29 December 2003, and in his record of interview on 12 August 2004 was reliable; and what, if anything, it did not accept. As to the second of the premises, I refer to what I have already said about the prosecutor's closing address, and to the way in which the Crown case and the response of applicant's counsel were accurately summarised in the judge's charge.

84 Submissions for the applicant in this Court being founded on erroneous premises, the broad proposition advanced for the applicant, without more, should be doubted. Beyond that, as a matter of rational decision-making I see no reason why, in the particular circumstances, it was not open to the jury to conclude - before finding that a circumstantial case against the applicant had been proved - that the weapon used in the robbery and the weapon found at the applicant's apartment was one and the same. There were arguments - not frivolous - against such a conclusion being reached. But the competing arguments were very much a matter for jury evaluation.

85 I do not consider that the authorities upon which counsel relied dictate a conclusion different to that which I have expressed. In Thompson and Wran the relevant ground of appeal was that the learned trial judge had erred by admitting into evidence 'a large number of articles and in admitting into evidence the verbal evidence of [a policeman] concerning the said articles and their use as the equipment of an expert safebreaker' for the reason that there was no nexus established between the ... articles and the method by which the two safes subject of the charges ... were opened ...'

86 Barwick CJ and Menzies J explained the admissibility problem in that case as follows:**

... the Crown led evidence that the accused had in their possession implements for opening or breaking into safes, including implements which were not used to blow open the safes which the prisoners were alleged at the trial to have opened by the use of explosives, and were not appropriate for use in the commission of such a crime.

In our opinion, this evidence went beyond what was permissible. Evidence that the prisoners had in their possession material, which might have been used to break into and to steal from the Darwin Bowling Club or the Darwin Squash Centre, or, was of the same character as what was used in the commission of those crimes, was admissible to identify them with the crimes, ... Some of the evidence admitted, however ... did no more than tend to show that the prisoners were well-equipped safebreakers.

We do not think that evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime; it is sufficient if such tools might have been so used: R. v. Sims [1964] 1 All ER 697, at p 700 ...

... In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition.

**87 There is, with respect, nothing in Thompson and Wran which would deny a jury the right to conclude that a weapon later found in the possession of an accused person was the weapon used in committing an offence - at least where the Crown relies not only upon similarities between the weapon used in committing the offence (as described by the accused) and the weapon found in the possession of the accused but also upon other circumstances which tend to a conclusion that the two weapons were one and the same.

88 I go to Theos. The applicant was charged with armed robbery and theft. Evidence was led by way of bank security camera photographs and the evidence of associates of the applicant as to identification of a shotgun found at his home. The applicant having been convicted, he appealed on the grounds, inter alia, that evidence of identification of the shotgun ought not to have been admitted; and that the trial judge had failed to warn the jury that it could not use the evidence of a particular associate as identification evidence, or alternatively that the jury must approach the evidence with particular caution.

Having adduced the evidence of the finding of the shotgun, its seizure and its characteristics, the Crown was entitled to invite the jury to conclude it was used in the robbery. ... Alternatively, even if the jury were not prepared to conclude positively that the seized gun was used in the robbery, the evidence of its being found at the applicant's house, and being of exactly the same kind as that used in the robbery, could be added to the other circumstantial evidence of his involvement in the robbery. The argument for the Crown would then be the axiomatic one that, while no one piece of evidence, taken alone, might satisfy the jury beyond reasonable doubt of the applicant's guilt, the evidence in its totality, including that of the seized gun, could do so.

Concerning the evidence of the associate of the accused, Tadgell JA said this:

It was necessary to instruct the jury either that they should not use Hofer's evidence as identification of Ex F or that they could so use it and, if they could, to warn them of the dangers lurking in it. If the jury were to be left to put Ex F and the evidence about it, to an alternative use - as mere circumstantial evidence linking the applicant with the robbery - it was necessary to instruct them about that. That is to say, in the circumstances, a clear distinction ought to have been drawn to the jury's attention between the uses to which Ex F and the evidence about it might or might not have been put.

I have indicated that, if Hofer's evidence was to be used as identification of "the gun" the jury should have been warned of the dangers lurking in it. Counsel for the Crown conceded before us that the well-known principles applicable to scrutiny of evidence of identification of human beings apply in an appropriate case to evidence of identification of inanimate objects. So much has been assumed, obiter, by the Court of Criminal Appeal in Marijancevic (1993) 70 A Crim R 272 at 278, and Crupi (1995) 86 A Crim R 229; and the point has now been the subject of specific decision by the New South Wales Court of Appeal in Clout (unreported, Court of Criminal Appeal, NSW, File No CCA 60424/94, 1 December 1995). As in cases of evidence of identification of persons, the nature of a necessary warning as to evidence with respect to objects will vary with the circumstances.[19]

**90 His Honour also addressed the situation had the Crown sought to rely upon the associate's evidence 'not as evidence of positive identification, but as purely circumstantial evidence'. He concluded that it would still 'be necessary to consider carefully whether a warning should be given to a jury to scrutinise it with care'.[20]

91 Southwell AJA considered, unlike Tadgell JA, that the jury had not been entitled to find that the gun used in the robbery and the gun found at the applicant's home was one and the same. That depended upon a concession made by the Crown that the evidence of the associate did not enable positive identification of the gun used in committing the offence and a gun which he later saw in the applicant's possession.[21]

92 Smith AJA reached a similar conclusion upon the point. He said this:**

In her Honour's remarks, she said that it was a matter for the jury whether Ex F was the same gun. While that proposition must be correct, I question whether the Crown could invite the jury to conclude that Ex F was the gun used in the robbery solely on the basis of the circumstantial evidence linking it to the crime which did no more than raise the inference that it may have been the weapon. The conclusion that it was the weapon, in my view, could have been reached only if the jury was satisfied beyond reasonable doubt that the accused had committed the robbery. If that be correct, the conclusion that it was the weapon was not available to be used in corroboration of the evidence of identification of the applicant. In the absence of Mr Hofer's evidence identifying Ex F as the gun in the robbery (or an admission by the accused) the evidence of the finding of Ex F, its seizure and its characteristics, it seems to me, could only lead beyond reasonable doubt to the conclusion that the gun was used in the robbery if that evidence together with the other circumstantial evidence, proved beyond reasonable doubt that the applicant was one of the persons guilty of the offence.[22]

Those observations also turned, at least in part, upon the limitations in the evidence of the associate.

93 The question in the present case, however, was somewhat different. It was whether it was open to the jury to conclude, having regard to the evidence of Taylor, having regard to the applicant's own description of the robbery weapon at the outset, and having regard to his responses to questions concerning the weapon found at his home on 12 August 2004 - including what he said about the provenance of the weapon, why it was that he had retained it for a protracted period, how it had come to be moved with him from home to home and to be found where it was - that the two guns were one and the same. A conclusion favourable to the Crown did not depend upon descriptive identification alone, nor only upon the evidence of a third party. Nor did it depend upon a conclusion having been reached already that the applicant was guilty on count 1.

**94 The SMS message sent by the applicant at 2.38pm to the handset of the mobile phone owned by Miss Cook to the service in the name of David Anderson was said by the Crown, on analysis, to have two aspects of relevance: first, as an item of circumstantial evidence, in that the message was sent, covertly (it was alleged), at a time very shortly before the armed robbery, to a service in the name of a non-existent person which had been taken out that day, such service using a handset owned and used by acquaintances of the applicant, the message being both transmitted and received via a telecommunications tower situate in Footscray. Second, in that the applicant lied about the person to whom the message had been sent, and that he did so out of consciousness of guilt.

95 Ground 4 addresses the second of those aspects. Despite no exception having been taken at trial to the learned trial judge allowing the prosecution's argument to go to the jury,[23] counsel for the applicant submitted in this Court that the learned trial judge should not have permitted the jury to reason by way of a lie told in consciousness of guilt because the jury could never have been satisfied that the asserted untruth was a 'deliberate lie'.[24] That was because the untruth occurred in the course of an interview eight months after 29 December 2003 in the course of which the applicant was - under hostile questioning - merely attempting to reconstruct the events of the day, and because the applicant had said no more than that he was 'probably trying to get into contact with whoever I was faxing to'.

96 In my opinion there is nothing to this ground. I consider that it was well open to the jury to conclude that the applicant told a deliberate lie when interviewed on 12 August 2004 - that is, as to the intended recipient of the text message; and that the lie was told out of consciousness of guilt of the offences charged.[25] Subject to whether it had been open to the jury to conclude that the applicant had told a deliberate lie, I note that no challenge was raised to the Edwards direction given by the learned trial judge - in the course of which his Honour made it clear, repeatedly, that the jury must be satisfied that the applicant had told a deliberate lie.

97 There was a background to the alleged lie. It is as follows: In his statement made on 29 December 2003, the applicant gave an account of going to the office at about 2.00pm to fax off copies of invoices that had not been paid by Burson Security. He said also that, having collected the supermarket cash bag, he had returned to the office and there 'checked the fax machine to see if the faxes [he] had sent had gone through', and that he 'collected [his] faxes from the basket'. In the course of his journey to the bank with Ms Best, he said, he 'stopped off at the security office and dropped off the faxes that [he] had sent through'. He did not refer to the 2.38pm SMS.

98 By the time that the applicant was interviewed on 12 August 2004 the police knew that an SMS had been sent from the applicant's mobile telephone to a service in the name of a non-existent person, 'David Anderson' at 2.38pm on the day of the robbery. They had been able to identify the handset to which the SMS had been sent. They knew that the message had been sent and received via a telecommunications tower in Footscray. They did not have the text of the SMS, because the same are only retained for a certain period of time.

99 In his record of interview on 12 August 2004 the applicant said that on 29 December 2003 he had not been on duty, he was just doing paperwork. Monday was invoice day.

100 He told the interviewing police, initially, that he 'may have', he '[could] not remember', whether he had sent any faxes from the office on 29 December 2003. A little later he said that he ended up doing the cash escort because he 'just happened to be around'. He said that he 'must've been in the office', that he thought he 'was faxing something at the time'. Later still he repeated that, when he was asked to assist with the cash escort, he believed he was in the office and thought he was faxing something. Referring to the route taken by he and Ms Best, the applicant said nothing about 'stopping off' at the security office.

101 Later again in the interview it was put to the applicant that there did not appear to be any faxes 'from you going out at that stage'. He said that was incorrect, but that he could not remember to whom he had faxed invoices. He added, subsequently, that he had 'actually tried a number of times', but that he could not recall who he was trying to fax.

102 Then the interview turned to the applicant's mobile phone, which the applicant stated he'd had in his possession throughout 29 December 2003.

103 The applicant said that he may have, then that he had, spoken to 'Donna' [Gallani] at 'around 11, 12 o'clock, maybe'. A little later, he said he got a text message from Donna and that he had sent a text message 'I think, to ask Donna why she hasn't dropped the car off' - apparently to a mechanic.

104 Then the applicant was asked whether, after leaving the office - that is, in the course of the cash escort - he had been in contact with anyone. He responded: 'Probably. I was trying ... to get in contact with whoever I was faxing to'. It was 'a mobile number I was ringing'.

105 The applicant said that he didn't know the address '2 Church Street, in Footscray'. Neither did he know a 'David Anderson'.

Q ... 2.38pm you send a text message. Do you recall that?

To the guy I was trying to fa-, I remember the persons I was trying to fax through some invoices to.
Kevin, at 2.38 pm you sent a text message. Who did you send the text message to?

A To Laurence's partner, George. I think his name was George.

... I'm going to tell you that at 2.38 pm, which is 1 minute before the armed robbery occurs, you send an SMS of some description to a mobile telephone number of 0400 188 335. Who owns that number, Kevin?
Okay, as far as I remember it's Laurence's partner from Burson's Security Service.

Q How many times have you sent text messages to that number?

... The only text you sent to 0400 188 335 is to a David Anderson of 2 Church Street in Footscray. Why would you have been sending a text message to David Anderson of 2 Church Street in Footscray?

You have my phone and I mean, the phone records. I know that I faxed Burson's. It was Burson's Security Service I was trying to fax through some invoices to.

... So this SMS that you say could only have been to Burson's, is that right?

So you couldn't have made a mistake in what you were doing, could you? You had - you had a number to text and you were gonna text that number.
Well, I had both the fax number and mobile number scribbled down on a piece of paper and I faxed through some items and I text it through, "Did you get the documents?"

**107 It was after this that the police made it clear that it was possible to identify not only the service to which a message is sent, or call made, but the identity of the recipient handset; and that the handset was registered to Samantha Cook, the daughter of Mrs Gallani. The applicant said that he had no explanation how the call could have been made to that service on that handset.

108 Finally I should note that towards the end of the interview the applicant said that the SMS was sent whilst he was in the 'market office' - what I have called the office.

109 As a matter of fact, the SMS was sent to the handset owned by Ms Cook, to a service initiated on 29 December 2003 in the name of a non-existent person. It was the only call or message made by the applicant to that service between 29 December 2003 and June 2004. It was not an SMS sent to 'George' of Burson Security. 'George', it turned out, was George Kontos. He gave the evidence to which I referred at [43] and said that he had not been employed by Burson in December 2003. That evidence was not challenged. So also, he provided details of his mobile telephone number as at December 2003. It was entirely different to the number of 'Anderson's' service. For completeness, I note also that such number was quite unlike the mobile telephone number of Mr Ellul, proprietor of Burson, who also gave evidence that he had not been contacted by the applicant on 29 December 2003.

110 To my mind, the applicant's statement about the intended recipient of the SMS, understood in the context of his explanation for seeking to contact that person, has the hallmarks of a deliberate lie. I should say that it was not simply open to the jury to conclude that the applicant lied deliberately in that connection, but that such a conclusion was powerfully available.

111 The applicant began by saying that he may have sent faxes about something from the office on 29 December 2003. He did so in the course of explaining how he came to do the cash escort. When it was put to him that there appeared to be no relevant record of outgoing faxes, he said that it was incorrect, but that he can't recall to whom that he had faxed invoices. Then, pretty obviously to meet the prospect that there was no record of outgoing faxes, he said that he had 'actually tried a number of times'. When questions turned to whether he had used his mobile phone shortly before the robbery, he latched onto the intended recipient of what had now become failed faxes - 'Probably, I was trying ... to get in contact with whoever I was faxing to'. Having then denied any knowledge of 'David Anderson', or the service which was instituted on 29 December 2003, he said positively that he did recall sending an SMS at 2.38pm, and that it was to the persons 'I was trying to fax through some invoices to'. He thought his name was George. It was a number he had sent messages to on two or three occasions. He had the fax number and mobile number 'scribbled down on a piece of paper', and [he] faxed through some items and [sent an SMS] 'did you get the documents'.

112 It can be seen, in my opinion, that the applicant's account was not unsophisticated. It involved considerable elaboration of the circumstances in which the SMS had been sent, to whom, and why. It involved a number of shifts in the applicant's account. The SMS having been sent very shortly before the robbery, there was every reason for the applicant - who was then unaware of the electronic imprint of the handset - to deliberately lie about the intended recipient of the message. If it turned out that the alleged intended recipient had not received the message, the explanation might have been offered that there had been an innocent mistake. Such an explanation might have been just tenable if all that was known was that the message had been sent to the service of the non-existent Anderson, albeit that it was a service only procured on 29 December, and albeit that it was the only message recorded as having been sent by the applicant to the particular service in a six month period.

113 I think there was no point to be made that the applicant's identification of 'George' was expressed equivocally. I should add, if having regard to the entirety of what the applicant said any equivocation could be discerned, that one thing was clear: the applicant was at the very least saying that the SMS had been sent to a person connected with Burson, for reasons which he progressively developed in the course of the interview. It was not so sent - whether to Mr Kontos or Mr Ellul. Untruth there was, and it was well open to the jury to conclude that it was deliberate. The only complaint that the applicant could have in such circumstances, and it would lead nowhere, is that the lie may have been too narrowly identified.

114 Beyond what I have thus far said, I consider that it was well open for the jury to conclude that the lie was told out of consciousness of guilt. By intent, it drew attention away from the true recipient of the SMS, the person then in possession of the handset which was owned by an associate of the applicant; sought to divert attention from the circumstances of the service procured that day by the non-existent David Anderson; and sought to provide an innocent explanation for an SMS sent very shortly before the robbery - a robbery effected on a route which had been determined by the applicant's conduct.**

115 Count 2 on the presentment was relevantly that the applicant -

On the 29th day of December 2003 with the intent to pervert the course of public justice did an act which had a tendency to pervert the course of public justice in that he made a false statement to police knowing this to be false and intending that the police would conduct an investigation based on false information supplied by him.

116 When interviewed on 29 December 2003 the applicant gave an account of the robbery in which he asserted that he had been a victim, saying, inter alia, that he -

did not give any person permission to assault me in any way.

117 In opening the Crown case, the prosecutor said, having described three elements of the crime of doing an act to pervert the course of justice with relevant intent, that the applicant had made a long statement on 29 December 2003 -

In which he said he was robbed, he was a victim in effect, that he was robbed, and he lied, and that is the basis of count 2 ...

**118 That did not focus the jury's attention on the detail of the way in which count 2 might be made out in the particular case.

119 In his final address, the prosecutor said this about count 2:**

First of all [the informant] read the statement in which we say [the accused] lied and that is the basis of count 2, where he says that he's the victim in that statement, he was held up and all that sort of thing and we say just a nonsense. That is the basis of count 2, the false report to police or false declaration.

120 Counsel for the applicant said this at a very early stage of his final address:

I will just get one thing out of the way before we start. In relation to Count 2, and I think this is agreed, His Honour will tell you the verdict has got to be the same as Count 1, just as a matter of logic. If he was involved in the armed robbery and set it up and he said I didn't give anyone permission to steal the money, well obviously he is guilty of Count 2. We say he wasn't involved in that and therefore he can't be guilty of Count 2 because what he says is true. That is all I'm going to say about that, His Honour will cover that in a bit more detail I would imagine. But there is no dispute about that.

**121 That was evidently a forensic decision. It is the fact that not in all circumstances will lies told to an investigating policeman constitute commission of the offence comprehended by ground 2.[26] But it is quite understandable that counsel wished to put all his eggs in one basket - by attacking the Crown case on count 1. If the Crown failed to prove count 1, in a practical sense it was impossible that there could be a conviction on count 2.

122 When the learned trial judge came to charge the jury, he said, having first mentioned that the applicant's statement made on 29 December 2003 formed 'the basis of count 2', that -**

... this is not a case that depends on a detailed analysis of what makes up the elements of each offence, and I'll explain that to you presently too, as to why that is so.

He then explained why, in the case of the armed robbery count, the only live issue was whether the applicant had been a co-offender.

The second count then is perverting the course of justice. To make out this offence it has to be proven beyond reasonable doubt firstly that the accused intended to pervert the course of public justice, secondly that he did enact (sic**)** and thirdly, that that act had a tendency to pervert the course of public justice.

The particular act alleged here is the making of the false statement to police on 29 December 2003 which is Exhibit G. The intention to pervert or obstruct - obstruct might be another description - the course of public justice is alleged to be constituted by intending that the police would conduct an investigation based on false information.

The tendency to pervert the course of public justice is alleged to be constituted by the fact that an investigation was conducted. The only matter in issue here really is whether the statement was false. The prosecution says that it was, of course the accused says he gave no one permission to rob him. He says that in the statement and this was false allege the prosecution because the accused man was a party to the robbery and acted together with the robber.

The accused says that it was not false because he too was a victim of the robbery and was not acting in concert with the robber. So, the question is the same as it is concerning Count 1. Was the accused acting in concert with the robber? Was it done pursuant to an agreement with the robber? The real and only issue that you have to grapple with is was the accused man acting in concert with the robber? That is when it is all boiled down, that is the real issue as I say that you - and the only issue that you really have to grapple with. Was the accused acting in concert with the robber?

Normally in a trial where there is more than one count, I would be saying to you that it would be quite wrong to say that simply because you find the accused man guilty or not guilty of one count, then he must be guilty or not guilty of the other count. Normally each count has to be considered separately in the light of the evidence which applies to it and to be considered separately.

But, in this case as you will have heard, both sides agree that your verdict on the second count of perverting the course of justice will be determined by your verdict on Count 1. If you find that, beyond reasonable doubt, the accused was party to the armed robbery as the prosecution alleges, then it follows that you will find that he has perverted the course of justice as alleged in Count 2 and that is because, to find the accused guilty of Count 2, you would have to be satisfied beyond reasonable doubt that he lied in his statement when he said that he gave no person permission to rob him.

If you are satisfied that he set the armed robbery up as the prosecution claims, then you would be satisfied that the only element in dispute on Count 2 that is in dispute is whether the statement was false.

**124 No exception was taken to the learned judge's directions on count 2; no doubt because, in substance, they coincided with the case advanced for the applicant.

125 In this Court, counsel for the applicant submitted that the directions were erroneous. The judge had not directed the jury that the Crown must prove that the applicant's acts must have tended to deflect a future prosecution based on correct evidence, and that the applicant had so intended. As to intent, the judge had referred only to the applicant 'intending that the police would conduct an investigation based on false information'. It was not necessarily the case that conviction on count 1 must have meant conviction on count 2. On one view the applicant's statement had been likely to attract police attention to his involvement, not deflect it. Again, when he made the statement, the applicant might have thought it near to impossible that he would ever be the subject of prosecution. The gun had not been found at his home, he had been unaware of technology that would connect his SMS at 2.38pm to a handset owned or possessed by an associate. Failure to direct on an element of an offence will normally constitute error - except if the element has been conceded. Here there was no concession. The error had been such that - conviction not having been inevitable if the jury had been correctly directed - the conviction should be quashed.

126 I should say that the direction as to intent given by the learned trial judge was erroneous. But in my opinion that could have no consequence favourable to the applicant for several reasons. First, contrary to the submission advanced in this Court, counsel below in substance conceded relevant intent in the event that the jury found his client's exculpatory account given on 29 December 2003 was false. It must have been false if the jury convicted on count 1. The battleground was selected by applicant's counsel, as an understandable forensic choice. The concession should not be viewed as reflecting an erroneous understanding of the law by trial counsel. Second, the arguments advanced by applicant's counsel in this Court as to how it could be that the jury, having convicted on count 1, might have found his client's intent to have been other than intent to deflect a future prosecution based on the true facts, were in my opinion fanciful. In the circumstances of this case, a conviction on count 1 must have meant that, properly instructed (had the issue been a live one), the jury must have found the intent relevant to count 2.

127 Notwithstanding that I have spent some time in explaining why proposed grounds 5 lacks merit, I consider that the proper course is to refuse leave to amend to add the ground. It was very late-raised, was contrary to the case agitated - for understandable forensic reason - at trial, sought to find misdirection in an element of an offence which was in substance conceded at trial, and argued - based on propositions that could not withstand scrutiny - that if the jury had been correctly**

directed (on the issue which was conceded at trial) it might have found the applicant not guilty on count 2 though convicting on count 1. I think that the Court should not give any sign of approval of a ground so lacking in merit.

128 In my opinion the application for leave to appeal against conviction should be refused.

129 I have had the advantage of reading the judgment of Ashley JA in draft. I respectfully agree with his conclusions that the application for leave to appeal conviction should be refused and I do so for the reasons stated by him.

[1] Crimes Act 1958 (Vic), s 75A, maximum penalty 25 years' imprisonment.

[2] Common law offence, maximum penalty 25 years' imprisonment.

[3] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73(1)(b), maximum penalty one year's imprisonment.

[4] Crimes Act 1958 (Vic), s 83A(1), maximum penalty 10 years' imprisonment.

[5] Charges 5 and 8, Firearms Act 1996 (Vic), s 129A, maximum penalty 4 years' imprisonment.

[6] Charge 6. Firearms Act, s 121(1)(a), maximum penalty 12 months' imprisonment.

[7] Charge 7. Firearms Act, s 134C, maximum penalty 4 years' imprisonment.

[8] Charge 10. Firearms Act, s 7B(1), maximum penalty 7 years' imprisonment.

[9] He also commenced an appeal against sentence; but, by leave, abandoned it.

[10] I presently assume that evidence about the 'shotgun' was admitted on the basis asserted by ground 3.

[11] As to which see, for example, R v Mahoney [2000] NSWCCA 256; (2000) 114 A Crim R 130, 134-5, [15]-[16], (Dunford J), Court of Criminal Appeal, New South Wales; R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340, 355-7, [92]-[99] (Ipp JA), Court of Criminal Appeal, New South Wales; R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166, 175, [38], Court of Criminal Appeal, New South Wales, and my observation in R v Shiers [2003] VSCA 179; (2003) 7 VR 174, 186 [81]-[82] and R v Spina [2005] VSCA 319, [24]-[26]. In New South Wales, the position is affected by rule 4 of the Criminal Appeal Rules. But the problem is not simply the consequence of the non-application of that rule in that State.

f[12] He also gave evidence that he had been employed by Burson at an earlier time. But nothing turns on that.

[13] [1994] HCA 63; (1994) 181 CLR 487, 493-495 (Mason CJ, Deane, Dawson and Toohey JJA).

[14] The test framed in the joint judgment in M was approved in Jones v The Queen (1997) 191 CLR 439, 450-452 (Gaudron, McHugh and Gummow JJ). See also, MFA v The Queen (2002) 77 ALJR 139, 144 [25],[26] (Gleeson CJ, Hayne and Callinan JJ) and 148-149 [52]-[58] (McHugh, Gummow and Kirby JJ).

[15] It did not follow that the gun, assuming that it was the robbery weapon, had been loaded at the time of the robbery.

[16] There are, I think, two plain errors in the transcript 'conceivable' should read 'inconceivable', and 'intention' should read 'contention'.

[17] (1996) 89 A Crim R 486, 492 (Tadgell JA).

[23] The fact that the prosecutor was going to address the jury in such a way was disclosed in discussion between his Honour and counsel before final addresses began. Counsel for the applicant did not then suggest that the Crown's intended approach was impermissible.

[24] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 208, 210, 211.

[25] Most obviously the offence the subject of count 1. But the case proceeded as if a finding of guilt or innocence on count 1 determined guilt or innocence on count 2. See my discussion of proposed ground 5.

[26] See R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 276-278 (Mason CJ), 283 (Brennan and Toohey JJ), 302-305 (McHugh J).

Poisons and Controlled Substances Act 1981

Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313 considered

At a glance

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Judgment (167 paragraphs)

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Legislation Cited (2)

Cases Cited (9)