R v Micallef [2002] NSWCCA 480 | Case summary

Thursday, 5 DECEMBER 2002 R v Alan George MICALLEF Judgment 1 SULLY J: I have had the advantage of reading in draft the reasons prepared respectively by Dunford J and by Bell J. I need not repeat Dunford J's canvass of the facts relevant to the appeal, and of the contending submissions that were put in connection with the appeal. 2 So far as concerns the first ground of appeal, I think that the process of reasoning that appears in paragraphs [39] - [44] inclusive is convincing. My own consideration of the matters of which his Honour speaks in those paragraphs has been influenced by the discussion which is to be found, in particular, in the judgment of Dawson J and McHugh J in Shepherd v The Queen (1990) 170 CLR 573. I note that Gaudron J and Toohey J published separately simple concurrences with the judgment of Dawson J. At 170 CLR 579,580 Dawson J says: "As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury might quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately. " [emphasis added] 3 At 170 CLR 592, 593 McHugh J notes an observation of Lord Simon of Glaisdale in Reg v Kilbourne [1973] A.C. 729 at 758 that: "Circumstantial evidence ……… works by cumulatively, in geometrical progression, eliminating other possibilities." 4 McHugh J then proceeds: "If an inference guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular fact has been proved beyond reasonable doubt. Suppose on a charge of murder, the jury thought that the Crown had proved beyond reasonable doubt that the murder weapon belonged to the accused and that he had a motive for killing the deceased, but the jury did not think that these two facts proved his guilt beyond reasonable doubt. Suppose further, however, that the jury also thought that it had been proved on the balance of probabilities that the accused had been seen near the scene of the crime shortly prior to the murder and that he had been inexplicably absent from his employment for a period sufficient to enable him to kill the deceased. The inference that the accused, actuated by his motive, had used his weapon to kill the deceased would be greatly strengthened - probably beyond reasonable doubt - by the further probabilities that he had the opportunity to commit the murder, that he had been inexplicably absent from his employment and that he was in the vicinity of the murder scene at the time of death. Ordinarily, in a circumstantial evidence case, guilty is inferred from a number of circumstances - often numerous - which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance. " [emphasis added] 5 I agree with Dunford J that the circumstantial case summarised by his Honour in paragraph [35] of his Honour's judgment, constituted a strong circumstantial Crown case at trial. In my own opinion it was well open to the jury to find, on the evidence available at trial, that the appellant had been, at material times, in joint possession at the very least, of the weapons that were found secreted in the ceiling of his home. But even if the preferable view were to be that it was not open to the jury to be satisfied more than on the probabilities of that joint possession, then I do not see why such a view was not available to the jury in order to strengthen a conclusion that it might properly be inferred beyond reasonable doubt and from the cumulative effect of the other items of circumstantial evidence as summarised by Dunford J, that the appellant was guilty as charged. 6 I am mindful of the point made by Bell J in connection with the decision of this Court, (Street CJ, Slattery and Maxwell JJ), in R v Filippetti (1984) 13 A Crim R 335. I have re-read the report of that decision. At the heart of that decision, given ex tempore as it was, is, as I respectfully think, a very particular view of very particular facts. It is sufficient to cite the following passage from the judgment of Street CJ, with whom Slattery and Maxwell J simply concurred: "The difficulty confronting the Crown in this case comes from the large number of persons occupying this comparatively small house and all using the lounge room where the budda sticks were found. …… The finding of the budda sticks in the chair in this lounge room where all six occupants of the house apparently had equally free access, and so far as the evidence goes in fact made equally free use, would not readily establish that there was exclusive physical control of these budda sticks in any one of the occupants unless there were some other evidence to accompany the finding of the budda sticks." (at 338) 7 It is true that the volume of evidence concerning the appellant's premises; the use of those premises from time to time by the appellant; and the interaction of the appellant and, in particular, Vincent in connection with their respective access to and use of the premises, was not extensive. This Court, like the jury, must do, nevertheless, what it can to have a practical and sensible regard to the evidence as it stands, and to consider, in a level-headed sort of way, what the common course of experience suggests to be a reasonably inferred conclusion as to the joint possession of the weapons. Approached in that way, I am wholly unpersuaded that it was not open to the jury to take the view that the weapons were, at material times, in the joint possession, to say the least, of the appellant and of Vincent. 8 I agree, otherwise, with the reasoning of Dunford J. 9 In my opinion, the appellant's conviction appeal has not been sustained, and I would dismiss it. 10 DUNFORD J: This is an appeal by Alan George Micallef against his conviction following trial by jury before Stewart ADCJ in the District Court at Sydney on charges of armed robbery with wounding and two counts of possession of a pistol without authorisation. He was subsequently sentenced to imprisonment for 14 years with a non-parole period of 10 years 6 months for the armed robbery with wounding and concurrent sentences of imprisonment for 5 years for each of the firearm offences. 11 The Crown case was that the appellant was engaged in a joint criminal enterprise with Arnold Vincent to commit an armed robbery on Minett's Pharmacy in Chester Hill, on 17 April 2001 and that in the course of that armed robbery one Nicholas Moustacas was wounded. The Crown relied on circumstantial evidence to prove its case. 12 The victim gave evidence that he was an accountant, and on 17 April 2001, he drove to Chester Hill to see a client, Gus Minett, the owner of Minett's Pharmacy at 116 Waldron Street, Chester Hill. He arrived in the Chester Hill area at about 10.45am, and whilst he was driving on Waldron Road, he telephoned Joan Shields, who worked in the head office above the pharmacy, and asked her to activate the roller door in Frost Lane so that he could drive in and park in the pharmacy's car park. 13 When Mr Moustacas got out of his car, he looked towards the back of the car and saw two men running towards him. They were both carrying guns. He described the first man as of a fairly lean/thin build, about 180 to 185cm tall, wearing long pants, a long sleeved sloppy-joe and a cap, all of a dark colour. He was wearing a hood over his beanie/balaclava and a cap over the top of that. The cap had an emblem on it - possibly a Nike emblem. The balaclava had the eyes and mouth cut out. This first man was holding a black hand-gun, about 10 to 15cm long, in his right hand. The barrel was about 10cm long. Mr Moustacas stated that he could see that the man had a "dark orangey brown" coloured goatee or facial hair underneath the balaclava, and green eyes. 14 He described the second man, whom the Crown alleged was the appellant, as of slightly stockier build than the first and slightly shorter than the first. He too was carrying a gun which was similar (if not identical) to the first man's gun, and he was wearing a black balaclava or beanie covering his face with the eyes cut out (Mr Moustacas was unsure of whether the mouth had also been cut out). The second man was also wearing long pants and a sloppy-joe. Both men were wearing milky coloured latex gloves on their hands. 15 The first man grabbed Mr Moustacas' keys and phone and gave them to the second man. He then pushed Mr Moustacas onto the front driver's seat, so that his head was pushed over the counter console and a gun was held to the back of his head. The second man removed a brief case and a backpack from the back seat and rummaged through some personal items on the front passenger seat whilst the first man pushed Mr Moustacas onto the back seat so that his head was between the two front seats. 16 Mr Moustacas heard someone close the office door. The second man told the first man to hurry up and picked up the two bags and went across the adjoining tin roof, dropped the bags over the edge and jumped down after them. The first man led Mr Moustacas to a brick wall and told him to lie on the ground between his and another car. Mr Moustacas tried to grab the gun and push it away, then stepped forward and told him to "just piss off", whereupon the first man aimed the gun at Mr Moustacas' right leg and fired the gun, he then left in the direction of the tin roof. 17 Joan Shields assisted Mr Moustacas until the police and ambulance came and whilst she was doing so Mr Moustacas saw the Nike cap which the first man had been wearing lying on the ground. 18 Ms Shields described the man who was holding the briefcase (allegedly the appellant) as being of slight build and about five foot six or seven inches tall (about 165 to 168cm). He was wearing a black balaclava with only the eyes cut out and a long sleeved shirt. Ms Shields stated that the other man was pointing a gun towards Mr Moustacas and he was wearing a grey sloppy-joe with a hood covering his head. This man was of a very thin/small build. She believed that his hands were covered. The man who shot Mr Moustacas was a couple of centimetres taller than the other man. 19 Mr Moustacas was taken to Liverpool Hospital where he underwent surgery to remove the bullet from his leg. As a result of the bullet wound, Mr Moustacas suffered an undisplaced fracture to the fibula as well as muscle and tissue damage. 20 At about ten past eight on 17 April 2001, Joe Panella was putting his bins out onto the footpath outside his Automotive Spare Parts business when he noticed a white van drive past his shop. He saw a male person in the vehicle who appeared to be of Middle Eastern appearance. The van drove past his shop on two further occasions and Mr Panella wrote down the registration number of the vehicle, XGW-886. 21 Ghabi El-Haddad owned Whistlers Laundrette at 112 Waldron Street, Chester Hill. At about 11am on 17 April 2001, he was returning to the laundrette when he saw a white van with NSW number plates parked in the lane off Frost Lane. He walked towards his shop when he heard what sounded like someone running on the roof of his shop. He then heard a 'bang' and saw two bags dropped onto the roof - a black briefcase and a backpack. 22 A man then jumped down onto the bags and pointed a gun at Mr Haddad. The man was approximately 40 to 45 years of age, 170-175cm tall, of medium build and had a very thick moustache which was a lighter colour than black. He was wearing a black beanie on his head. Mr Haddad stated that the man's skin was darker than his, but not black. The Crown alleged that this man was the appellant. Mr Haddad saw this man run to the white van and then saw the van move. 23 A short while later, he heard a second man run across the roof of his shop and then saw him lower himself to the ground. This man was also carrying a gun and ran towards the white van. The second man was wearing a beanie, was of medium build and about 170-175cm tall. He also had a thick moustache. Mr Haddad noticed that this man was bleeding from his right hand. 24 Police attended at the scene and located the dark coloured Nike brand cap and a finger from a latex glove in the vicinity. Police also located a .22 calibre spent casing on the ground, and saw blood on a number of surfaces in the car park. Constable Howe gave evidence of locating a white Econovan some two kilometres away from the scene. The van did not have number plates. Enquiries revealed that the van had been stolen on 5 February 2001, from Andre Baron. 25 Constable Anastasiou collected a number of blood samples including from the gutter above Mr El-Haddad's shop, from the laneway at the rear of the pharmacy and from the white van. A finger from a latex glove was also found on the floor of the van. These samples, together with the cap, were submitted to the Division of Analytical Laboratories for analysis. 26 At ten past eleven on 27 April 2001, police attended at 113 Oliphant Street, Mount Pritchard, and spoke to an occupier, Danielle Bonello. In the driveway they saw a white van with no registration plates. A short time later, Senior Constable Casser saw the appellant and Arnold Vincent walk out the front door of the house and walk east along Oliphant Street where they were stopped by police. 27 Later in the day a search warrant was executed at 113 Oliphant Street and a number of items were located in the premises, including from in the roof cavity of the house, one .25 millimetre Chinese manufactured self-loading pistol and six rounds of ammunition, and one black .22 long rifle calibre Margolan self-loading pistol with a magazine and one super .22 bullet. Various documents in the name of Andre Baron (the owner of the Econovan) and an owner's manual which had been in the van when stolen were also located in the house. Also found in the house were documents in the name of the appellant, although there was no evidence that any documents in the name of Vincent were located. They also found registration plates AHZ-01H and a registration label for vehicle LPM-964. 28 There was evidence that three people lived in the house, the appellant, Vincent and Danielle Bonello. It was conceded on the hearing of the appeal that the premises were leased by the appellant and he had no other address, whilst Vincent and Ms Bonello stayed there on occasions and Vincent had another address in Glebe. 29 The appellant was subsequently arrested by police and declined to be interviewed. Arnold Vincent was arrested on 2 May 2001 and scientific evidence showed that Arnold Vincent had the same DNA profile in the Profiler Plus System as the DNA recovered from the gutter above Mr El-Haddad's shop, from inside the white Econovan, and from blood on a pillar in the car park, and that such DNA profile occurs in fewer than one in ten billion people in the general population. 30 On analysis of the cap, it was found that the appellant had the same DNA profile in the Profiler Plus System as the major component of the DNA mixture found in the cap. That DNA profile occurs in fewer than one in ten billion people in the general population. Arnold Vincent was not a contributor to the minor component of the DNA mixture. According to the analyst, Michelle Franco, the DNA evidence could not establish who had last worn the cap or when the appellant had last worn it, but she also said it was unlikely to find a person's DNA on the cap if that person had only worn it over a beanie, as Vincent had done. Vincent subsequently pleaded guilty to the armed robbery. 31 Detective Sergeant Karras described Vincent as being 172cm tall with dark brown hair tied in a plait at the back of his neck, and of thin build. He described the appellant as being of thin to medium build - slightly more solid than Vincent - and a little taller than him, about 175-176cm tall. Both men were aged about 43. 32 Raphael Jackson was a scientific officer attached to the Forensic Ballistics Section. He gave evidence that the bullet removed from Mr Moustacas' leg and the spent cartridge found at the scene were consistent with having been fired from the Margolan self-loading pistol located during the execution of the search warrant at 113 Oliphant Street. 33 The appellant did not give evidence and called no witnesses but on his behalf it was submitted that the circumstantial evidence did not establish beyond reasonable doubt that he was the other robber. 34 The grounds of appeal relied on by the appellant were: 1. That, having regard to the evidence, the verdicts of the jury are unreasonable and cannot be supported, and 2. That the trial judge erred in failing to adequately or properly direct the jury as to the law in respect of possession. 35 The case against the appellant in respect to each charge on the indictment was a circumstantial one. Briefly: · Two loaded automatic pistols were found in the roof cavity of the appellant's house on 27 April 2001. · One of those pistols had been fired during the armed robbery at Chester Hill on 17 April 2001 so wounding the victim of that robbery. · Descriptions of the two pistols given by the victim of the robbery matched the two pistols found in the roof of the appellant's home. · Blood was found at the scene and was found in a stolen Ford Econovan vehicle used by the robbers and abandoned a short distance away from the robbery. · The DNA profile of the blood matched the profile of the man called Arnold Vincent. Vincent, when arrested, had a healing cut to one of his fingers. Vincent was the robber who had fired the shot wounding the victim. · Papers in the name of the appellant were found in the house, but apparently no papers belonging to Vincent. · The vehicle had been stolen three months earlier and papers belonging to the owner of the stolen motor vehicle were found in a brown paper bag on the kitchen table in the appellant's home. · Another Ford Econovan vehicle, similar to the stolen vehicle, was seen by police in the rear yard of the appellant's home. · Registration plates and a registration label in respect of vehicles other than the vehicle parked in the appellant's driveway were found in the appellant's house. · Vincent and the appellant were seen leaving the appellant's home together on 27 April 2001 and Vincent, an acquaintance of the appellant, had stayed from time to time at the appellant's home. · A Nike brand cap, worn by Vincent over a balaclava at the time of the robbery and discarded at the scene was found to have DNA that matched the appellant's profile. · Descriptions of the two robbers, including the driver of the vehicle observed circling the area by Mr Panello, given by the victim and eye-witnesses, were consistent, as far as they went, with Vincent and the appellant, and were consistent with their heights as described by Det Sgt Karras based on their appearances at time of arrest. · Vincent's DNA was found on the ground where the robbery took place and in the getaway vehicle and Vincent had pleaded guilty. · The evidence also showed a considerable degree of planning and preparation in that the robbery took place on the Tuesday after a Public Holiday, a day on which it was the practice of the proprietor of the pharmacy to be arriving at the premises with a large quantity of money about the time of the robbery. 36 Notwithstanding proof by the Crown of all these facts, none of which was really in dispute, except, to a degree, the descriptions given of the robbers, the appellant did not give evidence, but this fact cannot be taken into account as evidence against him, it does not constitute an admission by him, it may not be used to fill gaps in the prosecution case and it may not be used as a make-weight: Azzopardi v The Queen [2001] HCA 25, 205 CLR 50 at [34], nor can this Court take it into account: Dyers v The Queen [2002] HCA 45, 192 ALR 181 at [60] and [125], overruling R v Gordon (1991) 57 A Crim R 413 at 418. 37 But putting these considerations aside, the Crown still presented in my view, a strong circumstantial case. 38 Vincent and the appellant were associates in that not only were they seen together leaving the appellant's house on 27 April, but Vincent from time to time stayed at that house although he had another address elsewhere. In the appellant's house two guns were found, one of which was the gun used by Vincent in the robbery when both robbers had a gun. Although the getaway van (proved to be such by Vincent's DNA) was found shortly after the robbery in Sefton, papers belonging to Mr Baron, its owner, were located on the kitchen table in the appellant's house. Moreover, the Nike cap worn by Vincent over his balaclava contained none of his DNA, but did contain that of the appellant, very strongly suggesting that it was the appellant's cap; and the descriptions given by the various witnesses matched not only Vincent, but also the appellant, and the jury had the opportunity of observing the appellant in the dock during the trial, as has this Court during the hearing of the appeal, and could see how the descriptions fitted the appellant, not only as to his height and build, but also as to his "Middle Eastern appearance" (Mr Panello) and his skin being darker but not black (Mr El-Haddad). 39 In Plomp v The Queen (1963) 110 CLR 234 at 243, Dixon CJ repeated what he had said in Martin v Osborne (1936) 55 CLR 367 at 375 as follows: "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person, the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs , the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed." (my underlining) 40 After referring to the type of matters which cannot be taken into account, such as character, reputations, associations etc, his Honour went on: "But the class of acts and occurrences which may be considered includes circumstances whose relation to the facts in issue consists in the probability or increased probability, judged rationally upon common experience , that they would not be found unless the fact to be proved also existed." (my underlining) See also Knight v The Queen (1992) 175 CLR 495. 41 It is also important to bear in mind that in considering a circumstantial evidence case, it is not the individual circumstances that need to be considered, but the combination and totality of the circumstances taken together; and the jury can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference: Chamberlain v The Queen [2] (1984) 153 CLR 521 at 536. 42 There is often a tendency in cases of this nature to consider whether each individual circumstance can be separately explained away as being consistent with innocence; or to consider whether a path, however tortuous, can be found through a combination of the circumstances, which as a matter of strict logic, is capable of being reconciled with a conclusion of innocence. The correct test, however, as explained by Dixon CJ in the passages quoted above, is whether, judging the matter rationally in the light of the common experience of human affairs, the combination and totality of the facts proved are consistent with innocence. 43 The question for this Court is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty; and in answering that question it must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence; but if this Court concludes that, even making full allowances for the advantages enjoyed by the jury, there is a significant possibility that an innocent man has been convicted, the Court is bound to act and set aside the verdict: M v The Queen (1994) 181 CLR 487 at 492-4. 44 Notwithstanding the submissions on behalf of the appellant, I am satisfied that in the present case it was open to the jury to be satisfied that in the ordinary course of human experience and affairs, the combination and totality of the circumstances proved by the Crown were not consistent with the innocence of the appellant; and to be satisfied beyond reasonable doubt that he was the second person involved in the armed robbery. It was essentially a question for the jury representing, as it does, the common experience of the community, and I can see no significant possibility that an innocent man has been convicted. The first ground of appeal accordingly fails. 45 The other ground of appeal relied on is in relation to the directions given by his Honour as to the meaning of "possession" in the context of the second and third counts in the indictment. 46 During the application by defence counsel for a verdict by direction on the first count, he also submitted that the Crown had not demonstrated "any Filippetti type possession, exclusive control" in relation to the guns, and that the guns, secreted as they were in the roof, could have been in the possession of any of the persons in the house. The reference to "Filippetti type possession" was a reference to R v Filippetti (1978) 13 A Crim R 335, to which I shall return. 47 In his Summing-Up, his Honour dealt with this issue as follows (SU 37 ff) "What does possession mean at law? A dictionary would probably tell you to possess something means to have the thing. I need to clarify that concept of possession as it is recognised by the law in the present context. The essence of a concept of possession in the law is that at the relevant time you intentionally have control over the object in question … People may have control over the object in question alone. The person can have the control solely, exclusively and alone. Or two or more can have it jointly. A person may have sole control or joint control with some other person or persons, that is you and those persons if any, must have the right to exclude other people from it. If those conditions are fulfilled then you may be said to have possession of the object, whether it is in your own sole possession or whether it is a joint possession with somebody else … You can possess something jointly with one or more other persons." Later he continued (SU 39 ff): "In defining possession earlier I used the phrase intentionally have control. This is to make clear that if something has been for example slipped into your suitcase or shoved into the ceiling cavity and you do not know about it, it is unknown to you that that has happened, then you are not regarded as having possession of it in law, even though it may be there. The Crown puts to you in this case that these two pistols were in the accused possession (sic) jointly, and as I understand the case jointly with Vincent." 48 At the conclusion of the Summing-Up, defence counsel referred his Honour to R v Sobolewski (unreported - CCA - 17 June 1998) and R v Filippetti and sought further directions in relation to joint possession or possession in circumstances where other occupants of premises had not been excluded as being in possession of (in those cases) the drugs, and submitted that Ms Benello or Vincent had not been excluded as being in possession of the guns. 49 Both Sobolewski and Filippetti were cases in which the Crown alleged possession by an individual, but failed to exclude the reasonable possibility of the drugs being in the exclusive possession of another person who had access to the premises where the drugs were found, or to prove that such other person was acting in concert with the appellant. Here the Crown alleged either possession by the appellant, or joint possession by the appellant and Vincent, and when considering counsel's application his Honour expressed concern (SU 59) that to focus on the possibility of Ms Benello having possession (to the exclusion of the appellant) would merely underline the fact that the appellant had control, and would thus be detrimental to the appellant. 50 On the evidence before the jury, possession of the guns by Ms Benello, to the exclusion of the appellant, was simply not an issue. The guns were found secreted in the appellant's house, one of them had been used to shoot the victim, the second man at the robbery had been carrying a similar gun, and once the jury was satisfied in relation to the first count that the appellant was the other man at the robbery, it followed that the guns were either in the possession of the appellant or of the appellant and Vincent jointly. 51 Accordingly, I am satisfied there was no material misdirection in the Summing-Up in relation to the meaning of possession and the third ground of appeal fails. 52 I therefore propose that the appeal be dismissed and the convictions affirmed. 53 BELL J: I have had the benefit of reading in draft form the judgment of Dunford J. I respectfully adopt both his Honour's statement of the facts and the principles which govern this Court in its determination of an appeal against conviction, upon the ground that the verdict of the jury is unreasonable. However, I have come to a different view concerning the way that this appeal should be determined. 54 In written submissions the Crown contended that it had been open to the jury to be satisfied as to each of the circumstances that are set out in Dunford J's judgment at [35]. Upon acceptance of those matters the Crown submitted that it was open to the jury to have found that the following intermediate facts were established: (i) the appellant was connected with the stolen car used in the robbery; (ii) Vincent was one of the robbers; (iii) the appellant was in possession, either alone or jointly, of the firearms; (iv) the appellant was closely associated with Vincent. 55 In the Crown's submission these four facts when taken in conjunction with the evidence of the descriptions of the two offenders permitted the jury to infer that the appellant was the second robber and that any reasonable hypothesis consistent with innocence had been eliminated. 56 For reasons that I will explain I do not consider that the evidence was capable of establishing beyond reasonable doubt the third intermediate fact; that the appellant was in possession of the firearms. The remaining three intermediate facts set out in (i), (ii) and (iv) above to my mind do not serve individually or in combination to place the appellant at the scene of the robbery (nor would satisfaction that he was in possession of the firearms on 27 April 2001). The quality of the description of the second robber given by the eye witnesses does not overcome this deficiency in the Crown case. 57 It may be accepted that the appellant was an associate of Arnold Vincent ("Vincent") and that Vincent was the robber who fired the shot that wounded Nicholas Moustacas and that at the time he was wearing the Nike cap over a beanie/balaclava. It may also be accepted that one of the guns located in the premises leased by the appellant at 113 Oliphant Street, Mount Pritchard ("the premises") was the weapon used by Vincent in the course of the robbery. 58 Constable David Cutler gave evidence of the execution of the search warrant at the premises. The occupiers' notice was served on Danielle Bonello ("Bonello"). Constable Cutler satisfied himself that she was an occupier of the premises. Both the appellant and Vincent were present at the premises earlier that day. 59 Constable Cutler said that the premises had three bedrooms. He believed that there might also have been a bed set up in the lounge room. Over objection he gave evidence that on the day of the search he believed that at least three persons had been sleeping in the premises. Constable Cutler initially described the room in which Vincent was staying as having the appearance of a junk room or a spare room. He was recalled and said that he had been mistaken in this respect and that the room that Vincent was using was a bedroom that had the indicia of being used as such. 60 Generally Constable Cutler said of the condition of the premises that they were, "fairly unkempt" (T27/05/02 at 203). 61 Vincent and Bonello were residing at the premises in April 2001 from time to time. The evidence was that they also had a residence in Glebe. The fact that Vincent and Bonello were staying at the premises seems to me to detract from the evidentiary significance of (i) the finding of the papers associated with the stolen Econovan used in the robbery, (ii) the Nike cap and (iii) the finding of the guns. 62 The owner of the Econovan was Andre Baron. A number of personal documents belonging to Mr Baron including bank statements, a cheque book, an Econovan Owner's Manual and a business registration were in the vehicle on the day that it was stolen. Senior Constable Cassar located these papers during the course of the search of the premises. They were in a brown paper bag that resembled a sandwich bag. The bag was on a small table in the corner of the kitchen. There was no writing on the outside of the bag (T23/04/02 at 127). 63 Given that the appellant was not the sole occupant of the premises (and noting the description of the premises as "unkempt") I have some difficulty seeing that one could safely draw the inference that the appellant was aware of the contents of the brown bag. However, accepting for present purposes that such an inference might be drawn, I do not consider that it materially serves to support the Crown case. So much seems to me to be acknowledged in the Crown's written submissions extracted at [54] above, in the assertion that it was open to the jury to conclude, "that the appellant was connected with the stolen car used in the robbery". The Econovan was stolen on 5 February 2001. The robbery occurred on 17 April 2001 and the appellant's premises were searched and the documents seized on 27 April 2001. If it is open to conclude that the appellant had knowledge of the stolen car by reason of the presence of the papers connected with it in his home, I do not consider that one can take the further step and conclude that the appellant was in the van on 17 April 2001 when it was used by Vincent to commit the robbery. 64 The circumstance that Vincent was wearing a Nike cap, that had been worn by the appellant on an occasion prior to 17 April 2001, seems to me to lose evidentiary significance in the context that he and Vincent shared the same untidy house. 65 Senior Constables Kendall and Crematy gave evidence of finding the two firearms in the roof cavity of the premises. Access to the roof was apparently gained through a manhole. Senior Constable Crematy located a black Tokarev semi-automatic pistol lying on a pink insulation batt (T22/05/02 at 120) and Senior Constable Kendall located a Margolan brand .22 calibre semi-automatic pistol concealed by a pink insulation batt (T22/05/02 at 99). There was no evidence to connect the appellant to the firearms, save for the circumstance that he was the lessee of the premises. Given the unchallenged evidence that at least two other persons were also residing at the premises I do not consider that it was open to the jury to conclude beyond reasonable doubt that the appellant was in possession of the weapons either solely or jointly with Vincent; R v Filippetti (1978) 13 A Crim R 335. This was essential to proof of the Crown case with respect to counts two and three. 66 Duty Officer Karras gave evidence of the physical appearance of Vincent and of the appellant. Vincent was approximately 172 cms in height with dark brown hair tied in a plait at the back. His build was skinny. The appellant's build was skinny to medium. The appellant was a little bit taller and a little bit more solid than Vincent. Duty Officer Karras assessed him as being about 175, 176 cms in height. Both men were aged forty-three years (T23/05/02 at 139-140). 67 As is to be expected in a case where civilian witnesses are describing sudden and frightening events, the description of the two men given by Nicholas Moustacas, Joan Shields and Ghabi El-Haddad varied in a number of respects. 68 Nicholas Moustacas estimated the age of his assailants to be about twenty-five years. The first man was fairly lean and about 180, 185 cms tall (T16/05/02 at 14). The second man was of slightly stockier build (T16/05/02 at 16). The first man spoke with an Australian accent in a fairly husky voice. The second man's voice was "fairly normal". Nicholas Moustacas detected nothing unusual about the second man's accent (T16/05/02 at 20). Nicholas Moustacas is 185 cms tall. The first man was slightly shorter than he. He thought both men were about the same height, but that the stockier man might have been slightly shorter (T16/05/02 at 28). The two men did not look to be teenagers, he thought they were in the twenty-five to thirty year age bracket, but he noted that it was very difficult to say without seeing their faces (T16/05/02 at 30). Nicholas Moustacas agreed that in a statement, made on 23 April 2001, he had described the second robber as being aged "twenty to twenty-five" and of the same height as the first man, but a bigger build (T16/05/02 at 31). 69 Joan Shields was an eyewitness to the robbery. She described the second robber as being about five foot six, five foot seven (T16/05/02 at 35). This man was of very slight build, not very heavy at all, very narrow in the hips (T16/05/02 at 36). She put the first robber as being "maybe a couple of cms taller than the second robber. He was very slight in build" (T16/05/02 at 39). She was not able to form an opinion as to the age of the two men. When she first saw them she thought that they were kids, but that opinion was based on the fact that both were so small in build (T16/05/02 at 39). 70 Ghabi El-Haddad saw the two robbers as they were making their getaway. The first person he saw was the second man. He described him as being probably about forty-five years of age, 170 - 175 cms tall with a very thick moustache. The moustache was not black, but lighter than black. He said of his skin colour that "I mean he's not white, but he's not dark. I mean I've got a white skin, but he's darker than me, so" (T22/05/02 at 108). He said that he would describe this man as having "Caucasian features". 71 It was a matter for the jury to consider the reliability of the descriptions variously given as to the two robbers. Ghabi El-Haddad's description in terms of age and height is one consistent with the second man being the appellant. The jury might well have reasoned that Mr El-Haddad was better placed than victim of the incident or Joan Shields (who watched it unfold) to give a reliable description of the two men. Mr Byrne SC realistically accepted that it was open to the jury to find the evidence of the physical appearance of the second man was consistent with him being the appellant. 72 Joe Panella observed the white van driving in the vicinity of the Chester Hill Pharmacy at around 8:05 am on the morning of the robbery. He considered the circumstances to be suspicious and took a note of the registration of the vehicle. When asked if he could see inside the van he said "it was very obscure, I couldn't see who was driving the vehicle" (T16/05/02 at 50). He was not sure whether his difficulty in seeing through the windows was because they were dirty or tinted. He had been able to see a male in the vehicle, "I couldn't see exactly, but to me he looked like of Middle Eastern appearance" (T16/05/02 at 50). It was open to the jury to consider that Mr Panella's description was consistent with the man he saw being the appellant. 73 This is a case in which it seems to me that very strong suspicion attaches to the appellant as being the second man involved in the commission of the robbery. 74 The test to be applied by this Court in determining whether the verdict is unreasonable is that set out in the judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493, namely whether the Court considers that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In determining this issue the Court must not disregard that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, nor that the jury had the benefit of having seen and heard the witnesses.

R v Micallef

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