R v Yu and Weng [2001] VSCA 179

9. Three further counts resulted in not guilty verdicts by direction of the trial judge.

12. To count 1, each applicant pleaded not guilty. At the conclusion of the Crown case counsel for the applicants submitted that the trial judge should direct the jury to find the two applicants not guilty upon the ground that the evidence did not support a finding there was an agreement to commit an armed robbery as opposed to an agreement to commit some other criminal offence or just being suspicious conduct. The trial judge ruled that the evidence left it open to the jury to find that the two applicants were part of an agreement to commit an armed robbery and the evidence was capable of proving that beyond reasonable doubt.

15. On 27 October the jury found the applicants guilty on count 1. A notice of application for leave to appeal against conviction was given by each applicant on two grounds:

1. That the verdict is unsafe and unsatisfactory in that no reasonable person could convict upon the evidence.

2. The learned trial judge should have directed the jury to acquit.

20. The second ground is inappropriate and redundant since the jury found the applicants guilty. It has no strength of its own. The principal ground is whether a miscarriage of justice occurred because on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the applicants were guilty. Should the first ground fail the second ground must also fail. If the first ground is successful the second ground is unnecessary.

23. A notice of application for leave to appeal against sentence was given by each applicant on two grounds:

2. Failure to give sufficient weight to the personal circumstances of the applicant.

Today Mr Carlile for Yu and Mr Boden for Weng stated that they had been instructed not to pursue the applications.

29. After plea each applicant was sentenced to two-and-a-half years' imprisonment and a non-parole period of 15 months was fixed.

33. The facts may be stated briefly. For this purpose I rely upon the summary given by the trial judge in her sentencing remarks and the summary prepared by the Solicitor for Public Prosecutions.

36. On 2 August 1998 a motor vehicle owned by Zhou was observed driving repeatedly around a block bounded by Ferntree Gully Road, Forster Road, Hardner Road and Stephensons Road, Mount Waverley at about 9 p.m. The vehicle drove slowly past a Red Rooster restaurant on the corner of Stephensons Road and Ferntree Gully Road and a Pizza Hut on the corner of Ferntree Gully Road and Forster Road. Along the route, the vehicle made a number of U-turns and at one stage parked for about three minutes in a dark corner of a car park of the Pizza Hut under dark trees with the lights turned off.

39. The observations were made by two police members of the Armed Robbery Squad who were in an unmarked police vehicle in a car park off Ferntree Gully Road opposite the Red Rooster. Their suspicions were aroused by the conduct described.

42. The police intercepted the vehicle in Hardner Road at about 9.20 p.m. The applicant Yu was the driver, Weng was seated in the front passenger seat, Zhou and He were in the rear of the vehicle. A search of the vehicle revealed a balaclava, a pair of latex gloves on the front passenger seat foot well, and an eight-inch carving knife underneath the front seat with its handle facing forward. Two more balaclavas and latex gloves were found behind the driver's seat. In the back passenger foot well were a pair of gloves and a balaclava. A bag containing a tyre lever, masking tape and other items were also located in the car. A search of the boot later at Glen Waverley police station found two car registration plates that did not belong to the vehicle.

45. Each applicant participated in a taped record of interview. The trial judge made brief but non-specific reference to the records of interview in her charge and effectively warned the jury not to use the answers given by Yu against Weng and vice versa. In summarising the way each party put his case to the jury the trial judge did not advert to the records of interview. The Crown did not rely upon the records of interview as providing evidence of admissions of guilt or of consciousness of guilt. Nothing further need be said about the records of interview.

48. During the trial police witnesses involved in the surveillance and arrest were cross-examined closely as to their observation of the passengers in the vehicle and where particular articles were found in the front of the vehicle, under the front seat and elsewhere.

51. Neither applicant gave evidence at the trial and no evidence was adduced for the defence.

54. The Crown relied on the direct evidence of the surveillance and of finding articles in the vehicle of the kind commonly used in an armed robbery. Balaclavas provide a disguise, gloves avoid detection by fingerprints and a knife and metal bar are offensive weapons for the purposes of s.75A(1) of the Crimes Act 1958. The Crown submitted to the jury that they should be satisfied beyond reasonable doubt that the vehicle carrying the two applicants was casing the area in preparation for armed robbery on either the Red Rooster or the Pizza Hut or customers. Further, the Crown asked the jury to infer that the four occupants were there pursuant to an agreement for a common purpose, intending to commit an armed robbery. The items in the car were in positions where they could be used for armed robbery.

57. The defence submitted that, should the jury accept the Crown evidence as to the vehicle's movements and the finding of articles in the car where the witnesses said they were, the jury could not be satisfied that the only reasonable inference open was that the four men were in an agreement together to commit an armed robbery. The defence invited the jury to reject evidence that the knife was under Weng's seat on account of discrepancies in the police evidence. The defence invited the jury to conclude that there was no agreement reached by the occupants of the car from the fact the car was going around the area several times and it was reasonably possible that they were attempting to determine what they would do. The defence also submitted to the jury that they could not exclude as a reasonable possibility that the car's occupants were there for the purpose of other offences such as burglary. It was argued that the items in the bag in the back of the car were more appropriate for housebreaking than armed robbery.

60. No exception was taken to the trial judge's charge to the jury by counsel for either of the applicants.

64. In M. v. R.[1], in a joint judgment, Mason, C.J., Deane, Dawson and Toohey, JJ. stated the appropriate test for determining whether a verdict is unsafe and unsatisfactory:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations."

68. In Jones v. R.[2], Gaudron, McHugh and Gummow, JJ. observed that the test formulated by the majority in M. must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory.

71. This Court applied M. and Jones in R. v. Haseloff[3].

75. The applicants' counsel did not contest that the jury could have accepted police evidence as to the manner of driving and location of various incriminating articles in the vehicle. It was clearly open to the jury to do so despite the cross-examination and submissions of counsel at the trial.

78. The principal submission is that a jury properly instructed could not be satisfied beyond reasonable doubt that the applicants agreed together and/or with He and Zhou to commit an armed robbery at either the Red Rooster or the Pizza Hut of persons unknown. Counsel submitted to the court that other reasonable hypotheses consistent with innocence could not be excluded by the jury: for example, that the applicants travelled around the block as they did with no plan or agreement to rob anyone or with no intention of doing so. The vehicle's movements were reasonably consistent with the driver or the occupants having an innocent purpose such as where they would go to buy food, counsel submitted.

81. Counsel acknowledged that the loose items in the car were of the sort that could be used in an armed robbery, but submitted that they could also be used in a burglary or an aggravated burglary. They were not solely referable to armed robbery.

84. Counsel submitted that the items found in the bag, the wheel lever, masking tape and a pick lock, should have created doubt as to what, if anything, was agreed to by the persons in the vehicle. The wheel lever, which could be used as a jemmy, and the masking tape are more consistent with a burglary than a robbery.

87. The charge does not mention this submission as a point raised for the defence during final addresses. Mr Carlile assured the court that the point was argued. In my opinion, the jury was entitled to focus their attention upon the loose items inside the car and to ignore the contents in the bag, because the loose items inside the car were readily available to the occupants when an opportunity arose to commit an armed robbery.

90. The trial judge properly instructed the jury that it was incumbent upon the Crown to establish that the evidence proved beyond reasonable doubt conspiracy to commit an armed robbery, not some other criminal activity. Because the Crown case was partly based on circumstantial evidence, the Crown had ultimately to exclude every reasonable hypothesis consistent with innocence. Chamberlain v. R.[4]. "Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded." Doney v. R.[5]

93. "The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury." Doney v. R..[6] The function of this Court is to say whether as a matter of law it was open to the jury to exclude every reasonable hypothesis consistent with innocence.

96. Reference needs to be made to R. v. McCaul and Palmer[7], a decision of the Court of Criminal Appeal which was relied upon by counsel as being on all fours with the present case. There, two persons were observed to be acting suspiciously on the evening in question, travelling together in a vehicle when it was involved in a collision. The two occupants alighted and walked away carrying a bag containing a revolver and other paraphernalia suitable for a number of criminal offences. The Full Court set aside a conviction for conspiracy to rob because it considered that the evidence was consistent with the accused being a party to a conspiracy to commit any one of a number of criminal offences. The court held as a matter of law that the evidence was insufficient to establish the allegation of a conspiracy to commit robbery.

99. The decision in McCaul and Palmer turned on facts which were very much disputed in the trial by each accused. Counsel for McCaul argued that the evidence against him did no more than establish that on the night in question he, whilst armed and in company with Palmer and another male person, was acting suspiciously in the vicinity of an hotel. The principal and important distinction from this case is the suspicious driving of the applicants over a period of about 20 minutes in the vicinity of the two premises already mentioned. There was no evidence admissible against McCaul that he was party to an agreement to rob anyone. R. v. Thomas[8] was also relied upon. But that authority was also decided on the facts peculiar to it. No principle of law applicable to inferences was decided in either McCaul and Palmer or Thomas.

102. The decision in McCaul is distinguishable from the present case on the uncontested facts. First, the vehicle in which the applicants were travelling was acting suspiciously in relation to the Red Rooster and the Pizza Hut. Second, inside the vehicle were articles of an incriminating nature often used for the purposes of armed robbery.

105. Reference was also made by counsel to R. v. Cengiz[9]. The Crown there had relied upon a chain of events as the acts which constituted attempted murder. The accused argued that the Crown had not excluded every reasonable hypothesis consistent with innocence. The hypothesis relied upon by the accused was that the accused knew when she drove her car over her brother that he was dead. Therefore, she could not be guilty of an attempted murder. The Court of Appeal held that the jury was entitled to reject as fanciful that hypothesis. The decision in Cengiz is also distinguishable from the present case.

108. A further authority relied upon by counsel is R. v. Moran and Mokbel[10].

111. 34 In Moran the charge was conspiracy to traffic in a drug of dependence. The Crown case depended on direct evidence in the form of covertly taped conversations between the accused. The Crown invited the jury to construe the conversation as amounting to an agreement in the terms and to the effect as that alleged by the Crown. The jury convicted the accused and they appealed on the ground that the Crown had not excluded a hypothesis consistent with innocence, namely, that the evidence left open as a reasonable hypothesis that the only agreement concluded between the accused was an agreement for the supply of pseudoephedrine by Moran with an expectation on his part that Mokbel would use the chemical to make methylamphetamine. The Court of Appeal agreed that it was not possible to conclude that the jury acting reasonably could have excluded the alternative hypothesis.

114. None of the cases cited was decided on a new principle of law. The question in cases of this kind is whether as a matter of law the facts and circumstances entitled the jury to exclude every reasonable hypothesis consistent with innocence.

117. In my opinion, the jury was entitled to reject as fanciful the hypotheses relied upon by the applicants. On the whole of the evidence the jury was entitled to exclude the hypotheses on which the applicants relied.

120. The description given of the vehicle's movements entitled the jury to find beyond reasonable doubt that the persons in the vehicle were casing the area in preparation for a joint criminal purpose. When the evidence about the articles found in the vehicle, to which no serious challenge was made, was taken into account it was reasonably open to the jury, on the whole of the evidence, to infer that the four men had agreed and intended to commit an armed robbery, and the jury was also entitled to exclude the hypotheses on which the applicants relied.

123. The trial having been properly conducted and there being ample evidence on which the jury could rely in coming to its verdict, there is no basis to conclude that the guilty verdict is unsafe and unsatisfactory. It was open to the jury to be satisfied beyond reasonable doubt that the applicants were guilty as charged.

126. I would refuse leave to appeal the conviction.

129. The applications for leave to appeal sentence should be dismissed, having been abandoned this morning by counsel.

135. I agree. As O'Bryan, A.J.A. has said, the question is not the propriety of her Honour's ruling on the "no case" submission but whether there has been a miscarriage in the general sense that includes the first limb of s.568(1) of the Crimes Act as well as the third. In my opinion the jury were, for the reasons his Honour has given, entitled to convict each of the applicants of the offence with which he was charged.

143. The order of the Court in each application by each applicant is: